Robinson v. State

• Decision Date: 05 April 2016
• Docket Number: No. A16A0125.,A16A0125.
• Citation: 785 S.E.2d 304,336 Ga.App. 627
• Parties: ROBINSON v. The STATE.
• Court: Georgia Court of Appeals

336 Ga.App. 627

785 S.E.2d 304

ROBINSON

v.The STATE.

No. A16A0125.

Court of Appeals of Georgia.

April 5, 2016.

Tucker & Associates, Matthew Arnold Tucker, Jay Talley Winkler, for Appellant.

Elizabeth A. Baker, Asst. Dist. Atty., Tracy Graham–Lawson, Dist. Atty., for Appellee.

PETERSON

, Judge.

Tony Robinson appeals his convictions for aggravated assault, criminal damage to property in the second degree, and cruelty to children in the third degree. He argues that (1) the guilty verdicts are against the weight of the evidence; (2) improper jury conduct should have resulted in a mistrial and shows that the verdict “is inherently lacking in due process”; and (3) the trial court erred in admitting evidence of his prior convictions. We find that the evidence was sufficient to authorize the guilty verdicts, Robinson waived his arguments as to juror misconduct, and the trial court did not abuse its discretion in admitting evidence of Robinson's prior convictions. Therefore, we affirm Robinson's convictions.

1. Robinson argues that the guilty verdicts were against the weight of the evidence, which we will construe as an argument that the evidence was insufficient to support his convictions. When appellate courts review the sufficiency of the evidence, they do not “re-weigh the evidence or resolve conflicts in witness testimony” but instead defer “to the jury's assessment of the weight and credibility of the evidence.” Greeson v. State, 287 Ga. 764, 765, 700 S.E.2d 344 (2010)

(citation omitted); see also

Allen v. State, 296 Ga. 738, 741(2), 770 S.E.2d 625 (2015) (whether to grant a new trial on grounds the verdict is against the weight of the evidence is matter solely for trial court's discretion; appellate courts may review only for sufficiency). We determine whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citation omitted) (emphasis in original).

So viewed, the evidence shows that Robinson was in a relationship with the victim and had been living in her apartment for several months. During the course of their relationship, Robinson was physically violent toward the victim. The victim called police in June 2013 following one particular violent incident. Prior to the trial over that incident, Robinson asked the victim to testify that her injuries were self-inflicted, but the victim failed to appear in court rather than testify to that effect.

Subsequently, on October 5, 2013, Robinson and the victim argued over his use of a cell phone—for which the victim was paying—to have frequent phone conversations with his ex-girlfriend. Robinson followed the victim into her bedroom, stating, “I told you I was going to kill you.” Robinson grabbed the victim by her arms as she tried to move across the bed, positioning himself on top of her. After he let her go, the victim announced that she was leaving the home, but Robinson grabbed her keys and cell phone. Eventually she persuaded him to allow her to leave by inviting him to go to Wal–Mart with her and her son.

Along with her son, the victim managed to get to the car in time to lock Robinson out of it. As the victim began to back out of her parking space, Robinson tried to open the car's doors, and then ran back to the apartment. The victim pulled back into her parking spot and yelled out of the window, “I'm calling the police on you, you stupid bitch.” Robinson picked up a concrete slab that was near the apartment door and approached the front of the victim's car. He swung it multiple times at the victim's car; it ultimately came through the window and injured the victim in the head, with a piece of concrete ending up in her lap. The victim's son screamed in the back seat. The victim drove to a library, where she called police. The victim was hospitalized for five days due to her injuries, including a skull fracture

and hearing loss. To completely repair the victim's car would have cost about $1,600.

An officer who responded to the 911 call found the victim sitting in her car at the library, her head bleeding profusely. A concrete slab was in between the victim's legs and her driver's side window was shattered. The officer later went to the apartment complex parking lot, where police found two other pieces of broken concrete, as well as broken car parts. A friend of the victim testified that Robinson called her and said, “I'll find [the victim] before they find me”; the friend testified over objection that she interpreted that as a “threat.”

Robinson testified in his own defense at trial. He admitted throwing the concrete slab at the victim's car, but said the victim was trying to run him over at the time. He said he “ran for [his] life” and felt his life was in danger. The victim and her son both denied that the victim's car hit Robinson.

Robinson argues that the guilty verdicts were a product of the introduction of his prior criminal history and the testimony that Robinson had threatened the victim when he told her friend, “I'll find [the victim] before they find me.” However, as explained in Division 3, his prior convictions were properly admitted. As for Robinson's argument about the friend's testimony that he threatened the victim—which he does not support with any legal authority—our review of the evidence shows that any error in admitting that statement was harmless given the weight of the evidence against Robinson.

Robinson's position at trial was that his need to defend himself justified throwing a concrete slab at his girlfriend's car. “Once [Robinson] raised the affirmative defense of justification and testified to the same, the State then bore the burden of disproving that defense beyond a reasonable doubt.” Agyemang v. State, 334 Ga.App. 137, 138–39(1), 778 S.E.2d 387 (2015)

. Robinson argues on appeal that his testimony (and, to some extent, the testimony of the victim's minor child) contradicted the victim's testimony, showing that Robinson was acting in self-defense. But it is for the jury, not this Court, to assess the credibility of the witnesses and resolve conflicts in their testimony. See

Greeson, 287 Ga. at 765, 700 S.E.2d 344. Robinson also complains that the responding officer testified that he could not say exactly how the victim's car was positioned when it lost its driver's side mirror. To the extent that Robinson suggests that the positioning of the victim's car showed that she was the aggressor during the incident in the parking lot, the victim refuted that suggestion through her testimony, and “[t]he testimony of a single witness is generally sufficient to establish a fact[.]” OCGA § 24–14–8

.

Robinson suggests that the victim's testimony itself showed that she was the aggressor. He points to her testimony that he was at the back of her car, trying to get in, when she “started trying to put the car in reverse.” However, the victim went on to testify that Robinson ran back to her home before picking up a concrete slab and charging toward her car. She and her son also testified that her car did not hit Robinson. Robinson argues that the victim's admitted decision to return briefly to her parking spot and yell that she was calling the police showed that she did not fear Robinson causing her any harm. But even assuming this is true, fear on the victim's part is not a necessary element of the crimes of which Robinson was convicted. See, e.g., OCGA § 16–5–20(a)

(“A person commits the offense of simple assault when he or she either: (1) [a]ttempts to commit a violent injury to the person of another; or (2) [c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury.”) (emphasis added); OCGA § 16–5–21(b)(2) (“A person commits the offense of aggravated assault when he or she assaults ... [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury[.]”).

This case presented an issue of credibility, which was for a jury to decide. The jury, by its verdict, indicated that it credited the evidence contrary to Robinson's justification defense. See Agyemang, 334 Ga.App. at 139, 778 S.E.2d 387

. Our review of the evidence persuades us that it was sufficient to reject Robinson's theory of self-defense.

2. Robinson argues that he was prejudiced by improper jury conduct that should have resulted in a mistrial and shows the verdict is “lacking in due process.” His argument is based on two incidents, the first while the State was still presenting its case and the second during deliberations.

Where a defendant fails to move for a mistrial, he waives any appellate argument that the trial court erred by not granting one. See Little v. State, 332 Ga.App. 553, 555(2), 774 S.E.2d 132 (2015)

. An argument that a juror should have been removed from a jury also is waived when counsel fails to request a juror be struck for cause. See

Ware v. State, 321 Ga.App. 640, 642(2), 742 S.E.2d 156 (2013). In this case, defense counsel indicated he had no objection to the trial court's decisions, in one instance, to discharge a juror and utilize an alternate and, in the other instance, to allow the juror in question to continue deliberations with the panel. By consenting to the trial court's handling of these juror issues, Robinson has waived any argument that the trial court erred in that respect, including by leaving a juror on the panel or failing to grant a mistrial.¹

3. Finally, Robinson argues that the trial court erred by admitting evidence of his previous convictions. Robinson was paroled in 2006 on convictions for armed robbery and voluntary manslaughter.² He was convicted of aggravated stalking and terroristic threats in 2012. The trial court admitted evidence of the guilty convictions for general impeachment...