State v. Hightower

• Decision Date: 29 February 1984
• Docket Number: No. 40048,40048
• Citation: 312 S.E.2d 610,252 Ga. 220
• Parties: STATE v. HIGHTOWER, Jr.
• Court: Georgia Supreme Court

Page 610

312 S.E.2d 610

252 Ga. 220

STATE v. HIGHTOWER, Jr.

No. 40048.

Supreme Court of Georgia.

Feb. 29, 1984.

H. Jeff Lanier, Asst. Dist. Atty., Dublin, for the State.

Henry Bozeman, Dublin, for Johnny Hightower, Jr.

SMITH, Justice.

Johnny Hightower, Jr. was indicted, tried and convicted of armed robbery by use of a knife. Hightower claimed that he committed only a simple assault and battery upon the victim, Walter Duddy (the proprietor of a liquor store), while unbeknownst to him, an accomplice emptied the cash register. Hightower filed written requests for charges on the crimes of aggravated assault, simple assault, and battery. The trial judge charged on the crimes of robbery, armed robbery, and aggravated assault, and refused to charge on simple assault and battery. The Court of Appeals reversed and held that it was error not to give these requested charges. Hightower v. State, 166 Ga.App. 744(6), 305 S.E.2d 372 (1983). We granted the state's petition for certiorari to review the section of that opinion dealing with jury charges on lesser included offenses. We reverse.

Hightower and Carlos Jenkins entered the Telfair Package Shop in Dublin at about noon on November 19, 1981. Both were drunk and possibly drugged. Hightower asked to use a private bathroom and Duddy refused him because it also served as a storage area for personal items and money. After walking around the store and discussing the matter of what to buy, Hightower and Jenkins indicated a selection to the proprietor that caused him to go to a corner of the store. Hightower thereupon jumped the service counter and ran to the prohibited bathroom, at the same time saying that he could not wait. Jenkins declared that he and the proprietor would wait there until Hightower returned. Hightower came out some time afterward "in a hurry practically running right at me," according to Duddy, crying " 'Where is it? Where is it?' I said, 'What?' He said, 'The money,' and I said 'All I've got is here in the register.' As he got to me, he had the knife ... and before I hardly knew what was happening he grabbed ahold of me and wrestled me back into the bathroom, pushed me down on the floor, put the knife in my face and told me to stay there until they left." When Duddy ventured out after a few minutes the men were gone and his cash register had been rifled.

Hightower admits that he was in the store with Carlos Jenkins, ¹ that he jumped the counter, went into the bathroom, and upon his return grabbed Duddy from behind, hustled him into the bathroom and pushed him to the floor. Only then, he said at trial, did he see the knife, which was lying on the toilet tank. He picked it up and put it into his pocket in order to prevent Duddy from using it on him. Hightower claimed to have grabbed the victim only to perfect his escape before the police could be called for his unauthorized use of the bathroom. Leaving the bathroom the second time he saw Jenkins emptying the cash register of his own accord. Thereupon they both ran into the woods, where Hightower threw down the knife and the pair split up, with Jenkins allegedly taking all the money.

Hightower appealed on the ground, among others, that there was evidence that he did not participate in the robbery but only grabbed the victim and shoved him into the restroom. He contended that it was error to refuse his requested charge on the lesser included offense of simple assault and battery. The Court of Appeals agreed, stating that "either assault or battery may be lesser included offenses of an armed robbery based on the facts of a particular case." Hightower v. State, supra at 749, 305 S.E.2d 372.

The language of the indictment charging armed robbery alleged that Hightower and Jenkins did with the intent to commit theft take money from the victim "by use of offensive weapon, to wit: a knife." Hightower was neither indicted for nor charged with aggravated assault. Thus simple assault and battery were not necessarily included offenses in the allegation of the indictment or the crime charged. See OCGA *612s 16-1-6(2) (Code Ann. § 26-505); State v. Stonaker, 236 Ga. 1, 222 S.E.2d 354 (1976), Harvey v. State, 233 Ga. 41, 209 S.E.2d 587 (1974). The question remains, however, whether they were included offenses based on the evidence offered at trial, and as such should have been charged to the jury.

The evidence on which Hightower relies in support of his contention is his own testimony. Circumstantial and direct evidence provided by Duddy support the state's theory of armed robbery without conflict. In reversing, the Court of Appeals relied on State v. Estevez, 232 Ga. 316, 206 S.E.2d 475 (1974), and its interpretation of OCGA § 16-1-6 (Code Ann. § 26-505), for the proposition that lesser included crimes are determined as a matter of fact. The Court of Appeals then reasoned that although the present facts show an armed robbery, "taking away one element of such offense, to wit--the theft, there are facts also showing that the defendant committed an assault with a knife, a deadly weapon (thus an aggravated assault) and if the defendant's testimony is accepted then he only committed an assault and battery since he did not use the knife when he seized the victim ... [T]he facts when analyzed in a step-by-step fashion show that the crimes of assault and battery were included in the greater offenses for which the defendant was indicted." Hightower v. State, supra, at 749, 305 S.E.2d 372.

We disagree with this analysis and with the interpretation placed on State v. Estevez, 232 Ga. 316, 206 S.E.2d 475 (1974). In Estevez we addressed the question of lesser included offenses in the context of the double jeopardy proscriptions of the constitutions of the United States and Georgia. Construing OCGA § 16-1-6 (Code Ann. § 26-505), we concluded that paragraphs (1) and (2) of that section "establish alternative rules for determining when one crime is included in another as a matter of fact or as a matter of law so as to bar conviction and punishment for more than one crime." Id. at 319, 206 S.E.2d 475. (Emphasis in original). Hightower was not indicted for or charged with aggravated assault and aggravated assault is not a lesser included offense of armed robbery, the crime for which he was indicted, as a matter of law. Hightower requested and received the charge on aggravated assault and nowhere did the state contend that Hightower had committed any offense other than an armed robbery. Hightower did not face a danger of being convicted of more than one crime for the same conduct, the peril with which we were concerned in Estevez. See Haynes v. State, 249 Ga. 119, 288 S.E.2d 185 (1982).

The crimes of aggravated assault and armed robbery have one distinct element that distinguishes them--the element of theft. The Court of Appeals concluded that if this element is eliminated, there are facts showing that Hightower committed an aggravated assault. We acknowledge that one crime may be changed into another by adding or subtracting elements which distinguish them. However, where the defendant is charged by a narrowly drawn indictment with a specific crime it is not within the power of the judge or the jury to interpret the facts as presented at trial to support an alternative, separate offense. ² Criminal indictments are not deemed amendable to conform to the evidence. Tuggle v. State, 145 Ga.App. 603(2), 244 S.E.2d 131 (1978). In this case Hightower was indicted for the offense of armed robbery in that he "did unlawfully with intent to commit theft, take property of value, to wit: approximately $128.55 ... the property of Walter Duddy, from the immediate presence of Walter Duddy, by use of offensive weapon, to wit: a knife," in the words of the indictment. This indictment does not allege the offenses of assault or battery or the greater offenses in which they are included.

This court has never found aggravated assault to be a lesser included offense of armed robbery as a matter of fact in any case and does not do so here. ³ Moreover, there is no substantive double jeopardy danger in this case, the usual context in which questions of lesser included offenses are addressed. The jury here received a charge on robbery and could have found the defendant guilty of that lesser offense had they believed his contentions that he did not threaten Duddy with the knife. Of course if the jury believed that Hightower did not participate in taking money from the cash register, they could have rejected the robbery or armed robbery verdicts in favor of aggravated assault, or of course, complete acquittal. Instead, the jury obviously believed that Hightower used the knife with the intent to take Duddy's property and returned a verdict of guilty of armed robbery. There was no error in refusing to charge on the separate crimes of assault and battery. See Wallace v. State, 159 Ga.App. 793, 285 S.E.2d 194 (1981).

Judgment reversed.

All the Justices concur, except HILL, C.J., and CLARKE and WELTNER, JJ., who dissent.

WELTNER, Justice, dissenting.

OCGA § 16-1-6 (Code Ann. § 26-505) purports to define "included offenses." "[OCGA § 16-1-6(1) (Code Ann. § 26-505)] sets out the rules for determining an included crime as a matter of fact or as a matter of law," State v. Estevez, 232 Ga. 316, 320, 206 S.E.2d 475 (1974).

It is now almost ten years since Estevez addressed what is a continuing difficulty--witness this very case. An answer should not continue to elude us, however, if we can but circumscribe the problem with logic and reason.

First, we should lay aside the idea that offenses may be "included" as a "matter of fact" and "as a matter of law." Offenses are, by the nature of things, either included or not included, and that is determined as a matter of law.

Second, we must note what every beginning law student...