Armstrong v. State

752 S.E.2d 120, 325 Ga. App. 33, 2013 Fulton County D. Rep. 3872, 2013 WL 6085232, 2013 Ga. App. LEXIS 956
CourtCourt of Appeals of Georgia
DecidedNovember 20, 2013
DocketA13A1490
StatusPublished
Cited by6 cases

This text of 752 S.E.2d 120 (Armstrong v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Armstrong v. State, 752 S.E.2d 120, 325 Ga. App. 33, 2013 Fulton County D. Rep. 3872, 2013 WL 6085232, 2013 Ga. App. LEXIS 956 (Ga. Ct. App. 2013).

Opinion

Ray, Judge.

After a jury trial, Dexter Otis Armstrong was convicted of seven counts of aggravated assault (OCGA § 16-5-21 (a) (l)).1 He appeals from those convictions and from the denial of his motion for new trial, arguing that the trial court erred in failing to give requested jury instructions, in allowing a witness to give improper character evidence, and in failing to replace a sleeping juror with an alternate juror. He also challenges the sufficiency of the evidence and contends that his trial counsel rendered ineffective assistance. Armstrong further argues that he should be acquitted because he was not tried [34]*34within two terms of court despite his demand for a speedy trial. Finding no reversible error, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict.” (Citation and punctuation omitted.) Moore v. State, 319 Ga. App. 696 (738 SE2d 140) (2013). See also Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). So viewed, the evidence shows that on October 19, 2008, an armed man, later identified as Gary Mathis, entered the Thai Video store in Riverdale where Steven Ratsamy, Kelly Babb, Bounmy Kong, Mose Brown, Maceo Hill, and another man, known as Anthony, were playing poker and watching television. Mathis pointed his gun at the men and yelled “ATF, get on the ground.” Believing the store was being raided by the government, the customers got down on the floor. A shot was then heard throughout the store, and it was later discovered that the store’s owner had been shot.

The witnesses were lying face down during much of the incident, but they testified that they heard the voices of at least three perpetrators. Ratsamy testified that a second man, who was muscular and dark-skinned, pointed a gun at him and said “I want to shoot you.” After searching the store and stealing what they could, Ratsamy heard the men ask “Where the money at? This ain’t all of it. This ain’t enough. Where it at? You know where the money at.” Ratsamy testified that the men then stole his “car payment money” from him. Hill testified that the men stole about $600 or $700 from him.

Two of the perpetrators then took Kong, one of the store’s employees, to the back office and showed them the dead body of his father-in-law, the store’s owner. Kong was then asked “Where’s the money? Where’s the money?” Aperpetrator pointed a gun at Kong and told him “I’m going to shoot you right now.”

Mose testified that while he was hiding under a table, he heard one of the perpetrators yell out “I lost my telephone. Call Black. Call Black.” After the robbery, the perpetrators remained inside the store searching for the cell phone. One of the men stole a cell phone from a customer. The missing cell phone was eventually located when the man used the stolen phone to call the missing one. Once the phone was found, the perpetrators fled the store.

Upon responding to the scene, police officers observed the body of a deceased Asian male in the back room. He had $3,700 in his pocket and a bloody $ 100 bill in his hand. The victim died of a gunshot wound to the neck.

Teresa Anderson was Armstrong’s live-in girlfriend at the time of the incident. Anderson testified that on the day of the incident, Armstrong left their home at approximately 8:30 a.m. and took his son’s cell phone with him. At approximately 1:30 p.m., Armstrong [35]*35called Anderson from his son’s cell phone and urgently asked her to meet him at a nearby gas station. At the gas station, Armstrong got into Anderson’s car and said, “I got something I need to tell you, but I don’t want to tell you.” He then told her that he and his friends, Mathis and Kilgore, had robbed a video store. He further told her that, during the robbery, the store’s owner had pointed a gun at Armstrong, and Mathis had shot the store’s owner. Armstrong then gave Anderson $650 and askedher to take it home. When she refused, Armstrong concealed it in Anderson’s car and drove away in his own car. Before they parted, he showed her an additional $600 that he had “stashed” and said that the other men were unaware of it. Anderson testified that she and Armstrong were being evicted from their apartment the following day, and that Armstrong used the robbery proceeds to pay for cell phone bills and car repairs.

The State presented evidence of cell phone records showing that, shortly before 1:00p.m. on the dayofthe robbery, a call was placed from Armstrong’s son’s cell phone to Kilgore’s (Armstrong’s co-defendant) cell phone. Cell phone records also showed that Armstrong’s son’s cell phone was used to call Anderson at 1:11 p.m. There was also evidence that Armstrong’s son’s cell phone was in close proximity to the cell phone tower closest to the Thai Video store during the time of the incident.

1. Armstrong contends that the evidence presented by the State was insufficient to authorize his convictions for aggravated assault, arguing that the evidence presented was insufficient to place him at the scene of the crime because none of the witnesses positively identified him as a perpetrator at the scene and his fingerprints were not among those recovered from the scene. He argues that the only evidence placing him at the scene is the testimony of his girlfriend, Anderson, and that such evidence, standing alone, was insufficient to convict him. We disagree.

When reviewing whether the evidence was sufficient to support the conviction,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crimes charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon [36]*36judicial review all the evidence is to be considered in the light most favorable to the prosecution.

(Punctuation and footnote omitted.) Roberts v. State, 322 Ga. App. 659, 662 (2) (a) (745 SE2d 850) (2013).

The State presented the testimony of Anderson, Armstrong’s girlfriend, that Armstrong had confessed that he was at the Thai Video store, that he had participated in the robbery, that Kilgore had saved his life when the store’s owner pointed a gun to his head, and that he had at least $650 in proceeds from the robbery. However, this was not the only evidence presented at trial. The State also presented the testimony of several of the customers that at least three men were present at the store and at least two of the men had guns. The State also presented circumstantial evidence that Armstrong was at the store at the time of the robbery based on cell phone records reflecting that a call he made from a cell phone in his possession placed him near the store and that he had called one of his co-conspirators prior to the robbery. Although there was no scientific evidence or eyewitness identification of Armstrong,

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Kilgore v. State
763 S.E.2d 685 (Supreme Court of Georgia, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
752 S.E.2d 120, 325 Ga. App. 33, 2013 Fulton County D. Rep. 3872, 2013 WL 6085232, 2013 Ga. App. LEXIS 956, Counsel Stack Legal Research, https://law.counselstack.com/opinion/armstrong-v-state-gactapp-2013.