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Gene v. State

Court of Appeals of Georgia

January 28, 2015

GENE
v.
THE STATE

Robbery. Douglas Superior Court. Before Judge Emerson.

Miller & Key, J. Scott Key, for appellant.

Brian K. Fortner, District Attorney, Rachel D. Ackley, Assistant District Attorney, for appellee.

MILLER, Judge. Doyle, P. J., and Dillard, J., concur.

OPINION

Page 534

Miller, Judge.

Following a jury trial, Calvin Louis Gene was convicted of robbery by sudden snatching (OCGA § 16-8-40 (a) (3)) and sentenced to fifteen years with ten years in confinement.[1] Gene appeals from the denial of his motion for new trial, contending that the trial court erred in failing to instruct the jury on the lesser charge of theft by taking. For the reasons that follow, we affirm.

Viewed in the light most favorable to the jury's verdict,[2] the evidence shows that on the morning of Saturday, September 4, 2010, Gene and the victim met at a tire shop in Lithia Springs. The victim invited Gene to her apartment in Douglasville later that night.

Gene arrived at the victim's apartment, and she brought Gene into her bedroom where they smoked marijuana. About ten minutes after Gene arrived, he left the victim's apartment and stepped outside. According to the victim, when Gene came back inside her apartment, he was holding a black handgun, and he was angry. The victim testified that Gene took her phone and turned it off and then pointed the gun at her and forced her to have sex with him.

The victim further testified that Gene forced her to kneel by her bed on the floor at gunpoint, demanded money, and proceeded to search her bedroom, looking through her closet, pocketbook and wallet. Gene took $20 from her purse and took her cell phone off her dresser.

In an attempt to get Gene out of her home, the victim reminded him that she had visitors arriving shortly. Gene told the victim to stay in place and " start counting," and he walked backward out of the apartment with the gun pointed at her. After Gene left, the victim walked to her neighbor's home and called 911. During the 911 call, the victim reported that her cell phone and $20 had been stolen.

[330 Ga.App. 560] Responding to the 911 call, officers with the Douglas County Police Department arrived at the victim's apartment after midnight and interviewed her. The victim told a responding officer that she did not realize

Page 535

that her phone had been taken until after Gene left her apartment, and she provided detectives with the serial ...


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