Robinson v. the State ( 2016 )

FOURTH DIVISION
ELLINGTON, P.J.
MERCIER and PETERSON, 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.
http://www.gaappeals.us/rules
April 5, 2016
In the Court of Appeals of Georgia
A16A0125. ROBINSON v. THE STATE. PE-042C
PETERSON, Judge.
Tony Robinson appeals his convictions for aggravated assault, criminal damage
to property in the second degree, and cruelty to children in the third degree. He argues
that (1) the guilty verdicts are against the weight of the evidence; (2) improper jury
conduct should have resulted in a mistrial and shows that the verdict “is inherently
lacking in due process”; and (3) the trial court erred in admitting evidence of his prior
convictions. We find that the evidence was sufficient to authorize the guilty verdicts,
Robinson waived his arguments as to juror misconduct, and the trial court did not
abuse its discretion in admitting evidence of Robinson’s prior convictions. Therefore,
we affirm Robinson’s convictions.
1. Robinson argues that the guilty verdicts were against the weight of the
evidence, which we will construe as an argument that the evidence was insufficient
to support his convictions. When appellate courts review the sufficiency of the
evidence, they do not “re-weigh the evidence or resolve conflicts in witness
testimony” but instead defer “to the jury’s assessment of the weight and credibility
of the evidence.” Greeson v. State, 287 Ga. 764, 765 (700 SE2d 344) (2010) (citation
omitted); see also Allen v. State, 296 Ga. 738, 741 (2) (770 SE2d 625) (2015)
(whether to grant a new trial on grounds the verdict is against the weight of the
evidence is matter solely for trial court’s discretion; appellate courts may review only
for sufficiency). We determine whether, “after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (99 S. Ct. 2781, 61 LE2d 560) (1979) (citation omitted) (emphasis in original).
So viewed, the evidence shows that Robinson was in a relationship with the
victim and had been living in her apartment for several months. During the course of
their relationship, Robinson was physically violent toward the victim. The victim
called police in June 2013 following one particular violent incident. Prior to the trial
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over that incident, Robinson asked the victim to testify that her injuries were self-
inflicted, but the victim failed to appear in court rather than testify to that effect.
Subsequently, on October 5, 2013, Robinson and the victim argued over his use
of a cell phone – for which the victim was paying – to have frequent phone
conversations with his ex-girlfriend. Robinson followed the victim into her bedroom,
stating, “I told you I was going to kill you.” Robinson grabbed the victim by her arms
as she tried to move across the bed, positioning himself on top of her. After he let her
go, the victim announced that she was leaving the home, but Robinson grabbed her
keys and cell phone. Eventually she persuaded him to allow her to leave by inviting
him to go to Wal-Mart with her and her son.
Along with her son, the victim managed to get to the car in time to lock
Robinson out of it. As the victim began to back out of her parking space, Robinson
tried to open the car’s doors, and then ran back to the apartment. The victim pulled
back into her parking spot, and yelled out of the window, “I’m calling the police on
you, you stupid bitch.” Robinson picked up a concrete slab that was near the
apartment door and approached the front of the victim’s car. He swung it multiple
times at the victim’s car; it ultimately came through the window and injured the
victim in the head, with a piece of concrete ending up in her lap. The victim’s son
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screamed in the back seat. The victim drove to a library, where she called police. The
victim was hospitalized for five days due to her injuries, including a skull fracture and
hearing loss. To completely repair the victim’s car would have cost about $1,600.
An officer who responded to the 911 call found the victim sitting in her car at
the library, her head bleeding profusely. A concrete slab was in between the victim’s
legs and her driver’s side window was shattered. The officer later went to the
apartment complex parking lot, where police found two other pieces of broken
concrete, as well as broken car parts. A friend of the victim testified that Robinson
called her and said, “I’ll find [the victim] before they find me”; the friend testified
over objection that she interpreted that as a “threat.”
Robinson testified in his own defense at trial. He admitted throwing the
concrete slab at the victim’s car, but said the victim was trying to run him over at the
time. He said he “ran for [his] life” and felt his life was in danger. The victim and her
son both denied that the victim’s car hit Robinson.
Robinson argues that the guilty verdicts were a product of the introduction of
his prior criminal history and the testimony that Robinson had threatened the victim
when he told her friend, “I’ll find [the victim] before they find me.” However, as
explained in Division 3, his prior convictions were properly admitted. As for
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Robinson’s argument about the friend’s testimony that he threatened the victim –
which he does not support with any legal authority – our review of the evidence
shows that any error in admitting that statement was harmless given the weight of the
evidence against Robinson.
Robinson’s position at trial was that his need to defend himself justified
throwing a concrete slab at his girlfriend’s car. “Once [Robinson] raised the
affirmative defense of justification and testified to the same, the State then bore the
burden of disproving that defense beyond a reasonable doubt.” Agyemang v. State,
334 Ga. App. 137, 138-39 (1) (778 SE2d 387) (2015). Robinson argues on appeal that
his testimony (and, to some extent, the testimony of the victim’s minor child)
contradicted the victim’s testimony, showing that Robinson was acting in self-
defense. But it is for the jury, not this Court, to assess the credibility of the witnesses
and resolve conflicts in their testimony. See Greeson, 287 Ga. at 765. Robinson also
complains that the responding officer testified that he could not say exactly how the
victim’s car was positioned when it lost its driver’s side mirror. To the extent that
Robinson suggests that the positioning of the victim’s car showed that she was the
aggressor during the incident in the parking lot, the victim refuted that suggestion
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through her testimony, and “[t]he testimony of a single witness is generally sufficient
to establish a fact[.]” OCGA § 24-14-8.
Robinson suggests that the victim’s testimony itself showed that she was the
aggressor. He points to her testimony that he was at the back of her car, trying to get
in, when she “started trying to put the car in reverse.” However, the victim went on
to testify that Robinson ran back to her home before picking up a concrete slab and
charging toward her car. She and her son also testified that her car did not hit
Robinson. Robinson argues that the victim’s admitted decision to return briefly to her
parking spot and yell that she was calling the police showed that she did not fear
Robinson causing her any harm. But even assuming this is true, fear on the victim’s
part is not a necessary element of the crimes of which Robinson was convicted. See,
e.g., OCGA § 16-5-20(a) (“A person commits the offense of simple assault when he
or she either: (1) [a]ttempts to commit a violent injury to the person of another; or (2)
[c]ommits an act which places another in reasonable apprehension of immediately
receiving a violent injury.”) (emphasis added); OCGA § 16-5-21(b)(2) (“A person
commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly
weapon or with any object, device, or instrument which, when used offensively
against a person, is likely to or actually does result in serious bodily injury[.]”).
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This case presented an issue of credibility, which was for a jury to decide. The
jury, by its verdict, indicated that it credited the evidence contrary to Robinson’s
justification defense. See Agyemang, 334 Ga. App. at 139. Our review of the evidence
persuades us that it was sufficient to reject Robinson’s theory of self-defense.
2. Robinson argues that he was prejudiced by improper jury conduct that
should have resulted in a mistrial and shows the verdict is “lacking in due process.”
His argument is based on two incidents, the first while the State was still presenting
its case and the second during deliberations.
Where a defendant fails to move for a mistrial, he waives any appellate
argument that the trial court erred by not granting one. See Little v. State, 332 Ga.
App. 553, 555 (2) (774 SE2d 132) (2015). An argument that a juror should have been
removed from a jury also is waived when counsel fails to request a juror be struck for
cause. See Ware v. State, 321 Ga. App. 640, 642 (2) (742 SE2d 156) (2013). In this
case, defense counsel indicated he had no objection to the trial court’s decisions, in
one instance, to discharge a juror and utilize an alternate and, in the other instance,
to allow the juror in question to continue deliberations with the panel. By consenting
to the trial court’s handling of these juror issues, Robinson has waived any argument
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that the trial court erred in that respect, including by leaving a juror on the panel or
failing to grant a mistrial.1
3. Finally, Robinson argues that the trial court erred by admitting evidence of
his previous convictions. Robinson was paroled in 2006 on convictions for armed
robbery and voluntary manslaughter.2 He was convicted of aggravated stalking and
terroristic threats in 2012. The trial court admitted evidence of the guilty convictions
for general impeachment purposes, over a defense objection. We conclude the trial
court did not abuse its discretion.
Subject to the time limits of OCGA § 24-6-609(b), OCGA § 24-6-609(a)(1)
provides that evidence that an accused who testifies has been convicted of a crime
punishable by death or imprisonment in excess of one year “shall be admitted if the
1
Robinson also appears to complain about the trial court’s failure to give a
charge under Allen v. United States, 164 U.S. 492 (17 S. Ct. 154, 41 LEd 528) (1896),
after the jury indicated that it was “hung.” This argument is not included within any
of his enumerations of error, and so we do not address it. See Brown v. State, 315 Ga.
App. 115, 119 n.18 (2) (c) (726 SE2d 612) (2012).
2
Although the trial transcript and the parties’ briefs indicate these convictions
were entered in 1986, court filings from the related proceedings indicate the
convictions were entered in 1987. The apparent discrepancy does not change our
analysis.
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court determines that the probative value of admitting the evidence outweighs its
prejudicial effect to the accused.”3
The introduction of evidence of a prior felony conviction is intended to
afford the jury a basis to infer that the witness’s character is such that he
would be less likely than the average trustworthy citizen to be truthful
in his testimony. The introduction of evidence of a prior crime is thus a
general attack on the credibility of the witness.
Smith v. State, 331 Ga. App. 296, 299 (2) (771 SE2d 8) (2015)(citation and internal
punctuation omitted). A trial court’s decision to admit a defendant’s prior conviction
under OCGA § 24-6-609(a)(1) is reviewed for an abuse of discretion. Id. at 300 (2).
OCGA § 24-6-609(b) provides that a conviction shall not be admissible if more
than ten years have passed since the conviction or the release of the witness from
confinement, whichever is later, “unless the court determines, in the interests of
justice, that the probative value of the conviction supported by specific facts and
circumstances substantially outweighs its prejudicial effect.” Robinson was not
paroled on the armed robbery and voluntary manslaughter convictions until 2006, less
than ten years before the 2014 trial. Accordingly, the more stringent “substantially
3
Because the trial of this case took place in 2014, Georgia’s new Evidence
Code applies. See Ga. L. 2011, pp. 99, 214, § 101.
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outweighs” standard does not apply even as to those convictions. See United States
v. $21,175.00 in U.S. Funds, 521 Fed. Appx. 734, 741 (11th 2013)4; Smith, 331 Ga.
App. at 299 n.9 (2). This approach differs from the prior OCGA § 24-9-84.1(a), under
which, except for convictions involving dishonesty or false statements, even recent
felony convictions could be used to impeach a defendant only if the probative value
“substantially outweigh[ed]” the prejudicial effect.
Under the prior code section, Georgia trial courts undertaking that balancing
were to consider factors such as (1) the kind of felony involved and its impeachment
value, (2) the time of the conviction and the defendant’s subsequent history, (3) the
similarity between the past crime and the charged crime (lest evidence of a similar
crime create an unacceptable risk of prejudice); (4) the importance of the defendant’s
testimony; and (5) the centrality of the credibility issue. See Waye v. State, 326 Ga.
App. 202, 205-06 (3) (756 SE2d 287) (2014); see also Quiroz v. State, 291 Ga. App.
423, 428 (4) (662 SE2d 235) (2008). This court has raised questions about the
continued applicability of these factors to the new Evidence Code’s provision for
4
Given the new Evidence Code’s similarity with the federal rules, Georgia
courts look to federal case law in interpreting it, with any conflicts among the circuits
to be resolved by following the U.S. Court of Appeals for the Eleventh Circuit. See
State v. Jones, 297 Ga. 156, 158 (1) (773 SE2d 170) (2015).
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instances when not more than ten years have passed since the conviction or the
release of the witness from confinement. See Smith, 331 Ga. App. at 300 (2).
However, the federal courts have employed these factors under a prior version of the
federal evidence rule that is substantively similar to our new evidentiary rule. See
United States v. Preston, 608 F.2d 626, 639 n.17 (5th Cir. 1979). They remain a
useful guide.
The trial court considered those factors here. The trial court correctly noted the
centrality of the credibility dispute between Robinson and the victim. The trial court
pointed out that the defendant had received multiple convictions after his 2006
parole, including one in 2007. The trial court acknowledged that the prior convictions
did not involve crimes of dishonesty, saying that “cuts against the State a little bit,”
but rightly pointed out that, as the statute is structured, crimes of dishonesty are
considered under a different standard. The trial court considered the similarity
between the prior convictions and the pending charges against Robinson, including
that on their face the 2012 convictions sounded as though they involved “some sort
of domestic situation,” deciding that was not enough of a similarity to prevent their
use for impeachment purposes Even under the prior, more stringent standard, this
Court has found that it is not an abuse of discretion to allow a defendant charged with
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violent crimes to be impeached with convictions for violent offenses. See Jones v.
State, 318 Ga. App. 105, 107-08 (3) (733 SE2d 407) (2012) (no abuse of discretion
in admitting prior aggravated assault conviction at trial for murder and aggravated
assault – charges on which defendant was acquitted – and firearms offenses);
Newsome v. State, 289 Ga. App. 590, 592-94 (2) (657 SE2d 540) (2008) (no abuse
of discretion to admit prior convictions for aggravated assault and possession of a
firearm during the commission of a felony at trial for aggravated assault, aggravated
stalking, cruelty to a child, and possession of a firearm during the commission of a
felony). We find no abuse of discretion in the trial court’s thoughtful and considered
analysis.
Robinson also argues that the prior convictions were improperly admitted
because the State was allowed to offer certified copies of them into evidence even
after he acknowledged them on the stand. He relies on Ross v. State, 279 Ga. 365,
366-68 (2) (614 SE2d 31) (2005), in which our Supreme Court held that it was error
to reject a defendant’s offer to stipulate to his status as a convicted felon when the
State’s purpose for admitting the defendant’s prior conviction into evidence was to
satisfy the elements of the charge of possession of a weapon by a convicted felon.
The high court therein set forth the following limited exception to the general rule
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that a defendant cannot stipulate to facts and thereby obviate the need for proof over
the State’s objection:
[W]hen (1) a defendant’s prior conviction is of the nature likely to
inflame the passions of the jury and raise the risk of a conviction based
on improper considerations, and (2) the purpose of the evidence is solely
to prove the defendant’s status as a convicted felon, then it is an abuse
of discretion for the trial court to spurn the defendant’s offer to stipulate
to his prior conviction and admit the evidence to the jury.
Id. at 368 (2). However, Robinson’s attempt to apply the Ross exception here is
foreclosed by our decision in Jones, which explained that the Ross exception did not
apply to evidence used for the proper purpose of impeaching a defendant’s credibility
as a witness. Jones, 318 Ga. App. at 108 (4). Therefore, we discern no error in the
trial court’s admission of the prior convictions.
Judgment affirmed. Ellington, P. J., and Mercier, J., concur.
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