Harris v. the State ( 2015 )

THIRD DIVISION
ELLINGTON, P. J.,
DILLARD and MCFADDEN, 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
November 2, 2015
In the Court of Appeals of Georgia
A15A1006. HARRIS v. THE STATE.
MCFADDEN, Judge.
After a jury trial, Phillip M. Harris was convicted of armed robbery, aggravated
assault, possession of a firearm during the commission of a crime, and possession of
a firearm by a convicted felon. On appeal, Harris argues that the evidence does not
support the armed robbery conviction, but we find that the evidence was sufficient to
show both the property’s change of location and Harris’s exercise of dominion over
the property. Harris also argues that the trial court should have merged the armed
robbery and aggravated assault convictions for sentencing purposes, but we find that
the convictions were based on separate acts and therefore did not merge. Finally,
Harris argues that he received ineffective assistance of trial counsel, but we find that
he has not shown both harm and prejudice. We therefore affirm his convictions.
1. Sufficiency of the evidence.
When a defendant challenges the sufficiency of the evidence supporting his
criminal conviction, “the 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.” Jackson v. Virginia,
443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted;
emphasis in original). It is the function of the jury, not the reviewing court, to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from the evidence. Id. “As long as there is some competent evidence, even though
contradicted, to support each fact necessary to make out the [s]tate’s case, the jury’s
verdict will be upheld.” Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001)
(citations and punctuation omitted).
Viewed in this light, the evidence showed that the victim went to the Ware
Manor Apartments to visit friends. As he was walking through the complex, he
encountered Harris’s cousin and another woman, who made unfriendly remarks to
him. The victim exchanged words with the women, then walked off to visit his
friends.
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Thirty minutes to an hour later, as the victim was walking back through the
complex, he encountered Harris. Harris voiced his displeasure with the victim and
pulled a gun on him. Harris hit the victim in the head and face with the gun, splitting
the victim’s chin. Harris snatched the victim’s necklace from his neck. Then Harris
shot the victim in the arm. The police found the necklace in a grassy area, 30 yards
away from where the incident occurred.
Harris argues that the evidence was insufficient to support the armed robbery
conviction because it showed only that the victim’s necklace was broken and fell to
the ground, so there was neither a change in location nor a transfer of complete
dominion over the property. “Under OCGA § 16-8-41[, the armed robbery statute,]
the slightest change of location whereby the complete dominion of the property is
transferred from the true owner to the trespasser is sufficient asportation to meet the
statutory criterion. It is not required that the property taken be permanently
appropriated.” Miller v. State, 223 Ga. App. 453, 454 (1) (477 SE2d 878) (1996)
(citation and punctuation omitted). Here, the evidence enabled the jury to find that
Harris ripped the victim’s necklace from his neck and carried it 30 yards away before
dropping it. This evidence supported the armed robbery conviction. See id. at 453-
454 (1) (evidence supported armed robbery conviction where cashier, believing
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defendant had a gun, opened cash register and defendant pulled cash drawer out of
the register, spilling cash to the floor, before store owner appeared and held defendant
at gunpoint until police arrived); see also Gutierrez v. State, 290 Ga. 643, 645 (723
SE2d 658) (2012) (where money was removed from its original position, where
victims wanted it to be, and was placed in front of armed intruder, in the place where
he wanted it to be, money “came within the dominion and control of” defendant)
(citation and punctuation omitted).
2. Merger.
Harris argues that the trial court should have merged his armed robbery and
aggravated assault convictions for sentencing because the aggravated assault arose
out of the same act or transaction as the armed robbery. We disagree. The evidence
showed that Harris took the victim’s necklace after hitting him in the head and face
with the gun, the act for which he was indicted for armed robbery. After taking the
necklace, Harris shot the victim in the arm, the act for which he was indicted for
aggravated assault. Thus, “the armed robbery and aggravated assault were separate
events, the armed robbery being complete before the commission of the aggravated
assault. For this reason, the court below did not err when it [did not] merge these
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convictions.” Brown v. State, 314 Ga. App. 198, 206 (6) (723 SE2d 520) (2012)
(citations and footnote omitted).
3. Effective Assistance of Counsel.
Harris argues that he received ineffective assistance of counsel in two regards.
To prevail on his claim of ineffective assistance of counsel, Harris must show both
deficient performance by trial counsel and actual prejudice. Strickland v. Washington,
466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984); Smith v. Francis, 253
Ga. 782, 783 (1) (325 SE2d 362) (1985). To show sufficient prejudice, Harris must
show that “there is a reasonable probability (i.e., a probability sufficient to undermine
confidence in the outcome) that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. Id. (citation omitted). If Harris “fails to
meet his burden of proving either prong, then we do not need to examine the other
prong.” Works v. State, 301 Ga. App. 108, 114 (7) (686 SE2d 863) (2009) (citation
omitted).
(a) Failure to subpoena alibi witness.
Harris argues that trial counsel was ineffective for failing to subpoena an alibi
witness, his girlfriend, who did not come to the trial. He argues that had counsel
subpoenaed this witness, either she would have shown up and given the alibi
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testimony or she would not have shown up and then counsel could have introduced
her testimony from Harris’s probation revocation hearing related to this charge.
Harris has not shown that the failure to subpoena the witness prejudiced his case
because there is no reasonable probability that her testimony would have changed the
outcome in his favor.
Trial counsel testified that he had gotten a sworn statement from Harris’s
girlfriend, in which she stated that Harris had come to her residence at 8 p.m. on the
evening of the shooting and stayed until the next day. Counsel testified that he
thought the girlfriend would attend the trial, so he did not worry about subpoenaing
her.
Even if counsel had introduced the girlfriend’s testimony that Harris was with
her from 8 p.m. onward, it would not have helped Harris’s case because it directly
contradicted Harris’s own trial testimony. Harris testified that he went to his
girlfriend’s house around 8 p.m, but she was not there, so he went to Ware Manor, the
apartment complex where the crime occurred, arriving just a few minutes later. Harris
entered an apartment, stayed there for 15 or 20 minutes, then went outside, where he
saw a group of people, including his cousin (the woman with whom the victim had
exchanged words). The group was arguing and Harris heard a gunshot.
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Harris’s testimony that he was only at his girlfriend’s residence for a moment
directly contradicts his girlfriend’s statement that he was with her from 8 p.m. that
evening until the next morning. Consequently, “[t]here is no reasonable probability
that the outcome of the trial would have been different had the [alibi] testimony been
presented.” Mathis v. State, 328 Ga. App. 292, 298 (2) (c) (761 SE2d 836) (2014)
(citations omitted).
(b) Failure to investigate.
Harris argues that trial counsel was ineffective because he failed to investigate
the facts of the case properly. Harris “did not make any proffer as to what further
investigation would have uncovered. He thus cannot establish ineffective assistance
of counsel on this ground.” Arbegast v. State, 332 Ga. App. 414, 426 (6) (f) (773
SE2d 283) (2015) (citation and punctuation omitted).
Judgment affirmed. Ellington, P. J., and Dillard, J., concur.
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