Bradford v. StateBradford v. State
- Reporters:
- , , ,
- Before:
- Harold R. Banke
Lead Opinion
Avery Bradford was cofivicted of hijacking a motor vehicle (
The State’s evidence was as follows. Around midnight on Christmas, Lisa Headrick left her apartment carrying a laundry basket en route to a friend’s house to do her laundry. As Headrick proceeded toward her car, Bradford intercepted her and grabbed her arm. He cautioned her not to yell and demanded her car keys which she denied having. After Bradford demanded the keys a second time, he warned her that she had better not be lying about the keys as he had a gun and would kill her. Bradford gripped the victim tightly with one hand, and the victim never saw his other hand. While Bradford threatened her, and was becoming increasingly impatient, two police cars drove up within about 30 or 40 feet. Police had been combing the area looking for a reportedly intoxicated person, matching Bradford’s description, who had been attempting to stop traffic on an adjacent main street. As Corporal Jay Moore pulled into the parking lot, he observed Bradford drop his grip on the victim when he spotted the marked patrol car. The victim broke free, ran to the police and reported that a man was trying to take her car. Immediately after the victim’s escape, Moore walked over to Bradford, searched him, but failed to find a gun or weapon or any offensive object. Nor did Moore who watched Bradford from close range observe Bradford discard anything. Headrick testified that she believed the perpetrator “possibly” had a gun even though she never saw a weapon. Because the laundry basket apparently obstructed her view, she was unable to see one of Bradford’s hands and could not testify as to whether that hand was inside his pocket or at his side. Held:
1. Bradford contends that there was a fatal variance between the allegations set forth in the indictment and the evidence shown at trial and also challenges the sufficiency
The essential elements of the offense of motor vehicle hijacking are: (1) possessing a firearm or weapon; (2) while obtaining or attempting to obtain a motor vehicle from the person or presence of another; (3) by force and violence or intimidation.
The State contends that the motor vehicle hijacking statute should be interpreted in the same manner as the armed robbery statute insofar as the meaning of “weapon” and “appearance of weapon.”
In Johnson, supra, the defendant threatened to shoot the victim and kept one hand concealed, which led the victim to reasonably assume he had a gun. Johnson, 195 Ga. App. at 57 (1) (a). Such evidence was held sufficient to satisfy the armed robbery statute. Here, Bradford said he had a gun and threatened to kill the victim if she did not cooperate, but the victim never saw a weapon and no evidence was presented that Bradford concealed his hand dr acted as though he was holding an offensive object. Compare Nicholson, 200 Ga. App. at 414 (1). In fact, the victim specifically testified that she did not know where Bradford’s other hand was located or how it was positioned and admitted that she only thought he “possibly” had a gun.
“Some physical manifestation 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), but
2. In light of the above holding, we need not reach the remaining enumerations.
Judgment reversed only as to the motor vehicle hijacking conviction.
Blackburn, J., concurs. Beasley, C. J., concurs specially.
Concurrence Opinion
concurring specially.
I concur in the reversal of the hijacking conviction because the permissible inference that defendant was “in possession of a firearm” was eliminated by the arresting officer’s direct testimony that defendant did not have a gun.
The inference that defendant did possess one at the time he threatened to kill the victim with a gun was reasonable. He twice told her he had one and said once that he would kill her with it if she was lying and in fact had the car keys (which she did). She could not see the hand which was not grasping her arm because the laundry basket she
This evidence, including the reasonable inferences, is comparable to the evidence in some of the armed robbery cases, where the conviction was affirmed even though no one testified to actually seeing a weapon. As stated in Johnson v. State, 195 Ga. App. 56, 57 (1) (a) (392 SE2d 280) (1990), “The question is whether the defendant’s acts create a ‘reasonable apprehension on the part of the victim that an offensive weapon (was) being used,’ regardless of whether the victim actually saw the weapon. Moody v. State, 258 Ga. 818, 820 (1) (375 SE2d 30) (1989).” The armed robbery statute prohibition “includes concealed offensive weapons provided there is either a physical manifestation of the weapon 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).” Johnson, supra.
.. Armed robbery occurs when a person, “with intent to commit theft, . . . 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.”
In this case there was no direct physical manifestation of a weapon, but there was both physical and verbal evidence that strongly supported the inference that defendant possessed one. The physical evidence includes the fact that he grasped the victim by only one hand. The other hand was not seen, so its grasp of a gun was not precluded as fact. Thirdly, his clothing was such that a gun could have been in it without visual detection. There was also direct verbal evidence: defendant twice stated that he had a gun, both intimating that he would use it to compel her relinquishment of her car keys so he could take her car or its contents and directly threatening her with its use should she not surrender them.
The officer, who came upon the scene, could not see the hand of defendant which was not grasping the victim’s arm, when he came upon the scene. When the victim ran to the police, defendant stayed where he was and the officer approached him. The officer searched him and found no weapon, did not see any weapon around the vie-, tim’s car (which they were close to), and did not see him drop or throw a weapon although he would have seen it if such occurred. Defendant was intoxicated and submitted to the search. During cross-examination defendant’s counsel asked the officer, “There is no question that he did not have a gun?” He responded, “No, he did not have a gun.”
In light of this evidence, the jury could not find that defendant was “in possession of a firearm” when he attempted to hijack the victim’s car. The reasonable inference which was supported by the circumstantial evidence was removed by the stronger positive evidence that none was present.
This differs from, for example, the situation in Johnson with respect to the armed robbery of Perry. Johnson himself had intimated that he had a gun in that he threatened to shoot the cashier Perry if she did not give him the cash, and he kept one hand concealed, so she assumed he had a gun. He left the store and was not apprehended until the next month, shortly after obtaining cash from cashier Smith by demanding all the money and pointing at her through his jacket pocket as though he had a weapon concealed. Johnson’s conviction for armed robbery of Perry was affirmed, but there was no evidence
The crime here approximates the victim Smith incident, not the victim Perry incident, because as to both Smith and the victim in this case, the defendant was found to have no weapon. Here the evidence was conclusive, as he was observed continuously by the officer from the time the crime was in progress until after the search of his person and the vicinity where he was standing.
Defendant’s own positive statements during the incident, which were effectively used to control the victim’s actions and compel her to do as he demanded, are not sufficient to prove he “possessed] a firearm,” which is an element of the offense.
The conviction for hijacking must be reversed. Unlike Talbot v. State, 198 Ga. App. 636, 638 (1) (402 SE2d 366) (1991), the case need not be remanded for a new trial or for resentencing for the lesser included offense of attempted robbery by intimidation; defendant already stands convicted of that offense, involving this incident.