                              THIRD DIVISION
                              DILLARD, P. J.,
                           GOBEIL and HODGES, 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.
                               http://www.gaappeals.us/rules


                                                                  February 21, 2020




In the Court of Appeals of Georgia
 A19A1720. WOMACK v. THE STATE.

      GOBEIL, Judge.

      In 1999, Xavier Womack was convicted by a jury of armed robbery, and he was

given a life sentence. Womack v. State, 273 Ga. App. 300, 300 (614 SE2d 909)

(2005). In 2005, we affirmed his convictions. Id. In 2018, in Case No. A18D0444, we

granted Womack’s application for discretionary appeal. Womack now appeals from

the trial court’s denial of what we construe as an extraordinary motion for new trial.

For the reasons that follow, we affirm.

      In December 1995, Xavier Womack, Jakeith Robinson, and Leon Tollette

robbed an armored Brinks truck, and Tollette shot one of the guards in the head,

killing him. Womack, 273 Ga. App. at 301 (1). Guards shot at Tollette, and Womack

and Tollette returned fire as they ran away. Id. Womack and Robinson fled the scene,
leaving Tollette behind to be apprehended by police. Id. Womack and Robinson were

arrested a few days later. Id. at 302 (1).

      All three men were charged based on the incident. Tollette pleaded guilty to

several charges, including malice murder, and he was sentenced to death after a

sentencing trial. Tollette v. State, 280 Ga. 100, 100-101 (621 SE2d 742) (2005). In

June 1998, Robinson alone was tried for malice murder, felony murder, armed

robbery, possession of a firearm by a convicted felon, possession of a firearm during

the commission of a felony, and two counts of aggravated assault. Robinson v. State,

334 Ga. App. 646, 646 (780 SE2d 86) (2015). The jury acquitted Robinson of malice

murder, felony murder, and both aggravated assault charges, but could not reach a

verdict on the armed robbery and firearm charges. Id.

      Subsequently, in September 1999, Robinson was re-tried on the armed robbery

and firearm charges alongside Womack, who faced charges of malice murder, felony

murder, armed robbery, possession of a firearm during the commission of a felony,

possession of a firearm by a convicted felon, and two aggravated assault charges.

Robinson, 334 Ga. App. at 646. Robinson sought to have his trial severed from

Womack’s but was unsuccessful. Id.



                                             2
      As described by this Court, the evidence in the 1999 trial showed that, on

December 20, 1995, Womack, his cousin Robinson, and a friend, Tollette, were seen

together in the lobby of a Barnett Bank in Columbus, Georgia, as the bank was

closing for the day. Womack, 273 Ga. App. at 301 (1). The next morning, Robinson’s

blue Mustang followed a Brinks truck to a parking lot near the Barnett Bank. Id. One

of the Brinks guards entered a nearby Suntrust Bank, while the other guard waited in

the armored truck. Id. Tollette waited in front of the Barnett bank, Womack watched

the Brinks truck from across the street, and Robinson stayed in the car. Id. As the

guard returned to the truck and opened the door, Tollette ran up and shot the guard

four times in the head at close range, killing him. Id. Another bank guard who was in

the area witnessed Tollette murder the Brinks guard. Id.

      After the killing, there was gunfire in all directions. Womack, 273 Ga. App. at

301 (1). Witnesses saw Womack, across the street from the Brinks truck, shooting

towards the truck and then running away from the scene. Id. The other Brinks guard

and another bank guard began shooting at Tollette, who was running away with a bag

of money towards Robinson’s Mustang. Id. Before Tollette could reach the car,

Robinson drove away, and Tollette was apprehended at the scene. Id. Crime scene

investigators recovered numerous shell casings and spent bullets from the scene,

                                         3
including several Winchester Western nine millimeter shell casings in a parking lot

across the street from the Brinks truck. Id. at 301-302 (1).

      After Womack and Robinson left the scene, they went to Robinson’s

girlfriend’s apartment, which was in the direction that the blue Mustang was seen

traveling when it fled. Womack, 273 Ga. App. at 302 (1). Robinson’s girlfriend

testified that the two men were out of breath, “shaken and nervous” when they

arrived. Id. Robinson told his girlfriend: “[W]e just tried to rob a Brinks truck and

someone was shot and [Tollette] got caught.” Id. A few moments later, someone

knocked on the apartment door, and Womack jumped up and pulled out a gun. Id. The

men left the apartment a short time later. Id.

      In the meantime, investigators interviewed Tollette. Womack, 273 Ga. App. at

302 (1). The day after the robbery, police executed a search warrant for Tollette’s

house, where Womack also lived. Id. Police found a box of nine millimeter cartridges

missing several rounds of ammunition, which were consistent with four spent bullets

found at the crime scene. Id. Police also found fibers in Womack’s house that were

consistent with fibers found in Robinson’s Mustang. Id. After Robinson and Womack

were arrested, Robinson confided in his cellmate details about the robbery, including

admitting that he was the getaway driver. Id. Robinson asked his cellmate to tell

                                          4
Womack to “[b]e strong.” Id. at 303 (1). According to the cellmate, Womack replied:

“[T]hey ain’t got me, they can’t identify me. They ain’t got nothing.” Id.

      At the conclusion of the 1999 trial, the jury found Robinson guilty of armed

robbery, and acquitted him of the firearm charges. Robinson, 334 Ga. App. at 646.

The jury found Womack guilty of only armed robbery, and acquitted him of all other

charges. Womack, 273 Ga. App. at 300 & n.1.

      Womack appealed following the denial of his new trial, and we affirmed his

conviction. Womack, 273 Ga. App. at 300. As relevant here, in his direct appeal,

Womack first asserted that the evidence was insufficient to support his conviction.

Id. at 300 (1). We disagreed, stating the facts as recounted above, and finding that the

evidence was sufficient to support the jury verdict. Id. at 300-303 (1). Second,

Womack argued that the trial court erred in admitting, under the co-conspirator

exception to the rule against hearsay, the testimony of Robinson’s girlfriend regarding

Robinson’s statements to her that he and Womack had tried to rob a Brinks truck. Id.

at 303 (2) (a). We rejected Womack’s argument, concluding that the evidence

presented at trial was sufficient to show the existence of an ongoing conspiracy

between Womack and Robinson at the time of Robinson’s statement to his girlfriend.



                                           5
Id. at 304 (2) (a). Accordingly, the statement was admissible under the then-effective

co-conspirator exception to the rule against hearsay.1 Id.

      Robinson also appealed his conviction. Robinson, 334 Ga. App. at 646.

Although Robinson’s notice of appeal was filed in 2001 following the denial of his

motion for new trial, we did not decide his appeal until 2015.2 Id. at 647. In

Robinson’s case, using the doctrines of collateral estoppel and issue preclusion, we

held that because Robinson was acquitted of malice murder, felony murder, and

aggravated assault in his first trial, the “only rational conclusion from the first trial

is that the jury determined that Robinson was not a party to the crimes, and therefore,

the State could not propound these theories against him in the second trial for armed

robbery.” Id. at 651-652 (2). Accordingly, we reversed Robinson’s armed robbery

conviction. Id.




      1
       Georgia’s evidence code was substantially revised effective January 1, 2013.
Ga. Laws 2011, Act 52, § 2. In Womack’s appeal, we relied upon the previous
version of the co-conspirator exception to the hearsay rule, which was codified at
OCGA § 24-3-5 (1999), as Womack’s trial occurred in 1999. The revised co-
conspirator hearsay exception is now codified at OCGA § 24-8-801 (d) (2) (E).
      2
        Robinson’s appeal was filed in October 2001 but was not docketed with this
Court for more than 10 years, and we noted that “no explanation for the extreme delay
appear[ed] in the record.” Robinson, 334 Ga. App. at 647.

                                           6
      Following the reversal of Robinson’s conviction, in February 2017, Womack

filed an extraordinary motion for new trial.3 Womack argued that, pursuant to this

Court’s decision in Robinson, Robinson was not a co-conspirator in the robbery, and

therefore his statements to his girlfriend should not have been admissible via the co-

conspirator exception to the rule against hearsay. Following a hearing, the trial court

denied Womack’s motion, citing United States v. Cravero, 545 F2d 406, 418-419

(VI) (5th Cir. 1976), which held that a previous or subsequent acquittal of a co-

conspirator does not affect the admissibility of his or her hearsay statements in the

trial of a co-defendant, as the government’s burden of proving the conspiracy is

independent of and lower than the burden of proving the co-conspirator’s guilt.

      Womack filed an application for discretionary appeal, which we granted. See

Case No. A18D0444 (granted May 21, 2018). He then filed the instant appeal.


      3
         Womack’s motion was labeled an “Extraordinary Motion to Set Aside
Defendant’s Conviction Based on Reversal of Co-Defendant’s Conviction[.]”
However, “[a] motion to set aside the judgment and sentence is not an appropriate
remedy in a criminal case[.]” Bishop v. State, 117 Ga. App. 93, 93 (1) (159 SE2d 477)
(1968). Moreover, on appeal, Womack explicitly seeks a new trial. Accordingly, we
construe his motion as an extraordinary motion for new trial. See OCGA § 5-5-41;
Bowen v. State, 144 Ga. App. 329, 333 (241 SE2d 431) (1977) (“ [T]here is no magic
in nomenclature, and in classifying pleadings we will construe them to serve the best
interests of the pleader judging the pleading by its function rather than by its name.”)
(citation and punctuation omitted).

                                           7
Womack argues that because this Court found that Robinson was not a co-conspirator

in Robinson, 334 Ga. App. at 651-652 (2), his conviction must be reversed, as

Robinson’s girlfriend’s testimony about what Robinson told her after the robbery

does not qualify under the co-conspirator exception to the rule against hearsay.

Accordingly, Womack argues, he is entitled to a new trial. We disagree.

      We review a trial court’s decision to deny an extraordinary motion for new trial

for an abuse of discretion. State v. Hill, 295 Ga. 716, 718 (763 SE2d 675) (2014).

There is “a significant difference in consideration of a motion for new trial and an

extraordinary motion for new trial; extraordinary motions for new trial are not

favored, and a stricter rule is applied to an extraordinary motion for a new trial based

on the ground of newly available evidence than to an ordinary motion on that

ground.” Id. (citation and punctuation omitted).

      Under the co-conspirator hearsay exception as it appeared at the time of

Womack’s trial,”[a]fter the fact of conspiracy is proved, the declarations by any one

of the conspirators during the pendency of the criminal project shall be admissible

against all.” OCGA § 24-3-5 (1999). “The co-conspirator hearsay exception permits

admission of the hearsay statement of a co-conspirator, made in the course of the

conspiracy, so long as a prima facie case of conspiracy has been established apart

                                           8
from the hearsay statement itself.” Franklin v. State, 298 Ga. 636, 639 (2) (784 SE2d

359) (2016) (punctuation omitted). “Such independent prima facie evidence of a

conspiracy need not be adduced prior to the admission of the hearsay statement at

trial, so long as sufficient evidence thereof is presented prior to the close of

evidence.” Id. “The question of the existence of a conspiracy is ultimately for the jury

to determine[.]” Lewis v. State, 311 Ga. App. 54, 57 (2) (714 SE2d 732) (2011)

(citation and punctuation omitted).

      There clearly was independent prima facie evidence at trial of a conspiracy

between Womack and Robinson. The two men were seen together at the bank the day

before the robbery, and again at the scene of the robbery, and Robinson drove

Womack away from the crime scene. At the time when Robinson made the

incriminating hearsay statements to his girlfriend in her apartment, the two men were

still attempting to avoid detection, so the conspiracy endured. See Franklin, 298 Ga.

at 639 (2) (“For purposes of the hearsay exception, a conspiracy is deemed to endure

so long as the parties thereto attempt to conceal either the crime itself or the identity

of the perpetrators.”). Accordingly, the jury’s finding that a conspiracy existed

between the two men was supported by independent prima facie evidence.



                                           9
      The specific question of whether a subsequent acquittal of the co-conspirator

who made the hearsay statements retroactively affects a co-defendant’s trial is a

matter of first impression for this Court. However, we find the Eleventh Circuit’s

holding on this issue persuasive. Perez v. State, 283 Ga. 196, 198 (657 SE2d 846)

(2008) (“The decisions of the Eleventh Circuit are not binding on this Court, but they

are persuasive authority.”). The Eleventh Circuit, following the Fifth Circuit, has held

that “the admission of testimony under the co-conspirator exception to the hearsay

rule is not rendered retroactively improper by subsequent acquittal of the alleged

co-conspirator.” United States v. Hernandez-Miranda, 78 F3d 512, 513 (11th Cir.

1996) (punctuation omitted), quoting Cravero, 545 F2d at 419.4 Thus, we conclude

      4
         The holding in Cravero was based on the reasoning that the government’s
burden of proving the conspiracy for purposes of the hearsay exception is
independent of and lower than its burden of proving the co-conspirator’s guilt.
Cravero, 545 F2d at 419. Thus, the evidence supporting the admission of co-
conspirator hearsay evidence must be considered separately from the issue of the co-
conspirator’s guilt or innocence. Id.
       At least two other Circuit Courts have explicitly adopted this holding from
Cravero. See United States v. Carroll, 860 F2d 500, 506 (1st Cir. 1988); United
States v. Anthon, 648 F2d 669, 678 (10th Cir. 1981). And several other Circuit Courts
have similarly held that a co-conspirator need not be convicted of any conspiracy
offense for his statements to be admissible under the co-conspirator hearsay
exception. See United States v. Stanchich, 550 F2d 1294, 1299-1300 (2d Cir. 1977);
United States v. Gil, 604 F2d 546, 549 (7th Cir. 1979); United States v. Bass, 472 F2d
207, 213-214 (8th Cir. 1973); United States v. Peralta, 941 F2d 1003, 1006-1007 (9th
Cir. 1991).

                                          10
that the court did not err in admitting Robinson’s girlfriend’s testimony about

statements made by Robinson. The fact that Robinson’s conviction subsequently was

reversed based on the doctrines of issue preclusion and collateral estoppel does not

negate the evidence presented at Womack’s trial establishing that a conspiracy

existed for purposes of the hearsay exception. Accordingly, the trial court did not

abuse its discretion in denying Womack’s extraordinary motion for new trial.

      Pretermitting whether the hearsay statements were admissible, any error in the

admission of the contested hearsay evidence was harmless as it was cumulative of

other properly-admitted evidence of armed robbery. See Hatcher v. State, 320 Ga.

App. 366, 374 (2) (739 SE2d 805) (2013) (even if hearsay statements were

erroneously admitted, error was harmless beyond a reasonable doubt where such

statements were cumulative of properly admitted evidence). At least one witness saw

Womack shooting at the Brinks truck from across the street and fleeing the scene.

Womack, 273 Ga. App. at 301 (1). Spent bullets recovered from the place where

Womack was seen during the robbery matched bullets found at Womack’s home. Id.

at 301-302 (1). Womack made incriminating statements to an inmate indicating that

he was involved with Robinson in the armed robbery. Id. at 303 (1). Finally,

Robinson’s girlfriend, without referencing what Robinson told her, also testified that

                                         11
the Robinson and Womack were together shortly after the robbery and appeared out

of breath, nervous, and shaken, and they reacted violently to a knock on the door.

Accordingly, there was sufficient evidence to convict Womack without reliance on

any hearsay testimony, and its admission, even if in error, was harmless. As a result,

the trial court was well within its discretion to deny Womack’s extraordinary motion

for new trial on this basis. Accordingly, we affirm the trial court’s order.

      Judgment affirmed. Dillard, P. J., and Hodges, J., concur.




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