Brown v. the State.
| Decision Date | 06 May 2011 |
| Docket Number | No. A11A0103.,A11A0103. |
| Citation | 710 S.E.2d 674,309 Ga.App. 511 |
| Parties | BROWNv.The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Gina Anne Smalley, for appellant.Patrick H. Head, Dist. Atty., Amelia Greeson Pray, Albert Thomas Reeves, Jr., Asst. Dist. Attys., for appellee.MIKELL, Judge.
Larry Brown was found guilty by a jury of robbery by sudden snatching, a violation of OCGA § 16–8–40(a)(3), and was sentenced to 20 years in prison. Following a hearing, the trial court denied Brown's motion for new trial. Brown appeals, challenging the sufficiency of the evidence and enumerating other errors. For the reasons set forth below, we affirm.
1. In separate enumerations, Brown contends that the evidence was insufficient to support his conviction and that the trial court erred in denying his motion for directed verdict of acquittal. We address these enumerations together, because “[i]n reviewing the denial of a directed verdict of acquittal, we employ the same test used to determine sufficiency of the evidence.” 1 Applying that standard, we view the evidence in the light most favorable to the jury's verdict, and the defendant no longer enjoys the presumption of innocence.2 We do not weigh the evidence or judge the credibility of witnesses, but determine only if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the offense charged beyond a reasonable doubt.3 Moreover, 4
Properly viewed, the evidence adduced at trial shows that Larry Ceminsky was shopping at a Walmart in Cobb County on February 20, 2008, when he walked away from his shopping cart to get dog food. He realized that he had left his wallet in his cart and came back to it “real quickly.” As he turned the corner, he saw Brown at his cart, approximately six feet away. Brown “was moving the cart and picked up the wallet.” Ceminsky testified that he was aware that Brown was stealing his wallet as it happened. He yelled at Brown, “You don't want to do that, put it down, leave it there.” Brown ran toward the store exit, and Ceminsky ran after him. Ceminsky shouted at the Walmart greeter stationed there, “stop that man, he stole my wallet.” With Ceminsky and the greeter in pursuit, Brown ran outside the store and dropped the wallet. He ran to his car, a blue Cutlass, and drove south on Cobb Parkway. He was apprehended shortly thereafter.
OCGA § 16–8–40(a)(3) provides that a person “commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another ... [b]y sudden snatching.” Brown contends that the evidence showed at most his guilt of the lesser offense of theft by taking,5 because the state failed to prove that he took the wallet by force from Ceminsky's “immediate presence”; that the victim was conscious of the theft at the time it occurred; and that the victim became aware of the theft prior to its occurrence. This contention is without merit.
Citing Franklin v. State,6 Brown asserts that the state failed to prove the element of force, because the evidence showed that Brown made no aggressive move toward the victim. Franklin, however, did not turn on the lack of evidence of force; instead, the evidence in that case showed that the victim, because he was unconscious, was not aware of the taking as it occurred.7 As this Court explained in Kendrick v. State, 8 “[f]orce is implicit in sudden snatching, both as a fact and as a legal proposition, the force being that effort necessary for the robber to transfer the property taken from the owner to his possession.” 9 In the case at bar, the wallet was taken from the victim's cart while the victim was nearby. This evidence was sufficient to show the force necessary as an element of the crime of robbery by sudden snatching.10
Brown cites McNearney v. State 11 in support of his contention that the evidence failed to show that the wallet was taken from the victim's “immediate presence,” as required by OCGA § 16–8–40(a). Brown's reliance on McNearney is misplaced. There, the victim was unaware that her purse had been stolen until a witness alerted her to the theft, by which time the defendant had driven away; for this reason, the defendant's conviction for robbery by sudden snatching could not stand.12 The case now before us, however, is distinguished from McNearney by the fact that Ceminsky saw Brown take his wallet from his cart only six feet away.13 Moreover, the “immediate presence” of the victim “stretches fairly far, and robbery convictions are usually upheld even out of the physical presence of the victim if what was taken was under his control or his responsibility and if he was not too far distant,” 14 as where a store owner ten feet away saw the defendant take a money bag.15 Here, the evidence was sufficient to show that the wallet was taken from the victim's “immediate presence” and that the victim was conscious of the robbery as it occurred. 16
Contrary to Brown's contention, the victim of a robbery by sudden snatching need not become aware of the taking prior to the taking. It is sufficient if the evidence shows, as it does here, that the victim became aware of the taking as the crime was being committed.17 We conclude that the evidence adduced at trial was sufficient to authorize the jury to find Brown guilty of robbery by sudden snatching beyond a reasonable doubt. 18
2. Brown contends that the trial court erred in failing to give a requested jury instruction on the lesser included offense of theft by taking and on the definition of forcible felony. We find no error.
(a) Brown argues that the victim's testimony was in conflict as to whether he actually saw Brown take the wallet from the cart. Brown contends, therefore, that the victim was not aware of the theft until it was complete; and as a result, Brown claims that he was at most guilty of the lesser included offense of theft by taking. This argument fails.
As this Court explained in Bettis,19 “[r]obbery by sudden snatching differs from theft by taking because the robbery offense requires proof of two additional elements: the thief must take the property from the victim's immediate presence, and the victim must be conscious of the theft at the time it is committed, in other words, before the taking is complete.” 20 Even if Ceminsky did not actually see Brown pick up the wallet, it is undisputed that when he saw Brown running toward the exit with the wallet, he gave chase but was unable to stop him. Thus, as we concluded in Division 1 above, the evidence shows that Ceminsky was conscious of the crime as it was being committed. The facts of this case are similar to those in Moore.21 There, the victim did not see the defendant pick up her purse, but she turned around in time to see him running away with it, and thus she was aware of the crime as it was being committed.22 Accordingly, we ruled that the offense, if any, was robbery by sudden snatching, so there was no evidence to support a jury charge on theft by taking as a lesser included offense.23 Similarly, in this case the evidence did not support a charge on theft by taking as a lesser included offense.24
(b) Brown asserts error in the trial court's denial of his request to give the following charge on the definition of a forcible felony: “A forcible felony means any felony which involves the use or threat of physical force or violence against any person.” The trial court did, however, give the pattern charge on robbery by sudden snatching. As this charge covers the principle of law in the requested charge, there was no error. “A trial court is not required to instruct the jury in the exact language of a requested charge, and when the principle of law is covered in another charge, that is sufficient.” 25 Because the jury convicted Brown based on a proper instruction as to how the crime of robbery by sudden snatching may be committed, we find no reversible error resulted from the trial court's failure to give the charge requested by Brown.26
3. Brown contends that the trial court erred in denying his motion for mistrial after one of the jurors made improper comments. We disagree.
After the jury had been selected, but before opening statements, the deputy reported, out of the presence of the jury, the following: as an unidentified prospective juror (who had not been selected) was leaving the building, she told the deputy that she had overheard Madeleine Lowry, one of the selected jurors, say something like “it's going to be for sure guilty” or “I think this will be quick because he's guilty,” while speaking to an unknown party on the phone. Brown's counsel immediately moved for a mistrial. Lowry was called in and questioned by the court and by counsel for both sides, outside the presence of the remaining members of the jury. She first denied making the statement, but, as the trial court noted, later she “danced around what she said.” She admitted that during a break she had spoken on the phone within earshot of other potential jurors, but she stated that she had not talked to any of the other jurors about the case and she asserted that she could still be fair and impartial.
The judge dismissed Lowry from further jury service and replaced her with an alternate. After hearing argument from counsel, the trial court determined that it would question the jurors collectively; if any of the jurors acknowledged overhearing any statement about the case made by Lowry, the court would then question each of those jurors individually. The jury was brought in and the judge asked them to raise their hand if any juror had overheard any comment that Lowry, the dismissed juror, had made ...
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