Fluellen v. State

644 S.E.2d 486, 284 Ga. App. 584, 2007 Fulton County D. Rep. 1105, 2007 Ga. App. LEXIS 375
CourtCourt of Appeals of Georgia
DecidedMarch 28, 2007
DocketA06A1651
StatusPublished
Cited by8 cases

This text of 644 S.E.2d 486 (Fluellen v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fluellen v. State, 644 S.E.2d 486, 284 Ga. App. 584, 2007 Fulton County D. Rep. 1105, 2007 Ga. App. LEXIS 375 (Ga. Ct. App. 2007).

Opinions

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 evidence. 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 punctuation 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 [585]*585was dispatched to deliver a food order to a nonexistent address. When Creegan was unable to locate the address, he was approached by a man subsequently identified as Fluellen. According to Creegan, Fluellen indicated that he had placed the order, but that he did not have money with him. Creegan exited the car and walked with Fluellen toward the house. At the time, Creegan had both the food order and a money bag, which contained approximately $300.

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 up 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.” Fluellen 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 weapon, or any replica, article, or device having the appearance of such weapon.” OCGA§ 16-8-41 (a). As we have held, “[t]he presence of an offensive weapon or an article having the appearance of one may be established by circumstantial evidence, and a conviction for armed robbery may be sustained even though the weapon or article used was neither seen nor accurately described by the victim.” (Citation omitted.) Joyner v. State, 278 Ga. App. 60 (1) (628 SE2d 186) (2006). However, a conviction may not be sustained absent “some physical manifestation of a weapon or some evidence from which the presence of a weapon maybe inferred.” (Citation omitted.) Id. When no weapon has been seen, “the test is whether the defendant’s acts created a [586]*586reasonable apprehension on the part of the victim that an offensive weapon was being used.” (Citation omitted.) Id. at 60-61 (1).

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 “[sjynonyms of apprehension 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 “reasonable 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 OCGA § 24-1-1 (3) (“ ‘Direct evidence’ means evidence which immediately points to the question at issue.”); Avera v. State, 228 Ga. 571, 573 (186 SE2d 867) (1972) (defendant’s admission “to the effect that he had shot the deceased was direct evidence of the fact”) (citations omitted); Barrino v. State, 282 Ga. App. 496, 498 (1) (639 SE2d 489) (2006) (defendant’s admission that he owned bag of pills was direct evidence of possession).

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 [587]*587offensive weapon and the actual theft does not sever the connection between the two acts.” (Citations and punctuation omitted.) Wynn v. State, 228 Ga. App. 124, 125-126 (1) (491 SE2d 149) (1997). Even if there was no evidence that the defendant used a weapon at the time of the taking, evidence of the presence of a weapon prior to that taking “satisfies the statutory requirement that the taking be by use of an offensive weapon.” Ramey v. State, 206 Ga. App. 308, 309 (425 SE2d 385) (1992).

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.

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Fluellen v. State
644 S.E.2d 486 (Court of Appeals of Georgia, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
644 S.E.2d 486, 284 Ga. App. 584, 2007 Fulton County D. Rep. 1105, 2007 Ga. App. LEXIS 375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fluellen-v-state-gactapp-2007.