Newby v. the State , 338 Ga. App. 588 ( 2016 )

FIRST DIVISION
DOYLE, C. J.,
ANDREWS, P. J., and RAY, J.
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
September 12, 2016
In the Court of Appeals of Georgia
A16A1000. NEWBY v. THE STATE.
RAY, Judge.
A jury convicted Matt Jonathan Newby of aggravated assault (OCGA § 16-5-
21 (b) (2)) and theft by taking (OCGA § 16-8-2). He appeals from the denial of his
motion for new trial, contending that the evidence was insufficient to sustain his
convictions, that the trial court erred in failing to exercise its discretion to overturn
the verdict on the general grounds, and that he received ineffective assistance of
counsel. For the reasons that follow, we affirm.
The evidence adduced at trial shows that on the morning of October 27, 2014,
the victim, Marcus Moss, moved his motorcycle from storage in his girlfriend’s barn
and parked it in the carport in front of her house. Moss then went back inside the
house. When Moss later exited the house, he found that his motorcycle was missing.
Seeing Moss searching around, a neighbor, Erwin Stephens, called out to him
and relayed that he had seen a white male push the motorcycle down the street just
minutes earlier. Moss got into Stephens’s car, and Stephens drove down the street in
the direction that he had seen the unidentified male push the motorcycle. Moss
spotted his motorcycle with Newby sitting atop it outside of a house owned by
Newby’s mother. When Moss confronted him, Newby started the motorcycle and
sped toward Moss, forcing him to move out of the way to avoid being hit as Newby
took off and disappeared. Stephens then drove Moss back to his house, and Moss
called the police.
Later that day, after the police made a report and left to investigate, Newby’s
brother, Justin Newby, knocked on Moss’s door and took Moss to a vacant house
where Justin returned Moss’s motorcycle to him. The motorcycle had been “hot-
wired,” causing about $1,200 worth of damage. A jury later convicted Matt Newby
of aggravated assault and theft by taking.
Newby challenges his conviction under both sufficiency of the evidence and
the general grounds pursuant to OCGA §§ 5-5-20, 5-5-21. These are separate issues
requiring separate analyses.
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1. We turn first to an analysis of the sufficiency of the evidence. On appeal, we
view the evidence in the light most favorable to the prosecution to determine if 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 S.Ct. 2781, 61
L.Ed.2d 560) (1979). Furthermore, “[t]o warrant a conviction on circumstantial
evidence, the proved facts shall not only be consistent with the hypothesis of guilt,
but shall exclude every other reasonable hypothesis save that of the guilt of the
accused.” OCGA § 24-14-6.
[W]here the defendant offers an explanation of circumstantial facts or
an alternative hypothesis of events, the reasonableness of that
explanation is for the factfinder. Because the factfinder has heard the
witnesses and observed them testify, it is considered more capable of
determining the reasonableness of the hypothesis produced by the
evidence or lack thereof than is an appellate court.
(Footnote omitted.) McClain v. State, 301 Ga. App. 844, 847 (1) (689 SE2d 126)
(2010).
(a) To establish theft by taking, the prosecution was required to show that the
defendant “unlawfully [took], or being in lawful possession thereof, unlawfully
appropriate[d] any property of another with the intention of depriving him of the
property, regardless of the manner in which the property [was] taken or appropriated.”
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OCGA § 16-8-2. In Jefferson v. State, 273 Ga. App. 61, 63 (1) (614 SE2d 182)
(2005), this Court stated that “[e]vidence of recent unexplained possession of stolen
property will authorize but not require the trier of fact to infer guilt and an appellate
court may find it sufficient in itself to support a conviction for the crime of theft by
taking.” (Citations and footnotes omitted; emphasis in original). The nearer the time
of the theft to the possession of the item stolen, the stronger the presumption of guilt.
Williamson v. State, 248 Ga. 47, 48 (1) (a) (281 SE2d 512) (1981). See also Jefferson,
supra, at 63-64 (1) (denying insufficient evidence claim where defendant possessed
and pawned stolen property within hours of the theft).
Here, the prosecution showed that Moss and Stephens saw Newby sitting on
the motorcycle minutes after the theft and witnessed Newby’s flight on the
motorcycle when Moss confronted him. Moss and Stephens also identified Newby
in court as the person on the motorcycle when they approached. The reliability of
Moss and Stephens’s identification of Newby can hardly be doubted, as testimony
shows that Newby was not wearing a helmet during the confrontation. The fact that
Newby was found in possession of the motorcycle by the victim within minutes of the
theft makes his guilt even more convincing than that of the defendant in Jefferson,
supra. The prosecution’s case is further strengthened by Newby’s flight atop the
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motorcycle after the confrontation with Moss. See generally Bryson v. State, 316 Ga.
App. 512, 513-515 (1) (729 SE2d 631) (2012) (finding circumstantial evidence of
guilt where defendants fled from, inter alia, crime scene and victims in rest area after
committing armed robbery); Durham v. State, 309 Ga. App. 444, 445-446 (1) (710
SE2d 644) (2011) (a defendant’s efforts to avoid capture may offer circumstantial
evidence of guilt).
These facts are sufficient to sustain Newby’s conviction for theft by taking. The
jury rejected the defense’s proffered explanation that Justin Newby stole the
motorcycle and, having heard the testimony of all the witnesses, was in a better
position than this Court to evaluate the facts. See McClain, supra, at 847 (1); London
v. State, 235 Ga. App. 30, 32 (1) (c) (508 SE2d 247) (1998) (“Whether or not a
defendant’s explanation is satisfactory or reasonable is a question for the jury”).
(b) The relevant portion of Georgia’s aggravated assault statute requires the
prosecution to show that a defendant committed assault “[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[.]” OCGA § 16-5-21 (b) (2).
The crime of assault in Georgia requires that the defendant “[a]ttempt[ed] to commit
a violent injury to the person of another; or [c]ommit[ted] an act which place[d]
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another in reasonable apprehension of immediately receiving a violent injury.”
OCGA § 16-5-20 (a). The prosecution need only show “that a defendant intended to
commit the act which in fact places another in reasonable apprehension of injury or
actually results in injury, not a specific intent to cause such apprehension or injury.”
(Citation and punctuation omitted.) Attaway v. State, 332 Ga. App. 375, 378 (1) (b)
(772 SE2d 821) (2015). The element of reasonable apprehension does not require that
the victim testify to having felt fear. See Lunsford v. State, 260 Ga. App. 818, 821 (2)
(581 SE2d 638) (2003).
Here, the evidence presented by the State established the elements of assault
beyond a reasonable doubt. The prosecution need not show that Newby intended to
scare Moss, only that he intentionally committed the act which put Moss in
reasonable apprehension of receiving a violent injury. See Attaway, supra. Stephens
testified that Moss demanded the return of his motorcycle, and while Moss’s hands
were on the motorcycle, Newby jumped up and down on the motorcycle in an attempt
to make it start during the confrontation. When the motorcycle started, Moss moved
to avoid being hit when Newby “spinned off into his yard and left . . . burning
rubber.” Therefore, the prosecution showed that Newby acted intentionally. The State
also showed that Moss was in reasonable apprehension of receiving a violent injury.
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See Lunsford, supra. Moss testified that he jumped aside and put out his hands to
avoid being hit by the motorcycle when Newby took off on it. Both he and Stephens
testified that Moss would have been run over had he not moved out of its path. Moss
also testified as to the weight of the motorcycle, 200 or 300 pounds, and the high
speed at which Newby was traveling when he took off on it. Therefore, the
prosecution proved that Moss was “in reasonable apprehension of immediately
receiving a violent injury.” OCGA § 16-5-20 (a) (2). The prosecution’s charge, which
referred to the motorcycle as “an object which when used offensively against another
is likely to cause serious bodily injury,” was also correct. See generally Turner v.
State, 281 Ga. 487, 489 (1) (b) (640 SE2d 25) (2007) (finding that although an
automobile is not necessarily a deadly or offensive weapon, it may become one
depending on how it is used). Therefore, the prosecution proved the material elements
of aggravated assault beyond a reasonable doubt.
Newby countered that he was not at his mother’s house on the day of the crimes
and, therefore, could not have been the person riding the motorcycle that nearly struck
the victim. Justin testified that Newby was not around the house that day. However,
Moss and Stephens gave the opposite testimony, identifying Newby as the person on
the motorcycle during the confrontation. Moss testified that Newby was not wearing
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a helmet during the confrontation, which lends further credence to his testimony, and
Moss identified Newby prior to trial when a police officer showed him Newby’s
driver’s license. As stated above, a jury is better equipped than this Court to evaluate
the credibility of witnesses. See McClain, supra, at 847 (1). As in Woodall v. State,
159 Ga. App. 832, 832 (285 SE2d 582) (1981), where this Court affirmed a
conviction for aggravated assault which was based on contradictory witness
testimony, the jury here heard the testimony of the State’s witnesses and found
Newby guilty despite testimony in his favor.
This Court is bound to uphold the jury’s determination by the standard
provided in Jackson, supra. The evidence was sufficient to prove aggravated assault
and theft by taking beyond a reasonable doubt.
2. Newby also raised the general grounds in his motion for new trial. OCGA
§§ 5-5-20, 5-5-21 empower the trial court to “sit as a thirteenth juror” when
considering a motion for new trial on these grounds. ( Citation omitted.) Conley v.
State, 329 Ga. App. 96, 100 (2) (763 SE2d 881) (2014). In so doing, the trial court
shall exercise its discretion in weighing the evidence to decide whether to grant a new
trial. Id. Even when, as above, evidence is sufficient to sustain a jury conviction, the
trial court may grant a new trial “[i]n any case when the verdict of a jury is found
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contrary to evidence and the principles of justice and equity. . . .,” OCGA § 5-5-20,
or “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.” OCGA § 5-5-21.
Here, the testimony of Moss and Stephens was more than adequate to support
the verdict. Accordingly, the trial court did not abuse its discretion in denying
Newby’s motion for new trial based on the general grounds. See Rowland v. State,
228 Ga. App. 66, 68 (2) (491 SE2d 119) (1997). Therefore, we affirm the trial court’s
ruling denying Newby’s motion for new trial as to the general grounds.
3. Newby also argues that he received ineffective assistance of counsel. He
bases this claim on trial counsel’s failure to present certain alibi witnesses, failure to
conduct a pretrial investigation, and failure to present an expert witness in cross-
racial identification. We find no error.
An ineffective assistance of counsel argument requires satisfaction of a two-
pronged test: “First, the defendant must show that counsel’s performance was
deficient. . . . Second, the defendant must show that the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (III) (104 S.Ct.
2052, 80 L.Ed.2d 674) (1984). For counsel’s performance to reach the required level
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of deficiency, the defendant must prove that “counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. In analyzing defendant’s showing, “a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance[.]” Id. at 689 (III) (A). Tactical decisions receive even greater
deference, only forming the basis of an ineffective assistance claim if a decision is “so
patently unreasonable that no competent attorney would have chosen it.” (Citations
omitted.) Romer v. State, 293 Ga. 339, 344 (3) (745 SE2d 637) (2013). However,
counsel does not automatically receive protection from complaints pertaining to
strategy or tactics if the decision was “an unreasonable one no competent attorney
would have made under the same circumstances.” (Citation and punctuation omitted.)
Benham v. State, 277 Ga. 516, 518 (591 SE2d 824) (2004).
The prejudice prong of the Strickland test requires the defendant to show “that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, supra, at
694 (III) (B). Finally, in reviewing claims of ineffective assistance, “we accept the
trial court’s factual findings and credibility determinations unless clearly erroneous,
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but we independently apply the legal principles to the facts.” Hill v. State, 291 Ga.
160, 164 (4) (728 SE2d 225) (2012).
(a) The tactical decision of whether to present an alibi defense “after thorough
investigation and client consultation[] is virtually unchallengeable[.]” (Citation
omitted.) Walker v. State, 280 Ga. App. 457, 462 (6) (a) (634 SE2d 93) (2006).
Newby claims that trial counsel’s failure to call Diana Daniels to testify as an alibi
witness prejudiced the defense. The trial court considered Daniels’s testimony at its
hearing on Newby’s motion for new trial. During the hearing on Newby’s motion,
Daniels first stated that she was at her home with Newby starting the night before the
events leading up to these crimes until late afternoon on the day of the crimes.
However, when questioned specifically about the date, she responded, “Oh, no. I
think it was – what was that day? I don’t know. I don’t know what day it was.” Trial
counsel also testified at the hearing that she did interview Daniels and that Daniels
told her that she dropped Newby off in the morning before the crime took place and
could not verify his location after that point. Trial counsel testified that she decided
not to call Daniels as a witness because she did not believe her testimony would be
helpful.
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Clearly, trial counsel made a reasonable strategic decision not to call Daniels
as an alibi witness. The trial court did not err. See Jones v. State, 315 Ga. App. 427,
433 (3) (727 SE2d 216) (2012) (denying claim of ineffective counsel where counsel
did not present alibi witnesses after none of the witnesses he interviewed could give
him information on defendant’s whereabouts at the time of the crime).
(b) Newby also contends that trial counsel’s failure to call someone named
Tracy Poore as an alibi witness prejudiced the defense. However, Newby made no
proffer as to Poore’s testimony at the motion for new trial hearing.
“To prove the prejudice prong of Strickland on a claim that trial counsel
failed to call a witness, a defendant must show the witness’s expected
testimony by presenting either live testimony of the witness, an affidavit
from the witness, or a legally recognized substitute for the uncalled
witness’s testimony . . . [Newby] failed to produce an affidavit or any
other legally recognized substitute for [their] testimony. Accordingly,
[Newby] failed to establish his claim of ineffective assistance of counsel
on this ground.”
(Citations omitted.) Janasik v. State, 323 Ga. App. 545, 554 (4) (b) (746 SE2d 208)
(2013).
(c) Newby also argues that he was denied effective assistance of counsel
because of trial counsel’s failure to conduct a pretrial investigation, which led to her
subsequent failure to adequately cross-examine witnesses. This part of the
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enumeration appears to reference both potential alibi witnesses as well as other
unnamed witnesses. However, Newby presents no proffer as to how these witnesses
would have testified; he does not even identify them. Nor does he proffer any
specifics as to what a more thorough investigation would have revealed. Newby has
failed to meet his burden of showing either prejudice or deficient performance. Shank
v. State, 290 Ga. 844, 848 (5) (a) (725 SE2d 246) (2012) (finding no ineffective
assistance where defendant failed to show what a more thorough investigation would
have shown); Janasik, supra.
(d) Newby also claims that he was denied effective assistance of counsel
because trial counsel failed to call an expert witness in cross-racial eyewitness
identification. Newby did not raise this issue in his motions for new trial, nor did the
trial court address it. Thus, we do not consider it on appeal. See Garrett v. State, 285
Ga. App. 282, 287 (5) (e) (645 SE2d 718) (2007).
For the foregoing reasons, we affirm the trial court’s denial of Newby’s motion
for new trial on the basis of ineffective counsel.
Judgment affirmed. Doyle, C. J., and Andrews, P. J., concur.
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