Loumakis v. State

• Citation: 346 S.E.2d 373,179 Ga.App. 294
• Decision Date: 22 May 1986
• Docket Number: No. 71714,71714
• Parties: LOUMAKIS v. The STATE.
• Court: Georgia Court of Appeals

Page 373

346 S.E.2d 373

179 Ga.App. 294

LOUMAKIS v. The STATE.

No. 71714.

Court of Appeals of Georgia.

May 22, 1986.

Rehearing Denied June 6, 1986.

Guy E. Davis, Jr., Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Benjamin H. Oehlert III, and Asst. Dist. Attys., for appellee.

McMURRAY, Presiding Judge.

The defendant was indicted for armed robbery, aggravated assault and attempt to commit armed robbery and was tried before a jury in the Fulton County, Georgia Superior Court beginning on September 24, 1985. The evidence adduced at trial showed that on July 22, 1985, the defendant was working as a part-time security guard at the Atlanta Fulton County Stadium. ¹ That evening the defendant was assigned to collect money which was located at various concession stands throughout the stadium and bring the money to a central counting room, which was guarded by another security guard, Officer N.J. Leslie. ² Later that evening, the defendant announced that he had to leave early. However, instead of going home, the defendant changed out of his police uniform and dressed himself in street clothing. (The defendant hid his police uniform in a storage room at the stadium which was located approximately 75 to 100 feet from the counting room.) The defendant put on a motorcycle helmet, which concealed his face, armed himself with a pistol and went to the outer chamber of the counting room where Officer Leslie was stationed. Officer Leslie testified, describing the events which transpired as follows:

"[Officer Leslie]. Well, I was talking on the phone to another police officer at the particular time. The door just sprang open and there was an individual with a gun pointed directly toward me. All I could see was a helmet, a motorcycle helmet. The individual had the gun pointed directly at me, motioned for me to lie down--hang the phone up. At this time I didn't hang the phone up because I was talking to another police officer. I laid the phone down hoping that he would say something. From that point the individual motioned for me to raise my hands above my head. I raised my hands. [Assistant District Attorney]. How far was this individual from you when he came through the door and pointed the gun at you? A. I would say approximately ten feet or less ... Q. Then what? A. The individual kept the gun pointed at me, walked around to the rear of me, put the gun to the back of my head and disarmed me by reaching across and taking my police revolver out of my holster.... The subject moved a little bit to the left of me where I could see the gun pointed and motioned for me to lie down on the floor ... I got on my knees. The individual reached for my handcuffs. He then grabbed one part of the handcuff and placed it upon my wrist. At this time I started shaking my wrists because I felt at this point I was going to die ... Q. Did you decide to take any action as a result of the way you felt at that point? A. Yes. I knew that if I did not move at that particular time I was going to be shot in the back of my head. Q. So what did you do? A. I used a little police training that they had taught us. I jumped up, grabbed the right wrist, trying to clear the pistol. At this time a shot rang out and I knew I was shot in the left thigh ... I [thought] that this is it, ... either [I was] going to die fighting or [I was] just going to die lying here, so I hit the [defendant's] helmet with my fists, knocking both pistols out of the individual's hands.... At that point a scuffle began between the individual and myself. I felt at this time, seeing how there was no weapons involved, it was man against man and the struggle ensued and during the course of the struggle I reached across and saw my pistol lying on the floor and I grabbed my pistol and I started to strike the individual in the head with my pistol over and over again until I felt like I had regained control of the situation.... [Next] I had the subject to the point that I could possibly get on top and it worked. I had him dazed and I managed some way--all the specific details of the fight I can't be specific about--I managed to keep clubbing him in the back of the head with the pistol and I knew at one point that I had regained control of the situation and the helmet came off and I clubbed him once again and the subject kept trying to get up and at this point I tried to put him down again and all he could say was, 'You got me, man. You got me.' ... Q. What did you do after you struck this person in the head after the helmet came off? A. The individual kept trying to get up. At this time I felt like--I didn't know what I was going to have to do in order to maintain the situation, so I reached down and--the wrestlers refer to it as a full Nelson--I reached down and grabbed the individual and put my arms behind him and pinned his head down in this motion, keeping him like this and was struggling with him and I had him over the sink. At this time apparently someone had called the police--another officer, an Officer Blackwelder, came through the door ... [and] got him [the defendant] at that point because I was dropping. I was completely exhausted. Q. What happened to you then? A. I just dropped on the floor. Q. Did the other officers arrive? A. Yes. There were several officers on the scene at this particular time."

From this and other evidence adduced at trial, the jury found the defendant guilty but mentally ill on all counts. The trial court denied the defendant's motion for new trial and this appeal followed. Held:

1. In his first enumeration of error the defendant contends that there was not sufficient evidence to support his conviction for armed robbery because the State failed to prove that he had the intent to commit theft, an essential element of the crime. See OCGA § 16-8-41. This argument is without merit. " 'It is not necessary for the state to show that appellant expressed an intent to rob 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. In seeking the motives of human conduct, inferences and deductions may properly be considered where they flow naturally from the facts proved. (Cit.)' Fears v. State, 152 Ga.App. 817(2) (264 SE2d 284)." Chitwood v. State, 170 Ga.App. 599, 600(2), 317 S.E.2d 589. In the case sub judice, the evidence showing that the defendant relieved Officer Leslie of his gun and handcuffs was sufficient to convince the jury, beyond a reasonable doubt, that the defendant intended to commit theft. Chitwood v. State, 170 Ga.App. 599, 600(2), 317 S.E.2d 589, supra.

2. In his second enumeration of error the defendant contends that the trial court erred in allowing the State to introduce evidence showing that the weapon used by the defendant was a gun seized during a 1973 drug investigation in which the defendant was one of the investigating police officers.

The defendant argues that this evidence was not relevant to any issue at trial and was introduced solely to prejudice the jury by placing the defendant's character in issue. In considering whether evidence of a prior criminal action is admissible the Supreme Court of Georgia in Sport v. State, 253 Ga. 689(1), 324 S.E.2d 184, held "that evidence of prior criminal actions are admissible if relevant to the issues in the present case. The state must show, however that the defendant was in fact the perpetrator of the prior action and that sufficient similarity exists between the prior action and the offense charged. Walraven v. State, 250 Ga. 401 (297 SE2d 278) (1982). Once this foundation is laid, evidence of prior crimes is admissible to show motive, intent, plan, identity, bent of mind or course of conduct." In the case sub judice the State argues that the evidence of the prior crime was introduced to prove intent by showing the defendant's advanced preparation to commit the crimes charged. We cannot accept this argument. To say that the defendant's illegal appropriation of a gun eleven years earlier was done in contemplation of the crimes charged strains the realms of any reasonable person's imagination. We have reviewed the facts and find no logical connection between proof of the independent crime and proof of the crimes charged. However, we find admission of this evidence to be harmless, as evidence of the defendant's guilt was overwhelming. "It is highly probable that the error did not contribute to the jury verdict. Stone v. State, 167 Ga.App. 759 (307 SE2d 543) (1983)." Hudson v. State, 175 Ga.App. 878, 880(2), 880, 334 S.E.2d 735.

3. The defendant next contends that the trial court erred in failing to direct a verdict because the State failed to prove an essential element of the offense charged in Count 2 of the indictment. Count 2 of the indictment charged the defendant with aggravated assault upon "N.J. Leslie, a peace officer employed by the City of Atlanta Bureau of Police Services as a police officer, who was at the time of said assault engaged in the performance of his official duties as such peace officer." (Emphasis supplied.) The defendant argues that the State failed to prove that Officer Leslie was engaged in performing his official duties while "moonlighting" as a security guard. This argument is without merit.

Although Officer Leslie was discharging the duties of his private employment on the night in question, he had an "official duty" to take action when the defendant breached the peace. Duncan v. State, 163 Ga.App. 148(1), 294 S.E.2d 365. Consequently, the trial court did not err in failing to direct a verdict in favor of the defendant. The State proved every element of the crime charged in Count 2 of the indictment.

4. Next, the defendant contends that his conviction for aggravated assault merged with his conviction for armed robbery....