Scruggs v. the State.
| Decision Date | 13 May 2011 |
| Docket Number | No. A11A0642.,A11A0642. |
| Citation | 309 Ga.App. 569,711 S.E.2d 86 |
| Parties | SCRUGGSv.The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Thomas McKee West, Atlanta, for appellant.Patrick H. Head, District Attorney, James Bartholomew Glasgow, Anna Green Cross, Assistant District Attorneys, for appellee.MIKELL, Judge.
Following his conviction by a jury of armed robbery, two counts of aggravated assault,1 and criminal trespass,2 Tyral Scruggs appeals from the denial of his motion for new trial.
On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. 3
This test applies “when the sufficiency of the evidence is challenged, whether the challenge arises from the [denial] of a motion for directed verdict or the [denial] of a motion for new trial.” 4
Viewed in this light, the evidence was that, on the evening of November 2, 2007, John Gil had just been paid his wages by the owner of the tire shop in Cobb County where he worked part time. Gil received his pay, $300, in fifteen $20 dollar bills. Because his driver's license had been suspended, Gil began walking home and stopped by Fred's, a convenience store, to buy two packs of cigarettes. As he left Fred's, around 8:00 or 9:00 p.m., Gil cut through the parking lot of a liquor store and started down Reed Drive. He noticed a Ford Crown Victoria parked on that street in an area where no one lived. Two men on foot then approached him, and one of the two asked him for a cigarette. As he was getting the cigarettes out of his pocket, the man who asked for the cigarette, identified by Gil as Scruggs, pulled a handgun and stuck it in Gil's stomach. Gil tried to push the gun away, but then the second man pulled a gun, put it in Gil's back, and pulled Gil's sweatshirt up over his head. The two men then went through Gil's pockets and took his money, two packs of cigarettes, his identification card, and a Chapstick. Gil asked the two men if he could leave and they said “yes.” As he was walking, then running, away, Gil saw the Crown Victoria drive by and pick up the two men. Gil got the tag information and the make and color 5 of the car and watched it speed away. Steven Perry, who was indicted and tried with Scruggs, was the driver of the Crown Victoria.6
Gil called the police, and an armed robbery dispatch giving the description of the Crown Victoria was broadcast. Sergeant Orrin Hamilton of the Cobb County Sheriff's Department was driving to his second job around 10:15 p.m. when he saw a car matching this description carrying two African-American men eastbound on Windy Hill Road.7 Hamilton pulled in behind the car, which then made a quick right turn, requiring Hamilton to go around a median to pursue it. The car then made a u-turn directly in front of his car and went back to Windy Hill Road where it turned into the Hickory Lake Apartments. The car parked in a parking spot, and three men jumped out and ran. Hamilton pursued them in his car, keeping his spotlight on them as they ran. Hamilton heard someone yell “get out of my house” and saw Scruggs on the lawn, where he took him into custody. Sergeant Robert Dorsey also responded to the dispatch and heard a woman yelling that someone was trying to break into her apartment. He pursued the man and arrested co-defendant Perry. A black tee shirt was found on the ground in front of the apartments where Dorsey heard the woman scream. When Perry was arrested, he was wearing a long sleeved brown shirt and blue jeans.
Detective William Stephens also responded to the apartments and went to the Crown Victoria where he found Gil's identification card on the ground outside the front passenger's door. The identification card was returned to Gil by a police officer about one hour following the robbery. Police obtained a search warrant, and crime scene technicians processed the car for latent fingerprints, finding one on a compact disc and one on a cell phone. The print on the cell phone was later identified as Perry's. No matches for Scruggs were made on the identifiable latent prints. One of the technicians also located a Cobra 9 millimeter pistol lodged between the rear seat cushions, with eleven rounds of ammunition in the magazine. This technician also found two packs of cigarettes in the car. No second handgun was found.
Officers took Perry, Scruggs, and two other African-American men wearing black who were located in the apartment complex to a nearby high school. Gil was transported to the high school and read the guidelines for a showup. The men were shown to Gil one at a time, and he identified Perry as the driver of the car and Scruggs as the man who walked up, asked him for the cigarette, and stuck a gun in his stomach. Gil said that the other two men were not involved.
Following Scruggs's arrest, Detective Stephens removed $359.37 in cash from him. This total consisted of sixteen $20 bills, three $10 bills, one $5 bill, four $1 bills, and loose change.
Scruggs testified that he had just moved to Georgia and obtained work at Church's Chicken through Perry, a relative through marriage. On November 2, 2007, he had gone to Church's to get his paycheck. His sister had dropped him off on the east/west connector where he usually caught a bus to Church's. That day, he called Perry, who said he would come get him. Instead of Perry, two men Scruggs did not know came to pick him up in the Crown Victoria and took him to Church's where he cashed his paycheck for around $80 to $100. Scruggs said he had also withdrawn $200 from his wife's bank account at an ATM; that he had sold some musical equipment to his brother for some additional cash; and he had $320 to $340 cash when he was arrested. Scruggs testified that he was then taken back to the bus stop where he waited for a while for the bus. Perry then returned to the bus stop with two other men in the car and said he would take Scruggs home because he had missed the bus. When they arrived at the apartments, the two other men jumped out of the car and ran. Scruggs and Perry then got out and ran. Scruggs ran because he was scared and he was on probation at the time. One of the two men who ran had twists in his hair and gold teeth.
Co-defendant Perry testified that he was working at Church's on November 2 and that Scruggs did come by in a Crown Victoria to pick up his paycheck. Scruggs and another man who was chubby with short twists in his hair picked Perry up from work. He did not know the other man's “government name,” but knew him as “Munchie” or “Blunt.” Perry drove the Crown Victoria because neither of the other men had a license. Perry denied that there was any conversation about robbing anyone and denied that he ever saw a gun. Perry drove Scruggs and the other man to the liquor store and they got out, returning in a few minutes. Perry then drove to the apartments, without speeding or driving erratically. Perry denied knowing about, discussing, or seeing any criminal activity.
We find the evidence of armed robbery legally sufficient to support Scruggs's conviction.8 Scruggs argues that there were conflicts in Gil's testimony and pretrial statements to the police, weaknesses in his descriptions of the robbers and in his identification of Scruggs and Perry as participants. These circumstances only created issues of fact for the jury, which resolved them adversely to Scruggs.9
The true test of the sufficiency of an indictment is not whether it could be made more certain and definite, but whether it contains the elements of the offense charged, apprises the accused of what he must be prepared to defend against, and protects against double jeopardy. This Court applies a de novo standard of review to a trial court's determination that the allegations in an indictment were legally sufficient.10
The armed robbery count alleged that Perry and Scruggs committed the “offense of armed robbery for that the said accused ... on or about the 2nd day of November, 2007, with intent to commit theft, did take U.S. currency and cigarettes from John Paul Gil by use of a handgun.” The aggravated assault counts charged that Perry and Scruggs committed “the offense of aggravated assault for that the said accused ... on or about the 2nd day of November, 2007, did unlawfully make an assault upon the person of John Paul Gil with intent to rob” (Count 2) and “with a handgun, a deadly weapon, by brandishing it in a threatening manner towards said victim (Count 3).” The criminal trespass count charged Scruggs “with the offense of criminal trespass for that the said accused ... on and about the 2nd day of November, 2007, did knowingly and without authority enter upon the premises of Joseph McGirt, located at 490 Windy Hill Road, Apt. 913, for an unlawful purpose, to wit: to hide from pursuing police officers (Count 5).”
Scruggs argues that none of the counts states the time of the alleged offenses; the armed robbery count fails to state with certainty the offense charged because it does not allege which defendant used a handgun in commission of the offense; the aggravated assault counts fail to identify which defendant made the aggravated assaults on the victim; and the criminal trespass count fails to allege a crime.
“A general demurrer challenges the sufficiency of the substance of the indictment, whereas a special demurrer challenges the sufficiency of the form...
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