Moak v. State

473 S.E.2d 576, 222 Ga. App. 36, 96 Fulton County D. Rep. 2810, 1996 Ga. App. LEXIS 767
CourtCourt of Appeals of Georgia
DecidedJune 28, 1996
DocketA96A0403
StatusPublished
Cited by27 cases

This text of 473 S.E.2d 576 (Moak 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
Moak v. State, 473 S.E.2d 576, 222 Ga. App. 36, 96 Fulton County D. Rep. 2810, 1996 Ga. App. LEXIS 767 (Ga. Ct. App. 1996).

Opinions

Smith, Judge.

Gary Alan Moak and co-defendant Charles Lucien Barker1 were indicted by a Cobb County grand jury on one count of arson in the first degree. OCGA § 16-7-60. The jury found Moak guilty, and he appeals from the judgment of conviction and sentence.

1. Moak asserts the general grounds. Construed in favor of the jury’s verdict, the evidence shows that Moak and a man later identified as Barker arrived uninvited and intoxicated at a cookout outside the victim’s trailer. They refused when asked to leave, an altercation developed, and a friend of the victim came to blows with Barker. Moak and Barker then left, and the victim heard them both say, “[T]here is going to be a big bonfire tonight.” A neighbor was standing outside his trailer when Moak and Barker approached him “saying there is going to be a fire tonight.” Stating “we are going to get them back,” they asked the neighbor and a second neighbor to “go fight” with the victim. The neighbors refused because they knew the victim. The neighbors then saw Barker take a gasoline can from his car and empty it in front of one neighbor’s trailer. When they protested that he should not empty it there, both men stated that it was just water, “but we are going to go get some gas.” Barker then walked down the hill towards a local store with the can. As Barker left, the second neighbor’s wife asked Moak if his friend had run out of gas. According to yet another witness, Moak responded that “there was going to be a big fire tonight.” Moak also asked the second neighbor to “babysit his kids . . . while he took care of business.”

When Barker returned about a half-hour later, he and Moak left together, walking up the hill towards the victim’s trailer with the gas [37]*37can. About 45 minutes later, Moak returned alone and spoke with the second neighbor, asking “Do you smell it?” He then pointed to smoke rising in the sky and said, “I got them . . . don’t tell no one.” The victim’s trailer was on fire; the trailer was destroyed, and the victim’s pets were killed or injured. A guest asleep inside the trailer managed to escape but at the time of trial was still suffering from the effects of smoke inhalation.

A Cobb County fire investigator testified the fire was intentionally set by ignition with a flammable liquid at two points of origin underneath the trailer. The fire investigator found the remains of a red plastic container resembling a gasoline can, with a sock adhering to the container, at one point of origin. The sock had a strong odor of gasoline and tested positive for gasoline residue. After the fire investigator advised him of his rights, Moak agreed to be interviewed. He acknowledged the argument at the victim’s trailer, and he admitted asking the neighbor to watch his children “because he felt like that there was going to be a fight or a problem with the people up the hill.” At first he denied any knowledge of a gasoline can, then acknowledged Barker had removed a gasoline can from his car trunk, then again denied remembering anything about a gasoline can. He offered no explanation for his whereabouts at the time of the fire. Moak did not testify at trial.

Asserting that he was a mere bystander and that the absent Barker was the true perpetrator, Moak contends the evidence is insufficient to show he was a party to the crime. We disagree. “Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” OCGA § 16-2-20 (a). To be concerned in the commission of a crime, a person may directly commit the crime, intentionally cause an incapacitated person to commit the crime, intentionally aid or abet in the commission of the crime, or intentionally advise, encourage, hire, counsel, or procure another to commit the crime. OCGA § 16-2-20 (b) (l)-(4).

“While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the crimina] intent may be inferred.” (Citations and punctuation omitted.) Earl v. State, 214 Ga. App. 891, 892 (1) (449 SE2d 361) (1994). It is true, as one witness acknowledged, that the evidence did not show “which one of them striked the match and threw the gas can, no, sir, I couldn’t tell you.” Testimony regarding Moak’s statements and conduct before and after the arson, however, coupled with his presence on the scene, was sufficient evidence to allow the jury to conclude that Moak at a minimum was concerned in the commission of the crime, whether by [38]*38intentionally aiding and abetting or by advising and encouraging the arson. While Moak contends the witnesses were impeached or otherwise not credible, “the credibility of the witnesses was a matter for the jury; on appeal we consider the sufficiency of the evidence, viewing it in the light most favorable to support the jury’s verdict. [Cit.] The evidence was sufficient for the jury to conclude beyond a reasonable doubt that [Moak] was a party thereto and guilty of the offense of [arson].” Ellis v. State, 211 Ga. App. 605, 608 (1) (440 SE2d 235) (1994).

2. Moak next complains that the trial court improperly limited his inquiry on voir dire into the willingness of jurors to consider the presumption of innocence if Moak exercised his right not to testify. This issue was addressed by this Court under virtually identical circumstances in Henderson v. State, 173 Ga. App. 302, 303 (1) (326 SE2d 246) (1985). Henderson contended the trial court erred in excluding a voir dire question “which in effect inquired whether knowing that a defendant does not have to present evidence and should that right be exercised, any juror would hold that election against [appellant].” Id. at 302. This Court held, “We find no error in the refusal to allow such a question on voir dire. The purpose of voir dire is to make inquiry into and expose any prejudice or bias a prospective juror might have against an accused person, or any interest a juror might have in a cause. The question propounded was not designed to inquire into either of those areas but sought to elicit whether a juror could follow a judge’s charge that to impute guilt to an exercise of testimonial silence is improper. It has long been the law of most jurisdictions including Georgia that it is not within the purview of voir dire to inquire into technical legal questions, especially those ultimately involving the presumption of innocence, which are more properly the subject of a legal charge by the trial court.” (Citations and punctuation omitted.) Id. at 302-303. This enumeration of error is without merit.

3. Moak, who is white, contends the trial court erred in overruling his challenge to the State’s use of a peremptory challenge to strike an African-American member of the jury venire solely on the basis of race. Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). Moak’s challenge was made on the basis that the State struck one of the three African-Americans in the jury panel; Moak, however, struck the remaining two after they were accepted by the State.2

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Bluebook (online)
473 S.E.2d 576, 222 Ga. App. 36, 96 Fulton County D. Rep. 2810, 1996 Ga. App. LEXIS 767, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moak-v-state-gactapp-1996.