Silas R. Westbrook, Jr. v. State ( 2020 )

THIRD DIVISION
MCFADDEN, C. J.,
DOYLE, P. J., and HODGES, 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.
Please refer to the Supreme Court of Georgia Judicial
Emergency Order of March 14, 2020 for further
information at (https://www.gaappeals.us/rules).
June 3, 2020
In the Court of Appeals of Georgia
A20A0579. WESTBROOK v. THE STATE. DO-022 C
DOYLE, Presiding Judge.
Following a jury trial, Silas Redgize Westbrook, Jr., was convicted of armed
robbery, violation of the Georgia Street Gang Terrorism and Prevention Act
(“GSGTPA”),1 and possession of a firearm during the commission of a felony. He
appeals from the denial of his motion for new trial, contending that the trial court
erred by admitting evidence of his prior guilty plea to armed robbery in 2000 under
OCGA § 24-4-404 (b). For the reasons that follow, we affirm.
Construed in favor of the verdict,2 the evidence shows that on November 14,
2014, Tometrius King robbed a Brothers convenience store at approximately 8:00
1
OCGA § 16-15-1 et seq.
2
See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).
a.m.3 As described by store employees, King entered the store, pointed a gun at one
of the employees, and demanded money, saying, “give it up, bitch.” The employee
gave him the money from the cash drawer, and King fled. As King ran out of the
store, another store worker grabbed a machete and chased King as he fled the scene.
King turned and shot at the worker, who immediately laid on the ground to avoid
being hit. A video surveillance system recorded the robbery and shooting, and it
captured a white sedan driving by at the time of the robbery.
The same day, November 14, 2014, shortly after 8:30 a.m., the same man
robbed a nearby Mini Mart convenience store at gunpoint. Video cameras captured
the same white car, which had the make and model badges removed, tinted windows,
and distinctive tail lights and chrome rims. In both robberies, the car appeared to park
strategically in nearby locations to avoid detection and aid in quick departure.
In the ensuing investigation, police were able to determine that the white car
used in both robberies was registered to Westbrook’s wife. Police set up a
surveillance operation at the location where the car was parked, and shortly thereafter,
Westbrook approached the vehicle. At this point, five days after the robberies,
3
King pleaded guilty to the crimes arising from the robbery.
2
Westbrook was interviewed by police and agreed to talk after waiving his Miranda4
rights.
In the interview, Westbrook first denied that he knew King, but then admitted
that he knew King as his nephew. On the morning of the robberies, he agreed to give
King a ride to a store, and after giving conflicting accounts, he admitted that he
agreed to give King a ride to a second location soon after hearing gunshots. Police
also interviewed King, who implicated Westbrook in the robberies, explaining that
Westbrook was recruiting him into the Gangster Disciples street gang. King said that
the robberies were a way of gaining membership and status in the organization.
Based on these events, King and Westbrook were charged in a multi-count
indictment alleging, in relevant part, that Westbrook committed two counts of armed
robbery, one count of violating the GSGTPA, and two counts of possessing a firearm
during the commission of a felony. King ultimately pleaded guilty to the robberies,
and in exchange for a favorable sentencing request from the State, he testified against
Westbrook in a jury trial. The jury found Westbrook guilty of four of the counts,
acquitting him of one armed robbery (the Brothers store) and the corresponding
firearm count. After his motion for new trial was denied, Westbrook filed this appeal.
4
Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
3
Westbrook contends that the trial court abused its discretion by admitting
evidence under OCGA § 24-4-404 (b) that he pleaded guilty in 2000 to an armed
robbery that he committed in 1999 when he was 16.5 We disagree.
Under 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. It may, however, be admissible for other purposes, including,
but not limited to, proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
The party offering evidence under OCGA § 24-4-404 (b) must show
three things: (1) the evidence is relevant to an issue in the case other
than the defendant’s character; (2) the probative value of the evidence
is not substantially outweighed by its undue prejudice; and (3) there is
sufficient proof for a jury to find by a preponderance of the evidence
that the defendant committed the other act.6
5
The State provided the appropriate pre-trial notice of its intention to introduce
the evidence. See OCGA § 24-4-404 (b) (“The prosecution in a criminal proceeding
shall provide reasonable notice to the defense in advance of trial. . . .”).
6
Kirby v. State, 304 Ga. 472, 479 (4) (819 SE2d 468) (2018).
4
“A trial court’s decision to admit other acts evidence under OCGA § 24-4-404 (b)
will be overturned [on direct appeal] only where this is a clear abuse of discretion.”7
Here, the State offered the 404 (b) evidence at issue via testimony from an
officer who investigated and arrested Westbrook for the 1999 robbery and through
a certified copy of his conviction pursuant to a guilty plea. This evidence showed that
in the 1999 offense, Westbrook stole money at gunpoint from a convenience store.
He also stole the store security video tape, but he was observed by witnesses who
were able to identify him, leading to his arrest. He acted alone.
1. Relevance to an issue other than character. For evidentiary purposes, OCGA
§ 24-4-401 defines relevance as “having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Notably, the relevance definition
only requires “any tendency” to make a fact more probable or less probable, so the
standard is a liberal one.8
7
Green v. State, 352 Ga. App. 284, 291 (2) (e) (834 SE2d 378) (2019).
8
See State v. Jones, 297 Ga. 156, 159 n. 2 (773 SE2d 170) (2015) (“Regardless
of how one views the language of Rule 401 [defining relevance], . . . it is clear that
the relevance standard codified therein is a liberal one.”).
5
The State offered the evidence initially to prove “[a]bsence of mistake or
accident, intent, knowledge, motive, preparation[,] and plan, as well as opportunity,”
later focusing its argument on intent and absence of mistake. The evidence showed
that Westbrook’s involvement was limited to recruiting King to do the robberies,
supplying him with a firearm, and acting as a driver — he did not personally enter the
stores and steal the money. Based on this, Westbrook argued that King acted of his
own accord and that Westbrook was both ignorant of King’s plan and intent to rob
the stores when he gave King a ride in his vehicle, and Westbrook testified that he
was intimidated by the fact that King had a gun: “you can fight a man, but you can’t
beat a bullet.” Therefore, Westbrook’s motive and intent in giving King a ride were
squarely at issue in the trial, and the earlier armed robbery required a comparable
intent to rob that Westbrook was accused of having in this case.9 Therefore, the State
met its burden to show a permissible purpose for admitting the 2000 conviction other
than Westbrook’s character.10
9
See United States v. Lockhart, 731 Fed. Appx. 842, 845 (I) (B) (Case No. 17-
11800,11th Cir. 2018) (unpublished) (“a ‘mere presence’ defense puts knowledge and
intent at issue”).
10
See Sloan v. State, 351 Ga. App. 199, 209 (2) (e) (i) (830 SE2d 571) (2019).
6
2. Probative value is not substantially outweighed by undue prejudice.
Weighing the relative probative value and undue prejudice
must be done on a case-by-case basis and requires a common sense
assessment of all the circumstances surrounding the extrinsic act and the
charged offense. In considering the probative value of evidence offered
to prove intent, [relevant] circumstances include the prosecutorial need
for the extrinsic evidence, the overall similarity between the extrinsic act
and the charged offense, and the temporal remoteness of the other act.11
As noted above, there was no evidence that Westbrook himself was the gunman
or robber; rather, the evidence showed that Westbrook’s involvement was peripheral,
even if he was a party to the second robbery as the getaway driver.12 Showing
Westbrook’s actual participation, rather than mere presence, was crucial to the State.13
11
(Citation and punctuation omitted.) Kirby, 304 Ga. at 481 (4) (a).
12
As noted above, the jury acquitted Westbrook of participation in the first
robbery.
13
Cf. State v. Watson, __Ga. App. __ (2) (Case No. A19A2358, decided Mar.
9, 2020) (holding that the trial court did not abuse its discretion in excluding the
extrinsic evidence because the defendant was directly involved and the case hinged
on identity, not intent: “the State’s need to have more evidence to prove motive,
intent, and knowledge [becomes] very low because those issues are obvious to a fact
finder after the identity of the perpetrator is determined”).
7
Therefore, the State’s need for the evidence was not merely a pretextual disguise
masking its prejudicial effect:14
The classic situations calling for admissibility of independent crimes or
acts to prove intent are when the defendant admits a certain involvement
in the criminal incident but maintains he was duped or forced to go
along and thus lacked the necessary criminal intent or the defendant
admits the charged conduct but claims he did not intend to act
criminally.15
Although robbing a convenience store at gunpoint is not tantamount to rocket
science, familiarity with the commission and planning of the offense certainly renders
one less naive about the perpetrator’s conduct and demeanor leading up to one. For
example, after King committed the first robbery and shot at the clerk, Westbrook
proclaimed ignorance about King’s conduct and intent when he drove King to a
second location to commit the second robbery. The evidence that Westbrook had
prior experience with armed robbery, including the shrewdness to steal the store
surveillance tape in 1999, is highly probative of his intent as he drove King to the
14
See generally Williams v. State, 328 Ga. App. 876, 879-880 (1) (763 SE2d
261) (2014) (The “primary function of [the probative/prejudicial balancing test] is to
exclude evidence of scant or cumulative probative force, dragged in by the heels for
the sake of its prejudicial effect.”) (punctuation omitted).
15
Sloan, 351 Ga. App. at 209 (2) (e) (i).
8
second location and parked strategically nearby to afford a discreet getaway. The
prior robbery shared many of the same traits, including the type of establishment and
the type of weapon, and there was little in the execution of the acts that distinguished
them from each other, aside from the fact that Westbrook apparently acted alone in
the 1999 robbery. That Westbrook in this case acted as the wheelman instead of the
gunman does not alter the intent shared by both cases, i.e., to rob the store of its cash.
The lack of recency of the 1999 robbery is attenuated by the fact that Westbrook was
incarcerated for at least 10 of the intervening 17 years.16
With respect to the undue prejudicial effect, the character of the prior offense
was the same as the armed robbery in this case, so there was no chance of improperly
impugning Westbrook’s character with an unrelated offense.17 Further, “when the
evidence of the [2000 conviction] was presented, the jury learned that [Westbrook]
had already admitted his guilt and been convicted and served a prison sentence for
his [earlier] conduct, making it less likely that the jury would want to punish
16
See Kirby, 304 Ga. at 484 (4) (a) (i) (“[T]he prior crime need not be very
recent, especially where a substantial portion of the gap in time occurred while the
defendant was incarcerated.”).
17
See generally id. (noting that a prior crime of an entirely different character
is more prejudicial).
9
[Westbrook] for this past conduct rather than the charged crimes.”18 Finally, there was
independent, properly admitted evidence that Westbrook was a gang member seeking
to recruit others by committing crimes, so evidence that Westbrook had committed
another crime was not highly prejudicial, given this record. Accordingly, the trial
court was within its discretion to find that the probative value was not substantially
outweighed by undue prejudicial effect.
3. Proof that Westbrook committed the extrinsic acts. Westbrook does not
challenge the existence of his prior conviction, which was proved by a certified copy
and testimony from the arresting officer. Thus, the State met this element of the Rule
404 (b) analysis.
In sum, based on the record before us, including the State’s need to prove the
intent and purpose of Westbrook’s conduct in light of his defense claiming mere
presence at the scene, we discern no basis for reversal.
Judgment affirmed. McFadden, C. J., and Hodges, J., concur.
18
Id. at 485 (4) (a) (i).
10