FIRST DIVISION ELLINGTON, C. J., PHIPPS, P. J., and DILLARD, J.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
January 7, 2013
In the Court of Appeals of Georgia A12A1846. BARNES v. THE STATE.
PHIPPS, Presiding Judge.
In connection with the robbery of a cashier at a gas station, Billy Barnes was
convicted of one count of armed robbery,1 one count of aggravated assault,2 and two
counts of possession of a firearm during the commission of a felony.3 On appeal,
Barnes contends that (1) the evidence was insufficient to support the convictions
because it consisted solely of the testimony of his alleged accomplices, and (2) the
court erred in imposing two sentences on the firearm possession charges when there
1 OCGA § 16-8-41. 2 OCGA § 16-5-21 (a) (1). 3 OCGA § 16-11-106 (b) (1) (pertinently providing that any person who shall have on or within arm’s reach of his person a firearm during the commission of, or attempt to commit, any crime against or involving the person of another and which crime is a felony, commits a felony). was only one victim in the charged incident. For the reasons that follow, we affirm
the conviction for armed robbery and one of the convictions for possession of a
firearm during the commission of a felony.4 We vacate the remaining firearm
possession conviction5 and remand the case for resentencing.
4 At sentencing, Barnes’s aggravated assault conviction merged with his armed robbery conviction. See generally Daniels v. State, 310 Ga. App. 562, 569 (4) (714 SE2d 91) (2011). 5 Regarding the appellate court’s authority to vacate one of the convictions despite Barnes’s failure to specifically assert as error the trial court’s entry of two convictions for firearm possession (his assertion concerns only the sentences imposed thereon), see Williams v. State, 277 Ga. 368, 369 (2) (589 SE2d 563) (2003) (although not raised at trial or on appeal, the conviction and sentence imposed on one of two firearm possession charges were vacated because both charges were based on the continuous possession of one gun against one victim); Thomas v. State, 257 Ga. 24, 25 (4) (354 SE2d 148) (1987) (while not enumerated as error, the conviction and sentence for felony murder was vacated, as appellant was found guilty of the malice murder of the same victim).
2 1. Barnes contends that the evidence was insufficient to support the convictions
because the state relied solely on the testimony of his alleged accomplices.6 This
contention is without merit.
When a criminal defendant challenges the sufficiency of the evidence supporting his or her 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. The jury, not this [c]ourt, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts.7
6 Count 1 pertinently charged Barnes with the offense of armed robbery, for having unlawfully, with intent to commit theft, taken property from the immediate presence of the victim by use of a shotgun. Count 2 pertinently charged Barnes with aggravated assault, for having unlawfully, with intent to rob, made an assault upon the victim (the same victim named in Count 1) by pointing a shotgun and a rifle in her direction. Count 3 pertinently charged Barnes with possession of a firearm during commission of a felony, for having unlawfully had on and within arm’s reach of his person a firearm (to wit, a shotgun), during the commission of a felony (to wit, robbery). Count 4 pertinently charged Barnes with possession of a firearm during the commission of a felony, for having unlawfully had on and within arm’s reach of his person a firearm (to wit, a rifle), during the commission of a felony (to wit, robbery). 7 Robinson v. State, 314 Ga. App. 545, 546 (724 SE2d 846) (2012) (footnote omitted).
3 Viewed in the light most favorable to the prosecution,8 the evidence showed
the following. On the night of January 12, 2009, three masked men, two of whom had
guns, entered a BP gas station (the store). One of the men pointed a gun at the cashier
and demanded money; the cashier described the guns as having long barrels, and
opined that the guns were probably shotguns. The men grabbed money from the
register and several packs of cigarettes, and ran out of the store. Seconds before the
robbery occurred, a silver vehicle occupied by several males was driven through the
store’s parking lot; it was driven very slowly, circled the parking lot, then parked;
after the robbery, the vehicle left.
Responding to a 911 call, police officers arrived at the store and, during their
investigation, found on the ground outside the store a pack of Newport cigarettes. A
crime lab analysis revealed Larry Garard’s fingerprints on the cigarette pack.
On January 15, 2009, officers initiated a traffic stop of a silver passenger
vehicle registered to Tahje Williams; Garard was the driver. Barnes, Garard, Williams
and three other individuals were in the vehicle. Officers found a shotgun in the trunk.
Garard and Williams were arrested, after which they gave the police statements
implicating Barnes in connection with the January 12 robbery. Garard and Williams
8 James v. State, 316 Ga. App. 406 (730 SE2d 20) (2012).
4 both pled guilty to charges of armed robbery and possession of a firearm during the
commission of a felony in connection with the incident. The state called both men as
witnesses at Barnes’s trial.
Garard testified that on January 12, 2009, he, Williams and Talore Blackford
traveled to Barnes’s house in Williams’s four-door silver vehicle; Blackford brought
a shotgun and a rifle to use in the robbery; Barnes, Garard, Williams and Blackford
traveled in Williams’s vehicle to the store; Barnes, Garard and Williams entered the
store, while Blackford waited outside in the parked vehicle; inside the store, Barnes
and Garard had the guns; Garard grabbed money and packs of Newport cigarettes,
dropping a pack of the cigarettes; and Garard left one of the guns used in the robbery
in Williams’s vehicle. Garard testified that the shotgun the officers later found in
Williams’s vehicle was the gun he had used in the robbery.
Williams testified that on or about January 12, 2009, he committed the robbery,
and that Barnes, Garard, and Blackford were with him; that day, Williams had gone
with Garard and Blackford to Barnes’s house, where they picked Barnes up in
Williams’s silver vehicle; Blackford brought a shotgun and a rifle to use in the
robbery; Barnes, Garard and Williams entered the store; Barnes and Garard each had
a gun; Garard obtained the shotgun from Blackford; Garard took money and
5 cigarettes during the robbery; and, after the robbery, Blackford drove the vehicle
away from the store. At trial, Williams identified the shotgun found in his vehicle
during the traffic stop as one used in the robbery. Also at trial, both Garard and
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FIRST DIVISION ELLINGTON, C. J., PHIPPS, P. J., and DILLARD, J.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
January 7, 2013
In the Court of Appeals of Georgia A12A1846. BARNES v. THE STATE.
PHIPPS, Presiding Judge.
In connection with the robbery of a cashier at a gas station, Billy Barnes was
convicted of one count of armed robbery,1 one count of aggravated assault,2 and two
counts of possession of a firearm during the commission of a felony.3 On appeal,
Barnes contends that (1) the evidence was insufficient to support the convictions
because it consisted solely of the testimony of his alleged accomplices, and (2) the
court erred in imposing two sentences on the firearm possession charges when there
1 OCGA § 16-8-41. 2 OCGA § 16-5-21 (a) (1). 3 OCGA § 16-11-106 (b) (1) (pertinently providing that any person who shall have on or within arm’s reach of his person a firearm during the commission of, or attempt to commit, any crime against or involving the person of another and which crime is a felony, commits a felony). was only one victim in the charged incident. For the reasons that follow, we affirm
the conviction for armed robbery and one of the convictions for possession of a
firearm during the commission of a felony.4 We vacate the remaining firearm
possession conviction5 and remand the case for resentencing.
4 At sentencing, Barnes’s aggravated assault conviction merged with his armed robbery conviction. See generally Daniels v. State, 310 Ga. App. 562, 569 (4) (714 SE2d 91) (2011). 5 Regarding the appellate court’s authority to vacate one of the convictions despite Barnes’s failure to specifically assert as error the trial court’s entry of two convictions for firearm possession (his assertion concerns only the sentences imposed thereon), see Williams v. State, 277 Ga. 368, 369 (2) (589 SE2d 563) (2003) (although not raised at trial or on appeal, the conviction and sentence imposed on one of two firearm possession charges were vacated because both charges were based on the continuous possession of one gun against one victim); Thomas v. State, 257 Ga. 24, 25 (4) (354 SE2d 148) (1987) (while not enumerated as error, the conviction and sentence for felony murder was vacated, as appellant was found guilty of the malice murder of the same victim).
2 1. Barnes contends that the evidence was insufficient to support the convictions
because the state relied solely on the testimony of his alleged accomplices.6 This
contention is without merit.
When a criminal defendant challenges the sufficiency of the evidence supporting his or her 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. The jury, not this [c]ourt, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts.7
6 Count 1 pertinently charged Barnes with the offense of armed robbery, for having unlawfully, with intent to commit theft, taken property from the immediate presence of the victim by use of a shotgun. Count 2 pertinently charged Barnes with aggravated assault, for having unlawfully, with intent to rob, made an assault upon the victim (the same victim named in Count 1) by pointing a shotgun and a rifle in her direction. Count 3 pertinently charged Barnes with possession of a firearm during commission of a felony, for having unlawfully had on and within arm’s reach of his person a firearm (to wit, a shotgun), during the commission of a felony (to wit, robbery). Count 4 pertinently charged Barnes with possession of a firearm during the commission of a felony, for having unlawfully had on and within arm’s reach of his person a firearm (to wit, a rifle), during the commission of a felony (to wit, robbery). 7 Robinson v. State, 314 Ga. App. 545, 546 (724 SE2d 846) (2012) (footnote omitted).
3 Viewed in the light most favorable to the prosecution,8 the evidence showed
the following. On the night of January 12, 2009, three masked men, two of whom had
guns, entered a BP gas station (the store). One of the men pointed a gun at the cashier
and demanded money; the cashier described the guns as having long barrels, and
opined that the guns were probably shotguns. The men grabbed money from the
register and several packs of cigarettes, and ran out of the store. Seconds before the
robbery occurred, a silver vehicle occupied by several males was driven through the
store’s parking lot; it was driven very slowly, circled the parking lot, then parked;
after the robbery, the vehicle left.
Responding to a 911 call, police officers arrived at the store and, during their
investigation, found on the ground outside the store a pack of Newport cigarettes. A
crime lab analysis revealed Larry Garard’s fingerprints on the cigarette pack.
On January 15, 2009, officers initiated a traffic stop of a silver passenger
vehicle registered to Tahje Williams; Garard was the driver. Barnes, Garard, Williams
and three other individuals were in the vehicle. Officers found a shotgun in the trunk.
Garard and Williams were arrested, after which they gave the police statements
implicating Barnes in connection with the January 12 robbery. Garard and Williams
8 James v. State, 316 Ga. App. 406 (730 SE2d 20) (2012).
4 both pled guilty to charges of armed robbery and possession of a firearm during the
commission of a felony in connection with the incident. The state called both men as
witnesses at Barnes’s trial.
Garard testified that on January 12, 2009, he, Williams and Talore Blackford
traveled to Barnes’s house in Williams’s four-door silver vehicle; Blackford brought
a shotgun and a rifle to use in the robbery; Barnes, Garard, Williams and Blackford
traveled in Williams’s vehicle to the store; Barnes, Garard and Williams entered the
store, while Blackford waited outside in the parked vehicle; inside the store, Barnes
and Garard had the guns; Garard grabbed money and packs of Newport cigarettes,
dropping a pack of the cigarettes; and Garard left one of the guns used in the robbery
in Williams’s vehicle. Garard testified that the shotgun the officers later found in
Williams’s vehicle was the gun he had used in the robbery.
Williams testified that on or about January 12, 2009, he committed the robbery,
and that Barnes, Garard, and Blackford were with him; that day, Williams had gone
with Garard and Blackford to Barnes’s house, where they picked Barnes up in
Williams’s silver vehicle; Blackford brought a shotgun and a rifle to use in the
robbery; Barnes, Garard and Williams entered the store; Barnes and Garard each had
a gun; Garard obtained the shotgun from Blackford; Garard took money and
5 cigarettes during the robbery; and, after the robbery, Blackford drove the vehicle
away from the store. At trial, Williams identified the shotgun found in his vehicle
during the traffic stop as one used in the robbery. Also at trial, both Garard and
Williams identified themselves and Barnes as the men shown in store surveillance
photographs entering the store and committing the robbery.
Barnes testified on his own behalf, stating that he had “nothing to do with” the
robbery. He testified that Garard, Williams, and Blackford came to his house on the
night of January 12, 2009; but that when the men left, he stayed home and went to
sleep.
Barnes asserts that the evidence was insufficient because there was no physical
evidence implicating him, and that the case against him was based solely on the self-
serving and contradictory testimony of his alleged accomplices.
“A defendant may not be convicted on the uncorroborated testimony of an
accomplice; however, only slight evidence of a defendant’s identity and participation
from an extraneous source is required to corroborate the accomplice’s testimony and
support the verdict.”9 If the testimony of one accomplice is supported by the
9 Id. at 408 (1) (footnote omitted).
6 testimony of another accomplice, the evidence is sufficient to sustain a conviction.10
The jury generally determines the weight of the corroborating evidence;11 whether the
corroborating evidence is sufficient to convict is peculiarly a matter for the jury.12
Garard and Williams corroborated one another’s testimony in several respects,
as set out in detail above. Further, the testimony of both accomplices was
corroborated by other evidence, such as Barnes’s testimony that Garard, Williams and
Blackford were at his house the night of the robbery.13 A jury could have found
sufficient corroboration of the accomplice testimony to support Barnes’s convictions
for armed robbery and firearm possession.14
10 See Sims v. State, 306 Ga. App. 68, 70-71 (1) (701 SE2d 534) (2010); Clark v. State, 294 Ga. App. 331, 333 (670 SE2d 131) (2008). 11 Floyd v. State, 272 Ga. 65, 66 (1) (525 SE2d 683) (2000). 12 Mullins v. State, 257 Ga. App. 40, 41 (570 SE2d 357) (2002). 13 See Moore v. State, 245 Ga. App. 641, 643 (1) (537 SE2d 764) (2000) (the accused’s own statement can serve to corroborate the accomplice’s inculpatory testimony). 14 See Harris v. State, 311 Ga. App. 336, 339 (715 SE2d 757) (2011); Watson v. State, 308 Ga. App. 871, 874-875 (1) (708 SE2d 703) (2011); see generally Kegler v. State, 317 Ga. App. 427, 431-432 (1) (b) (731 SE2d 111) (2012).
7 2. Barnes was charged with, convicted of, and sentenced on two counts of
possession of a firearm during the commission of a felony.15 Each of the firearm
possession counts in the indictment referred to one of the two firearms possessed
during the commission of the robbery of the cashier.16
As the state concedes in its brief, Barnes cannot be convicted and sentenced for
two firearm possession counts when there was only one victim.17 Because, under the
circumstances presented, Barnes can be convicted and sentenced only once for
possession of a firearm during the commission of a felony, the conviction for and
sentence imposed on one of the two firearm possession counts is vacated.18 The case
is remanded for resentencing.
15 OCGA § 16-11-106 (b) (1). 16 See n. 6, supra. 17 See Stovall v. State, 287 Ga. 415, 420-421 (5) (696 SE2d 633) (2010) (Court vacated conviction and sentence imposed on one of two firearm possession charges where defendant and his brother each used a firearm while they committed multiple crimes together, but there was only one victim); Abdullah v. State, 284 Ga. 399, 401 (4) (667 SE2d 584) (2008) (Court vacated one of two firearm possession convictions because there was only one victim); Taylor v. State, 282 Ga. 693, 697-698 (3) (653 SE2d 477) (2007). 18 Stovall, supra; Abdullah, supra; Taylor, supra.
8 Judgment affirmed in part and vacated in part, and case remanded for
resentencing. Ellington, C. J., and Dillard, J., concur.