Bynes v. State
| Decision Date | 16 March 2016 |
| Docket Number | No. A15A1974.,A15A1974. |
| Citation | 784 S.E.2d 71,336 Ga.App. 223 |
| Parties | BYNES v. The STATE. |
| Court | Georgia Court of Appeals |
336 Ga.App. 223
784 S.E.2d 71
BYNES
v.
The STATE.
No. A15A1974.
Court of Appeals of Georgia.
March 16, 2016.
Barbara Nelson Lanier, Savannah, for Appellant.
Margaret Heap, Lyndsey Hurst Rudder, for Appellee.
BRANCH, Judge.
On appeal from his conviction for armed robbery and harming a police dog, Devante Bynes argues that the evidence was insufficient and that the trial court erred when it refused Bynes's requests for charges on the justified use of force in self-defense and theft by intimidation as a lesser included offense. We find no merit in these assertions, but we vacate the portion of Bynes's sentence pertaining to his conviction for harming a police dog, which imposed a greater sentence than that allowed by law, and remand for resentencing.
"On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence." Reese v. State, 270 Ga.App. 522, 523, 607 S.E.2d 165 (2004)(citation omitted). We neither weigh the evidence nor judge the credibility of witnesses, but determine only 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." Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)(citation omitted).
So viewed, the record shows that late on the evening of May 21, 2013, a man locked up the Savannah restaurant where he worked and began walking home through a local park. As the man did so, he noticed that Bynes and two other men, all of whom were dressed in dark clothing, were approaching him from behind. Bynes stepped in front of the victim and aimed a gun at his face. The second man ordered the victim to hand over his possessions "or we're f* * *king going to shoot you"; the third man stood behind the victim. Bynes and his confederates then rummaged through the victim's pockets and backpack, taking his watch, wallet, cell phone, keys, and the backpack. The men then ordered the victim to run away or risk being shot. As he ran, the victim first saw a young man on a skateboard and then a pedestrian, whom the victim asked to call 911. As the pedestrian did so, the victim looked back and saw the same three robbers surround the skateboarder. The robbers pointed a gun at the second victim, demanded all his possessions, and obtained his backpack, cell phone, some marijuana, and $10 in cash.
A police detective in an unmarked patrol car with its lights out also witnessed three men surround and rob the second victim. As the robbers fled, the detective pursued them slowly by car for several blocks, noting that Bynes was wearing a sleeveless undershirt and appeared to be hiding something under it. When the robbers realized that they were being followed, they began running in different directions. The detective parked his patrol car, activated his lights, ordered the men to stop, and ran after one of Bynes's co-defendants, Josephewa Ramsey. After apprehending Ramsey, the detective went to the assistance of a canine officer, who had already apprehended co-defendant Devon Tarver and was now pursuing Bynes.
When the police dog tracked Bynes to a crawl space under a residence, the canine officer ordered the dog to go into the space and to bite Bynes, which the dog did. Before the canine officer issued a stop command, Bynes put his hands around the dog's neck and began twisting its neck. The canine officer told Bynes to stop fighting the dog, but Bynes did not do so. Instead, he continued to choke the dog until it lost consciousness and went limp. The canine officer then pulled the dog out of the crawl space and immediately took it to an animal hospital, where the dog recovered from its injuries. The detective apprehended Bynes, who had suffered bite injuries to his legs and was bleeding. A search of the area produced keys, a cell phone, and a black wallet belonging to the first victim. In a cinder block near the park, police also recovered a black pistol with a magazine clip. The first victim identified Bynes at the scene as the man who had robbed him at gunpoint, and the detective identified Bynes as one of the men who had surrounded the second victim.
Bynes was charged with two counts of armed robbery and one count each of obstruction, harming a police dog, and escape. The trial court granted a directed verdict as to the obstruction count, and the escape count was nolle prossed. A jury found Bynes guilty of both counts of armed robbery and the count of harming a police dog. Bynes was convicted and sentenced to life in prison with 5 years to serve concurrently for harming the police dog. His motion for new trial was denied.
1. Bynes argues that the evidence was insufficient to support his conviction as to both (a) armed robbery and (b) harming a police dog. We disagree.
(a) Bynes attacks the jury's verdict as to the armed robbery counts by pointing out inconsistencies in the evidence against him and by attacking the credibility of the witnesses. Such matters are for the jury, and not this Court, to resolve. See Hogan v. State, 330 Ga.App. 596, 598(1)(a), 768 S.E.2d 779 (2015). The evidence here included the first victim's testimony that Bynes pointed a gun at him and
demanded his possessions, the detective's testimony that he saw Bynes and the two other robbers attack the second victim, the second victim's testimony that he was also robbed at gunpoint, and Bynes's
presence at and flight from the scene. This evidence was sufficient to sustain Bynes's conviction for armed robbery. Jackson, supra; Hogan, 330 Ga.App. at 598(1)(a), 768 S.E.2d 779(victim's testimony that defendant robbed him with a gun was sufficient to sustain a conviction for armed robbery); Drake v. State, 266 Ga.App. 463, 465(1), 597 S.E.2d 543 (2004)(defendant's conduct before, during, and after an armed robbery supported a finding that he was guilty of aiding and abetting that crime).
(b) Bynes was charged with violating OCGA § 16–11–107in that he "knowingly and intentionally cause[d] serious physical injury" to the dog in question. OCGA § 16–11–107defines the offense of harming a law enforcement animal in four degrees, including as follows:
(b) A person commits the offense of harming a law enforcement animal1 in the fourth degree when he or she knowingly and intentionally causes physical harm to such law enforcement animal while such law enforcement animal is in...
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