Hindman v. State

• Citation: 507 S.E.2d 862,234 Ga. App. 758
• Decision Date: 16 October 1998
• Docket Number: No. A98A1136-A98A1138.
• Parties: HINDMAN v. The STATE. FORTNER v. The STATE. BURNETT v. The STATE.
• Court: United States Court of Appeals (Georgia)

507 S.E.2d 862

234 Ga. App. 758

HINDMAN v. The STATE.

FORTNER v. The STATE.

BURNETT v. The STATE.

Nos. A98A1136-A98A1138.

Court of Appeals of Georgia.

October 16, 1998.

Michael A. Corbin, Dalton, for appellant (case no. A98A1136).

Mitchell & Mitchell, E. Neil Wester III, Gee G. Vaughn, Dalton, for appellant (case no. A98A1137).

Coppedge, Leman & Ward, James T. Ward, Dalton, for appellant (case no. A98A1138).

Kermit N. McManus, District Attorney, for appellee.

RUFFIN, Judge.

James Hindman, Donald Ray Burnett, and Marshall Eugene Fortner were each convicted of armed robbery, eight counts of aggravated assault, theft by taking, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. All three defendants received life sentences on the armed robbery convictions pursuant to OCGA § 17-10-7(b)(2), the recidivist statute. In Case No. A98A1136, Hindman appeals, asserting that (1) the evidence was insufficient to convict him on the armed robbery, theft by taking, aggravated assault, and possession of a firearm counts, (2) the trial court improperly admitted evidence of his prior criminal convictions, (3) a fatal variance existed between the armed robbery indictment and the evidence adduced at trial, and (4) OCGA § 17-10-7(b)(2) is unconstitutional. In Case No. A98A1138, Burnett raises the same issues as Hindman. In Case No. A98A1137, Fortner raises the same issues, except that he does not challenge the sufficiency of the evidence as to the theft by taking, armed robbery, and aggravated assault convictions. Fortner also does not challenge the conviction of possession of a firearm by a convicted felon on the grounds that there was no evidence he had a firearm. For reasons which follow, we affirm the convictions and sentences as to all three defendants.

"On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant... no longer enjoys a presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines 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) ]. Conflicts in the testimony of the witnesses, including the State's witnesses, [are] a matter of credibility 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 State's case, the jury's verdict will be upheld." (Punctuation omitted.) Howard v. State, 227 Ga.App. 5, 8(6)(a), 488 S.E.2d 489 (1997).

Viewed in this light, the evidence reveals that Pam Garland was working as the branch manager of the Cleveland Road Wachovia Bank in Whitfield County, Georgia, at 2:30 p.m. on April 24, 1996, when two masked men robbed the bank. Garland said one of the robbers was wearing camouflage coveralls and a hat in addition to the mask. This man came into her office, pointed a handgun at her, and ordered her to go to the lobby and sit on the floor. Garland testified that this robber pointed a gun at another Wachovia employee, Joey Parrott, placed his foot on Parrott's back, and threatened to kill him. She said this robber stayed in the lobby area of the bank building while the other robber jumped over a teller window.

Garland testified that the robber who jumped over the teller window was wearing coveralls and was armed with a gun. He had a dark-colored beard with some gray hair in it that showed underneath his mask. This robber demanded money from the bank's head teller, Carol Gribble, and placed approximately $29,825 in a bank bag with the bank's name and address imprinted on it. One of the $50 bills that was placed in the bag was a "bait bill," meaning that the bank had written down the bill's serial number for comparison in the event of a robbery. Garland testified that the robbers took the bank bag full of money and left through the bank's entrance. After the robbers left, Garland heard gunfire and saw that a man had been shot and was lying on the pavement outside the bank.

Carol Gribble testified that the two robbers had come into the bank yelling. She testified that the robber who had jumped over the teller window put his arm around her neck, demanded money, and placed a small handgun behind her head. She noted that the robbers took the $50 "bait bill," along with the bank bag which she identified in court. Joey Parrott testified that the robber who remained in the lobby was wearing a mask, coveralls and brown leather shoes, and that this robber pointed a gun at him.

Linda Mullinax, another bank employee, testified that she was at a teller station when the armed, masked men came into the bank. She said the man who jumped behind the teller window saw her lying on the ground, walked over to her and pointed his gun in her face. She noted that he was wearing what looked like a mechanic's suit.

Barbara Turner, a customer of the bank, arrived while the robbery was taking place. She testified that she parked next to a red pickup truck that had backed into a parking space. She said the driver of the truck wore a tan hat pulled down over his forehead. As she walked into the bank lobby, a man with a gun grabbed her purse and told her to get on the floor and not move or he would kill her.

Rachel Weeks, another bank customer, also arrived while the robbery was occurring. As she walked toward the bank, Weeks noticed a red truck parked in the parking lot adjacent to the bank. Weeks testified that the man in the truck tried to cover up his face. As she walked into the bank, a masked man pointed a gun at her and ordered her into the bank, where she lay on the floor.

Randall King, an enforcement officer with the Department of Transportation, arrived outside the bank to use the automatic teller machine just as the robbers were exiting the bank. He testified that one of the robbers was wearing a dark mask, dark shirt and dark pants. He also recalled that one of the men was carrying a small bag. He exchanged gunfire with the robbers and was shot in the right thigh.

Mark Polow was in the vicinity of the bank at the time it was robbed. While he was in his car, he heard gunshots and saw one man running out of the bank wearing a hat, a mask, and coveralls. The man was shooting at an officer. He then saw another man wearing coveralls and a mask come out of the bank shooting. Both men ran and got into a truck with a waiting driver. One of the men fired a shot at Polow. Polow gave police the truck's tag number, 19779.

Wilburn Dycus, a police officer with the Cohutta Police Department who had been dispatched to the scene, testified that he saw two men exit the bank and start shooting at King, the DOT enforcement officer. Dycus noted that one of the men was wearing camouflage coveralls, a mask, and a hat. This man lost the hat outside of the bank, and Dycus identified the hat at trial as the one the man was wearing.

Lieutenant Larry Bunch of the Whitfield County Sheriff's Department testified that soon after the robbery, he received a radio transmission to look out for an older model, burgundy pickup truck containing three men who had just committed a robbery. As he was driving, he noticed a truck matching the description carrying three men traveling behind him. Bunch pulled over and then gave chase to the truck. The men drove to the end of a dead-end road, at which time they jumped out of the truck and started running through a field. Bunch testified that he never lost sight of the truck while giving chase. As the men exited the truck, he noticed that one was wearing camouflage coveralls while the other two were wearing blue coveralls and hats. The men ran into some woods in the direction of a nearby lake. The man wearing camouflage coveralls got caught in some barbed wire, allowing Bunch to apprehend him. Bunch testified that, while he was struggling to subdue this man, the man dropped the bank bag. Bunch identified this man at trial as Fortner. Pam Garland identified the coveralls Fortner was wearing when he was apprehended as those worn by the robber who had pointed the gun at her and Joey Parrott. Bunch testified that, after he apprehended Fortner, the other two men continued to run.

Lieutenant Wayne Willard of the Whitfield County Sheriff's Department heard Bunch's radio transmissions that he was chasing the pickup truck and that the truck stopped at the dead-end street near the lake. Willard further heard Bunch state that two of the men were running toward the lake near where he was located. Willard went down to the lake and saw two men coming out of a wooded area. He yelled to them, but they jumped into the lake and began swimming away from him. Willard testified that, after firing a warning shot, he jumped into the lake and swam after them. On the other side of the lake, Willard apprehended one of the men, who had gray hair and a gray beard and was wearing coveralls. At trial, Willard identified Hindman as the man he apprehended at the lake. Willard testified that the other man was wearing a black t-shirt and blue jeans.

A Whitfield County deputy sheriff testified that he took custody of Hindman from Willard. This deputy said that Hindman was wearing blue coveralls, and that a Winchester Luger nine-millimeter bullet was discovered in his pocket. At trial, Pam Garland, the bank branch manager, was shown the blue coveralls Hindman was wearing when he was apprehended and identified them as the coveralls worn by the robber who had jumped over the teller window with a gun.

Danny Headrick, another officer with the Whitfield County Sheriff's Department, testified that as he was walking along the lake, he heard a man walking through the bushes in some mud and water. He apprehended this man, whom he identified in court as Burnett, and stated that Burnett was wearing blue jeans and a black t-shirt and...