Jimmiе Lee Wright appeals his convictions of armed robbery and aggravated assault, contesting the sufficiency of the evidence. He also contends that a photographic lineup was impermissibly suggestive and that the court erred in failing to charge on a lesser included offense. For the reasons discussed below, we reverse the conviction for armed robbery but affirm the conviction for aggravated assault.
1. Wright contends that the court erred in denying his motion for directed verdict of acquittal on the armed robbery charge. “The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that stаndard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essеntial elements of the crime beyond a reasonable doubt.” (Citations, punctuation and emphasis omitted.)
Noble v. State,
Viewed in the light most favorable to the verdict, the evidence showed that Wright entered a convenience store, jumped over the counter, and attacked the manager, Rose Marie Lane. He grabbed her by the hair, slammed her head on the floor, hit her in the face, and kicked her in the head. Wright took a roll of quarters from the ledge of a safe mounted in the counter.
“A person commits the offense of armed robbery when, with intent to commit theft, he or she takes proрerty 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.” OCGA § 16-8-41 (a). The undisputed evidence shows that Wright did not possess a weаpon during the robbery. However, the indictment states, and the State contends, that Wright’s hands and fists constituted an offensive weapon in the manner used.
The Stаte does not cite, and we have not found, any authority for the proposition that hands and feet may be considered offensive weapоns for purposes of OCGA § 16r8-41. We have held that hands and feet may be considered deadly weapons for purposes of OCGA § 16-5-21, the aggravated assаult statute. See
Wright v. State,
The armed robbery statute, by сontrast, expressly requires the use of an “offensive weapon.” Although we have held that this term includes
“instrumentalities
not normally considered to be offensive wеapons per se which may be found by a jury to be likely to produce death or great bodily injury depending on the manner and means of their use,” we hаve never construed the statute to authorize a conviction for armed robbery where no weapon or instrument was used other than the defendant’s own hands and feet. (Emphasis supplied.)
Meminger v. State,
Although statements in
Meminger
and
Vicks
imply that anything which constitutes a deadly weapon under the aggravated assault statute, including fists, may also constitute an offensive weapon under the armed robbery statute, such statеments are dicta and not necessary to the decisions. We take this occasion to clarify that a defendant’s hands and feet do not cоnstitute offensive weapons for purposes of the armed robbery statute. This ruling comports with common sense and the clear intent of the statute, since a defendant who does not carry or imply that he is carrying some form of external weapon or instrument cannot in any realistic sensе be said to be “armed.” “The layman’s phrase ‘armed robbery’ is not at all an inaccurate description of the offense.”
People v. Dozie,
Our decision is not incоmpatible with our holdings in aggravated assault cases, because the purposes of the two statutes are different. The purpose of the аggravated assault statute is to treat as a felony those assaults likely to result or actually resulting in serious bodily injury, whether through the use of an external weapon or the defendant’s hands and feet. Compare OCGA § 16-5-20 (misdemeanor simple assault) with OCGA § 16-5-21 (felony aggravated assault). The purpose of the аrmed robbery statute, by contrast, is to punish more severely those defendants who use a weapon in the commission of a robbery, which would constitute a felony even in the absence of such *781 a weapon. Compare OCGA § 16-8-40 (felony robbery) with OCGA § 16-8-41 (felony armed robbery). Thus, the focus in an aggravated аssault case is the likelihood or actual presence of serious bodily harm, while the focus in an armed robbery case is on the presenсe of a weapon.
Accordingly, as there was no evidence of the use of an offensive weapon in this case, Wright’s conviction for аrmed robbery must be reversed.
2. Wright contends that his identification as the assailant was the result of an impermissibly suggestive photographic lineup, and that the court thus erred in denying his motion in limine to exclude identification testimony. “Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise tо a very substantial, likelihood of irreparable misidentification.”
Tiller v. State,
The record reflects that Dean McManus of the Georgia Bureau of Investigation showed the victim and other witnesses Polaroid photographs of six black males. Although the photographs are not included in the record, McMаnus testified that all of the subjects appeared to be approximately the same age, with medium complexion, similar hair, and no faciаl hair. McManus did not inform the witnesses that Wright was in the photographic array. Each of the witnesses picked Wright from the array.
Under these circumstancеs, the identification procedure was not impermissibly suggestive. Although Wright contends that some of the subjects in the array were not the same size as him, this doеs not render the array impermissibly suggestive. See
Green v. State,
3. Given our reversal of Wright’s armed robbery conviction, we need not address his сontention that the court erred in failing to charge on the lesser included offense of robbery by intimidation.
Judgment affirmed in part and reversed in part.