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
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 were 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.
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
(Citations and punctuation omitted; emphasis added.) 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
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's 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. 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. Smith's argument fails.
Prior to trial, the State submitted a proposed jury instruction on conspiracy. During the charge conference, the trial court announced its intention to give the proposed instruction. Smith's trial counsel objected, saying that the charge "would [not] be of any aid to the jury in this case." The State responded and acknowledged the charge was requested to address the agreement between Messrs. Smith and Kelton Huger. The trial court ultimately decided to give the conspiracy charge, but Smith's trial counsel objected, claiming that the trial court would "also have to give [the jury] the option to render a verdict on conspiracy." The trial court reiterated its decision to give the conspiracy instruction, which it gave during its charge.
"When the evidence supports a finding of conspiracy, it is not error for the trial court to charge the jury on the subject of conspiracy even if a conspiracy is not alleged in the indictment." Mosley v. State, 296 Ga.App. 746, 751(4), 675 S.E.2d 607 (2009) (citing Edge v. State, 275 Ga. 311, 313(6), 567 S.E.2d 1 (2002)). See also Holmes v. State, 272 Ga. 517, 519(6), 529 S.E.2d 879 (2000) (same); Drake v. State, 266 Ga.App. 463, 466(3), 597 S.E.2d 543 (2004) (same). Furthermore,
(Punctuation omitted.) Edge, 275 Ga. at 313(6), 567 S.E.2d 1.
Smith's specific objection — that the conspiracy instruction was improper because he was not separately charged with conspiracy — is unfounded. See Edge, 275 Ga. at 313(6), 567 S.E.2d 1; Holmes, 272 Ga. at 519(6), 529 S.E.2d 879; Mosley, 296 Ga.App. at 751(4), 675 S.E.2d 607; Drake, 266 Ga. App. at 466(3), 597 S.E.2d 543. Moreover, the evidence adduced at trial revealed that Smith's robberies followed a similar pattern — he wore similar clothing for each robbery, used similar notes, exhibited similar behavior (including the use of the phone), and occurred at similar times of day. In addition, Smith's notes began to specifically ask for large denominations after the first two robberies yielded smaller denominations. Finally, testimony demonstrated that Smith and Kelton Huger participated in the robberies pursuant to an agreement. See Edge, 275 Ga. at 313(6), 567 S.E.2d 1. Therefore, it
(b) Next, Smith asserts that the trial court erred in its jury instruction on robbery by intimidation because it defined the crime in a manner not alleged in the indictment. We are not persuaded.
During the charge conference, the trial court stated that it would redact "or another" from the State's proposed jury instruction on robbery by intimidation (which, as noted infra, comported with the pattern jury instruction for robbery by intimidation). Although Smith's trial counsel then observed that the proposed charge quoted the entire statute on robbery by intimidation, rather than being "tailored to these facts and to this indictment," trial counsel concluded that "if the Court wishes to read the statute in its entirety that's fine." As a result, the trial court gave the following instruction:
Trial counsel did not object to the trial court's instruction at the close of its charge. Smith now contends that the trial court should have given a more narrowly tailored instruction that referred to Smith "showing [the victim] a threatening note."
As a threshold matter, because Smith failed to raise this argument as a "specific objection and the grounds for such objection before the jury retire[d] to deliberate," OCGA § 17-8-58(a), the argument has been waived. See OCGA § 17-8-58(b). Nonetheless, we are required to evaluate the allegedly erroneous jury instruction for plain error. See OCGA § 17-8-58(b); Alvelo v. State, 290 Ga. 609, 614(5), 724 S.E.2d 377 (2012); State v. Kelly, 290 Ga. 29, 32-33(2)(a), 718 S.E.2d 232 (2011); Reyes v. State, 322 Ga.App. 496, 501(4), 745 S.E.2d 738 (2013).
When analyzing jury instructions for plain error, we consider four prongs:
Reyes, 322 Ga.App. at 501, 745 S.E.2d 738 (emphasis added). See also Kelly, 290 Ga. at 32-33(2)(a), 718 S.E.2d 232. "Stated more succinctly, the proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings." (Punctuation omitted.) Alvelo, 290 Ga. at 615(5), 724 S.E.2d 377.
"Where the indictment charges a defendant committed an offense by one method, it is reversible error for the court to instruct the jury that the offense could be committed by other statutory methods with no limiting instruction." Sharpe v. State, 291 Ga. 148, 151(4), 728 S.E.2d 217 (2012). Such
In this case, there is no error. At the outset, we note that the instruction given by the trial court comports with the relevant pattern jury instruction for robbery by intimidation. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, 4th ed. (2007) § 2.60.40.
When viewed in its entirety, we conclude that the trial court's charge properly limited the jury's consideration to the offense of robbery by intimidation as alleged in the indictment. See Mikell, 286 Ga. at 724(2)(b), 690 S.E.2d 858; Tiller, 314 Ga.App. at 475(3), 724 S.E.2d 397. Accordingly, there is no plain error. See Alvelo, 290 Ga. at 614(5), 724 S.E.2d 377; Kelly, 290 Ga. at 32-33(2)(a), 718 S.E.2d 232; Reyes, 322 Ga.App. at 501(4), 745 S.E.2d 738.
4. Finally, Smith argues that he received ineffective assistance of counsel due to counsel's failure to object to hearsay testimony by Kelton Huger concerning the nature of an alleged conspiracy.
Under Georgia law,
(Citations and punctuation omitted). Copeland v. State, 327 Ga.App. 520, 527(3), 759 S.E.2d 593 (2014). If an appellant fails to satisfy either prong of the test for ineffective assistance of counsel, it is not incumbent upon this Court to examine the other prong. See, e.g., Thomas v. State, 318 Ga.App. 849, 857(5), 734 S.E.2d 823 (2012).
At trial, Huger testified that he was Smith's driver for certain bank robberies. He would drive for Smith after receiving a telephone call from an Ali Cole, from whom Huger previously purchased marijuana. The first call came prior to the Wachovia robbery, when Cole asked Huger "if [he] wanted to make some money on that day" and to drive Smith. Huger then detailed Cole's instructions to Smith, including Smith's attire and maintaining telephone contact inside the bank. Each subsequent robbery occurred in the same manner. Trial counsel did not object to Huger's testimony concerning Cole's participation in the robberies, testifying during the motion for new trial hearing that Huger would be viewed as a hardened criminal and would not be given credibility by the jury.
Pretermitting the question of whether it was error by trial counsel to fail to object to Huger's testimony concerning Cole's involvement, we find that, in view of the overwhelming evidence of Smith's guilt beyond Huger's testimony, Smith has failed to demonstrate a reasonable probability that the result of his trial would have been different but for trial counsel's failure to object. See Thomas, 318 Ga.App. at 857(5), 734 S.E.2d 823; Jackson v. State, 306 Ga.App. 33, 37-38(2), 701 S.E.2d 481 (2010). Accordingly, we conclude that Smith has failed to satisfy his burden of proof to show ineffective assistance of trial counsel.
Judgment affirmed.
MILLER and BRANCH, JJ., concur.