                               FIFTH DIVISION
                                MILLER, P. J.,
                         MCFADDEN, P. J. and RICKMAN, 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.
                                   http://www.gaappeals.us/rules


                                                                      December 4, 2018




In the Court of Appeals of Georgia
 A18A1693. ROBINSON v. THE STATE.

      RICKMAN, Judge.

      James Michael Robinson was tried by a jury along with two co-defendants,

Elmonte Surry and Xavius Bell,1 and convicted on six counts of armed robbery, one

count of criminal attempt to commit armed robbery, seven counts of possession of a

firearm during the commission of a crime, and two counts of hijacking a motor

vehicle. On appeal, Robinson contends, inter alia, that there was insufficient evidence

to support his convictions beyond a reasonable doubt. For the following reasons, we

reverse.

      On appeal from a criminal conviction, we view the evidence in the light
      most favorable to support the jury’s verdict, and the defendant no longer


      1
           Surry and Bell are not parties to this appeal.
      enjoys a presumption of innocence. We do not weigh the evidence or
      judge the credibility of the witnesses, but determine only whether the
      evidence authorized the jury to find the defendant guilty of the crimes
      beyond a reasonable doubt in accordance with the standard set forth in
      Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).


(Citation and punctuation omitted.) Hall v. State, 335 Ga. App. 895 (783 SE2d 400)

(2016).

      So viewed, the evidence showed that one Saturday night in December 2012,

the owner of a convenience store was at the store playing cards with several of his

friends. Three young men came into the store and, after walking around, purchased

some snacks and left. Approximately ten minutes later, one of the three men came

back into the store, purchased a soda and left again. Two of the men then came back

into the store, but this time one of them was armed with a handgun.

      The taller of the three men attempted to open the cash register while the shorter

gunman, whose face was obscured by a scarf, demanded that the owner and his

friends get on the floor. The gunman forced the owner to help the taller man open the

cash register, and approximately $200 was taken from the register. The gunman then

ordered everyone to take off their pants. The third man came into the store and

altogether they stole jewelry, cash, and cell phones from several of the victims,

                                          2
including the owner. The gunman asked for the keys to two vehicles that were parked

outside.

      After the three men got the keys, they drove off in the two separate vehicles.

One of the victims had a gun with him and gave the gun to another victim who fired

at one of the vehicles. That vehicle hit a telephone pole, and its occupant(s) were

picked up by the driver of the other stolen vehicle.

      A sergeant with the Richmond County Sheriff’s Office testified that one of the

victims was able to identify Surry and Bell in a photo line-up as two of the

perpetrators. Additionally, Surry’s fingerprints were found on a cigar box recovered

from one of the stolen vehicles. The sergeant showed a photo line-up containing

Robinson’s photograph to two of the victims, but neither were able to identify him.

Moreover, none of the seven victims who testified at trial were able to identify

Robinson as one of the perpetrators.

      The owner testified that after the robbery, a friend of his informed him that he

had seen the owner’s jewelry in the possession of a man named Carter. After speaking

with his friend, the owner called and told an investigator. The owner testified that

some of his missing jewelry was returned to him. Carter testified that on the morning

after the robbery, he bought a couple of rings and a bracelet from Robinson whose

                                          3
nickname was “Little James.” Carter testified that there were several other people

“right there” with Robinson when he purchased the jewelry. When Carter found out

that the jewelry belonged to the owner, he testified that he “g[o]t rid of it;” but after

speaking with law enforcement he was able to arrange the return of the jewelry to law

enforcement. Carter was convicted of theft by receiving stolen property as a result of

his involvement in this case.

      An investigator with the Richmond County Sheriff’s Office testified that there

were initially four suspects in the armed robbery: Bell, Surry, Robinson, and Carter.

The investigator eliminated Carter as a suspect because Carter was not identified in

a photo line-up,2 and neither his fingerprints nor his DNA were found at the crime

scene or in any of the stolen vehicles. The investigator admitted that Robinson, too,

was not identified in a photo line-up and his fingerprints and DNA were not found at

the crime scene or in the stolen vehicles.

      A retired employee from the department of juvenile justice testified that he had

an appointment scheduled with Robinson mid-morning on the day after the robbery.

It was his only appointment that Sunday. The employee testified that on the morning


      2
        The investigator was not sure if Carter’s photograph was actually ever
included in a line-up.

                                             4
of the appointment he received a missed phone call and when he returned the call no

one answered, but he “got a voicemail that stated, this is [the owner of the

convenience store.]” The employee did not recall what telephone number was

associated with this phone call, and he was unsure who had called him from this

number. Thereafter, the employee received a phone call from Robinson who stated

that he was on the way to the appointment. The employee did not know what

telephone number Robinson called from.

      The grand jury returned an indictment charging Robinson with six counts of

armed robbery,3 one count of criminal attempt to commit armed robbery,4 seven

counts of possession of a firearm during the commission of a crime,5 and two counts

of hijacking a motor vehicle.6 Robinson was convicted on all of the charges.

Robinson filed a timely motion for new trial which was denied by the trial court.

Robinson appeals from the denial of his motion for new trial.




      3
          OCGA § 16-8-41 (a).
      4
          OCGA § 16-4-1.
      5
          OCGA § 16-11-106 (b) (1).
      6
          OCGA § 16-5-44.1 (b) (1).

                                         5
         Robinson contends that the evidence was insufficient to support his conviction

beyond a reasonable doubt due to a lack of evidence linking him to the crimes. We

agree.

         “A person commits the offense of armed robbery when, with intent to commit

theft, he or she takes property of another from the person or the immediate presence

of another by use of an offensive weapon, or any replica, article, or device having the

appearance of such weapon.” OCGA § 16-8-41 (a). Regarding unexplained

possession of stolen goods following an armed robbery,

         [a]lthough there is still validity to the long-established rule that proof of
         recent, unexplained possession of stolen goods by the defendant is
         sufficient to create an inference that the defendant is guilty of the
         [robbery] of the goods, proof of recent, unexplained possession is not
         automatically sufficient to support a conviction for [armed robbery].


(Citation and punctuation omitted.) Gaither v. State, 321 Ga. App. 643, 646 (1) (742

SE2d 158) (2013); see also Roberts v. State, 277 Ga. App. 730, 731-732 (627 SE2d

446) (2006) (“While the unexplained (or unsatisfactorily explained) possession of

goods stolen in an armed robbery or burglary gives rise to an inference of guilt, it

does not automatically support a guilty verdict.”). “If the unexplained possession of

stolen goods is the only evidence supporting the conviction, such evidence must

                                              6
establish the offense beyond a reasonable doubt in order to be sufficient to support

the conviction.” (Citation and punctuation omitted.) Gaither, 321 Ga. App. at 646 (1).

“Otherwise, recent possession of stolen goods will be viewed as probative evidence

of the crime and reviewed along with the other evidence in the case to determine

whether any rational juror could find the defendant guilty beyond a reasonable

doubt.” (Citation and punctuation omitted.) Id.

      Here, the evidence as to Robinson’s unexplained possession of stolen goods

following the armed robbery was Carter’s testimony that he bought a couple of rings

and a bracelet from Robinson while several individuals were present on the Sunday

morning after the robbery. Additionally, the victim testified that he had rings stolen

during the robbery, he heard from a friend that Carter had his jewelry, and some of

his jewelry was eventually returned. Neither the jewelry nor any photographs of the

jewelry were introduced into evidence. The investigator testified that he recovered the

jewelry from Carter and that he returned the jewelry to the owner’s daughter-in-law.

The investigator did not testify that the victim positively identified the exact jewelry

obtained from Carter as his jewelry that was stolen in the robbery.

      The only other evidence offered against Robinson was that on the day after the

robbery he had a meeting with a juvenile justice employee and that the employee

                                           7
received a call from what he presumes was the owner’s phone number. The employee

testified that he did not know who called him from that phone number and that he did

not know what the phone number was. There was also testimony that Robinson was

five feet, three inches tall and that the gunman was short.

      The State argues that “th[e] recent unexplained possession, coupled with

evidence that the gunman was short and that [Robinson] was nicknamed ‘Little

James’ because he was small in stature [was] sufficient evidence to support the

convictions in this case.”7 Pretermitting whether the State established that Robinson

was in recent possession of the stolen jewelry, the evidence was not strong enough

to establish the crimes charged beyond a reasonable doubt. To establish beyond a

reasonable doubt that Robinson was one of the men who committed the crimes


      7
        Citing a case from the U. S. Court of Appeals for the Armed Forces, the State
also argues that the doctrine of chances can “shed light on” the circumstantial
evidence in this case. “The doctrine of chances relies on objective observations about
the probability of events and their relative frequency, and the improbability of
multiple coincidences.” (Citation omitted.) State v. Atkins, __ Ga. __ (3) (S18A0770,
decided September 10, 2018). “The doctrine of chances explains, then, that highly
unusual events are highly unlikely to repeat themselves.” (Citation and punctuation
omitted.) Id. The doctrine is generally discussed in reference to the admission of other
acts evidence and is “a theory [as to] why other acts evidence may be relevant to
prove intent, knowledge, or identity and disprove accident or mistake.” Id. The
doctrine of chances is inapplicable to this case because there was no evidence that
Robinson had been involved in any other acts that were similar to the charged crimes.

                                           8
charged, there simply must be more evidence than that he was short, another suspect’s

testimony that he recently possessed stolen property, and testimony about a

suspicious phone call. The evidence “raises a suspicion, but a conviction cannot rest

upon mere suspicion.” (Citation and punctuation omitted.) Shy v. State, 220 Ga. App.

910, 911 (1) (470 SE2d 484) (1996). See generally Johnson v. State, 277 Ga. App.

499, 504 (1) (b) (627 SE2d 116) (2006) (holding that the evidence was insufficient

to support a defendant’s convictions for armed robbery, kidnapping, aggravated

assault, and possession of a firearm during the commission of a crime where the

State’s evidence showed mere association with his co-defendants, and there was no

identification or physical evidence linking him to the crimes); see also Heard v. State,

126 Ga. App. 62, 68 (10) (189 SE2d 895) (1972) (“The fact that the car was a stolen

car and that the defendant had possession of same is not alone sufficient to authorize

a conviction for the offense of theft by knowingly receiving stolen property.”).

Accordingly, we reverse Robinson’s convictions.

      Judgment reversed. Miller, P. J., and McFadden, P. J., concur.




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