MCFADDEN, P. J., BRANCH and BETHEL, JJ.
Lydell Holloway appeals from his conviction on one count of
burglary and one count of hijacking a motor
vehicle. He asserts that he received ineffective
assistance from his trial counsel and that there was
insufficient evidence to support his conviction for
hijacking. For the reasons set forth below, we affirm.
Holloway first contends that he received ineffective
assistance from his trial counsel. However, Holloway's
claim for ineffective assistance is barred by the Georgia
Supreme Court's decision in Glover v.
State and its progeny. In Glover, the
Georgia Supreme Court ruled that because "a claim of
ineffectiveness of trial counsel must be asserted at the
earliest practicable moment, " such claims must "be
raised before appeal if the opportunity to do so is
available; that the ability to raise the issue on motion for
new trial represents such an opportunity; and that the
failure to seize that opportunity is a procedural bar to
raising the issue at a later time." 266 Ga. at 184 (2)
(citations and emphasis omitted).
case, Holloway concedes that his enumeration of error in his
brief before this Court is the first instance in which he has
raised the issue of his trial counsel's ineffectiveness.
Holloway never filed a motion for a new trial and instead
filed multiple motions for out of time appeal, one of which
was made with the assistance of appointed appellate
counsel. Thus, not only did Holloway not move for a
new trial at any point in these proceedings, he also pursued
his appeal to this Court, at least in part, with the
assistance of a new appellate counsel who would have been
free to raise ineffective assistance of counsel as a basis
for a new trial with the court below. Cf. Bridges v.
State, 279 Ga. 351, 357 (11) (613 S.E.2d 621) (2005)
(remand to trial court with direction is appropriate where
defendant was represented by trial counsel until after notice
of appeal was filed). As Holloway and his new appellate
counsel did not seize the opportunity to address the issue of
the trial counsel's ineffectiveness with the court below,
Glover bars this Court's consideration of
Holloway's ineffectiveness claim on appeal.
Holloway also contends that the evidence presented against
him at trial was insufficient to support his conviction for
hijacking a motor vehicle. Following a conviction in a criminal
case, our sufficiency of the evidence review is limited to a
determination of whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier
of fact could have found that the defendant committed the
essential elements of the crime beyond a reasonable doubt.
Gray v. State, 213 Ga.App. 507, 509 (1) (445 S.E.2d
was charged with hijacking a motor vehicle pursuant to OCGA
§ 16-5-44.1 (b), the "essential elements" of
which are: "(1) possessing a firearm or weapon; (2)
while obtaining . . . a motor vehicle from the person or
presence of another; (3) by force and violence or
intimidation." Bradford v. State, 223 Ga.App.
424, 425 (1) (477 S.E.2d 859) (1996). A person is also guilty
of this offense if he or she attempts or conspires to do
these acts. OCGA § 16-5-44.1 (b).
the evidence presented shows that Holloway and several others
were walking through a parking lot when they found a man and
a woman in a vehicle. Holloway and another assailant
approached the vehicle, and Holloway pulled the woman from
the passenger seat and threw her to the ground. Holloway then
moved around the vehicle and brandished a gun at the man who
was seated in the driver's seat. Holloway then removed
him from the vehicle and began beating him with the gun. One
of the other men who had come with Holloway was
"watching out" while this incident occurred. After
the driver was subdued, Holloway and the other men who had
been walking with him got in the vehicle and drove it away.
Holloway was not driving the vehicle.
woman who was pulled from the passenger seat of the vehicle
recognized Holloway, testifying at trial that she knew
Holloway because he is her cousin. She testified that she saw
Holloway the day after the incident and that he told her
where to find the stolen vehicle. Holloway also later
admitted to law enforcement that he was present at the scene
where the incident occurred and that he rode in the vehicle
after it had been stolen.
evidence was sufficient to allow a rational jury to find that
Holloway committed each element of the charged offense beyond
a reasonable doubt. Here, the testimony established
Holloway's possession of a gun that he used to hit the
victim. Holloway has not suggested in his appeal that the gun
described by the witnesses fails to meet the statutory
definitions of the terms "firearm" or
"weapon" in OCGA § 16-5-44 (a) (1) and (3),
and witness testimony describing Holloway's possession
and use of the gun in the course of the incident satisfies
the requirement that Holloway was in possession of the weapon
or firearm at the time of the offense.
the evidence indicates that Holloway and the other men
"obtained" the vehicle "from the person and
presence" of the victim as the result of this encounter.
"[A]pplying the ordinary meaning of 'obtain, '
the offense of hijacking a motor vehicle is concluded when
possession of the motor vehicle is acquired." Gordon
v. State, 316 Ga.App. 42, 46 (1) (a) (728 S.E.2d 720)
(2012) (citations and emphasis omitted). The evidence here
indicates that not only did Holloway and the others obtain
control and possession of the vehicle after the victim had
been subdued but that they also moved the vehicle to another
location. Additionally, the evidence shows that the vehicle
was obtained after removing the victim from the vehicle and
beating him. Thus, the vehicle was clearly obtained from the
victim. See Whaley v. State, 337 Ga.App. 50, 53-54
(1) (785 S.E.2d 685) (2016) (presence requirement satisfied
when the defendant took the victim's keys from the victim
upon threat of violent injury and then retrieved the car from
the parking lot); see also Heard v. State, 287 Ga.
554, 555 (1) (697 S.E.2d 811) (2010) (noting that "the
concept of immediate presence is broadly construed if the
object taken was under the victim's control or
responsibility and the victim is not too distant")
the third element of the crime, the evidence presented shows
that the vehicle was obtained from the victim through force
and violence. Holloway and another of the assailants forcibly
removed the victim and another person from the vehicle, and
Holloway proceeded to hit the victim with a gun, such that he
could not resist the efforts of Holloway and the others to
drive the vehicle away.
we note that although the record indicates that someone other
than Holloway drove the car away from the scene of the
incident, the jury could infer Holloway's criminal intent
to commit the hijacking, including the element of obtaining
the vehicle from the victim, due to his conduct "before,
during, and after" the crime. Johnson v. State,
299 Ga.App. 706, 708 (1) (a) (683 S.E.2d 659) (2009). As this
Court ruled in Johnson, the act of pointing a gun at
the head of the vehicle's owner and ordering him from the
car is an overt act to effect the object of a conspiracy to
hijack a vehicle. Id. at 709. Likewise,
Holloway's admitted presence at the scene of the
incident, his possession of a firearm, his role in forcibly
removing the vehicle's occupants, and his presence in the
vehicle after it had been stolen demonstrate several acts on
his part to effect the hijacking of the victim's vehicle
even though he was not the person who ultimately drove it
from the scene.
sufficient evidence in the record to support each element of
the charge for hijacking a motor vehicle, we conclude that a
rational jury could find Holloway guilty of the offense