Demps v. State, A16A0452

• Citation: 337 Ga.App. 657,788 S.E.2d 525
• Decision Date: 29 June 2016
• Docket Number: A16A0452
• Parties: Demps v. The State.
• Court: United States Court of Appeals (Georgia)

337 Ga.App. 657

788 S.E.2d 525

Demps

v.The State.

A16A0452

Court of Appeals of Georgia.

June 29, 2016

Derek M. Wright, for Appellant.

Paul L. Howard Jr., Atlanta, Kevin Christopher Armstrong, for Appellee.

McMillian

, Judge.

Kashif Demps appeals the trial court's denial of his motion for new trial after a jury again convicted him in 2012 of armed robbery and possession of a firearm during the commission of a felony.¹ Demps asserts that the trial court erred by (1) allowing the admission of similar transaction evidence; (2) instructing the jury that it could find Demps guilty of possessing a firearm during the commission of a felony in a manner not alleged in the indictment; and (3) allowing the State to impermissibly use similar transaction evidence in closing argument. Demps also asserts that his conviction must be reversed because it is based on insufficient circumstantial evidence. For the reasons that follow, we find no error and affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence.” (Citation omitted.) Al–Amin v. State , 278 Ga. 74, 74, 597 S.E.2d 332 (2004)

. We “do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.” (Citation omitted.) Id.

So viewed, the evidence shows² that the victim, who worked at a barbershop in southwest Atlanta, walked to a nearby Church's Chicken for dinner after dark on November 16, 2007. When he arrived, the door was locked, and the employee indicated through the door that the restaurant was closed. As the victim turned to head back, he noticed that there was a black Crown Victoria sitting in the drive-through with a police scanner on top. Halfway down the block, the victim heard a rustling noise and turned to see two men behind him. The men asked the victim for a “light,” and after giving them a light, he continued walking. However, the two men put a gun to each side of the victim's head and directed him behind a building where they forced him to remove his clothing and hand over all his belongings. In addition to his clothing and boots, the two men took the victim's cell phone, his wallet containing approximately $60 in cash, and a money order. At trial, the victim testified that one of the two men was taller and held a black gun while the shorter man had a silver gun.

The victim immediately reported the robbery, and officers arrived within three or four minutes. The victim told the police that he had been robbed and described the suspicious black Crown Victoria he had seen just before the robbery occurred. An officer sent the call out over the radio, and approximately one minute later, another officer located the vehicle and pulled the driver over. Police later identified Demps as the driver of the vehicle and Demetrius Walker as the passenger.³ A third person, Chequita Woody, was in the back seat of the vehicle. Although the victim was only able to identify Walker as one of the men who had robbed him, he recognized the vehicle and saw his phone and clothing inside the car.

At trial, the State presented evidence that Demps had been arrested in 2005 for armed robbery in Clayton County (the “2005 robbery”).⁴ Felix Cuevas testified that he was robbed by two men at gunpoint, with one holding a silver gun, while he was walking home alone from work. The men took his backpack and wallet, which were later recovered by police and returned to him. Major Joseph Woodall of the Clayton County police department testified that he had received a lookout regarding an armed robbery involving a white Ford SUV and responded to assist when a vehicle matching the description was pulled over by another officer. When he arrived at the scene, Major Woodall saw Demps exit the driver's door and flee on foot but he was able to quickly apprehend him. Meanwhile, Officer Brian Bush made a cursory check of the vehicle and found two handguns (one black and one silver), a backpack, some clothing, a wallet and miscellaneous papers scattered outside the vehicle on the sidewalk. The wallet contained an I.D. for a Felix Cuevas.

Demps testified in his own defense at trial. With respect to the 2005 robbery charge, he claimed that he had received a call from a friend to pick him up, so he drove his white Ford Explorer to an apartment complex to get him and another individual. While they were driving through a nearby neighborhood, a police vehicle pulled behind them and followed them for a while. According to Demps, as he was driving, he saw his friends going through a backpack and “talking about what they just did.” After the police stopped him, he ran because he knew that his friends had just committed a robbery. Although he admitted to owning a gun that he had in the car with him, he denied participating in the robbery.

Regarding the 2007 robbery at issue in this case, Demps claimed that he received a call from Walker, a long time friend of his, asking for a ride home from Cleveland Avenue. When he picked up Walker, a man he knew as “New York” and Woody, the mother of Walker's child, were with Walker. All four of them then stopped at Church's Chicken to get some food because Woody was hungry. Demps parked the car, and although he did not see them, he assumed that Walker and New York went inside the restaurant. Five minutes later, they returned without any food, but Demps did not ask why they did not get any food. He proceeded to drop off New York at a nearby apartment.

While on the way to take Walker and Woody home, Demps was pulled over by police and saw Walker take a gun from his pants and place it on the floor of the car. Demps admitted that when he stepped out of the car, he said “You got me, I did it” but claimed that he was referring to having run a yellow light. He denied seeing a gun or the victim's belongings until he was pulled over and claimed that Walker or New York must have concealed the boots, jeans, and sweatshirt under his coat. He further denied participating in or even knowing about the robbery. On cross-examination, Demps testified that he is 5'10‘ whereas Walker is 6'2‘ and New York is 6'3‘. He also stated that he had approximately $70 in cash on him when he was arrested.

1. In his first enumeration of error, Demps asserts that the trial court erred in admitting evidence of the 2005 robbery because it should not have been admitted on the issue of identity and because no witness specifically identified Demps as one of the perpetrators of the 2005 robbery. Under our former Evidence Code,⁵ similar transaction evidence was admissible if the State showed that

(1) it sought to introduce the evidence not to raise an improper inference as to the accused's character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility; (2) there was sufficient evidence to establish that the accused committed the independent offense or act; and (3) there was a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.

(Citations and punctuation omitted.) Brittain v. State , 329 Ga.App. 689, 701, 766 S.E.2d 106 (2014)

. See also Williams v. State , 261 Ga. 640, 642(2)(b), 409 S.E.2d 649 (1991) (establishing the three-prong test). “A trial court's decision to admit similar transaction evidence will not be disturbed absent an abuse of discretion.” (Citation omitted.) Redding v. State , 297 Ga. 845, 847, 778 S.E.2d 774 (2015).

(a) During the course of the first trial, the trial court ruled that the 2005 robbery would be admissible, but the State was unable to locate the victim at that time. Once the State was able to locate Cuevas for the second trial, it filed notice of its intent to present Cuevas as a witness for the limited purposes of illustrating the defendant's state of mind, intent, motive, modus operandi, and course of conduct.⁶ Demps first argues that it was error to allow the State to introduce the 2005 robbery as evidence of identity where the two crimes were not so distinctive as to show they were committed by the same person. However, pretermitting whether Demps preserved this enumeration of error for review,⁷ the trial court properly admitted the similar transaction evidence for the State's requested purposes of course of conduct and bent of mind.⁸ Accordingly, Demps cannot show reversible error on this ground. See Matthews v. State , 294 Ga. 50, 54(3)(c), 751 S.E.2d 78 (2013)

(where trial court properly admitted similar transaction evidence following limiting instructions, its failure to limit the use of the similar transaction evidence to the purposes requested by the State was not reversible error); Curry v. State , 330 Ga.App. 610, 615, n. 11, 768 S.E.2d 791 (2015) (because similar transaction evidence was relevant to show intent, we need not address trial court's findings that it was also relevant to show motive, plan, and identity).

(b) Demps also asserts that evidence of the 2005 robbery was not admissible because no witness identified Demps at trial as the perpetrator of that crime. This argument is without merit. Again, pretermitting whether Demps waived appellate review of this issue, we find no abuse of discretion. “Absolute proof is not required that a defendant committed the offense in a similar transaction.” (Citation and punctuation omitted.) Dean v. State , 321 Ga.App. 731, 733(1)(a), 742 S.E.2d 758 (2013)

(only a preponderance of the evidence is required to prove defendant committed the prior act, which may be proven by circumstantial evidence).

Here, although the victim of the 2005 robbery was unable to identify Demps as one of the perpetrators, Demps was arrested shortly thereafter in possession of a gun and the victim's belongings after initially fleeing from...