Hurst v. State

580 S.E.2d 666 (2003)

260 Ga. App. 708

HURST v. The STATE.

No. A03A0016.

Court of Appeals of Georgia.

April 3, 2003.

Certiorari Denied July 14, 2003.

*667 Charles H. Frier, Smyrna, for appellant.

Paul L. Howard, Jr., Dist. Atty., Christopher M. Quinn, Asst. Dist. Atty., for appellee.

ANDREWS, Presiding Judge.

Samorial Lopeze Hurst was found guilty by a jury of two counts of armed robbery. Finding no merit in the claims of error made by Hurst on appeal, we affirm the judgment of conviction.

1. The State produced evidence that Hurst used a handgun to rob two Wendy's restaurants. A Wendy's employee testified that on December 13, 1998, Hurst approached the drive-in window where she was working and pointed a handgun at her and demanded money. Hurst then reached inside the window and took over $500 from the cash register. A Wendy's customer reported the tag number of the car Hurst used to flee from the robbery, and police arrested Hurst a day after the robbery driving a stolen car bearing the reported tag number.

After Hurst was released from custody, he committed the second armed robbery. Another Wendy's employee testified that on April 10, 1999, Hurst approached the drive-in window where she was working, forced open the window from the outside, and placed a handgun with a towel over it on the window ledge. He then reached in the window and took about $43 from the cash register. After the employee identified Hurst as the robber in a photo lineup conducted by police, Hurst was arrested again and charged with the second robbery.

The evidence was sufficient to prove beyond a reasonable doubt that Hurst was guilty of both armed robberies. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Contrary to Hurst's contention, testimony from the Wendy's employees that Hurst took about $500 and $43 respectively from the Wendy's cash registers in the robberies was sufficient to show that he took the property of Wendy's as alleged in the indictment. Jackson v. State, 158 Ga. App. 702, 282 S.E.2d 181 (1981). Testimony from one of the employees that Hurst used what appeared to be a handgun wrapped in a towel was also sufficient to show that the April 1999 robbery was accomplished by use of a handgun as alleged in the indictment. Testimony that the shape of the object wrapped in the towel looked like a handgun and convinced the employee that it was a handgun was sufficient circumstantial evidence from which the presence of a handgun could be inferred. Hughes v. State, 185 Ga. App. 40, 363 S.E.2d 336 (1987).

2. Hurst claims that his conviction was void because the senior judge who presided over the trial was not properly appointed pursuant to the requirements of OCGA § 15-1-9.2. Specifically, Hurst argued at the hearing on the motion for new trial that the order appointing the judge signed before the trial was not filed until after the trial.[1] This claim was waived by the failure to raise it until the motion for new trial. Bennett v. Jones, 218 Ga.App. 714, 715, 463 S.E.2d 158 (1995). But even if the claim had not been waived, we have previously held that an order appointing a judge to assist the court created in compliance with the similar requirements of OCGA § 15-1-9.1 was not deficient just because it was not filed until after the commencement of the trial. Marsh v. Resolution Trust Corp., 211 Ga.App. 216, 217-218, 439 S.E.2d 75 (1993).

3. Finally, Hurst asserts on various grounds that his trial counsel was ineffective.

Based on our holdings in Divisions 1 and 2, supra, that the evidence was sufficient to support the conviction and the appointment order was sufficient, there is no basis for Hurst's claims that trial counsel was ineffective for failing to move for a directed verdict on insufficiency of the evidence or for failing to object to the trial judge's authority to try the case. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

Judgment affirmed.

BARNES and ADAMS, JJ., concur.

[1] Hurst makes additional claims on appeal that the appointment requirements were not strictly followed. However, we will not address claims not raised or ruled upon in the trial court.