Dijoun Drake v. State ( 2022 )

FIFTH DIVISION
MCFADDEN, P. J.,
GOBEIL and PINSON, JJ.
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
April 14, 2022
In the Court of Appeals of Georgia
A22A0349. DRAKE v. THE STATE.
PINSON, Judge.
Dijoun Will Drake was convicted of armed robbery and other crimes for
robbing a convenience store with a co-defendant, Jonathan George Wilson. On
appeal, Drake (1) challenges the sufficiency of the evidence, claiming that the
circumstantial evidence against him did not eliminate every reasonable hypothesis
other than his guilt; and (2) claims that the trial court gave confusing jury instructions
about mere presence and mere association. We reject each contention. We first
conclude that the evidence authorized the jury to find that the only reasonable
hypothesis was that of Drake’s guilt. The evidence showed that the two robbers used
a car belonging to Drake’s girlfriend, which they crashed soon after the robbery, and
that around the same time, Drake’s co-defendant Wilson (whose blood was identified
in the crashed car) exchanged a number of phone calls and text messages with people
connected to Drake. A rational juror could have found that the only reasonable
explanation for this evidence was that Drake committed the crimes alongside Wilson,
and so Drake’s sufficiency claim fails. As for the trial court’s jury instructions, we
have already held that Georgia’s pattern instructions on mere presence and mere
association correctly state the law, and the trial court’s instructions on those issues
tracked the pattern instructions almost exactly.
Background
Just after midnight on March 5, 2015, Mohammad Nazir, the manager of a
Corner Mart Chevron, and two other employees were closing up for the evening when
they were robbed by two men. Nazir’s testimony and surveillance footage showed
that the two men forced their way into the Corner Mart and took money, scratch-off
lottery tickets, and condoms from the store, as well as Nazir’s cell phone, and the
wallet of one of the coworkers, Jani Imran. Both men wore black gloves and had their
faces covered. One man was carrying a silver handgun, and the other carried a pump
shotgun. The perpetrators then drove off in a white Lexus. After the perpetrators fled,
Nazir called 911.
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Ten minutes later, police received a call about a single-vehicle accident about
2.5 miles from the Corner Mart. Responding to the scene, police found a Lexus that
had gone off the roadway. The Lexus was registered to a woman named Sharecka
Calhoun, who was Drake’s girlfriend. Police contacted Calhoun and learned that she
was not in possession of her car at the time of the crime.
Police obtained a warrant and searched the Lexus. In and around the car, they
found items that had been stolen from the Corner Mart—cash, lottery tickets,
condoms, Imran’s wallet—as well as cloth gloves, a knit cap, a white wristwatch, a
toy pump-action shotgun that looked real, a silver handgun, and a cell phone. They
also found Drake’s wallet, social security card, and expired driver’s license. Both
airbags had deployed in the crash, and both had blood on them. Blood from both
airbags, as well as swabbings from elsewhere in the Lexus, were later matched
through DNA analysis to Drake’s co-defendant, Wilson. No similar matches were
made to Drake or to any other person.
The police investigation also relied on cell phone records. The investigation
revealed that on the night of the crime, Sharecka Calhoun was with her friend,
Danielle Johnson, and had access to Johnson’s cell phone. Police obtained a search
warrant for Johnson’s phone, and they also obtained a warrant for the phone of
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Drake’s co-defendant, Wilson. An examination of Johnson’s and Wilson’s cell phone
records revealed a “significant increase in incoming and outgoing calls” immediately
after the time of the crime, including one call from Johnson’s phone to Calhoun’s
phone and numerous calls and text messages between the phone of Sharecka’s sister,
Shavana Calhoun, and those of Wilson and Johnson.
Drake and Wilson both rested without presenting any evidence. In closing,
Drake’s counsel argued that the State possessed no direct evidence against Drake and
had brought the case against him simply because he was “close to the people who
were involved.” As to the circumstantial evidence, counsel urged the jury to consider
“reasonable, alternative” explanations.
The trial court’s charge to the jury included two instructions that are at issue
in this appeal. The first was the court’s instruction on mere presence:
A jury is not authorized to find a person who is merely present at the
scene of the commission of a crime at the time of its perpetration guilty
of consent in and concurrence in the commission of the crime, unless,
the evidence shows beyond a reasonable doubt that such person
committed the alleged crime, helped in the actual perpetration of the
crime or participated in the criminal endeavor.
The second instruction concerned mere association:
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A jury is not authorized to find a person who is merely associated with
other persons involved in the commission of a crime, guilty of, consent
in or concurrence in the commission of the crime, unless the evidence
shows beyond a reasonable doubt that such person helped in the actual
perpetration of the crime or participated in the criminal endeavor.
Neither defendant objected to either instruction.
Drake was convicted of multiple counts of armed robbery, aggravated assault,
and possession of a firearm during the commission of a crime.1 The trial court granted
Drake’s motion for new trial as to the conviction for possessing a firearm during the
commission of a crime, and that conviction was later nolle prossed. The court denied
the motion for new trial as to the other convictions, and this appeal followed.
Discussion
1. Drake claims that the circumstantial evidence against him was not sufficient
to support his convictions. To review the sufficiency of the evidence, we neither
weigh evidence nor judge the credibility of witnesses. Instead, we determine only
“whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond
1
Wilson was convicted of all the same counts. His convictions were affirmed
on appeal. See Wilson v. State, ___ Ga. App. ___ (Case No. A22A0348, decided on
____).
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a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781,
61 LE2d 560) (1979).
A conviction can rest on circumstantial evidence alone if that evidence
“exclude[s] every other reasonable hypothesis save that of the guilt of the accused.”
OCGA § 24-14-6; see Graham v. State, 320 Ga. App. 714, 720 (2) (740 SE2d 649)
(2013). The key word is “reasonable.” The evidence “need not exclude every
conceivable inference or hypothesis.” Graves v. State, 306 Ga. 485, 487 (1) (831
SE2d 747) (2019) (cleaned up). And both the question whether an alternative
hypothesis is “reasonable” and the ultimate question whether the circumstantial
evidence excludes such hypotheses are for the jury to answer. Id.; see also Merritt v.
State, 285 Ga. 778, 779 (1) (683 SE2d 855) (2009). We will not disturb a jury’s
finding on those questions unless it is “insupportable as a matter of law.” Graves, 306
Ga. at 487 (1).
Here, Drake contends that the circumstantial evidence does not exclude the
“reasonable hypothesis” that he “was not one of the perpetrators of the armed robbery
and was in fact elsewhere when it took place.” We disagree. Given the evidence
introduced at trial, a rational juror could have rejected Drake’s alternative hypothesis
as unreasonable. Under that hypothesis, Drake left his driver’s license, wallet, and
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social security card in his girlfriend’s Lexus not in his rush to get away from the
accident scene after he and Wilson crashed the car, but at some unknown time before
the robbery took place. This might be plausible enough in isolation: many of us have
left personal items in someone else’s car before. But the rest of the story is hard to
figure. If Drake were out of the picture, then two strangers with no apparent
relationship to Drake’s girlfriend somehow gained access to her car the night of the
robbery. And then, right after robbing the store, those same strangers for some reason
placed and received a flurry of phone calls and text messages to and from people
close to Drake’s girlfriend (both her sister and a friend she was with at the time). Is
this alternative Drake-less hypothesis conceivable? Maybe. But the circumstantial
evidence need only exclude reasonable hypotheses to support a conviction. And a
rational juror could have concluded that this hypothesis, which removes the only
apparent link between the perpetrators and the Lexus and post-crime phone
calls—i.e., Drake—was simply not a reasonable one. See, e.g., Graves, 306 Ga. at
487 (1) (jury was authorized to reject hypothesis that an unseen man who had shared
a taxi with the defendant had shot the driver, where only the defendant was seen on
surveillance video exiting the taxi after the crash); Graham, 320 Ga. App. at 720 (2)
(jury was authorized to reject hypothesis that the infant victim’s injuries were caused
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by her father rather than the defendant where, among other things, the victim had
been in the defendant’s care for two hours before she died and a medical expert
testified that she would have died “within minutes or hours” after suffering brain
injury); Crawford v. State, 292 Ga. App. 463, 464-65 (1) (664 SE2d 820) (2008)
(presence of defendant’s fingerprints in multiple locations in the victim’s home and
car was sufficient to convict him of burglary, rape, armed robbery, hijacking a motor
vehicle, and other crimes, even though the record showed defendant had been inside
defendant’s home on an earlier occasion). Drake’s sufficiency claim therefore fails.
2. In two related claims of error, Drake contends that the trial court’s
instructions on mere presence and mere association were “fatally flawed.” Because
trial counsel did not object to these instructions, we review them only for plain error:
an error that is obvious and not subject to reasonable dispute, and which affected the
outcome of the trial. See OCGA § 17-8-58 (b); Woodard v. State, 296 Ga. 803, 806
(2) (771 SE2d 362) (2015); Vasquez v. State, 306 Ga. 216, 225 (2) (830 SE2d 143)
(2019) (citation omitted). An appellate court has discretion to remedy plain error if
it “seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. Accord Puckett v. United States, 556 U. S. 129, 135 (II) (129 SCt
1423, 173 LE2d 266) (2009).
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We discern no error, much less plain error, in the challenged instructions. Jury
charges are generally considered correct and free from error if “the charges, as given,
were correct statements of the law and, as a whole, would not mislead a jury of
ordinary intelligence.” Sims v. State, 296 Ga. App. 461, 464 (3) (675 SE2d 241)
(2009) (citation and punctuation omitted). The court’s instructions on mere presence
and mere association tracked the pattern jury instructions virtually word for word. See
Ga. Suggested Pattern Jury Instructions - Criminal §§ 1.43.30 (mere presence),
1.43.31 (mere association). And we have already approved those pattern instructions
as correct statements of the law. See, e. g., Potts v. State, 331 Ga. App. 857, 863-66
(1) (771 SE2d 510) (2015) (mere association); Arnold v. State, 305 Ga. App. 45, 54-
55 (7) (699 SE2d 77) (2010) (mere presence).
Judgment affirmed. McFadden, P. J., and Gobeil, J., concur.
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