Copeny v. State

• Decision Date: 25 June 2012
• Docket Number: A12A0283.,Nos. A11A1876,s. A11A1876
• Citation: 12 FCDR 2114,729 S.E.2d 487,316 Ga.App. 347
• Parties: COPENY v. The STATE. Ware v. The State.
• Court: Georgia Court of Appeals

316 Ga.App. 347

729 S.E.2d 487

12 FCDR 2114

COPENY

v.The STATE.

Ware

v.The State.

Nos. A11A1876, A12A0283.

Court of Appeals of Georgia.

June 25, 2012.

R. Kipling Jones, for Appellant.

Tracy Graham Lawson, Elizabeth A. Baker, for Appellee.

BLACKWELL, Judge.

James Kennedy Copeny, Jr., Jaryn Ware, and Kenneth George Hinton were tried together and each convicted of armed robbery,¹hijacking a motor vehicle,² AND TWO COUNTS of possession of a firearm during the commission of a crime.³ Copeny and Ware appeal,⁴ each contending that the evidence adduced at trial is insufficient to sustain his conviction. In addition, Copeny asserts that the court below improperly commented upon the evidence when it charged the jury, and Ware contends that the court should have merged his convictions for armed robbery and hijacking a motor vehicle. We find no merit in these contentions, and we affirm the judgments of conviction.

1. We turn first to the sufficiency of the evidence. When we consider whether the evidence is sufficient to sustain a conviction, we ask whether any rational jury could have found proof beyond a reasonable doubt of the guilt of the defendant in the evidence adduced at trial, viewing that evidence in the light most favorable to the verdict. Ferguson v. State, 307 Ga.App. 232, 233(1), 704 S.E.2d 470 (2010). And as we consider this question, we must keep in mind that it is for the jury, not appellate judges, to weigh the evidence, pass upon the credibility of witnesses, and resolve conflicts in the evidence. See id. So, if the record contains some competent evidence sufficient to prove beyond a reasonable doubt each element of the crime of which the defendant was convicted, we must uphold the conviction, even if the evidence is contradicted. Id.

Viewed in the light most favorable to the verdict, the evidence in this case shows that the victim met Tinisha Henry when, while driving down a street in Riverdale, the victim saw her walking along the road, stopped to talk with her, and gave his telephone number to her. One evening, Henry called the victim and asked him to meet at a house after he finished work, ostensibly to have a drink. A few hours later, the victim drove to the place to which Henry had directed him, and when he arrived, he saw Henry standing in the street. After he parked and exited his car, the victim was approached by four men. The men were armed, their faces were concealed, and they informed the victim of their intent to rob him. At trial, the victim testified that one of these men was taller than the others, and the tall one wore a white shirt, while the others wore dark clothing. One of the men took cash and a cell phone from the victim, and Henry took the keys to his car. Henry then drove away in the victim's car, a Monte Carlo, and the four men drove away in a Lincoln Town Car.

The victim promptly contacted law enforcement, and officers were instructed to be on the lookout for both the Monte Carlo and the Town Car. Officers soon located the Monte Carlo and apprehended Henry. Later, officers also located a Town Car and stopped it. Inside the Town Car, the officers found Copeny, Ware, Hinton, and a fourth man, Malcolm Arnold. The victim was taken to the scene of the stop, and he confirmed that the Town Car that officers had stopped was, in fact, the Town Car in which his assailants had driven away. The victim also viewed the occupants of the Town Car. He was unable to definitively identify any of the occupants as one of his assailants, inasmuch as they had covered their faces during the robbery, but the victim told officers that the height, weight, and attire of the occupants of the Town Car was consistent with that of his assailants. An officer testified at trial that, when the Town Car was stopped, Hinton was wearing a white shirt and was taller than the other occupants, including Copeny and Ware. The officers frisked Arnold, and they found a handgun and the cell phone of the victim on his person. The officers also searched the Town Car, where they found a handgun wrapped in a black face mask, a black hat, black shorts, a black shirt, a black glove, and two hooded sweatshirts.

Officers arrested the men and interviewed Copeny and Ware. In his interview, Copeny said that he had been riding in the Town Car with several others, including Henry and someone known as “Donnio.” Copeny admitted that, when he got into the Town Car, he knew that there were guns in the car. Copenyalso admitted that he rode in the Town Car to a vacant house, where, he said, he sat in the car and smoked cigarettes until someone told him to go around to the back of the house. He did so, he said, and from the back of the house, he heard someone say, “Just take it, take what you want.” According to Copeny, he then walked back to the front of the house, saw a man holding up his hands, and observed Henry get into that man's car and drive it away. By his account, Copeny then returned to the Town Car, in which he rode away.

In a separate interview, Ware admitted that Donnio told him of a plan that involved a woman calling a man and leading the man to believe that she was romantically interested in the man. Then, Donnio told Ware, “they were going to take [the man's] car.” ⁵ Ware said that he later traveled with Henry and the others in the Town Car to a vacant house, where Ware went to the rear of the house, while Henry waited in the front. A man arrived, and Ware walked to the front of the house, he admitted, and took money from the pockets of the man. Ware also admitted that he saw two guns during the incident.

(a) As to Copeny, the evidence is sufficient to prove beyond a reasonable doubt that he was a party to the crimes charged. “[A] person who does not directly commit a crime may be convicted upon proof that a crime was committed and that person was a party to it.” Walsh v. State, 269 Ga. 427, 429(1), 499 S.E.2d 332 (1998) (citation omitted). Moreover, “whether a person was a party to a crime can be inferred from his presence, companionship, and conduct before and after the crime was committed.” Id. (citation omitted). And as we have explained before, “[i]f the defendant had knowledge of the intended crime and shared in the criminal intent of the principal actor, he is an aider and abettor.” McWhorter v. State, 198 Ga.App. 493(1), 402 S.E.2d 60 (1991) (citation and punctuation omitted; emphasis in original). See OCGA § 16–2–20(b) (a person is concerned in the commission of a crime only if, among other things, he directly commits the crime or “[i]ntentionally aids or abets in the commission of the crime”).

Here, the jury readily could conclude that Copeny had knowledge of the crime and shared in the criminal intent of the perpetrators. Copeny accompanied Henry and Donnio to a vacant house after Donnio agreed to help Henry steal a car. The men waited with Henry at the house until, after the victim was contacted, they hid from view. According to Henry, when the victim pulled up, Donnio was positioned behind her so that, when the victim got out of the car, the only person he saw was Henry. The victim testified that four gunmen then appeared “out of nowhere.” Further, Copeny knew guns were in the Town Car before the robbery, he followed instructions to move behind the house before the victim arrived, and he left with the others after the robbery was completed. Whether Copeny was one of the four masked assailants described by the victim or whether, as Copeny claimed, he emerged from behind the house only just before Henry took the victim's car, any rational jury could conclude that Copeny was not simply an innocent bystander, but one who aided and abetted Henry and the others in effecting the plan to steal the victim's car. See Williams v. State, 236 Ga.App. 790, 792, 513 S.E.2d 757 (1999) (evidence sufficient to show defendant was a party to hijacking where defendant made no effort to distance himself from his cohorts as vehicle was being stolen, never offered the victim any help, and drove the stolen vehicle during the month following the hijacking); Lewis v. State, 199 Ga.App. 97, 98(1), 403 S.E.2d 814 (1991) (where defendant arrived at crime scene with co-defendant, and did nothing to assist the victim or deter the co-defendant while the co-defendant strangled and robbed the victim, evidence was sufficient to find defendant guilty beyond a reasonable doubt of armed robbery); Lunz v. State, 174 Ga.App. 893, 895(1), 332 S.E.2d 37 (1985) (where evidence showed the two co-defendants arrived at the crime scene with the gunman, the three were present at the robbery and shooting, and the two co-defendants left but rejoined the gunman afterwards, when he disposed of the gun, evidence was sufficient to show co-defendants were parties to crimes of armed robbery and aggravated assault).

(b) The evidence also is sufficient to sustain Ware's convictions. Ware admitted that he took money from the victim's pocket, but he argues that he never admitted to advance knowledge of an armed robbery or a hijacking. Therefore, he contends, Henry's testimony was the only evidence that he was a party to crimes involving the taking of the victim's car by use of a handgun, and because Henry was an accomplice, her testimony alone is insufficient. See generally In the Interest of...