Jernigan v. State
| Decision Date | 06 October 2020 |
| Docket Number | A20A0924 |
| Citation | 357 Ga.App. 415,848 S.E.2d 707 |
| Court | Georgia Court of Appeals |
| Parties | JERNIGAN v. The STATE. |
Stephen Randall Scarborough, Atlanta, Sarah Bellacicco Zimbardi, for Appellant.
Paul L. Howard Jr., Atlanta, Marc A. Mallon, for Appellee.
Anthony Jernigan appeals his convictions for armed robbery, aggravated assault with a deadly weapon, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon, arguing that (1) the evidence is insufficient to support his convictions; (2) the trial court erred by denying his motion to exclude a prior conviction from evidence; (3) the trial court erred in denying his motion to exclude two photographs that were improper character evidence; and (4) his trial counsel was ineffective for failing to subpoena a witness and adequately investigate the case. For the reasons set forth infra , we affirm.
Viewed in the light most favorable to the jury's verdict,1 the record shows that Hee Sung Kim owns a Metro PCS Store, which is a franchise pre-paid cell phone store in Atlanta. Kim's store only accepts debit cards and cash, and normally, Kim brings the cash home each evening to deposit in the bank the next morning. On September 4, 2012, Kim left work around 7:00 p.m. and drove home from Atlanta to Johns Creek. When Kim was almost home, he took a left turn through a yellow light and the car behind him followed "real fast." Kim thought this was strange behavior because if any police officers had been around, the person behind him would have been ticketed. Kim then proceeded into his subdivision, eventually turned into his driveway, and exited his car carrying his "lunch box."2
Before entering his house, Kim heard someone yelling; and when he turned around, he saw two men running toward him. When the men approached, one pointed a handgun at Kim and the other grabbed his lunch box, which contained approximately $3,000 in cash; his checkbook; and his wallet. After robbing Kim, the two men ran back toward their car, which was parked nearby, and entered it. Kim then called 911 as he walked toward the suspects’ car.
On the evening of the robbery, Jennifer Braynard, Kim's neighbor, noticed a suspicious looking car outside her home that was parked halfway in a driveway and halfway in the street. Braynard saw two men—who appeared to be in a "big hurry"—run to the car, get inside, and begin driving toward the exit of the neighborhood. Around that time, Braynard's husband, Scott, arrived home, and, concerned about the situation, left to follow the car in an effort to record its license-plate number. And as Scott turned into the street, he discovered the car, which the police later learned had run out of gas and "stopped dead in the road." Scott observed two men "sprinting" down the road away from the car; but at some point, the men stopped and returned to the vehicle. One of the men opened the driver's side door, retrieved something from the car, and threw it to the other man. The men also took something out of the trunk that looked like a bag or clothes before fleeing the neighborhood on foot.
Tyler Seymour—a patrol officer with the Johns Creek Police Department—responded to Kim's 911 call. When he arrived, Seymour pulled behind the suspects’ car, which was still parked on the street, and talked to several witnesses—including Kim and the Braynards. And through the passenger-side window, Seymour observed a multi-colored bag in the front seat, which Kim confirmed was his lunch box. Tanesha Taylor—a crime-scene investigator and evidence technician with the Johns Creek Police Department—also responded to the scene. Taylor retrieved several items from the car, including a CD, a red LG cell phone, Kim's lunch box (with the money still inside), two hats, a piece of mail addressed to Jernigan, a wallet containing a driver's license belonging to Michael Hampton, and documents showing that the car was registered to Tanecia Harrell. Later, in executing a search warrant for the car, Detective Robert Hall also discovered a shoe box containing letters addressed to and from Jernigan, as well as "some paperwork of his." Kim's assailants were not apprehended by the responding officers.
During the investigation that ensued, Taylor sent several of the items found in the suspects’ car to the Georgia Bureau of Investigation to be tested for fingerprints. Hampton's fingerprints were found on, inter alia , a DVD and CD retrieved from the car, as well as on the front-passenger side door. Jernigan's fingerprints were found on a certified-mail receipt, an envelope addressed to him, and another item identified as "7F[.]" Item 7F's label was only partially legible and described it as "rear something that starts with the letter D and door."
According to Harrell (Jernigan's ex-girlfriend and the registered owner of the car abandoned by the suspects), Jernigan was the primary driver of the car, and he drove it "quite often." Harrell believed that Jernigan's brother may have also driven the car, but she was unaware of anyone else who did so. Regardless, to Harrell's knowledge, Jernigan was the last person who had the car before it was found at the scene of the robbery. Three defense witnesses, including Jernigan's brother, testified that they had either driven the car or knew people other than Jernigan who did so, but none of them had ever been to Johns Creek.
Following the investigation into the incident, Jernigan and Hampton were charged, via the same indictment, with armed robbery, aggravated assault with a deadly weapon, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. Following a joint jury trial, Jernigan was convicted of all charged offenses, and Hampton was acquitted on all counts. Jernigan then filed a motion for a new trial, but the motion was denied following a hearing. This appeal follows.
1. Jernigan first argues that the evidence was insufficient to support his convictions. We disagree.
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."3 In evaluating the sufficiency of the evidence to support a conviction, we do not weigh the evidence or determine witness credibility but only resolve whether "a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt."4 Accordingly, the jury's verdict will be upheld so long as "there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case."5 With these guiding principles in mind, we turn to Jernigan's specific challenge to the sufficiency of the evidence to support his convictions.
Jernigan argues that the evidence was insufficient to identify him as one of the perpetrators or even show he was present at the scene. And it is true, as the State concedes, that the evidence tying Jernigan to Kim's robbery is entirely circumstantial—as no witness identified him as being one of the assailants and he was not apprehended by police anywhere near the scene of the robbery.6 Nevertheless, circumstantial evidence of identity may be sufficient to "enable a rational trier of fact to find a defendant guilty beyond a reasonable doubt."7 But in order to warrant a conviction based solely upon circumstantial evidence, the proven facts "must be consistent with the hypothesis of guilt and must exclude every reasonable theory other than the guilt of the accused."8 And when the evidence meets this test, "circumstantial evidence is as probative as direct evidence ...."9 It is, of course, for the jury to determine "whether an alternative hypothesis is reasonable, and [when] a jury finds that the circumstantial evidence excluded every reasonable hypothesis save that of guilt, we will not disturb that finding unless it is insupportable as a matter of law."10 So, when evidence regarding a defendant's identity is "entirely circumstantial, it need not exclude every conceivable inference or hypothesis—only those that are reasonable."11 Thus, to set aside the conviction it is "not sufficient that the circumstantial evidence show that the act might by bare possibility have been done by somebody else."12
In this case, while no witness identified Jernigan as one of Kim's assailants, he was the primary driver of the car that the two suspects used in the commission of the crime; Harrell—Jernigan's ex-girlfriend and owner of the car—testified that Jernigan was the last person in possession of the car; Jernigan's fingerprints were found on items in the car; and at least one picture of Jernigan was found on a cell phone that was discovered in the car. Harrell also testified that she was unaware of anyone other than Jernigan who drove her car. Furthermore, as discussed infra , the jury also heard evidence that Jernigan previously committed a similar robbery after following the victim home. And while three witnesses testified that they either drove Harrell's car or knew other unidentified people who did so, they all testified that they had never been to Johns Creek. Suffice it to say, evidence that, at some point, someone other than Jernigan may have driven Harrell's car, without more, raises only a bare suspicion that someone else was driving Harrell's car in Johns Creek on the night of the robbery.13 Under such circumstances, although the State's case certainly could have been stronger, we cannot say there was insufficient circumstantial evidence to support the jury's verdict that Jernigan was one of Kim's assailants.14
2. Jernigan next argues that the trial court erred in denying his motion to exclude evidence of his prior armed-robbery conviction because it was improper character evidence under OCGA § 24-4-404 (b). Again, we disagree.
As to Jernigan's prior conviction, Samuel Danaquah testified that on June...
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Benton v. State
...Bradshaw , 296 Ga. at 656 (3), 769 S.E.2d 892 ; accord Morris , 340 Ga. App. at 306 (4), 797 S.E.2d 207.40 Jernigan v. State , 357 Ga. App. 415, 420-21 (2), 848 S.E.2d 707 (2020) (punctuation omitted).41 See Bradshaw , 296 Ga. at 657 (3), 769 S.E.2d 892 (punctuation omitted).42 Id. ; see Un......
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Benton v. State
...(same).39 Bradshaw , 296 Ga. at 656 (3), 769 S.E.2d 892 ; accord Morris , 340 Ga. App. at 306 (4), 797 S.E.2d 207.40 Jernigan v. State , 357 Ga. App. 415, 420-21 (2), 848 S.E.2d 707 (2020) (punctuation omitted).41 See Bradshaw , 296 Ga. at 657 (3), 769 S.E.2d 892 (punctuation omitted).42 Id......
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...opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident"). See Jernigan v. State , 357 Ga. App. 415, 419-426 (2), 848 S.E.2d 707 (2020) (trial court did not err in admitting evidence of defendant's conviction for a 2002 armed robbery conviction as othe......
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...charged offense, and the temporal remoteness of the other act." (Citations and punctuation omitted.) Jernigan v. State , 357 Ga. App. 415, 422-423 (2) (a) (ii), 848 S.E.2d 707 (2020). "[I]n reviewing issues under Rule 403, we look at the evidence in a light most favorable to its admission, ......