Gordon v. State
| Decision Date | 22 May 2012 |
| Docket Number | No. A12A0547.,A12A0547. |
| Citation | 728 S.E.2d 720,12 FCDR 1743,316 Ga.App. 42 |
| Parties | GORDON v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Long Dai Vo, for Appellant.
Paul L. Howard Jr., Arthur Conley Walton, Joshua Daniel Morrison, for Appellee.
Following trial, a jury convicted John Gordon of one count each of aggravated assault, motor-vehicle hijacking, and possession of a firearm during the commission of a crime. Gordon appeals his convictions and the denial of his motion for new trial, challenging the sufficiency of the evidence and arguing that the trial court erred in its instructions to the jury on the hijacking and possession-of-a-firearm charges. For the reasons set forth infra, we affirm.
Viewed in the light most favorable to the jury's guilty verdict, 1the evidence shows that around 8:30 p.m. on february 26, 2005, James Willingham drove his SUV into the parking lot of a gas station and went into the station's convenience store to buy a soft drink. After making this purchase, Willingham left the store and walked back to his SUV, but just as he reached the driver's side door, a young man wearing a hooded sweatshirt approached, pointed a Glock handgun at Willingham's face, and ordered him to drop his car keys. Willingham eventually complied and ran back into the store while yelling for someone to call the police. The gunman then jumped into the driver's seat of the SUV and attempted to start the engine, but could not do so. Hearing that his SUV's engine would not start, Willingham ran back outside the store, at which point the gunman exited the SUV, fired two shots into the air to scare Willingham back into the store, and then ran through an alley toward the parking lot of a shopping center behind the gas station.
Nearly the entire incident was witnessed by an employee of a package store located in the shopping center behind the gas station. The package-store employee—who had just walked outside to go on a break—saw the gunman demand Willingham's keys and then run from the scene after failing to start the SUV's engine. Additionally, the employee saw that upon reaching the shopping center's parking lot, the gunman got into the front passenger seat of a white Ford Crown Victoria, which appeared to have been waiting for him. And although the employee did not get a good look at the driver, the vehicle drove away slowly enough that he was able to see its license tag number, which he then provided to the police upon their arrival on the scene.
Based on the tag number provided by the package-store employee, the police were able to locate the white Crown Victoria shortly after it left the scene, but the driver eluded apprehension at that time. Nevertheless, police officers determined that the vehicle was registered to John Gordon's mother. Shortly thereafter, police officers went to Gordon's mother's residence and met with Gordon, who also resided there. During that interview, Gordon admitted that he was the exclusive driver of the Crown Victoria, but he denied any involvement in the gas-station hijacking and claimed that he had been with his girlfriend on the night in question. However, when the police interviewed Gordon's girlfriend, she admitted that Gordon had only been at her apartment for part of the evening on which the incident occurred.
Not long after determining who owned the Crown Victoria involved in the hijacking, police officers also learned that the actual gunman may have been 13–year–old C.T., who was the cousin of Gordon's girlfriend. Consequently, police met with C.T. and his mother, and during the course of that interview, C.T. admitted that he was the person who pointed a gun at Willingham and demanded the keys to his SUV. Specifically, C.T. confessed that he and Gordon decided to hijack Willingham's SUV after seeing it near the gas station and noticing that it contained a custom television and DVD player. C.T. also informed the police officers that the handgun he used in the hijacking belonged to Gordon.
A day or so later, police officers obtained a warrant to arrest Gordon and to search his mother's home for any evidence connected to the hijacking. At the time the search warrantwas executed, Gordon was not home, but with his mother's full cooperation, police officers discovered a Glock handgun underneath the mattress of Gordon's bed. Based on the handgun's serial number, police officers determined that it belonged to a Union City police detective, who had reported it stolen approximately seven months earlier. And shortly after executing the search warrant, police officers spotted Gordon's vehicle near his girlfriend's apartment. Gordon attempted to flee, but officers eventually arrested him following a brief high-speed chase, which ended when Gordon lost control of his vehicle and crashed into the porch of a small residence adjacent to the road.
Gordon was thereafter indicted on one count each of aggravated assault, 2 motor-vehicle hijacking,3 theft by receiving of the stolen handgun,4 and possession of a firearm during the commission of a crime. 5 During Gordon's trial, Willingham and the package-store employee testified about the hijacking, and several of the police officers involved testified regarding their investigation of the crime. The State also called C.T. as a witness. And although C.T. testified that Gordon was not aware that he intended to hijack the SUV when Gordon dropped him off at the gas station and that he only learned what happened as they were leaving, C.T. admitted that he previously implicated Gordon in his statement to the police. To impeach C.T.'s testimony, the State introduced C.T.'s statement implicating Gordon in the crimes, and two of the investigating officers testified that C.T. had previously claimed Gordon was involved in the commission of the foregoing crimes.
At the conclusion of Gordon's trial, the jury found him guilty on the aggravated-assault, motor-vehicle-hijacking, and possession-of-a-firearm charges but not guilty on the theft-by-receiving charge. Thereafter, Gordon obtained new counsel and filed a motion for new trial, which the trial court denied subsequent to a hearing on the matter. This appeal follows.
1. In two separate enumerations of error, Gordon challenges the sufficiency of the evidence supporting his convictions. Specifically, Gordon argues that the evidence was insufficient to prove that C.T. actually obtained the SUV as required by the motor-vehicle-hijacking statute and that the evidence was insufficient to prove that Gordon was a party to the crime. We disagree.
At the outset, we note that when 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.6 And in 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.” 7 Thus, the jury's verdict will be upheld “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case....” 8 With these guiding principles in mind, we will now address Gordon's specific contentions.
(a) Obtaining a motor vehicle.OCGA § 16–5–44.1(b) provides that “[a] person commits the offense of hijacking a motor vehicle when such person while in possession of a firearm or weapon obtains a motor vehicle from the person or presence of another by force and violence or intimidation or attempts or conspires to do so.” 9 Gordon contends that the evidence was insufficient to support his conviction on the hijacking charge, arguing that the word “obtain” as it is used in the statute entails some movement of the subject vehicle and that, here, no such movement occurred because C.T. was unable to start the SUV's engine. We disagree.
While Georgia's hijacking statute does not define “obtain,” this Court has previously held that “[t]he concept of ‘obtaining’ a motor vehicle from its owner encompasses the notion of acquiring control thereof....” 10 And ordinarily,11 “obtain” means “to procure or gain, as the result of purpose and effort; hence, generally, to acquire, get.” 12 Therefore, applying the ordinary meaning of “obtain,” the offense of hijacking a motor vehicle is concluded when possession of the motor vehicle is acquired. 13 Furthermore, and belying Gordon's argument, the hijacking statute makes no mention whatsoever of movement or asportation of the vehicle being an element of the offense. As such, we are not persuaded by Gordon's contention that C.T.'s failure to move the SUV equates to a failure to obtain it. The General Assembly could have included language in the hijacking statute that proscribed not only obtaining, but also moving a motor vehicle once it has been obtained. Nevertheless, “it did not, and we discern that the absence of such language was a matter of considered choice.” 14
And here, the evidence shows that C.T. pointed a handgun at Willingham, demanded the keys to his SUV, entered the vehicle, and attempted to start its engine. Accordingly, C.T. obtained the vehicle within the meaning of the hijacking statute, and thus his actions were clearly sufficient to prove hijacking of a motor vehicle beyond a reasonable doubt.15
(b) Evidence that Gordon was a party to the crime. Gordon also contends that the evidence was insufficient to support his convictions in light of the fact that C.T. testified at trial that he was unaware of C.T.'s intent to hijack the SUV and did not learn that C.T. committed any crime until well after they left the gas station. Once again, we disagree.
Under OCGA § 16–2–20, “[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” 16 And a person is “concerned in the commission of a crime” if he intentionally aids...
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