Moses v. State, No. A03A2118

• Decision Date: 16 January 2004
• Docket Number: No. A03A2118, No. A03A2127.
• Citation: 593 S.E.2d 372,265 Ga. App. 203
• Parties: MOSES v. The STATE. Knott v. The State.
• Court: Georgia Court of Appeals

593 S.E.2d 372

265 Ga. App. 203

MOSES v. The STATE.

Knott v. The State.

Nos. A03A2118, A03A2127.

Court of Appeals of Georgia.

January 16, 2004.

Certiorari Denied May 24, 2004.

Thomas J. Ford, III, Bernard S. Brody, Atlanta, for appellant (case No. A03A2118).

Jonathan A. Kesler, Canton, for appellant (case No. A03A2127).

Garry T. Moss, District Attorney, Rosemary Kittrell, Assistant District Attorney, Canton, for appellee. SMITH, Chief Judge.

James Moses, II and Shawn Knott appeal from their convictions stemming from a home invasion robbery executed by Moses, Knott, and several others. Moses and Knott were tried jointly, along with two other defendants who also participated in the home invasion.¹ Moses was found guilty of two counts of armed robbery, burglary, kidnapping, false imprisonment, and possession of a firearm during commission of a crime. Knott was found guilty of the same charges plus one count of possession of a firearm during the commission of a crime and one count of recidivism. Moses raises four enumerations of error, and Knott raises five. Because the charges arose from the same incident we have consolidated their appeals for review. We find that none of their enumerations has merit, and we affirm both convictions.

Construed to support the verdict, the evidence presented at trial, set forth more fully in Anderson v. State, 261 Ga.App. 456, 457-460(1), 582 S.E.2d 575 (2003), showed that George Anderson, Jr., Michael Foster, Jr., James Moses II, Shawn Knott, and Kenny Mitchell decided to invade the home of the victims, a married couple, in Cherokee County, to steal approximately $150,000 from a safe located in a workshop behind the victims' house. Information regarding the safe and the money was supplied by Chris Foster, who had worked for the victims in their business. Id. at 457(1), 582 S.E.2d 575.

On the evening set for the robbery, the participants drove to the victims' home in two vehicles. Anderson, Michael Foster, and Mitchell drove with Knott in his gold Cadillac, and Moses drove his pickup truck. Anderson, supra, 261 GaApp. at 457(1), 582 S.E.2d 575. Anderson carried a shotgun, and he, Knott, and Foster, wearing black coats and hats that hid their faces, forced their way into the home. Mitchell and Moses remained outside, communicating with the others by walkie talkie. Id. at 457-458, 582 S.E.2d 575. Brandishing the shotgun, the robbers took $3,500 from the husband's person and then demanded to see the safe. Rejecting a small safe located in the house, they demanded to see "`the big safe in the shop.'" Id. at 458, 582 S.E.2d 575.

When the wife, who had previously retired for the night, entered the room, she was bound with duct tape and made to lie on the floor. Anderson, supra, 261 Ga.App. at 458, 582 S.E.2d 575. The robbers then took the husband outside and walked toward the shop. Mitchell joined the group, while Moses remained in his truck, directing the others by walkie talkie. Id. When the robbers left the house, the wife freed her hands from duct tape and discovered that approximately $1,000 had been taken from her purse. She located her car keys and drove to her son's nearby home to get help, blaring the car's horn. She noticed Moses's truck parked on the property. Id.

When the robbers heard the horn, they panicked and fled before the husband could open the safe. In fleeing, Mitchell was pushed to the ground and left behind. Mitchell tossed away the dark sweater he had been wearing and started walking along the road, where he was picked up by a police officer concerned that he might be cold. Anderson, supra, 261 Ga.App. at 458, 582 S.E.2d 575. When Mitchell claimed he had car trouble, the officer drove him to a service station. Id. Mitchell telephoned Chris Foster's girlfriend, trying to locate Chris. When he eventually located him, he told him the plan had gone awry and he had been abandoned. Id. at 458-459, 582 S.E.2d 575.

When the police arrived at the home, their investigation led them to believe that the robbers must have had inside information about the business and the location of the safe. They requested and received a list of recent employees, which included Chris Foster. On the way to Foster's home, they were told that Chris Foster and Mitchell had been stopped on a local highway approximately two hours after the robbery. When they were arrested, they confessed their involvement and identified the remaining conspirators. Anderson, supra, 261 Ga.App. at 459, 582 S.E.2d 575. Chris Foster's girlfriend telephoned police the next afternoon and reported that Mitchell had called her numerous times the previous night looking for Foster and that when she connected Mitchell with Chris Foster she overheard Mitchell implicate Anderson, Knott, Moses, and Michael Foster. Anderson, supra, 261 Ga.App. at 459,582 S.E.2d 575. These remaining participants were arrested shortly thereafter. Id. The shotgun was found on the side of the road, and it was traced to the victim of a previous home invasion.

Evidence of the previous home invasion was admitted against Moses and Anderson as a similar transaction, and the gun's owner identified the gun and also identified Moses and Anderson as two of the four robbers who had invaded his home. Anderson, supra, 261 Ga.App. at 459, 582 S.E.2d 575. The victims identified the gun and several articles of clothing taken from Anderson as those they had seen during the robbery, and the wife also identified a photograph of Moses's truck as the one she had seen parked on her property during the robbery. Id. at 479-480, 582 S.E.2d 575.

Case No. A03A2118

1. Moses contends the trial court erred by instructing the jury on the law of conspiracy both in its main charge and in response to a jury question, because he was not charged with conspiracy. We do not agree.

Unlike the federal law cited by Moses, under Georgia law a defendant may not be charged with both conspiracy and the completed crime. Moses was charged with the completed crimes and was not charged with the crime of conspiracy. But "it is clear that a conspiracy may be proven and a jury charge may be given on conspiracy in the language of OCGA § 16-2-20, even though a defendant is not indicted under the theory of conspiracy provided in OCGA § 16-4-8." (Citations omitted.) Wiley v. State, 238 Ga. App. 334, 335(4), 519 S.E.2d 10 (1999). OCGA § 16-2-20 permits the State to charge a defendant with a crime even though he or she did not directly commit the crime, if he or she aids or abets its commission, or advises or encourages its commission. OCGA § 16-2-20(b)(3), (4). Viewed in the light most favorable to the jury's verdict, the evidence outlined above showed that Moses drove his truck to the victims' home and waited outside, communicating with his co-conspirators inside by walkie talkie and directing them to the safe in the victims' backyard. The jury was authorized to conclude that Moses participated in the plan to invade the home of the victims to steal "approximately $150,000 from a safe" in their home. Anderson, supra, 261 Ga.App. at 457(1), 582 S.E.2d 575.

Other evidence presented at trial also connected Moses to the crime. The shotgun identified by the victims as the one used to commit the robberies and the kidnapping was identified by its owner as the one stolen by Moses and Anderson in a previous home invasion robbery. Anderson, supra, 261 Ga. App. at 459, 582 S.E.2d 575. In addition, Mitchell testified for the State and identified Moses as a participant in the crimes. Id. The principal of an elementary school adjacent to the victims' property testified that during the day before the nighttime home invasion he had seen two strange vehicles, a blue truck and a "light tan larger automobile," moving suspiciously around the school parking lot. He observed a passenger in the truck leave it momentarily, confer with someone in the Cadillac, and then reenter the truck, after which the vehicles departed the parking lot. He identified Moses as the driver of the truck, photographs of Knott's car as the car he had picked out of a lineup, and photographs of Moses's pickup truck as the truck he had seen.

This evidence showed that Moses was present both before and during the home invasion, had provided the shotgun, and had collaborated with the men who went inside the victims' home. The State's theory was that Moses had conspired with the other three co-defendants and other persons to commit the crime. Here, as in Williams v. State, 267 Ga. 308, 309(2), 477 S.E.2d 570 (1996), and in Wiley, supra, 238 Ga.App. at 335(4), 519 S.E.2d 10, the trial court did not err in giving a charge on conspiracy.

Nor did the trial court err in responding to the jury's question. Moses alleges that the trial court "essentially respond[ed] in the affirmative" when the jury asked: "If found guilty of conspiracy, are they automatically guilty of all charges?" This allegation misstates and misconstrues the trial court's response, which was cautious and fair. Answering the jury's question, the trial court stated:

We have a question from the jury, and that is, "If found guilty of conspiracy, are they automatically guilty of all charges?" Now, in a way, that's kind of a misunderstanding. You don't find them guilty of a conspiracy. You consider conspiracy as a theory of guilt.... The only response I can give you is that ... if you find beyond a reasonable doubt that a Defendant was a party to a conspiracy to commit a crime, a certain crime, then he or they would only be guilty of those acts done naturally and necessarily in furtherance of the object of that conspiracy.

To clarify this for the jury, the trial court repeated the latter part of the response and asked if the jurors had any questions. The jurors responded that they did not.

This was not an affirmative answer to the jury's question, nor was it a "constructive amendment to the indictment" that added a crime not charged, as alleged...