Fuller v. State

• Decision Date: 10 March 2022
• Docket Number: A21A1481
• Citation: 363 Ga.App. 217,871 S.E.2d 79
• Parties: FULLER v. The STATE.
• Court: Georgia Court of Appeals

363 Ga.App. 217

871 S.E.2d 79

FULLER

v.The STATE.

A21A1481

Court of Appeals of Georgia.

March 10, 2022

Robert Lawrence Persse, Statesboro, for Appellant.

Charles Keith Higgins, Benjamin E. Gephardt Gephardt, for Appellee.

Gobeil, Judge.

A jury found Henry Fuller guilty of multiple crimes related to an armed robbery committed at a Circle K convenience store in January 2016. He was indicted and tried alongside two co-conspirators, Jamario Hill and Robert Pabon. Fuller appeals from his judgment of conviction and the denial of his motion for new trial, asserting: (1) the evidence was insufficient to support the verdict, and (2) (a) the trial court committed plain error in cutting off Fuller's counsel from cross-examining co-conspirator Pabon, or (b) counsel was ineffective for failing to object to the trial court's ruling on this issue.

Viewed in the light most favorable to the jury's verdict,¹ the record shows that in the early morning hours of January 22, 2016, the victim was working as a clerk at a Circle K convenience store in Glynn County, Georgia. The victim stepped outside to smoke a cigarette and saw two black males approaching her. The men forced the victim back into the store with a gun to her back and demanded money from the safe. The victim was not able to access the safe, so the assailants took approximately $40 to $50 from the cash register and a carton of cigarettes. The men ordered the victim to strip, took her outside behind the store, instructed her to lie on the ground, and told her that if she moved, they would shoot her. They then ran away, got into a vehicle, and the car sped away "towards Habersham [Street]." The victim heard police sirens "immediately" thereafter, and she jumped up and ran back into the store. The victim testified that she could not see the men's faces, as they were covered by masks. The incident was recorded on Circle K surveillance cameras and played for the jury.

Sergeant Jason Dixon with the Glynn County Police Department was on patrol that morning on Habersham Street and noticed a silver sedan that was moving in an unusual manner. The sedan ran a red light, and Dixon activated his emergency lights and followed the vehicle. The vehicle sped away and eventually crashed into a tree. By the time Dixon reached the vehicle, there were no occupants inside. Dixon ran the plates on the vehicle, a silver Toyota Camry, which showed the car had been reported stolen. The car was towed back to the police station, where it was impounded, searched, and processed. Fingerprints matching Fuller, Hill, and Pabon, among others, were found. DNA material matching Fuller and Hill was also found inside the vehicle.

A cell phone was found inside the vehicle. After obtaining a warrant to search the phone, Detective Resden Talbert came to believe the phone belonged to "Robbie" Pabon. Text history from the phone included an outgoing text message stating "I need a lick real bad," "lick" referring to a robbery or theft. Talbert also followed up on a tip that some of Pabon's belongings would be found at a residence, and at that residence Talbert discovered and seized boots and clothes similar to those worn by the Circle K robbers.

Investigator David Moore responded to the Circle K after the robbery was reported. After receiving the information about the fingerprints found in the silver sedan, Moore went to Hill's residence to question him. The woman who owned the home was present, gave Moore permission to search the house, and gave Moore a cell phone belonging to Hill. After searching the phone, Moore found incriminating videos and photos of Pabon depicting him with a gun and wearing clothing similar to the Circle K robbers. Moore also pulled additional security video from the Circle K surveillance cameras, which showed two individuals matching the description of the robbers in the Circle K the day before the robbery, January 21, 2016. In the January 21 video, the faces of the individuals were visible.

Additionally, on January 20, two days before the robbery, another victim, C. A., reported her silver Toyota Camry as stolen. She testified that she did not know Pabon, Hill, or Fuller; they did not have any reason to be inside her car, and she had never authorized anyone to drive her vehicle. The next day, Marlon James, who salvages cars, received a call from a phone number later connected to Hill. When James returned the call, a man sought to sell James a "junk car[,]" specifically a 2015 or 2016 Toyota Camry. The man also sent James photos of the car. When the man stated that he did not have the car's title, James told him that he could not purchase the vehicle. The man on the phone eventually told James that "[t]he car was hot out of Jacksonville[,]" "hot" meaning stolen. The Toyota Camry connected to the Circle K robbery had a license plate matching the stolen vehicle, and Detective Moore later found photos on Hill's phone matching those sent to James.

Hill, Pabon, and Fuller were all arrested and indicted for the armed robbery, as well as conspiracy to commit armed robbery, aggravated assault with intent to rob, kidnapping, and false imprisonment, all related to the robbery of the Circle K. The three men also were indicted for theft by receiving stolen property related to the theft of the Toyota Camry. Fuller was indicted for possession of a weapon during the commission of a felony.²

The three men were to be tried jointly. After the State rested its case, Pabon decided to enter a guilty plea, agreeing to a sentence of 25 years, with 10 years to serve in confinement. While entering his plea, outside the presence of the jury, Pabon announced without prompting "I did want to state something for the record. Henry Fuller was not with me at the time." Pabon then stated his reluctance to testify, and his counsel stated that Pabon intended to exercise his right to remain silent.

Counsel for Hill called Pabon as a witness. Even though Pabon's counsel repeated that Pabon intended to remain silent, Pabon answered questions asked by Hill's counsel, replying that Hill was not with Pabon during the robbery and that Hill was not the getaway driver.

Counsel for Fuller then sought to question Pabon. Pabon was given a brief recess to consult with his attorney, and when he returned, Pabon's attorney announced that Pabon would assert his right to remain silent and answer no more questions. After some further discussion between the attorneys and the court, counsel for Fuller asked the trial court, "With that, Judge, I'm prohibited from continuing to question this witness?" The court responded: "I would think that would stop it." The court then instructed Pabon to leave the witness stand.

The case was submitted to the jury. The jury could not reach a unanimous verdict as to Hill, but was able to reach a unanimous verdict as to Fuller. The trial court directed the jury to continue to deliberate as to the charges against Hill, and after they were still unable to reach a unanimous verdict, the court declared a mistrial for Hill, and the jury submitted its verdict for Fuller, guilty on all counts. Fuller was sentenced as a recidivist to life plus five years. Fuller filed a motion for new trial, which was denied after a hearing. This appeal followed.

1. (a) On appeal, Fuller first contends that the evidence was insufficient "to show that Mr. Fuller committed any of the crimes alleged in this case." He argues that the evidence was solely circumstantial, and failed to exclude reasonable hypotheses of his innocence. We disagree.

"[W]hen a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence." Jones v. State , 318 Ga. App. 26, 28-29 (1), 733 S.E.2d 72 (2012). "[I]n evaluating the sufficiency of the evidence, we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt." Id. at 29 (1), 733 S.E.2d 72 (citation and punctuation omitted).

We agree with Fuller that the State's case was in large part, if not entirely, based on circumstantial evidence. Where the evidence against a defendant is merely circumstantial, "the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." OCGA § 24-14-6. However, circumstantial evidence can support a conviction, as

not every hypothesis is reasonable, and the evidence does not have to exclude every conceivable inference or hypothesis; it need rule out only those that are reasonable. The reasonableness of an alternative hypothesis raised by a defendant is a question principally for the jury, and when the jury is authorized to find that the evidence, though circumstantial, is sufficient to exclude every reasonable hypothesis save that of the accused's guilt, this Court will not disturb that finding unless it is insupportable as a matter of law.

Blackshear v. State , 309 Ga. 479, 483, 847 S.E.2d 317 (2020) (citation and punctuation omitted).

Here, we conclude that a rational juror could find Fuller guilty of the armed robbery and associated crimes. Fingerprint and DNA evidence placed Fuller and his co-defendants inside the stolen Toyota Camry. Specifically, Fuller's fingerprints were found on the exterior of the driver door, the gas cap cover, a water bottle found inside the vehicle, and the passenger door handle. Fuller's DNA was found on the gear shift and the steering wheel. Pabon's fingerprints were found on a passenger-side door and a CD recovered from the vehicle. Hill's fingerprints were also found on the water bottle alongside Fuller's, as well as driver-side and passenger-side doors and the CD. Hill's DNA was found on the gear shift and steering wheel as well.

Additionally, the owner of the vehicle testified that she did not know Fuller and...