James Kimble III was tried before a jury on a ten-count indictment for charges stemming from the armed robbery of a pawn shop during which two employees of the shop, Jones and Elkins, were present.
The State presented evidence that Jones and Elkins were robbed at gunpoint by Kimble and two other men, all of whom wielded guns. In support of kidnapping charges, the State showed that, during the *392 robbery, Kimble and the other robbers moved Jones and Elkins at gunpoint and against their will from one room of the shop to another. There was also evidence that, during the kidnapping of Jones, one of the robbers sexually assaulted Jones by inserting his finger into her vagina. Additional evidence showed that Kimble and the other robbers used an automobile in the robbery which had been stolen in South Carolina.
The jury found Kimble: guilty of the armed robbery of Jones (Count 1); not guilty of possession of a firearm during the commission of the armed robbery of Jones (Count 2); guilty of the armed robbery of Elkins (Count 3); guilty of possession of a firearm during the commission of the armed robbery of Elkins (Count 4); guilty of the kidnapping with bodily injury of Jones (Count 5); not guilty of possession of a firearm during the commission of the kidnapping with bodily injury of Jones (Count 6); guilty of the kidnapping of Elkins (Count 7); guilty of possession of a firearm during the commission of the kidnapping of Elkins (Count 8); not guilty of aggravated sexual battery against Jones (Count 9); and guilty of theft by receiving property stolen in another state, to wit: a 1987 Chevrolet automobile (Count 10). Kimble appeals from the judgment entered on the convictions.
1. Kimble contends that the verdicts on Counts 2 and 6 finding him not guilty of possession of a firearm during the commission of the armed robbery of Jones and during the kidnapping with bodily injury of Jones are mutually exclusive of the verdicts in Counts 4 and 8 finding him guilty of possession of a firearm during the commission of the armed robbery of Elkins and during the kidnapping of Elkins.
Since these charges arose from events which all occurred during the same period of time and during which all three men involved, including Kimble, possessed firearms, the verdicts acquitting Kimble of the possession of a firearm charges in Counts 2 and 6 are logically inconsistent with Kimble’s conviction on the possession of a firearm charges in Counts 4 and 8. However, this inconsistency does not require reversal of the convictions on Counts 4 and 8.
In
Milam v. State, 255
Ga. 560, 562 (
In
Powell,
the defendant was indicted on four counts of “using the telephone in committing and in causing and facilitating certain felonies — conspiracy to possess with intent to distribute and possession with intent to distribute cocaine — in violation of 84 Stat. 1263,
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21 U.S.C. § 843(b).” (Punctuation omitted.)
United States v. Powell,
The defendant argued that, because the jury could not logically acquit her of the predicate felonies and also convict her of facilitating the predicate felonies by use of a telephone, the verdicts were inconsistent, and she was entitled to reversal of the telephone facilitation convictions. The U. S. Supreme Court rejected this argument and reaffirmed its earlier holding in
Dunn v. United States,
The decision in
Powell
dealt with a multi-count indictment with inconsistent verdicts convicting on some counts and acquitting on others. The
Powell
Court was careful to distinguish cases involving mutually exclusive multiple convictions, pointing out that “[n]othing in this opinion is intended to decide the proper resolution of a situation where a defendant is convicted of two crimes, where a guilty verdict on one count logically excludes a finding of guilt on the other.” Id. at 69, n. 8; compare
Thomas v. State,
*394 Because Milam, 255 Ga. at 562, explicitly adopted the above inconsistent verdict analysis set forth by the U. S. Supreme Court in Powell, it follows that there is no merit to Kimble’s claim that the not guilty verdicts in his favor on Counts 2 and 6 require that the guilty verdicts against him on Counts 4 and 8 be reversed.
It also follows that this Court’s decision in
Strong v. State,
On appeal in
Strong,
this Court agreed with the defendant’s contention that, “because she was acquitted on the aggravated assault charges, her felony conviction of possession of a firearm during the commission of a felony is void and must be reversed.” Id. at 434. In support of this conclusion,
Strong
reasoned that, “[b]ecause the jury acquitted [the defendant] of an essential element of the felony firearm charge, the aggravated assault charges upon which [the defendant’s] felony firearms indictment was predicated, the jury’s verdict on the felony firearms charge is not merely inconsistent within the contemplation of
Milam,
it is mutually exclusive and therefore contrary to law.” Id. at 434-435. Accordingly,
Strong
found that “[t]he abolition of the inconsistent verdict rule in
Milam v. State,
supra, [was] inapplicable . . .” and that the decision was controlled by the rule as to mutually exclusive convictions set forth in
Thomas v. State,
In concluding that the inconsistent verdict rule in
Milam
was inapplicable,
Strong
misunderstood the inconsistent verdict analysis in
Powell
adopted by
Milam,
and wrongly applied the mutually exclusive multiple conviction rule set forth in
Thomas v. State,
The inconsistent verdict issues presented in Strong and Powell are indistinguishable. The decision reversing the conviction in Strong was based on the conclusion that the defendant’s acquittal on the predicate aggravated assault offense eliminated an essential element necessary to conviction on the charge of possession of a firearm during the commission of a felony. The situation was no different in *395 Powell, where the defendant’s acquittal on the predicate offenses of conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine also eliminated an essential element necessary to convict on the charge that the defendant used the telephone to facilitate the commission of the predicate offenses. Nevertheless, Powell concluded that, despite the inconsistent verdicts, the conviction for telephone facilitation should be affirmed.
As the Court in
Powell
stated: “[The] argument that an acquittal on a predicate offense necessitates a finding of insufficient evidence on a compound felony count simply misunderstands the nature of the inconsistent verdict problem. Whether presented as an insufficient evidence argument, or as an argument that the acquittal on the predicate offense should collaterally estop the Government on the compound offense, the argument necessarily assumes that the acquittal on the predicate offense was proper — the one the jury ‘really meant.’ This, of course, is not necessarily correct; all we know is that the verdicts are inconsistent. . . . For the reasons previously stated, however, there is no reason to vacate [the defendant’s] conviction merely because the verdicts cannot rationally be reconciled. [The defendant] is given the benefit of her acquittal on the counts on which she was acquitted, and it is neither irrational nor illogical to require her to accept the burden of conviction on the counts on which the jury convicted.”
Powell,
Powell
also made clear that the inconsistent verdict rule applies to inconsistencies between verdicts of acquittal and verdicts of conviction and has no application to cases involving mutually exclusive multiple convictions.
Powell,
Because
Strong,
As to Kimble’s claim that any of the verdicts on Counts 2 and 6,
*396
on which he was acquitted, or on Counts 4 and 8, on which he was found guilty, are mutually exclusive, this claim could apply only as between the guilty verdicts in Counts 4 and 8.
Dumas,
2. Kimble claims that the jury’s verdicts finding him guilty of kidnapping with bodily injury of Jones (Count 5), but not guilty of aggravated sexual battery against Jones (Count 9) are mutually exclusive, and the conviction for kidnapping with bodily injury must be reversed.
The charges in Counts 5 and 9 arose from the same events. In support of the count for kidnapping with bodily injury against Jones, the State produced evidence that, during the robbery, Kimble and the other two robbers kidnapped Jones by forcing her at gunpoint against her will to move from one room of the shop to another. There was also evidence that Jones suffered bodily injury during the kidnapping when one of the men sexually assaulted her by inserting a finger into her vagina.
Culver v. State,
On these facts, the jury’s verdict finding Kimble not guilty of aggravated sexual battery was not necessarily logically inconsistent with the verdict finding him guilty of kidnapping with bodily injury. The jury could have concluded that one of the other two robbers, not Kimble, committed the offense of aggravated sexual battery by inserting his finger into Jones’ vagina, and that Kimble did not commit nor was he a party to the offense of aggravated sexual battery. The jury could also have logically concluded on the same evidence that Kimble was guilty of committing or being a party to the kidnapping of Jones during which Jones was bodily injured when one of the other two robbers inserted a finger into her vagina.
Brown v. State,
Even though the evidence could also have been viewed by the jury in a manner which would render the verdict acquitting Kimble of aggravated sexual battery logically inconsistent with Kimble’s conviction for kidnapping with bodily injury, as held in Division 1, supra, this inconsistency would not require reversal of the kidnapping with bodily injury conviction. Accordingly, this claim is without merit.
3. Kimble contends that the verdicts acquitting him of the pos *397 session of a firearm charges in Counts 2 and 6 were mutually exclusive of the verdicts in Counts 1 and 3 finding him guilty of the armed robberies of Jones and Elkins.
Once again, under the facts of this case, the verdicts acquitting Kimble of the possession of a firearm charges in Counts 2 and 6 may be viewed as logically inconsistent with Kimble’s conviction on the armed robbery charges in Counts 1 and 3. However, as held in Division 1, supra, this inconsistency is no impediment to affirming the convictions. This claim is also without merit.
4. Kimble contends the trial court erred by denying his motion for a directed verdict of acquittal on the charge of kidnapping with bodily harm (Count 5) because the State failed to produce sufficient evidence that Jones sustained bodily harm as required by OCGA § 16-5-40.
“Any physical injury, however slight, constitutes the requisite bodily harm within the meaning of [OCGA § 16-5-40].”
Culver v. State,
5. The trial court did not err by refusing to grant a directed verdict of acquittal on the charge that Kimble committed theft by receiving a 1987 Chevrolet automobile stolen in another state.
Under OCGA § 16-8-8, “[a] person commits the offense of theft by receiving property stolen in another state when he receives, disposes of, or retains stolen property which he knows or should know was stolen in another state, unless the property is received, disposed of, or retained with intent to restore it to the owner.” There is no merit to Kimble’s contention that the State failed to show he knew or should have known the automobile was stolen.
The State produced evidence that the Chevrolet automobile was stolen in South Carolina, and that Kimble gave a statement to police stating that he knew the automobile was stolen in South Carolina by his brother. The State also produced evidence that the automobile was used by Kimble and the other robbers in the robbery, that it was found after the robbery with an item stolen in the robbery a few feet from the automobile, and that Kimble’s fingerprints were found on the automobile. This evidence was more than sufficient to allow the jury to conclude that Kimble was guilty beyond a reasonable doubt.
Jackson v. Virginia,
6. Kimble contends the State failed to prove any of the charges beyond a reasonable doubt because the evidence was insufficient to show that he was present or participated in the robbery.
This contention is devoid of any merit. Jones and Elkins identified Kimble in court as one of the men who robbed them at gunpoint. There was ample evidence to support the jury’s verdicts finding that
*398
Kimble was guilty beyond a reasonable doubt.
Jackson v. Virginia,
Judgment affirmed.