Jenkins v. State, 61255

• Decision Date: 02 February 1981
• Docket Number: No. 61255,61255
• Citation: 157 Ga.App. 310,277 S.E.2d 304
• Parties: JENKINS v. The STATE.
• Court: Georgia Court of Appeals

Page 304

277 S.E.2d 304

157 Ga.App. 310

JENKINS v. The STATE.

No. 61255.

Court of Appeals of Georgia.

Feb. 2, 1981.

Certiorari Denied March 4, 1981.

Walter J. Lane, Jr., Macon, for appellant.

W. Donald Thompson, Dist. Atty., Charles H. Weston, Willis B. Sparks III, Asst. Dist. Attys., for appellee.

McMURRAY, Presiding Judge.

This appeal is from defendant's conviction of the offense of armed robbery. Defendant's motion for new trial was filed, amended and denied. Defendant appeals. Held :

1. Defendant contends that the verdict is contrary to the weight of the evidence and that his identity as the perpetrator of the armed robbery in question was not shown by evidence sufficient to satisfy the mind and conscience beyond a reasonable doubt. The state's evidence included two witnesses who positively identified defendant as the man who had robbed them at gunpoint. One of these witnesses had previously picked the defendant out of a photographic lineup while the other witness who failed to make an identification at the lineup testified that she recognized the defendant at the time of the lineup but failed to identify him because of fear arising from the fact that the lineup was conducted in a room where those in the lineup could see and hear the witnesses and that she lived alone. Another witness, the store manager, was unable to make an identification, and testified, "I saw his face, yes. But as I say, it was more or less a profile," that is, just from the side.

The defendant through his testimony and testimony of another witness presented an alibi defense. Defendant also called as a witness a fourth store employee who testified that she could not positively identify the defendant as the robber. However, on cross examination this store employee conceded that she had told prosecuting counsel that she was about as positive of the defendant being the robber as she could be of anything.

The resolution of any conflict in the evidence is for the jury. Although all of the state's witnesses present at the time of the armed robbery were not able to identify the defendant this does not amount to a conflict in the state's evidence as the defendant asserts. It was for the jury to determine whether to accept the testimony of those state's witnesses who testified that they were able to positively identify the defendant.

Upon a careful review of the trial transcript and record we find, and so hold, that a rational trier of fact (the jury in the case sub judice) was authorized by the evidence presented to conclude and find beyond a reasonable doubt that the defendant was guilty of armed robbery. See Driggers v. State, 244 Ga. 160, 161(1), 259 S.E.2d 133; Moses v. State, 245 Ga. 180, 181(1), 263 S.E.2d 916; Sanders v. State, 246 Ga. 42(1), 268 S.E.2d 628.

2. In charging the jury the trial court gave a complete and proper charge as to the offense of armed robbery and also charged as to the lesser included offense of robbery by intimidation. The jury after being charged retired and after consideration returned a verdict in improper form of "guilty of armed robbery with intimidation." (Emphasis supplied.) The trial court then addressed the foreman of the jury and restated the three forms of verdict given in the charge. The trial court then began a sentence stating, "Of course, this does not " at which point the foreman interrupted and injected, "Well, it was guilty of armed robbery, Judge. We thought that that's what you said." The jury was then directed to return to the jury room and write the verdict in proper form, which they did, returning a verdict of guilty of armed robbery. The jury was then polled, each member of the jury affirming the verdict was the verdict of each.

At that point in time the defense counsel objected to the form of the verdict, taking the position that the trial court should have reinstructed the jury on robbery by intimidation and that the jury should have reconsidered the verdict as apparently there was some question as to whether they wanted to find "robbery by intimidation" or "armed robbery." After some colloquy between the trial court and counsel, the trial court recharged the jury as to the elements of the offenses of armed robbery and robbery by intimidation, also charging the jury as to those circumstances under which they should return a verdict of not guilty.

The recharge of the trial court...