Dobbs v. State

• Decision Date: 28 May 1991
• Docket Number: No. A91A0623,A91A0623
• Citation: 406 S.E.2d 252,199 Ga.App. 793
• Parties: DOBBS v. The STATE.
• Court: Georgia Court of Appeals

Page 252

406 S.E.2d 252

199 Ga.App. 793

DOBBS v. The STATE.

No. A91A0623.

Court of Appeals of Georgia.

May 28, 1991.

Michael S. Katz, Avondale Estates, for appellant.

William G. Hamrick, Jr., Dist. Atty., Agnes McCabe, Asst. Dist. Atty., for appellee.

ANDREWS, Judge.

Dobbs was convicted of two counts of armed robbery, and appeals the judgment entered on the conviction.

1. In his first enumeration of error, Dobbs claims the trial court erred by refusing to sever the two armed robbery counts. Severance is required if offenses are joined solely because they are similar in nature. Cooper v. State, 253 Ga. 736, 737, 325 S.E.2d 137 (1985); Dingler v. State, 233 Ga. 462, 211 S.E.2d 752 (1975); Wilson v. State, 188 Ga.App. 779, 780, 374 S.E.2d 325 (1988). Where, however, the similarity of the offenses reaches the level of a pattern which shows a common scheme, plan or a modus operandi so strikingly similar "that the totality of the facts unerringly demonstrate and designate the defendant as the common perpetrator, the offenses may be joined--subject to the right of the defendant to a severance in the interests of justice." (Citations omitted.) Davis v. State, 159 Ga.App. 356, 357, 283 S.E.2d 286 (1981); Wilson, supra 188 Ga.App. at 780, 374 S.E.2d 325. In such cases, severance lies within the discretion of the court. Fluellen v. State, 163 Ga.App. 425, 294 S.E.2d 653 (1982).

In the instant case, the armed robberies involved two convenience stores and took place less than one month apart. In each robbery the perpetrator, wearing sunglasses and a hat, approached the cashier, who was alone in the store, and initiated a cash transaction before pulling his gun and reaching across the counter to grab the money. Both cashiers expressed surprise at the well-mannered demeanor and speech of the perpetrator, and both described the handgun used as a type of long-barrelled machine gun. Both cashiers also identified the defendant as the armed robber. We find no abuse of discretion in the trial court's denial of Dobbs' motion to sever the offenses.

2. In enumeration number two, Dobbs argues the trial court erred in failing to grant his motion for a directed verdict on both counts because of a fatal variance between the indictment and the evidence adduced at trial.

Under OCGA § 16-8-41(a), "A person commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon...." (Emphasis supplied.) With respect to both counts, the present indictment charges in part that Dobbs did, "with intent to commit theft, take property of another [the convenience stores] from the person and the immediate presence [of the store cashiers] ..." (Emphasis supplied.) Since the indictment uses the conjunction "and" rather than "or," Dobbs contends the State must prove he took property from the person and the immediate presence of another. He argues that while the evidence at trial may show money was taken from the store cash register in the immediate presence of the cashier, there was no evidence he took any property from the person of anyone at either robbery. Therefore, he claims the State failed to prove the offense occurred in the manner stated in the indictment.

Even if we accept the defendant's contention that a variance occurred, it was not fatal. A variance between the allegations and the proof is so material as to be fatal only when it deprives the accused of " 'obvious requirements (1) that [he] shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.' " (Citations omitted.) DePalma v. State, 225 Ga. 465, 469-470, 169 S.E.2d 801 (1969). The defendant was charged with using an offensive weapon to take the property of the two convenience stores. The robberies were accomplished when the store's employees, who were entrusted with possession of the store's property, were held at gunpoint while the property was taken. Even if this was not technically a taking from the employees' persons, any resulting variance did not deprive the defendant of his substantial rights. Partridge v. State, 187 Ga.App. 325, 327, 370 S.E.2d 173 (1988). The trial court did not err in denying the defendant's motion for a directed verdict.

3. In his third enumeration, Dobbs claims the trial court erred by denying his motion in limine to exclude evidence of other robberies attributed to him. Generally, evidence of other criminal acts by the defendant is inadmissible because it tends to place the defendant's character into evidence. State v. Johnson, 246 Ga. 654, 272 S.E.2d 321 (1980). However, if the defendant is shown as the perpetrator of an extrinsic criminal act, which is sufficiently similar to the offense at issue so that proof of the extrinsic act tends to prove the offense at issue, then the extrinsic act is admissible if its relevance to show identity, motive, plan, scheme, bent of mind, or course of conduct, outweighs its prejudicial impact. Flournoy v. State, 186 Ga.App. 774, 368 S.E.2d 538 (1988); Johnson, supra. Admissibility of such evidence is a matter within the discretion of the court. Brown v. State, 197 Ga.App. 155, 157, 398 S.E.2d 34 (1990).

Dobbs was charged in the instant case with two armed robberies occurring in Carroll County on December 31, 1989, and January 23, 1990. The extrinsic criminal acts introduced by the state were armed robberies occurring in Polk County on January 12, 1990, and in Haralson County on January 5, 1990. Dobbs was identified by witnesses to both extrinsic robberies as the perpetrator, and although the strength of these eyewitness identifications varied from definite to probable, there is no requirement that such proof be made beyond a reasonable doubt. Williams v. State, 251 Ga. 749, 784, 312 S.E.2d 40 (1983). Dobbs' identity as the perpetrator was...