Rainly v. the State.Everette v. the State.Robinson v. the State.

• Decision Date: 16 December 2010
• Docket Number: A10A1259.,Nos. A10A1257,A10A1258,s. A10A1257
• Citation: Rainly v. the State.Everette v. the State.Robinson v. the State., 307 Ga.App. 467, 705 S.E.2d 246 (Ga. App. 2010)
• Parties: RAINLYv.The STATE.Everettev.The State.Robinsonv.The State.
• Court: Georgia Court of Appeals

307 Ga.App. 467

705 S.E.2d 246

10 FCDR 4008

RAINLY

v.The STATE.Everette

v.The State.Robinson

v.The State.

Nos. A10A1257

A10A1258

A10A1259.

Court of Appeals of Georgia.

Nov. 30, 2010.Reconsideration Denied Dec. 16, 2010.

Clark & Towne, Jessica Ruth Towne, Lawrenceville, for appellant(case no. A10A1257).Edwin J. Wilson, for appellant(case no. A10A1258).Deborah R. Fluker, for appellant(case no. A10A1259).Daniel J. Porter, District Attorney, Lawrenceville, Jimmie Eldridge Baggett, Jr., Asst. District Attorney, for The State.PHIPPS, Presiding Judge.

Joseph Rainly, Phylicia Everette and Michael Robinson were tried together in connection with the December 18, 2007 armed robbery of a video store.Rainly and Robinson were each convicted of two counts of armed robbery, two counts of aggravated assault, two counts of kidnapping and one count of possession of a firearm during the commission of a felony.Everette was convicted of one count of armed robbery, two counts of aggravated assault, two counts of kidnapping, one count of possession of a firearm during the commission of a felony, one count of theft by receiving stolen property (a Glock handgun) and one count of possession of marijuana with intent to distribute.Each defendant filed a motion for new trial, which the trial court granted as to the kidnapping convictions ¹ and denied as to the remaining convictions.We have consolidated their appeals.While the arguments raised in the appeals vary to some extent, the appellants' arguments include challenges to the sufficiency of the evidence to support the aggravated assault and theft by receiving stolen property convictions, the court's allowing evidence and statements concerning a prior robbery of the same store, the effectiveness of trial counsel, the introduction of victim-impact testimony or comments during the guilt-innocence phase of the trial, the court's refusal to give certain requested jury charges, and the prosecutor's closing argument.Everette's conviction for theft by receiving stolen property was not supported by sufficient evidence, so it is reversed.The remaining convictions of all three appellants are affirmed.

Viewed in the light most favorable to the verdict,² the evidence showed the following.A video store clerk testified that on December 18, 2007, he was assisting with store closing duties by stocking products near the center of the store when he heard screams and saw the store manager running toward him.A man pointed a gun at the clerk and told him to stop what he was doing.The gunman and two men who were with him grabbed the clerk and took him to the front of the store.The clerk was told to get on the ground, and his wallet and cell phone were taken; inside his wallet was a business card he had received from a police officer in connection with a robbery of the store one week before.The clerk saw one of the three men take money from the cash register.The gunman took the manager to the back of the store while the other two men held the clerk on the ground.The two men then picked the clerk up and “handed [him] off” to the gunman.The gunman told the clerk to open the back door, which he did.The clerk saw outside a white car with a black bumper; the car's engine was running and it appeared that someone was inside the car.

The store manager also testified regarding what she had witnessed on December 18, 2007.She stated that a man with his face covered came into the store.She ran to the back of the store, screaming.The man pointed a gun at her and moved her to the front of the store, where she saw the store clerk and two other people.“[T]hey” ordered the manager to open the cash register and took the money.The gunman also took video game systems.One of the men ordered the manager to open the safe, but when it did not open immediately, the men fled.The manager called the police.

One of three officers who responded to the call testified that he had investigated a December 12, 2007 robbery of the same video store.Two employees were present at the December 12, 2007 robbery—Everette and the store clerk whose testimony is described above.The officer had given each employee a business card upon which he had written his name and badge number, along with the case number and a phone number to call if they had questions or information regarding the December 12, 2007 robbery.In responding to the December 18, 2007 robbery, the officer directed another officer to look for the white car with a black bumper at the Sugarloaf Parkway Apartments because he“had a feeling that it might have been one of the former employees that might have been in on it.”On cross-examination, the officer stated that Everette was a victim in the prior robbery, and that she was not investigated or listed as a suspect in that earlier incident.

The second officer testified that he remained at the video store assisting the first officer for about 15 to 20 minutes, then went to the apartment complex and saw such a vehicle parked outside one of the buildings.The hood was warm and, through the car's window, he saw several video game systems.The officer then moved a distance away from the car and observed three men walk through the breezeway beside the building toward the car, then walk back toward the building; one of them was carrying a white box.Someone then drove the white car away.

A third police officer testified that he responded to the emergency call.He testified that the same store had been robbed the week before and that a store employee lived in an apartment complex about two-and-a-half miles away.He and other officers went to the Sugarloaf Parkway Apartments and approached Everette's door.A man started to exit the apartment but ran back inside; he was apprehended and later identified as EddieLee Peterson.Another man began exiting through a bedroom window, but the officers had surrounded the building, and he went back inside.

Upon entering the apartment, officers found a Glock handgun on the living room floor, Everette hiding in a closet, and clothing consistent with that worn by the robbers.Officers found inside a locked bedroom a video game system in a white box, consistent with those reported stolen in the robbery earlier that night.Inside the pocket of a jacket found inside the apartment, officers found identification and insurance cards belonging to the store clerk and the officer's business card taken from the store clerk present during both the December 12, 2007 and December 18, 2007 incidents.Everette told officers that a blue Honda in the parking lot was hers and that she had marijuana in the car.Officers recovered from Everette's car several video game systems “that appeared to be the same as what was stolen from the [store],” as well as a sandwich bag containing a green leafy substance that tested positive for marijuana, two digital scales and small plastic baggies.A small baggie of marijuana was also found in Everette's apartment.Officers arrested Rainly, Everette, Robinson and Peterson.

A police officer testified that he interviewed Rainly, Everette, and Robinson at police headquarters.Rainly told the officer that the plan was formulated at Everette's house, and there had been “a conversation about who would hold the gun during the robbery.”Everette told the officer that she had described to the other individuals the circumstances of the earlier robbery and told them “how to do it.”Everette also told the officer that she made more money selling marijuana than she did working at the video store.Robinson told the officer that he went to the video store with Peterson, that Peterson “carried a gun” and did most of the talking, and that “they” took video games from the store, placed them in the white car, went back to the apartment in that car and unloaded the items into the blue car.

Prior to trial, Peterson pleaded guilty to two counts of armed robbery, two counts of kidnapping, two counts of aggravated assault, and one count of possession of a firearm during the commission of a felony (all in connection with the December 18, 2007 incident).At trial, Peterson testified that on December 18, 2007, he went with Rainly and Robinson to Everette's apartment.While there, Everette told him, Rainly and Robinson that the video store where she worked had been robbed and described how it had happened.Peterson retrieved a gun out of Everette's car, and he, Rainly and Robinson went to the video store in a white car; at this point in his testimony, Peterson did not mention Everette as being present in the car, though he testified to that fact later.Peterson entered the store first, and Rainly and Robinson entered behind him.Peterson chased an employee and pulled the gun from his pocket.Peterson caught up with the employee at the back of the store and brought her to the front of the store, where Rainly and Robinson were with the other store employee.Peterson told one of the employees to open the safe, but it did not open immediately.The employee loaded video game systems onto a cart, then pushed the cart out the back door.Peterson left through the back door, where he got into a white car in which Rainly, Everette and Robinson were sitting; video games were also in the car.Everette drove the car back to her apartment, and they all went inside.Rainly, Robinson and Peterson went outside to move the items from the white car into Everette's blue Honda.Peterson then carried a video game system to Everette's apartment.As Rainly, Robinson and Peterson were preparing to leave, the police arrived.

Case No. A10A1257

1.Rainly contends that the evidence was insufficient to support his aggravated assault convictions because there was no evidence that he pointed a gun at the store clerk or that either the clerk or the manager was placed in reasonable apprehension of immediately receiving a violent injury.

In Count 3 of the indictment, the state accused Rainly (and the other def...