Simpson v. State

• Decision Date: 18 September 2008
• Docket Number: No. A08A1562.,A08A1562.
• Citation: 293 Ga. App. 760,668 S.E.2d 451
• Parties: SIMPSON v. The STATE.
• Court: Georgia Court of Appeals

668 S.E.2d 451

293 Ga. App. 760

SIMPSON v. The STATE.

No. A08A1562.

Court of Appeals of Georgia.

September 18, 2008.

Reconsideration Denied October 1, 2008.

Barry Staples, Marietta, for appellant.

Patrick H. Head, District Attorney, Amelia G. Pray, Assistant District Attorney, for appellee.

ELLINGTON, Judge.

A Cobb County jury found Michael Simpson guilty beyond a reasonable doubt of armed robbery, OCGA § 16-8-41(a); false imprisonment, OCGA § 16-5-41(a); theft by receiving stolen property, OCGA § 16-8-7(a); possession of a firearm during the commission of a crime, OCGA § 16-11-106(b); and two misdemeanor traffic violations.¹ He appeals from the denial of his motion for new trial, contending that the evidence was insufficient to support his convictions; that the trial court improperly admitted his custodial statement, his co-defendant's custodial statement, and other evidence; and that the court erred in failing to merge his false imprisonment conviction with his armed robbery conviction. Finding no reversible error, we affirm.

1. Simpson contends that the evidence was insufficient to sustain his convictions for theft by receiving stolen property² and possession of a firearm during the commission of a crime.³ He argues that there was no evidence that he knew the weapon used in the armed robbery was stolen or that he was a party to the crimes of theft by receiving or possession of a firearm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, we must uphold the jury's verdict.

(Citations omitted.) Rankin v. State, 278 Ga. 704, 705, 606 S.E.2d 269 (2004). The standard of Jackson v. Virginia is met if the evidence is sufficient for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crime charged. Clark v. State, 275 Ga. 220, 221(1), 564 S.E.2d 191 (2002).

Viewed in this light, the evidence showed that, on September 23, 2006, Simpson and at least three friends decided to go to a club. Simpson borrowed his father's Jeep Cherokee and drove the men to a Cobb County apartment complex so that one of the men could stop and get money from an acquaintance. While driving there, one of the men showed a .357 handgun to the others. The men tried to load some .44 rounds in the handgun, but they did not fit.

When the men got out of the car at the apartments, Simpson asked them whether they had the handgun with them. They saw a man standing outside an apartment, talking on a cell phone. They approached the man from behind, grabbed his arms, and pulled him to a darker area against a van. While one of the assailants pointed a handgun to the victim's neck, Simpson and another assailant held onto the victim and searched his pockets. The assailants took the victim's cell phone and some cash. The victim's friends looked out an apartment window, saw that he was being robbed, and started to chase the assailants, and the assailants ran in different directions. While running, one of the assailants dropped the handgun. Two of the assailants got into the Jeep Cherokee and drove around the apartments, eventually picking up Simpson and another assailant.

The victim and his friends called 911, and police officers arriving at the scene observed a Jeep Cherokee stopped in an awkward position at the entrance of an adjacent apartment complex. The driver of the Jeep then drove down the street without the car's headlights on. The officers conducted a traffic stop and detained the four men inside the car. At the time of the stop, Simpson was driving the car, and his clothing matched the description of one of the assailants that had been given by the victim. Officers brought the victim and one of his friends to the scene of the stop, and the victim identified Simpson as the man who held his arm and searched his pockets. Meanwhile, while searching the area around the attack, police officers found the handgun used by the assailants. The owner of the handgun testified that someone had stolen it a few days before the armed robbery from a house in the same neighborhood where one of the assailants lived.

The State charged the men with armed robbery, two counts of aggravated assault (with intent to rob and with a deadly weapon) false imprisonment, theft by receiving stolen property (the handgun), and possession of a firearm during the commission of a crime. They also charged Simpson with two traffic violations. Two of the assailants pleaded guilty prior to trial, and they testified at the trial of Simpson and a co-defendant, Rashun Elamin. The State argued to the jury that Simpson was guilty of the charged offenses as either an actual participant or as a party to the crimes.

Under OCGA § 16-2-20(a), "[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime." Under OCGA § 16-2-20(b) a person is "concerned in the commission of a crime" if he or she:

(1) Directly commits the crime;

(2) Intentionally causes some other person to commit the crime under such circumstances that the other person is not guilty of any crime either in fact or because of legal incapacity;

(3) Intentionally aids or abets in the commission of the crime; or

(4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime.

If someone other than the defendant was the actual perpetrator of the crime, the defendant's mere presence at the scene of the crime is not sufficient evidence to establish that the defendant was a party to the crime. Pruitt v. State, 282 Ga. 30, 32(1), 644 S.E.2d 837 (2007). Instead, it is necessary to prove that the defendant shared a common criminal intent with the actual perpetrator; such intent may be demonstrated by showing the defendant's conduct before, during, and after the crime. Id.

We find that, when viewed in favor of the jury's verdict, the evidence of Simpson's conduct before, during and after the crimes was sufficient for a rational factfinder to conclude that Simpson was guilty beyond a reasonable doubt as a party to the crimes of theft by receiving stolen property and possession of a firearm during the commission of a crime.

2. Simpson contends that the trial court erred in admitting his custodial statement, arguing that it was not voluntary because it was induced by the officer's promise that he would get a "favor" if he cooperated with the police. We disagree.

Under Georgia law, only voluntary incriminating statements are admissible against the accused at trial. OCGA § 24-3-50. When not made freely and voluntarily, a confession is presumed to be legally false and cannot be the underlying basis of a conviction. To make a confession admissible, it must have been made voluntarily, i.e., without being induced by another by the slightest hope of benefit or remotest fear of injury.... The State bears the burden of demonstrating the voluntariness of a confession by a preponderance of the evidence.

(Citations and punctuation omitted.) State v. Ray, 272 Ga. 450(2), 531 S.E.2d 705 (2000). "Unless clearly erroneous, a trial court's factual and credibility determinations related to the admissibility of a confession will be upheld on appeal." (Citation and punctuation omitted.) Swain v. State, 285 Ga.App. 550, 551, 647 S.E.2d 88 (2007).

Pretermitting whether Simpson's statement was a confession to the crimes or simply an incriminating statement,⁴ the record shows the following. During the Jackson-Denno⁵ hearing, the State played an audiotape of Simpson's interview.⁶ Other than that evidence, the only person who testified during the hearing was the officer who interviewed Simpson. He testified that Simpson, who was 15 years old, said that he wanted his father to be present during the interview, so the officer postponed the interview until Simpson's father arrived. Both Simpson and his father signed the waiver of rights form.

According to the Jackson-Denno hearing transcript, it appears that, during Simpson's interview, the officer told Simpson that he had already interviewed the other men involved in the robbery. The officer said that one of the men had told him the truth but the other two did not, so they would get no "favors" from him. When asked about this statement during the hearing, the officer denied that he was telling Simpson that, if Simpson told him the truth about the robbery, he (Simpson) would get a favor. The officer testified that, instead, he was telling Simpson that the other men would no longer have the chance to talk to him and "come clean" because they had lied to him and "wasted [his] time." Following this testimony, defense counsel did not cross-examine the officer about the "favors" reference, and counsel acknowledged that the court had "addressed the matter."

The trial court ultimately found that the officer's reference to "favors" was not an offer of an improper favor to Simpson, nor was there evidence of any threats. It concluded that Simpson freely and voluntarily gave his custodial statement and admitted it as evidence against Simpson.⁷

As this Court has previously held, "[t]he promise of a benefit that will render a confession involuntary under OCGA § 24-3-50 must relate to the charge or sentence facing the suspect. The phrase `hope of benefit' generally means the reward of a lighter sentence." (Citation and punctuation omitted.) Jones v. State, 270 Ga.App. 233, 237(1)(b), 606 S.E.2d 288 (2004) (a statement by...