Garibay v. State

A Douglas County jury found Jesus Garibay guilty of armed robbery, OCGA § 16-8-41; aggravated assault, OCGA § 16-5-21; theft by receiving motor vehicle, OCGA § 16-8-7; two counts of possession of a firearm during the commission of a crime, OCGA § 16-11-106; reckless driving, OCGA § 40-6-390; and fleeing or attempting to elude a police officer, OCGA § 40-6-395. Following the denial of his motion for new trial, Garibay appeals, contending the trial court erred in admitting evidence of his gang membership. Finding no error, we affirm. Viewed in the light most favorable to the jury’s verdict,1 the evidence shows the following. During the night of July 24 and the early morning hours of July 25, 2002, Garibay attended a party at a mobile home owned by Edward Forey. All the attendees, except for Forey’s girlfriend, were members of the “Hard Times 13″ gang, a Hispanic gang known to sport “13″ tattoos and to wear blue gang colors and clothing displaying the number “13.” Gang members resided at the trailer and “HT 13″ was carved into a tree on the lot where the trailer was located. During the party, Garibay and two other gang members, Edward Nava and Miranda Sanders, decided to go on a “beer run,” which the gang members understood to mean stealing beer from a store. Before leaving, Garibay asked Forey for a gun and a black jacket. Forey kept a Ruger Red Hawk .44 Magnum revolver at his trailer for use by the gang’s members.

Armed for the beer run, Garibay, Nava and Sanders went to a Douglasville convenience store adjacent to the mobile home park. They drove there in a stolen Toyota Celica and parked behind the store. Sanders waited in the car while Nava and Garibay went inside. Once inside, Garibay grabbed beer from the cooler. He then pointed the revolver at the clerk and demanded money. Nava went behind the counter and collected $111.28 from the store’s two registers. When the victim was opening the second register, Nava struck him from behind. Nava told Garibay to shoot the victim, but Garibay did not. After Garibay and Nava fled with the beer and money, the victim called 911.