Johnson v. State

Smith, Judge.

Kenneth Johnson was tried before a jury and found guilty of armed robbery, false imprisonment, and possession of a sawed-off shotgun. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdict.

1. Johnson enumerates as error the general grounds. Viewed in the light most favorable to the jury’s verdict, the evidence showed the following: Johnson was identified as the young man wielding a sawed-off shotgun who demanded the victim’s house and car keys at gunpoint and who forced him into the trunk of the car, locking it. The sawed-off shotgun Johnson possessed at the time of his subsequent arrest had a barrel of less than 18 inches. Contrary to appellant’s assertions, this evidence was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to authorize a rational trier of fact to find Johnson guilty beyond a reasonable doubt of each offense.

2. Johnson moved before trial to exclude identification testimony on the ground that a pre-trial one-on-one confrontation between himself and the victim was impermissibly suggestive. After a hearing, the trial court denied Johnson’s motion and this ruling is enumerated as error.

There is “no per se exclusionary rule applied to pre-indictment confrontations. [Cit.]” Yancey v. State, 232 Ga. 167, 169 (205 SE2d 282) (1974). “Pre-indictment confrontations should be scrutinized to determine if they are unnecessarily suggestive and conducive to irreparable mistaken identification. The totality of the circumstances must be viewed to determine if there is a ‘likelihood of misidentification which offends against due process and “the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, [and] the level of certainty demonstrated by the witness at the confrontation.” [Cit.]’ [Cit.]” Towns v. State, 136 Ga. App. 467, 468 (1) (221 SE2d 631) (1975), applying the factors enumerated in Neil v. Biggers, 409 U. S. 188 (93 SE 375, 34 LE2d 401) (1972).

At the hearing on appellant’s motion, the victim testified that he got a very good look at the perpetrator because they stood only a few feet apart beneath the light of his front doorway. Johnson approached under the pretense of asking for a ride before displaying the shotgun and demanding the victim’s keys. When the police arrived, the victim described a young black male, wearing a flowered shirt and a long green trench coat, as the man with the gun. Johnson was arrested within ten minutes of the robbery, four hundred yards from the victim’s home, wearing a flowered shirt and a long green trench coat. He carried a sawed-off shotgun in a shoulder harness strapped inside his coat. The victim immediately and positively identified Johnson as the perpetrator. After identifying Johnson, the victim also identified the shotgun. The victim denied being coached in any way.

“[P]rompt on-the-scene confrontations and identifications, though inherently suggestive because of the presentation of a single suspect, [nevertheless] are permissible in aiding a speedy police investigation and . . . where possible doubts as to identification need to be resolved promptly, such on-the-spot identifications promote fairness by enhancing the accuracy and reliability of identification, thereby permitting expeditious release of innocent subjects. [Cit.]” Bennefield v. Brown, 228 Ga. 705, 706 (3) (187 SE2d 865) (1972). This on-the-scene confrontation with Johnson was based upon a near immediate arrest, in time and proximity, using the detailed and accurate description of the perpetrator given by the victim. The trial court’s determination that there was, under the totality of the circumstances, no likelihood of irreparable misidentification is supported by the evidence, is not clearly erroneous, and is therefore affirmed. See Hood v. State, 199 Ga. App. 774 (406 SE2d 120) (1991).

3. Subsequent to the armed robbery, Johnson was arrested while in possession of a shotgun with a barrel of less than 18 inches in length. This is adequate to support a separate conviction for a violation of OCGA § 16-11-122. The trial court did not err in refusing to merge his conviction for possession of the shotgun with his conviction for armed robbery using the same shotgun. A violation of OCGA § 16-11-122 may exist before or after an armed robbery. In Brown v. State, 168 Ga. App. 537, 538-539 (3) (309 SE2d 683) (1983), we held that the offense of possession of a firearm by a convicted felon “is not included” in the crime of armed robbery, even though both offenses arose during one transaction. The same is true with respect to the lesser offense here, and for the same reason. Proof of this lesser offense requires proof of possession of a shotgun with a barrel length less than the statutory minimum. It is not necessary to prove these elements in order to prove the greater crime of armed robbery.

4. Johnson submitted a timely written request to charge on the law of circumstantial evidence. The failure of the trial court to give this instruction is enumerated as error, on the ground that the only evidence of criminal intent was circumstantial. It is not urged that the State depended upon circumstantial evidence in whole or in part to prove the acts done in violation of state statute. See Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991).

The request submitted was an accurate, nonargumentative quotation of OCGA § 24-4-6, rather than an inaccurate statement regarding two equal theories. Compare Langston v. State, 208 Ga. App. 175 (430 SE2d 365) (1993) and Burris v. State, 204 Ga. App. 806, 810-811 (3) (420 SE2d 582) (1992). There is some authority of long standing for the proposition that the substance of OCGA § 24-4-6 should be charged when the circumstances from which a guilty intent could be inferred are consistent with an innocent intention or an intention different from that charged against the accused. See Cooper v. State, 2 Ga. App. 730 (3) (59 SE 20) (1907). However, the trial court did give the following charge on criminal intent: “The intention of a person then is always a question of fact for determination of the jury, and it is a material element of the crime charged here. A person will not be presumed to act with criminal intention, but the [jury] may find such intentions upon consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted.”

When coupled with the instructions on the presumption of innocence and the State’s burden to prove the guilt of the accused beyond a reasonable doubt, we find that the charge given adequately covered the substance of the refused request insofar as it related to the material element of criminal intent. “The failure to give requested instructions in the exact language requested, where the charge given substantially covers the same principles, is no longer a ground for new trial. The trial judge gave ample instructions [on criminal intent], and it was not error to fail to charge in the exact language requested.” (Citations and punctuation omitted.) Burris v. State, supra at 811 (3). Even if it were error, it would be harmless beyond a reasonable doubt, since no reasonable hypothesis of innocence or of a different intent has been suggested. Rash v. State, 207 Ga. App. 585, 587 (5) (428 SE2d 799) (1993).

Judgments affirmed.

Johnson, J., concurs. Blackburn, J., concurs specially.