Earl v. State, A94A1261

• Decision Date: 19 October 1994
• Docket Number: No. A94A1261,A94A1261
• Citation: 449 S.E.2d 361,214 Ga.App. 891
• Parties: EARL v. The STATE.
• Court: Georgia Court of Appeals

Page 361

449 S.E.2d 361

214 Ga.App. 891

EARL v. The STATE.

No. A94A1261.

Court of Appeals of Georgia.

Oct. 19, 1994.

Edwin J. Wilson, for appellant.

Thomas J. Charron, Dist. Atty., D. Victor Reynolds, Debra H. Bernes, Nancy I. Jordan, Asst. Dist. Attys., for appellee.

McMURRAY, Presiding Judge.

Defendant Earl appeals his conviction of two counts of the offense of armed robbery, five counts of the offense of aggravated assault, and one count of the offense of possession of a sawed-off shotgun. Held:

1. Defendant challenges the sufficiency of the evidence to authorize his conviction and maintains that no evidence was presented which corroborates the testimony of an accomplice concerning defendant's participation in the crimes of which he was convicted. Where an accomplice is the sole witness upon whose testimony the State relies, a felony conviction is not to be had unless the testimony of the accomplice is corroborated by some slight evidence from an extraneous source identifying the accused as a participant in the criminal act. Kesler v. State, 249 Ga. 462, 465(2), 291 S.E.2d 497; Morris v. State, 204 Ga.App. 437, 438(2), 419 S.E.2d 733; Williams v. State, 198 Ga.App. 725(1), 726, 402 S.E.2d 796.

All of the offenses arise from two incidents which occurred minutes apart during the early morning hours of August 23, 1992. The first incident occurred when four victims leaving a nightclub in Marietta were approached outside the club by three armed black males who threatened and ordered the victims to get down on the ground, and took the wallet of one victim. A short time later the second incident occurred in the City of Smyrna when a single victim walking home from a party was robbed at gunpoint and beaten by five black males who emerged from a passing car. Defendant was indicted along with four alleged accomplices. Two of the accomplices pled guilty prior to trial and one of these individuals testified for the State at trial. The accomplice stated that during the Marietta robbery, defendant and one other accomplice waited in the car, that the car was defendant's, and that after the Marietta robbery they went to Smyrna where the second robbery occurred. The accomplice's description of the events suggested that defendant was an active participant in the robberies. None of the victims was able to identify any of the perpetrators.

On the same day as the robberies, while being questioned on an unrelated charge, defendant volunteered that he had knowledge of both robberies in this case and told police where to find the gun used in the robberies. He also admitted to an investigator that he drove the car to the scene of the first robbery, stayed in the car during the robbery, and heard the discharge of the shotgun during the robbery. The victim of the second or Smyrna robbery provided a description of the car driven by the robbers which corresponded with defendant's car, in which defendant and a co-defendant were stopped by police later during the day of the robberies.

" 'On appeal of a criminal conviction, the appellant is no longer indulged with the presumption of innocence, for the jury has rendered its verdict; (this court does) not weigh the evidence or determine the witness' credibility but construe(s) the evidence to uphold the verdict. (Cit.)' Clark v. State, 197 Ga.App. 318, 320(1), 398 S.E.2d 377 (1990). 'In Georgia, the testimony of an accomplice used to convict the accused of a crime must be supported by independent corroborating evidence as to the identity and participation of the accused tending to connect him to the crime or leading to the inference that he is guilty. (Cit.) Slight evidence of a defendant's identity and participation from an extraneous source is all that is required to corroborate the accomplice's testimony and thus support the verdict. (Cit.) The necessary corroboration may be by circumstantial evidence. (Cit.)' Harris v. State, 180 Ga.App. 56, 57(1), 348 S.E.2d 476 (1986). Also, ' "(guilty) knowledge or scienter may be proved, like any other fact, by circumstantial evidence." ' Garrett v. State, 160 Ga.App. 877, 878(1), 288 S.E.2d 592 (1982). See also Cobb v. State, 125 Ga.App. 556(1), 188 S.E.2d 260 (1972). ' "While 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." ' (Cit.)" (Cits.)' Butler v. State, 194 Ga.App. 208, 209(2), 390 S.E.2d 278 (1990)."...