ROGERS v. the STATE. ( 2019 )

FOURTH DIVISION
DOYLE, P. J.,
COOMER 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.
http://www.gaappeals.us/rules
May 15, 2019
In the Court of Appeals of Georgia
A19A0492. ROGERS v. THE STATE.
COOMER, Judge.
Following a jury trial, Treston Dartrey Rogers was convicted of armed robbery.
Rogers filed a motion for new trial, which the trial court denied. Rogers appeals,
arguing that the evidence was insufficient to support his conviction for armed robbery
and that the trial court erred in finding that he was properly advised of required
Miranda1 warnings prior to questioning. Finding no reversible error, we affirm.
1. Rogers contends that the State failed to produce sufficient evidence to
support his conviction for armed robbery. In reviewing the sufficiency of the
evidence, “[t]he appellant no longer enjoys a presumption of innocence, and an
appellate court determines only the legal sufficiency of the evidence and does not
1
Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
weigh the evidence or assess the credibility of the witnesses.” Salazar v. State, 326
Ga. App. 627, 627 (1) (757 SE2d 224) (2014) (footnote omitted). “Our limited review
. . . leaves to the jury the resolution of conflicts in the testimony, the weight of the
evidence, the credibility of witnesses, and reasonable inferences to be made from
basic facts to ultimate facts.” Menzies v. State, 304 Ga. 156, 160 (II) (816 SE2d 638)
(2018) (citations and punctuation omitted). “As long as there is some competent
evidence, even though contradicted, to support each fact necessary to make out the
State’s case, the jury’s verdict will be upheld.” Wade v. State, 305 Ga. App. 819, 821
(701 SE2d 214) (2010) (citation omitted). “[T]he relevant question is 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.” Salazar, 326 Ga. App. at 627 (1) (footnote omitted).
Viewed in the light most favorable to the verdict, the record shows that the
victim worked at a store that sells cell phones and accessories. The victim had a
profile on a dating application called Jack’d. Rogers used the profile “I’m Daddy” on
Jack’d to sell marijuana. Rogers went to the store where the victim worked to buy a
phone charger. After Rogers left the store, the victim received a message on the
Jack’d application from Rogers telling the victim that Rogers had met him in the
2
store. The victim remembered who Rogers was, and they continued to message back
and forth through the Jack’d application.
Rogers and the victim arranged to meet at the victim’s house. The victim sent
Rogers his address, and Rogers showed up at the victim’s house. The victim knew
that Rogers was outside of his house because Rogers sent the victim a message saying
he was there and the victim looked through the window and saw him. The victim
recognized Rogers from seeing him at the store. Rogers had another person with him,
a man who the victim did not recognize. When the victim answered the door, Rogers
asked him if his friend could use the bathroom. After the other man went upstairs to
use the bathroom, Rogers jumped on the victim. The victim had turned to walk to the
kitchen, and Rogers grabbed him from behind by his shirt and turned him around. The
other man came back downstairs and started hitting the victim with a handgun. The
man who had gone upstairs told the victim to stay still on the floor and not to move.
Rogers went from room to room, taking things. The other man stayed with the victim
and pointed the gun at his head. Rogers went upstairs, and when he came back
downstairs he had the victim’s Nintendo 3DS video game console, Lenovo laptop,
and iPhone 6. Rogers and the other man also took the victim’s Nintendo 2DS game
console and cash belonging to the victim’s cousin. After the victim gave Rogers his
3
phone password, Rogers and the other man left. However, they returned immediately
because Rogers had left his book bag, which contained the items taken from the
victim’s room, on the victim’s couch.
After Rogers and the other man left the house again, the victim went to a
neighbor’s house, and the neighbor called the police. With the victim’s help, a
detective with the Norcross Police Department set up a fake profile on Jack’d and
messaged the profile used by Rogers. Rogers responded, and the detective met Rogers
at a store and took him to the Norcross Police Department for questioning. While he
was in custody, Rogers gave the detective permission to look at his cell phone. After
the detective discovered that the victim’s house was shown as a “frequent location”
on Rogers’s phone, Rogers admitted going to the victim’s house. Rogers stated that
his role was only to show his face to the victim so that he would open the door, and
that he then walked away and was not involved in anything else that happened.
Rogers also admitted that someone gave him an iPhone to sell, and that he had
sold it at a kiosk in a grocery store. While Rogers was being questioned, investigators
learned that the victim’s iPhone had been sold at the same kiosk shortly after the
robbery, and that the transaction receipt showed that Rogers’s identification had been
used to sell the iPhone. Rogers eventually admitted that the iPhone he sold probably
4
belonged to the victim. After getting a search warrant for Rogers’s cell phone, the
detective found that he had also researched how to reset a Lenovo laptop.
Rogers was charged with armed robbery and first degree home invasion. At
trial, Rogers moved for a directed verdict on the home invasion charge. The trial court
initially denied the motion. However, after the jury convicted Rogers of both charges,
Rogers renewed his motion for a directed verdict on the home invasion charge and
the trial court granted the motion. Rogers then filed a motion for a new trial, which
the trial court denied.
OCGA § 16-8-41 provides that “[a] person commits the offense of armed
robbery when, with intent to commit theft, he or she takes property of another from
the person or the immediate presence of another by use of an offensive weapon, or
any replica, article, or device having the appearance of such weapon.” Rogers
contends that there was no credible testimonial evidence that he was the person who
committed the armed robbery, and that his possession of the stolen iPhone is not
sufficient to prove that he had the intent to commit armed robbery.
We disagree.
Rogers argues that the victim’s testimony is not credible because when shown
photographs of suspects by investigators, the victim identified someone else as the
5
person who entered his home and robbed him at gunpoint. However, at trial, the
victim identified Rogers as the person who came to his house and robbed him. The
testimony of a single witness is generally sufficient to establish a fact. OCGA § 24-
14-8. Moreover, the jury, not this Court, resolves conflicts in the testimony and
weighs the evidence. Cail v. State, 287 Ga. App. 547, 548 (1) (652 SE2d 190) (2007).
We have reviewed the record and conclude that the evidence presented at trial
authorized the jury to find Rogers guilty beyond a reasonable doubt of armed robbery.
2. Rogers contends that the trial court erred in finding that he was properly
advised of required Miranda warnings prior to questioning. Rogers filed a motion to
suppress statements made by him to law enforcement officers while in custody. The
trial court held a Jackson-Denno2 hearing and reviewed portions of the video
recording of the interview of Rogers by law enforcement officers. The trial court
found that Rogers was given his Miranda warning as required and that Rogers made
the statement freely and willingly without any hope of benefit or fear of injury.
Consequently, the trial court allowed the entire video recording of Rogers’s interview
to be played for the jury at the trial.
2
See Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LEd2d 908) (1964).
6
Miranda warnings are intended to preserve a defendant’s Fifth
Amendment right against self-incrimination and must be administered
to an accused who is in custody and subject to interrogation. Only if the
defendant knowingly and intelligently waives his rights under Miranda
are any of his custodial statements admissible in the prosecution’s case-
in-chief.
Benton v. State, 302 Ga. 570, 573 (2) (807 SE2d 450) (2017) (citations and
punctuation omitted). “We look to the totality of the circumstances to determine
whether a defendant has waived his rights under Miranda and whether his
incriminating statements to the police were voluntary.” Id. at 572-573 (2) (citation
and punctuation omitted). “When reviewing a trial court’s decision on a motion to
suppress evidence of a defendant’s custodial statement to investigators, we must
accept the factual findings and credibility determinations of the trial court unless
clearly erroneous.” Id. at 572 (2) (citation and punctuation omitted). “But where
controlling facts are not in dispute, such as those facts discernible from a videotape,
our review is de novo.” Id. (citations and punctuation omitted).
Before Rogers was questioned at the Norcross Police Department, a detective
pulled a Miranda card out of his wallet and read it to Rogers. On appeal, Rogers
7
contends that the detective read the Miranda card incorrectly. Rogers claims that the
the detective stated:
you’ve the right to remain silent, anything you say can and will be used
against you in a court of law; you have the right to an attorney and have
your attorney present while being questioned; if you want an attorney
and cannot afford one, one will be appointed if you have any questions.
Do you understand?
Rogers argues that the way the detective read the card linked the appointment of
counsel to some future point in time after the police interrogation because the
detective said that an attorney would be appointed only if Rogers had any questions.
However, Rogers misstates what the detective read from his card. Our review of the
video of the detective reading the Miranda card shows that the detective said:
you’ve the right to remain silent, anything you say can and will be used
against you in a court of law; you have the right to an attorney and have
your attorney present while you’re being questioned; if you want an
attorney and cannot afford one, one will be appointed for you before any
questioning. Do you understand?
The way that the detective read the card made it clear that Rogers had the right to
have an attorney present while being questioned and that if Rogers wanted an
attorney and could not afford one, one would be appointed before any questioning.
8
Rogers argues that the detective’s failure to present him with a written waiver
form to initial and sign amounted to a violation of his Miranda rights. However, the
absence of a written waiver form is not conclusive on the question of whether
Miranda warnings have been properly administered. See Stovall v. State, 236 Ga. 840,
841 (1) (225 SE2d 292) (1976). Even in the absence of a written waiver form, a trial
court is authorized to find, based on the totality of the circumstances, that a defendant
has waived his rights under Miranda. See id.Rogers contends that the detective dismissed the importance of advising
Rogers of his Miranda rights and that Rogers was a very young man who had never
been arrested before and had no knowledge of the criminal process. Rogers further
contends that the detective rushed through the process of advising him of his Miranda
rights as if it were a procedural nuisance. Rogers cites Clay v. State, 290 Ga. 822 (725
SE2d 260) (2012), in support of his argument that he did not knowingly and
intelligently waive his Miranda rights because the detective rushed through the
process of advising him of those rights. In Clay, the Supreme Court found that its
review of a videotape supported the trial court’s findings that an investigator read the
Miranda warnings “in such a super-speed manner that the warnings likely could not
have been identified as anything more than gibberish without having a prior
9
familiarity with Miranda.” Clay, 290 Ga. at 825 (1) (A) (2). Based on our review of
the video of the detective reading the Miranda warnings to Rogers, we find that,
unlike in Clay, the detective’s reading of the Miranda warning was clearly and
audibly articulated using a reasonable, intelligible cadence. After the detective read
the Miranda warning and asked Rogers if he understood, Rogers nodded his head
affirmatively and stated, “yeah.” The detective then began questioning Rogers. The
record supports the trial court’s finding that Rogers was given his Miranda warning
as required and that he made his statement freely and willingly. Accordingly, the trial
court did not err in finding that Rogers was properly advised of his Miranda rights
prior to questioning.
Judgment affirmed. Doyle, P. J., and Markle, J., concur.
10