Bryson v. State

• Decision Date: 29 June 2012
• Docket Number: No. A12A0174.,A12A0174.
• Citation: 729 S.E.2d 631,12 FCDR 2265,316 Ga.App. 512
• Parties: BRYSON v. The STATE.
• Court: Georgia Court of Appeals

316 Ga.App. 512

729 S.E.2d 631

12 FCDR 2265

BRYSON

v.The STATE.

No. A12A0174.

Court of Appeals of Georgia.

June 29, 2012.

George Arthur Bessonette, Homerville, for Bryson.

Clifford Paul Bowden, Ronnie Allen Wheeler, for The State.

MILLER, Judge.

Following a jury trial, Julius Bryson was convicted of two counts of armed robbery (OCGA § 16–8–41(a)) and two counts of possession of a firearm during the commission of a felony (OCGA § 16–11–106(b)). Bryson filed a motion for new trial, which the trial court denied. Bryson appeals, contending that (1) the evidence was insufficient to sustain his convictions. Bryson further contends that the trial court erred (2) in giving the “level of certainty” jury charge; (3) in admitting evidence that he was speeding and had no driver's license; (4) in failing to direct a verdict or give a lesser included jury charge on robbery by intimidation as to the second count of armed robbery; (5) in failing to direct a verdict of acquittal as to the second count of possession of a firearm; (6) in admitting witness opinion testimony identifying him in a videotape; (7) in allowing the prosecutor to engage in an impermissibly suggestive in-court identification procedure; and (8) in allowing the prosecutor to engage in improper burden-shifting questioning at trial. In addition, Bryson argues that (9) his trial counsel provided ineffective assistance. For the reasons that follow, we affirm.

On appeal from a criminal conviction, the evidence is construed in the light most favorable to the verdict of guilt, and the presumption of innocence no longer applies. As an appellate court, we do not weigh the evidence, judge the credibility of witnesses[,] or resolve conflicts in trial testimony when the sufficiency of the evidence is challenged. Instead, we determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. As long as there is some evidence, even though contradicted, to support each necessary element of the State's case, the jury's verdict will be upheld.

(Citation, punctuation, and footnotes omitted.) Brinson v. State, 245 Ga.App. 411, 412–413(1), 537 S.E.2d 795 (2000).

So viewed, the evidence showed that on the afternoon of April 12, 2003, a custodian was working at a rest area on Interstate–75 in Turner County when she observed a white car occupied by three black males back into a parking space at the rest area. One of the males was wearing a black bandana on his head; another wore a hood. The custodian testified that she was able to see the males' faces at that time.

On that same afternoon, the first victim stopped at the rest area and went into the mens' restroom. Upon entering the restroom, the victim observed two black males standing at the sink. While using the urinal, the victim was approached from behind by one of the males, who demanded his wallet. The victim attempted to turn away, and was approached by the second male, who pulled out a gun and pointed it at the victim's chest. The victim saw the gun and heard the distinctive “click” sound of a bullet being engaged into the gun's chamber. The victim removed his wallet from his back pocket and handed it to the perpetrators. Upon discovering that the victim did not have any money in his wallet, the perpetrators shoved the wallet into the victim's chest and searched the victim's pockets.

While the armed robbery of the first victim was still in progress, a second victim entered the restroom. The perpetrators then turned to commit an armed robbery of the second victim. The second victim testified that the perpetrator approached him from behind, demanded his wallet, and said that the accomplice “has a gun and he'll kill you.” The second victim gave the perpetrators his wallet and cash in the amount of $610.

The first victim rushed out of the restroom and told the custodian to call 911 to report the armed robbery incidents. The second victim, his wife, and the custodian observed the perpetrators flee from the rest area in the white car that had been backed into a parking space at the rest area. The second victim and his wife described that the white car had a cracked windshield. Both victims described that one of the perpetrators was tall and was wearing a hood and a black bandana. The second perpetrator who had brandished the gun was described as being shorter, young, and wearing a white jersey.

Local law enforcement officers received a “[b]e on the lookout” radio report with the descriptions of the white car and the perpetrators. Almost immediately after receiving the radio report, an officer observed the car, matching the descriptions and traveling at a high rate of speed on the interstate. The officer tracked the car's speed and reported that the car was going 102 miles per hour in a 65–mile per hour zone. The officer pursued the car, activating the blue lights and siren of his patrol car in efforts to initiate a stop. The perpetrators did not stop the car, and instead led the officer on high speed chase. Several other officers joined the chase, and eventually stopped the car by blowing out its tires. Bryson, who was the driver, then bailed from the car and led the officers on a foot chase. Bryson was captured and taken into police custody.

Bryson's accomplices were also apprehended at the end of the chase. After the perpetrators were apprehended, the officers searched the car and recovered the second victim's driver's license, along with the clothing and bandana that the perpetrators had worn during the commission of the crimes. The officers also recovered the second victim's wallet from the side of the interstate. In addition, the officers recovered from Bryson's accomplice over $600, matching the approximate amount taken from the second victim.

During the course of their investigation, the officers compiled a photographic lineup. The custodian identified Bryson as being one of the perpetrators in the lineup. The custodian also made an in-court identification of Bryson at trial.

At the conclusion of the trial, the jury entered a verdict finding Bryson guilty of the charged offenses.

1. Bryson challenges the sufficiency of the evidence to sustain his convictions. Viewing the evidence in the light most favorable to the jury's verdict, we conclude that the evidence was sufficient to establish Bryson's guilt as a party to the crimes.

“A person commits the offense of armed robbery when, with intent to commit theft, he ... 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). A person commits the offense of possession of a firearm during commission of a felony when he has on or within arm's reach of his person a firearm during an armed robbery. See OCGA § 16–11–106(b). “Where a robbery is committed by the use of a firearm, separate convictions for armed robbery and possession of a firearm during the commission of a crime are specifically authorized by OCGA § 16–11–106(e).” (Citations and punctuation omitted.) Howze v. State, 201 Ga.App. 96, 97, 410 S.E.2d 323 (1991). Bryson was charged as a party to these offenses pursuant to OCGA § 16–2–20. In accordance with OCGA § 16–2–20(a), “[a]ny person concerned in the commission of a crime is a party to it and may be convicted as a principal.” (Citations and punctuation omitted.) Wilcox v. State, 177 Ga.App. 596, 596–597, 340 S.E.2d 243 (1986).

[W]here 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.

Howze, supra, 201 Ga.App. at 97, 410 S.E.2d 323; see also Wilcox, supra, 177 Ga.App. at 596–597, 340 S.E.2d 243. Moreover,

[w]hile mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred.

(Citation and punctuation omitted.) Olds v. State, 293 Ga.App. 884, 886(1), 668 S.E.2d 485 (2008).

Here, the trial evidence set forth above showed that Bryson either directly committed or was a party to the armed robberies of both victims at the rest area. The custodian who was present at the scene identified Bryson as one of the perpetrators who had participated in the crimes. Bryson's flight from the rest area, flight from the officers, act of driving the getaway car, and possession of the second victim's driver's license and clothing items that witnesses linked to the crimes presented additional circumstances from which the jury could infer his guilt as a party to the crimes. See Woodruff v. State, 233 Ga. 840, 842(1), 213 S.E.2d 689 (1975) (ruling that “evidence of flight may be admitted as one of a series of circumstances from which guilt may be inferred”) (citations and punctuation omitted); Olds, supra, 293 Ga.App. at 886–887(1), 668 S.E.2d 485 (concluding that the evidence was sufficient to convict the defendant as a party to the crime of armed robbery when he was caught driving the getaway vehicle, he matched the witnesses' description of the perpetrators, and the stolen items were found in his vehicle).

Bryson nevertheless argues that the armed robbery and firearm charges involving the second victim cannot be upheld since the second victim testified that he did not actually see a gun during the robbery. Contrary to Bryson's arguments, however,

[c]ircumstantial evidence is sufficient to establish the use of a weapon or device appearing to be a weapon, and a conviction for armed robbery may be sustained even though the weapon or article used was neither seen nor accurately described by the victim. The victim...