Moody v. State, 46215
| Decision Date | 06 January 1989 |
| Docket Number | No. 46215,46215 |
| Parties | MOODY v. The STATE. |
| Court | Georgia Supreme Court |
W. Douglas Adams, Brunswick, for Joseph Lee Moody.
John B. Johnson III, Asst. Dist. Atty., Glenn Thomas, Jr., Dist. Atty., Brunswick, for the State.
Joseph Lee Moody appeals his conviction of armed robbery. Evidence was adduced at the trial to the following effect. Sometime around 8:00 o'clock a.m., the victim, a 15-year-old girl, allowed Moody to enter the apartment where she resided, purportedly to use the telephone. After using the telephone, Moody asked the victim whether her mother was at home, then suddenly threw the victim to the floor and forced her to walk down the hallway to her mother's bedroom. As they walked down the hallway, Moody said, "Wait, let me get my gun," then stuck something in her back which she believed to be a gun. She never saw a gun, but she felt something against her back. When they arrived at the mother's bedroom, Moody demanded money and jewelry. The victim pointed out to Moody a jewelry box belonging to her mother. It was locked and the victim did not have the key to it. Moody told the victim that "if there's not jewelry in here, I'm coming back." Moody tied the victim up, took the jewelry box into another room and broke it open, then left the apartment. The victim later freed herself and called the police. When the police arrived, the jewelry box and jewelry were missing, and they were never recovered. The victim positively identified Moody as her assailant. A neighbor had seen him on the steps of the apartment complex earlier on the morning of the armed robbery.
We affirm.
1. 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. ... [Emphasis supplied.]
OCGA § 16-8-41(a).
In response to the jury's query as to whether saying "I have a gun" and pushing an unidentified object into the victim's back, come under the definition of "the appearance of such weapon" under the armed-robbery statute, the trial judge instructed the jury that "appearance means any concept that is obtained through the use of any of the senses...." Moody argues that the evidence did not authorize his conviction of armed robbery because (1) "appearance" means "capable of being seen visually" and (2) "OCGA § 16-8-41, as defined by the court, is impermissibly vague and said statute is therefore unconstitutional because it fails to put citizens on notice as to what conduct is prohibited by law, in violation of the rights created under the Constitution of the United States and the Constitution of Georgia."
[T]he 1968 revision of the armed[-]robbery statute deleted from the former law all reference to 'any replica, article or device having the appearance of such weapon.' The effect of [Court of Appeals cases construing the amended statute] was to exclude from consideration under [that statute] the reasonable apprehension of the victim concerning the true nature of the weapon-like object being pointed at him or her. See Watts [v. State, 142 Ga.App. 857(4) (1977) ], supra, at 858 ... We note that the General Assembly has amended [the armed-robbery statute] effective April 9, 1981, so as to reinstate the 'toy pistol' aspect of the former law. Ga.L.1981, p. 1266. Hence, armed robbery now can be committed either with a real weapon or with a toy or replica weapon having the appearance of being real. [Emphasis supplied.]
Adsitt v. State, 248 Ga. 237, 240(6), 282 S.E.2d 305 (1981). The key words above are "reasonable apprehension." What a victim can reasonable apprehend necessarily must depend upon the circumstances of each case. Although "appearance" may be defined as the appellant contends, i.e., capability of being seen visually, it is also defined as "suggest[ing] a dissembling or pretense," and "appear" has as one definition, "to be taken as: LOOK, SEEM." Webster's unabridged Third New International Dictionary. Since the purpose of using "any replica, article, or device having the appearance of [an offensive] weapon" is to create a reasonable apprehension on the part of the victim that an offensive weapon is being used, it is immaterial whether such apprehension is created by use of the sense of vision or by any other sense, provided that the apprehension is reasonable under the circumstances. We have upheld the constitutionality of the armed-robbery statute without the "appearance" provision. Coker v. State, 234 Ga. 555, 558(2), 216 S.E.2d 782 (1975). We now hold that the statute as presently amended is constitutional. The trial judge did not err in defining "appearance." (Cf. Adsitt v. State, 248 Ga. 237, supra at 240, 282 S.E.2d 305, which held that the trial court did not err in taking from the jury the issue of whether the instrument used in an aggravated assault was a "deadly weapon.")
Accordingly, the trial judge did not err in his instruction to the jury as to the definition of "appearance," these instructions did not invade the province of the jury, and the evidence authorized the finding that Moody so used "a replica, article, or device having the appearance of [an offensive] weapon," regardless of what it was, as to create a reasonable apprehension on the...
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