Hambrick v. State
| Decision Date | 02 April 1985 |
| Docket Number | No. 69698,69698 |
| Parties | , 58 A.L.R.4th 327 HAMBRICK v. The STATE. |
| Court | Georgia Court of Appeals |
C. Michael Bozeman, A.J. Whitehurst, Thomasville, for appellant.
H. Lamar Cole, Dist. Atty., James E. Hardy, Asst. Dist. Atty., for appellee.
In this appeal from conviction and sentence for robbery, aggravated assault, and burglary, there was evidence as follows, appellant Hambrick went to the residence of his wife's elderly stepgrandfather, John Arrington, and identified himself to the nearly blind Arrington as another of Arrington's grandsons. Arrington knew the sound of Hambrick's voice, was not deceived, and knew all along that the visitor was Hambrick. Arrington permitted Hambrick to come and remain to chat with him.
Shortly before, Hambrick had come to the house and induced Arrington's wife to leave so that the old man would be alone. When Hambrick saw her leave, he returned.
Arrington customarily kept his money in snuff cans tied around his neck with stockings. Hambrick tried to pull the snuff cans off but was unsuccessful so he took the pocket knife already in his hand and cut them loose. When Arrington put his hand up to neck to try to stop Hambrick, the victim's finger was cut. Held:
1. Hambrick asserts that the evidence was insufficient for any rational trier of fact to find the essential elements of the offenses charged beyond a reasonable doubt, and that the trial court erred in failing to direct a verdict of acquittal. He specifically enumerates as error the court's refusal to direct a verdict of acquittal on the charge of armed robbery, for which he was indicted but not convicted.
Even if the refusal was error, it was harmless inasmuch as the grant of a directed verdict as to armed robbery would still have permitted appellant's prosecution for robbery, a lesser included offense of which he was ultimately convicted. See Dickerson v. State, 151 Ga.App. 429(2), 260 S.E.2d 535 (1979). We find, however, that the trial court committed no error in refusing to direct a verdict on the original charge.
"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, or any replica, article, or device having the appearance of such weapon." OCGA § 16-8-41.
Appellant challenges the nature and role of the pocket knife as an offensive weapon. The term "offensive weapon" includes not only weapons which are offensive per se, such as firearms loaded with live ammunition. It also embraces other instrumentalities not normally considered to be offensive weapons in and of themselves but which may be found by a jury to be likely to produce death or great bodily injury depending on the manner and means of their use. Meminger v. State, 160 Ga.App. 509, 287 S.E.2d 296 (1981), rev'd on other grounds, 249 Ga. 561, 292 S.E.2d 681 (1982), vacated, 163 Ga.App. 338, 295 S.E.2d 235 (1982).
The knife in this case, though rather small and of a type suitable for carrying in the pocket, was arguably capable of inflicting the types of injuries which generally can be produced by knives, including death or great bodily injury. Whether or not the pocket knife in question constituted a deadly (or offensive) weapon was properly for the jury's determination. See Quarles v. State, 130 Ga.App. 756(2), 757, 204 S.E.2d 467 (1974); Banks v. State, 169 Ga.App. 571, 572, 314 S.E.2d 235 (1984).
From the evidence, the jury could have found that the knife was used against the elderly victim in a manner likely to produce death or great bodily injury. Furthermore, there was evidence that Hambrick did use the knife directly, to take the money from the victim's person.
Appellant further contends that there was insufficient evidence of any intent to rob Arrington, and in support of this cites a statement by the trial judge that Hambrick "did not intend, he did not intend to rob the man by force." This statement was made merely in colloquy among the court and counsel, and the judge went on to say, "He intended to take it away from him as a robbery by sudden snatching, it seems to me, or by cutting it away from his person." Snatching property while using an offensive weapon can constitute armed robbery rather than robbery by sudden snatching. See Geter v. State, 226 Ga. 236, 173 S.E.2d 680 (1970).
" Chitwood v. State, 170 Ga.App. 599, 600, 317 S.E.2d 589 (1984). The evidence was sufficient to withstand a motion for a directed verdict of acquittal regarding armed robbery.
After having reviewed the evidence in the light most favorable to the prosecution as to Hambrick's conviction for robbery, we conclude that any rational trier of fact could have found the essential elements of robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Boyd v. State, 244 Ga. 130, 259 S.E.2d 71 (1979).
We next consider Hambrick's conviction for aggravated assault. A person commits such offense when he assaults with intent to rob or with a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury. OCGA § 16-5-21. A person assaults when he either attempts to commit a violent injury to the person of another or commits an act which places another in reasonable apprehension of immediately receiving a violent injury. OCGA § 16-5-20. The court so charged.
Here again, appellant argues a lack of intent and the innocuous nature of the knife in question. For the reasons given above, we find this to be without merit. A directed verdict was not demanded, and an application of the test recited above, as set by Jackson and Boyd, affirm the verdict as legally authorized.
With regard to burglary, Hambrick argues that the evidence is undisputed that he had authority to enter. While that is true, it does not end the matter. The statute provides that "[a] person commits the...
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