Jordan v. State

• Decision Date: 11 March 2013
• Docket Number: No. A12A2286.,A12A2286.
• Citation: 739 S.E.2d 743,320 Ga. App. 265
• Parties: JORDAN v. The STATE.
• Court: Georgia Court of Appeals

320 Ga.App. 265

739 S.E.2d 743

JORDAN

v.The STATE.

No. A12A2286.

Court of Appeals of Georgia.

March 11, 2013.

Joseph C. Timothy Lewis, Americus, for Appellant.

J. David Miller, Dist. Atty., Brian Allen McDaniel, Asst. Dist. Atty., for Appellee.

RAY, Judge.

Following a jury trial, Anthony Moses Jordan was found guilty of one count of burglary,¹ two counts of armed robbery,² and two counts of aggravated assault.³He was sentenced as a recidivist to 20 years to serve on the burglary count; to life without parole on the two armed robbery counts; and to 20 years to serve on the two aggravated assault counts.⁴Jordan appeals from the denial of his motion for a new trial, ⁵ contending that the evidence was insufficient to support his convictions, that his trial counsel was ineffective, and that the trial court erred in admitting certain evidence.For the reasons that follow, we affirm.

“On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence.”⁶Further, “[w]e neither resolve conflicts in the evidence nor assess witness credibility, but merely determine the legal sufficiency of the evidence.”⁷When an appellant challenges the sufficiency of the evidence to uphold his conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”⁸

So viewed, the evidence shows that on June 26, 2008, Patrick Johnson and Cynthia Lewis were asleep at Johnson's home when Lewis was awakened by a loud boom.Lewis saw three or four men wearing masks and pointing guns enter the house.Johnson awoke and grabbed one of the men by the arm, and the man's gun fired into the ceiling...The men commanded the couple to “give it up, money, jewelry, anything of value” as they began to ransack the house.Johnson and Lewis identified the intruders' race as black and testified that at least two of them had Caribbean or Jamaican accents, while a third spoke with a south Georgia accent.The men threatened to kill Johnson and Lewis.One man fired a bullet into the mattress next to Lewis' head and ordered her to go into the kitchen, telling her that she would be shot if she ran.She escaped and called 911.The intruders stole cash, clothing, and a cell phone, among other items.

The next day, Johnson found some of his clothing and a cell phone (which was not his) outside his back fence.No readable fingerprints were found on the phone.An officer prepared a search warrant so that he could download data from the phone.While doing so, he removed the back of the phone in an attempt to find the serial number.He found a piece of paper inside on which there was written an address, a Social Security number, a date of birth, and what appeared to be a credit card number.The Social Security number belonged to Demetris Drayton, who, when contacted by police, asked if the call had “anything to do with that robbery ... in Moultrie.”Drayton met with two police officers and told them that she and her boyfriend, Jordan, had argued over money and that he left the house about 1:00 a.m. on the date of the robbery.When he returned, he threw a wad of money in her face and told her that he had invaded a home in Moultrie.She gave the police boots and pants that she said Jordan wore on the night of the robbery.Drayton also said that she had given the phone to Jordan and that the cell number was his, but that he had told her he lost the phone the previous night.She confirmed that the birth date and credit card number found on the paper inside the phone were hers.She showed police her car and said that Jordan had taken it on the night in question, without permission, and returned it with “fresh damage.”She also told police that Jordan worked in the watermelon fields with some Haitians.Despite being so forthcoming with information, when police attempted to record her responses, she refused to answer their questions.

At trial, Drayton testified that she was pregnant with Jordan's child at the time in question, but only learned that he had a child with his wife when she called the wife to tell her that Jordan had been arrested.She denied asking the police if they were contacting her about a crime in Moultrie and disclaimed all knowledge of a crime.She also denied telling the police anything about Jordan's involvement in a robbery.She testified that she told police that Jordan had taken her car the day after the robbery occurred and that on the night of the robbery that her mother had driven the car to work.Her mother also testified that she drove the car to work the night of the robbery.Drayton further testified that Jordan told her he lost the phone she had given him, and she denied telling police that Jordan had any contact with anyone with a Caribbean or Haitian accent.

At trial, Jordan, who testified in his own defense, admitted to writing Drayton's information on the paper that was in the cell phone.However, he testified that he had sold the phone to another person and had lied to Drayton about losing it.He also testified that he worked in the watermelon fields with Jamaicans, to whom he often sold cheap cell phones like the one at issue here, at marked-up prices.

The police arrested Jordan at Drayton's home three months after the crimes occurred.Drayton testified that when the police came to her home, she lied and told them he was not there, because “I didn't want him to go to jail.”Jordan admitted that when police arrested him that he was hiding in Drayton's attic.

1.Jordan contends that the evidence presented by the State was insufficient to authorize his convictions, because the only direct evidence, Drayton's testimony, was impeached, and because the other evidence was circumstantial and did not exclude every reasonable hypothesis other than guilt.We disagree and affirm.

Questions about reasonableness are generally for the jury, and “where the jury is authorized to find that the evidence, although circumstantial, was sufficient to exclude every reasonable hypothesis other than guilt, an appellate court will not disturb the finding unless the verdict of guilty is [insupportable] as a matter of law.”⁹

While the determination of whether the circumstances are sufficient to exclude every reasonable hypothesis except that of defendant's guilt is usually made by the jury and while we must review the evidence in the light most favorable to the jury verdict, we must not be blinded by that verdict when a reasonable hypothesis of innocence appears from the evidence or lack thereof, and may declare such as a matter of law.¹⁰

(a) Burglary.Pursuant to former OCGA § 16–7–1(a), “[a] person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another.”

Here, although Drayton later changed her testimony, she told police that Jordan was absent from her home during the approximate hours of the robbery, that he returned home, threw money at her, and told her he had been part of a home invasion in Moultrie.She also told police that she had given Jordan the cell phone, and he admitted to placing the piece of paper with Drayton's personal information on it in the phone.The phone was then found, with items stolen from the victims' home, near the site of the crime.

While there was conflicting testimony about what Drayton told police and whether Jordan had sold the phone to someone else, on appeal, “[w]e do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.”¹¹

In Poole v. State,¹²a case analogous to the case at bar, our Supreme Court upheld a guilty verdict where a witness, who initially testified that the defendant offered to pay her to destroy evidence, later was impeached.In another case, this Court affirmed the defendant's conviction where the victim told police that her son hit her, then at trial testified that she fell and remembered nothing incriminating as to the defendant's behavior.¹³Further, where, as here, evidence regarding a defendant's identity is entirely circumstantial, “it need not exclude every conceivable inference or hypothesis—only those that are reasonable.”¹⁴“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.”¹⁵

The evidence is sufficient to sustain Jordan's conviction for burglary.

(b) Armed robbery and aggravated assault counts.OCGA § 16–8–41(a) provides: “A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon.”OCGA § 16–5–21(a)(2) provides, in pertinent part: “A person commits the offense of aggravated assault when he or she assaults ... [w]ith a deadly weapon ... which, when used offensively against a person, is likely to or actually does result in serious bodily injury.”

Here, it is clear from the victims' testimony that guns were used in the commission of these serious crimes.The physical evidence, including a bullet found by police and bullet holes in the ceiling and mattress, also show that the intruders used guns.As we found in Division 1(a), the presence of the cell phone, coupled with Drayton's testimony, was sufficient to place Jordan at the scene of the crime, and to establish him as a participant.Given Lewis' testimony that one of the intruders with a gun was a black male with a south Georgia accent, the jury was authorized to infer that Jordan was an armed participant in the crimes.¹⁶

2.Jordan argues that his trial counsel was ineffective in failing to challenge the legality of his...