                                THIRD DIVISION
                                 BARNES, P. J.,
                             BOGGS and BRANCH, 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/


                                                                      March 26, 2015


In the Court of Appeals of Georgia
 A14A1840. DAVIS v. THE STATE.

       BARNES, Presiding Judge.

       A jury convicted Javarious Demario Davis of possession of a firearm during

the commission of a felony and five counts each of armed robbery and aggravated

assault. Following the denial of his motion for new trial, he appealed, arguing that the

trial court erred in denying his motion to sever his trial from that of his three co-

defendants and in failing to exclude similar transaction evidence against one of his

co-defendants. He further argues that he was denied his constitutional right to be

present during a critical stage of his trial.

       Viewed in the light most favorable to the verdict, the evidence at trial showed

that four men in a grey or silver Chevrolet with a Kentucky license plate pulled up to

a construction site where five Hispanic workers were taking a lunch break. One man

remained in the car while three others got out. While the workers thought at first that

the men were approaching to offer them work, one man pointed a black handgun at
them and demanded their wallets. Another man acted as a look-out, and the fourth

man, later identified as Davis, took the wallets from each worker and extracted a total

of $800 to $925, including a $2 bill and a 20-peso bill. Davis tossed the wallets on

the ground and the robbers left. The workers, none of whom spoke English, called

their foreman, who called 911, and the police responded to the scene. One of the

workers had written the license plate number on a two-by-four with a carpenter’s

pencil, and the police issued a be-on-the-lookout for a gray or silver Chevrolet with

a particular Kentucky license plate.

      A patrol officer saw the car parked in the driveway of a residence a mile or two

from the robbery site. Because there were “a lot of people outside,” she parked with

the property in view, called it in, and waited for more officers to arrive. Another

officer rode his motorcycle by the house and saw four men and two women standing

in front of the car with the Kentucky plates. After additional back-up officers arrived,

they converged on the residence and the men attempted unsuccessfully to flee or hide

in the house.

      The police drove four of the five victims to the house where the car was

located, while one victim waited at the site to make sure their tools were not stolen

in their absence. The victims identified three of the four men and the car on-site, and

                                           2
following their arrest, the police found cash on three of the four men, including

Davis. One co-defendant also had two $2 bills among the American money and

another had a 20-peso bill. A search of the car uncovered a black handgun hidden

under the carpet on the front passenger side. Davis’s aunt had rented the car and had

lent it to him around the time of the robbery.

      The four men were indicted for possession of a firearm during the commission

of a felony and five counts each of armed robbery and aggravated assault, and

Tranard Bivins was acquitted of all charges. The other three, Davis, Ryan Davis, and

Shannon Bradley, were convicted on all counts. After the trial court merged the

aggravated assault counts into the armed robbery counts, Ryan Davis and Bradley

were sentenced to life as recidivists, and Javarious Davis was sentenced to 15 years

to serve concurrently on each armed robbery count, plus five years consecutively on

the firearms charge, which the court suspended.

      Although Davis does not challenge the sufficiency of the evidence, we find that

the evidence as summarized above was sufficient to enable a rational trier of fact to




                                          3
conclude beyond a reasonable doubt that he was guilty of the crimes of which he was

convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).1

       2. Davis argues that (a) the trial court erred in denying his motion to sever or

alternatively to exclude the similar transaction evidence, and (b) that he was denied

his constitutional right to be present at all critical stages of his trial because he left the

courtroom while the State presented similar transaction evidence against his co-

defendant Ryan Davis. The record shows, however, that Davis never moved to sever

his trial from his co-defendants’ trial or to exclude the similar transaction evidence,

and that he waived his right to be present and acquiesced to his absence while the

State presented the similar transaction evidence against Ryan Davis.

       The State filed a notice of its intent to present evidence that co-defendant Ryan

Davis had committed similar transactions. During a motions hearing on the day

before trial began, the trial court heard and addressed the State’s motion in limine to

prevent the defendants from referring to the victims’ immigration status. The trial

court then referred to a ruling made in regard to co-defendant Bivins only. Davis

asked to be included in that ruling as he had moved to adopt the motions of any co-


       1
       In Case Number A12A0526, this court affirmed Bradley’s judgment of
conviction in an unpublished opinion issued on May 9, 2012.

                                              4
defendant, and the trial court responded that it did not recognize such motions but

required each defendant to file a specific motion for the relief he sought. Then, after

addressing issues of trial mechanics with the four co-defendants, the trial court asked

counsel for everyone but Ryan Davis whether they saw any need for their clients to

be present during the rest of the hearing, which would address the State’s motion to

introduce evidence of similar transactions against Ryan Davis. No one objected, and

the trial court excused Javarious Davis, Bivins, and Bradley, who then left the

courtroom. Counsel for Bradley confirmed that he was excused until the next

morning, and apparently also left the courtroom.

      The trial court proceeded to hear the State’s motion to present the similar

transaction evidence against Ryan Davis. It appears from the record that counsel for

Bivins remained, but the record does not establish whether or not counsel for

Javarious Davis remained during the similar transaction hearing. The State proffered

that it could present evidence that a similar group of men committed two additional

armed robberies of Hispanic construction workers with a black handgun ten or fifteen

minutes before the robbery at issue, both less than eight miles from the one in the

current case, that the robbers were in a car with a blue and white out-of-state license,

and that a Kentucky license plate is blue and white. Additionally, the State proffered

                                           5
that after a detective who was working on these earlier robberies heard that about the

arrests in the current case with such similar facts, he presented the victims with a

photographic line-up, and both identified Ryan Davis as one of the men who had

robbed them. The trial court found that the prior robberies were similar enough in

time, in geographic location, and in other details so that evidence about them was

admissible in the current case to establish course of conduct, common plan or scheme,

and identity.

      During the trial itself, the court notified the parties that it would instruct the

jury on the limited purpose of the similar transaction evidence as soon as anyone

notified it that introduction of that evidence was imminent. Before the State called the

first of the two similar transaction witnesses, it asked the court to give the limiting

instruction to the jury, and the court took a brief recess. When court reconvened but

just before the jury returned, counsel for co-defendant Bradley moved the court to

sever the case “if you’re going to allow a similar, because what it does, it’s a spillover

with my client. And he’s not charged with this. And it’s a similar against him. And

the jury may not be able to differentiate between the two.” The jury returned to the

courtroom at that moment, after which the following exchange took place:



                                            6
      THE COURT: Okay. I’ll deny that, but I’ll have to try to make sure
      that’s clear.
      [BRADLEY’S COUNSEL:] Or excuse us, please.
      [J. DAVIS’S COUNSEL:] Ditto for Davis.
      THE COURT: So is that acceptable with all of you, I mean, if I do that?
      [J. DAVIS’S COUNSEL:] The “S’ word?
      THE COURT: Well, no, just for now.
      THE DEPUTY SHERIFF: All jurors are present.
      THE COURT: Okay. Well, we may go out again. Hold on a second.
      They’ve asked me something here. Quickly confer.
      (Brief pause)
      [BRADLEY’S COUNSEL:] Yes.
      THE COURT: [Javarious Davis’s counsel], you’re onboard with that?
      [J. DAVIS’S COUNSEL:] Yes.


The court sent the jury out again, and then stated,

      Okay. The record shall reflect that three of the defendants, Shannon
      Bradley, Javarious Davis[,] right, and Bivins, Trenard Bivins, and their
      counsel have all asked to be excused from this portion, which is the
      similar transaction evidence as to Mr. Ryan Davis only. Correct,
      everybody?
      [BIVINS’ COUNSEL:] Yes, sir.
      THE COURT: You’ve asked to be excused. And all of you agree that
      it’s okay and you’re going to leave Mr. Evans and his client here alone
      for this purpose; right?
      [BIVINS’ COUNSEL:] Yes, sir.
      THE COURT: Okay. You may be excused.

                                          7
      [BRADLEY’S COUNSEL:] We just request one — you’re going to
      charge the jury accordingly on the similar?
      THE COURT: Yes, I’m going to give the similar and I’m going to say
      it applies only to Ryan Davis and I’ve excused y’all by agreement for
      the rest of the afternoon because this only affects him. Okay?
      [BRADLEY’S COUNSEL:] Thank you.


      With that, Javarious Davis, Bradley, Bivins, and their lawyers left the

courtroom, leaving Ryan Davis, his lawyer, and the prosecutors. The jury returned

and the trial court instructed it that the upcoming evidence was to be considered only

against Ryan Davis and only for the limited purpose of showing, if it did show, “the

identity of the perpetrator, the course of conduct, the modus operandi, plan or scheme

in the crimes which are charged in the case now on trial.” The State then presented

evidence consistent with its proffer, which included the testimony of the foreman on

one of the similar transaction construction sites and the investigating detective. The

detective identified two photographic line-ups that included Ryan Davis’s picture in

position number four.

      The foreman testified that he was working on the foundation of a house in

January 2008 with six Hispanic workers when three African-American men robbed

them mid-day. One robber pulled out a black handgun and instructed the other men


                                          8
“to check the Hispanic guys for money[, but] don’t mess with the black man, just get

them.” The foreman said he was the only African American present and tried to tell

them that the crew did not have any money because they had not been paid in a

couple of weeks, but, he testified, the gunman “told me to shut up or that I would be

next or that he would get me too.” The robbers took money from the one man who

had any and then walked up the street and left in a light blue Chevrolet car with a blue

and white license plate. An officer came to the scene after the foreman called 911,

and a day or two afterward, the foreman viewed photographic lineups and identified

the man in position number four as one of the robbers. He also identified Ryan Davis

in the courtroom as one of the robbers and the man he had selected from the

photographic line-up. After the foreman finished testifying, the jury was excused for

the weekend. When court resumed on Monday, the State recalled a detective to

identify photographs of Ryan Davis and Bradley, then rested.

      (a) Defendants who are jointly indicted for crimes in which the State does not

seek the death penalty “may be tried jointly or separately in the discretion of the trial

court.” OCGA § 17-8-4 (a). We review the trial court’s denial of a motion to sever for

abuse of discretion. Rhodes v. State, 279 Ga. 587, 590 (3) (619 SE2d 659) (2005).

Here, however, Davis made no motion to sever, either before trial or during the

                                           9
somewhat cryptic exchange among counsel and the trial court quoted above, and

similarly made no motion to exclude the similar transaction evidence at trial or during

the pretrial hearing on the issue. Only Bradley moved to sever the trial or exclude the

evidence, and Davis did not join his co-defendants’ motions.

          Appellant argues that it was error for the trial court to refuse to grant a
          co-defendant’s motion for severance. The appellant made no motion for
          severance on his own behalf. . . . The appellant in this case did not elect
          to sever. There is no authority, under the statute, to require the court to
          sever the trial of a defendant who has made no motion to sever. The
          right to a severance under both the Georgia law and the American Bar
          Association Standards Relating to the Administration of Criminal
          Justice arises only upon an appropriate motion. No motion to sever
          having been made in the trial court, the contention is without merit. It is
          too late after an adverse verdict to raise the issue for the first time.


(Citations and punctuation omitted.) Way v. State, 239 Ga. 316 (2) (236 S.E.2d 655)

(1977).

While Davis raised the issue in his motion for new trial, his failure to raise it at trial

waives his right to argue the issue on appeal. Moore v. State, 272 Ga. 359, 360 (3)

(528 SE2d 793) (2000) (right to severance arises only on an appropriate motion at

trial).



                                              10
      (b) Davis also argues that he was denied his constitutional right to be present

during a critical stage of his trial, which was the introduction of the similar

transaction evidence against co-defendant Ryan Davis.

      “[E]mbodied within the Georgia constitutional right to the courts is a criminal

defendant’s right to be present and see and hear[] all the proceedings which are had

against him on the trial before the court.” (Citation, punctuation, and emphasis

omitted.) Pennie v. State, 271 Ga. 419, 421 (2) (520 SE2d 448) (1999). That right “is

a fundamental right and a foundational aspect of due process of law. . . .

Notwithstanding, the right to be present belongs to the defendant and the defendant

is free to relinquish that right if he or she so chooses.” Ward v. State, 288 Ga. 641,

645 (4) (706 SE2d 430) (2011). “The right is waived if the defendant personally

waives it in court; if counsel waives it at the defendant’s express direction; if counsel

waives it in open court while the defendant is present; or if counsel waives it and the

defendant subsequently acquiesces in the waiver.” Hampton v. State, 282 Ga. 490,

492 (2) (a) (651 SE2d 698) (2007).

      As the trial court observed in its order denying Davis’s motion for new trial on

this ground, Davis was present in the courtroom when his counsel waived his right

to attend the proceedings while the State introduced the similar transaction evidence

                                           11
against Ryan Davis. Thus Javarious Davis “waived his right to be present through the

representations of his trial counsel made in open court while he was present.”

Hampton, 282 Ga. at 492.

      Further, Davis waived his right to be present by acquiescing in the proceedings

described above.

      Acquiescence means a tacit consent to acts or conditions, and implies a
      knowledge of those things which are acquiesced in. One can not
      acquiesce in a wrong while ignorant that it has been committed, and the
      knowledge must be of facts. Acquiescence may arise where a person
      who knows that he is entitled to enforce a right neglects to do so for
      such a length of time that, under the circumstances of the case, the other
      party may fairly infer that he has waived or abandoned his right.
      Whether appellant knowingly acquiesced to the waiver of his presence,
      by his counsel, is a mixed question of law and fact.


(Citations and punctuation omitted.) Russell v. State, 230 Ga. App. 546, 547 (1) (497

SE2d 36) (1998).

      In its order denying Davis’s motion for new trial, the trial court noted that it

had “advised those in the courtroom, including the Defendant, about the request of

his attorney to excuse him for the remainder of the day during the testimony against

co-defendant [Ryan] Davis.” The court further found that Davis


                                         12
      voiced no objection, and declined to question the Court regarding his
      counsel’s decision. Moreover, the following day when trial resumed for
      all defendants, the Defendant again failed to object or question the Court
      as to his lack of presence during the presentation of the similar
      transaction evidence the previous day.


Davis thus waived his right to be present during that portion of the trial by failing to

object to his absence. Heywood v. State, 292 Ga. 771, 775 (3) (743 SE2d 12) (2013)

(failure to voice objection to absence from bench conference after trial judge advised

those in courtroom about topic of discussion “constituted acquiescence in his

counsel’s waiver of his right to be present”). Accordingly, we find no error.

      Judgment affirmed. Boggs and Branch, JJ., concur.




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