FLUELLEN v. THE STATE.
A06A1651
Court of Appeals of Georgia
March 7, 2007
March 28, 2007
644 S.E.2d 486
SMITH, Presiding Judge.
Judgment affirmed. Ellington and Adams, JJ., concur in the judgment only.
DECIDED MARCH 7, 2007 —
RECONSIDERATION DENIED MARCH 28, 2007 —
Nathan A. Hayes, for appellant.
Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, P. Brian Campbell, Assistant Attorney General, for appellee.
SMITH, Presiding Judge.
A jury found Zantavious Fluellen guilty of armed robbery. In his sole enumeration of error on appeal, Fluellen contends that the trial court erred in failing to direct a verdict of acquittal. We find that sufficient evidence supports his conviction and affirm.
In reviewing the denial of a directed verdict of acquittal, we employ the same test used to determine sufficiency of the evidencе. See Joyner v. State, 280 Ga. 37, 38 (1) (622 SE2d 319) (2005). “Under that standard, this Court reviews the evidence in a light most favorable to the verdict and defers to the jury’s assessment of the weight and credibility of the evidence.” (Citation omitted.) Id. at 38-39 (1). “As long as there is some competent evidence, even though contradicted, to support each fact necessary to [prove] the State’s case, the jury’s verdict will be upheld.” (Citation and рunctuation omitted.) Ayoluwa v. State, 271 Ga. App. 424, 425 (1) (609 SE2d 749) (2005).
Viewed in this manner, the evidence shows that on July 3, 2002, Brendan Creegan worked as a delivery driver for a restaurant, and he
A second individual — who was never identified — grabbed Creegan from behind, sprayed him in his face with caustic oven cleaner, took the money bag, and fled. Fluellen then told Creegan “that they were just playing around[,]” and he demanded that Creegan give him the food. Creegan testified that he refused, and Fluellen then “reached under his shirt and said that he had a gun. He said that he had a bunch of friends out in the woods; and if I was going to do anything, that he would have them come out.” When Creegan was asked by the prosecutor what he thought they might do, Creegan responded, “I guess beat me up.” According to Creegan, Fluellen was wearing a t-shirt and although Creegan could see the bulge of Fluellen’s hand under the shirt, he did not see the bulge of a weapon. Creegan turned and began walking toward his car without giving Fluellen the food. Fluellen then followed Creegan and snatched the bag of food from him, ripping the bag and causing the food to fall to the ground. Fluellen picked uр the food and left. Based upon this and other evidence, the jury found Fluellen guilty of armed robbery.
The indictment alleged that Fluellen committed the offense of armed robbery by “unlawfully then and there with intent to commit theft, . . . tak[ing] from the person of Brendan Creegan and immediate presence of Brendan Creegan, certain property . . . by the use of a handgun, an offensive weapon.” Fluеllen asserts on appeal that his conviction must be reversed because the State presented insufficient evidence of the presence of a gun.
“A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weаpon, or any replica, article, or device having the appearance of such weapon.”
The requisite “reasonable apprehension” should not be equated with subjective fear on the part of the victim. Lemming v. State, 272 Ga. App. 122, 124 (1) (612 SE2d 495) (2005). While fear is one meaning of “apprehension,” it also means “the faculty of grasping with the intellect,” and “[s]ynonyms of аpprehension include intellection and perception.” (Citation, punctuation and footnote omitted.) Id. Accordingly, we have found reasonable apprehension in aggravated assault cases in the absence of testimony from the victim,1 and even when the victim affirmatively testifies that she was not afraid.2
Applying the appropriate definition of “reasonablе apprehension” to the evidence presented demonstrates that sufficient evidence supports the jury’s finding of a reasonable apprehension on the part of the victim that an offensive weapon was being used.3 The defendant told the victim “I’ve got a gun.” This admission was direct evidence of the presence of a gun. See
The fact that the victim walked away after Fluellen threatened him with a gun does not necessarily mean that he did not apprehend — meaning perceive — that a gun was present. People under stress can react in a variety of ways, and the victim’s conduct in walking away was not inconsistent with the presence of a weapon. Some people might believe that sudden movement could provoke a robber into using his weapon and choose instead to attempt an escape by calmly walking away. Furthermore, in light of the direct evidence provided by the defendant’s admission that he had a gun, the inference to be drawn from the victim’s conduct in walking away was for the jury to determine.
Sufficient evidence also exists to support the “by use” element of armed robbery. “The force or intimidation essential to robbery must either precede or be contemporaneous with, and not subsequent to, the taking. A relatively brief period of time between the use of the
In this case, Fluellen’s admission that he had a gun shortly before forcibly taking food from the victim provides a sufficient “connection between the two acts.” (Citation and punctuation omitted.) Wynn, supra, 228 Ga. App. at 126. Compare Gatlin v. State, 199 Ga. App. 500 (405 SE2d 118) (1991) (gun 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 SE2d 28) (1998), to support its position that insufficient evidence of use was presented: “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.” (Citation and footnote omitted.) Id. at 817 (1). The case cited for support of this statement in Oliver, however, states the rule differently. See Maddox v. State, 174 Ga. App. 728 (330 SE2d 911) (1985).
In Maddox, the victim eluded the armed defendant before being seen and was not present at the time of the taking from his store. The defendants argued that “the shotgun was never pointed directly at [the victim] and that, since he escaped from the premises before the shotgun could be used as an offensive weapon in the actual taking, no armed robbery occurred.” Id. at 729. We rejected this argument, finding that “[t]here can be little doubt, and [the victim]’s testimony at trial confirms, that merely seeing a shotgun being carried into a place of business has an intimidating effect on the proprietor. The weapon had the desired forceful effect on [the victim] in the commission of a theft from his business.” Id. at 730.
Therefore, even though the victim was not present at the time of the taking, a taking by use of an offensive weapon occurred. This comports with the well-established rule that the use of a weapon before or сontemporaneous to a taking “satisfies the statutory requirement that the taking be by use of an offensive weapon.” Ramey v. State, supra, 206 Ga. App. at 309.
The facts at issue in Oliver, supra, also fall within the scope of this rule because the victim observed the defendant holding a knife after she dropped her purse, but before the defendant took her purse from the ground. Id. at 816-817.
The dissent interprets Oliver, supra, as requiring some kind of subjective capitulation to the taking by a victim as a rеsult of the
The dissent’s interpretation of “by use” would make it impossible to prove armed robbery in any case in which a victim refuses to comply with an armed robber’s demand or attempts to escape before the robber ultimately takes by force. This is not and should not be the law.
Based on the above, we find that sufficient evidence supports Fluellеn’s armed robbery conviction under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
Judgment affirmed. Andrews, P. J., Johnson, P. J., Phipps and Bernes, JJ., concur. Barnes, C. J., and Ruffin, J., dissent.
RUFFIN, Judge, dissenting.
Although I agree with the majority that Fluellen is guilty of some form of robbery, under the indictment alleged and the facts proven, I cannot agree that he is guilty of armed robbery.
The salient facts are as follows. After Creegan was robbed of his money bag by an unidentified individual, Fluellen dеmanded that Creegan give him the food.4 Creegan refused. At that point, Fluellen informed Creegan that he had a gun, and he reached under his t-shirt. Although Creegan could see Fluellen’s hand bulging under the t-shirt, Creegan admitted that he did not see the bulge of a weapon. Thus, Creegan turned and began walking toward his car without giving Fluellen the food. As Creegan was leaving, Fluellen snatched the bag of food from him, ripрing the bag and causing the food to fall to the ground. Fluellen retrieved the food and left.
Here, however, no weapon was seen. Accordingly, Fluellen’s conviction may not be sustained absent “some physical manifestation of a weapon or some evidence from which the presence of a weapon may be inferred.”6 The proper inquiry is whether Fluellen’s acts created a reasonable apprehension on the part of Creegan that an offensive weapon was being used.7 A weapоn is being “used” if “the victim is aware of the weapon and it has the desired forceful effect of assisting to accomplish the robbery.”8
In the case before us, Creegan’s testimony that Fluellen claimed to have a gun and reached into his waistband provides some physical manifestation that a weapon was present.9 However, there simply is no evidence that Creegan was аpprehensive of any such weapon or even that he believed any such weapon existed. Significantly, the State elicited no testimony from Creegan that he was either apprehensive or fearful in any way.10 And Creegan’s actions provide no circumstantial evidence of such emotion as Creegan did not acquiesce to Fluellen’s demand to hand over the foоd, and Creegan simply walked away.11 Under these circumstances, I fail to see any evidence that Creegan experienced anything resembling “reasonable apprehension.”
The majority cites Lemming v. State12 for the proposition that lack of fear does not preclude a finding of reasonable apprehension. But I do not think Lemming alters the result here. In Lemming, the victim was approached by a man wielding a small knife. Although the victim claimed he was unafraid, we found that the victim could still
Moreover, I cannot find — based upon the evidence presented — that the alleged weapon was “used” in the commission of the crime as it did not have “the desired forceful effect of assisting to accomplish the robbery.”14 Again, upon being verbally threatened with an alleged gun, Creegan ignored Fluellen’s demand to hand him the food and walked away. Shortly thereafter, Fluellen snatched the food away from Creegan. Under these circumstances, the alleged weapon was not actually a factor in the robbery.15
The majority cites Ramey v. State16 for the proposition that the mere presence of a weapon before a taking “satisfies the statutory requirement that the taking be by use of an offensive weapоn.” But the majority’s reading of Ramey is not text-true. Rather, its reading of Ramey is so broad that it eviscerates the “by use” requirement contained in
If Creegan had taken any action consistent with the belief that a weapon was being used — either admitting subjective fear or attempting flight — then Fluellen’s threat of a gun might have constituted armed robbery.19 But under the unique facts of this case, there was simply nothing in Creegan’s conduct to suggest that he found Fluellen’s threat of a weapon to be credible. And I am aware of no case in any аppellate court in this state in which we have upheld an armed robbery conviction where there was no weapon seen and no evidence — circumstantial or otherwise — from which a jury could conclude the victim experienced reasonable apprehension. Indeed, such conviction violates due process.20 Accordingly, I dissent.
I am authorized to state that Chief Judge Barnes joins in this dissent.
DECIDED MARCH 28, 2007.
Patricia M. Moon, James S. Purvis, Thomas O. Humphries, Jr., for appellant.
Richard R. Read, District Attorney, Roberta A. Earnhardt, Assistant District Attorney, for appellee.