Robinson v. State

• Decision Date: 21 November 2011
• Docket Number: A11A0838.,Nos. A11A0837,s. A11A0837
• Citation: Robinson v. State, 11 FCDR 3812, 312 Ga.App. 736, 719 S.E.2d 601 (Ga. App. 2011)
• Parties: ROBINSON v. The STATE.Rogers v. The State.
• Court: Georgia Court of Appeals

11 FCDR 3812

312 Ga.App. 736

719 S.E.2d 601

ROBINSON

v.The STATE.Rogers

v.The State.

Nos. A11A0837

A11A0838.

Court of Appeals of Georgia.

Nov. 21, 2011.

Kenneth Wayne Sheppard, for appellant(case no. A11A0837).

Jolanda E. Herring, Atlanta, for appellant(case no. A11A0838).

Robert D. James, Jr., Dist. Atty., Daniel James Quinn, Asst. Dist. Atty., for appellee.MILLER, Presiding Judge.

Co-defendantsGeorge Robinson and Larry Rogers were indicted ¹ and convicted on one count of conspiracy to commit theft by receiving stolen property, OCGA §§ 16–4–8,16–8–7, as well as twelve counts of theft by receiving stolen property, OCGA § 16–8–7(a).Robinson and Rogers each subsequently filed and amended motions for new trial, which were denied by the trial court.Robinson and Rogers each filed notices of appeal.

In Case No. A11A0837, Robinson contends that (i) there was insufficient evidence to sustain his convictions on several counts, on the grounds that the State presented only hearsay evidence in support of certain elements of those crimes; (ii)the trial court erred by denying his motion for new trial; (iii)he received ineffective assistance of counsel; and (iv)the trial court erred in denying his motion to suppress, denying his motion for mistrial, charging the jury on “deliberate ignorance,” and overruling his objection to the State's use of his prior conviction for impeachment.As further detailed in Division 4(d) below, we remand Case No. A11A0837 with direction that the trial court enter express findings on the record as to whether Robinson's prior conviction was admissible under the balancing test required by OCGA § 24–9–84.1(b).If the trial court determines that the prior conviction was inadmissible after engaging in this balancing test, then a new trial will be required.If the trial court determines that the prior conviction was admissible, then a new trial will not be mandated, in which case we affirm as to Robinson's remaining enumerations of error.

In Case No. A11A0838, Rogers contends that (i)the trial court erred in allowing similar transaction evidence; (ii)he was denied conflict-free assistance of counsel; (iii)the trial court erred by failing to recuse itself; (iv)the trial court erred by allowing the State to inform the jury that Rogers fled during his first trial; and (v)the trial court erred by denying his motion for continuance.Discerning no error, we affirm as to all of Rogers's enumerations of error.

On appeal from a criminal conviction, we view the evidence in a light most favorable to the jury's verdict to determine whether the evidence was sufficient to prove guilt beyond a reasonable doubt.Jackson v. Virginia,443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560(1979);Goss v. State,305 Ga.App. 497, 497, 699 S.E.2d 819(2010).

So viewed, the stolen property identified in this case was primarily recovered from several warehouses—including one at 2520 Park Central Boulevard (“Park Central”) and one at 2372 South Stone Mountain Lithonia Road (“South Stone Mountain”)—and a clothing store called Vibez.Documents seized from the Park Central warehouse indicated that a trucking company called Robin Express was being operated from the warehouse.The Park Central warehouse also contained a number of the documents on which Robinson's and Rogers's names appeared, including a letter addressed to “Robin Express, care of George Robinson.”

Robin Express was formerly known as Starlight Enterprise, which was formed in 1984 by long-time business partners, Robinson and Rogers; Robinson was named as the CEO.Robin Express became defunct approximately two years later, but was reactivated in 1999 by Robinson's daughter and Rogers, with Robinson's daughter replacing Robinson as the CEO.Rogers ran the Robin Express trucking business, along with Robinson's daughter, out of the Park Central warehouse.An employee of Starlight Enterprise, and later Robin Express, likewise testified that the company's office was located at the Park Central warehouse.During his employment, the employee owned and operated his own truck and would haul a load of goods from the Park Central warehouse about once a week.The employee saw both Robinson and Rogers at the Park Central warehouse.Based on the truck driver's observations and interactions with people in the company, he understood Robinson to be the person in charge of the entire organization and Rogers to be the second-in-command.

According to witness Deb Wright,² who had been in the business of brokering deals between people stealing truckloads of goods and people who were willing to buy them, Robinson and Rogers ran a trucking company out of a warehouse located at Park Central Boulevard.Wright brokered deals to help Robinson and Rogers sell truckloads of stolen items.Wright claimed that she had spent time at the Park Central warehouse and knew that both Robinson's daughter and Rogers had offices there.Wright recalled seeing stolen washing and drying machines, goods which she had in fact brokered, in the Park Central warehouse.On the occasions when Wright was present during the unloading of stolen truckloads, she saw Robinson pay cash to the individuals delivering the stolen goods.

Robin Express also utilized another smaller warehouse at South Stone Mountain.Wright knew that Robinson and Rogers ran this warehouse because she had gone there to broker a deal for stolen mattresses.A tractor and trailer belonging to Robin Express were ultimately seized from the South Stone Mountain warehouse, and their corresponding title information was recovered from the Park Central warehouse.A number of stolen articles seized from the South Stone Mountain warehouse were of the same type as those recovered from the Park Central warehouse.

According to the Robin Express employee, the same people who ran the Park Central warehouse, including Robinson and Rogers, also owned and operated Vibez.Deb Wright, who was a customer of Vibez, described it as a store that sold discounted clothing and other various housewares.According to Wright, she did not have to pay sales tax when she made purchases at Vibez.She also stated that it was possible to negotiate a lower purchase price for Vibez merchandise, but that generally only Robinson and Rogers had authority to approve a lower price.Wright testified that Rogers worked at Vibez in an office at the back of the store.Some of the stolen merchandise seized from the Vibez clothing store was the same as that found at the Park Central and South Stone Mountain warehouses.

Following their arrests and indictment, Robinson, Rogers, and their other implicated co-defendants were scheduled for a joint trial commencing September 19, 2005.During a break at the beginning of trial, however, Robinson, Rogers, and Robinson's son fled the courtroom, and the trial did not go forward.Within a few days after their flight, Robinson and Rogers obtained fake Mississippi driver's licenses using aliases.Robinson and Rogers were subsequently captured and tried together before a jury in December 2008.

Case No. A11A0837

1.In his first enumeration of error, Robinson sets forth insufficiency claims concerning certain elements of three theft offenses of which he was convicted, specifically challenging Counts 4, 7, and 18 of the indictment.³Addressing only the specific grounds of sufficiency challenged in Robinson's enumeration,⁴we consider each of Robinson's contentions in turn under the Jacksonstandard, supra, 443 U.S. at 319(III)(B), 99 S.Ct. 2781, standard set forth above.

(a) Count 4 of the indictment charged Robinson with theft by receiving stolen property, specifically, Maytag washing machines valued at over $500 and belonging to Jacobson Transportation Company.

A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner.“Receiving” means acquiring possession or control ... of the property.

(Punctuation omitted.)OCGA § 16–8–7(a).

Robinson argues that there was insufficient evidence to support Count 4 based solely upon his claim that there was no nonhearsay evidence presented as to either the location from which the Maytag washing machines were recovered, or the value of the Maytag washing machines.First, the value of the stolen property is not an essential element of the crime of theft by receiving stolen property and is relevant only in order to distinguish between a felony and a misdemeanor for purposes of sentencing.Duncan v. State,278 Ga.App. 703, 704(1), 629 S.E.2d 577(2006).“As long as it appears that the stolen property is of some value, the conviction can be sustained.”(Citation and punctuation omitted.)Id.At trial, a Jacobson Transportation Company employee testified that a load of 126 Maytag washing and drying machines, valued at approximately $35,000, was stolen from the company in 2003.The employee testified that a portion of the stolen equipment, valued at approximately $20,000, was later recovered in a DeKalb County warehouse and was retrieved by one of the company's truck drivers.This testimony, which the record reflects as being based upon the employee's personal knowledge, was sufficient to show that the stolen Maytag washing machines were of some value.

Second, evidence as to the specific location from which the Maytag washing machines were recovered was required to show that Robinson had possession or exercised control over the stolen Maytag washing machines.SeeBuchanan v. State,254 Ga.App. 249, 250(1), 562 S.E.2d 216(2002)(“Receiving [under OCGA § 16–8–7(a) ] means ... that the person had the right to exercise power over a corporeal thing, or there exists some evidence, either direct or circumstantial, that the accused was a party to the crime by aiding and abetting its commission.”)(...