Moyer v. State
| Citation | 620 S.E.2d 837,275 Ga. App. 366 |
| Decision Date | 02 September 2005 |
| Docket Number | No. A05A0936.,A05A0936. |
| Parties | MOYER v. The STATE. |
| Court | United States Court of Appeals (Georgia) |
Caprice Jenerson, Atlanta, for Appellant.
Gwendolyn Keyes Fleming, District Attorney, Elisabeth MacNamara, Leonora Grant, Assistant District Attorneys, for Appellee.
A jury convicted Marvin Moyer of four counts of aggravated assault and one count of burglary. He appeals on several bases: (1) that the evidence was insufficient to support any of his convictions; (2) that the court erred in denying the suppression of statements he made to two police officers prior to being arrested; (3) that the court erred in denying the suppression of his custodial statement; and (4) that his trial counsel was ineffective. For the following reasons, we affirm the trial court.
The evidence establishes that Moyer and Elijah Keith Smith carried out two home invasions on the same evening. Smith was the primary aggressor in both crimes, and carried a handgun. Moyer admitted to carrying a night stick in both crimes.
There were three people in the first apartment they invaded: the tenant, his girlfriend, and a guest. The girlfriend answered the door, and Smith pushed his way into the apartment. Smith demanded that the victims tell him where "Veno" was, threatened the victims, and fired multiple shots into the floor, windows, and the door of an unoccupied bedroom. Moyer entered the apartment and remained by the front door with the night stick in his hands. Smith ordered Moyer to watch the victims. The three victims remained in the living room while Smith moved around the apartment. Moyer told the victims to give Smith what he wanted because Smith was crazy. The tenant testified that he was frightened of both of his assailants, and that his girlfriend was upset and crying during the home invasion. He also testified that Moyer went into the kitchen and ripped the phone off the wall before he and Smith left. The girlfriend and the guest could not be located to testify.
Moyer and Smith then invaded a second apartment. As with the first invasion, Smith knocked on the door and the two men forced their way into the apartment when a victim opened the door. Moyer entered the apartment, and told the two victims to "give it up." Smith shot one of the victims three times, who yet managed to get away, retrieve his own handgun, and fatally shot Smith.
During this struggle, the second victim tackled Moyer, and the two grappled. Moyer again told the second victim to "give it up if you want to live." That victim pulled money out of his pocket and offered it to Moyer, who did not take it. The second victim was hit by a bullet fired by Smith or the first victim, and fell to the ground. Moyer stood over him with the night stick in his hands, which the first victim mistook for a rifle, and the first victim shot Moyer. He shot Moyer again when Moyer attempted to get up. Both victims testified that they were afraid of both assailants. When the two victims left the room to call the police, Moyer broke the patio door glass and fled.
Moyer left the apartment complex, and was driven to a hospital by a Good Samaritan who alerted the police that a man had been shot. An Atlanta police officer was dispatched to the hospital, where the Samaritan identified Moyer as the gunshot victim. Moyer was sitting on a gurney in a busy area of the emergency room; he had been through triage and was awaiting treatment for gunshot wounds to both hands.
The Atlanta officer asked Moyer what had happened to him. Moyer replied that he and a friend had been drinking and ran out of money, and then his friend had pulled a gun and said, "We can rob somebody to get the money." The Atlanta officer determined that the shooting had occurred in DeKalb county, and called for a DeKalb officer. Before the DeKalb officer arrived, Moyer attempted to leave the hospital, but the Atlanta officer held him down and handcuffed him to the gurney.
When the DeKalb officer arrived, Moyer was still handcuffed. The officer testified that the Atlanta officer did not give him any information about Moyer before he began questioning him. The DeKalb officer asked Moyer for his name and what had happened. Moyer told the DeKalb officer that he and a friend had gone into an apartment complex to rob somebody for drinking money. Moyer was arrested and remained in the hospital for two days.
Two days later Moyer waived his Miranda rights and gave a custodial statement. The 90-minute videotaped statement was shown at trial. Moyer's hands were bandaged and he had taken pain medication that morning; however, he appeared awake, alert, and responsive to questions. In his statement, Moyer described his involvement in both home invasions. He admitted entering both apartments while carrying a night stick.
Moyer first contends that insufficient evidence supports any of his five convictions. He contends that insufficient evidence established his intent to commit armed robbery, the underlying offense in his burglary conviction. Moyer also contends that the trial court erred in denying his motion for a directed verdict as to his four counts of aggravated assault.
On appeal from a criminal conviction, the appellant is no longer presumed innocent, and the appellate court does not weigh the evidence or determine witness credibility. Kemp v. State, 257 Ga.App. 340(1), 571 S.E.2d 412 (2002). Viewed in the light most favorable to the verdict, the evidence is sufficient to uphold a conviction if any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
1. Here, the evidence was sufficient to sustain Moyer's burglary conviction for the second home invasion. Moyer argues that the State failed to prove all the elements of burglary, specifically the intent to commit the underlying offense of armed robbery. Moyer fails to cite any authority to support his argument, and relies solely on the fact that he did not attempt to take anything from the victims in the second apartment. However, evidence that Moyer aided or abetted Smith is sufficient to uphold Moyer's convictions as a party to Smith's crimes. OCGA § 16-2-20.
Here, there is sufficient evidence that Moyer was a party to a burglary in the second apartment. The jury was charged on parties to a crime, which allows an individual to be convicted as a party to a crime if he either (1) is present and assists in the commission of the crime, or (2) shares in the criminal intent of the actual perpetrator. Grace v. State, 262 Ga. 746, 748(4), 425 S.E.2d 865 (1993). An individual may be convicted of burglary regardless of whether the charged underlying felony is completed. Ricks v. State, 178 Ga.App. 98, 101(4), 341 S.E.2d 895 (1986) ()(citations omitted).
In this case, Moyer's statements establish that Smith, at least, intended to commit the underlying offense of armed robbery. The State presented uncontroverted testimony that Moyer stated that Smith said, "Let's go rob someone," and that Smith had shown Moyer his handgun. Further, the evidence is sufficient to support a finding that Moyer was present and assisted in the armed robbery. Moyer and Smith entered the second home without authority, and Moyer told a victim to "give it up if you want to live." The evidence was sufficient for a rational trier of fact to find Moyer to be a party to and guilty of burglary beyond a reasonable doubt.
2. Moyer also argues that the trial court erred in denying his motion for a directed verdict on his four counts of aggravated assault because the evidence was insufficient. A motion for a directed verdict is only granted where the evidence is without conflicts and the evidence and all reasonable inferences therefrom demand an acquittal as a matter of law. OCGA § 17-9-1; Millirons v. State, 268 Ga.App. 644, 645(1), 602 S.E.2d 346 (2004).
An assault is either an attempt to harm another, or an act which places another in reasonable apprehension of immediately receiving a violent injury. OCGA § 16-5-20. An aggravated assault occurs when a person assaults another with "any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury." OCGA § 16-5-21(a)(2). We find the evidence sufficient to support the four counts.
(a) The first two convictions were for aggravated assault against two victims in the first apartment. The evidence shows that Moyer entered the apartment, held a night stick while standing by the door, and instructed the victims to cooperate with Smith. The first victim testified that he was afraid of Moyer, and that the second victim was crying and appeared frightened of Moyer and Smith.
Moyer argues on appeal that he was under coercion to help Smith, and that his instructions to the victims were pleas for them to cooperate for their own safety. This argument is inapposite. The jury weighs the evidence, judges witness credibility, and draws reasonable inferences from the evidence; an appellate court does not substitute its judgment for that of the jury on these matters. See, e.g., Millirons, 268 Ga.App. at 645, 602 S.E.2d 346.
A rational trier of fact could reasonably conclude from the evidence that Moyer was a willing participant who blocked the door while menacing the victims with the night stick. There is evidence to show that this act put both victims in reasonable apprehension of receiving a violent injury. See Meadows v. State, 264 Ga.App. 160, 163(2), 590 S.E.2d 173 (2003) (...
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