Henry Fuller v. State

FIRST DIVISION
BARNES, P. J.,
GOBEIL and MARKLE, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules

March 10, 2022

In the Court of Appeals of Georgia
A21A1481. FULLER v. THE STATE.

GOBEIL, Judge.

A jury found Henry Fuller guilty of multiple crimes related to an armed robbery

committed at a Circle K convenience store in January 2016. He was indicted and tried

alongside two co-conspirators, Jamario Hill and Robert Pabon. Fuller appeals from

his judgment of conviction and the denial of his motion for new trial, asserting: (1)

the evidence was insufficient to support the verdict, and (2) (a) the trial court

committed plain error in cutting off Fuller’s counsel from cross-examining co-

conspirator Pabon, or (b) counsel was ineffective for failing to object to the trial

court’s ruling on this issue.
 Viewed in the light most favorable to the jury’s verdict,1 the record shows that

in the early morning hours of January 22, 2016, the victim was working as a clerk at

a Circle K convenience store in Glynn County, Georgia. The victim stepped outside

to smoke a cigarette and saw two black males approaching her. The men forced the

victim back into the store with a gun to her back and demanded money from the safe.

The victim was not able to access the safe, so the assailants took approximately $40

to $50 from the cash register and a carton of cigarettes. The men ordered the victim

to strip, took her outside behind the store, instructed her to lie on the ground, and told

her that if she moved, they would shoot her. They then ran away, got into a vehicle,

and the car sped away “towards Habersham [Street].” The victim heard police sirens

“immediately” thereafter, and she jumped up and ran back into the store. The victim

testified that she could not see the men’s faces, as they were covered by masks. The

incident was recorded on Circle K surveillance cameras and played for the jury.

Sergeant Jason Dixon with the Glynn County Police Department was on patrol

that morning on Habersham Street and noticed a silver sedan that was moving in an

unusual manner. The sedan ran a red light, and Dixon activated his emergency lights

1
Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)
(1979).

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and followed the vehicle. The vehicle sped away and eventually crashed into a tree.

By the time Dixon reached the vehicle, there were no occupants inside. Dixon ran the

plates on the vehicle, a silver Toyota Camry, which showed the car had been reported

stolen. The car was towed back to the police station, where it was impounded,

searched, and processed. Fingerprints matching Fuller, Hill, and Pabon, among

others, were found. DNA material matching Fuller and Hill was also found inside the

vehicle.

A cell phone was found inside the vehicle. After obtaining a warrant to search

the phone, Detective Resden Talbert came to believe the phone belonged to “Robbie”

Pabon. Text history from the phone included an outgoing text message stating “I need

a lick real bad,” “lick” referring to a robbery or theft. Talbert also followed up on a

tip that some of Pabon’s belongings would be found at a residence, and at that

residence Talbert discovered and seized boots and clothes similar to those worn by

the Circle K robbers.

Investigator David Moore responded to the Circle K after the robbery was

reported. After receiving the information about the fingerprints found in the silver

sedan, Moore went to Hill’s residence to question him. The woman who owned the

home was present, gave Moore permission to search the house, and gave Moore a cell

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phone belonging to Hill. After searching the phone, Moore found incriminating

videos and photos of Pabon depicting him with a gun and wearing clothing similar

to the Circle K robbers. Moore also pulled additional security video from the Circle

K surveillance cameras, which showed two individuals matching the description of

the robbers in the Circle K the day before the robbery, January 21, 2016. In the

January 21 video, the faces of the individuals were visible.

Additionally, on January 20, two days before the robbery, another victim, C.

A., reported her silver Toyota Camry as stolen. She testified that she did not know

Pabon, Hill, or Fuller; they did not have any reason to be inside her car, and she had

never authorized anyone to drive her vehicle. The next day, Marlon James, who

salvages cars, received a call from a phone number later connected to Hill. When

James returned the call, a man sought to sell James a “junk car[,]” specifically a 2015

or 2016 Toyota Camry. The man also sent James photos of the car. When the man

stated that he did not have the car’s title, James told him that he could not purchase

the vehicle. The man on the phone eventually told James that “[t]he car was hot out

of Jacksonville[,]” “hot” meaning stolen. The Toyota Camry connected to the Circle

K robbery had a license plate matching the stolen vehicle, and Detective Moore later

found photos on Hill’s phone matching those sent to James.

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 Hill, Pabon, and Fuller were all arrested and indicted for the armed robbery, as

well as conspiracy to commit armed robbery, aggravated assault with intent to rob,

kidnapping, and false imprisonment, all related to the robbery of the Circle K. The

three men also were indicted for theft by receiving stolen property related to the theft

of the Toyota Camry. Fuller was indicted for possession of a weapon during the

commission of a felony.2

The three men were to be tried jointly. After the State rested its case, Pabon

decided to enter a guilty plea, agreeing to a sentence of 25 years, with 10 years to

serve in confinement. While entering his plea, outside the presence of the jury, Pabon

announced without prompting “I did want to state something for the record. Henry

Fuller was not with me at the time.” Pabon then stated his reluctance to testify, and

his counsel stated that Pabon intended to exercise his right to remain silent.

Counsel for Hill called Pabon as a witness. Even though Pabon’s counsel

repeated that Pabon intended to remain silent, Pabon answered questions asked by

Hill’s counsel, replying that Hill was not with Pabon during the robbery and that Hill

was not the getaway driver.

2
Fuller was also indicted for possession of a firearm by a convicted felon, but
the State dismissed the charge after the trial.

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 Counsel for Fuller then sought to question Pabon. Pabon was given a brief

recess to consult with his attorney, and when he returned, Pabon’s attorney

announced that Pabon would assert his right to remain silent and answer no more

questions. After some further discussion between the attorneys and the court, counsel

for Fuller asked the trial court, “With that, Judge, I’m prohibited from continuing to

question this witness?” The court responded: “I would think that would stop it.” The

court then instructed Pabon to leave the witness stand.

The case was submitted to the jury. The jury could not reach a unanimous

verdict as to Hill, but was able to reach a unanimous verdict as to Fuller. The trial

court directed the jury to continue to deliberate as to the charges against Hill, and

after they were still unable to reach a unanimous verdict,

the court declared a mistrial for Hill, and the jury submitted its verdict for Fuller,

guilty on all counts. Fuller was sentenced as a recidivist to life plus five years. Fuller

filed a motion for new trial, which was denied after a hearing. This appeal followed.

1. (a) On appeal, Fuller first contends that the evidence was insufficient “to

show that Mr. Fuller committed any of the crimes alleged in this case.” He argues that

the evidence was solely circumstantial, and failed to exclude reasonable hypotheses

of his innocence. We disagree.

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 “[W]hen a criminal conviction is appealed, the evidence must be viewed in the

light most favorable to the verdict, and the appellant no longer enjoys a presumption

of innocence.” Jones v. State, 318 Ga. App. 26, 28-29 (1) (733 SE2d 72) (2012). “[I]n

evaluating the sufficiency of the evidence, we do not weigh the evidence or determine

witness credibility, but only determine whether a rational trier of fact could have

found the defendant guilty of the charged offenses beyond a reasonable doubt.” Id.

at 29 (1) (citation and punctuation omitted).

We agree with Fuller that the State’s case was in large part, if not entirely,

based on circumstantial evidence. Where the evidence against a defendant is merely

circumstantial, “the proved facts shall not only be consistent with the hypothesis of

guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the

accused.” OCGA § 24-14-6. However, circumstantial evidence can support a

conviction, as

not every hypothesis is reasonable, and the evidence does not have to
exclude every conceivable inference or hypothesis; it need rule out only
those that are reasonable. The reasonableness of an alternative
hypothesis raised by a defendant is a question principally for the jury,
and when the jury is authorized to find that the evidence, though
circumstantial, is sufficient to exclude every reasonable hypothesis save

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 that of the accused’s guilt, this Court will not disturb that finding unless
it is insupportable as a matter of law.

Blackshear v. State, 309 Ga. 479, 483 (847 SE2d 317) (2020) (citation and

punctuation omitted).

Here, we conclude that a rational juror could find Fuller guilty of the armed

robbery and associated crimes. Fingerprint and DNA evidence placed Fuller and his

co-defendants inside the stolen Toyota Camry. Specifically, Fuller’s fingerprints were

found on the exterior of the driver door, the gas cap cover, a water bottle found inside

the vehicle, and the passenger door handle. Fuller’s DNA was found on the gear shift

and the steering wheel. Pabon’s fingerprints were found on a passenger-side door and

a CD recovered from the vehicle. Hill’s fingerprints were also found on the water

bottle alongside Fuller’s, as well as driver-side and passenger-side doors and the CD.

Hill’s DNA was found on the gear shift and steering wheel as well.

Additionally, the owner of the vehicle testified that she did not know Fuller and

the co-defendants and never provided them access to her car, showing that there was

no innocent explanation for Fuller’s fingerprints and DNA to be found on and inside

the vehicle, including on the gas cap, steering wheel, and gearshift. Sergeant Dixon

witnessed this vehicle in the area of the Circle K just after the robbery, and observed

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the vehicle flee after he turned on his emergency lights, before it crashed into a tree.

Additionally, evidence connected the three defendants to each other and to the

robbery itself, including clothing found at a residence where Pabon stayed which

matched the clothing seen in the videos from the Circle K surveillance cameras. And,

as described above, the three defendants’ fingerprints and DNA were intermingled

inside the vehicle, including on specific objects.

The jury also was able to view the Circle K surveillance footage from the

robbery and from January 21, the day before the robbery. The jurors were able to

assess whether these individuals wore similar clothing and matched the general size

and description of the robbers. In the January 21 footage, the mens’ faces were in

view, and the jury was able to decide whether those men resembled the robbers and

the defendants inside the courtroom. See Grimes v. State, 291 Ga. App. 585, 590-591,

594 (2) (662 SE2d 346) (2008) (identifying a suspect from a surveillance video is

within the province of the jury).

Ultimately, where the jury heard the State’s evidence linking Fuller to the

stolen vehicle and the Circle K robbery, and where they heard Fuller’s counsel’s

argument that the State had not sufficiently identified the men inside the Circle K, we

cannot say that the jurors irrationally chose to convict Fuller of the indicted offenses.

9
See Moon v. State, 187 Ga. App. 558, 558-559 (370 SE2d 808) (1988) (affirming

burglary conviction based on circumstantial evidence where defendant’s fingerprints

were found on window through which entry was gained into residence, and where

there was no innocent explanation presented as to how they came to be there);

Perdomo v. State, 307 Ga. 670, 673-674 (2) (837 SE2d 762) (2020) (affirming

convictions where suspects were not positively identified but “the jury heard detailed

testimony concerning a trio of armed and masked men committing the crimes”

charged, defendant’s fingerprints were found on (and he admitted to being inside) the

vehicle seen at the scene of the crimes, and “the overwhelming evidence

demonstrated that all occupants of the vehicle were involved in the crimes in

question”).

(b) Fuller specifically contests his kidnapping conviction, arguing that the State

failed to prove asportation. We are unpersuaded. Generally, to prove the offense of

kidnapping, the State must prove that the victim was moved. OCGA § 16-5-40 (a).

OCGA § 16-5-40 (b) (1) provides that even slight movement satisfies the asportation

requirement so long as the movement is not merely incidental to the commission of

some other offense. Movement of the victim is not considered merely incidental to

another offense if it: (a) conceals or isolates the victim, (b) makes the commission of

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the other offense substantially easier, (c) lessens the risk of detection, or (d) is for the

purposes of avoiding apprehension. OCGA § 16-5-40 (b) (2) (A)-(D).

In this case, after the robbery was committed, the victim was forced to strip and

moved outside behind the store, where she was ordered to lie down while the robbers

made their getaway. This movement concealed her from the view of anyone looking

into the store, isolated her from others, and lessened the risk of the robbers being

detected or apprehended as they fled. We find this evidence sufficient to prove the

asportation element of kidnapping. See Alexander v. State, 348 Ga. App. 859, 865 (1)

(b) (825 SE2d 405) (2019) (moving robbery victim into a bathroom satisfied the

asportation element by isolating victim, concealing victim, and making the robbery

substantially easier); Taylor v. State, 344 Ga. App. 122, 131 (1) (g) (809 SE2d 76)

(2017) (moving victim from doorway into interior room satisfied asportation element

because it “concealed and isolated [the victim] from anyone who would have

happened by the door to the apartment at the time” and also reduced the likelihood

that the robbery would be detected).

(c) Fuller also specifically contests his theft by receiving stolen property

conviction, arguing that the State failed to prove that Fuller knew the vehicle was

stolen. Again, we are unpersuaded. Under OCGA § 16-8-7 (a), a person commits the

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offense of theft by receiving “when he receives, disposes of, or retains stolen property

which he knows or should know was stolen[.]” (Emphasis supplied.)

Fuller was indicted individually and as a party to this crime. “A passenger in

a stolen vehicle may be convicted of theft by receiving if other circumstances exist

from which guilty knowledge may be inferred, such as some evidence, either direct

or circumstantial that the accused was a party to the crime by aiding and abetting its

commission.” King v. State, 268 Ga. App. 811, 812 (1) (603 SE2d 88) (2004).

Evidence in this case showed that the vehicle was stolen on January 20, a mere two

days before the robbery. In that short time frame, Fuller left his fingerprints on the

outside and inside of the car, and left his DNA on the steering wheel and gear shift,

demonstrating his possession and control of the vehicle. The vehicle’s owner testified

that she did not know Fuller and his co-defendants, and there was no innocent

explanation for Fuller’s fingerprints and DNA being found outside or inside the

vehicle.

There was evidence implying knowledge that the vehicle was stolen, including

a cell phone linked to Hill that was used to called a car salvager, and evidence that

the man who made the call tried to sell the vehicle, admitting that he did not have the

car’s title, and describing the car as “hot.” Additionally, the car had a Florida license

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plate with a plate frame from the victim’s church, and adult diapers were found in the

car’s trunk that belonged to an elderly patient of the victim’s. These unusual details

allowed the jury to infer that Fuller had knowledge that this car did not belong to any

of the young men with whom he was driving the car around Glynn County, Georgia.

See King, 268 Ga. App. at 812 (1) (it was obvious that a truck the defendant was

riding in was stolen because “the ignition was messed up”) (punctuation omitted);

Sanders v. State, 204 Ga. App. 545, 546 (1) (a) (419 SE2d 759) (1992) (personal

items of the victims, including photographs and items containing their names, were

strewn about the interior of the car, putting the defendant on notice that his

accomplice did not own the car). Therefore, we affirm the trial court’s denial of

Fuller’s motion for new trial based on the sufficiency of the evidence.

2. Fuller also raises error associated with the trial court’s ruling that he could

not continue to cross-examine Pabon.

(a) First, Fuller asserts that the trial court committed plain error when it cut off

his questioning of Pabon after Pabon communicated his desire to assert his Fifth

Amendment right to remain silent. For the reasons that follow, we do not find plain

error.

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 Fuller argues that he was entitled to a full and sifting cross-examination of

Pabon after he was called as a witness by Hill. He contends that the error affected the

outcome of his trial because Pabon “was the only witness who took the stand offering

testimony about who was and was not actually involved in the armed robbery of the

Circle K.” He argues that allowing Hill to elicit testimony from Pabon that Hill was

not present at the robbery, but preventing Fuller from seeking the same kind of

testimony from Pabon in his favor, explains the discrepancy in the verdicts between

Hill (mistrial) and Fuller (guilty).

Fuller is correct that a defendant has the right to a “thorough and sifting

cross-examination” and that “[c]ross-examination is a vital component of the

constitutionally protected right of the accused to confront the witnesses against him.”

Snelling v. State, 215 Ga. App. 263, 264 (1) (a) (450 SE2d 299) (1994). However,

because the record reveals that Fuller’s counsel made no objection to her inability to

further cross-examine Pabon or further confront Pabon on behalf of Fuller, we agree

that the correct standard to apply on review is plain error. See Simpson v. State, 353

Ga. App. 568, 571 (2) (839 SE2d 47) (2020) (where defendant did not raise

Confrontation Clause argument at trial, we review only for plain error).

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 To show plain error, [Fuller] must show that the error: (1) was not
affirmatively waived; (2) was clear and not open to reasonable dispute;
(3) affected his substantial rights; and (4) seriously affected the fairness,
integrity, or public reputation of judicial proceedings. Under the third
prong of this test, [Fuller] must make an affirmative showing that the
error probably did affect the outcome below. Satisfying all four prongs
of this standard is difficult, as it should be.

Id. (citation and punctuation omitted).

In this case, the trial court conceded in its order on Fuller’s motion for new trial

that it committed error by allowing Pabon to assert his Fifth Amendment right to

remain silent without examining whether his testimony may have subjected him to

prosecution for some other offense. And we agree.

Although Pabon had pleaded guilty, he had not yet been sentenced, so he likely

was entitled to assert his Fifth Amendment right to remain silent. See Shealey v. State,

308 Ga. 847, 852 (2) (b) (843 SE2d 864) (2020) (citing Mitchell v. United States, 526

U. S. 314, 326 (119 SCt 1307, 143 LE2d 424) (1999), for the proposition that “a

defendant’s Fifth Amendment privilege against self-incrimination is not extinguished

by the entry of a guilty plea but rather may be asserted at least until sentencing”).

“When the witness manifests his intention to claim Fifth Amendment protection, the

court must conduct a hearing outside the presence of the jury to determine whether

15
the testimony the State seeks to elicit potentially could incriminate the witness.”

Parrott v. State, 206 Ga. App. 829, 832 (2) (427 SE2d 276) (1992). See also Brown

v. State, 295 Ga. 804, 809 (5) (a) (764 SE2d 376) (2014) (same process applied when

a criminal defendant intended to call witness). It is clear that the court failed to

conduct such an inquiry in Fuller’s case.

However, we cannot conclude that the error in this case probably did affect the

outcome below. Although Pabon should not have been excused from the witness

stand without further inquiry, it is clear from the record that he did not want to answer

further questions from Fuller’s counsel. Pabon’s attorney was continuously advising

Pabon to remain silent, and Pabon repeated multiple times that he did not intend to

answer any more questions. “[A]n unanswered question does not furnish grounds for

a mistrial.” Willard v. State, 244 Ga. App. 469, 472 (1) (b) (535 SE2d 820) (2000)

(citation and punctuation omitted). Instead, “(w)hen a witness declines to answer on

cross examination certain pertinent questions relevant to a matter testified about by

the witness on direct examination, all of the witness’ testimony on the same subject

matter should be stricken.” Mercer v. State, 289 Ga. App. 606, 608-609 (2) (658

SE2d 173) (2008) (citation, punctuation, and emphasis omitted). See also Cody v.

State, 278 Ga. 779, 780-781 (2) (609 SE2d 320) (2004) (“If the witness’s refusal to

16
answer (whether because the answer could incriminate or because the witness violates

the court’s order to answer) denies a party a thorough and sifting cross-examination

of the specifics of the witness’s testimony on direct, then the trial court is authorized

to strike that witness’s direct testimony.”). Therefore, had the court followed the

proper procedure, Fuller would still not have been entitled to the testimony he desired

from Pabon; he would have been entitled merely to striking Pabon’s testimony that

Hill was not with him during the robbery. See Mable v. State, 261 Ga. 379, 381 (2)

(405 SE2d 48) (1991) (failure to strike testimony of witness was harmless, where

evidence of guilt was overwhelming). Thus, we cannot find plain error in this case.

(b) Alternatively, Fuller asserts that trial counsel was ineffective for failing to

object when the trial court allowed Pabon to be excused as a witness; and in so

failing, thereby “acquiesced to the trial court’s erroneous decision.” We disagree.

To prevail on a claim of ineffective assistance of counsel, Fuller must prove

both that his lawyer’s performance was deficient and that he suffered prejudice as a

result of this deficient performance. Strickland v. Washington, 466 U. S. 668, 687

(III) (104 SCt 2052, 80 LE2d 674) (1984). “If [Fuller] cannot meet his burden of

proving either prong of the Strickland test, then we need not examine the other

prong.” Causey v. State, 319 Ga. App. 841, 842 (738 SE2d 672) (2013). “The trial

17
court’s determination that an accused has not been denied effective assistance of

counsel will be affirmed on appeal unless that determination is clearly erroneous.”

Johnson v. State, 214 Ga. App. 77, 78 (1) (447 SE2d 74) (1994) (citations and

punctuation omitted).

Pretermitting whether trial counsel’s failure to object constitutes deficient

performance, we agree with the trial court that Fuller cannot demonstrate that he was

prejudiced by counsel’s actions. As discussed above, even had counsel successfully

objected to Pabon’s refusal to answer her questions, the proper remedy would have

been to strike his previous testimony about who was with Pabon during the robbery.

Mercer, 289 Ga. App. at 608-609 (2). None of Pabon’s testimony was incriminating

as to Fuller, so striking it was not likely to have changed the result of Fuller’s trial.

Judgment affirmed. Barnes, P. J., and Markle, J., concur.

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