Bradford v. State

• Decision Date: 18 June 2014
• Docket Number: No. A14A0647.,A14A0647.
• Citation: 327 Ga.App. 621,760 S.E.2d 630
• Court: Georgia Court of Appeals
• Parties: BRADFORD v. The STATE.

327 Ga.App. 621

760 S.E.2d 630

BRADFORD

v.The STATE.

No. A14A0647.

Court of Appeals of Georgia.

June 18, 2014.

Russell Knighton Walker, for Bradford.

George Herbert Hartwig III, for the State.

ANDREWS, Presiding Judge.

Following a bench trial, Toledo Junius Bradford, Jr. was convicted of three counts of armed robbery (OCGA § 16–8–41(a)), three counts of possession of a knife during the commission of a crime (OCGA § 16–11–106), and one count of misdemeanor obstructionof an officer (OCGA § 16–10–24(a)). Bradford appeals from the denial of his motion for new trial, as amended, challenging the sufficiency of the evidence and the effectiveness of counsel for failure to demur to the indictment. For the reasons discussed below, we affirm two of Bradford's convictions for armed robbery and vacate a third.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ]. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld.

(Footnotes and punctuation omitted.) Camero v. State, 257 Ga.App. 109, 111(1), 570 S.E.2d 405 (2002).

So viewed, the evidence shows that in the early morning of July 24, 2008, Bradford and his longtime friend, co-defendant Lemar Davey, pushed their way into a Warner Robins gift shop demanding money. Shop employee Elsa Laffitte and two video poker customers, Maria Rehig and Siatragul Jriyporn, were present. As they entered the shop dressed in black and masked, Bradford and Davey knocked Jriyporn to the floor, told Laffitte to give them a trash bag, and, while Bradford held a meat cleaver, ordered her to empty the contents of the cash register into the trash bag. This accomplished, Davey attempted to break into a video poker machine, but got only the $50 in cash which Rehig had at the machine she was playing. While Davey did so, he ordered Laffitte and Rehig to join Jriyporn on the floor. Bradford guarded the door he and Davey had entered and held the meat cleaver over the fearful women. All told, Bradford and Davey took “$834.41 in cash and a $200.00 check.”

Unable to get into the video machine, Davey, who testified incident to his plea of guilty, moved the women into the bathroom out of concern for their safety given the meat cleaver which Bradford held. After having Bradford put the meat cleaver down, Davey had the women come out, and ordered Rehig and Jriyporn onto the floor once more. Permitted to sit in a chair opposite the bathroom door because she complained of a back problem, Laffitte observed a friend slip into the shop unobserved. Suspicious that the store was being robbed on seeing Laffitte's situation, the friend called police. The responding officer arrived shortly thereafter. Bradford and Davey were arrested as they fled the scene.

1. Bradford contends that the evidence is insufficient to support his conviction of armed robbery on Counts 1, 2, and 3 of the indictment because there was no evidence that the meat cleaver was used as an offensive weapon. With respect to Count 3 of the indictment, Bradford also argues that the State's failure to prove that “any cash or other property was taken from the person or immediate presence of alleged victim Jriyporn” constitutes a further basis for reversing his conviction as to her.

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, or any replica, article, or device having the appearance of such weapon.” OCGA § 16–8–41(a). The “statute clearly contemplates that the offensive weapon be used as a concomitant to a taking which involves the use of actual force or intimidation (constructive force) against another person.” (Footnote and punctuation omitted.) Jackson v. State, 309 Ga.App. 24, 27–28(1)(a), 709 S.E.2d 44 (2011). Likewise, the statute requires, among other elements, that the accused “take property of another from the person or the immediate presence of another.” (Punctuation omitted.) Gutierrez v. State, 290 Ga. 643, 644, 723 S.E.2d 658 (2012). See also Smith v. State, 244 Ga.App. 165, 168(4), 534 S.E.2d 903 (2000); State v. Watson, 239 Ga.App. 482, 484(2), 520 S.E.2d 911 (1999); Mathis v. State, 238 Ga.App. 218, 219(2), 517 S.E.2d 578 (1999) (“For property to be taken from the presence of the victim, it need not have been in actual contact with the body so long as it was under the victim's personal protection.”), overruled on other grounds, Wilson v. State, 277 Ga. 195, 586 S.E.2d 669 (2003).

(a) Counts 1 and 2.

In this case, the evidence revealed that Bradford entered the gift shop wielding a meat cleaver. Evidence also indicated that Bradford held the cleaver over his head. The perpetrators then made repeated demands for money and moved the three victims across the gift shop, all while Bradford either handled the cleaver or had it readily accessible. Indeed, the concern of harm from the cleaver was apparently great enough that Bradford's confederate urged him to put the cleaver away. As a result of these actions, money was taken from Laffitte and Rehig's immediate presence. See OCGA § 16–8–41(a).

Plainly, Bradford and Davey stole the money at issue from the immediate presence of Laffitte and Rehig. See OCGA § 16–8–41(a). Laffitte and Rehig were present inside the gift shop and held in fear of Bradford's meat cleaver, whether in hand or readily accessible, when the money was taken from the cash register and the video poker machine. Even had the money been taken during the time the women were forced into the bathroom,

it 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. Thus, the immediate presence element of the offense of armed robbery has been held to extend fairly far, and robbery convictions are upheld even out of the physical presence of the victim.

(Citation and punctuation omitted.) Jennings v. State, 292 Ga.App. 149, 152(1)(a), 664 S.E.2d 248 (2008). Accordingly, we conclude that any rational trier of fact could have found the essential elements of armed robbery, as charged in Counts 1 and 2 of the indictment, beyond a reasonable doubt. Camero, supra, 257 Ga.App. at 111(1), 570 S.E.2d 405.

(b) Count 3.

Bradford's conviction on Count 3 of the indictment (charging that Bradford “did with intent to commit theft, take cash, the property of another, from the person or immediate presence of Siatragul Jriyporn”) is a much closer question. Like Laffitte and Rehig, Jriyporn was present when Bradford and Davey stole the money from the immediate presence of the three victims. Jriyporn was also subjected to the fear of Bradford's meat cleaver when the money was taken in her immediate presence. What is lacking from the record is any evidence of a taking of property belonging to Jriyporn or over which she exercised some level of control; rather, the State relies upon evidence that Jriyporn was simply in the vicinity when property belonging to others was taken. As discussed below, such a showing is insufficient, as armed robbery requires a taking of “property of another” from the person or the immediate presence of another. See OCGA § 16–8–41(a). See also Gutierrez, supra, 290 Ga. at 644, 723 S.E.2d 658; Smith, supra, 244 Ga.App. at 168(4), 534 S.E.2d 903; Watson, supra, 239 Ga.App. at 484(2), 520 S.E.2d 911; Mathis, supra, 238 Ga.App. at 219(2), 517 S.E.2d 578 (“For property to be taken from the presence of the victim, it need not have been in actual contact with the body so long as it was under the victim's personal protection.”) (emphasis added).

At first glance, the State's argument finds some level of support. See Avila v. State, 322 Ga.App. 225, 227, 744 S.E.2d 405 (2013); Ward v. State, 304 Ga.App. 517, 522(1)(a), 696 S.E.2d 471 (2010); Harp v. State, 302 Ga.App. 17, 18, 690 S.E.2d 424 (2010). In Harp, the defendant and another person approached two victims outside the victims' home and demanded money. Both victims denied having any money. Id. at 17, 690 S.E.2d 424. The male victim then gave the female victim (his girlfriend) several papers from his shirt pocket and asked her to “show them I don't have no money.” Id. The papers included a $20 bill, which the female victim gave to the defendant. Id. The defendant was charged with, and ultimately convicted of, two counts of armed robbery. Id. On appeal, the defendant argued that there was insufficient evidence to convict him of two counts of armed robbery. This Court affirmed, first finding that there was sufficient evidence to convict for the armed robbery of the female victim. Id. at 18, 690 S.E.2d 424. Of note, however, this Court also found “[the male victim] was a victim of armed robbery because the $20 bill was taken from his immediate presence at gunpoint.” Id. Our holding recognized the principle that “if property is taken from the immediate presence or the actual or constructive possession of more than one victim, ‘the defendant may be charged with the robbery of each victim.’ ” (Emphasis added). Id. In addition, we noted “immediate presence” is to be construed broadly. Id.

In Ward, armed assailants demanded money from “men talking inside” and there was evidence that the defendant “pointed [a] gun ‘at the men.’ ” 304 Ga.App. at 518, 696 S.E.2d 471. Evidence also demonstrated that items were taken from “the men or ‘them’ ” and that each victim had personal property stolen from him. Id. Similarly, in Avila, this Court noted that...