THIRD DIVISION DOYLE, P. J., GOBEIL, J., and SENIOR JUDGE FULLER
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
March 11, 2024
In the Court of Appeals of Georgia A23A1575. GRANT v. THE STATE.
FULLER, Senior Judge.
Following an incident in which Harvey Lee Grant punched a man and took his
cell phones, a jury convicted him of armed robbery, possession of a firearm by a
convicted felon, possession of a firearm during the commission of a felony, and
misdemeanor battery. Grant appeals, arguing there was insufficient evidence that he
used a gun to accomplish the robbery. Because the evidence was sufficient, we affirm
his convictions.
Viewed in the light most favorable to the jury verdict,1 the record shows that the
victim owed Grant money for drugs. Grant drove the victim to his workplace so the
1 See Ferguson v. State, 297 Ga. 342, 343 (773 SE2d 749) (2015). victim could pick up his paycheck to repay the debt, but the business was closed.
Grant told the victim that he would drive him to the business owner’s home to
retrieve the paycheck. On the way, however, Grant grew angry, stopped the car, got
out, and ordered the victim to get out. Grant accused the victim of lying and punched
him in the face, saying, “I’m going to get my money one way or the other[,]” and he
took the victim’s two cell phones “as a means to secure the debt.” After being hit
several times, the victim walked to a nearby restaurant, where 911 was called.
Meanwhile, a woman who had been driving in the area approached a police
officer and reported that she had just seen Grant — whom she knew — “beat up a
[male] in the middle of the street[.]” The eyewitness told the officer, and later
repeated in an interview at the police station, that Grant had a small black gun with a
short barrel in his right hand as he hit the victim with his hand and elbow. Soon after
speaking with the eyewitness, the officer went to the restaurant and spoke to the
victim.
The victim, who had a black eye and facial bruising, told police that he had not
seen a gun during the incident and did not know whether Grant had one. A police
investigator subsequently interviewed Grant, who initially denied hitting the victim,
2 but later admitted to punching him.2 Grant was charged with armed robbery,
possession of a firearm by a convicted felon, possession of a firearm during the
commission of a felony, and misdemeanor battery.
At trial, the victim testified that Grant demanded money “[i]n an aggressive
manner” before forcing him out of the car and punching him in the street, all of which
made the victim afraid. However, the victim denied seeing a gun during the incident.
The eyewitness testified at trial that she could not remember whether Grant had a
gun, but she agreed that her statements to police on the day of the incident would be
more accurate than her current recollection. At the close of the State’s case, Grant
moved for a directed verdict of acquittal on the armed robbery charge, pointing to the
victim’s testimony that Grant had not threatened him with a weapon, but the trial
court denied the motion.
The jury found Grant guilty of all charges. He filed a motion for new trial,
arguing among other things that “the State’s ‘evidence’ of a gun was insufficient.”
The trial court denied the motion, ruling that “obviously, the jury believed [the
2 Grant made this admission at a preliminary hearing, and the police investigator testified about it at trial. 3 eyewitness’s] prior inconsistent statement” to the police that Grant had a gun while
attacking the victim and taking his property. Grant appeals.
1. In two enumerations of error, Grant challenges the sufficiency of the
evidence. He argues that the State did not prove the essential elements of armed
robbery and that the trial court erred by denying his motion for a directed verdict of
acquittal because “it is uncontested that the victim . . . had no apprehension
whatsoever that an offensive weapon . . . was being used.” (Emphasis omitted.) In
reviewing a challenge to the sufficiency of the evidence, “[w]e do not weigh the
evidence or determine witness credibility but only determine whether . . . any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Faulkner v. State, 260 Ga. App. 794, 794 (581 SE2d 365) (2003) (citation and
punctuation omitted). Applying this standard, we find that the evidence at trial was
sufficient to support Grant’s armed robbery conviction.
The indictment charged Grant with committing armed robbery by taking two
cell phones from the victim’s person “by the use of a certain handgun.” Under
OCGA § 16-8-41 (a), “[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
4 immediate presence of another by use of an offensive weapon[.]” (Emphasis supplied.)
This statute “clearly contemplates that the offensive weapon be used as a concomitant
to a taking which involves the use of actual force or intimidation (constructive force)
against another person.” Ortiz v. State, 292 Ga. App. 378, 379-380 (1) (665 SE2d 333)
(2008) (citation and punctuation omitted). The defendant’s use of the handgun must
occur “prior to or contemporaneously with the taking.” Harrington v. State, 300 Ga.
574, 577 (2) (a) (797 SE2d 107) (2017) (citation and punctuation omitted). Here, the
eyewitness’s statements to police that Grant struck the victim with the same hand in
which he was holding a gun constituted evidence that Grant accomplished the robbery
“by use of” the gun.
Grant contends that “the test is whether . . . the [defendant’s] acts created a
reasonable apprehension on the part of the victim that an offensive weapon was being
used, regardless of whether the victim actually saw the weapon.” And because the
victim claimed that no gun was used during the incident, Grant reasons, his armed
robbery conviction cannot stand. However, based on the eyewitness’s statements to
the police that Grant was holding a gun while hitting the victim and taking his
property, the jury could infer that the victim must have been aware of the gun, despite
5 the victim’s testimony to the contrary. See, e.g., Green v. State, 293 Ga. App. 752, 752
(1) (667 SE2d 921) (2008) (“Resolving evidentiary conflicts and inconsistencies, and
assessing witness credibility, are matters for the jury, not this Court.”)3
Further, the authority that Grant cites for the proposition that the victim must
have a reasonable apprehension of a weapon does not support his argument. Grant
relies on Whitmire v. State, 343 Ga. App. 282 (807 SE2d 46) (2017), which is part of
a line of precedent holding that a defendant may be convicted of armed robbery where
there is no proof of an actual offensive weapon, so long as the defendant’s acts
“created a reasonable apprehension on the part of the victim that an offensive weapon
was being used.” Id. at 285 (1) (a) (citation and punctuation omitted) (affirming
defendant’s armed robbery conviction based on evidence that he handed a bank teller
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THIRD DIVISION DOYLE, P. J., GOBEIL, J., and SENIOR JUDGE FULLER
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
March 11, 2024
In the Court of Appeals of Georgia A23A1575. GRANT v. THE STATE.
FULLER, Senior Judge.
Following an incident in which Harvey Lee Grant punched a man and took his
cell phones, a jury convicted him of armed robbery, possession of a firearm by a
convicted felon, possession of a firearm during the commission of a felony, and
misdemeanor battery. Grant appeals, arguing there was insufficient evidence that he
used a gun to accomplish the robbery. Because the evidence was sufficient, we affirm
his convictions.
Viewed in the light most favorable to the jury verdict,1 the record shows that the
victim owed Grant money for drugs. Grant drove the victim to his workplace so the
1 See Ferguson v. State, 297 Ga. 342, 343 (773 SE2d 749) (2015). victim could pick up his paycheck to repay the debt, but the business was closed.
Grant told the victim that he would drive him to the business owner’s home to
retrieve the paycheck. On the way, however, Grant grew angry, stopped the car, got
out, and ordered the victim to get out. Grant accused the victim of lying and punched
him in the face, saying, “I’m going to get my money one way or the other[,]” and he
took the victim’s two cell phones “as a means to secure the debt.” After being hit
several times, the victim walked to a nearby restaurant, where 911 was called.
Meanwhile, a woman who had been driving in the area approached a police
officer and reported that she had just seen Grant — whom she knew — “beat up a
[male] in the middle of the street[.]” The eyewitness told the officer, and later
repeated in an interview at the police station, that Grant had a small black gun with a
short barrel in his right hand as he hit the victim with his hand and elbow. Soon after
speaking with the eyewitness, the officer went to the restaurant and spoke to the
victim.
The victim, who had a black eye and facial bruising, told police that he had not
seen a gun during the incident and did not know whether Grant had one. A police
investigator subsequently interviewed Grant, who initially denied hitting the victim,
2 but later admitted to punching him.2 Grant was charged with armed robbery,
possession of a firearm by a convicted felon, possession of a firearm during the
commission of a felony, and misdemeanor battery.
At trial, the victim testified that Grant demanded money “[i]n an aggressive
manner” before forcing him out of the car and punching him in the street, all of which
made the victim afraid. However, the victim denied seeing a gun during the incident.
The eyewitness testified at trial that she could not remember whether Grant had a
gun, but she agreed that her statements to police on the day of the incident would be
more accurate than her current recollection. At the close of the State’s case, Grant
moved for a directed verdict of acquittal on the armed robbery charge, pointing to the
victim’s testimony that Grant had not threatened him with a weapon, but the trial
court denied the motion.
The jury found Grant guilty of all charges. He filed a motion for new trial,
arguing among other things that “the State’s ‘evidence’ of a gun was insufficient.”
The trial court denied the motion, ruling that “obviously, the jury believed [the
2 Grant made this admission at a preliminary hearing, and the police investigator testified about it at trial. 3 eyewitness’s] prior inconsistent statement” to the police that Grant had a gun while
attacking the victim and taking his property. Grant appeals.
1. In two enumerations of error, Grant challenges the sufficiency of the
evidence. He argues that the State did not prove the essential elements of armed
robbery and that the trial court erred by denying his motion for a directed verdict of
acquittal because “it is uncontested that the victim . . . had no apprehension
whatsoever that an offensive weapon . . . was being used.” (Emphasis omitted.) In
reviewing a challenge to the sufficiency of the evidence, “[w]e do not weigh the
evidence or determine witness credibility but only determine whether . . . any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Faulkner v. State, 260 Ga. App. 794, 794 (581 SE2d 365) (2003) (citation and
punctuation omitted). Applying this standard, we find that the evidence at trial was
sufficient to support Grant’s armed robbery conviction.
The indictment charged Grant with committing armed robbery by taking two
cell phones from the victim’s person “by the use of a certain handgun.” Under
OCGA § 16-8-41 (a), “[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
4 immediate presence of another by use of an offensive weapon[.]” (Emphasis supplied.)
This statute “clearly contemplates that the offensive weapon be used as a concomitant
to a taking which involves the use of actual force or intimidation (constructive force)
against another person.” Ortiz v. State, 292 Ga. App. 378, 379-380 (1) (665 SE2d 333)
(2008) (citation and punctuation omitted). The defendant’s use of the handgun must
occur “prior to or contemporaneously with the taking.” Harrington v. State, 300 Ga.
574, 577 (2) (a) (797 SE2d 107) (2017) (citation and punctuation omitted). Here, the
eyewitness’s statements to police that Grant struck the victim with the same hand in
which he was holding a gun constituted evidence that Grant accomplished the robbery
“by use of” the gun.
Grant contends that “the test is whether . . . the [defendant’s] acts created a
reasonable apprehension on the part of the victim that an offensive weapon was being
used, regardless of whether the victim actually saw the weapon.” And because the
victim claimed that no gun was used during the incident, Grant reasons, his armed
robbery conviction cannot stand. However, based on the eyewitness’s statements to
the police that Grant was holding a gun while hitting the victim and taking his
property, the jury could infer that the victim must have been aware of the gun, despite
5 the victim’s testimony to the contrary. See, e.g., Green v. State, 293 Ga. App. 752, 752
(1) (667 SE2d 921) (2008) (“Resolving evidentiary conflicts and inconsistencies, and
assessing witness credibility, are matters for the jury, not this Court.”)3
Further, the authority that Grant cites for the proposition that the victim must
have a reasonable apprehension of a weapon does not support his argument. Grant
relies on Whitmire v. State, 343 Ga. App. 282 (807 SE2d 46) (2017), which is part of
a line of precedent holding that a defendant may be convicted of armed robbery where
there is no proof of an actual offensive weapon, so long as the defendant’s acts
“created a reasonable apprehension on the part of the victim that an offensive weapon
was being used.” Id. at 285 (1) (a) (citation and punctuation omitted) (affirming
defendant’s armed robbery conviction based on evidence that he handed a bank teller
a note demanding money and stating that he had a grenade, and the teller saw a small
bulge in the defendant’s bag and believed that a weapon was inside). See also, e.g.,
Miller v. State, 223 Ga. App. 453, 453-454 (1) (477 SE2d 878) (1996) (affirming an
armed robbery conviction where the defendant was unarmed, but wrapped his hand
3 The jury, as the sole arbiter of witness credibility, is authorized to believe or disbelieve the testimony of any witness, especially where the evidence is in conflict. See Ferguson, 297 Ga. at 344 (1). 6 in a shirt to simulate a weapon such that the jury could find that the victim “had a
reasonable apprehension that [the defendant] was using a gun to commit the
robbery”).
Whitmire, Miller, and similar cases thus hold that a victim’s reasonable
subjective belief in the presence of a weapon may support an armed robbery
conviction, even if no weapon was actually used. We question how the “use” element
of armed robbery can be satisfied when the defendant does not actually use any
weapon or replica. Nevertheless, we need not resolve that issue here where there is
evidence to support the “use” element in this case, as the eyewitness told police that
Grant was holding a gun during the robbery. Under the circumstances presented here,
Grant’s perception of the gun is not determinative. See Simmons v. State, 342 Ga.
App. 853, 854-856 (1) (a) (805 SE2d 615) (2017) (affirming armed robbery conviction
where defendant attacked victim from behind with a weapon that an eyewitness saw,
but the victim did not).
2. Grant also argues that, without the armed robbery conviction, his gun
possession convictions must be reversed. Given our determination that there was
7 sufficient evidence to support Grant’s armed robbery conviction, this argument lacks
merit.
Judgment affirmed. Doyle, P. J., and Gobeil, J., concur.