King v. State

• Decision Date: 13 July 1994
• Docket Number: No. A94A0809,A94A0809
• Citation: 447 S.E.2d 645,214 Ga.App. 311
• Parties: KING v. The STATE.
• Court: Georgia Court of Appeals

Page 645

447 S.E.2d 645

214 Ga.App. 311

KING v. The STATE.

No. A94A0809.

Court of Appeals of Georgia.

July 13, 1994.

Reconsideration Denied July 29, 1994.

Certiorari Denied Nov. 18, 1994.

Dorough & Sizemore, Kermit S. Dorough, Jr., W. James Sizemore, Jr., Albany, for appellant.

Britt R. Priddy, Dist. Atty., Gregory W. Edwards, Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Defendant was charged, via indictment, with robbery by sudden snatching. The evidence adduced at the jury trial reveals the following: At about 9:00 in the evening on April 11, 1993, defendant entered a convenience store in Dougherty County, Georgia, and asked the store clerk ("the victim") whether credit cards were accepted. The victim replied, "yes," and defendant requested six cartons of cigarettes. The victim then placed six cartons of cigarettes (valued at $86) on the counter and "asked [defendant] if that was all. [Defendant] said yes, and [the victim turned his attention to the] gas console to the right of [his] register, ... took [his] hand off of [the cigarettes] and reached over to check his gas[. At] that time [defendant] said something and went to walk out the door." The victim "didn't hear what [defendant] said[, but he saw that defendant] grabbed the cigarettes up [so he] turned around and asked [defendant] for the credit card[. Defendant] said something, [but again the victim] didn't hear what [defendant] said[. Defendant then] took off out the door[, r]unning." Shortly thereafter, Officer Walter Swearingen of the Albany Police Department apprehended defendant after stopping him in a blue pickup truck. Six cartons of cigarettes were found in the rear of the truck defendant was operating. The cigarettes matched the description of the cigarettes taken from the convenience store and were identified as store property.

The jury found defendant guilty of robbery by sudden snatching as charged. This appeal followed the denial of defendant's motion for new trial. Held:

1. In his fifth enumeration, defendant contends the trial court erred in denying his motion for directed verdict of acquittal, arguing that the uncontradicted evidence established that the victim was not aware the cigarettes had been stolen at the time of the actual taking.

" 'Robbery by sudden snatching is where no other force is used than is necessary to obtain possession of the property from the owner, who is off his guard, and where there is no resistance by the owner or injury to his person. Rivers v. State, 46 Ga.App. 778 (2) (169 SE 260).' Edwards v. State, 224 Ga. 684, 686 (2) (164 SE2d 120)." Byrd v. State, 171 Ga.App. 344(1), 319 S.E.2d 460. "[T]he only difference now between robbery [by sudden snatching] and larceny from the person is that in the latter case the property is abstracted without the knowledge of its possessor; but if the possessor becomes conscious, even in the taking, that his property is being taken away from him, and this knowledge is obtained before the taking is complete, the offense of robbery is committed." Williams v. State, 9 Ga.App. 170(1), 70 S.E. 890. In the case sub judice, the victim's testimony indicates that he was aware defendant was stealing the cigarettes. This evidence is sufficient to authorize the jury's finding that defendant is guilty, beyond a reasonable doubt, of robbery by sudden snatching as charged in the indictment. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; Byrd v. State, 171 Ga.App. 344(1), 345, 319 S.E.2d 460, supra. Compare McNearney v. State, 210 Ga.App. 582, 584, 436 S.E.2d 585. Consequently, the trial court did not err in denying defendant's motion for directed verdict. Humphrey v. State, 252 Ga. 525, 526(1), 527, 314 S.E.2d 436.

2. In his seventh enumeration, defendant maintains the trial court erred in refusing to give his request to charge on the lesser included offense of theft by taking.

Defendant submitted the following written request to charge: "A person commits the offense of theft by taking when that person unlawfully takes any property of another with the intention of depriving the other person of the property, regardless of the manner in which the property is taken or appropriated." Although this request is an accurate statement of the law, OCGA § 16-8-2, the State argues that "[t]his Court and the Supreme Court have made it abundantly clear that where the evidence demonstrates that the greater offense has been completed, it is not necessary to charge on the lesser included offenses."

"In State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550), the Georgia Supreme Court expressly disapproved of that line of authority which had held that a lesser-included offense need not be charged unless the evidence showed that the defendant was guilty only of the lesser crime, and held that '(t)he correct rule is that a written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser offense.' (Emphasis supplied.)" Galbreath v. State, 213 Ga.App. 80, 81(1), 443 S.E.2d 664. In the case sub judice, an eyewitness, Enoch Wingate, testified as follows: "A. [Defendant] asked for some cigarettes ... and he then said--he looked up and turned around and he said the lady outside is going to pay for it, and he walked outside, and as soon as he got to the door, he took off toward the right." This evidence would have authorized a finding that defendant committed the offense of theft by taking. See, e.g., Bonner v. State, 192 Ga.App. 721(1), 386 S.E.2d 379. Further, when coupled with the victim's testimony that the cigarettes were worth about $86, this theft would have been punishable as a misdemeanor pursuant to OCGA § 16-8-12(a)(1). Under these circumstances, the controlling issue is whether theft by taking is a lesser included offense within the crime of robbery by sudden snatching.

"An accused may be convicted of a crime included in a crime charged in the indictment or accusation. A crime is so included when ... [i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or ... [i]t differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission." OCGA § 16-1-6.

OCGA § 16-8-40(a)(3) provides that "[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 ... [b]y sudden snatching." The offense which is now prescribed as robbery by sudden snatching "was formerly larceny from the person and not robbery. Spencer v. State, 106 Ga. 692 (32 SE 849). In 1903 the General Assembly amended the definition of robbery to include robbery by sudden snatching, so that under the present law[, Ga.L. 1903, p. 43, Code Ann. § 26-2501, now OCGA § 16-8-40(a),] the offense of robbery may be committed by three methods, that is, (1) by force, (2) by intimidation, and (3) by sudden snatching. See Hickey v. State, 125 Ga. 147 (53 SE 1026); Pride v. State, 124 Ga. 792 (53 SE 192)." Nelson v. State, 203 Ga. 330, 336(4), 337, 46 S.E.2d 488. "Robbery always involves theft or attempt at theft, and theft always involves the taking, obtention, or appropriation of the property of another. It follows therefore that theft by taking, or the intent to commit this act, will generally be involved where the property is removed from the person of another. Under these circumstances [theft by taking necessarily is a lesser included offense to robbery by sudden snatching]." Hinton v. State, 127 Ga.App. 108, 192 S.E.2d 717. See Hensley v. State, 228 Ga. 501, 502(2), 503, 186 S.E.2d 729. Consequently, since "there is evidence to support [defendant's written request to charge on theft by taking and s]ince 'a written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense,' State v. Alvarado, 260 Ga. 563, 564, 397 S.E.2d 550, [supra], the trial court's failure to give the charge requested by the defendant constitutes reversible error." Reinhardt v. State, 263 Ga. 113(2), 114, 428 S.E.2d 333.

3. Defendant contends, in his ninth enumeration, the trial court erred in refusing to give a written request to charge on theft by deception as a lesser included offense. The request submitted was a verbatim quote from OCGA § 16-8-3(a), (b)(1), (2), which Code section provides in pertinent part: "A person commits the offense of theft by deception when he obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property." OCGA § 16-8-3(a). "A person deceives if he intentionally ... [c]reates or confirms another's impression of an existing fact or past event which is false and which the accused knows or believes to be false ... [or f]ails to correct a false impression of an existing fact or past event which he has previously created or confirmed." OCGA § 16-8-3(b)(1), (2).

"The complete rule with regard to giving a defendant's requested charge on a lesser included offense is: where the state's evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense. See Shepherd v. State, 234 Ga. 75 (214 SE2d 535) (1975) ('state's evidence clearly warranted a charge on armed robbery ... and there was no evidence of the lesser offense of theft by taking ...'). Where a case contains some evidence, no matter how slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense." Edwards v. State, 264 Ga. 131, 133, 442 S.E.2d 444.

In order to commit the crime of theft by deception, the defendant's deceptive...