Thomas Birdsong v. State ( 2019 )

FIFTH DIVISION
MCFADDEN, C. J.,
MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
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.
http://www.gaappeals.us/rules
November 18, 2019
In the Court of Appeals of Georgia
A19A2434. BIRDSONG v. THE STATE.
PHIPPS, Senior Appellate Judge.
Following a jury trial, Thomas Edward Birdsong was found guilty of armed
robbery (OCGA § 16-8-41). He appeals from the denial of his amended motion for
new trial, contending that he abandoned his effort to commit the crime and, thus, that
the evidence was insufficient to sustain his conviction. For the reasons that follow,
we affirm.
We review the evidence in the light most favorable to the prosecution, under
the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt
2781, 61 LE2d 560) (1979), to discern whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. We do not judge
witness credibility or weigh the evidence, nor do we resolve evidentiary conflicts, as
those matters are for the jury.
The evidence adduced at trial shows that in late November or early December
2012, Birdsong had lunch at the home of a former co-worker, Jamar Terrell. Marcus
Rutledge and another friend of Birdsong’s, who was not identified, were also there.
The four began talking about robbing a particular Wells Fargo Bank branch.1 The
unidentified fourth man decided not to participate, but Birdsong offered to supply
guns and provided Terrell and Rutledge with a 9-millimeter handgun and a shotgun
to be used in the robbery. Birdsong also helped plan the robbery. He was to be the
getaway driver and keep a lookout for police, honking the horn to alert the other men
if he saw law enforcement approaching. He developed the idea to have Rutledge and
Terrell enter the bank from separate locations, and he set a nearby Citgo gas station
as the location where he would pick them up after the robbery. He also came up with
an idea to report the shotgun, which belonged to his brother, as stolen after the
robbery. All three men met several times to travel to and scope out the location of the
1
Terrell and Rutledge both pled guilty to armed robbery, and both testified at
Birdsong’s trial.
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robbery beforehand. The men agreed to split the proceeds after the robbery, and
Birdsong was to receive a one-third share.
On the day of the robbery, the men drove in two cars, one belonging to
Birdsong and the other to Terrell. They parked Terrell’s car at the Citgo and traveled
to a Wal-Mart in Birdsong’s car. All three men went into the Wal-Mart and Rutledge
stole ammunition for their guns. Birdsong then drove them back toward the bank. He
dropped Terrell off in front of a pizza restaurant near the bank, and he dropped
Rutledge off on the drive-thru side, as they had planned. Birdsong was to wait for the
men back at Citgo, near Terrell’s parked car.
Rutledge and Terrell then walked into the bank wearing masks and brandishing
the guns. They demanded money from the teller and forced everyone to lie on the
floor and put their hands behind their heads. A teller put money in bags, as directed.
Rutledge grabbed the bags, and he and Terrell fled with more than $10,400. Terrell
testified that they ran “to the Citgo where Thomas Birdsong would be waiting to drive
us away.” When they got to the Citgo parking area where they had planned to meet,
Birdsong was not there. Rather, he was sitting in his car at the Citgo gas pumps. They
tried to signal him, but he was looking away, so they instead got into Terrell’s car. As
they drove away, they saw that Birdsong was following them in his vehicle. The teller
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had slipped a tracking device into a bag of cash and the police gave chase, but Terrell
and Rutledge abandoned their car and fled on foot. Police recovered a shotgun, two
bags of money, and a mask in or near the abandoned vehicle. Police tracked Terrell
down using his car registration, and learned of Rutledge and Birdsong through him.
The police gave Birdsong’s photograph and car description to media outlets.
Following the broadcasts, Birdsong turned himself in to police.
In a police interview, a video of which was played for the jury, Birdsong told
police that he discussed the bank robbery with the other men while they were all
outside the bank, but he denied knowing when the robbery would occur. He said the
plan was for him to be the getaway driver, and he told police where he was supposed
to wait. He said that the other men “wanted me to be the watch out man,” and that he
thought about it but begged off at the “last movement” because he was afraid. He told
police he followed the men to a store next to the bank and that while they entered the
bank, he went into the store for snacks. When he emerged, he saw police surrounding
the bank, at which point he “kn[e]w they did it.” He said he then drove away from the
scene.
Birdsong argues that the evidence is insufficient to sustain his conviction
because it shows that he abandoned his effort to commit the crime. He cites OCGA
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§ 16-4-5 (a), which provides, in part, that “[w]hen a person’s conduct would
otherwise constitute an attempt to commit a crime under Code Section § 16-4-1, it is
an affirmative defense that he abandoned his effort to commit the crime[,] . . .
manifesting a voluntary and complete renunciation of his criminal purpose.”
(Emphasis supplied.)2
As outlined above, although Birdsong told police that he begged off “at the last
movement[,]” there also was testimony that he was still waiting at the Citgo gas
station when the crime was complete and the other men ran from the bank, even
though he was not parked at the agreed-upon getaway spot. Further, there was
testimony that Birdsong followed the other men in his car as they fled the scene.
Although Birdsong’s evidence was in conflict with other evidence, the weighing of
evidence and the judging of witness credibility are matters for the jury, not for this
Court. Rogers v. State, 350 Ga. App. 163, 163 (1) (828 SE2d 398) (2019).
From the evidence presented, including that Birdsong provided the guns used
in the robbery, dropped the men off near the bank so that they could rob it, waited at
the Citgo knowing the robbery was taking place, and then followed the men as they
2
We note that Birdsong was not charged with an attempt crime or with
conspiracy.
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fled after taking money, the jury was authorized to infer that Birdsong did not
abandon the crime prior to its completion. “[A] person cannot abandon an already
completed crime.” (Citation omitted.) Hubbard v. State, 210 Ga. App. 141, 143 (1)
(a) (435 SE2d 709) (1993). See generally Spivey v. State, 243 Ga. App. 785, 786-788
(1) - (2) (534 SE2d 498) (2000) (finding no error when trial court refused to charge
jury on abandonment where, despite defendant’s own conflicting testimony, some
evidence showed that defendant was promised payment to drive others to and from
a planned robbery, but that after parking the car, she refused to serve as getaway
driver).
Further, as the jury found, the evidence outlined above was sufficient to enable
a rational trier of fact to find each essential element of the crime of armed robbery,
and that Birdsong was a party to that completed crime. See OCGA § 16-8-41 (a) (A
person commits armed robbery “when, with intent to commit theft, he or she takes the
property of another from the person or the immediate presence of another by use of
an offensive weapon”); OCGA § 16-2-20 (b) (3), (4) (A person is a party to the crime
if he “[i]ntentionally aids or abets in the commission of the crime; or . . .
[i]ntentionally advises, encourages, hires, counsels, or procures another to commit the
crime”). While there is no argument on appeal that Birdsong entered the bank,
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pointed a gun at a customer or teller, and demanded money, “[a] participant to a crime
may be convicted although he is not the person who directly commits the crime. . . .
Mere presence at the scene is not sufficient to convict one of being a party to a crime,
but criminal intent may be inferred from conduct, before, during, and after the
commission of a crime.” (Footnote and emphasis omitted.) Jordan v. State, 281 Ga.
App. 419, 422 (1) (636 SE2d 151) (2006). We find no error.
Judgment affirmed. McFadden, C. J., and McMillian, P. J., concur.
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