Boccia v. the State , 335 Ga. App. 687 ( 2016 )

FOURTH DIVISION
BARNES, P. J.,
RAY and MCMILLIAN, 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
February 12, 2016
In the Court of Appeals of Georgia
A15A1660. BOCCIA v. THE STATE.
RAY, Judge.
Daniel Boccia and Brandon Cesari were tried jointly before a jury for crimes
resulting from an altercation that occurred behind a fraternity house on the campus
of the Georgia Institute of Technology (“Georgia Tech”). Both men were indicted for
armed robbery (OCGA § 16-8-41); two counts of aggravated assault with intent to rob
(OCGA § 16-5-21 (a) (1)); carrying a weapon in a school safety zone (OCGA § 16-
11-127.1); and battery (OCGA § 16-5-23.1).1 The jury convicted Boccia, who at the
time of the crimes was a 21-year-old student at Georgia Perimeter College, of armed
1
OCGA § 16-11-127.1 has been amended multiple times since the offenses
occurred. We consider the case in light of the appropriate prior version of that statute.
The pertinent language in the prior and current versions of the statute is identical. See
Ga. L. 2010, Act 465, §2; Act 643, § 1-4.
robbery, battery, and carrying a weapon in a school safety zone, but acquitted him on
the two aggravated assault counts.2 He appeals from the denial of his motion for new
trial, contending that the evidence was insufficient to support his convictions for
armed robbery and carrying a weapon in a school safety zone, that the trial court erred
in how it instructed or failed to instruct the jury, and that the trial court erred in
making comments that allegedly interfered with the plea negotiations. He also argues
that his trial counsel was ineffective. For the reasons that follow, we affirm.3
The facts, as outlined in our earlier opinion in the related Cesari case, are as
follows:
Viewed in the light most favorable to the verdict, Jackson v. Virginia,
443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the
evidence shows that following a University of Georgia-Georgia Tech
football game, Georgia Tech student Blake Bauer was in a friend’s room
at the Pi Kappa Phi fraternity house when he heard someone banging on
the window. He went outdoors to investigate and saw two men who
rushed at him and punched him in the face. He identified the men in
court as Cesari and Boccia. He testified that Boccia punched him first,
2
This Court rendered a separate decision in Cesari’s appeal in Cesari v. State,
__ Ga. App. __ (Case No. A15A1389, decided November 17, 2015).
3
Boccia’s motion to file a supplemental brief is denied.
2
then Cesari punched him. The men punched him “at least ten times in
the face.”
Bauer fell down onto a PVC pipe, which he picked up and tried to swing
at the men, hitting Cesari. He swung the pipe only once before Cesari
snatched it from him. As Boccia grabbed him by the collar and backed
him toward some air conditioning units, he saw that Cesari was pointing
a knife at him. Bauer testified that the knife had approximately a
three-inch blade. Both men demanded Bauer’s wallet and money. Bauer
denied having any money. Cesari then hit Bauer in the back of the head
with the pipe. Bauer felt a searing pain and fell to the ground. Boccia
began patting Bauer’s pockets, looking for a wallet, so Bauer took out
his wallet and handed it to Boccia. The men opened the wallet, and upon
finding that it contained no cash, threw it at Bauer and left the scene.
Jurors saw surveillance video of the incident.
Another Georgia Tech student witnessed the incident from his window
in a nearby fraternity house. At about 2:00 a.m., he saw two men
breaking bottles, then saw them retrieve a knife from their car and walk
toward the Pi Kappa Phi house, where they began throwing PVC pipes
that were three to four feet in length. He testified that the street lights
and fraternity house lights were on and that he could see the men’s
faces. He identified Boccia and Cesari, whom he had seen earlier at a
party in his own fraternity house, as the men he saw throwing the pipes.
However, he could not recall which man had the knife. He saw Bauer
walk out of the Pi Kappa Phi fraternity house. Although Bauer did not
approach Boccia and Cesari aggressively, both Boccia and Cesari began
3
punching Bauer, who fell to the ground. When the men backed Bauer
into the corner by the air conditioning units, one of them hit Bauer in the
head with a PVC pipe.
The witness called 911, and Georgia Tech police arrested Cesari and
Boccia later that evening. Officers found a knife in Boccia’s pocket. The
knife was admitted into evidence at trial and shown to the jury.
Boccia testified at trial; Cesari did not. Boccia testified that he and
Cesari, who were both intoxicated, were behind the Pi Kappa Phi
fraternity house “throwing some stuff around” when he looked into one
of the fraternity house’s windows. He said Bauer came outside and
confronted him with a PVC pipe, hitting him in the forehead. Cesari
took the pipe from Bauer, and Cesari and Bauer began to fight. Boccia
threatened Bauer and testified that he “remember [ed] having [Bauer’s]
wallet in my hands,” though he denied asking Bauer for the wallet. More
specifically, he testified at trial that Bauer “brandished his wallet out”
saying “take my wallet,” then threw it to the ground. He further testified
that he was too drunk to recall why he picked up the wallet, but said he
looked through it. When shown the knife, he testified that his
grandfather had given it to him and that he had given it to Cesari at some
point in the evening to open a beer bottle. He said Cesari threw the knife
to the ground and that he picked it up, not knowing it may have been
used in the altercation.
Cesari, supra at *1-*2.
Boccia appeals from the denial of his motion for new trial.
4
1. Boccia argues that the trial court erred in failing to give, sua sponte, several
jury charges, as outlined below. He further argues that his trial counsel was
ineffective in failing to seek these jury instructions.
Pursuant to OCGA § 17-8-58 (b), although no objection is made at the trial,
appellate courts must conduct a plain error review when an appealing party properly
asserts an error in jury instructions. State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232)
(2011).
First there must be an error or defect – some sort of deviation from a
legal rule – that has not been intentionally relinquished or abandoned,
i.e., affirmatively waived, by the appellant. Second, the legal error must
be clear or obvious, rather than subject to reasonable dispute. Third, the
error must have affected the appellant’s substantial rights, which in the
ordinary case means he must demonstrate that it affected the outcome of
the trial court proceedings. Fourth and finally, if the above three prongs
are satisfied, the appellate court has the discretion to remedy the error
– discretion which ought to be exercised only if the error seriously
affects the fairness, integrity or public reputation of judicial
proceedings.
(Citation and punctuation omitted.) Id. at 33 (2) (a).
As to Boccia’s claims of ineffective assistance of counsel,
5
Under Strickland v. Washington [466 U. S. 668 (104 S.Ct. 2052, 80
LE2d 674) (1984)], to succeed on an ineffective assistance claim, a
criminal defendant must demonstrate both that his trial counsel’s
performance was deficient and that there is a reasonable probability that
the trial result would have been different if not for the deficient
performance. There is a strong presumption that the performance of trial
counsel falls within the wide range of reasonable professional
assistance. The reasonableness of the conduct is viewed at the time of
trial and under the circumstances of the case. If an appellant fails to meet
his burden of proving either prong of the Strickland test, the reviewing
court need not examine the other prong. When reviewing the trial
court’s decision, this Court will accept the trial court’s factual findings
and credibility determinations unless clearly erroneous; however, we
review the court’s application of legal principles de novo.
If a defendant bases his ineffectiveness claim on trial counsel’s failure
to request a charge on a certain defense, it is irrelevant whether the trial
court would have been required to give such a charge absent a request.
Rather, the appropriate inquiry is whether trial counsel provided
deficient representation in failing to request the charge, and if so,
whether the defendant can meet the prejudice prong of Strickland v.
Washington. In making the latter determination, the relevant inquiry is
whether the charge, if it had been requested, was warranted by the
evidence, and if it had been given, whether there is a reasonable
probability that it would have changed the outcome of the trial.
6
(Citation and footnotes omitted.) Pierre v. State, 330 Ga. App. 782, 784-785 (2) (769
SE2d 533) (2015).
(a) Boccia argues that if the jury could have found from the evidence that the
robbery was committed without the use of the knife as an offensive weapon, as
charged, he was entitled to a charge on robbery by intimidation (unarmed robbery)
or theft by taking as lesser-included offenses. See OCGA § 16-1-6.
(i) Lesser-included charges. Pursuant to OCGA § 16-8-40 (a) (1), (2), “[a]
person commits the offense of robbery when, with intent to commit theft, he takes
property of another from the person or the immediate presence of another . . . [b]y use
of force [or] . . . [b]y intimidation, by the use of threat or coercion, or by placing such
person in fear of immediate serious bodily injury to himself or to another[.]” Under
OCGA § 16-8-2, a person commits the crime of theft by taking “when he unlawfully
takes or, being in lawful possession thereof, unlawfully appropriates any property of
another with the intention of depriving him of the property, regardless of the manner
in which the property is taken or appropriated.”
Bauer testified that Cesari had a knife, and a witness, Alexander Layyous,
testified that he saw a knife but could not identify whether Boccia or Cesari was
holding it. Bauer testified that Boccia demanded his wallet and patted his pockets in
7
an attempt to find it. Cesari, supra at *2. Bauer also testified that the men threatened
him by “wav[ing] a knife in my face. The other one put his fists up into my face like
– you know, like threatening to punch me more.” Bauer testified that he was afraid.
Boccia, however, denied even knowing that a knife was involved in the
incident. He acknowledged threatening Bauer but insisted that he never asked for
Bauer’s wallet. Boccia testified that Bauer offered him the wallet and threw it on the
ground, saying, “Here, take my wallet.” Boccia acknowledged picking up the wallet,
but testified that he “didn’t take anything” from it and had no intent to rob Bauer.
While it is true that “[w]here a case contains some evidence, no matter how
slight, that shows that the defendant committed a lesser offense, then the court should
charge the jury on that offense,” Styles v. State, 329 Ga. App. 143, 150 (2) (764 SE2d
166) (2014) (punctuation and footnote omitted), our plain error analysis requires that
we look to the Kelly standard, supra. “Satisfying all four prongs of this standard is
difficult, as it should be.” (Citation and punctuation omitted.) Kelly, supra at 33 (2)
(a). Here, exercising our discretion and in light of the overwhelming evidence of
Boccia’s guilt, as outlined above, we cannot say that the failure to give the lesser-
included instructions either created any reasonable likelihood that the State’s burden
of proving all essential elements of armed robbery was lessened, or that the charge
8
as given likely affected the outcome of the proceedings or seriously affected the
fairness, integrity, or public reputation of the proceedings. Carter v. State, 269 Ga.
891, 893 (7) (506 SE2d 124) (1998); Kelly, supra. We find no error.
(ii) Ineffective assistance of trial counsel. Boccia argues that trial counsel was
ineffective in failing to request a jury charge on the lesser included offenses of
robbery by intimidation or theft by taking. We disagree.
At the motion for new trial hearing, trial counsel testified that he could not
“imagine” a strategic reason for not seeking an instruction on the lesser included
offenses, and that he did not remember why he did not seek such an instruction. It is
clear, however, that trial counsel pursued an all-or-nothing strategy in defending
Boccia on the armed robbery count. Boccia admitted to no wrongdoing and denied
all aspects of participation in the armed robbery. He denied any intent to rob, denied
demanding Bauer’s wallet, and denied even knowing that a knife was used. He also
denied ever harming or hitting Bauer.
Looking at the objective reasonableness of counsel’s performance, we find that
there were sound strategic reasons for not undermining Boccia’s all-or-nothing
defense by introducing the idea that he may have committed lesser crimes. Villegas
v. State, 334 Ga. App. 108, 112 (2) (778 SE2d 363) (2015) (counsel’s failure to seek
9
a charge on a lesser included offense and instead to pursue an all-or-nothing strategy
“is not so patently unreasonable that no competent attorney would have made that
decision”) (citation and punctuation omitted). See also Powell v. State, 291 Ga. 743,
748 (2) (b), n. 2 (733 SE2d 294) (2012) (“That [defendant’s] lawyer recalled no
strategic thinking that might have motivated [his actions] is of no moment. Although
the thinking of the lawyer may be relevant to our inquiry . . . our inquiry properly is
focused on what the lawyer did or did not do, not what he thought or did not think”)
(citation and punctuation omitted). Counsel was not ineffective.
(b) Boccia argues that the trial court erred in failing to instruct the jury sua
sponte on the law of self defense and also argues that his trial counsel was ineffective
in failing to request such an instruction.
(i) Self defense instruction. Boccia asserts that the trial court erred when it
failed to charge the jury on the affirmative defense of self defense.4 It is true that “the
trial court must charge the jury on the defendant’s sole defense, even without a
written request, if there is some evidence to support the charge.” (Citation,
4
Boccia cites to a portion of the record where he testifies that he was
restraining Bauer from hitting him and checking to see if Bauer had a weapon, but
does not reveal in his appellate brief which conviction or convictions he is
challenging with this affirmative defense.
10
punctuation, and footnote omitted.) Burden v. State, 290 Ga. App. 734, 736-737 (3)
(660 SE2d 481) (2008). However,
With a legal affirmative defense, the accused admits the elements of the
crime, but seeks to justify, excuse, or mitigate by showing no criminal
intent; all elements of the parts of the crime are admitted with the
exception of the intent. All defenses which have been held to be
statutory affirmative defenses meet this criteria; i.e., justification,
self-defense or defense of others. Each of these affirmative defenses
requires that the defendant admit the crime before he can raise such
defense.
(Citation and punctuation omitted; emphasis supplied.) Hicks v. State, 287 Ga. 260,
261-262 (2) (695 SE2d 195) (2010).
Boccia has not admitted to any crimes. He denied using any offensive weapon
or facsimile thereof to take Bauer’s wallet. He testified that he did not know a knife
was used in the robbery, and has denied possessing a knife with a blade of two or
more inches. He has never admitted to harming Bauer and repeatedly denied hitting
him. As Boccia denied the elements of the crimes, a charge on self defense was not
warranted and the trial court did not err. LeMon v. State, 290 Ga. App. 527, 530-531
(3) (660 SE2d 11) (2008).
11
(ii) Ineffective assistance of trial counsel. Boccia also argues that his trial
counsel was ineffective in not seeking a jury instruction on self defense. As outlined
in Division (1) (b) (i), self defense is an affirmative defense that requires the
defendant to admit to all elements of the crimes with the exception of criminal intent.
Hicks, supra at 261-262 (2). Boccia made no such admissions. Also, because the
evidence did not support a self defense jury instruction, trial counsel’s failure to make
a futile charge request does not constitute ineffective assistance. Pierre, supra at 786
(2).
2. Boccia argues that the trial court erred in instructing the jury that the offense
of armed robbery could be committed in a manner not alleged in the indictment. As
trial counsel did not object to this instruction, Boccia contends that the trial court
committed plain error. See OCGA § 17-8-58 (b), supra; Kelly, supra; and our plain
error discussion in Division (1), supra. We disagree.
A criminal defendant’s right to due process may be endangered when an
indictment charges the defendant with committing a crime in a specific
manner and the trial court’s jury instruction defines the crime as an act
which may be committed in a manner other than the manner alleged in
the indictment. The giving of a jury instruction which deviates from the
indictment violates due process where there is evidence to support a
conviction on the unalleged manner of committing the crime and the
12
jury is not instructed to limit its consideration to the manner specified in
the indictment.
(Citation omitted; emphasis supplied.) Schneider v. State, 312 Ga. App. 504, 507 (2)
(718 SE2d 833) (2011).
The indictment alleged that Boccia committed the offense of armed robbery
“by use of a knife; an offensive weapon[.]” The trial court charged the jury that a
person commits armed robbery “by use of an offensive weapon[,]” and defined the
term “offensive weapon” as “any object, device or instrument that when used
offensively against a person is likely to or actually does result in death or serious
bodily injury. The character of a weapon may be established by direct or
circumstantial evidence.” Boccia argues, and the State concedes, that the evidence
presented could have allowed the jury to find him guilty of armed robbery committed
by a method not charged in the indictment, including by use of a PVC pipe.5
However, the State’s concession does not end our inquiry.
5
Boccia also argues, and the State agrees, that the charge would have permitted
the jury to convict Boccia of armed robbery by use of his hands. We note that “hands
and feet do not constitute offensive weapons for purposes of the armed robbery
statute.” Wright v. State, 228 Ga. App. 779, 780 (1) (492 SE2d 680) (1997).
13
Where the indictment charges a defendant committed an offense by one
method, it is reversible error for the court to instruct the jury that the
offense could be committed by other statutory methods with no limiting
instruction. The defect is cured, however, . . . where[] the court provides
the jury with the indictment and instructs jurors that the burden of proof
rests upon the State to prove every material allegation of the indictment
and every essential element of the crime charged beyond a reasonable
doubt.
(Citations omitted; emphasis supplied.) Mikell v. State, 286 Ga. 722, 724 (2) (b) (690
SE2d 858) (2010). In the instant case, the trial court read the indictment to the jury
and sent the indictment, a written copy of its charge, and the verdict form out with the
jury when it began deliberations.
In Mikell, supra, the Supreme Court found no error where an indictment
charged the defendant with burglary by entering the victim’s hotel room without
authority, while the jury charge provided that the crime could be committed by a
person who “enters or remains in any building” without authority. (Emphasis
supplied.) Mikell, supra at 724 (2) (b). Mikell does not directly quote the trial court’s
limiting instruction, but finds that, “[c]onsidered in its entirety, the charge in this case
fairly instructed jurors that they could convict appellant of burglary only as charged
in the indictment[.]” Id.
14
The trial court in the instant case instructed jurors not to begin deliberations
until they received the indictment in the jury room, and told jurors to “look at the
indictment to see how these charges are alleged.” While the court told jurors to
consider the testimony and evidence “together with the charge of this court,” it
immediately cured its own instruction by adding that jurors could convict the
defendant only if “ you should find and believe beyond a reasonable doubt that the
defendant[] . . . commit[ed] the offense of armed robbery . . . as alleged in the
indictment[.]” (Emphasis supplied.) The trial court’s curative instruction was
sufficient. Faulks v. State, 296 Ga. 38, 39 (2) (764 SE2d 846) (2014) (trial court
instructed jury that the State must prove every element of the crimes as charged in the
indictment); Schneider, supra at 508 (2) (trial court’s limiting instruction that the
indictment “sets forth in each count specifically what the State contends is the crime
in this case” cured any alleged error).6
6
Milner v. State, 297 Ga. App. 859 (678 SE2d 563) (2009) is distinguishable
and does not require a different result. When the jury in Milner asked for a recharge
on the crime at issue, terroristic threats, the trial court for the second time gave an
improper charge. Milner, supra, at 860 (1). Further, the trial court did not give a
limiting instruction to ensure that the jury would base any finding of guilt on the
manner charged in the indictment. Id.
15
3. Boccia argues that his trial counsel was ineffective in failing to object when
the trial court’s jury instruction on armed robbery expanded the scope of the
indictment. In light of our holding in Division 2, we disagree, as Boccia has failed to
show ineffective assistance of counsel as a result of counsel’s failure to object to the
jury charge which, even if erroneous, was cured by the trial court’s limiting
instruction and, thus, did not affect the outcome of the proceedings. Faulk, supra at
39 (3).
4. Boccia argues that the trial court’s comments “improperly encouraged [him]
to proceed to trial” rather than “entertaining any plea discussions with the
prosecution” because the trial court led him to believe that he would not receive a
sentence of greater than 10 years.7 We disagree.
“A trial court is not authorized to participate in plea negotiations except to the
extent of indicating whether the court is or is not likely to agree with the proposed
disposition.” (Citation omitted.) Bell v. State, 252 Ga. App. 74, 76 (1) (a) (555 SE2d
7
Boccia received a 15-year sentence for armed robbery, with 14 years in
confinement and the remaining year on probation. This sentence runs concurrently
with a 10-year sentence for possession of a weapon in a school safety zone and with
a 1-year sentence for battery.
16
747) (2001). In one set of comments that Boccia complains of, the trial court told the
State that it had a
you’ve-got-to-be-kidding-me feeling about this case right now, that what
I’m seeing right now by virtue of just your opening statements is y’all
are pursuing armed robbery against these two defendants based on a
PVC pipe that somebody picked up in a frat fight and a pocket knife that
maybe has a 2-inch long blade on it. I have seen the State come off
armed robbery charges for a lot more egregious conduct than this. I’m
not prejudging anything . . . I haven’t heard your case. . . . I don’t pick
the charges, but I do sentence. You’re going to have to get an armed
robbery conviction to get a whole lot of time from what I’m seeing right
now.
(Emphasis supplied.)
The trial court, as Boccia acknowledges, “did not explicitly state, ‘I will not
sentence the defendant to more than ten years no matter what.” Still, he argues that
“when the [S]tate offered to allow [him] to plead guilty and receive a sentence of ten
years, there was no reason to accept this offer, because a conviction following trial
would have no worse consequence.”
First, according to the trial court, the State’s “best last offer” was not a 10-year
sentence, but rather a “15 years[‘] sentence to serve 10 years in jail, balance
probated[.]” Second, the record shows that the trial court’s complained-of comments
17
occurred after Boccia had rejected this offer and after he told the court he wanted to
go to trial despite understanding that he could be sentenced to a maximum of life plus
51 years if convicted on all counts. As Boccia points us to no other evidence of
another actual plea offer, we can find no merit in his contention that he rejected an
offer because of the trial court’s after-the-fact comments.
However, Boccia also argues that the trial court interfered in the plea
negotiation process. He complains of a second, later comment, made just before
closing arguments. There, the trial court said, “[Y]ou know my feelings on the case.
It really hasn’t changed. You know, my comments initially were after hearing the
State’s opening that even if you proved everything you’re going to prove I was a bit
surprised at what was going forward.” The trial court continued, however, saying, “I
think what is in evidence under the law as to what elements there are for armed
robbery, there’s enough there for a jury to consider it, so I think as a court that’s
where I am, but as far as a plea, that’s a whole different ballgame.”
In that context, defense counsel told the trial court that there were “some brief
discussions with respect to a potential plea” although he “[did not] see that as a
possibility” and that “if the door is closed, the door remains close[d].” Defense
counsel said he “initiated” the negotiations, while “the State didn’t invite anything.”
18
Counsel for the State merely said he was “waiting to hear” from the defense. The
lawyers then had an off-the-record discussion. The trial court, in the context of the
State’s 15-years-to-serve-10 offer before the trial, had earlier indicated that it was
“inclined to sentence according to that negotiated sentence if you did work that
out[,]” which Boccia had said he understood. There is no record evidence of another
plea offer by the State after the trial but before the closing. The evidence only
indicates that Boccia made some sort of plea proposal on which the parties,
obviously, could not agree.
While it is inappropriate for a trial court to insert itself into the plea negotiation
process, Uniform Superior Court Rule 33.5 (B) expressly allows a trial court to
indicate whether it is likely to agree in a proposed plea. Compare Skomer v. State, 183
Ga. App. 308, 309-310 (358 SE2d 886) (1987) (finding that while a court may
communicate its willingness or lack thereof to accept an independently negotiated
plea, the trial court may not participate by indicating that “rejection of a plea proposal
will result in greater punishment in the event of a conviction by a jury”) (emphasis
omitted). The instant case does not come within Skomer’s purview because the trial
court did not enter into plea negotiations and neither promised nor implied that it
would only give Boccia a 10-year sentence, or that it would give him a higher
19
sentence if he did not plead.8 The trial court also clearly stated that it was not
prejudging the case. See Baptiste v. State, 229 Ga. App. 691, 699 (3) (494 SE2d 530)
(1997). We find Boccia’s contentions unavailing.
5. Boccia contends that the evidence was insufficient to support his conviction
for armed robbery. We disagree.
As an initial matter, the jury was charged on parties to a crime. OCGA § 16-2-
20 provides that
(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. (b) A person is concerned in the commission of a crime only if
he: (1) Directly commits the crime; (2) Intentionally causes some other
person to commit the crime under such circumstances that the other
person is not guilty of any crime either in fact or because of legal
incapacity; (3) Intentionally aids or abets in the commission of the
crime; or (4) Intentionally advises, encourages, hires, counsels, or
procures another to commit the crime.
8
The trial court did not indicate that it would give a harsher sentence if the
Defendant was convicted at trial, only that it would take a conviction for armed
robbery for it to consider giving him “a whole lot of time.” Of course, Boccia was
convicted of armed robbery. Further, it is not lost on us that Boccia was not pressured
or induced into entering a plea, as he demanded and received a trial on all issues.
20
As outlined more fully above, the victim, Bauer, testified that Cesari had a
knife in his hand while Boccia was yelling, “Give me your f—ing wallet[,]” and that
both Cesari and Boccia demanded his wallet. The victim testified that the men
threatened him, then Cesari left briefly to pick up one of the PVC pipes, then returned
and hit him in the back of the head. He fell to the ground, and Boccia “started patting
me down looking for my wallet[.]” Fearing that he “could potentially be cut, stabbed,
potentially murdered right here[,]” the victim gave Boccia his wallet.
Boccia argues that no testimony shows he “possessed” the knife during the
course of the robbery or that he and Cesari planned the event. However, it was not
necessary for the State to prove either of these contentions as the evidence authorized
the jury to conclude that Boccia intentionally aided and abetted the commission of the
crime and was more than merely present. In Tesfaye v. State, 275 Ga. 439, 439-440
(1) (569 SE2d 849) (2002), our Supreme Court recognized that the defendant did not
need to possess the weapon to be convicted as a party to the crime of armed robbery
and possession of a firearm during the commission of a crime, where the defendant’s
accomplice carried a firearm during the robbery. Further, although Boccia argues that
pursuant to Rosemond v. United States, __ U. S. __ (II) (B) (134 SCt 1240, 1248-
1250, 188 LE2d 248) (2014), that a defendant must know in advance that his
21
companion is armed because the defendant must intend to commit each element of the
crime rather than a single component of it, our Supreme Court already has
distinguished and declined to follow Rosemond. The Court noted that Rosemond was
decided pursuant to the federal aiding and abetting statute that involves using or
carrying a firearm in connection with a drug trafficking crime, and found that “federal
law . . . does not control here.” Hicks v. State, 295 Ga. 268, 273 (1), n. 3 (759 SE2d
509) (2014). See also Williams v. State, 276 Ga. 384, 386 (4) (578 SE2d 858) (2003)
(prosecution not required to prove defendant knew that co-defendant intended to use
a gun; the only proof required was that defendant was part of a conspiracy to rob and
co-defendant’s “use of weapon was naturally and necessarily done in furtherance of
that crime”). The evidence was sufficient.
6. Boccia argues that the evidence was insufficient to show that he possessed
a knife with a blade longer than two inches on school property. Pursuant to OCGA
§ 16-11-127.1, the statute that prohibits carrying or possessing weapons in a school
safety zone, a weapon includes “any dirk, bowie knife, switchblade knife, ballistic
knife, [or] any other knife having a blade of two or more inches[.]” OCGA § 16-11-
127.1 (a) (2).
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Boccia testified at trial that he possessed a knife at various times during the
course of the evening, including that he possessed it at the scene of the crime. The
crime occurred on the Georgia Tech campus. See OCGA § 16-11-127.1 (a) (1). At
trial, a police officer displayed the knife to the jury, and Bauer testified that he saw
the knife and that it had “probably a 3-inch blade.” Under the standard of review
mandated by Jackson, supra, the evidence was sufficient.9 This enumeration is
without merit.
Judgment affirmed. Barnes, P. J., concurs. McMillian, J., concurs in judgment
only as to Division 1(a)(i), and concurs fully, otherwise.
9
Again, we note that there was testimony that Cesari possessed the knife
during the crime and that the jury was instructed as to the elements of party to the
crime, O.C.G.A. § 16-2-20.
23