Brazle v. State

Andrews, Judge. Tyrone Brazle. appeals his conviction on a jury verdict finding him guilty of armed robbery. We reverse the judgment of the trial court. 1. In his first enumeration of error, Brazle claims the trial court erred in denying his motion for directed verdict. The standard of [505] review of the denial of a motion for directed verdict of acquittal is the “reasonable doubt” test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). West v. State, 218 Ga. App. 341, 342 (461 SE2d 300). (1995). Here, the evidence at trial was that on the evening of January 9, 1995, Brazle and co-defendants Walker and Foley spent the night at the house of Carol Foley, the mother of defendant Foley and the common-law wife of Brazle. Around 1:00 the next afternoon, Foley and Walker went to the J. Loan Company in Riverdale. Foley and Walker went into the shop and Walker asked Jack Watson, the owner of the shop, to show him a gold chain which was hanging behind the counter. As Watson turned to reach for the chain, Foley pulled a gun and told him to raise his hands. Foley gave the gun to Walker who told Watson to go into the back of the shop. Afraid that Walker would kill him, Watson refused. Walker then told Watson to lie on the floor. Foley took jewelry and guns from the case and put them in a canvas bag. As soon as Walker and Foley left, Watson got up, grabbed two loaded guns from behind the counter and ran outside. He saw the two men running on the other side of the street and fired at Foley, hitting him in the leg. Watson called 911 and then went over to Foley and stayed with him until police arrived. In his in-custody statement introduced at trial, Brazle stated he left home and drove to the Chateau Forest Apartments and backed his truck into one of the parking spaces. The evidence showed that Brazle had a clear view of the J. Loan Company from where his truck was parked. After he backed into the parking space, Brazle said he raised the hood on his truck to check on a brake problem. At that point, he heard gunshots and left. Brazle stated he left the parking lot and drove to his attorney’s office to pick up a settlement check from a workers’ compensation claim. In his defense, Brazle submitted a repair estimate from Brake-0 which showed that the brakes on his truck were in a condition such that the truck was “unsafe to drive — cannot be driven.” Although the estimate was made in April 1995, a store manager with Brake-O, testifying as an expert, stated at trial that, given the condition of the truck’s brakes in April, it probably would have had bad brakes in January. Brazle also called an employee from Brazle’s attorney’s office who testified she called Brazle on the morning of January 10, 1995, to tell him to come by and pick up his settlement check. She stated that Brazle arrived at the office around 1:00 and left around 2:00. We find the trial court erred in denying Brazle’s motion for a directed verdict of acquittal. “Where there are only unexplained and suspicious circumstances, they are not sufficient to convict the defendant. [Cits.]” Williams v. State, 126 Ga. App. 350, 355 (190 [506] SE2d 785) (1972). Here, although Brazle’s parking of his truck across the street from the scene of the robbery is suspicious, it is not unexplained, as he has shown that he was on his way to his attorney’s office and he also submitted evidence of brake trouble. Further, “ ‘[n] either presence, nor flight, nor both together without morq, is conclusive of guilt.’ ” Williams, supra at 355. In this case, arguably, there is not even presence or flight as Brazle was never at the scene of the crime, but only in the vicinity. This Court has found that proximity without additional evidence of participation in thp crime was insufficient to support a conviction for burglary. Willis v. State, 214 Ga. App. 659, 660 (448 SE2d 755) (1994). In addition, there, is no other evidence which would connect Brazle with the robbery. See Muckle v. State, 165 Ga. App. 873, 875 (303 SE2d 54) (1983) (evidence created no more than a suspicion that the defendant committed the crime); O’Quinn v. State, 153 Ga. App. 467, 472 (265 SE2d 824) (1980) (mere presence, even when coupled with suspicion, is not sufficient to authorize a conviction without any evidence to show participation of defendant in illegal act); Phillips v. State, 133 Ga. App. 461, 464 (211 SE2d 411) (1974) (where there were only unexplained and suspicious circumstances and no evidence to connect defendant to the crime, trial court erred in denying motion for directed verdict of acquittal). Therefore, we hold the evidence was insufficient for a rational trier of fact to find beyond a reasonable doubt that Brazle was guilty of armed robbery. Rodgers v. State, 213 Ga. 797, 803 (102 SE2d 10) (1958). Accordingly, the trial court erred in denying' Brazle’s motion for directed verdict of acquittal. 2. In light of the holding above, we need not address the remaining enumerations of error. Judgment reversed. McMurray, P. J, concurs. Birdsong, P. J., Blackburn and Smith, JJ, concur specially. Beasley, C. J., Pope, P. J, Johnson and Ruffin, JJ., dissent.