Smith v. State

• Decision Date: 16 July 2015
• Docket Number: No. A15A0327.,A15A0327.
• Citation: 333 Ga.App. 256,775 S.E.2d 735
• Parties: SMITH v. The STATE.
• Court: Georgia Court of Appeals

333 Ga.App. 256

775 S.E.2d 735

SMITH

v.The STATE.

No. A15A0327.

Court of Appeals of Georgia.

July 16, 2015.

David D. Marshall, for Appellant.

Robert D. James Jr., Dist. Atty., Deborah D. Wellborn, Asst. Dist. Atty., for Appellee.

Opinion

ANDREWS, Presiding Judge.

A DeKalb County jury returned guilty verdicts against Daryl Austin Smith for four counts of robbery by intimidation (OCGA § 16–8–40(a)(2) ), and the trial court sentenced Smith to an aggregate term of 25 years in confinement followed by 15 years of probation. The trial court denied Smith's motion for new trial as amended, and Smith appeals. Finding no error, we affirm.

1. Viewed in a light most favorable to the jury's verdicts, the evidence adduced at trial revealed that DeKalb County suffered a rash of bank robberies in May and June 2010. Smith was indicted for four of those robberies.

(a) Count 1. The evidence showed that Robert Leadingham was working as a teller at a Wachovia Bank branch on Clairmont Road. On May 27, 2010, a man entered the bank and appeared “uneasy” and “unsure.” The man was dressed in a white shirt, hat, and sunglasses. Leadingham, who was in the lobby area of the bank, greeted the man and attempted to sell him an account. Although the man declined, saying he did not have proper identification, Leadingham suggested the man meet with the branch manager. After meeting with the manager, the man left. Leadingham returned to the teller area behind the counter. Approximately 30 minutes later, the man returned; Leadingham, who was working in the drive-through area, spotted the man and approached him. The man placed a handwritten note on the counter. The note stated that the man “wanted all the money in the bank, he had a gun, and he was willing to kill everyone in the bank for the money.” The man then told Leadingham that the man would “follow through with [the note]” and gave him a grocery bag. In disbelief, Leadingham collected money from different cash drawers, including a cash bundle equipped with a GPS tracking device, and placed the money in the grocery bag. Leadingham tried to get smaller denomination bills so the man would think he had more cash. Leadingham also calmed another teller who was upset by the robbery. Leadingham then returned the bag to the man, and the man ran from the bank.

(b) Count 2. Evidence demonstrated that Mary Rasheed was working as a teller supervisor at a SunTrust Bank branch on Lavista Road. In the early afternoon hours of June 9, 2010, a man walked into the bank, sat down, and left a few moments later. The next day at about the same time, a different man entered the bank, sat down for a few moments, and then approached Rasheed's window at the teller counter. The man was dressed in a long-sleeve white shirt, jeans, a cap, and sunglasses. The man handed Rasheed a note, which stated, in part, “[t]his is not a joke[;] I'm not playing no games.” Rasheed was frightened and collected money from her cash drawer, placed it in a plastic bag given to her by the man, and returned it to the man. The cash Rasheed gave the man consisted of 20 dollar bills and smaller denominations. The man then left the bank.

(c) Count 3. Evidence revealed that Rhonda Byars was a manager at the Chase Bank at the corner of Flakes Mill Road and Flat Shoals Parkway. In the early afternoon on June 17, 2010, Byars was assisting tellers by working in the teller line. A man approached her window and placed a folded note on the counter. The man was wearing a T-shirt, hat, and sunglasses, and held a cellular telephone to his ear. The man also had tattoos on his arm. The note given to Byars stated that the man wanted “hundreds and fifties” and directed Byars “not to do anything stupid, not to hit any buttons or they would kill everybody in the branch.” The note closed with the statement, “this is for real[;] I'm not playing.” Byars was “startled and surprised,” obtained cash from a cash dispensing machine, and placed the cash on the counter. The man grabbed the cash and fled.

(d) Count 4. On June 23, 2010, Laura Lack was working as a manager at a Chase Bank branch on North Decatur Road. Like Byars, Lack would assist tellers by working in the teller line as needed. Lack was working in the teller line in the early afternoon hours of June 23 when a man walked up to Lack's window and placed a note on the counter. The man had a cellular telephone to his ear and was wearing a white T-shirt, jeans, and sunglasses. The note demanded that Lack “do exactly what I say or I will blow you up[;] give me all of your fifties and hundreds and put it in the bag.” Lack, not being given a bag by the man, retrieved two one hundred dollar bills and four fifty dollar bills from her drawer, placed them in a “drive-through envelope,” and gave the envelope to the man. The man said, “that's not enough; give me the rest in your top drawer” and “put it in the bag.” Upon realizing he had not given Lack a bag, the man produced a brown grocery bag and gave it to Lack. Lack put the additional cash in the bag and returned it to the man. Although Lack attempted to keep the note, the man grabbed it and then left the bank.

Law enforcement believed that the four robberies at issue were part of a larger collection of 14 to 15 robberies which occurred during May and June 2010 and that, despite as many as four or five suspects in those robberies, the same suspect committed each of the four robberies at issue. One factor in law enforcement's investigation was the tattoos on the suspect's arms. Relatives identified Smith from media coverage of the robberies and telephoned a law enforcement tip line. Law enforcement then began investigating Smith. Smith was arrested at his apartment on July 16, 2010. Leadingham, Rasheed, and Lack identified Smith in court as the person who robbed them.

2. Smith first contends that the State presented insufficient evidence to convict him of robbery by intimidation in Counts 1 (Wachovia) and 4 (Chase), arguing that the State failed to present any evidence of intimidation. Smith's argument is unpersuasive.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only 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) ]. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld.

Bradford v. State, 327 Ga.App. 621, 760 S.E.2d 630 (2014). A person commits robbery by intimidation when, “with intent to commit theft, he takes property of another from the person or the immediate presence of another ... [b]y intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another [.]” OCGA § 16–8–40(a)(2). A taking by intimidation

is the “distinguishing characteristic” of robbery—the “gist” of the offense. The force necessary for robbery is actual violence or intimidation exerted upon the person robbed, by operating upon his fears—the fear of injury to his person, or property, or character. Intimidation is that terror likely to create an apprehension of danger, and induce a person to part with his property for the safety of his person. Intimidation is that act by the perpetrator which puts the person robbed in fear sufficient to suspend the free exercise of his will or prevent resistance to the taking. A threat by a perpetrator to inflict harm constitutes the requisite force or intimidation if that threat of harm induces the victim/possessor of property to relinquish possession.

(Citations and punctuation omitted; emphasis supplied.) Hewitt v. State, 277 Ga. 327, 329–330(1)(b), 588 S.E.2d 722 (2003). “Circumstantial evidence need not exclude every other hypothesis save that of the accused's guilt but only reasonable inferences and hypotheses, and it [is] for the jury to determine whether all reasonable hypotheses [have] been excluded.” Id.

Here, the evidence demonstrated that Smith gave Leadingham a note stating that Smith “wanted all the money in the bank, he had a gun, and he was willing to kill everyone in the bank for the money.” Smith also told Leadingham that Smith would “follow through with [the note].” In disbelief, Leadingham collected money from different cash drawers and attempted to calm another teller who was upset by the robbery. Similarly, Smith gave Lack a note to “do exactly what I say or I will blow you up[;] give me all of your fifties and hundreds and put it in the bag.” Both Leadingham and Lack testified that their goal was to simply get Smith out of their respective banks.

As a result, the jury could have inferred that the threatening notes delivered by Smith—each claiming to inflict death or serious injury absent compliance with his demands—coupled with his behavior constituted the requisite intimidation to induce Leadingham and Lack to surrender the banks' cash. See Hewitt, 277 Ga. at 329(1)(b), 588 S.E.2d 722. The jury was authorized to find that Smith obtained the cash through intimidation, see id., and, accordingly, we conclude that the evidence was sufficient to find Smith guilty beyond a reasonable doubt of Counts 1 and 4 of the indictment. See Jackson v. Virginia, 443 U.S. at 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; Bradford, 327 Ga.App. at 621, 760 S.E.2d 630.

3. In his next two enumerations of error, Smith contends the trial court erred in giving a jury instruction on conspiracy and in improperly giving the jury instruction on robbery by intimidation. Neither claim has merit.

(a) First, Smith argues that the trial court should not have given a jury instruction on conspiracy because Smith was not charged with the separate criminal offense of conspiracy. See OCGA § 16–4–8....