Phanamixay v. State

581 S.E.2d 286, 260 Ga. App. 177, 2003 Ga. App. LEXIS 363
CourtCourt of Appeals of Georgia
DecidedMarch 11, 2003
DocketA02A2414
StatusPublished
Cited by17 cases

This text of 581 S.E.2d 286 (Phanamixay 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
Phanamixay v. State, 581 S.E.2d 286, 260 Ga. App. 177, 2003 Ga. App. LEXIS 363 (Ga. Ct. App. 2003).

Opinion

Smith, Chief Judge.

• Along with co-defendant Toni Phommachanh, Somphone Thock Phanamixay was indicted on two counts of armed robbery, two counts of theft by taking, three counts of aggravated assault, three counts of simple battery, three counts of kidnapping, and two counts of possessing a firearm during the commission of a crime. Phommachanh was also indicted on one count of possession of a firearm by a convicted felon or first offender. The trial court directed a verdict in favor of Phommachanh, and Phanamixay was convicted by a jury on all 15 charges against him. Following the denial of his motion for new trial, as amended, he appeals. Phanamixay challenges the sufficiency of the evidence, the admission of his statements, and the sentence of the court. Although we conclude that the evidence was sufficient to convict Phanamixay and that the trial court did not err in admitting his statements, we also conclude that the trial court erroneously failed to merge certain convictions for sentencing purposes. We therefore affirm the judgment of conviction but remand this case for resentencing consistent with this opinion.

1. We find no merit in Phanamixay’s argument that the evidence was insufficient to convict him. Construed in favor of the jury’s verdict, the evidence presented showed that Phanamixay and another man entered a video store. The unidentified man came into the store, ran toward the owner and a friend, who were watching television near the back of the store, and pointed a gun at them. He ordered them to lie down. Phanamixay then entered the store, ran toward the owner’s wife, who was lying down behind the counter, and held a knife to her neck. He forced her to walk to the back of the store and to lie down with the other two victims. Phanamixay and the unidentified suspect taped the three victims’ eyes, mouths, legs, hands, and arms and dragged them into the back room. They then stole the owner’s pager, cell phone, cash from his wallet, and cash from the cash register. They also took his wife’s necklace and money from her wallet. Following an investigation, Phanamixay was arrested, and he admitted his involvement in the crimes to Detective Robert Cotrell and Federal Bureau of Investigation Agent Stephen Paganucci.

*178 Phanamixay argues that the only evidence linking him to the crimes was the “unreliable testimony” of the victim’s wife, who identified him as one of the men who committed the crimes. He points out that she initially told the police she did not know the identity of the suspects and also argues that she had a “vested interest in the matter.”

It is axiomatic that on appeal from a criminal conviction, the courts of this state view the evidence in the light most favorable to the verdict, and a defendant no longer enjoys the presumption of innocence. Phagan v. State, 243 Ga. App. 568, 569 (2) (533 SE2d 757) (2000). We do not weigh the evidence or determine witness credibility; rather, we determine only whether the evidence is sufficient to enable a rational trier of fact to convict the defendant under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Phagan, supra at 569 (2). Conflicts in the testimony of witnesses are a matter of credibility for jury resolution, and “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. The testimony of a single witness is generally sufficient to establish a fact.” (Punctuation and footnote omitted.) Id. at 569-570.

The store owner’s wife admitted at trial that when she first talked to the police following the incident, she could not identify the man who held a knife to her neck. But she later recalled his voice, because she had talked with him approximately two weeks before the robbery about a defective videotape he had rented. During that conversation, she stood 18 to 24 inches from him. In addition, Detective Cotrell testified that the wife could not initially identify who robbed her but that she later identified Phanamixay from a photographic lineup. Any contradictions in her testimony and any “interest” she may have had in the outcome were solely matters of credibility for jury resolution. Phagan, supra.

Even more incredible is Phanamixay’s argument that the testimony of the owner’s wife was the only evidence linking him to the crime. He flagrantly disregards the testimony of Detective Cotrell and Agent Paganucci concerning his confessions to the crimes. After being read his Miranda rights, Phanamixay, known as “Thock,” told Detective Cotrell that he, Phommachanh, and “Ty” borrowed a friend’s car and performed surveillance on the store. Phanamixay “had a knife, went inside, took control of [the store owner’s wife] by placing the knife against her. Ty was armed with a pistol that was provided by Thock and his job was to go straight back and to take control of the men, which he did.” After they “had control” of the three victims, they moved them into another room and bound them with duct tape, taped their eyes, and signaled for Phommachanh to *179 come inside. They then stole valuables from the victims and the store. He made essentially the same statement to Agent Paganucci.

“Although an uncorroborated confession cannot support a conviction under OCGA § 24-3-53, corroboration of a confession in any particular satisfies the requirements of the statute.” (Citation and punctuation omitted.) Miller v. State, 268 Ga. 1, 2 (485 SE2d 752) (1997). Phanamixay’s confessions were corroborated by the testimony of the store owner’s wife, who identified Phanamixay to Detective Cotrell as her assailant and who testified that she was forced to the back of the store and secured with duct tape. The evidence more than amply authorized the jury to convict Phanamixay under the standard of Jackson v. Virginia, supra.

2. Phanamixay argues that his statements were erroneously admitted because his Miranda rights were not read to him before he made the statements and because the statements were induced by hope of benefit.

Evidence presented during the Jackson-Denno hearing and at trial showed that Detective Cotrell went to Phanamixay’s home, asked to talk with him at the police station, and gave him the choice of riding with him to the station or having someone else take him there. Phanamixay, 25 years old at the time, chose to ride with Cotrell. They drove to the police station, and as soon as they arrived, Cotrell placed Phanamixay under arrest. Cotrell read Phanamixay his Miranda rights, after which Phanamixay gave a statement to Cotrell. Agent Paganucci similarly read Phanamixay his Miranda rights before Phanamixay gave his second statement. He executed a waiver of rights form before giving each statement, and each interview lasted approximately one hour. Evidence was presented that he was neither threatened into making his statements nor promised any hope of benefit in exchange for them. He did not ask for an attorney during either interview.

In deciding the admissibility of a statement during a Jackson-Denno

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Bluebook (online)
581 S.E.2d 286, 260 Ga. App. 177, 2003 Ga. App. LEXIS 363, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phanamixay-v-state-gactapp-2003.