Oliver v. State
| Decision Date | 27 May 1998 |
| Docket Number | No. A98A0543.,A98A0543. |
| Parties | OLIVER v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Davis, Zipperman, Kirschenbaum & Lotito, Seth D. Kirschenbaum, Paul A. Griffin, Atlanta, for appellant.
J. Tom Morgan, District Attorney, Barbara B. Conroy, Elisabeth G. MacNamara, Carol M. Kayser, Assistant District Attorneys, for appellee. BEASLEY, Judge.
Arlene Oliver was indicted for armed robbery (OCGA § 16-8-41), possession of a knife during commission of a crime (OCGA § 16-11-106), and giving a false name and date of birth to a law enforcement officer (OCGA § 16-10-25). The latter charge was nolle prossed. The jury found her guilty of armed robbery but mentally ill and acquitted her of the knife charge.
1
So viewed, the evidence shows that while 70-year-old Carolyn Ussery was carrying groceries to her car after shopping, Oliver approached from behind, grabbed Mrs. Ussery and demanded her purse. Initially Mrs. Ussery resisted and during the struggle her purse slipped off her shoulder and down to the ground. She looked down and saw Oliver holding a knife in her rib cage "and went limp." After Oliver took the purse and fled, Mrs. Ussery discovered a severe laceration on her finger.
1. Oliver contends the court erred in refusing to grant her motion for directed verdict for armed robbery because "there was no evidence that Ms. Oliver used the knife to effectuate the taking of the victim's purse." She argues that the victim's statement to police and trial testimony were inconsistent in that her statement did not show the knife was used during the robbery whereas her trial testimony did.
A directed verdict of acquittal is authorized only where "there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal...."2 The standard of review for denial of a motion for such a verdict and for reviewing sufficiency of evidence to support a conviction is the same:3 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."4
Armed robbery occurs "when, with intent to commit theft, [a person] 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."5 The offensive weapon must be used "as a concomitant to a taking which involves the use of actual force or intimidation (constructive force) against another person"6 which must "either precede or be contemporaneous with, and not subsequent to, the taking."7 "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.'"8 The element of "use" is present when the victim is aware of the weapon and it has the desired forceful effect of assisting to accomplish the robbery.9 A weapon, including a concealed weapon, 10
In both Mrs. Ussery's statement to police and during her testimony she related that she saw the knife before the purse was taken. Her testimony differs only in that she said the knife was in her rib cage and when she saw it she went limp. Oliver herself told one of the detectives that she used the knife because she thought it would make the victim cooperate. She also told a doctor she used a knife.
The armed robbery conviction stands because "the evidence is sufficient to authorize a finding that the theft was completed after force was employed against the victim."11
2. Failure to give three of Oliver's proposed jury instructions is enumerated as error.
Each asserted error must be set out as a separate enumerated error. OCGA § 5-6-40. "When an appellant argues more than one error within a single enumeration, this court in its discretion may elect to review none of the errors so enumerated in violation of OCGA § 5-6-40 or elect to review any one or more of the several assertions of error contained within the single enumeration and treat the remaining assertions of error therein as abandoned." (Citation omitted.) Robinson v. State, 200 Ga. App. 515, 518(2)(b), 408 S.E.2d 820 (1991). Despite the inept format which deviates from the law prescribing organization of a brief we will address each subpart of the enumeration.
12
The first instance is the court's refusal to charge on robbery and on theft by taking, as lesser included offenses of armed robbery. Oliver contends that other than insanity her sole defense is that although she had a knife in her hand when she took Ussery's purse, she did not use it to commit the robbery.
The rule regarding a charge on a lesser included offense is that "a written request ... must always be given if there is any evidence that the defendant is guilty of the lesser included offense."13 Such a charge is not required where the uncontradicted evidence shows completion of armed robbery. 14
Holland v. State15 analyzed the question of charging a lesser included offense and affirmed rejection of a charge of simple possession. Where the body of evidence would factually support a legal alternative crime of which defendant could be guilty, a charge on the lesser included offense is required. But that is only when that body of evidence includes countervailing evidence of the lesser included offense. There was no evidentiary alternative as to whether Holland grew or manufactured marijuana: either he did or he did not.
State v. Alvarado16 involved an evidentiary alternative which necessitated the lesser included charge. The evidence presented an issue of fact as to whether the defendant actually or constructively possessed cocaine. "At the time of the charge against him conviction of the offense of trafficking required proof of actual, as opposed to constructive, possession."17 Actual possession justified a charge on trafficking. Constructive possession justified a charge on possession.18
There is no evidentiary alternative in Oliver's case. Mrs. Ussery's statement to police, the version of the facts upon which Oliver relies, shows that Ussery saw the knife before Oliver took the purse. The show of force preceded the taking,19 Mrs. Ussery had a reasonable apprehension the knife was being used,20 she saw it, and the knife was a concomitant to the taking.21 There was no alternative crime to armed robbery based on the evidence most favorable to Oliver. As in Hopkins v. State,22 "[n]o evidence was presented that the robbery was committed without the use of a [weapon]." The uncontradicted evidence "showed completion of the offense of armed robbery."23 The same reasoning holds true for robbery and theft by taking.24
The fact that Oliver was acquitted of possession of a knife during the commission of a crime does not compel a different conclusion. Since Georgia abandoned the inconsistent verdict rule in criminal cases,25 the jury is free to compromise on the verdict. 26
The second instance is the omission of the charge: Oliver cites Dixon v. Hopper.27
The court charged in the words of the armed robbery statute and added:
The full bench decision in Studdard v. State28 quotes from the Supreme Court of Georgia opinion in Hicks v. State which explains the term "use of an offensive weapon" as "concomitant" to a taking.29 "The language of the Code section `clearly contemplates that the offensive weapon be used as a concomitant ...'"30 The language of the statute itself, quoted in the charge as given, is sufficient to convey this meaning.31
Dixon v. Hopper is not on point because Dixon's victim never saw a weapon.32
3. (a) Oliver contends her statement to police after her arrest should have been suppressed because it resulted from an illegal stop. A witness to the robbery recorded the license number of the getaway car and gave it to police. Two days later, an officer stopped the same car driven by Oliver in what the trial court found was an illegal stop. Oliver gave a false name and date of birth to the officer, and he discovered two knives during the subsequent car search. He was about to let Oliver go when he decided to check her license plate number through the Georgia and National Crime Information Centers (GCIC and NCIC). It erroneously showed the car was stolen. The officer arrested Oliver for theft by receiving. It was later determined that the car was not stolen but that Oliver was wanted for armed robbery. At the station, after waiving her Miranda rights, Oliver confessed to the crime and indicated intentional use of the knife. The statement was read into evidence at trial by the...
To continue reading
Request your trial
-
Felix v. State
...[what] defendant challenges on appeal ..." (Carver v. State, 208 Ga.App. 405(1), 430 S.E.2d 790 (1993)). See also Oliver v. State, 232 Ga.App. 816(2), 503 S.E.2d 28 (1998), and Sanders v. State, 212 Ga.App. 832, 442 S.E.2d 923 (1994) (where all the issues raised in one enumeration were addr......
-
Fluellen v. State
...not mentioned or revealed by defendant until after money was taken). The dissent relies on the following statement in Oliver v. State, 232 Ga.App. 816, 503 S.E.2d 28 (1998), to support its position that insufficient evidence of use was presented: "The element of `use' is present when the vi......
-
Gilliam v. State
...of theft by shoplifting where the undisputed evidence showed defendant concealed two shirts in his pants). 20. Oliver v. State, 232 Ga.App. 816, 819(2), 503 S.E.2d 28 (1998). 21. Holland v. State, 205 Ga.App. 695, 699(5), 423 S.E.2d 694 22. Burgess v. State, 204 Ga.App. 766, 770, 420 S.E.2d......
-
State v. Cooper
...453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). 18. 201 Ga.App. 792, 794-795(2)(a), 412 S.E.2d 850 (1991). 19. 232 Ga.App. 816, 821(3)(a), 503 S.E.2d 28 (1998). 20. Ruffin, supra at 794-795(2)(a), 412 S.E.2d 21. Oliver, supra. Oliver did not challenge the legality of her arrest ba......