HARP v. the STATE.

FOURTH DIVISION
DILLARD, C. J.,
DOYLE, P. J., and MERCIER, 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
October 15, 2018
In the Court of Appeals of Georgia
A18A1293. HARP v. THE STATE. DO-043 C
DOYLE, Presiding Judge.
Following his conviction for armed robbery,1 Antwain Deshawn Harp appeals
from the denial of his motion for new trial, contending that (1) the evidence was
insufficient to support the verdict, and (2) the trial court abused its discretion by
requiring him to wear civilian clothing instead of his National Guard uniform. For the
reasons that follow, we affirm.
Construed in favor of the verdict,2 the evidence shows that Kendric Lawrence
contacted his co-worker Krishad Clark to ask if he knew of anyone interested in
selling a car. Two hours later, Clark called Lawrence back to tell him that he had
1
OCGA § 16-8-41 (a).
2
See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).
identified a friend, Harp, with a vehicle he wished to sell to Lawrence. Harp and
Lawrence exchanged text messages to discuss the details, and after they agreed on
price, Harp offered to pick up Lawrence in the car to show it to him.
They met as agreed, and after inspecting the vehicle with Lawrence, Harp
offered to retrieve the title from his girlfriend’s apartment, directing Lawrence where
to go as he test drove the vehicle. After they arrived at the apartment complex, they
exited the vehicle, with Harp leading the way. As Harp walked through a breezeway
and turned left, Clark, who had been waiting there, appeared with a pistol. Harp
walked past Clark, and Clark pointed the pistol at Lawrence. Lawrence recognized
Clark from his voice and appearance and determined that he had been set up for a
robbery. Clark demanded Lawrence’s money and any drugs he possessed, and
Lawrence gave him the $2,700 in cash that he had brought to purchase the vehicle.
Clark then took Lawrence’s phone, ordered him out of the breezeway at gunpoint, and
fled.
Lawrence ran to the building of a resident he recognized and knocked on her
door, asking her to call the police. An officer arrived at the scene a few minutes later,
and as Lawrence spoke with the officer, Harp walked up, and Lawrence identified
2
him as the person who “set me up . . . to get robbed.” Police detained Harp at the
scene, and he and Clark ultimately were charged with armed robbery.
Following a jury trial, Harp was found guilty and moved for a new trial. The
trial court denied his motion, and Harp now appeals.
1. Harp contends that the evidence was insufficient to support the verdict,
arguing that the evidence of his knowing participation in the robbery was weak and
relied heavily on uncorroborated testimony from his accomplice. Based on our review
of the evidence, we disagree.
When an appellate court reviews the sufficiency of the evidence,
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.
This familiar standard gives full play to the responsibility of the trier of
fact fairly to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts.
Once a defendant has been found guilty of the crime charged, the
factfinder’s role as weigher of the evidence is preserved through a legal
conclusion that upon judicial review all of the evidence is to be
considered in the light most favorable to the prosecution.3
3
(Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307,
319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
3
Under this standard, “evidence may be less than overwhelming, but still sufficient to
sustain a conviction. . . . [W]e must put aside any questions about conflicting
evidence, the credibility of witnesses, or the weight of the evidence, leaving the
resolution of such things to the discretion of the trier of fact.”4
Here, the evidence at trial included testimony from the victim detailing how he
was put in touch with Harp to purchase a vehicle. The victim also described being
guided by Harp to the location where Clark was waiting with a gun to rob him of the
money he brought to purchase the car. Likewise, Clark, who pleaded guilty to being
the robber with a gun, testified at trial about Harp’s involvement in planning and
executing the robbery. Clark explained that as they discussed the sale of the car, Harp
raised the idea of setting up the victim to steal the money from him instead of selling
the car. Before the purported sale, Harp and Clark together determined the meeting
place, and they agreed that Harp would call Clark when he arrived with the victim.
Clark testified that he would perform the robbery against both Harp and Lawrence,
making it look unplanned and as though he was expecting to steal drugs that Harp
would be carrying.
4
(Citations and punctuation omitted.) State v. Cash, 302 Ga. 587, 592 (807
SE2d 405) (2017), quoting Walker v. State, 296 Ga. 161, 163 (1) (766 SE2d 28)
(2014).
4
Harp argues that the testimony by Clark, Harp’s armed accomplice, was
uncorroborated and therefore insufficient to support his conviction under OCGA §
24-14-8.5 It is true that Clark’s testimony outlined Harp’s participation in setting up
the robbery, but it was not the only evidence of Harp’s knowing involvement. The
victim testified that he believed that he was set up based on his observation of Harp’s
demeanor and actions during the robbery. The victim explained that when Clark
appeared with the gun, Harp simply “walked away,” and the gunman did not pursue
him or otherwise attempt to hinder Harp’s exit from the scene: “Why would you rob
one person when there’s two people?” Further, phone records introduced at trial show
Harp and Clark communicating while Harp was guiding the victim toward the pre-
arranged meeting point as well as immediately after the robbery when Clark was
trying to find Harp. Last, Harp confessed to police that he carried a bag with
marijuana in it at the time of the robbery, which was consistent with Clark’s
testimony that the intended plan was for Clark to make it look like a robbery seeking
drugs.
5
That Code section provides: “The testimony of a single witness is generally
sufficient to establish a fact. However, in . . . felony cases where the only witness is
an accomplice, the testimony of a single witness shall not be sufficient. Nevertheless,
corroborating circumstances may dispense with the necessity for the testimony of a
second witness, except in prosecutions for treason.”
5
“Corroborating evidence may be slight . . . and may be entirely circumstantial.
. . . Once the State has introduced independent evidence implicating the defendant,
it is for the jury to decide whether the accomplice’s testimony has been sufficiently
corroborated.”6 Based on the independent evidence of Harp’s involvement in
planning the robbery, including evidence of his conduct before, during, and after the
robbery, the jury was authorized to find that Harp knowingly participated in the
robbery with Clark.7
2. Harp also challenges the trial court’s refusal to allow him to wear his
National Guard uniform during trial. On the first day of trial, the State objected to
Harp wearing his military uniform at trial, and after a brief colloquy in chambers, the
trial court prohibited the defendant from appearing in his uniform and allowed him
to change into civilian clothes. Finding no Georgia precedent on the specific issue,
the trial court based its ruling on State v. Marquez8 and held that wearing the uniform
6
(Citations omitted.) Mangram v. State, __ Ga. __ (II) (Case No. S18A0846,
decided Aug. 2, 2018).
7
See id. (“[E]vidence of the defendant’s conduct before and after the crime was
committed may give rise to an inference that he participated in the crime.”), quoting
Cisneros v. State, 299 Ga. 841, 845 (792 SE2d 326) (2010).
8
145 N.M. 31 (193 P3d 578) (N.M. Ct. App. 2008), reversed on other grounds
by State v. Marquez, 147 N.M. 386, 393 (11) (B) (223 P3d 931) (2009), overruled on
6
was an attempt to influence the jury without introducing evidence or allowing cross-
examination. In Marquez, the Court of Appeals of New Mexico reached the same
conclusion, noting that:
[a d]efendant’s appearance in front of the jury in a military uniform
‘tends to pull on the heart strings of some members of the jury,’ and that
‘just the sight of somebody in a camouflage uniform in today’s climate
leads to something else in the minds of the jurors . . . and may prevent
the jury from just simply hearing a case on its facts and coming to a jury
decision on the merits.’9
We review the trial court’s ruling for an abuse of discretion.10
Like the trial court, we have not found any Georgia cases directly on point. In
one case cited by Harp, Carver v. State,11 this Court ruled that the trial court did not
abuse its discretion in allowing a victim to testify in his military uniform over the
other grounds by State v. Tollardo, 275 P.3d 110, 121 n. 6 (N.M. 2012).
9
(Punctuation omitted.) Marquez, 145 N.M. at 34.
10
See Carver v. State, 324 Ga. App. 422, 423 (750 SE2d 735) (2013)
(addressing a motion in limine regarding a witness’s uniform); Brown v. State, 240
Ga. App. 321, 323 (2) (523 SE2d 333) (1999) (noting a defendant’s right to be free
of indicia of guilt such as prison garb but providing for a trial court’s discretion in
ensuring courtroom safety).
11
324 Ga. App. at 422.
7
objection of a defendant accused of reckless conduct and pointing a firearm at the
victim.12 But that case involved the attire of a witness on the stand subject to cross-
examination, and the fact of the witness’s military service was otherwise before the
jury in the form of his testimony explaining that he was deployed in Afghanistan
during a time when the defendant believed him to be trespassing and stealing from
his chicken house.13 Defense counsel refused a curative instruction and again referred
to the witness’s military service during closing argument, emphasizing that the victim
joked that he had seen “bigger guns waved.”14 Under those circumstances, this Court
held that there was no abuse of discretion in allowing the witness to testify in
uniform.15
Here, by contrast, the defendant did not testify, he was not subject to cross-
examination, and his military membership was not otherwise before the jury at trial.
Harp’s military membership was entirely extraneous to the issues at trial and could
be construed as an attempt to influence the jury in a manner not based on witness
12
See id.
13
See id. at 425.
14
Id. at 425-426.
15
See id.
8
testimony or other evidence of his guilt or innocence.16 Further, this is not a case in
which the defendant was prohibited from presenting proper evidence of his good
character17 or his good reputation in the military community.18 Under these
circumstances, the trial court did not abuse its discretion.19
Judgment affirmed. Dillard, C. J., and Mercier, J., concur.
16
Compare Daniels v. State, 310 Ga. App. 541, 545 (2) (713 SE2d 689) (2011)
(“It is well established that the accused, while in the presence of the jury, should be
free of indicia of guilt such as wearing shackles or prison garb, or being surrounded
by uniformed security personnel, or anything else that might infringe upon the
presumption that he is innocent.”) (punctuation omitted).
17
See OCGA §§ 24-4-404 (a) (1), 24-4-405; Rai v. State, 297 Ga. 472, 481 (7)
(775 SE2d 129) (2015) (“[A] defendant may produce evidence of his good character
in two ways. He may take the stand himself and testify as to his past good conduct,
or . . . he may call third parties to testify as to his general reputation in the
community.”) (punctuation omitted).
18
See, e.g., Smith v. State, 259 Ga. App. 736, 738 (3) (578 SE2d 295) (2003)
(decided under former Evidence Code).
19
See Marquez, 145 N.M. at 34-35.
9