Merritt v. State

353 Ga.App. 374

837 S.E.2d 521

MERRITT

v.The STATE.

A19A2360

Court of Appeals of Georgia.

January 2, 2020

Juwayn Nadim Haddad, Decatur, for Appellant.

Daniel J. Porter, Lawrenceville, Lee Franklin Tittsworth, Daniel Paul Sanmiguel, for Appellee.

Mercier, Judge.

Following a jury trial, Jeffery Merritt was convicted of armed robbery, hijacking a motor vehicle, and two counts of aggravated assault. Merritt appeals, arguing that the trial court erred in denying his motion for directed verdict on Count 1 (armed robbery) and Count 2 (hijacking a motor vehicle). We affirm.

The denial of a motion for directed verdict is reviewed under the same standard used to evaluate the sufficiency of the evidence supporting a criminal conviction. See Williams v. State , 293 Ga. 750, 752 (1), 749 S.E.2d 693 (2013). We must consider "whether the evidence, viewed in the light most favorable to the verdicts, would enable a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of the crimes for which he was convicted." Id. (citations and punctuation omitted).

So viewed, the evidence shows that Merritt was standing outside of the victim’s apartment building, folding a metal chair, when the victim left for work at 6:00 a.m. on June 22, 2017. As the victim walked around the building to the parking lot where she had parked her car, Merritt hit her in the back of her head with the chair, knocking her to the ground approximately one car-length away from her vehicle. Merritt took her car key from her hand, then moved behind her.

The victim sat up, revealing her purse that had fallen underneath her. Merritt pulled a gun from his clothing, pointed it at the victim, and demanded the purse, but briefly looked away as a car approached. The victim used that opportunity to flee, hiding behind a nearby wall and calling 911 before she returned to her apartment to wait for the police. When the police arrived less than ten minutes after the attack, the victim discovered that her car was missing from the parking lot.

A few weeks later, a police officer observed Merritt driving the victim’s car. Detectives showed the victim a photographic lineup that included Merritt’s picture. The victim identified Merritt as her assailant, indicating that she was "[o]ne hundred percent" certain of her identification.

Following the presentation of evidence at trial, Merritt moved for a directed verdict on Count 1 (armed robbery) and Count 2 (hijacking a motor vehicle). The trial court denied the motion, and the jury found Merritt guilty of armed robbery, hijacking a motor vehicle, and two counts of aggravated assault. This appeal followed.

1. An armed robbery occurs "when, with intent to commit theft, [a person] takes property of another from the person or the immediate presence of another by use of an offensive weapon[.]" OCGA § 16-8-41 (a).

Count 1 of the indictment alleged that Merritt committed this offense by taking the victim’s car "from the immediate presence of [the victim], by use of an offensive weapon, to wit: a handgun[.]" Pointing to the victim’s testimony that he took her car key before pulling a gun from his clothing, Merritt challenges his armed robbery conviction on appeal. In Merritt’s view, the State failed to prove that he used a gun to take the victim’s car, entitling him to a directed verdict on Count 1.

We disagree. To support an armed robbery conviction, an offensive weapon "must be used as a concomitant to a taking which involves the use of actual force or intimidation (constructive force) against another person which must either precede or be contemporaneous with, and not subsequent to, the taking." Attaway v. State , 332 Ga. App. 375, 377 (1) (a), 772 S.E.2d 821 (2015) (citations and punctuation omitted). In other words, the State must prove beyond a reasonable doubt that use of the weapon "occurred prior to or contemporaneously with the taking." Id. (citation and punctuation omitted). The evidence shows that Merritt took the victim’s car key before he used the gun. But he was charged with stealing the victim’s vehicle, not her car key. And based on the evidence presented, the jury was authorized to conclude that Merritt took the victim’s car after he pointed the gun at her. See id. ("[T]he taking is complete once control of the property is transferred involuntarily from the victim to the defendant[.]").

Although the victim was not present in the apartment parking lot when Merritt stole her car, "the concept of immediate presence is broadly construed if the object taken was under the victim’s control or responsibility and the victim is not too distant." Morgan v. State , 195 Ga. App. 732, 734 (1), 394 S.E.2d 639 (1990) (citations omitted). Moreover, "[i]t has long been recognized ... that when perpetrators forcibly cause the victim to be away from the immediate presence of the property at the time it is stolen, the offense of armed robbery can still be committed." Baldivia v. State , 267 Ga. App. 266, 269 (1), 599 S.E.2d 188 (2004). A victim’s flight before property is taken, therefore, does not undermine an armed robbery conviction. See id. ; Heard v. State , 204 Ga. App. 757, 758 (1), 420 S.E.2d 639 (1992) (armed robbery conviction upheld where "evidence show[ed] the victims were not present when the car was stolen because they were forced to flee into the woods after [the defendant] fired shots and wounded [one of the victims]"); Maddox v. State , 174 Ga. App. 728, 730 (1), 330 S.E.2d 911 (1985) ("The fortuitous escape of [the victim] before he suffered the more direct physical threat of having the shotgun actually pointed directly at his person at the exact moment that the theft was carried out should not serve to absolve appellants from guilt for perpetrating what was an armed robbery of his store.").

Prior to taking the victim’s car, Merritt pointed a gun at her, and she immediately fled to a nearby hiding place from which she called the police....