                              FOURTH DIVISION
                                 BARNES, P. J.,
                            RAY, and MCMILLIAN, 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/


                                                                        July 7, 2015


In the Court of Appeals of Georgia
 A15A0318. HARRIS v. THE STATE.

      BARNES, Presiding Judge.

      Following the denial of his motion for new trial, Haniyf A. Harris appeals his

armed robbery conviction and contends that the evidence was insufficient to sustain

his conviction, and that the trial court erred in denying his motion to suppress the

photographic lineup and in admitting similar transaction evidence. Following our

review and discerning no reversible error, we affirm.

      1. Harris first challenges the sufficiency of the evidence supporting his armed

robbery conviction. On appeal from a criminal conviction, we view the evidence in

the light most favorable to the verdict in accordance with the standard set forth in

Jackson v. Virginia, 443 U. S. 307 (99 S. Ct. 2781, 61 LE2d 560) (1979). “We do not

weigh the evidence or determine witness credibility, but only determine if the

evidence was sufficient for a rational trier of fact to find the defendant guilty of the
charged offense beyond a reasonable doubt.” (Footnote omitted.) Clark v. State, 283

Ga. App. 884, 886 (1) (642 SE2d 900) (2007).

      So viewed, the evidence demonstrates that on May 3, 2010, at approximately

11:30 a.m., a female caller ordered a pizza from Papa John’s to be delivered to

Apartment M-11 at a particular street address located in Pendleton Homes apartment

complex. When the delivery driver approached M-11, a man wearing a red baseball

cap and red sweatshirt with a hood walked up, pointed a gun at her, and demanded

money. She gave the robber her money, approximately $95, and the robber then told

her to leave. The driver went back to her car and called her boss and police.

      Police discovered that apartment M-11 was vacant, but they were able to trace

the number the call was placed from to a sister of Harris’ girlfriend. Although initially

uncooperative, the sister admitted that the number belonged to a cell phone used by

Harris, and that he sometimes stayed with their other sister in Pendleton Homes.

When police questioned the other sister, she showed them a red sweatshirt that

belonged to Harris that matched the description of the one worn by the robber. Police

also interviewed Harris’ girlfriend, who said that she and Harris were at her sister’s

apartment in Pendleton Homes the day of the robbery. She told police that at some

point during the morning, Harris, who at the time was wearing a black shirt, left the

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apartment and said he needed to get some money. When he returned at approximately

3:00 p.m., Harris was wearing a red sweatshirt and had approximately $100. Three

days after the robbery, the driver identified Harris from a six-picture line-up.

       Although Harris challenges the sufficiency of the evidence against him, the

evidence as outlined above was sufficient for a rational trier of fact to find Harris

guilty of the armed robbery. See former OCGA § 24-4-8 (“[T]estimony of a single

witness is generally sufficient to establish a fact.”)1 It was the role of the jury, not this

Court, “to determine the credibility of the witnesses and to resolve any conflicts or

inconsistencies in the evidence.” (Citation and punctuation omitted.) Farris v. State,

290 Ga. 323, 324 (1) (720 SE2d 604) (2012). This evidence was sufficient to sustain

Harris’ conviction of armed robbery.

       2. Prior to trial, Harris moved to suppress the identification of him made by the

victim, arguing that the photographic lineups used by police were impermissibly

suggestive. The trial court denied that motion, and on appeal Harris contends that this

ruling was error. We disagree.

       We review a trial court’s denial of a motion to suppress by construing the

evidence most favorably to upholding the court’s findings and judgment, and we

       1
           Harris’ trial was held in 2011, so our former evidence code applies.

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accept the court’s ruling unless clearly erroneous. Karim v. State, 244 Ga. App. 282,

283-284 (2) (535 SE2d 296) (2000).

      On appeal, we will reverse a conviction based on a pretrial photo
      identification if the photographic lineup was so impermissibly
      suggestive that there exists a very substantial likelihood of irreparable
      misidentification. An identification procedure is impermissibly
      suggestive only if it leads the witness to an all but inevitable
      identification of the defendant as the perpetrator, or is the equivalent of
      the authorities telling the witness, “This is our suspect.”


(Punctuation and footnotes omitted.) Russell v. State, 288 Ga. App. 372, 373 (2) (654

SE2d185) (2007). “The taint which renders an identification procedure impermissibly

suggestive must come from the method used in the identification procedure.”

(Citation and punctuation omitted.) Davis v. State, 286 Ga. 74, 76 (2) (a) (686 SE2d

249) (2009). We need not consider the issue of irreparable misidentification unless

the array is impermissibly suggestive. Watley v. State, 281 Ga. App. 244, 245 (1) (635

SE2d 857) (2006).

      In denying Harris’ motion to suppress, the trial court found that the lineup was

not impermissibly suggestive and that the six individuals in the photo lineup were

men of similar age, skin tone, facial features, and hairstyles. Contrary to Harris’

assertion on appeal, the fact that three of the men in the photograph lineup had facial

                                          4
hair, and the victim described the robber as having no facial hair, does not make the

lineup impermissibly suggestive. Miller v. State, 270 Ga. 741, 743 (2) (512 SE2d

272) (1999) (lack of facial hair on most of the lineup participants did not make lineup

impermissibly suggestive).

      Additionally, despite Harris’ assertion that his number two position on the top

row of the lineup was suggestive, “it cannot be assumed that the position of [Harris’]

photograph in the array gave the picture greater prominence and therefore increased

the likelihood of its selection.” Daniels v. State, 207 Ga. App. 689, 692 (4) (428 SE2d

820) (1993). His photograph was the similar size, style, and content as the other five

photographs. Neither did his position lead inevitably to Harris’ identification. See

Thompson v. State, 240 Ga. App. 26, 31-32 (7) (521 SE2d 876) (1999) (although the

pictures of the defendant and one other individual in the lineup were slightly smaller

than the other pictures, and not all of the men in the lineup had facial hair, photo array

was not impermissibly suggestive). Accordingly, we find that the trial court properly

admitted the pretrial identification evidence.

      3. We further find that the trial court did not err in admitting similar transaction

evidence of a 2004 robbery by intimidation conviction. Under Georgia law applicable



                                            5
at the time of Harris’ trial,2 evidence of a similar transaction may be admitted if the

State shows that

      (1) it seeks to introduce the evidence not to raise an improper inference
      as to the accused’s character, but for some appropriate purpose which
      has been deemed to be an exception to the general rule of
      inadmissibility; (2) there is sufficient evidence to establish that the
      accused committed the independent offense or act; and (3) there is a
      sufficient connection or similarity between the independent offense or
      act and the crime charged so that proof of the former tends to prove the
      latter.


(Citation and punctuation omitted.) Matthews v. State, 294 Ga. 50, 52 (751 SE2d 78)

(2013).3 In evaluating the trial court’s ruling, we accept its factual findings unless it


      2
        As noted supra in footnote 1, Georgia’s old Evidence Code applies in this
appeal. Under the new Evidence Code, admissibility of this category of evidence is
governed by OCGA § 24-4-404 (b).
      3
          Georgia’s new Evidence Code, effective January 1, 2013, provides that

          [e]vidence of other crimes, wrongs, or acts shall not be admissible
      prove the character of a person in order to show action in conformity
      therewith. It may, however, be admissible for other purposes, including,
      but not limited to, proof of motive, opportunity, intent, preparation, plan,
      knowledge, identity, or absence of mistake or accident.


OCGA § 24-4-404 (b).

                                           6
was clearly erroneous and review its decision to admit the similar transaction

evidence under the abuse of discretion standard. Reed v. State, 291 Ga. 10, 12-15 (3)

(727 SE2d 112) (2012).

      The State filed notice of its intent to present similar transaction evidence of a

2004 robbery by intimidation guilty plea to show course of conduct, bent of mind and

common scheme. At the hearing, one of the arresting officer’s testified that on April

4, 2004, he responded to a robbery call at a Pizza Hut. Two restaurant employees

were taking trash to a dumpster located behind the restaurant when two men, one

holding a gun, approached them and ordered them back into the store. The armed

robber brandished the gun at the manager, ordered her to open the safe, and after she

complied, the two men, who were wearing dark clothing and had bandanas partially

covering their faces, took the money from the safe and fled. Using a tracking dog,

police apprehended the robbers, who were hiding behind a dumpster. Bags of money

from the robbery, a gun, and other items related to the robbery, including bandanas,

were recovered nearby. Harris was identified as one of the men and later pled guilty

to robbery by intimidation.

      The trial court found that the State was admitting the similar transaction for the

proper purpose of showing bent of mind and course of conduct, and also that the prior

                                          7
incident was sufficiently similar because in both instances Harris lay “in wait for the

victims, each of whom was an employee of a pizza restaurant. Both robberies

involved threats and the use of a handgun to induce pizza restaurant employees to

surrender a quantity of cash.” Although Harris argues that the crimes were “vastly

different” because one occurred at the restaurant and the present crime occurred off-

site, when determining whether evidence of a similar transaction is admissible “the

proper focus is upon the similarities between the incidents and not upon the

differences. [Cit.]” Daniels v. State, 281 Ga. 226, 228 (1) (637 SE2d 403) (2006). See

also Faniel v. State, 291 Ga. 559, 562 (2) (731 SE2d 750) (2012). We cannot say that

the trial court abused its discretion in ruling that evidence of the prior robbery by

intimidation conviction was admissible under the law applicable at the time of Harris’

trial.

         Judgment affirmed. Ray and McMillian, JJ., concur.




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