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McCullough v. State

Court of Appeals of Georgia, Third Division

June 19, 2019

McCULLOUGH
v.
STATE.

          DILLARD, C. J., GOBEIL and HODGES, JJ.

          HODGES, JUDGE.

         A jury 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.

         Under Georgia law,

[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 upheld.

(Citation omitted.) Watkins v. State, 336 Ga.App. 145, 146 (1) (784 S.E.2d 11) (2016).

         So 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.

         McCullough 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.

         1. McCullough contends there was insufficient evidence to convict him of armed robbery.[1] We disagree.

         Under Georgia law,

[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).

         "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 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 ...


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