Lingo v. the State

765 S.E.2d 696, 329 Ga. App. 528
CourtCourt of Appeals of Georgia
DecidedNovember 19, 2014
DocketA14A0832
StatusPublished
Cited by10 cases

This text of 765 S.E.2d 696 (Lingo v. the 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
Lingo v. the State, 765 S.E.2d 696, 329 Ga. App. 528 (Ga. Ct. App. 2014).

Opinions

DOYLE, Presiding Judge.

James Lingo appeals his conviction for robbery,1 arguing that the trial court erred by admitting evidence of his gang affiliation. We agree, but nevertheless affirm because Lingo has failed to establish harm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia,[2] and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict.3

So viewed, the record shows that on January 14, 2012, middle schoolers Richard Dominguez and Donovan Martinez were approached at a Gwinnett County car wash by three males who asked to borrow a phone. One of the males pointed a knife at Dominguez and demanded his phone, another grabbed it, and then all three assailants ran. According to Dominguez, the man with the knife was white, wore a red and black varsity school jacket and a black baseball cap, had on a ski mask that covered the bottom half of his face, and had a centimeter long “open” star mark on his face below his left eye. Dominguez described the other two assailants as black males wearing gray hooded jackets. Martinez testified that two of the men were black and the third man, who wielded the knife, was white, wore a black ski mask over his mouth, a red varsity j acket, and a red hat, and had a star under one of his eyes.

[529]*529Police showed Dominguez a photographic lineup, which contained a photograph of Lingo taken before he got his tattoo;4 Dominguez was unable to identify him. At a February 29,2012 hearing, Dominguez initially identified Lingo, who was sitting at the defense table, as the white assailant, but clarified that he was not sure of his identification; at trial, however, Dominguez testified that Lingo was the white assailant. Martinez identified Lingo at trial as the assailant who wielded a knife during the robbery.

On January 25,2012, teenager Patrick Reed was walking through the parking lot of the Club Lakes apartment complex in Gwinnett County when a male grabbed him from behind and put him in a choke hold. Another man approached, and the two began punching Reed, threw him to the ground, and kicked him. One of the men directed the other to get Reed’s phone and check his pockets. One of the men took money from Reed, but the assailants fled when someone came out of his or her home before the assailants could wrestle Reed’s phone from him. According to Reed, the man who initially grabbed him was white, wore a red hat, red jacket, and green tennis shoes, and he had a star tattoo under his left eye; the other man was black and wore a navy blue jacket. A police officer investigating a separate incident in the late afternoon on January 25, 2012, saw Lingo in the Club Lakes apartment complex wearing a red jacket and a red baseball cap. Reed was unable to identify the assailants from a photographic lineup, but he identified Lingo as one of the assailants in a subsequent court proceeding in February 2012.

On January 27, 2012, Reed’s sister was driving through the Club Lakes apartment complex when she saw two men matching the description Reed gave of the men who assaulted him two days before. After calling Reed and confirming his description, she called the police, and followed the two men to a nearby market, where police arrived. Lingo, who was one of the men pointed out by Reed’s sister, had a small tattoo under his left eye and was wearing red pants, red and black shoes, and a red Atlanta Braves cap. Lingo’s co-defendant, Ralik Jones, was also present.5 Police searched Lingo’s apartment and found a red and gray sweatshirt;6 green Nike shoes; a black, white, and red varsity jacket; and a blue and gray jacket.

[530]*530Lingo was charged with armed robbery and aggravated assault in connection with the January 12 incident involving Martinez and Dominguez; Lingo and co-defendant Jones were charged with robbery in connection with the January 25 incident involving Reed.7 Lingo made an oral motion in limine before trial to exclude any evidence regarding his participation in a gang. After hearing argument, the trial court denied the motion, permitting the State to introduce testimony from an officer regarding Lingo’s gang membership for the purpose of showing identity, concluding that the probative value of the evidence outweighed its prejudicial effect.8

During the trial, Investigator Kevin Sipple testified that on May 13, 2010, Lingo advised that he was a two-star general in the Black P Stone Nation gang and that the gang’s predominant colors are black and red, with green as an associate color. Sipple also testified that Lingo’s co-defendant, Jones, was a member of the same gang, and the gang members all predominantly wore the gang colors.

With regard to the charges involving Martinez and Dominguez, the trial court directed a verdict of acquittal as to the aggravated assault charge, and the jury found Lingo not guilty of armed robbery. With regard to the charges involving Reed, the jury found Lingo not guilty of armed robbery, but guilty of robbery,9 and Lingo was sentenced to twenty years, to serve eight in confinement.

Lingo appeals the denial of his subsequent motion for new trial, arguing that the trial court erred by admitting the evidence of his gang affiliation. We agree, but affirm for the reasons that follow.

“As a general rule, admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse.”10

Lingo’s trial began on March 11, 2013, after the effective date of Georgia’s new Evidence Code, which applies to trials commenced on or after January 1, 2013. “The new Code adopted, in large measure, the Federal Rules of Evidence, and its sections are comparable to corresponding federal rules. Because of this similarity, it is proper [531]*531that we give consideration and great weight to constructions placed on the Federal Rules by the federal courts.”11

OCGA § 24-4-404 (b) provides in relevant part:

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . ..

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Cite This Page — Counsel Stack

Bluebook (online)
765 S.E.2d 696, 329 Ga. App. 528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lingo-v-the-state-gactapp-2014.