Houston v. State

• Decision Date: 12 May 2004
• Docket Number: No. A04A0702.,A04A0702.
• Citation: 267 Ga. App. 383,599 S.E.2d 325
• Parties: HOUSTON v. The STATE.
• Court: Georgia Court of Appeals

267 Ga. App. 383

599 S.E.2d 325

267 Ga.App. 383

HOUSTON v. The STATE.

No. A04A0702.

Court of Appeals of Georgia.

May 12, 2004.

Richard M. Darden, Savannah, for appellant.

Spencer Lawton, Jr., District Attorney, Savannah, for appellee.

MIKELL, Judge.

Michael Houston was convicted of armed robbery and sentenced to 11 years in confinement. He appeals from the denial of his motion for new trial. Finding no error, we affirm. 1. Houston argues that the evidence is insufficient to support his conviction. Houston specifically argues that his conviction must be reversed because there is no evidence that he pointed a weapon at the victim or threatened her with a weapon. He also contends that the state failed to prove the date of the offense.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Houston] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Citation omitted.) Thomas v. State, 256 Ga.App. 712, 569 S.E.2d 620 (2002); see Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Viewed in this light, the evidence shows that on September 15, 2001, Houston entered the Dry Clean USA in Savannah, approached the cash register, and demanded money from the clerk, LaTasha Palmer. Houston then came behind the counter, showed Palmer a red-handled screwdriver, which she thought was an ice pick, and again demanded money. Houston took approximately $146 and left in his car. As Houston was leaving the parking lot, another customer, Arthur Small, was pulling in and he was almost hit by Houston's car. When Small reached the door of the store, Palmer told him she was locking the door and calling the police because she had just been robbed. Small attempted to follow Houston. Along the way, he encountered a police officer and gave him a description of Houston's car. Meanwhile, Palmer called police, giving a description of the perpetrator and his car and stating that it had a paper license tag. At trial, Palmer testified that Houston was wearing a multicolored striped shirt at the time of the robbery.

Houston was apprehended within minutes of the robbery. He had $141 on his person and was wearing a multicolored striped shirt. Officers also recovered a screwdriver and paper tag from Houston's car. Officers immediately took Houston back to the store, where Palmer positively identified him. At trial, Palmer again identified Houston as the man who robbed her. During an interview with Detective Marcus Graves, Houston said he was having problems paying his bills and did the robbery "not to steal, I just need to pay my bills." Houston admitted holding a screwdriver at his side during the robbery and covering his license plate with a paper tag. Detective Graves testified that Palmer told him at the scene that Houston pulled the screwdriver out of his pocket and held it at his side during the robbery.

(a) Houston's contention that his conviction must be reversed because there is no evidence that he pointed a weapon at Palmer or threatened her with a weapon is meritless. Under OCGA § 16-8-41(a), "[a] person commits the offense of armed robbery when, with intent to commit theft, he or she 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." Pursuant to this statute,

the presence of a weapon is necessary to a conviction for armed robbery. But the presence of such a weapon may be established by circumstantial evidence, and a conviction for armed robbery may be sustained even though the weapon itself was neither seen nor accurately described by the victim. Some physical manifestation of a weapon is required, however, or some evidence from which the presence of a weapon may be inferred. Furthermore, the question is whether the defendant's acts created 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.

(Emphasis in original.) Durham v. State, 259 Ga.App. 829, 831, 578 S.E.2d 514 (2003).

In this case, Palmer first testified that Houston came up to the counter and showed her a screwdriver. When the prosecutor later asked Palmer if she recognized the screwdriver, Palmer testified that she "didn't see it. [Houston] just threw it in his pocket, like I guess inside his pants, and I seen [sic] the tip of it." Palmer also testified that she would have given Houston the money even if he did not show her the screwdriver, and that after she gave him the money, Houston said, "give me all of it, he wasn't playing." On cross-examination, Palmer testified that "[Houston] didn't point [the screwdriver] at me, but I seen [sic] it. He showed it to me." When defense counsel asked Palmer if Houston "[ever] pulled the screwdriver all the way out and put it to you [or] threatened to kill you or do anything," Palmer responded, "No sir." Palmer confirmed that Houston said, "Give me the money," and showed her the tip of the screwdriver. On redirect, Palmer testified that she told the police that Houston had a red-handled ice pick. Finally, Palmer testified that she was afraid that Houston would have used the screwdriver on her if she declined to give him the money.

Whether Houston pointed the screwdriver at Palmer is immaterial. The evidence authorized a finding that he used the screwdriver to persuade Palmer to comply with his demand and that the robbery was accomplished while Palmer was under a...