Daniels v. the State.

• Court: Georgia Court of Appeals
• Writing for the Court: MILLER, Presiding Judge.
• Citation: Daniels v. the State., 310 Ga.App. 562, 714 S.E.2d 91, 11 FCDR 2287 (Ga. App. 2011)
• Decision Date: 06 July 2011
• Docket Number: No. A11A0530.,A11A0530.
• Parties: DANIELSv.The STATE.

310 Ga.App. 562

714 S.E.2d 91

11 FCDR 2287

DANIELS

v.The STATE.

No. A11A0530.

Court of Appeals of Georgia.

July 6, 2011.

Peter D. Johnson, Augusta, for appellant.Richard Ashley Mallard, Dist. Atty., Keith A. McIntyre, Asst. Dist. Atty., for appellee.MILLER, Presiding Judge.

Following a jury trial, Vandy Mack Daniels was convicted of armed robbery (OCGA § 16–8–41), aggravated assault (OCGA § 16–5–21), and possession of a firearm during the commission of a crime (OCGA § 16–11–106). The trial court denied Daniels's motion for new trial. Daniels appeals, asserting that the trial court erred: (i) in failing to direct a verdict of acquittal; (ii) in failing to include a complete instruction on simple assault when defining the crime of aggravated assault; and (iii) in failing to merge the aggravated assault offense with the armed robbery offense for sentencing purposes. Finally, Daniels contends that he was not afforded reasonably effective assistance of counsel. We agree that the trial court's failure to merge the aggravated assault conviction with Daniels's armed robbery conviction in imposing the sentence was erroneous, and we therefore vacate the aggravated assault conviction and remand the case for resentencing. The remaining claims of error, however, are without merit and we affirm on those grounds.

Viewed in the light most favorable to the verdict, see Jackson v. Virginia, 443 U.S. 307, 318–319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence shows that on March 7, 2006, Daniels, who was wearing a dark mask with aluminum foil underneath entered a convenience store, pointed a gun at the store clerk behind the counter, and demanded money. A second store employee was also present behind the counter with the store clerk at the time of the robbery. While the store clerk was gathering money from the cash registers, Daniels pulled the trigger of his gun three or four times. Each time, however, Daniels's weapon misfired. The store clerk put the cash into Daniels's bank bag. After Daniels obtained the cash, he told the clerk to turn around and put her hands up, at which point Daniels ran out the front door of the convenience store.

At approximately the same time Daniels ran from the convenience store, a third employee, who had been unaware of the robbery, came out from the back room where he had been working. When the third employee was informed that the store had been robbed, he ran from the store, pursuing Daniels on foot. The store clerk thereafter called the police to report the robbery. While en route to the convenience store, the police were informed that a store employee was pursuing Daniels; they subsequently changed course and went directly to the area to which Daniels had fled.

Approximately seven police officers coordinated their efforts in order to locate Daniels. The officers saw Daniels running out of the nearby woods and apprehended Daniels after he was knocked down by a “concerned citizen.” During Daniels's arrest, the officers recovered a gun with four empty cartridges and one loaded cartridge; a mask with cutout eye holes and tinfoil; and a bank bag containing cash, all of which were lying next to him on the ground.

Daniels was tried before a jury on February 19, 2007. The jury returned a verdict finding Daniels guilty of armed robbery, aggravated assault, and possession of a firearm during the commission of a crime. At his June 1, 2007 sentencing hearing, Daniels was sentenced to life imprisonment without possibility of parole for armed robbery in accordance with this State's recidivist statute; twenty consecutive years for aggravated assault; and five consecutive years for possession of a firearm during the commission of a crime. The trial court granted Daniels's request to file an out-of-time motion for a new trial.¹ Following a hearing, the trial court denied Daniels's motion for new trial on the merits. The instant notice of appeal followed.

1. On appeal, Daniels first contends that the trial court erred in denying his motion for a directed verdict of acquittal because there was no in-court identification of Daniels as the person who was apprehended shortly after the armed robbery. We disagree.

The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson [, supra, 443 U.S. 307, 99 S.Ct. 2781], the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Moreover, the test established in Jackson is the proper test for us to use when the sufficiency of the evidence is challenged, [and] the challenge arises from the overruling of a motion for directed verdict....

(Citations and punctuation omitted.) Short v. State, 234 Ga.App. 633, 634(1), 507 S.E.2d 514 (1998). Thus, “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.” Jackson, supra, 443 U.S. at 319(III)(B), 99 S.Ct. 2781.

Here, contrary to Daniels's assertion otherwise, the testimony of the arresting officer positively identified Daniels in court as the same person who was arrested and charged for the crimes of armed robbery, aggravated assault, and possession of a firearm during the commission of a crime:

Q. ... [D]id you help to arrest the offender?

A. Yes, sir, I did.

Q. And was that the defendant Vandy Mack Daniels?

A. Yes, sir, it was him. I placed the handcuffs on him.

Daniels nevertheless argues that none of the testifying witnesses directly identified Daniels as the masked perpetrator who robbed the convenience store. In-court identification, however, was not the only way for the State to prove that Daniels was the person who committed the crimes. Pierce v. State, 251 Ga.App. 600, 602(1), 554 S.E.2d 787 (2001). Indeed, the State can connect a defendant to a crime utilizing evidence which is entirely circumstantial. When the State does so, however, such circumstantial evidence must be so strong as to exclude every other reasonable hypothesis save that of the guilt of the accused. But it need not exclude every conceivable inference or hypothesis—only those that are reasonable. Whether every reasonable hypothesis except that of the guilt of the defendant has been excluded is a question for the jury. Where the jury determines the evidence excluded every reasonable hypothesis save that of guilt, such a finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.

(Footnote omitted.) Hart v. State, 305 Ga.App. 259, 262(1)(a), 699 S.E.2d 445 (2010).

Here, Daniels matched the description of the perpetrator given by both the clerk and the other store employee behind the counter. Moreover, when Daniels was apprehended from the woods in the nearby area, the officer recovered next to his person the contraband and instrumentalities used in the commission of the robbery, including the dark-colored mask with tinfoil, a bank bag containing stolen money, and a handgun. This evidence of the circumstances was sufficient to establish Daniels's identity as the perpetrator and his guilt of the charged offenses. Accord Hart, supra, 305 Ga.App. at 262(1)(a), 699 S.E.2d 445; Mullins v. State, 267 Ga.App. 393, 395(1)(a), 599 S.E.2d 340 (2004).

2. Daniels contends that the trial court's jury charge was incomplete as to aggravated assault because the charge did not fully define simple assault as an essential element of the offense of aggravated assault.² We disagree.

In reviewing an allegedly erroneous jury instruction, we apply the plain legal error standard of review. A jury charge must be considered as a whole and the parts read in conjunction with each other. Where a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as could be desired, a reviewing court will not disturb a verdict amply authorized by the evidence.(Citation, punctuation and footnote omitted.) Pincherli v. State, 295 Ga.App. 408, 413–414(3), 671 S.E.2d 891 (2008). “Trial courts should tailor their charges to match the allegations of indictments, either by charging only the relevant portions of the applicable Code sections or by giving a limiting instruction that directs the jury to consider only whether the crimes were committed in the manner alleged in the indictment.” (Citation omitted.) Braley v. State, 276 Ga. 47, 53(31), 572 S.E.2d 583 (2002).

The indictment in this case charged Daniels with aggravated assault by committing the underlying assault on the victim with a handgun, a deadly weapon. See OCGA § 16–5–21(a)(2) (“A person commits the offense of aggravated assault when he or she assaults ... [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.”). This count of the indictment further specified the manner in which Daniels was alleged to have committed the underlying assault—“by pointing said handgun at the victim and repeatedly pulling the gun's trigger in an attempt to shoot said victim.” (Emphasis supplied.) At trial, the court charged the jury as follows:

Count two of the indictment charges Mr. Daniels with aggravated assault. Georgia law provides as follows, a person commits the offense of aggravated assault when he assaults another person with a deadly weapon. To constitute such an assault, actual injury to the alleged victim need not be shown. It is only necessary that the evidence show[ ] ... beyond a reasonable doubt that the defendant attempted to cause a violent injury to the alleged victim. The State must also prove as a material element of aggravated assault in this case that the assault was made with a deadly weapon.

(Emphasis supplied.)

Daniels contends that this charge was...