Byrd v. State

512 S.E.2d 372, 236 Ga. App. 485, 99 Fulton County D. Rep. 893, 1999 Ga. App. LEXIS 213
Court of Appeals of Georgia·Decided February 16, 1999·No. A99A0179·Published·Cited by 19 cases

Opinion

Johnson, Chief Judge.

A jury found Roosevelt Byrd, Jr. guilty of three counts of armed robbery and three counts of possession of a firearm during the commission of a felony. Byrd appeals his convictions and sentence. We affirm.

1. Byrd contends the state failed to prove he was guilty beyond a reasonable doubt. We disagree. Pursuant to OCGA § 16-8-41 (a), an individual commits the offense of armed robbery when he, with intent to commit theft, takes property of another from the person or the immediate presence of another by use of an offensive weapon or any device having the appearance of such weapon. The offense of possession of a firearm during the commission of a felony is defined in OCGA § 16-11-106 (b) (1).

Viewed in a light most favorable to support the jury’s verdict, the evidence shows that on November 25, 1996, two armed men entered Carver State Bank and proceeded to take money from a bank teller. At trial, the bank teller identified Byrd as being similar in appearance to the robber who came to her window, but testified that Byrd was clean-shaven. She further testified that she was positive that the picture she selected after the robbery depicted the robber. An FBI agent testified that the teller had selected Byrd’s photograph after the robbery.

On January 4, 1997, a lone gunman entered Coastal Bank, took money from a teller, and fled. Three witnesses identified Byrd as the robber.

*486 Circumstantial evidence also linked Byrd to the two robberies. Byrd wore a baseball cap during both robberies, cursed at the tellers, displayed a large black gun, brought his own bag to carry the money, knew his co-defendant, and changed his appearance for trial. The jury also heard evidence of a similar transaction armed robbery.

Although Byrd points to conflicts in the witnesses’ identifications, it is the jury’s function, not the appellate court’s, to resolve conflicts in the testimony and determine the credibility of the witnesses. Mathis v. State, 224 Ga. App. 521, 522 (1) (481 SE2d 256) (1997). Construed in a light most favorable to support the jury’s verdict, the evidence was sufficient to authorize a rational trier of fact to find Byrd guilty beyond a reasonable doubt of the offenses. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Mathis, supra.

2. Byrd alleges the trial court erred in denying his motion for a mistrial because a GBI agent read aloud the entirety of Byrd’s confession to the similar transaction. During this confession, Byrd mentioned that he had been “arrested three weeks ago for theft by receiving on some air conditioning units.” According to Byrd, this statement placed his character in issue. We disagree. “It is no valid ground of objection to the admission into evidence of an incriminating statement made by the accused in a criminal case that the language indicated that the accused had committed another offense.” (Citations and punctuation omitted.) Postell v. State, 226 Ga. App. 843, 845 (487 SE2d 422) (1997); Colquitt v. State, 196 Ga. App. 817 (1) (397 SE2d 164) (1990). Moreover, the trial court gave curative instructions.

3. The trial court correctly rejected Byrd’s motion to sever parties. “The defendant requesting severance has the burden of doing more than raising the possibility that a separate trial would give him a better chance of acquittal. He must demonstrate a clear showing of prejudice and a consequent denial of due process in the absence of severance. [Cit.]” Smith v. State, 267 Ga. 372, 373 (2) (477 SE2d 827) (1996). Byrd failed to do this.

Despite Byrd’s arguments, the record shows that much of the same evidence and many of the same witnesses would have been produced even if the trials had been severed. Moreover, given the fact that only two defendants were on trial, it was highly unlikely that the jury would be confused and unable to follow the evidence as to each defendant. See Loren v. State, 268 Ga. 792, 795 (2) (493 SE2d 175) (1997). Indeed, the jury demonstrated its ability to consider the defendants separately when it returned different verdicts for the two defendants: the jury found Byrd guilty of the armed robberies at the Carver and Coastal banks but not guilty of the armed robbery at Candler Federal Credit Union; however, it found Byrd’s co-defendant guilty of the armed robbery at Candler Federal Credit Union but not *487 guilty of the armed robbery at the Carver bank. This enumeration lacks merit.

4. Byrd also alleges the trial court erred in refusing to sever offenses. We disagree. “Severance is mandatory, upon defense request, if offenses are joined improperly, i.e., solely because they are of the same or similar ‘character.’ [Cits.]” Smith v. State, 225 Ga. App. 553 (1) (484 SE2d 515) (1997). The state met its burden of showing the offenses were not joined solely on the basis that they were of the same or similar character. The cases all involved financial institutions where only tellers were robbed. They all occurred within the city limits of Savannah. All three armed robberies occurred within forty days, with the earliest occurring at 10:30 a.m. and the latest at 12:45 p.m. Each robbery involved the use of a firearm. In each, the robbers brought their own bag for the money and only took U. S. currency. As in Smith, 225 Ga. App. 553, the similarities among the bank robberies go beyond what would have to be similar simply because the charges are the same; the similarities are so extensive as to demonstrate a common course of conduct and bent of mind. Id. at 555. Accordingly, severance was not mandatory. See Dewinters v. State, 232 Ga. App. 318, 319 (1) (501 SE2d 849) (1998).

Byrd also argues that even if severance was not mandatory, it was still required due to the complexity of the case. We disagree. When a defendant argues for severance based on the trial court’s discretion, it is his burden to demonstrate that severance should be granted because of one or more discretionary concerns. Smith, 225 Ga. App. at 554. In rendering its decision, the trial court should consider whether in view of the number of offenses charged and the complexity of the evidence to be offered, the jury will be able to distinguish the evidence and apply the law intelligently as to each offense. Dingler v. State, 233 Ga. 462, 463-464 (211 SE2d 752) (1975). As stated previously, based on the verdict rendered by the jury, it is clear the jury distinguished the evidence and applied the law intelligently as to each of the offenses. The trial court did not abuse its discretion in denying Byrd’s motion to sever the offenses.

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Byrd v. State, 512 S.E.2d 372, 236 Ga. App. 485, 99 Fulton County D. Rep. 893, 1999 Ga. App. LEXIS 213 (Ga. Ct. App. 1999).

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