Miller v. StateMiller v. State
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Timothy Miller and his brother Travis met Roger Wallace at “Bud’s,” a bar identified only as being located on “Brainerd Road.” The men got into Wallace’s van and visited “T. J.’s,” another bar located at “the other end of Brainerd Road” before proceeding to “The Cellar,” which was identified in Miller’s testimony as being located in “East Ridge.” When Wallace informed the men that he had to leave, they requested a ride back to “Bud’s.” The defendant got into the passenger seat and his brother entered the back door. As Wallace put his key in the ignition switch, he was struck from behind several times and dragged into the back of the van. Travis Miller got into the driver’s seat and drove off. While the van was moving, Wallace tried to unscrew the jack to use as a weapon, but he was observed and beaten with it. He was beaten at least once more by Travis Miller with a boat paddle that he kept in the rear of his van. While Wallace was in a semi-conscious state, he felt hands in his pocket removing his billfold and was stabbed with a sharp object that he believed to be an arrow which he kept in his van. Wallace blacked out again and woke up on the side of the road and, despite a broken ankle, walked approximately 100-200 feet towards lights he saw in the distance. The lights came from a Georgia Welcome Center located 2 miles south of the Tennessee state line. The van was later recovered on a “Brainerd *43 Road” in Tennessee, in the possession of Travis Miller. Items recovered from the van included arrows with blood on them, a bloody broken boat paddle, and a blood-stained jack. Timothy Miller was found guilty of kidnapping, armed robbery, aggravated assault, and theft by taking.
1. Appellant first contends that the court erred in failing to direct a verdict because the state failed to prove his participation in the crimes. He argues that the evidence shows only that he was present during the commission of the criminal acts. This argument is frivolous, as he was clearly a party to the crime.
2. Appellant next contends that the state failed to prove venue beyond a reasonable doubt, as is required in all cases in which venue is contested. Adsitt v. State, 248 Ga. 237 (282 SE2d 305) (1981).
Venue could also be found under
Appellant was also convicted of aggravated assault and armed robbery. The testimony and physical evidence indicate that Wallace was stabbed with a hunting arrow, had forty dollars stolen from him,
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and was beaten with an automobile jack and a boat paddle. Venue for these offenses was established under
3. As to the kidnapping conviction, however, there was no proof of venue in Catoosa County. Georgia case law holds that the crime is consummated in the county where the victim is seized.
Stephens v. Hopper,
241 Ga. 596 (247 SE2d 92) (1978);
Harris v. State,
165 Ga. App. 249 (299 SE2d 924) (1983);
Krist v. State,
227 Ga. 85 (179 SE2d 56) (1970). As there was no evidence that the victim was seized in Catoosa County, but rather that he was seized in Tennessee, appellant’s conviction on this count must be reversed for failure to prove venue. In view of the Georgia court’s holding in the above-cited cases, the state’s reliance upon
4. There is no merit to appellant’s contention that the state failed to prove that the armed robbery was committed with an offensive weapon. The evidence shows that an offensive weapon, namely an arrow, was used to effectuate the robbery and that the use of force preceded or was contemporaneous with the taking. Even if the victim was incapacitated at the time of the taking, appellant’s conduct is not excluded frorn the definition of armed robbery under
5. The theft by taking and aggravated assault charges did not
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merge with the armed robbery charge. Under
Appellant’s contention that the aggravated assault charge merged with the armed robbery charge is also without merit. Wallace testified he thought he had been “poked” with an arrow while appellant was searching for his wallet, and state’s exhibits 18 and 49 depict at least two arrow wounds to his arm and his side. As Wallace could remember being stabbed only once, a jury could conclude that he was stabbed on different occasions as well as being assaulted with the jack and boat paddle. The indictment alleges the aggravated assault was committed by the use of an arrow, jackhandle and paddle. A jury could find all or one of these items was used as an offensive weapon. For the requirements of merger of offenses see Haynes v. State, 249 Ga. 119 (288 SE2d 185) (1982), and State v. Estevez, 232 Ga. 316 (1) (206 SE2d 475) (1974). Under the test set forth in Haynes, separate facts were used to prove each crime, and the elements of each crime were separate. Aggravated assault is not a lesser included offense of armed robbery. State v. Hightower, 252 Ga. 220 (312 SE2d 610) (1984). See also Harvey v. State, 233 Ga. 41 (209 SE2d 587) (1974).
6. Appellant contends that the court erred in charging the jury in the language of
Accordingly, we find merit only in appellant’s contention that the state failed to prove venue in the kidnapping charge and reverse appellant’s conviction only on that count.
Judgment reversed in part and affirmed in part.
McMurray, P. J., and Sognier, J., concur.