Johnson v. State

• Decision Date: 02 November 2020
• Docket Number: A20A1141
• Citation: 851 S.E.2d 175,357 Ga.App. 565
• Parties: JOHNSON v. The STATE.
• Court: Georgia Court of Appeals

357 Ga.App. 565

851 S.E.2d 175

JOHNSON

v.The STATE.

A20A1141

Court of Appeals of Georgia.

November 2, 2020

William Allen Adams Jr., San Diego, for Appellant.

Marie G. Broder, District Attorney, B. Ashton Fallin, Elizabeth A. Baker, Assistant District Attorneys, for Appellee.

Brown, Judge.

Lajayvayon Johnson appeals from his convictions of home invasion in the first degree, aggravated assault, possession of a firearm during the commission of a felony, possession of a handgun by a person under the age of 18, possession of marijuana more than an ounce, possession of marijuana with intent to distribute, criminal trespass, theft by receiving stolen property, and theft by taking.¹ Johnson contends that insufficient evidence supports his convictions of home invasion and theft by receiving and that the trial court erred by failing to grant a mistrial or give a curative instruction after the State made a misstatement of law during closing argument. For the reasons explained below, we reverse Johnson's conviction for theft by receiving stolen property and affirm his remaining convictions.

On appeal from a criminal conviction, the standard for reviewing the sufficiency of the evidence

is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury's assessment of the weight and credibility of the evidence.

(Citations and punctuation omitted.) Hayes v. State , 292 Ga. 506, 739 S.E.2d 313 (2013). So viewed, the record shows that the victim testified that she awoke in her home to the sound of glass breaking, jumped out of bed, went to the bathroom next to her bedroom, and called her mother. She called 911 after being instructed to do so by her mother. While she was on the phone with the emergency dispatcher, she heard someone say, "you need to check all of the doors, make sure nobody's in here." She backed away from the locked bathroom door "[a]nd somebody grabbed the door. [She did not] know who grabbed for the door ... and [she] heard a voice say okay, you need to kick it open. And then that's when the door came down...." The victim saw two men, one of whom was holding a gun pointed at her chest and whose last name she believed was "Zellner." When she did not answer their question of who was on the phone, the two men ran away, leaving through the window they had already broken. The victim noticed that the man who did not have the gun had a book bag. After the men left in the direction of the woods near her home, she discovered that an iPhone and watch were missing from her bedroom.

A police investigator, who was located two to three miles away from the victim's subdivision, responded when he heard a radio dispatch about the home invasion. Based upon the dispatch stating that several suspects had fled into the woods behind the property, the investigator and his partner headed to the unfinished portion of the subdivision that overlooks a wooded area. He saw three black men walking briskly through the woods, the tallest of whom was wearing a "light colored book bag." Because the men matched the description provided in the dispatch, he radioed other officers to advise the men's direction of travel. As other officers came within 50-75 yards of the men, "they either became aware of the officers or aware of [the investigator on the overlook] and started running in the same direction that they were walking."

An officer in the woods testified that he saw the three suspects — one with a book bag — and "gave loud verbal commands, police, for them to stop. At which time they abandoned the book bag and began fleeing on foot." Through the use of a canine, the police apprehended two of the suspects, Johnson and Dyquavious Zellner. The third suspect, Kendrell Joseph, came forward after he learned the police were looking for him. A search of the book bag revealed the watch and iPhone taken from the victim's home, as well as a Glock .9mm, marijuana, plastic bags, a scale, and additional cell phones. The owner of the Glock .9mm found in the book bag testified that the gun was stolen from his truck two months before the home invasion. The truck was located in the same city as the location of the home invasion.

Following his arrest, Johnson told a police officer that he planned to "hit" the house for guns with Zellner and Joseph. Johnson stated that they took a gun with them in case they ran into anybody in the house and needed to rob those present at gunpoint.

Joseph testified at Johnson's trial that the three men planned the home invasion in order to steal guns from the victim's house to either "sell" or "keep." When they arrived at the home, Zellner knocked on the front door and determined that "everything was good." Joseph explained that Zellner knocked on the door to determine if anyone was home because they did not want to confront anyone in the house; their plan was to do it when no one was home, and they did not intend to go inside and harm someone. Johnson broke a window in the home and entered first. When Johnson entered the home, he was carrying a firearm, which he later gave to Zellner with instructions to check the rooms.

1. Johnson contends that insufficient evidence supports his conviction for home invasion in the first degree because the State failed to present evidence showing that he entered the home with the intent to commit a forcible felony. He asserts that the evidence shows only that he intended to enter the home with the intent to commit a theft of the guns rather than the aggravated assault charged in the indictment. We disagree.

The State charged Johnson with committing home invasion for entering the home occupied by the victim without authority and with the intent to commit aggravated assault while in possession of a handgun.

The plain and unambiguous language of OCGA § 16-7-5 (b) makes clear that to commit the crime of home invasion in the first degree, a perpetrator must: (1) make an unauthorized entry into a legally occupied dwelling house; (2) do so with the intent to commit a forcible felony therein; and (3) do so while in possession of a deadly weapon or other instrument capable of causing serious bodily injury.

(Footnote omitted.) Mahone v. State , 348 Ga. App. 491, 494 (2), 823 S.E.2d 813 (2019). Aggravated assault is a forcible felony. See Reyes v. State , 250 Ga. App. 769, 770, 552 S.E.2d 918 (2001). With regard to Johnson's intent when he entered the home, "[i]t is not necessary for the [S]tate to show that [Johnson] expressed an intent to [commit an aggravated assault] in so many words, or declared a purpose to carry the intent into effect, for the jury to arrive at the conclusion he so intended. The intention may be gathered from the circumstances of the case as proved." (Citation and punctuation omitted.) Rucker v. State , 177 Ga. App. 779, 781 (2), 341 S.E.2d 228 (1986). In this case, Johnson's admission that he and the other men took a gun with them in case they ran into anybody in the house provides sufficient evidence of his intent to commit an aggravated assault at the time he entered the victim's home.

2. Johnson asserts that the State presented insufficient evidence showing that he knew that the firearm found in the book bag was stolen. We agree.

Under OCGA § 16-8-7 (a), "[a] person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen ...." In this case, the State charged Johnson with receiving stolen property that he knew or should have known was stolen. Thus, proof that Johnson knew or should have known that the firearm at issue was stolen at the time he received it was an essential element of the offense. See Daughtie v. State , 297 Ga. 261, 262 (2), 773 S.E.2d 263 (2015). "Proof of possession, alone, of recently stolen property is not sufficient to establish the essential element of the offense of theft by receiving stolen property that the possessor knew or should have known that the property was stolen." Wells v. State , 268 Ga. App. 62 (1), 601 S.E.2d 433 (2004). However, knowledge that goods are stolen "may be inferred where the circumstances would excite suspicion in the minds of ordinarily prudent persons." (Citation and punctuation omitted.) Thomas v. State , 270 Ga. App. 181, 182 (1) (b), 606 S.E.2d 275 (2004).

The circumstances, the time, the secrecy, all the transactions before, at the time and afterwards, may be brought to bear upon what was the knowledge of the receiver; and if from all these the jury can conclude that the receiver did have good reason, as a reasonable person, to believe or suspect that the goods were stolen, they may well conclude, if he did not inquire and investigate before he received them, that he had knowledge, such as the law will charge him with, of the character of the goods and of the person from whom he received, as one who had stolen them.

(Citation and punctuation omitted.) Birdsong v. State , 120 Ga. 850, 853 (3), 48 S.E. 329 (1904), disapproved on other grounds, Selvidge v. State , 252 Ga. 243, 244-245, 313 S.E.2d 84 (1984).

The State asserts that it produced sufficient evidence to...