State v. Watson, A99A0217.

• Decision Date: 16 July 1999
• Docket Number: No. A99A0217.,A99A0217.
• Citation: 239 Ga. App. 482,520 S.E.2d 911
• Parties: The STATE v. WATSON et al.
• Court: Georgia Court of Appeals

520 S.E.2d 911

239 Ga. App. 482

The STATE v. WATSON et al.

No. A99A0217.

Court of Appeals of Georgia.

July 16, 1999.

Reconsideration Denied July 30, 1999.

Certiorari Denied January 14, 2000.

Paul L. Howard, Jr., District Attorney, Joseph F. Burford, David E. Langford, Assistant District Attorneys, for appellant.

Janet S. Willy, Athens, for appellees.

SMITH, Judge.

In this case, we must decide what constitutes a "taking" of the victim's property so as to support a charge of armed robbery under OCGA § 16-8-41(a). The trial court found that the State could not prove armed robbery under the undisputed facts, because it could not show a "taking" of the victim's property. Because we conclude that the facts shown could, if proved, support a finding of a taking within the meaning of the offense of armed robbery, we reverse.

The facts established at the preliminary hearing before a magistrate are essentially undisputed. Three juveniles, Christopher Watson, Rico Simon, and Antonio King, entered a barber shop together. Watson had a haircut and gave the barber a $20 bill. The barber "felt that something wasn't right," partly because he recognized Watson as one of the individuals who had acted in an unusual or furtive fashion outside the shop the day before, and he made change from his pocket instead of the cash register. As the barber reached into his pocket, Antonio King jumped up from his chair, put a gun to the barber's head and ordered him to "drop the money on the floor." The barber dropped both the $20 and his own money on the floor. But at the same time he pushed King's gun away, drew a .38 caliber revolver from a holster, and shot King four times, with fatal results. One of the bullets that struck King also hit appellant Simon in the left eye. The police took photographs of the scene, including the money that was still lying on the floor.

Watson and Simon were indicted on one count of armed robbery by the use of a firearm and for other offenses not relevant here.¹ The armed robbery count alleged that appellees "did unlawfully, with intent to commit theft, take control of money of value, from the immediate presence of [the victim] by the use of a firearm." Watson and Simon moved to dismiss the indictment for lack of jurisdiction or, alternatively, to transfer their cases to juvenile court, on the grounds that the undisputed facts showed an attempted rather than completed armed robbery. The trial court agreed that armed robbery could not be proved by the State and dismissed the armed robbery count of the indictment. This divested the trial court of jurisdiction over the remaining charges. From this ruling, the State appeals.

1. The State incorrectly contends the trial court was not authorized to test the sufficiency of the evidence and could only consider the sufficiency of the language of the indictment. See generally State v. Eubanks, 239 Ga. 483, 485, 238 S.E.2d 38 (1977); Kirkland v. State, 206 Ga.App. 27(1), 424 S.E.2d 638 (1992). In the special case of juvenile offenders indicted under OCGA § 15-11-5(b)(2)(A), evidence sufficient to support the allegations of the indictment is necessary to establish the superior court's authority to exercise original subject matter jurisdiction over a matter ordinarily within the jurisdiction of the juvenile court. The judgment of a court having no jurisdiction of the person or subject matter is void and a nullity, OCGA § 17-9-4, and "it is always the duty of a court to inquire into its jurisdiction." Williams v. State, 217 Ga. 312, 313, 122 S.E.2d 229 (1961); First United Church v. Udofia, 223 Ga.App. 849, 850(1), 479 S.E.2d 146 (1996). In this case, the superior court correctly inquired into its jurisdiction to try juveniles Watson and Simon after they raised the issue by motion.

2. Accordingly, we reach the merits of the issue considered by the trial court, and find that the facts here are sufficient to support a finding of a "taking" within the meaning of the offense of armed robbery.

Under OCGA § 16-8-41 the slightest change of location whereby the complete dominion of the property is transferred from the true owner to the trespasser is sufficient asportation to meet the statutory criterion. It is not required that the property taken be permanently appropriated.

(Citations and punctuation omitted.) Miller v. State, 223 Ga.App. 453, 454(1), 477 S.E.2d 878 (1996). Nor, we conclude, is it required that the defendant physically touch the property.

The incident at issue here does present a very close question of whether an armed robbery was completed. When King placed the pistol to the victim's head and ordered him to "drop the money on the floor," at least two other alternatives were possible. Had the victim obeyed, dropped the money, and allowed King to pick it up from the floor without resistance, the armed robbery clearly would have been completed. On the other hand, it is equally clear that had the victim responded simply by opening fire without obeying any command from King, the offense would constitute merely an attempted armed robbery. But if we focus on when "the complete dominion of the property is transferred from the true owner to the trespasser," id., it is clear that the armed robbery was completed, though only for a short time.

This view is consistent with our earlier decision in Bramblett v. State, 191 Ga.App. 238, 381 S.E.2d 530 (1989). In Bramblett, the defendant kidnapped the victim and told her to drive her car to an automatic teller machine and "withdraw $300 for him." Id. Nothing in the opinion suggests that Bramblett ever actually touched the money; indeed the facts as recited indicate otherwise, because the robbery was foiled when Bramblett left the vehicle for a short time and the victim drove away with the money still inside. Id. at 239, 381 S.E.2d 530. We held that, even though the victim escaped with the $300 still in her car, Bramblett had forced her to give him the money withdrawn from the automatic teller, and this constituted a "taking." Id. at 239(1), 381 S.E.2d 530. In essence, Bramblett exercised "dominion" or control over not only the victim but her car and its contents.

It is also a common sense conclusion that when a robber threatens his victim with a firearm, issues a direct order to the victim to place property in a particular location, and the victim complies with the order, the victim has relinquished and the robber has exercised control over the property. To hold the opposite would cause truly anomalous results in other close decisions. For example, a bank guard could be accosted on the street by an armed robber and ordered to place his deposit bag into an unoccupied getaway car or a suitcase on the sidewalk. If the guard obeyed the order of the robber and placed the money as commanded, but the police arrived before the robber could pick up the suitcase or enter the car, the robber would not yet have physically touched the money or carried it away. Yet it should be readily apparent that dominion over the property was transferred from the victim to the armed robber.

The dissent's objections that this will change the definition of a "taking" for the purpose of the lesser included offense of theft by taking are without merit. The courts in Georgia have already addressed this supposed anomaly by holding that, if a weapon is undisputedly involved, there is no lesser included offense of theft by taking. The actual holding of Jones v. State, 233 Ga.App. 362, 364, 504 S.E.2d 259 (1998), is subtly different from the dissent's paraphrase:

Where the uncontradicted evidence shows completion of the offense of armed robbery, and no evidence is presented to the effect that a weapon was not used in the robbery, the defendant is not entitled to a jury charge on the lesser included offenses of theft by taking or robbery by intimidation. [Cit.]

The same is true of Shepherd v. State, 234 Ga. 75, 77-78(3), 214 S.E.2d 535 (1975), where no evidence contradicted the fact that an armed robbery occurred. In Edwards v. State, 264 Ga. 131, 442 S.E.2d 444 (1994), involving charges of burglary and armed robbery, an instruction on the lesser included offense of theft by taking should have been given because there was evidence that the firearms found were not used to commit the offense but instead were merely the spoils of the burglary. No such facts are presented here, no question of a lesser included offense arises, and the dissent's expressed concerns about the potential effect of this case on the law of theft by taking are consequently unfounded. ²

Moreover, the dissent has confused the mere presence of a weapon with its effect on the actions that constitute armed robbery. The use of a weapon to deprive another of property not only creates the offense of armed robbery, it enables the robber to exercise the "complete dominion" over the property described in Miller, supra. Although guns may be the subject of "politically and emotionally charged" debate, King could have used any "offensive weapon" within the meaning of OCGA § 16-8-41(a) to exercise the complete dominion over the victim and his property required to show a completed armed robbery. The only significance of the firearm here is that the legislature has decreed that its use transfers jurisdiction over the defendants to superior court.

While the dissent also expresses concern that the facts are not yet conclusively established because the case has not yet gone to trial, we are not addressing and cannot address post-trial issues such as the sufficiency of the evidence. It would be both unjust and wasteful of judicial resources to force the defendants and the State to trial before making a determination on the threshold question of jurisdiction. The parties agree that the facts for purposes of this appeal are undisputed. Moreover, counsel for Simon stated at the motion hearing that the facts were undisputed, and counsel for Watson joined his motion. Under ...