SMITH v. the STATE. , 350 Ga. App. 336 ( 2019 )

FIFTH DIVISION
MCFADDEN, P. J.,
MCMILLIAN and GOSS, 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
June 4, 2019
In the Court of Appeals of Georgia
A19A0246. SMITH v. THE STATE. GS-007
GOSS, Judge.
After a bench trial, Dardiquez Smith was convicted of robbery by force and
possession of a firearm during the commission of a crime. He appeals from his
convictions and the denial of his motion for new trial, arguing that the trial court
erred by admitting certain similar transaction testimony. He also challenges his
conviction under the general grounds. For the following reasons, we affirm.
Viewed in the light most favorable to the verdict,1 the evidence shows that the
victim, Koixiong Chen, worked as a delivery person at Number One Chinese
Restaurant. After midnight on July 9, 2013, Chen received an order to deliver food
to 213 Rountree Street in Statesboro. As he arrived at the address, a man was waiting
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Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
on the lawn to receive the order. As Chen leaned into the car to take the food out,
another man came out from behind a trash can, pointed a gun at his head and
demanded that Chen hand over all his money and the food. Chen replied “You can
take it. Don’t hit me.” The man then used his gun to hit Chen on his head and neck
several times before taking about a hundred dollars and the food and then
disappearing. Chen testified that during the robbery, he saw at least three African-
American men that appeared to be about 18-20 years old on the lawn. Chen then got
back into his car, drove away and called 911. He abandoned that delivery.
Chen testified that he had received an order from the same phone number about
two weeks prior to the robbery. He testified that the caller requested that he deliver
food to an address on Church Street. As Chen was driving to deliver the food to the
address, he became suspicious because a man appeared to be hiding behind a trash
can near the delivery address.
Tyrik Holly testified that he was charged with being a party to armed robbery
and possession of a weapon during the commission of a crime for the same incident.
Holly testified that on the night of the incident he was “hanging out” with friends,
including Jeremy Lonon and Smith, in the breezeway of an apartment building when
Lonon came up with the idea to rob a Chinese food delivery man. Holly explained
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that Smith called in the Chinese food order using Lonon’s phone, and that they
requested the delivery to be at Rountree Street, which was a short walk away from the
apartment building. Holly stated that he went to Rountree Street and hid behind
bushes while the robbery took place. Smith stopped the car and spoke to the delivery
man, while Lonon held the gun, robbed Chen, and hit him with the gun. Holly saw
Lonon with the gun, the money, and the food in his hands after the robbery.
Jarvis Perkins testified that he pled guilty to robbery by force as a result of the
incident. He was childhood friends with all of the defendants except Lonon. He
explained that Lonon came up with the idea to rob the Chinese food deliveryman, that
Smith made the phone call and approached the driver, and that Perkins hit the driver.
He also said that it was Smith’s idea to plan the robbery.
Lonon testified at trial that he had pled guilty to robbery by force for the
robbery. He testified that on July 9th, Smith asked him if he wanted to try “to rob the
Chinese dude” like “last time.” Lonon and Smith then planned on their strategy to
commit the robbery using Lonon’s BB gun. Smith placed the food order and flagged
the deliveryman down so that Lonon could rob him.
1. Smith argues that the trial court erred in denying his motion for new trial on
the general grounds because the evidence was sufficiently close to warrant the trial
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court’s exercise of discretion under OCGA §§ 5-5-20 and 5-5-21 to order a new trial.
We find no error.
The grant or denial of a new trial is “within the sound discretion of the trial
court and will not be disturbed if there is any evidence to authorize it. A trial court
may grant a motion for new trial if, in the exercise of its discretion, it finds that a . .
. verdict was against the weight of the evidence.” (Footnotes omitted.) Taylor v. State,
259 Ga. App. 457, 460 (2) (576 SE2d 916) (2003). OCGA § 5-5-20 authorizes the
trial court to grant a new trial “[i]n any case when the verdict of the jury is found
contrary to evidence and strongly against the weight of the evidence and the
principles of justicy and equity[,]” and OCGA § 5-5-21 empowers the trial court to
grant a new trial “where the verdict may be decidedly and strongly against the weight
of the evidence even though there may appear to be some slight evidence in favor of
the finding.” We note that although “a bench trial does not involve a jury and,
technically, there is no verdict in a bench trial, a motion for new trial raising the
general grounds is a proper means of seeking retrial or reexamination in the trial court
of that same court’s decision of an issue of fact.” (Citations and punctuation omitted.)
Kea v. State, 344 Ga. App. 251, 253 (1) (b) (810 SE2d 152) (2018).
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However, this Court does not have the same discretion to grant a motion for
new trial as is granted to the trial court in OCGA § 5-5-21. “This Court can only
review a lower court’s refusal to grant a motion for new trial under the standard
espoused in Jackson v. Virginia[, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979)]
to determine if the evidence, when viewed in the light most favorable to the
prosecution, supports the verdict.” (Footnote omitted.) Taylor, 259 Ga. App. at 460
(2). The record shows that the trial judge exercised his discretion in denying Smith’s
motion for a new trial and that the evidence authorized the trial court’s findings of
fact under the standard set forth in Jackson v. Virginia. Several co-defendants
testified that Smith was a co-conspirator, and a participant in the robbery of Chen.
There was evidence that Smith placed the telephone call to summon Chen, that he
was the first to confront Chen, and that the robbery was Smith’s idea. See OCGA §
16-2-20 (a) (“Every person concerned in the commission of a crime is a party thereto
and may be charged with and convicted of commission of the crime”). This is simply
not a case in which “the evidence preponderates heavily against the verdict.”
(Punctuation and footnote omitted.) Taylor, 259 Ga. App. at 461 (2). Accordingly,
“we find no abuse of discretion in the trial court’s denying the motion for new trial”
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under the general grounds. (Citation and punctuation omitted.) Kea, 344 Ga. App. at
254 (1) (b).
2. Smith argues that the trial court erred in allowing Lonon to testify regarding
the group’s prior aborted attempt to rob Chen. We disagree.
Smith argues that the trial court erred in allowing the State, over objection, to
elicit testimony from Lonon about a prior incident where the group had planned on
robbing a delivery person from the same Chinese food restaurant. Smith contends that
this testimony was inadmissible, without prior advance notice, under OCGA § 24-4-
404 (b) as a prior bad act. The State argues that this testimony is not subject to OCGA
§ 24-4-404 (b) analysis, but rather is intrinsic evidence that is inextricably intertwined
with the events at trial. See Smith v. State, 302 Ga. 717, 725 (4) (808 SE2d 661)
(2017) (“the limitations and prohibition on ‘other acts’ evidence set out in OCGA §
24-4-404 (b) do not apply to ‘intrinsic evidence’”) (Citation, punctuation and footnote
omitted).
All of the facts and circumstances surrounding the crime for which the accused
is charged are admissible as “intrinsic” despite the fact that the evidence may
incidentally reflect poorly on the accused’s character. “Evidence is admissible as
intrinsic evidence when it is (1) an uncharged offense arising from the same
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transaction or series of transactions as the charged offense; (2) necessary to complete
the story of the crime; or (3) inextricably intertwined with the evidence regarding the
charged offense.” (Citation and punctuation omitted.) Smith, 302 Ga. at 725 (4).
Evidence pertaining to the chain of events explaining the context,
motive, and set-up of the crime, is properly admitted if it is linked in
time and circumstances with the charged crime, or forms an integral and
natural part of an account of the crime, or is necessary to complete the
story of the crime for the jury. . . . Evidence of other acts is “inextricably
intertwined” with the evidence regarding the charged offense if it forms
an integral and natural part of the witness’s accounts of the
circumstances surrounding the offenses for which the defendant was
indicted. And this sort of intrinsic evidence remains admissible even if
it incidentally places the defendant’s character at issue.
(Citation and punctuation omitted.) Id. See United States v. Troya, 733 F.3d 1125,
1131 (11th Cir. 2013). This Court reviews the admission of such evidence for a “clear
abuse of discretion.” (Footnote omitted.) Williams v. State, 342 Ga. App. 564, 566 (1)
(804 SE2d 668) (2017).
In this case, Lonon described an incident two weeks earlier where Smith,
Lonon and others attempted to rob the same deliveryman from the same Chinese food
restaurant, but were not able to complete the crime because Chen became suspicious.
This Court has held that when the crime charged is part of a crime spree or pattern of
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criminal activity, the entire chain of crimes can be proved at trial, even if they were
not all charged, as they were all intrinsic to the offense. In Williams, 324 Ga. App. at
566-567 (2), this Court held that evidence of a Newton County carjacking – the
second in a three-day, three-car carjacking spree was admissible intrinsic evidence
during the trial of the first and third carjackings, both of which occurred in the same
county. This Court held, inter alia, that evidence from the third incident tied the
defendant to the first and second incident. Id. In Branam v. State, 204 Ga. App. 205,
208 (5) (419 SE2d 86) (1992), this Court held that although the accused was charged
with only two counts of child molestation, the prosecution could present evidence,
without giving prior notice, of other instances in which the accused molested the
same child.
In the instant case, the earlier attempted robbery involved the same group of
people, including Smith and Lonon, the same phone number, and the plot to rob the
same deliveryman from the same Chinese food restaurant in the same neighborhood.
Because evidence of the earlier robbery was “necessary to complete the story of the
crimes[,]” we conclude that it was intrinsic evidence to the charged crimes and
therefore not covered by OCGA § 24-4-404 (b). (Citation omitted.) Virger v. State,
__ Ga. __ (7) (a) (824 SE2d 346) (2019). Even though the trial court’s order denying
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Smith’s motion for a new trial did not specifically note that this was intrinsic
evidence, we affirm its judgment under the “right for any reason” rationale. See, e.
g., Snelson v. State, 303 Ga. 504, 506 (813 SE2d 357) (2018).
Judgment affirmed. McFadden, P. J., and McMillian, J., concur.
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