Armed robbery, etc. Richmond Superior Court. Before Judge Brown.
Robert L. Persse, for appellant.
Ashley Wright, District Attorney, Madonna M. Little, Assistant District Attorney, for appellee.
A Richmond County jury convicted Tracey Antonio Attaway of one count of armed robbery (OCGA § 16-8-41 (a)), one count of aggravated assault (OCGA § 16-5-21 (b) (2)) and two counts of possession of a knife during the commission of a crime (OCGA § 16-11-106 (b)). He appeals from that conviction, arguing that the evidence was insufficient to support his convictions and that he was improperly sentenced on the armed robbery conviction. For the following reasons, we reverse Attaway's convictions for armed robbery and one count of possession of a knife during the commission of a crime, affirm his remaining convictions, and remand the case to the trial court for resentencing.
Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), the evidence adduced at trial shows that the day after Thanksgiving, Kevin Laird, a loss prevention manager at Best Buy, was informed that a co-worker observed Attaway open a sealed box and attempt to put a laptop computer down his pants. As Laird approached Attaway, he observed the laptop box in Attaway's shopping cart and noticed that he was trying to conceal a laptop with his shirt. Laird told Attaway that he needed to recover the evidence, and Attaway responded that he did not know what Laird was talking about. Tommy Walker, another store employee, approached, and Attaway tried to run away. Attaway and Walker were involved in a scuffle which knocked over several customers and store displays. Laird testified that Attaway pulled out a knife to effectuate his escape during the scuffle. Laird told the crowd of customers to get away because Attaway had a knife, and Attaway ran out the store's front door. Attaway dropped the laptop while running. After checking on those inside, Laird went to the door and saw Attaway scuffling with some Marines who had been collecting items for Toys for Tots outside.
Patrick Youssef, a Best Buy customer that day, testified that he saw the scuffle begin and that he saw Attaway holding a knife during his interaction with Walker. Youssef testified that once Attaway was outside, he fell down and that " Marines [were] standing over him. And then [Attaway] got up and did almost a jump step ... and it [332 Ga.App. 376] almost looked like he was trying to go through and over the Marine and he was above him and stabbed down into his back." Youssef testified that it did not appear that the stabbing was an accident. Youssef, a doctor, tended to the Marine's wound until EMTs arrived. He testified that the wound was located near the Marine's spine, was three to four centimeters long, and was " bleeding pretty profusely."
Sergeant Phillip Duggan was the Marine stabbed by Attaway. He testified that he had been collecting for Toys for Tots outside the store when he saw a man running outside the store and heard someone yell " someone get him." Attaway attempted to run around Duggan, and both men fell, a scuffle ensued, and Attaway was subdued on the ground by other Marines. Duggan noticed that Attaway had a knife during the scuffle, and once Attaway was secured, he realized that he had been stabbed in the back. Other Marines testified that they witnessed Attaway stab Duggan and that the act did not appear to be accidental. A knife with a four-inch blade was recovered from Attaway.
When Attaway was arrested, more stolen Best Buy merchandise was discovered on his person, including two cameras, batteries, a PlayStation 3 accessory, and chargers. Subsequent examination of the laptop box revealed that it had been sliced with a blade and not ripped open.
Attaway was then transported to the sheriff's office. After being advised of his Miranda rights, he initially stated that he " would keep his statements to himself[.]" Attaway then changed his mind and asked to make a statement without being recorded. Attaway asked what he had been charged with, to which the interviewing officer responded, aggravated assault, armed robbery and possession of a knife during the commission of a crime. Attaway claimed that he did not try to hurt anyone. When the officer informed him that several people saw him stab Duggan, Attaway stated " well[,] I'll give you that one[,] but I didn't rob anybody."
1. Attaway contends that the evidence was insufficient to support each of his convictions. In weighing the sufficiency of the evidence, this Court construes the evidence at trial, and all reasonable inferences drawn from it, most strongly in favor of the jury's verdict, and the defendant no longer enjoys a presumption of innocence. Brown v. State, 293 Ga.App. 633, 633 (667 S.E.2d 899) (2008). We do not weigh the evidence or decide the witnesses' credibility, but only determine if the evidence is sufficient to sustain the convictions. Id. We will address each conviction in turn.
(a) Attaway contends that the evidence was insufficient to support his armed robbery conviction because the State " failed to establish [332 Ga.App. 377] that [Attaway] used the knife offensively and failed to show that [the knife] ...