PHIPPS, Presiding Judge.
Charles Harrelson, William Poss, and Stephanie Harrelson were jointly indicted for
1. Harrelson contends the trial court erred in denying his motion for a directed verdict of acquittal because the evidence was insufficient to support the convictions. He asserts that he was merely present during the crimes, did not participate in the planning of the armed robbery, did not possess the knife during the robbery, did not touch the victim or his wallet, and did not speak to the victim. We disagree because the evidence was sufficient to support Harrelson's convictions under the theories of conspiracy and parties to a crime, on which the jury was instructed.
Viewed in the light most favorable to the verdict, the evidence shows that during the weekend of July 4, 2005, Harrelson, Poss, and Stephanie Harrelson stayed together at various motels. Stephanie Harrelson was Poss's girlfriend and Harrelson's sister.
Harrelson did not have steady employment or a vehicle. Neither did Poss or Stephanie Harrelson. By Harrelson's own testimony, they all spoke that weekend about "a hundred different" ways to get money, some of which included Stephanie Harrelson picking up someone at a bar and taking him back to their motel room to be mugged, robbing liquor stores or gas stations, or snatching someone's purse. According to Poss and Stephanie Harrelson, they also discussed stealing a car or robbing a bank. While discussing the various ways of getting money, Poss remarked that he thought Harrelson was joking. When Stephanie Harrelson remarked that she thought Harrelson was serious, Harrelson said, "[Y]ou're damn right I'm being serious." At some point during the weekend, Harrelson and Poss were informed that warrants were outstanding for their arrests.
The motel at which Harrelson, Poss, and Stephanie Harrelson stayed on July 5, 2005 was within a short walking distance of a grocery store. Harrelson and Poss walked from the motel to the store, and back to the motel, three to four times within a thirty-minute period.
The victim testified that the two men continued to walk past his vehicle, but then the same man who had asked for a ride turned around as though "he wanted to fight or something." The victim, who exited his vehicle, testified that "then [the man] came at me with a knife real quick and got me right in my door . . . and I couldn't go anywhere." The man held the knife to the victim's stomach and ordered the victim to give him his wallet (which had money in it) and keys. The victim complied and then walked to the front of the vehicle. The man with the knife got into the driver's seat and the other man, who had stood approximately five feet in front of the vehicle during the incident, entered the front passenger side of the vehicle, which was driven away. The victim called the police. The victim made an in-court identification of Harrelson as the man who had gotten into the passenger seat, and Harrelson's trial counsel stipulated that Harrelson had been "present at the time all this happened."
Harrelson testified that he stood approximately 15 feet away from the car, and that he got into the car because Poss (who was already seated in the vehicle) pointed a knife at him and told him to get in. Contrary to Harrelson's assertions, however, Poss testified that he did not threaten Harrelson with a knife to make him get in the vehicle. Harrelson testified that the knife, which had a 3½ to 4 inch long blade, was his, but that a few days prior to the crimes he had loaned the knife to Poss.
Harrelson and Poss drove to the motel to pick up Stephanie Harrelson; there, Harrelson told her, "come on, let's go." They then started driving to Florida. A police car got behind them, and a high-speed car chase and then a foot chase ensued, resulting in the apprehension of the three defendants. According to Stephanie Harrelson, during the car chase, Poss wanted to turn himself in, but Harrelson did not.
Although Harrelson denied that he ever handled the victim's wallet, the wallet was recovered at the location where the car came to rest, on the ground to the rear of the vehicle, on the front passenger side (where Harrelson had sat); Poss testified that the last time he touched the wallet was when he had placed it on the center console of the vehicle.
On cross-examination, Harrelson testified, "I knew that what I had did when I got in the car was wrong."
(a) Hijacking a motor vehicle. Harrelson was indicted for hijacking a motor vehicle in that he did "unlawfully conspire to obtain a motor vehicle . . . from the person and presence of [the victim] by force, violence, and intimidation, and did intentionally aid and abet . . . in the commission of said crime. . . ."
A person commits the offense of hijacking a motor vehicle when "such person while in possession of a . . . weapon obtains a motor vehicle from the person or presence of another by force and violence or intimidation or attempts or conspires to do so."
The plain terms of OCGA § 16-5-44.1(b) and the indictment specify conspiracy as a method of committing the crime of hijacking a motor vehicle.
The trial court instructed the jury on conspiracy, which, to a certain extent, mirrors the concept of parties to a crime.
A defendant is a party to a crime "if he intentionally aids or abets the commission of the crime, or advises, encourages, hires, counsels, or procures another to commit it."
"Mere presence at the scene is not sufficient to convict one of being a party to a crime, but criminal intent may be inferred from conduct before, during, and after the commission of a crime."
In this case, there was ample evidence from which a jury could have concluded that Harrelson was more than "merely present" when Poss committed the offense of hijacking a motor vehicle by his conduct before, during, and after the criminal acts. The jury was authorized to find Harrelson guilty beyond a reasonable doubt of hijacking a motor vehicle, based on his involvement as a party to the crime or as a co-conspirator.
(b) Armed robbery. Harrelson was indicted for armed robbery for allegedly taking money from the victim by use of a knife.
A person commits the offense of armed robbery "when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon. . . ."
The victim's testimony that Poss held a knife to his stomach while demanding the victim's wallet (which contained money) sufficed to prove the commission of an armed robbery.
(c) Aggravated assault. Harrelson was indicted for aggravated assault for allegedly assaulting the victim with a knife, a deadly weapon.
A person may commit the offense of aggravated assault by assaulting another person "[w]ith a deadly weapon."
The victim's testimony that Poss held a knife against his stomach while he demanded the victim's wallet and keys to the vehicle sufficed to prove the commission of an aggravated assault.
(d) Possession of a knife during the commission of a crime. Harrelson was indicted for possession of a knife during the commission of a crime (a felony) for allegedly having "on and within arm's reach of his person, a knife having a blade three (3) inches and more in length . . . during the commission of Hijacking a Motor Vehicle, Armed Robbery, and Aggravated Assault.. . ."
OCGA § 16-11-106(b), in pertinent part, provides:
Given our disposition of Division 1(a), the jury was authorized to find beyond a reasonable doubt that Harrelson was guilty of possession of a knife during the commission of a crime as a party to the crime or co-conspirator, for which the underlying offenses were hijacking a motor vehicle, armed robbery, and aggravated assault.
2. Harrelson contends the trial court erroneously denied his motion for a new trial because in closing argument, the prosecutor improperly commented on his post-arrest right to silence. Georgia law prohibits the state from commenting on a criminal defendant's post-arrest silence, even when the defendant takes the stand in his own defense.
Here, the evidence shows that defense counsel repeatedly brought out at trial the fact that no statement from Harrelson existed because Harrelson had a constitutional right to not talk with the police and he exercised that right. The first time was during cross-examination of a detective, and the second time was upon recross-examination of the same detective. And at three different times during closing argument, defense counsel brought out the fact that no statement from Harrelson existed and that Harrelson chose to not talk with the police; one time counsel commented that Harrelson was smart to exercise his right to not talk with the police. The prosecutor, in closing argument, then stated that Harrelson had a right to not talk to the police, and she asked whether talking to the police was the first thing an innocent person does when they see the police.
"Typically, questioning about and commenting upon a defendant's silence or failure to come forward is more prejudicial than probative."
3. Harrelson contends that because no arrest warrant existed, the trial court erred in denying his motion in limine to exclude evidence that he had been told that a warrant for his arrest was outstanding. The evidence, Harrelson argues, improperly placed his character in issue. We disagree.
On direct examination, Harrelson testified that he had entered the hijacked vehicle "[o]ut of pure shock and fear," in response to Poss pointing a knife at Harrelson, and "scream[ing]" at him to get in the vehicle. Outside the presence of the jury, the prosecutor asked the court for permission to elicit evidence to rebut Harrelson's testimony that he had entered the vehicle out of shock and fear. The prosecutor requested permission to present evidence that an additional different motive, than what Harrelson had testified to, for getting into the vehicle was that he was fearful of being arrested "whether it be on his probation warrant . . . or on this new warrant that he thought was outstanding." During the state's case, Poss had testified that after they had picked up Stephanie Harrelson, they were "headed to Florida." Based on the court's ruling, the prosecutor elicited testimony from Harrelson that a day or two before the incident, Poss told him that a warrant for his arrest was outstanding; and Harrelson did not want to go to jail.
"While motive is not an essential element in the proof of a crime, the State is entitled to present evidence to establish that there was a motive. Evidence which is relevant to an issue in a case is not rendered
Evidence that Harrelson, who had no vehicle of his own, was told of an outstanding warrant for his arrest, was admissible as original evidence to rebut his explanation that he entered the vehicle out of shock and fear, and to explain the state's theory that his motives and conduct were instead based on the fact that he was told that a warrant for his arrest was outstanding and he did not want to be arrested.
4. Harrelson contends the trial court erred in recharging the jury on the law of conspiracy, absent a request to do so.
After the jury began deliberations, it submitted the following question to the court: "Judge, is the charge of hijacking separate from aiding and abetting or are the two combined?" The trial court inquired of defense counsel and the prosecutor "where did they get the aiding and abetting. Is that in the indictment?" The court reviewed the indictment and noted that the words "aid and abet" were included in the indictment to allege the offense of hijacking a motor vehicle and conspiracy.
Later in deliberations the jury posed another question: "what constitutes intentional aiding and abetting as set forth in the indictment on Counts 4, 3, 2, and 1?" Defense counsel again suggested that the court repeat for the jury the entire instructions or charge the jury solely on the definition of intent. This time, the court recharged the jury as originally charged on the definitions of intent and conspiracy; the recharge included instructions defining intent, that the state had to prove intent beyond a reasonable doubt, and that the defendant was not presumed to have acted with criminal intent.
"In determining whether the recharge contained error, it is fundamental that we must look at not only the recharge but the original charge as well, as jury instructions must be read and considered as a whole in determining whether the charges contain error."
"As a general rule, the need, breadth, and formation of additional jury instructions are left to the sound discretion of the trial court."
The original charge of the court presented the law applicable to the case and was not likely to confuse the jury. The court charged, inter alia, on the presumption of innocence, reasonable doubt, burden of proof, direct and circumstantial evidence, credibility of the witnesses, conflict in the evidence, motive, the definitions of the crimes charged, intent, mere presence, conspiracy, and parties to a crime. Each relevant count of the indictment expressly alleged commission of the offense under the theory of a party to the crime, which embodied the theory of conspiracy.
By its first question, the jury expressed confusion about the relationship between the theory of culpability (i.e., as parties to a crime or conspiracy, by designation of the words "aiding or abetting") and the crime (of hijacking a motor vehicle) itself. The recharge the court gave was responsive, and the jury answered affirmatively when the court asked if the question had been answered.
The record contains no indication that the jury needed any further clarification concerning the entire jury instructions, which Harrelson sought to have repeated.
The trial court recharged the jury as they were initially charged, and the instructions were authorized by the evidence, legally accurate, and addressed only the jury's specific questions.
Judgment affirmed.
ANDREWS and McFADDEN, JJ., concur.
