Jones v. State

• Decision Date: 08 November 2004
• Docket Number: No. A04A2146.,A04A2146.
• Citation: 270 Ga. App. 368,606 S.E.2d 592
• Parties: JONES v. The STATE.
• Court: Georgia Court of Appeals

606 S.E.2d 592

270 Ga. App. 368

JONES v. The STATE.

No. A04A2146.

Court of Appeals of Georgia.

November 8, 2004.

Layne & Layne, Alan P. Layne, for appellant.

Timothy G. Vaughn, District Attorney, Karen J. Young, Russell P. Spivey, Assistant District Attorney, for appellee.

MILLER, Judge.

Convicted of armed robbery, Shawn Jones argues on appeal that the evidence was insufficient and that his trial counsel was ineffective. We find no error and therefore affirm.

Viewed in the light most favorable to the jury's verdict, the evidence shows that Shawn Jones and three other men drove to a home to buy marijuana. Jones kept a gun under the seat "for protection." The homeowner told the four men that he did not have any marijuana. Shortly afterward, the homeowner's son and son-in-law arrived. The son went into the bathroom while the homeowner and the son-in-law remained in the living room. Moments later, the four visitors returned. While one of the men, Davis, remained outside the other three — Jones, Shinholster, and Robert Jones — entered the house. Shinholster pulled Jones's gun on the two men in the living room and demanded money. Jones ordered the son-in-law to remain on the floor, and then told Shinholster to "go ahead and pop both of them and let's go." Shinholster took money from one victim's shirt and from another's billfold. When the son came out of the bathroom, Jones told his companions to "tear out," and all four men fled. Jones's three co-defendants pled guilty to armed robbery. At trial, Jones was found guilty of that and other charges. His motion for new trial was denied. On appeal, Jones argues that the evidence was insufficient to support the armed robbery conviction and that he was denied effective assistance of counsel.

1. Jones first argues that the evidence fails to establish the elements of the crime of armed robbery. See OCGA § 16-8-41(a) (elements including intent to commit theft, taking of property, and use of offensive weapon). We disagree.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. Williams v. State, 261 Ga.App. 793, 794(1), 584 S.E.2d 64 (2003). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Here, Jones admitted to knowing beforehand that "[s]ome shit was going down," to being present during the robbery, and to telling one of the victims to get on the floor. All three co-defendants placed Jones inside the trailer during the commission of the crime, and his car was driven to and from the scene. The jury had sufficient evidence for its guilty verdict. See OCGA § 16-2-20(a) (person concerned in commission of crime may be convicted of it); see also Howze v. State, 201 Ga.App. 96, 97, 410 S.E.2d 323 (1991) (a defendant involved in armed robbery may be properly convicted even when he does not possess firearm).

2. In his motion for new trial, Jones argued that he was denied effective assistance of counsel when his lawyer: (a) failed to request a charge on robbery; (b) failed to object to a witness's passing reference to having talked to Jones "down at the county," meaning at the county jail; and (c) admitted during closing argument that Jones might appear "to some people" to be a "dangerous," "unsightly," or "unseemly" person. Jones renews these arguments on appeal.

"To prove an ineffective assistance of counsel claim, [a] defendant must show that trial counsel performed deficiently and that the result of the trial would have been different but for the deficiency." Fargason v. State, 266 Ga. 463, 465(4), 467 S.E.2d 551 (1996), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

There is a strong presumption that a trial attorney's performance falls within a wide range of reasonable professional assistance. When trial counsel does not testify at the motion for new trial hearing, the defendant has an extremely difficult task to overcome the presumption.

(Footnotes omitted.) Anderson v. State, 274 Ga. 871, 873-74(4), 560 S.E.2d 659 (2002). Moreover, when the trial court has made a finding of fact in the course of determining that counsel's performance did not amount to ineffective assistance, we will not disturb that determination unless it is clearly erroneous. Smith v. State, 256 Ga. 483, 351 S.E.2d 641 (1986); Gibbs v. State, 213 Ga.App. 117, 118(1), 443 S.E.2d 708 (1994).

(a) Since Jones was actively involved in the armed robbery, and since there is nothing to suggest that the robbery was committed...