James Parker v. State ( 2020 )

FIRST DIVISION
BARNES, P. J.,
MERCIER and BROWN, 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
January 24, 2020
In the Court of Appeals of Georgia
A19A2312. PARKER v. THE STATE.
MERCIER, Judge.
A jury found James Parker guilty of armed robbery, four counts of aggravated
assault, and two counts of possessing a weapon during the commission of a crime.
The trial court merged three of the aggravated assault charges into other counts and
sentenced him for armed robbery, one count of aggravated assault, and the two
weapons offenses. Parker appeals the denial of his motion for new trial, challenging
the sufficiency of the evidence supporting three of his convictions. He also argues
that the trial court erred in severing his trial from that of his co-defendant, admitting
certain evidence, and instructing the jury. Finally, he claims that he received
ineffective assistance of counsel at trial. We affirm.
1. In reviewing a challenge to the sufficiency of the evidence, we construe the
evidence in the light most favorable to the verdict, and the defendant no longer enjoys
a presumption of innocence. See Bryson v. State, 316 Ga. App. 512 (729 SE2d 631)
(2012). We do not weigh the evidence or resolve issues of witness credibility, but
merely determine whether the jury was authorized to find the defendant guilty of the
charged offenses beyond a reasonable doubt. See id.So viewed, the evidence shows that in June 2014, O. C. saw an advertisement
for the sale of a television on Craigslist. He decided to purchase the television, and
he and his wife, M. M., traveled to a designated location in Clayton County to
complete the transaction. Once there, they met with Parker and a woman. O. C.
verified that the television worked, paid the woman for it, then indicated to Parker
that “it was a good deal and [he] would like to see one or two more” televisions to
purchase. Parker responded that he had a friend who could sell O. C. additional
televisions. O. C. gave Parker his phone number, and Parker promised to contact him
with more information.
Parker subsequently called O. C. about the additional televisions, and they
arranged to meet at a Clayton County apartment complex on June 18, 2014. O. C.
traveled to the meeting location with M. M. and their three children in the family’s
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minivan. Parker greeted them in the complex parking lot, asking O. C. to go with him
to an apartment to look at the merchandise. O. C. parked, left his family in the van,
and walked with Parker. As they approached the apartment, Parker stopped to talk
with another man, who was later identified as Matthew Hood. O. C. heard Hood tell
Parker to bring O. C. “further back.” Suspicious, O. C. stepped away from Parker and
stated that he no longer wanted to purchase the televisions. Both men grabbed O. C.,
pulling him out of view of his car and family. Hood pointed a gun at O. C., and Parker
asked O. C. for money, then put his hands in O. C.’s pockets. Finding nothing, Parker
demanded to know where O. C. had put the money for the televisions. O. C.
responded that it was in his vehicle.
Parker went to the minivan to get the money, leaving O. C. with Hood. Parker
told M. M. to give him the money, but she refused to unlock the vehicle’s doors.
When Parker returned to the apartment building without the money, he and Hood
began to argue, and Hood threatened O. C. with the gun. Imploring them not to hurt
him or his family, O. C. told the men that he had $1,500 in the minivan that he would
give them if they let him go. The men pulled and pushed O. C. to the minivan, each
grasping one of O. C.’s arms. O. C. asked his wife to roll down the window, then told
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her to give them the money. M. M. was crying, and Hood still had a gun in his hand,
though it was “kind of hidden.” As M. M. described:
My husband told me to roll down the window and give them the money.
He told me, give me the money. When I was looking at him his face was
pale and his eyes were kind of lost in space. It was really strange. It was
like he [was] telling me it was pretty much the end, so I reached for the
money, I took it out of the purse and then [Hood] took it from me.
The two men left with the money, and O. C. and his family fled in the minivan,
stopping at the first gas station they found to call the police.
Detectives interviewed Parker, who denied taking part in the crimes, but
admitted that he was present during the first sales transaction, later spoke with O. C.
about additional televisions, and gave O. C.’s phone number to Hood. According to
Parker, Hood and another man he identified only as “DC” set up the second meeting
and carried out the crimes. Both O. C. and M. M., however, positively identified
Parker as one of the robbers.
Parker and Hood were indicted jointly for numerous offenses relating to the
incident. The trial court ultimately determined that they should be tried separately,
and the jury found Parker guilty of the armed robbery of M. M. (Count 1), two counts
of aggravated assault of M. M. (Count 2 (assault with intent to rob) and Count 3
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(assault with a deadly weapon)), two counts of aggravated assault of O. C. (Count 4
(assault with intent to rob) and Count 5 (assault with a deadly weapon)), and two
counts of possessing a weapon during the commission of a crime (Count 6
(possession during the aggravated assault of M. M.) and Count 7 (possession during
the aggravated assault of O. C.)).1 Parker challenges the sufficiency of the evidence
supporting his convictions on Counts 1, 3, and 6, all of which involved M. M.
(a) Armed Robbery. An armed robbery occurs “when, with intent to commit
theft, [an individual] 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.” OCGA § 16-8-41 (a). With respect to this
offense, Count 1 of the indictment alleged that Parker and Hood took money from the
immediate presence of M. M. “by use of an article having the appearance of a gun[.]
On appeal, Parker argues that the evidence was insufficient to support his
conviction on this count because the State failed to prove that M. M. saw a gun.
Circumstantial evidence, however, “is sufficient to establish the use of a weapon or
device appearing to be a weapon, and a conviction for armed robbery may be
1
At sentencing, the trial court merged Counts 2 and 3 into Count 1 and Count
5 into Count 4.
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sustained even though the weapon or article used was neither seen nor accurately
described by the victim” Bryson, supra at 515 (1). The State need not prove that the
victim saw the weapon; it must only demonstrate that the victim “had a reasonable
apprehension that an offensive weapon was used.” Id,; see also Rice v. State, 351 Ga.
App. 96, 98 (1) (830 SE2d 429) (2019) (“Some physical manifestation is required or
some evidence from which the presence of a weapon may be inferred, but OCGA §
16-8-41 (a) does not require proof of an actual offensive weapon.”) (citation and
punctuation omitted).
O. C. testified that Hood was holding a gun when Hood and Parker walked him
to the minivan to retrieve the money, and Hood had the gun out as he stood with O.
C. next to the van, approximately four feet from M. M. Although M. M. did not
definitively see the gun, she noticed “something shiny” that appeared to possibly be
a pistol or knife in Hood’s hand. M. M. also testified that she thought Parker and
Hood “were going to do something to us” when they pushed her husband toward the
van, and seeing the object in Hood’s hand made her fearful. Given these
circumstances, particularly Hood’s use of the gun to control O.C., M. M.’s
observation of an object in Hood’s hand that she thought might be a pistol, and her
fear that the men were going to hurt her family, the jury was authorized to find Parker
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guilty beyond a reasonable doubt of armed robbery as alleged in Count 1 of the
indictment. See Rice, supra (conviction for armed robbery of taxi driver upheld;
“[a]lthough [driver’s] testimony at trial was that he believed that [the defendant] may
have threatened him with [a pointed finger hidden under a shirt], he also testified that
he complied with [the defendant’s] orders to hand over his money because he was not
positive that [the defendant] did not have a gun”); see also 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.”).
(b) Aggravated Assault. Parker also challenge his conviction under Count 3 of
the indictment, which alleged that he assaulted M. M. with a gun. The trial court,
however, merged this charge into Count 1 (armed robbery). Parker’s claim that the
evidence was insufficient as to Count 3, therefore, is moot. See Long v. State, 287 Ga.
886, 888 (1) (700 SE2d 399) (2010).
(c) Possession of a Weapon During the Commission of a Crime. Pursuant to
OCGA § 16-11-106 (b) (1), a person commits a felony when he or she has “on or
within arm’s reach of his or her person a firearm . . . during the commission of, or the
attempt to commit . . . [a]ny [felony] against or involving the person of another.”
Count 6 of the indictment charged that Parker and Hood had a firearm within arm’s
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reach “during the commission of the crime of aggravated assault against the person
of [M. M.].”
Once again, Parker argues that this conviction cannot stand because M. M.
“never observed a weapon” and did not clearly identify the object in Hood’s hand.
Among other things, however, Parker was charged with and convicted of committing
aggravated assault by assaulting M. M. with the intent to rob. See OCGA § 16-5-21
(a) (1). And the evidence shows that Parker and Hood brought O. C. to the minivan
under duress with the purpose of taking money from M. M. During the encounter, M.
M. saw a shiny object in Hood’s hand that she thought was possibly a gun, making
her fearful that the two men intended to injure her and her family. These
circumstances supported the jury’s conclusion that Parker committed aggravated
assault by assaulting M. M. with the intent to rob. See id.; OCGA § 16-5-20 (a) (2)
(“A person commits the offense of simple assault when he or she . . . [c]ommits an act
which places another in reasonable apprehension of immediately receiving a violent
injury.”); Gunter v. State, 316 Ga. App. 485, 486 (1) (729 SE2d 597) (2012) (assault
occurred when defendant threatened victim “in a way that put her in reasonable
apprehension of immediately receiving a violent injury.”).
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Moreover, O. C. testified that Hood was holding a gun when he and Parker
approached the minivan and stole money from M. M. Accordingly, the jury was
authorized to find Parker guilty of possessing a weapon during the commission of the
aggravated assault on M. M., as charged. See Bryson, supra 514 (1) (“Where a party
has committed armed robbery and possession of a firearm during commission of a
felony, an accomplice who is concerned in the commission of those crimes under
OCGA § 16-2-20 is likewise guilty of both offenses, notwithstanding the fact that the
accomplice did not have actual possession of the firearm.”) (citations and punctuation
omitted).
2. Prior to trial, the State moved to sever Parker’s case from that of Hood, who
was his co-indictee. The State argued that because Parker’s custodial statement to
police implicated Hood in the crimes, admission of this statement at a joint trial might
violate Hood’s constitutional rights under Bruton v. United States, 391 U. S. 123 (88
SCt 1620, 20 LE2d 476) (1968).2 The trial court granted the motion, and Parker
challenges that ruling.
2
“A defendant’s Sixth Amendment right to be confronted by the witnesses
against him is violated under Bruton, when co-defendants are tried jointly and the
testimonial statement of a co-defendant who does not testify at trial is used to
implicate the other co-defendant in the crime.” Ardis v. State, 290 Ga. 58, 60 (2) (a)
(718 SE2d 526) (2011) (citation and punctuation omitted).
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We find no error. As an initial matter, a defendant “lacks standing to complain
of the trial court’s decision to sever his trial from that of the co-indictee[] at the
request of the state.” Rhodes v. State, 267 Ga. App. 673, 675 (601 SE2d 139) (2004).
Furthermore, a trial court exercises its sound discretion in resolving a motion to sever,
and its ruling will not be reversed absent an abuse of discretion. See id. A trial court
does not abuse its discretion by granting a severance “to avoid violation of a co-
indictee’s constitutional rights under Bruton[.]” Id. (citations omitted).
The State planned to present evidence of Parker’s custodial statement to police,
which directly implicated Hood in the crimes. Absent a severance, a Bruton violation
would have occurred if the trial court had admitted the statement and Parker had
elected not to testify. See Rhodes, supra at 674. The trial court, therefore, did not
abuse its discretion in severing the trials to avoid a Bruton violation. See id. at 675.
3. Parker argues that the trial court erred in admitting into evidence a printout
of the Craigslist advertisement that led to the first sales transaction. According to
Parker, the advertisement was inadmissible hearsay that should have been excluded.
Regardless of whether the trial court erred in admitting the printed
advertisement, however, Parker has not shown that any such error harmed him. On
appeal, Parker contends that evidence of the Craigslist advertisement allowed the jury
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to conclude that he met with O. C. before the robbery. But Parker admitted to police
that he engaged with O. C. during the first sales transaction. And O. C. testified at
length about his interactions with Parker prior to the robbery, including meeting with
Parker to purchase the first television and speaking with Parker on the telephone to
arrange a second meeting. O. C. further explained that he learned about the first
television through a Craigslist advertisement, and his testimony provided details
about the advertisement, such as the price sought for the television and its stated retail
value. Accordingly, because the advertisement and any link it established between
Parker and O. C. was cumulative of other testimony, admission of this evidence was
harmless. See Heard v. State, 274 Ga. 196, 199 (6) (552 SE2d 818) (2001) (admission
of hearsay “does not constitute reversible error unless appellant suffered harm”);
Sanchious v. State, 351 Ga. App. 611, 616 (1) (b) (831 SE2d 843) (2019)
(“[A]dmission of hearsay is harmless where it is cumulative of other properly-
admitted evidence[.]”).
4. Before the State played his recorded statement to police for the jury, Parker
moved to exclude a portion of the statement in which he discussed other, unrelated
crimes allegedly committed by Hood and DC. According to Parker, these comments
improperly placed his character into evidence by suggesting that he was “hanging out
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with” criminals. The trial court denied the motion, and Parker enumerates that ruling
as error.
Pursuant to OCGA § 24-4-404 (b), “[e]vidence of other crimes, wrongs, or acts
shall not be admissible to prove the character of a person in order to show action in
conformity therewith.” Even if OCGA § 24-4-404 (b) applied to Parker’s comments
about Hood and DC, however, he cannot show harm from their admission. Parker did
not connect himself to any prior misdeeds by Hood or DC. And he does not challenge
the admissibility of his statements implicating Hood and DC in the crimes at issue
here. By virtue of those incriminating statements, jurors knew that Parker was
associating with criminals. We fail to see how statements regarding other past
misdeeds by Hood and DC impacted the verdict. See Virger v. State, 305 Ga. 281,
294 (7) (a) (824 SE2d 346) (2019) (admission of other acts evidence harmless where
“it is highly likely that the admission of the [evidence] did not affect the jury’s
verdicts”).
5. Parker claims that the trial court erred in refusing to give his requested jury
instructions on robbery, assault, and theft by taking as lesser-included offenses of
armed robbery and aggravated assault. He contends that the jury should have been
charged on the lesser-included offenses because conflicting evidence raised a dispute
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as to whether a weapon had been used in the crimes. The evidence regarding use of
a gun, however, was not in conflict. O. C. testified that Hood was holding a gun
throughout the crimes. Although M. M. did not clearly see a gun, she observed
something shiny in Hood’s hand that appeared to be a weapon and frightened her.
The only evidence before the court, therefore, was that the crimes were
committed with a weapon or were not committed at all. Accordingly, the trial court
did not err in refusing to charge the jury on the lesser-included offenses of robbery,
assault, and theft by taking. See Johnson v. State, 320 Ga. App. 161, 163 (3) (a) (739
SE2d 469) (2013) (“[W]here the undisputed evidence shows that an assault was
committed with a deadly weapon, it is not error to refuse to give a charge on simple
assault as a lesser included offense.”) (citations and punctuation omitted); Cook v.
State, 252 Ga. App. 86, 88 (3) (555 SE2d 759) (2001) (“Because the evidence shows
without dispute the completion of the armed robbery as charged, and there is no
evidence that a weapon was not used in the robbery, [the defendant] was not entitled
to a jury charge on theft by taking as a lesser included offense”); Arnold v. State, 238
Ga. App. 314, 315 (2) (518 SE2d 716) (1999) (trial court did not err in refusing to
charge on lesser included offense of robbery where evidence showed that defendant
committed robbery with a weapon or not all).
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6. Finally, Parker argues that he received ineffective assistance of counsel at
trial. To prevail on this claim, Parker
must prove 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. If an appellant fails to
meet his burden of proving either prong of [this] test, the reviewing
court does not have to examine the other prong. In reviewing the trial
court’s decision, we accept the trial court’s factual findings and
credibility determinations unless clearly erroneous, but we
independently apply the legal principles to the facts.
Lupoe v. State, 284 Ga. 576, 578 (3) (669 SE2d 133) (2008) (citations and
punctuation omitted).
(a) Parker contends that trial counsel provided ineffective assistance by failing
to present an alibi defense. At the hearing on his motion for new trial, Parker testified
that he told his attorney he was at a restaurant with his girlfriend at the time of the
crimes and that his girlfriend would have testified on his behalf. Trial counsel,
however, did not recall Parker ever mentioning an alibi, and he noted at the new trial
hearing that his general practice was to pursue an alibi defense if a client claimed to
have an alibi. Moreover, Parker failed to call his girlfriend as a witness at the hearing,
so we do not know what alibi testimony she might have provided at trial.
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The trial court was authorized to resolve any conflicts in the testimony at the
new trial hearing against Parker. See Perez v. State, 331 Ga. App. 164, 169 (3) (b)
(770 SE2d 260) (2015). And without a proffer of testimony from Parker’s girlfriend,
he cannot show that she would have provided favorable alibi testimony. See Lupoe,
supra at 578-579 (3) (b); Jones v. State, 315 Ga. App. 427, 433-434 (3) (727 SE2d
216) (2012). Finally, although Parker criticizes trial counsel for not challenging the
State’s evidence regarding his presence at the scene of the crimes, “matters of
reasonable trial strategy and tactics do not amount to ineffective assistance of
counsel.” Fuller v. State, 278 Ga. 812, 814-815 (2) (c) (607 SE2d 581) (2005)
(citation and punctuation omitted). At the new trial hearing, trial counsel testified that
he elected to challenge Parker’s involvement in the crimes, rather than his presence
at the scene, because the evidence showed that Parker was there. Given the testimony
from both victims placing Parker at the crime scene, counsel’s strategy was
reasonable. See generally id. The trial court, therefore, did not err in denying this
ineffective assistance claim. See Lupoe; Fuller; Perez.
(b) Parker argues that trial counsel was ineffective in failing to inform him
about the State’s plea offer. Parker, however, did not raise this particular claim in his
written motion for new trial or during argument at the new trial hearing, and the trial
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court did not rule on it. Accordingly, the claim has been waived. See Norton v. State,
320 Ga. App. 327, 333 (3) (739 SE2d 782) (2013) (“Where specific grounds for an
ineffective assistance claim are not raised and ruled on in the trial court, they are
waived and cannot be considered on appeal.”).
Judgment affirmed. Barnes, P. J. and Brown, J., concur.
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