Damion Roger Buchanan v. State ( 2020 )

THIRD DIVISION
MCFADDEN, C. J.,
DOYLE, P. J., and HODGES, 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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
December 3, 2020
In the Court of Appeals of Georgia
A20A1964. BUCHANAN v. THE STATE.
MCFADDEN, Chief Judge.
After a jury trial, Damion Roger Buchanan was convicted of one count of
armed robbery and three counts of aggravated assault. The trial court merged one of
the aggravated assault counts with the other counts and sentenced Buchanan to serve
35 years in confinement and 10 years on probation. Buchanan appeals the denial of
his motion for new trial, arguing that the evidence does not support his convictions;
that the trial court failed to exercise his discretion as the 13th juror; that one of his
aggravated assault convictions merged with his armed robbery conviction; and that
he was entitled to a directed verdict of acquittal because the evidence showed that he
abandoned the criminal enterprise. We hold that the evidence was sufficient to
support the convictions; that Buchanan waived any 13th juror grounds in his motion
for new trial; that Buchanan’s merger argument lacks merit because the convictions
he points to involved different victims; and that the trial court did not err in denying
Buchanan’s motion for directed verdict of acquittal. So we affirm.
1. Evidence.
Viewed in the light most favorable to the jury’s verdict, Jackson v. Virginia,
443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the evidence presented at
Buchanan’s trial showed that the victims, a husband and wife and their daughter and
son, returned home after leaving their business around 11:30 one night. They stayed
in their SUV in the garage, texting a birthday greeting to a family friend. Two men
wearing black clothing and gloves rushed into the garage with guns drawn. The men
yelled, “This is a robbery,” and, at gunpoint, ordered the victims out of their SUV.
One of the men ordered the wife to close the garage door, while the other man
ordered the husband into the house.
The husband identified his assailant as Burt Everet Thompson, whose
conviction we have already affirmed.1 Thompson demanded money from the husband
and struck him in the head with a gun. The husband said that he had money upstairs
1
We affirmed Thompson’s convictions of kidnapping with bodily injury, armed
robbery, and three counts of aggravated assault in Thompson v. State, 314 Ga. App.
469 (724 SE2d 475) (2012).
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in a safe in a closet in the master bedroom. Thompson ordered the husband upstairs.
Thompson again struck the husband with the gun as he was trying to open the safe.
The husband could not see to open the safe because he was bleeding profusely and
the blood was obscuring his vision. Thompson took the husband into the bathroom
to wash away the blood, and while they were there, Thompson was looking out the
window and called someone on his cell phone, repeatedly saying, “Dog, where are
you?”
The husband opened the safe, but before he removed any money, Thompson
ordered him downstairs and into the garage. The husband gave Thompson the money
from his pocket, around $1,500. Thompson was frantically looking toward the street
from the garage, and the husband made a dash for the door into the kitchen. The
husband entered the house, and slammed the door shut and locked it. The husband
was afraid Thompson would start shooting, so he lay on the floor on his stomach. He
called the police, who told him that his wife already had called and that his family
was safe. The husband then crawled to the front of the house to look out the window
for his family. He saw a Nissan pull up in front of his house. The next time he looked
out the window, he saw the Nissan pulling away.
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While the husband was in the house with Thompson, the wife’s assailant, who
she identified as Buchanan, put his arm around her throat and put his gun to her head.
The wife began struggling with Buchanan for the gun, and they moved outside the
garage into the yard. The wife fell to the ground. The son then jumped on Buchanan’s
back, and they began to fight. The wife grabbed her daughter, told the son to run, and
the three of them ran to a neighbors’ house. The wife called the police. She looked
out of the neighbors’ window since her husband was still inside their house. The wife
saw Buchanan looking on the ground in the area where they had been fighting and
where police later recovered a gun’s magazine. She then saw Buchanan run to her
back yard toward the street behind her house, and he disappeared from her sight.
Moments later, she saw a Nissan pull up in front of her house. Buchanan got out of
the Nissan, Thompson exited the victims’ house, and then both of the men entered the
car. The car sped off.
The police had set up a roadblock at the single exit from the victims’
subdivision. The Nissan accelerated toward the roadblock, slammed on the brakes,
and then reversed, hitting a brick mailbox. The Nissan became lodged on the mailbox.
Thompson and Buchanan were in the Nissan. Both men were wearing dark clothing,
Thompson had gloves, and Buchanan was wearing a bulletproof vest. Close to $1,500
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was found on the back seat of the Nissan. Gloves and two handguns were in the car,
and the husband’s blood was on one of the guns.
This evidence was sufficient to sustain Buchanan’s convictions, either directly
or as a party to the crimes. See OCGA § 16-5-21 (aggravated assault); OCGA § 16-8-
41 (armed robbery); OCGA § 16-20-20 (parties to a crime).
2. Motion for new trial.
Buchanan argues that the trial court erred by denying his motion for new trial
because the verdicts were contrary to evidence and principles of justice and equity.
. But Buchanan acquiesced in the trial court’s decision not to consider these
discretionary grounds for a motion for new trial. So we do not address his argument.
In his motion for new trial, Buchanan listed as a ground: “The evidence was
insufficient as a matter of law for the jury to have convicted the Defendant in this
matter, and the interests of justice require that he be granted a new trial.” We assume
that this ground raised both the sufficiency of the evidence to support the convictions
under Jackson v. Virginia, 443 U. S. at 307 and the general grounds under OCGA §§
5-5-20 and 5-5-21.
But at the hearing on the motion for new trial, the trial court, in describing
Buchanan’s motion for new trial, stated, “Paragraph two alleges that the evidence was
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insufficient as a matter of law for the jury to convict the Defendant. I construe that to
be a Jackson v. Virginia claim. There has been no claim in the motion for new trial
or the amendment to the motion for new trial that would require the court to exercise
its discretion as the 13th juror.” Defense counsel did not object or correct the court’s
statement. So in the order denying the motion for new trial, the court wrote:
After considering the evidence adduced at trial and construing it to
support the verdict, the Court finds the evidence was sufficient to enable
a rational trier of fact to find Defendant guilty beyond a reasonable
doubt of the offense of armed robbery and three counts of aggravated
assault. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560)
(1979). Appellate counsel has not requested that this Court exercise its
jurisdiction to sit as the thirteenth juror under OCGA §§ 5-5-20 and 5-5-
21 and the Court declines to do so. With regard to these grounds the
motion is DENIED.
Buchanan did not complain in the trial court that he had, in fact, raised the
discretionary grounds in his motion for new trial. Nor does he argue on appeal that
the trial court erred in finding that he did not request the court to exercise its
discretion under OCGA §§ 5-5-20 and 5-5-21. “Under these circumstances, we must
conclude that [Buchanan] agreed to have the trial court consider” only the sufficiency
of the evidence and not the discretionary grounds for a motion for new trial. Turner
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v. Flournoy, 277 Ga. 683, 685 (2) (594 SE2d 359) (2004). So we do not address his
argument that the trial court erred in denying his motion for new trial on the
discretionary grounds.
3. Merger.
Buchanan argues that his conviction for armed robbery of the husband, Count
2 of the indictment, and aggravated assault of the wife, Count 4 of the indictment,
merged. “But the merger doctrine does not apply if each of the charged crimes was
committed against a different victim.” Jones v. State, 290 Ga. 670, 672 (2) (725 SE2d
236) (2012) (citations and punctuation omitted). “Because the armed robber[y] and
aggravated assault[ counts that Buchanan challenges] were committed against
different victims, the crimes do not merge as a matter of law or fact.” Verdree v. State,
299 Ga. App. 673, 684 (6) (b) (683 SE2d 632) (2009).
3. Abandonment of criminal enterprise.
Buchanan argues that he was entitled to a directed verdict of acquittal on count
5, which charged aggravated assault for striking the husband with a handgun, because
he had abandoned the criminal enterprise by the time Thompson struck the husband
with the gun. See OCGA § 16-4-5. We disagree.
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A directed verdict of acquittal should be entered where there is no
conflict in the evidence and the evidence demands a verdict of acquittal
with all reasonable deductions and inferences. . . . [I]n reviewing a
denial of a motion for directed verdict, we apply the standard demanded
by Jackson v. Virginia: Whether the evidence was sufficient to authorize
a rational trier of fact to find beyond a reasonable doubt that the
defendant was guilty of the crimes for which he was convicted. Thus,
because we have already determined that the evidence was sufficient to
support [Buchanan’s conviction of aggravated assault for striking the
husband], see Division 1 [] above, [his] arguments about the trial court
denying his directed verdict also fail.
Boyd v. State, 306 Ga. 204, 212 (2) (830 SE2d 160) (2019) (citations and punctuation
omitted).
Judgment affirmed. Doyle, P. J., and Hodges, J., concur.
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