Johnson v. State

• Decision Date: 06 December 2000
• Docket Number: No. A00A2234.,A00A2234.
• Court: Georgia Court of Appeals
• Parties: JOHNSON v. The STATE.

543 S.E.2d 439

247 Ga. App. 157

JOHNSON v. The STATE.

No. A00A2234.

Court of Appeals of Georgia.

December 6, 2000.

Emory B. Bazemore, Savannah, for appellant.

Spencer Lawton, Jr., Dist. Atty., Christine S. Barker, Asst. Dist. Atty., for appellee. MIKELL, Judge.

Based on evidence that he attacked, beat, robbed, and tried to strangle 103-year-old Hattie Mobley, Joseph Johnson was convicted of robbery, as a lesser included offense of armed robbery (Count 1), kidnapping with bodily injury (Count 2), burglary (Count 3) aggravated assault with a deadly weapon against a person age 65 or older (Count 4), aggravated assault with intent to rob by use of a bed sheet (Count 5), and possession of a knife during the commission of a crime (Count 7). The jury acquitted Johnson of possession of a knife during the commission of an armed robbery (Count 6). Johnson's motion for new trial was denied, and this appeal followed. He raises 18 enumerations of error. We affirm the judgments of conviction on Counts 1, 2, 3, 4, and 7; vacate the judgment on Count 5 because it merges into Count 1; and vacate the sentence on Count 7 and remand for resentencing.

Initially Johnson challenges the trial court's denial of his motion for a directed verdict of acquittal. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offenses. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and the evidence must be viewed in the light most favorable to the verdict. Redd v. State, 232 Ga.App. 666(1), 502 S.E.2d 467 (1998).

Construed to uphold the jury's verdict, the evidence shows that on December 13, 1997, Mobley was lying on her bed, ailing, awaiting her daughter's arrival. Mobley testified that she had left her back door unlocked to facilitate her daughter's entry. When Mobley looked up, she saw Johnson standing in her bedroom. He asked her for $2. When she said no, he threatened to kill her. Then Johnson threw her on the floor, took a sheet from the bed, wound it into a rope, tied it around her neck, and drew it tight, choking her. Johnson struck her face, severely bruising her left eye. He said again, "I'll kill you, I'm serious."

Next, Johnson retrieved a knife from the kitchen. As Mobley reached for the telephone to call the police, Johnson cut the telephone cord. Mobley was terrified; she thought Johnson was going to stab her. She testified: "He told me he'd kill me, in fact, he tried, and left me fastened up in the room, and I could hear him walking down the hall and slam the back door. He meant for me to die." Johnson took $50, money Mobley needed to pay her gas bill.

After Johnson left, Mobley was able to free herself by using a nail file she kept on top of her dresser to loosen the sheet. Her daughter discovered her; Mobley's eye was mangled, her nose was bleeding, and she could hardly stand. Mobley, who was acquainted with Johnson, identified him as her attacker.

When Johnson was spotted by a police officer outside a barber shop later that day, he approached the patrol car and stated: "I'm on drugs. I was going to turn myself in, but I had to speak to my mom first...." Johnson was taken to the precinct, where he said to another officer: "I didn't mean to hurt her, she's like a mother to me, and I was on drugs, I needed money...." Next Johnson gave a custodial statement, which was ruled admissible at trial pursuant to a Jackson-Denno hearing. Detective Kendrick, who videotaped the statement, testified that Johnson told the police that he had entered Mobley's home, taken $50 from her, and used the money to buy crack cocaine. He admitted binding her hands and feet with a bed sheet. He said that "crack made him hurt someone he loved." When asked how the telephone cord became severed, Johnson claimed he tore it with his bare hands.

Johnson testified at trial. He claimed Mobley allowed him to enter her home so that he could hang her curtains. Johnson testified that when he asked Mobley for $2, she retrieved an envelope containing $52 from her bedroom and handed it to him. Defense counsel then asked Johnson: "When did you tie her up?" Johnson replied: "When she started screaming and hollering." According to Johnson, Mobley wanted her money back, but he refused to return it.

Johnson then testified that he exited the bedroom, retrieved a knife from the kitchen, returned to the bedroom, and used the knife to cut the telephone cord. Defense counsel asked Johnson: "You knew that was robbery when you took the money and left the house, didn't you?" Johnson explained that he was experiencing drug cravings, then answered yes. On cross-examination, Johnson denied that he threw Mobley to the floor but ultimately admitted that he "put" her there. Johnson admitted he "may have" caused the bruises on her face. He denied threatening Mobley. He also testified that he could not remember all that happened during the incident because he was under the influence of drugs at that time.

The evidence is sufficient to enable any rational trier of fact to find Johnson guilty of each offense, as described in detail below.

1. Robbery. Under OCGA § 16-8-40(a),

(a) 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: (1) by use of force; [or] (2) by intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another.

The force or intimidation essential to robbery must either precede or be contemporaneous with the taking. Shropshire v. State, 224 Ga.App. 504, 505, 480 S.E.2d 919 (1997).

Johnson alleges he was entitled to a directed verdict of acquittal because any use of force occurred after the taking. However, Mobley's testimony that he threw her to the floor, tied her up, and threatened to kill her before he took her money authorized the jury to find Johnson guilty of robbery beyond a reasonable doubt. Jackson v. Virginia, supra.

2. Aggravated assault with intent to rob. OCGA § 16-5-21(a)(1) and (2) provide: "A person commits the offense of aggravated assault when he or she assaults ... with intent to ... rob ... with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury."

Mobley testified that after she refused to give Johnson her money, he wound a bed sheet into a rope, tied it tightly around her neck, and tried to strangle her. This evidence amply supports Johnson's conviction under Jackson v. Virginia, supra. Moreover, there is no merit in Johnson's argument that a fatal variance exists between the allegata and the probata. The evidence fully comported with the offense as alleged in the indictment. However, Johnson's conviction on this charge merges with his robbery conviction as a matter of fact. See Division 10, infra.

3. Kidnapping with bodily injury. Johnson contends that the evidence was insufficient to support his conviction for this offense under OCGA § 16-5-40(a) because the state failed to prove the essential element of asportation. However, as we held in Harshaw v. State, 222 Ga.App. 385, 386(1), 474 S.E.2d 226 (1996), asportation requires only the slightest movement of the victim. In Harshaw, evidence that the defendant pushed the victim to the ground was held sufficient. Likewise, in Woodson v. State, 242 Ga.App. 67, 69(1), 530 S.E.2d 2 (2000), evidence that the defendant shoved and pulled the victim to the floor was held to constitute asportation. The case sub judice is indistinguishable from Harshaw and Woodson. Mobley's testimony that Johnson threw her to the floor demonstrated asportation. Moreover, the photographs introduced into evidence without objection vividly demonstrated the victim's injuries. Accordingly, the evidence supported Johnson's conviction of kidnapping with bodily injury under the standard of Jackson v. Virginia, supra.

4. Burglary. A person commits burglary if he enters the dwelling of another without authority and with the intent to commit a theft therein. OCGA § 16-7-1(a). Johnson admitted his intention to take Mobley's money. The conflict between her testimony and Johnson's testimony concerning whether he was authorized to enter her house was a matter of credibility for the jury to resolve, and we will not disturb its finding on appeal. "As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld." (Citations and punctuation omitted.) Jackson v. State, 236 Ga.App. 260 511 S.E.2d 615 (1999). The evidence amply supports defendant's conviction of burglary under the standard set forth in Jackson v. Virginia, supra. 5. Aggravated assault with a deadly weapon against a person age 65 or older. Assault is defined as an "act which places another in reasonable apprehension of immediately receiving a violent injury." OCGA § 16-5-20(a)(2). Assault becomes aggravated when it is committed with a deadly weapon. OCGA § 16-5-21(a)(2). The sentence imposed upon a conviction of this offense is enhanced if the victim is at least 65 years old. OCGA § 16-5-21(d); see Howard v. State, 230 Ga.App. 437, 439(5), 496 S.E.2d 532 (1998).

Johnson argues that the evidence raised only a grave suspicion of his guilt. We disagree. Mobley testified that after Johnson tied her up and beat her, he returned to her bedroom wielding a knife and cut the phone cord, all the while threatening to kill her. Johnson admitted possessing the knife in her bedroom. Johnson's self-serving testimony that he denied threatening her created nothing more than a...