DILLARD, C. J., GOBEIL and HODGES, JJ.
convicted Dontavious McCullough of armed robbery, criminal
attempt to commit a felony, aggravated assault, burglary in
the second degree, possession of a firearm during the
commission of a crime, and obstruction of a police officer
after he broke into a Taco Bell, held an employee at gunpoint
and took her phone, attempted to rob the restaurant, and then
fled from police. He was sentenced to 20 years to serve with
12 in confinement for the armed robbery conviction along with
sentences for probation on the other convictions. The trial
court denied McCullough's motion for new trial and he
appeals, contending (1) the evidence was insufficient to
convict him for armed robbery; and (2) the trial court erred
in refusing to instruct the jury on the penalty for armed
robbery. For the following reasons, we affirm.
[o]n appeal from a criminal conviction, the evidence must be
viewed in the light most favorable to the verdict, and the
appellant no longer enjoys the presumption of innocence;
moreover, an appellate court does not weigh the evidence or
determine witness credibility but only determines whether the
evidence is sufficient under the standard of Jackson v.
Virginia, [443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560)
(1979)]. As long as there is some competent evidence, even
though contradicted, to support each fact necessary to make
out the State's case, the jury's verdict will be
(Citation omitted.) Watkins v. State, 336 Ga.App.
145, 146 (1) (784 S.E.2d 11) (2016).
viewed, the evidence shows that the victim, a manager for
Taco Bell, arrived shortly after 6:00 a. m. on July 24, 2016
to open the restaurant. The victim believed she was alone and
went about her usual tasks of opening the restaurant and
changing clothes to begin her shift. The victim was on her
cell phone talking to a friend when she saw McCullough
pointing a gun at her head in her periphery. He was wearing a
mask and asked who was on the other end of her phone call.
While holding the victim at gunpoint, McCullough demanded she
give him her cell phone. The victim handed over her phone,
and then McCullough threw it down hard on the floor and
yelled that whoever she was on the phone with could call
police. McCullough picked the phone up off the ground and
threw it down again. The victim pleaded "please
don't kill me," and McCullough instructed her to
take him to the safe. The victim was so frightened that she
was shaking and unable to open to safe. McCullough then
noticed on security cameras that police were arriving, and he
instructed the victim to go to the front door and tell the
police it was a false alarm. Instead, the victim told the
police that there was a robber in the store and alerted them
when she saw him leave through another door.
was indicted for armed robbery, criminal attempt to commit a
felony, aggravated assault, burglary in the second degree,
possession of a firearm during the commission of a crime, and
obstruction of a police officer. A jury convicted McCullough
of all charges. He filed a motion for new trial, which the
trial court denied, and he now appeals.
McCullough contends there was insufficient evidence to
convict him of armed robbery. We disagree.
[w]hen a defendant appeals a criminal conviction citing
insufficient evidence, this court construes the evidence in a
light most favorable to the verdict with the understanding
that the appellant no longer enjoys the presumption of
innocence. Additionally this court does not weigh the
credibility or reliability of the evidence to determine
sufficiency; rather we determine whether a rational trier of
fact could have found the essential elements of the crime
charged beyond a reasonable doubt.
(Citations omitted.) Roberts v. State, 293 Ga.App.
348, 349 (667 S.E.2d 138) (2008).
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).
On appeal, McCullough does not dispute that he put a gun in
the victim's face, demanded her cell phone, and then
smashed the phone on the ground; rather, he contends that he
did not have the mens rea to commit armed ...