Bradford v. State

• Decision Date: 31 October 1996
• Docket Number: No. A96A1812,A96A1812
• Citation: 477 S.E.2d 859,223 Ga.App. 424
• Parties: , 96 FCDR 3944 BRADFORD v. The STATE.
• Court: Georgia Court of Appeals

Page 859

477 S.E.2d 859

223 Ga.App. 424, 96 FCDR 3944

BRADFORD v. The STATE.

No. A96A1812.

Court of Appeals of Georgia.

Oct. 31, 1996.

Kathleen D. Kirwin, Silver Springs, MD, for appellant.

Harry N. Gordon, District Attorney, Richard L. Dickson, Assistant District Attorney, for appellee.

HAROLD R. BANKE, Senior Appellate Judge.

Avery Bradford was convicted of hijacking a motor vehicle (OCGA § 16-5-44.1) and attempted robbery by intimidation (OCGA § 16-8-40). On appeal, Bradford enumerates four errors, all of which challenge only the hijacking conviction.

The State's evidence was as follows. Around midnight on Christmas, Lisa Headrick left her apartment carrying a laundry basket en route to a friend's house to do her laundry. As Headrick proceeded toward her car, Bradford intercepted her and grabbed her arm. He cautioned her not to yell and demanded her car keys which she denied having. After Bradford demanded the keys a second time, he warned her that she had better not be lying about the keys as he had a gun and would kill her. Bradford gripped the victim tightly with one hand, and the victim never saw his other hand. While Bradford threatened her, and was becoming increasingly impatient, two police cars drove up within about 30 or 40 feet. Police had been combing the area looking for a reportedly intoxicated person, matching Bradford's description, who had been attempting to stop traffic on an adjacent main street. As Corporal Jay Moore pulled into the parking lot, he observed Bradford drop his grip on the victim when he spotted the marked patrol car. The victim broke free, ran to the police and reported that a man was trying to take her car. Immediately after the victim's escape, Moore walked over to Bradford, searched him, but failed to find a gun or weapon or any offensive object. Nor did Moore who watched Bradford from close range observe Bradford discard anything. Headrick testified that she believed the perpetrator "possibly" had a gun even though she never saw a weapon. Because the laundry basket apparently obstructed her view, she was unable to see one of Bradford's hands and could not testify as to whether that hand was inside his pocket or at his side. Held:

1. Bradford contends that there was a fatal variance between the allegations set forth in the indictment and the evidence shown at trial and also challenges the sufficiency of the evidence. The indictment charged that Bradford "while in possession of an object have [sic] the appearance of a firearm, did unlawfully attempt to obtain a motor vehicle."

The essential elements of the offense of motor vehicle hijacking are: (1) possessing a firearm or weapon; (2) while obtaining or attempting to obtain a motor vehicle from the person or presence of another; (3) by force and violence or intimidation. OCGA § 16-5-44.1(b).

The State contends that the motor vehicle hijacking statute should be interpreted in the same manner as the armed robbery statute insofar as the meaning of "weapon" and "appearance of weapon." OCGA §§ 16-8-41(a); 16-5-44.1(a)(3). Drawing a parallel to the armed robbery statute, the State argues that the fact that no weapon was found in this case was not fatal to proving that Bradford had a weapon because under the armed robbery statute, when a weapon remains undisplayed, the requisite element of an offensive weapon can nonetheless be found "provided there is either a physical manifestation of the weapon or some evidence from which the presence of a weapon may be inferred." Johnson v. State, 195 Ga.App. 56, 57(1)(a), 392 S.E.2d 280 (1990). See Moody v. State, 258 Ga. 818, 819(1), 375 S.E.2d 30 (1989); Nicholson v. State, 200 Ga.App. 413, 414(1), 408 S.E.2d 487 (1991).

In Johnson, supra, the defendant threatened to shoot the victim and kept one hand concealed, which led the victim to reasonably assume he had a gun. Johnson, 195 Ga.App. at 57(1)(a), 392 S.E.2d 280. Such evidence was held sufficient to satisfy the armed robbery statute. Here, Bradford said he had a gun and threatened to kill the victim if she did not cooperate, but the victim never saw a weapon and no evidence was presented that Bradford concealed his hand or acted as though he was holding an offensive object. Compare Nicholson, 200 Ga.App. at 414(1), 408 S.E.2d 487. In fact, the victim specifically testified that she did not know where Bradford's other hand was located or how it was positioned and admitted that she only thought he "possibly" had a gun.

"Some physical manifestation is required or some evidence from which the presence of a weapon may be inferred, Hughes v. State, 185 Ga.App. 40, 41, 363 S.E.2d 336, but OCGA § 16-8-41(a) does not require proof of an actual offensive weapon." McCluskey v. State, 211 Ga.App. 205, 207(2), 438 S.E.2d 679 (1993). In this case, no evidence was offered to establish the physical manifestation requirement necessary to sustain a reasonable inference that Bradford had a gun, a weapon, or any object as alleged in the indictment. Thus, the evidence adduced at trial was not sufficient to enable a rational trier of fact to find all the essential elements of motor vehicle hijacking or to prove that Bradford possessed an object as alleged in the indictment. OCGA § 16-5-44.1; Pettway v. State, 204 Ga.App. 804, 420 S.E.2d 619 (1992); compare Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see Talbot v. State, 198 Ga.App. 636, 637, 402 S.E.2d 366 (1991). For these reasons, we reverse Bradford's conviction for hijacking a motor vehicle. Bradford's conviction for attempted robbery by intimidation still stands.

2. In light of the above holding, we need not reach the remaining enumerations.

Judgment reversed only as to the motor vehicle hijacking conviction.

BLACKBURN, J., concurs.

BEASLEY, C.J., concurs specially.

BEASLEY, Chief Judge, concurring specially.

I concur in the reversal of the hijacking conviction because the permissible inference that defendant was "in possession of a firearm" was eliminated by the arresting officer's direct testimony that defendant did not have a gun.

The inference that defendant did possess one at the time he threatened to kill the victim with a gun was reasonable. He twice told her he had one and said once that he would kill her with it if she was lying and in fact had the car keys (which she did). She could not see the hand which was not grasping her arm because the laundry basket she was holding with both hands was in the way, so she did not know whether or not the gun he stated he had was in that hand or not. She also testified that he wore a kind of bulky waist-length quilted jacket. The inference could be drawn that the gun was concealed in it. The victim took the defendant at his word. When the State's attorney asked, "Now, when he told you that he had a gun and told you that if you were lying he would kill you, at that point did you believe that he possibly, in fact, did have a gun?" She responded unequivocally, "Yes." She was "terrified," "scared." Defendant was threatening her and getting impatient with her when the police drove up.

This evidence, including the reasonable inferences, is comparable to the evidence in some of the armed robbery cases, where the conviction was affirmed even though no one testified to actually seeing a weapon. As stated in Johnson v. State, 195 Ga.App. 56, 57(1)(a), 392 S.E.2d 280 (1990), "The question is whether the defendant's acts create a 'reasonable apprehension on the part of the victim that an offensive weapon (was) being used,' regardless of whether the victim actually saw the weapon. Moody v. State, 258 Ga. 818, 820(1), 375 S.E.2d 30 (1989)." The armed robbery statute prohibition "includes...