John Gordon v. State

• Court: Court of Appeals of Georgia
• Decided: May 22, 2012
• Docket: A12A0547
• Status: Published

Opinion

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/

May 22, 2012

In the Court of Appeals of Georgia A12A0547. GORDON v. THE STATE.

DILLARD, Judge.

Following trial, a jury convicted John Gordon of one count each of aggravated

assault, motor-vehicle hijacking, and possession of a firearm during the commission

of a crime. Gordon appeals his convictions and the denial of his motion for new trial,

challenging the sufficiency of the evidence and arguing that the trial court erred in its

instructions to the jury on the hijacking and possession-of-a-firearm charges. For the

reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s guilty verdict,1 the evidence

shows that around 8:30 p.m. on February 26, 2005, James Willingham drove his SUV

1 See, e.g., Goolsby v. State, 299 Ga. App. 330, 330-31 (682 SE2d 671) (2009); see also Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). into the parking lot of a gas station and went into the station’s convenience store to

buy a soft drink. After making this purchase, Willingham left the store and walked

back to his SUV, but just as he reached the driver’s side door, a young man wearing

a hooded sweatshirt approached, pointed a Glock handgun at Willingham’s face, and

ordered him to drop his car keys. Willingham eventually complied and ran back into

the store while yelling for someone to call the police. The gunman then jumped into

the driver’s seat of the SUV and attempted to start the engine, but could not do so.

Hearing that his SUV’s engine would not start, Willingham ran back outside the store,

at which point the gunman exited the SUV, fired two shots into the air to scare

Willingham back into the store, and then ran through an alley toward the parking lot

of a shopping center behind the gas station.

Nearly the entire incident was witnessed by an employee of a package store

located in the shopping center behind the gas station. The package-store employee—

who had just walked outside to go on a break—saw the gunman demand

Willingham’s keys and then run from the scene after failing to start the SUV’s engine.

Additionally, the employee saw that upon reaching the shopping center’s parking lot,

the gunman got into the front passenger seat of a white Ford Crown Victoria, which

appeared to have been waiting for him. And although the employee did not get a good

2 look at the driver, the vehicle drove away slowly enough that he was able to see its

license tag number, which he then provided to the police upon their arrival on the

scene.

Based on the tag number provided by the package-store employee, the police

were able to locate the white Crown Victoria shortly after it left the scene, but the

driver eluded apprehension at that time. Nevertheless, police officers determined that

the vehicle was registered to John Gordon’s mother. Shortly thereafter, police officers

went to Gordon’s mother’s residence and met with Gordon, who also resided there.

During that interview, Gordon admitted that he was the exclusive driver of the Crown

Victoria, but he denied any involvement in the gas-station hijacking and claimed that

he had been with his girlfriend on the night in question. However, when the police

interviewed Gordon’s girlfriend, she admitted that Gordon had only been at her

apartment for part of the evening on which the incident occurred.

Not long after determining who owned the Crown Victoria involved in the

hijacking, police officers also learned that the actual gunman may have been 13-year-

old C. T., who was the cousin of Gordon’s girlfriend. Consequently, police met with

C. T. and his mother, and during the course of that interview, C. T. admitted that he

was the person who pointed a gun at Willingham and demanded the keys to his SUV.

3 Specifically, C. T. confessed that he and Gordon decided to hijack Willingham’s SUV

after seeing it near the gas station and noticing that it contained a custom television

and DVD player. C. T. also informed the police officers that the handgun he used in

the hijacking belonged to Gordon.

A day or so later, police officers obtained a warrant to arrest Gordon and to

search his mother’s home for any evidence connected to the hijacking. At the time the

search warrant was executed, Gordon was not home, but with his mother’s full

cooperation, police officers discovered a Glock handgun underneath the mattress of

Gordon’s bed. Based on the handgun’s serial number, police officers determined that

it belonged to a Union City police detective, who had reported it stolen approximately

seven months earlier. And shortly after executing the search warrant, police officers

spotted Gordon’s vehicle near his girlfriend’s apartment. Gordon attempted to flee,

but officers eventually arrested him following a brief high-speed chase, which ended

when Gordon lost control of his vehicle and crashed into the porch of a small

residence adjacent to the road.

4 Gordon was thereafter indicted on one count each of aggravated assault,2

motor-vehicle hijacking,3 theft by receiving of the stolen handgun,4 and possession

of a firearm during the commission of a crime.5 During Gordon’s trial, Willingham

and the package-store employee testified about the hijacking, and several of the

police officers involved testified regarding their investigation of the crime. The State

also called C. T. as a witness. And although C. T. testified that Gordon was not aware

that he intended to hijack the SUV when Gordon dropped him off at the gas station

and that he only learned what happened as they were leaving, C. T. admitted that he

previously implicated Gordon in his statement to the police. To impeach C. T.’s

testimony, the State introduced C. T.’s statement implicating Gordon in the crimes,

and two of the investigating officers testified that C. T. had previously claimed

Gordon was involved in the commission of the foregoing crimes.

At the conclusion of Gordon’s trial, the jury found him guilty on the

aggravated-assault, motor-vehicle-hijacking, and possession-of-a-firearm charges but

2 OCGA § 16-5-21 (a) (2). 3 OCGA § 16-5-44.1 (b). 4 OCGA § 16-8-7 (a). 5 OCGA § 16-11-106 (b) (1).

5 not guilty on the theft-by-receiving charge. Thereafter, Gordon obtained new counsel

and filed a motion for new trial, which the trial court denied subsequent to a hearing

on the matter. This appeal follows.

1. In two separate enumerations of error, Gordon challenges the sufficiency of

the evidence supporting his convictions. Specifically, Gordon argues that the

evidence was insufficient to prove that C. T. actually obtained the SUV as required

by the motor-vehicle-hijacking statute and that the evidence was insufficient to prove

that Gordon was a party to the crime. We disagree.

At the outset, we note that when a criminal conviction is appealed, the evidence

must be viewed in the light most favorable to the verdict, and the appellant no longer

enjoys a presumption of innocence.6 And in evaluating the sufficiency of the

evidence, “we do not weigh the evidence or determine witness credibility, but only

determine whether a rational trier of fact could have found the defendant guilty of the

charged offenses beyond a reasonable doubt.”7 Thus, the jury’s verdict will be upheld

“[a]s long as there is some competent evidence, even though contradicted, to support

6 See, e.g., English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010). 7 Joiner v. State, 299 Ga. App. 300, 300 (682 SE2d 381) (2009); see also Jackson, 443 U.S. at 319 (III) (B).

6 each fact necessary to make out the State’s case. . . .”8 With these guiding principles

in mind, we will now address Gordon’s specific contentions.

(a) Obtaining a motor vehicle. OCGA § 16-5-44.1 (b) provides that “[a] person

commits the offense of hijacking a motor vehicle when such person while in

possession of a firearm or 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.”9 Gordon contends that the evidence was insufficient to support his conviction

on the hijacking charge, arguing that the word “obtain” as it is used in the statute

entails some movement of the subject vehicle and that, here, no such movement

occurred because C. T. was unable to start the SUV’s engine. We disagree.

While Georgia’s hijacking statute does not define “obtain,” this Court has

previously held that “[t]he concept of ‘obtaining’ a motor vehicle from its owner

encompasses the notion of acquiring control thereof . . . .”10 And ordinarily,11 “obtain”

8 Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (punctuation omitted). 9 OCGA § 16-5-44.1 (b) (emphasis supplied). 10 Bruce v. State, 252 Ga. App. 494, 497 (1) (a) (555 SE2d 819) (2001). 11 See O.C.G.A. § 1-3-1 (b) (“In all interpretations of statutes, the ordinary signification of statutes shall be applied to all words, except words of art or words

7 means “to procure or gain, as the result of purpose and effort; hence, generally, to

acquire, get.”12 Therefore, applying the ordinary meaning of “obtain,” the offense of

hijacking a motor vehicle is concluded when possession of the motor vehicle is

acquired.13 Furthermore, and belying Gordon’s argument, the hijacking statute makes

no mention whatsoever of movement or asportation of the vehicle being an element

of the offense. As such, we are not persuaded by Gordon’s contention that C. T.’s

failure to move the SUV equates to a failure to obtain it. The General Assembly could

have included language in the hijacking statute that proscribed not only obtaining, but

connected with a particular trade or subject matter, which shall have the signification attached to them by experts in such trade or with reference to such subject matter”); Harris v. State, 286 Ga. 245, 246 (3) (686 SE2d 777) (2009) (considering ordinary signification of key words of statute, where statute did not provide for definition and such words constituted neither a term of art nor a technical term). 12 THE COMPACT OXFORD ENGLISH DICTIONARY 1196 (2d ed. 1991). 13 See Jackson v. State, 309 Ga. App. 24, 26 (1) (a) (709 SE2d 44) (2011) (noting that “the offense of hijacking a motor vehicle is concluded when possession of the motor vehicle is attained”); Bruce, 252 Ga. App. at 497 (1) (a) (holding that the “concept of ‘obtaining’ a motor vehicle from its owner encompasses the notion of acquiring control thereof, regardless of whether the victim remains with the vehicle”). Cf. State v. Kell, 276 Ga. 423, 425 (577 SE2d 551) (2003) (referencing dictionary definition to ascertain meaning of “obtain” in criminal statute, and determining that the offense is concluded when the property is attained).

8 also moving a motor vehicle once it has been obtained. Nevertheless, “it did not, and

we discern that the absence of such language was a matter of considered choice.”14

And here, the evidence shows that C. T. pointed a handgun at Willingham,

demanded the keys to his SUV, entered the vehicle, and attempted to start its engine.

Accordingly, C. T. obtained the vehicle within the meaning of the hijacking statute,

and thus his actions were clearly sufficient to prove hijacking of a motor vehicle

beyond a reasonable doubt.15

(b) Evidence that Gordon was a party to the crime. Gordon also contends that

the evidence was insufficient to support his convictions in light of the fact that C. T.

testified at trial that he was unaware of C. T.’s intent to hijack the SUV and did not

learn that C. T. committed any crime until well after they left the gas station. Once

again, we disagree.

Under OCGA § 16–2–20, “[e]very person concerned in the commission of a

crime is a party thereto and may be charged with and convicted of commission of the

14 See Jackson, 309 Ga. App. at 28 (1) (a) (holding that the absence of language proscribing “retaining” a vehicle after obtaining it, was the legislature’s considered choice that retaining the vehicle was not an element of the crime of hijacking). 15 See Bruce, 252 Ga. App. at 497 (1) (a) (holding that “the offense of hijacking a motor vehicle is complete when a person while in possession of a firearm or weapon obtains a motor vehicle from the victim” (punctuation omitted)).

9 crime.”16 And a person is “concerned in the commission of a crime” if he intentionally

aids or abets in the commission or intentionally “advises, encourages, hires, counsels,

or procures another to commit the crime.”17 Indeed, once a common design is “shown

by evidence tending to indicate that the [perpetrators] have associated themselves

together to do an unlawful act, any act done in pursuance of that association by any

one of the associates would . . . be the act of each of them.”18 Furthermore, criminal

intent may be “inferred from conduct before, during, and after the commission of a

crime.”19

And here, C. T. informed the police that he and Gordon both agreed to the plan

to hijack Willingham’s SUV. Indeed, C. T.’s statement to that effect was entered into

evidence, and the two investigating police officers testified that C. T. initially

implicated Gordon. And although C. T. testified at trial that Gordon was not involved

in his decision to hijack the SUV, “[a]ny alleged inconsistencies in the evidence and

16 OCGA § 16-2-20 (a). 17 OCGA § 16-2-20 (b) (3), (4). 18 Whitehead v. State, 304 Ga. App. 213, 216 (1) (695 SE2d 729) (2010) (punctuation omitted). 19 McGordon v. State, 298 Ga. App. 161, 163 (2) (679 SE2d 743) (2009) (punctuation omitted).

10 issues of [the witnesses’] credibility were for the jury, not this Court, to resolve; and

the jury obviously resolved those issues against [Gordon].”20

In sum, given C. T.’s initial implication of Gordon combined with the fact that

Gordon was waiting in the getaway vehicle while C. T. hijacked the SUV, fled with

C. T. from the scene of the crime, possessed the gun that C. T. used in the crime, and

fled again when the police attempted to arrest him, we conclude that the evidence was

sufficient to support Gordon’s convictions as a party to C. T.’s crimes.21

2. Gordon contends that the trial court erred in charging the jury on the full text

of the motor-vehicle-hijacking statute. Specifically, he argues that the court erred in

charging the jury on the statutory language providing that a defendant can be

20 Martin-Argaw v. State, 311 Ga. App. 609, 613 (2) (716 SE2d 737) (2011) (footnote and punctuation omitted). 21 See Eckman v. State, 274 Ga. 63, 65 (1) (548 SE2d 310) (2001) (holding that defendant could be convicted as a party to co-defendants’ crimes, including motor vehicle hijacking, because there was evidence that defendant was present when the crimes were committed, and the jury could infer from her conduct before and after the crimes that she shared the criminal intent of the actual perpetrators); Johnson v. State, 299 Ga. App. 706, 709 (1) (a) (683 SE2d 659) (2009) (holding that jury was authorized to find that defendant was a party to hijacking because he drove perpetrator to crime scene, had prior knowledge that perpetrator intended to steal car, and helped perpetrator flee the scene).

11 convicted when he “conspires” to hijack, because, here, Gordon was not indicted for

conspiracy. This contention lacks merit.

It is well established that in reviewing an allegedly erroneous jury instruction,

“we apply the plain legal error standard of review.”22 And here, the trial court charged

the jury on nearly the entirety of the motor-vehicle-hijacking statute, providing that:

“[a] person commits the offense of hijacking a motor vehicle when such person, while

in possession of a firearm, obtains a motor vehicle from the person or presence of

another by force and violence or intimidation or conspires to do so.”

On appeal, Gordon argues that the trial court erred in providing the foregoing

instruction because it allowed the jury to convict him for conspiring to hijack a motor

vehicle despite the fact that he was not indicted on conspiracy charges. However, a

conspiracy may be proven and a jury charge may be given on conspiracy, “even

though a defendant is not indicted under that theory.”23 And the specific statutory

inclusion of conspiracy as a method of committing the crime of hijacking a motor

vehicle does not “alter the general rule that a conspiracy can be proven and charged

22 Johnson v. State, 299 Ga. App. at 711 (2) (punctuation omitted). 23 Williams v. State, 267 Ga. 308, 309 (2) (477 SE2d 570) (1996).

12 without being indicted.”24 Accordingly, the trial court did not err in charging the jury

on the entirety of the motor-vehicle-hijacking statute.25

3. Gordon further contends that the trial court committed reversible error in its

instruction to the jury on the charge of possession of a firearm during the commission

of a crime. We find this argument unavailing.

In the case sub judice, Count 4 of the indictment charged Gordon with

possession of a firearm during the commission of a crime by noting that Gordon “did

unlawfully have on and within arm’s reach of [his] person a handgun during the

commission of a felony against and involving the person of another, to wit:

aggravated assault . . . .” And in its instructions to the jury following closing

arguments, the trial court read the entire indictment, including Count 4. A few

minutes later, the court instructed the jury on the applicable law as follows: “A person

24 Middlebrooks v. State, 241 Ga. App. 193, 195 (3) (526 SE2d 406) (1999); see also Huey v. State, 263 Ga. 840, 842 (3) (439 SE2d 656) (1994) (“[I]t has been repeatedly held that a conspiracy may be proven and a jury charge may be given on conspiracy and parties to a crime even though a defendant is not indicted under those theories.”); Daniels v. State, 306 Ga. App. 577, 583 (3) (703 SE2d 41) (2010) (holding that specific statutory inclusion of attempt as a method of committing offense of hijacking a motor vehicle does not alter the general rule that an attempt can be proven and charged without being indicted). 25 See Middlebrooks, 241 Ga. App. at 195 (3).

13 commits the offense of possession of a firearm during commission of a crime when

the person has on or within arm’s reach of his person a firearm during the commission

of any crime against or involving the person of another and which crime is theft by

receiving.” The court then stated, “The offense of aggravated assault is a felony under

the laws of this State.”

Gordon argues that because the court used the phrase “any crime” and then

mistakenly stated that theft by receiving was the felony underlying the possession-of-

a-firearm charge, the instruction was overinclusive and there is a reasonable

probability that the jury convicted him of committing the offense in a manner not

alleged in the indictment. But while it is clear from the record that the trial court in

using the phrase “any crime” charged nearly the entire Code section and that it

misspoke by stating “and which crime is theft by receiving” instead of “and which

crime is a felony,”26 an erroneous charge does not warrant a reversal “unless it was

harmful and, in determining harm, the entirety of the jury instructions must be

considered.”27 Furthermore, “a mere verbal inaccuracy in a charge, which results from

26 See OCGA § 16-11-106 (b) (1). 27 Williams v. State, 267 Ga. 771, 773 (2) (a) (482 SE2d 288) (1997) (punctuation omitted).

14 a palpable slip of the tongue, and clearly could not have misled or confused the jury

is not reversible error.”28

And here, the trial court instructed the jury that the State had the burden of

proving every material allegation of the indictment and every essential element of the

crime charged beyond a reasonable doubt. Additionally, the indictment, which clearly

stated that aggravated assault was the felony underlying the possession-of-a-firearm

charge, was read to the jury and sent out with the jury during deliberations. Moreover,

the court’s mention of theft by receiving near the end of the charge was clearly a mere

slip of the tongue in light of the fact that in its very next sentence the court mentioned

aggravated assault as being the underlying felony at issue. Given these circumstances,

“we will neither impute an adverse construction to the charge nor give so little

credence to the ability of the jury to select that portion of the statute obviously

applicable to the facts and issues presented for their determination.”29 Accordingly,

we do not find a reasonable probability that the jury convicted Gordon of the offense

28 Id. (punctuation omitted). 29 Beals v. State, 288 Ga. App. 815, 817 (2) (655 SE2d 687) (2007) (punctuation omitted).

15 of possession of a firearm during the commission of a crime in a manner not charged

in the indictment.30

Judgment affirmed. Ellington, C. J., and Phipps, P. J., concur.

30 See id.