Ham v. The State.Lester

• Decision Date: 07 September 2010
• Docket Number: No. A09A1967,A09A1968.,A09A1967
• Citation: 692 S.E.2d 828,303 Ga.App. 232
• Parties: HAMv.The STATE.Lesterv.The State.
• Court: Georgia Court of Appeals

303 Ga.App. 232

692 S.E.2d 828

HAM

v.The STATE.

Lester

v.The State.

Nos. A09A1967, A09A1968.

Court of Appeals of Georgia.

March 29, 2010.

Certiorari Denied Sept. 7, 2010.

COPYRIGHT MATERIAL OMITTED

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Gary W. Jones, Marietta, for appellant (case No. A09A1967).

Gina A. Smalley, for appellant (case No. A09A1968).

Patrick H. Head, Dist. Atty., John R. Edwards, Asst. Dist. Atty., for appellee.

PHIPPS, Judge.

Paul Ham III and Corey Lester were each convicted of armed robbery (two counts), kidnapping, burglary, aggravated assault and possession of a firearm during the commission of a felony (three counts). In Case No. A09A1967, Ham claims that the evidence was insufficient to support his convictions, that the trial court abused its discretion in refusing to remove certain jurors for cause, that the trial court erred in denying his motion to sever his trial from that of his co-defendant, and that the trial court erred in sentencing him. In Case No. A09A1968, Lester claims that the evidence was insufficient to support his convictions, that he received ineffective assistance from his trial counsel, and that the trial court erred in denying his motion to sever.

In both cases, we find that the evidence was insufficient to support the kidnapping conviction, but was sufficient to support the other convictions. Addressing Case No. A09A1967, we conclude that the trial court erred in failing to excuse a prospective juror for cause, and that Ham's convictions must therefore be reversed. Because the evidence was sufficient to support his convictions for armed robbery, aggravated assault, burglary and possession of a firearm during the commission of a felony, Ham can be retried on those charges. ¹ Addressing Case No. A09A1968, we conclude that the trial court did not err in denying Lester's motion to sever, and we find no merit in Lester's claim of ineffective assistance of trial counsel. Accordingly, we reverse Lester's kidnapping conviction and affirm the remaining convictions.

The evidence at trial showed that on the evening of July 13, 2007, Shannon Moore and his girlfriend Cheree Mollison were at their apartment with their children and two of Mollison's friends. Mollison and her friends were in a bedroom watching a movie, some of the children were in another bedroom, and Moore was in the living room with the youngest child, who was sleeping in a playpen.

Moore heard a knock at the door, and opened it to three men. One of the men pointed a gun at him. Two men came into the living room immediately, one of whom approached Moore with a gun and instructed him to get on the floor. Moore complied. Mollison heard a loud noise and went into the living room. When she saw Moore on the floor with a gun to his head, she screamed. She also saw one man by the door and another man with a gun. That man approached her and told her to be quiet, stop looking at him, move to a corner of the room and face the wall. Mollison complied.

The man holding Moore to the ground demanded to be shown “where it was.” Moore was not certain what he meant so he directed the men to a safe where he kept money. With a gun to the back of his head, the men grabbed Moore and took him from the living room to the bedroom where the safe was located. Moore gave the men the combination to the safe, where he had $400 in cash, coins in an undetermined amount and a microphone worth $350. One man held him while the other opened the safe. Moore testified that the man who went to the safe was dark-skinned, wore a black and red shirt and a black and red ball cap, and had his hair in dreadlocks. Moore saw that man take the items from the safe. He described the other man with a gun as brown-skinned and wearing a white t-shirt.

After Mollison screamed, one of her friends hid under the bed. When the men came into the bedroom looking for the safe, a man wearing a white shirt pushed Mollison's other friend down on the bed. That friend heard one man yelling, “where is it,” and saw him pushing Moore toward the closet while holding a gun. She described that man as wearing a red shirt and a bandana across a portion of his face, with his hair in dreadlocks.

After the items were taken from the safe, the men ran out the apartment door. Moore grabbed his gun from the bedroom and followed. He saw the man with the white shirt jump down the stairs and run across the parking lot toward a van. Moore shot at him, the man shot back, and Moore took cover.

Mollison followed Moore outside and saw a black van backed into a corner of the parking lot. She saw two men running down the steps toward the van, one man coming out of the van and another man, who was wearing a white t-shirt and had been shot, being helped into the van. Mollison testified that the men running across the parking lot were the same men who had been in her apartment. When Mollison tried to stop Moore from shooting, he pulled her into the apartment and she lost consciousness. Her friend came out from under the bed, saw Mollison on the floor, thought she may have been shot and called 911. No other shootings were reported in the county that night.

Mollison described one of the men as wearing a black shirt with a black bandana halfway across his face, under his nose. She described another man as being slender, dark-skinned and wearing a white t-shirt. According to Mollison, the third man was big, wore a red shirt and had “wild hair,” by which she meant he was growing dreadlocks. On cross-examination, Mollison testified that the “two gentlemen sitting on the defendant's side were those that entered my home.”

Before the shooting began, occupants of a downstairs apartment saw men wearing bandanas walk around the apartment building twice. One man then went upstairs and put his ear to the door of Moore and Mollison's apartment, waited for a minute, and then went back down the stairs. When the gunshots began, that man ran. One of the neighbors saw a gold van and a man running toward the van who was limping. Other men in the van pulled the limping man into the van and left.

After the shooting and before the police arrived, Moore panicked, hid his gun outside the apartment and left. He later returned and spoke to a detective about what had happened, showing him where he had hidden the gun.

A county detective responded to the call that shots had been fired at the apartment complex. He saw three shell casings from .380 caliber bullets, CVC brand, in the parking lot and four shell casings from .380 caliber bullets, Winchester brand, on the balcony area of the apartment where Moore and Mollison lived. In the adjacent parking lot, he found a gun he described as a “Colt pocket light” .380. A car in the parking lot belonging to one of Mollison's friends had been shot several times.

A second county detective went to Kennestone Hospital, which was about three miles from the apartment complex. He was informed that two gunshot victims, whom he identified at trial as Ham and Lester, had come into the emergency room.

The detective observed a gunshot wound to the back of Lester's leg. Lester told him that he had been a passenger in a silver minivan that had been driven to an apartment complex near Pat Mell Road, which was a major road near the apartment complex where the shooting occurred. Lester said that he went there to meet some women, and that when he exited the van, he was approached by five men running at him and shooting. He was shot as soon as he exited the van. In a statement given later that same night, Lester said that he had gone upstairs to an apartment in the complex, but had not gone inside. He stood outside and smoked a cigarette. As he was walking downstairs, he heard shots and hid behind a car. He was shot at this point. He fled to a gray minivan and got a ride to the hospital. The detective collected Lester's clothing from the hospital, which included a red t-shirt, black tank top, black glove and dark-colored bandana.

The second detective observed that Ham had a deep graze on his arm, and Ham told him that he had been shot in the back of his leg. Ham said that he went to the apartment complex in a blue minivan and that he stepped out of the van and waited for some period of time until some people came toward the van shooting, and he was shot. Ham did not know why he was at the apartment complex. The detective spoke to Ham again that same night, and he said that he had been at his grandmother's house prior to going to the apartment complex. The detective collected from Ham a white t-shirt, white tennis shoes, keys, a lighter and $10.50.

Case No. A09A1967

1. Ham claims that the evidence was insufficient to support his convictions.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an

appellant no longer enjoys the presumption of innocence. [We] determine[ ] whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and do[ ] not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [s]tate's case, we must uphold the jury's verdict.²

(a) Ham was convicted of kidnapping Moore. He claims that the evidence was insufficient to show the asportation element of the kidnapping charge under the standard set forth in Garza v. State.³

“A person commits the offense of kidnapping when such person abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will.” ⁴ To prove abduction or stealing away, the state must prove the element of asportation,⁵ which the Supreme Court of Georgia re-defined in Garza. Under the new definition, a finding of asportation requires an assessment of the following four factors:

(1) the duration of the movement; (2)

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