Smith v. State, A94A2042

• Decision Date: 01 December 1994
• Docket Number: No. A94A2042,A94A2042
• Parties: SMITH v. The STATE.
• Court: Georgia Court of Appeals

Page 526

452 S.E.2d 526

215 Ga.App. 673

SMITH v. The STATE.

No. A94A2042.

Court of Appeals of Georgia.

Dec. 1, 1994.

Reconsideration Denied Dec. 16, 1994.

Certiorari Denied April 6, 1995.

Duffy & Feemster, Dwight T. Feemster, Savannah, for appellant.

Dupont K. Cheney, Dist. Atty., Michael T. Muldrew, Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Defendant Smith was charged by indictment with the offenses of armed robbery and kidnapping. The jury returned a verdict, on the armed robbery charge of guilty of the lesser included offense of robbery by intimidation, and of guilty of kidnapping. Defendant appeals his conviction of the offenses of robbery by intimidation and kidnapping. Held:

1. Defendant contends the trial court erred in allowing the testimony of a witness, whose name was not provided to defendant in response to his demand for a list of witnesses until one day before trial and after voir dire of the jury, to be presented by the State at trial. In Bentley v. State, 210 Ga.App. 862, 863(2), 438 S.E.2d 110, this court reiterated the rule that in order for a witness to testify, who does not appear on a list furnished to defendant in response to a demand pursuant to OCGA § 17-7-110, the prosecuting attorney must state in his or her place that the evidence sought to be presented is newly discovered evidence which the State was not aware of at the time of furnishing the demanded list. In the case sub judice, the prosecuting attorney made such a statement in his place and related that he informed defense counsel of the name and telephone number of the witness on the morning following the night he received that information. On appeal, defendant questions for the first time whether the testimony of this witness was actually newly discovered evidence. The prosecutor's statement that the evidence was newly discovered was not challenged below, therefore the trial court did not err in allowing this witness to testify. Craig v. State, 170 Ga.App. 6, 8(2), 316 S.E.2d 18; Stewart v. State, 163 Ga.App. 735, 738(2), 295 S.E.2d 112; Smith v. State, 142 Ga.App. 1, 4(5), 234 S.E.2d 816.

2. Defendant's second and third enumerations of error bring into issue the sufficiency of the evidence of defendant's guilt. The second enumeration of error challenges the denial of defendant's motion for directed verdict. The fourth enumeration of error questions whether the issue of armed robbery was properly submitted to the jury, therefore we must resolve, along with other issues, the question of whether the evidence was sufficient to authorize conviction of the armed robbery charge of which defendant was in fact acquitted via the conviction of the lesser included offense. The fifth enumeration of error contends there was not sufficient evidence to authorize the charge on robbery by intimidation. The sixth enumeration of error questions whether the evidence in regard to the kidnapping offense was sufficient to authorize a charge on this issue.

The victim was approached by the defendant, with whom he was not previously acquainted, at a gasoline station. Defendant asked that the victim give him a ride to a bar. The victim agreed to give defendant a lift to Rufus's Lounge. After they drove away from the station, defendant asked if the victim would take him to Savannah. The victim refused, and defendant then put his hand under his shirt, told the victim he had a gun and that they were going to Savannah. The victim never actually saw a gun or other weapon. While he saw an object through defendant's shirt that looked like a pistol or small handgun, the victim acknowledged that he could not say that it was not merely defendant's hand. The victim testified that he felt apprehension that defendant would kill him as he then drove towards Savannah. Thereafter, the defendant announced his conclusion that the victim was drunk and ordered the victim to pull over so that he could drive. The victim stopped the car and was ordered out of the car. When he got out of the car, the victim started running away but the defendant caught him and dragged him back to the car. Defendant put the victim in the passenger seat and told him that he would kill him if he got out again. Defendant drove some distance down the road and pulled over at a store. Defendant took the ignition key and went into the store. The victim exited the car and ran away, this time successfully escaping. When the victim returned to the store with police his car was gone.

In regard to the armed robbery charge, defendant relies upon the fact that the victim did not actually see a weapon and argues that his acts did not create a reasonable apprehension on the part of the victim that an offensive weapon was being used. Johnson v. State, 195 Ga.App. 56, 57(1), 392 S.E.2d 280. "While the presence of a weapon during the commission of a robbery may be established without proof that the weapon was actually seen, ' "(s)ome physical manifestation of a weapon is required, ... or some evidence from which the presence of a weapon may be inferred." ' Hughes v. State, 185 Ga.App. 40, 41 (363 SE2d 336) (1987), quoting People v. Coleman, 128 Ill.App.3d 538(2) (470 NE2d 1277) (1984)." Tate v. State, 191 Ga.App. 727, 728(2), 382 S.E.2d 688. In the case sub judice, defendant's statement that he had a gun, the accompanying threats, the victim's testimony that the object in defendant's shirt looked like a handgun, and the victim's testimony as to his apprehension that he might be killed, amounted to sufficient evidence that he felt a reasonable apprehension that an offensive weapon was being used by defendant. Moody v. State, 258 Ga. 818, 819, 375 S.E.2d 30; Smith v. State, 209 Ga.App. 540, 541(2), 433 S.E.2d 694; Howard v. State, 201 Ga.App. 164(1), 166, 410 S.E.2d 782.

The property taken in the robbery offense was the victim's car. Defendant also contends that there is not sufficient evidence that he took the car. While direct evidence on this point may be lacking, there is sufficient circumstantial evidence to authorize a jury to conclude beyond a reasonable doubt that the car was taken by defendant. Defendant had assumed control of the car, was driving when the car arrived at the store, and had the keys to the car when the victim ran away from the store where the car was parked.

Defendant also challenges the sufficiency of the evidence concerning the kidnapping offense. Much of defendant's argument in regard to this offense relates to the credibility of the victim's testimony, an issue for determination by the jury. Defendant's argument that the victim was...