Jackson v. the State., A10A2164.

• Decision Date: 30 March 2011
• Docket Number: No. A10A2164.,A10A2164.
• Citation: 309 Ga.App. 24,11 FCDR 1225,709 S.E.2d 44
• Parties: JACKSONv.The STATE.
• Court: Georgia Court of Appeals

309 Ga.App. 24

709 S.E.2d 44

11 FCDR 1225

JACKSON

v.The STATE.

No. A10A2164.

Court of Appeals of Georgia.

March 30, 2011.

Brown & Gill, Angela Brown Dillon, for appellant.Daniel J. Porter, Dist. Atty., Tandrea Brackin Beasley, Asst. Dist. Atty., for appellee.PHIPPS, Presiding Judge.

Michael P. Jackson appeals his convictions for the hijacking of a motor vehicle, possession of a firearm during the commission of a felony, and theft by receiving stolen property (a cell phone, CDs, and a digital camera). He contests the sufficiency of the evidence and the trial court's rejection of his claim of ineffective assistance of trial counsel. We reverse the hijacking and possession of a firearm convictions for lack of sufficient evidence to sustain them. We affirm Jackson's theft by receiving conviction.

1. Jackson contends that the evidence was insufficient to support his convictions for hijacking of a motor vehicle and possession of a firearm during the commission of a felony.¹ When an appellant challenges the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ²

So viewed, the evidence showed that at about 2:00 a.m. on May 11, 2008, the owner of a Nissan Maxima who had exited a dance club saw his car being driven toward the parking lot exit. Although the owner had left his car unlocked, he had not given anyone permission to drive it and had retained the ignition key in his possession. The owner testified that he walked to within about two steps of the driver's side window, which was about halfway open, and said something like, “[T]hat's my car ... back up.” At that point, the owner recounted, a male passenger holding a handgun “pointed it at me like back up from the car.” The owner retreated, and his car was driven out of the parking lot. The parking lot was well lit. The owner had noted that the male driver was wearing a red hat and that, in addition to the gunman, there were another male and two female passengers. The owner immediately reported the incident to police.

Within minutes, police spotted the Maxima less than a half-mile from the dance club. It was parked in the driveway of a residence; there were five occupants in the car: three males and two females. The officers activated the emergency lights of their patrol vehicle and walked toward the Maxima. A man wearing a red hat abruptly got out of the driver's seat and fled on foot.

The fleeing suspect—identified at trial as Jackson by one of the officers who approached the Maxima—was soon apprehended. A search of Jackson's person yielded a stolen iPod and a stolen wallet. The other four occupants, who had remained seated in the Maxima, were ordered out of the car one at a time. When all of them were out of the car, the police searched the vehicle and retrieved from under the driver's seat a handgun. Also found during the search were various stolen items, including cell phones, another iPod, CDs, and a digital camera. These items, as well as the stolen items found on Jackson's person, had been taken out of another car parked that night in the same dance club parking lot. Although the doors to that car had been locked, a back window had been left partially down.

That same night, a police officer took the owner of the Maxima to his car, where the owner identified Jackson as the driver. The Maxima was released to the owner, who noted that the steering column had been damaged since he parked his car before going into the dance club. At trial, the owner again identified Jackson as the driver.

(a) Georgia's hijacking statute provides, “A person commits the offense of hijacking a motor vehicle when such person while in possession of a firearm or weapon obtains a motor vehicle from the person or presence of another by force and violence or intimidation or attempts or conspires to do so.” ³ Jackson argues that the evidence was insufficient to prove the hijacking count of the indictment, which alleged that he “did, while in possession of a firearm, obtain a motor vehicle, to wit: a Nissan Maxima from the presence of another, to wit: [the owner], by intimidation by pointing the gun at said victim.”

Citing evidence that the gun was not pointed at the owner until after the Maxima had already been “hot-wired” out of its parking space and he was driving it out of the parking lot, Jackson asserts that there was no showing that he “obtain[ed]” the car as proscribed by the hijacking statute. More specifically, Jackson argues that there was no evidence that he “obtained” the Maxima from the presence of its owner by intimidation with a gun.

In resolving this contention, we turn to rules of statutory interpretation.

[I]n all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly. In so doing, the ordinary signification shall be applied to all words. Where the language of a statute is plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly. In fact, where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.⁴

The text of the hijacking statute does not define “obtain.” ⁵ We therefore look to the ordinary meaning of that word, given that it is not a term of art or a technical term.⁶ Ordinarily, “obtain” means “to gain or attain possession ... usu[ally] by some planned action or method.” ⁷ Applying the ordinary meaning of “obtain,” the offense of hijacking a motor vehicle is concluded when possession of the motor vehicle is attained. ⁸

As Jackson points out, when the gun was pointed at the Maxima's owner, he and several others were already inside the car and he was driving away in it. We agree with Jackson that, by that point, the Maxima had already been attained by Jackson. The state thus failed to adduce evidence that Jackson, “while in possession of a firearm or weapon obtain[ed] a motor vehicle from the person or presence of another by force and violence or intimidation.” ⁹

Indeed, “[i]n arriving at the intention of the legislature, it is appropriate for the court to look to the old law and the evil which the legislature sought to correct in enacting the new law and the remedy provided therefor.” ¹⁰ The purpose of the hijacking statute is to punish more severely those defendants who use a weapon to forcibly obtain a vehicle from the person or immediate presence of another.¹¹ While the evidence showed that Jackson's conduct was criminal, it fell short of placing him amongst those intended to be more severely punished by the hijacking statute.

Cases such as Bradford v. State ¹² and Haugland v. State ¹³ support our conclusion. Bradford set out: “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.” ¹⁴ All three judges on the Bradford panel agreed that reversal of the hijacking conviction was demanded because, in attempting to obtain the vehicle, the defendant had not been in possession of a firearm. ¹⁵

Citing Bradford (and further analyzing the weapon requirement of the armed robbery statute), we reversed the hijacking conviction in Haugland. ¹⁶ In that case, the evidence showed that the defendant had jerked an elderly woman out of her car, flung her across the street, and stolen her car. ¹⁷ There was no evidence, however, that the defendant had thus obtained the car while in possession of a weapon.¹⁸

Citing Haugland, the Supreme Court of Georgia has confirmed: “(T)he weapon requirement of the hijacking statute is similar to that of the armed robbery statute.” ¹⁹

Georgia's²⁰ armed robbery statute clearly contemplates that the offensive weapon be used as a concomitant to a taking which involves the use of actual force or intimidation (constructive force) against another person. It follows that armed robbery does not occur unless the robber's use of an offensive weapon directly or indirectly induces the possessor of the property to relinquish possession to the perpetrator. ²¹

Stated differently, the use of the offensive weapon “must either precede or be contemporaneous with, and not subsequent to, the taking.” ²² Our conclusion in the instant case complies with those principles. While occupying the Maxima and driving it away, Jackson—not the Maxima's owner—was in possession of the vehicle at the time the weapon was pointed at the owner. It follows, then, that Jackson did not use the gun as a concomitant to induce the Maxima's owner to “relinquish possession” of the car. The gun, the evidence showed, was used only after Jackson had attained possession of the vehicle. ²³

We thus reject the state's bare assertion that “it was only when [Jackson's] accomplice pointed a gun at [the owner], forcing him away from the car, did [Jackson] obtain[ed] the vehicle.” The legislature could have included language in the hijacking statute that proscribes not only obtaining, but also retaining a motor vehicle (once it has been attained). But it did not, and we discern that the absence of such language was a matter of considered choice.²⁴ “A court of law is not authorized to rewrite the statute by inserting additional language that would expand its application.... Any expansion of the [motor hijacking statute] must come from the legislature, as it alone is entrusted with the authority to amend existing laws.” ²⁵ Moreover, even if we determined that the statutory language employed was ambiguous, the same conclusion results. This is because “[w]hen a criminal statute fairly and reasonably is subject to two constructions, one which would render an act criminal, the other which would not, the statute must be construed strictly...