MILLER, P. J., RICKMAN and REESE, JJ.
DeKalb County jury found Darien Powell guilty of armed
robbery. He was sentenced to serve a total of
twenty years, with the first ten years in confinement, and
the remainder to be served on probation. Following a denial
of his motion for new trial, he files this appeal, arguing
that there was insufficient evidence to support his
conviction, and that the indictment contained a fatal defect.
He also contends that the trial court erred by: admitting
evidence of a surveillance video; failing to grant a mistrial
based on the surveillance video; failing to instruct the jury
on the lesser included charge of robbery; and commenting on
the evidence. For the reasons that follow infra, we affirm.
in the light most favorable to the jury's verdict,
record shows that, on the evening of September 29, 2014, B.
S. worked as a manager for Inserection, a store that sold,
among other items, smoke paraphernalia. Around 9:00 p.m.,
while B. S. counted money on a store countertop, a man, whom
he later identified as the Appellant, entered the store.
According to B. S., the Appellant wanted to look at a water
pipe. B. S. asked the Appellant for identification and
observed that he was at least 18 years old. After the
Appellant presented a state identification card, B. S. spent
about 15 minutes showing him some pipes, which were located
behind B. S. According to B. S., the Appellant told him that
"he would be right back[, because he] wanted to get his
money out of the car." When the Appellant returned, B.
S. was still counting money. B. S. testified that the
Appellant asked to "look at the items again, " and
chose a pipe to purchase. B. S. told another store employee
to "ring [the Appellant] up, " as B. S. turned his
head away from the counter to return a pipe that the
Appellant did not want to purchase. B. S. testified that the
Appellant then "snatched [the] money off the
countertop[, ]" and as B. S. turned back around, the man
"had [a] gun pointed directly in [B. S.'s] face,
" then the Appellant ran out of the store.
testified that she was also working at Inserection the
evening of September 29, 2014. She testified that she and B.
S. were standing behind the store counter when the robber,
whom she later identified as the Appellant, initially entered
the store. E. M. saw B. S. show the Appellant some pipes, and
heard the Appellant state that he "would have to step
outside and get some money to purchase the [pipe]." She
further testified that the Appellant returned to the store
with a gun, pointed the gun at her, and told her to "get
down[.]" The Appellant then pointed the gun at B. S. who
"froze up[, ]" and took the money from the
jury found him guilty of armed robbery, the Appellant filed a
motion for new trial, which the trial court denied after a
hearing. This appeal followed.
appeal from a criminal conviction, the appellate court
view[s] the evidence in the light most favorable to the
verdict and an appellant no longer enjoys the presumption of
innocence. [The reviewing court] determines whether the
evidence is sufficient under the standard of Jackson v.
Virginia,  and does not weigh the evidence or
determine witness credibility. Any conflicts or
inconsistencies in the evidence are for the jury to resolve.
As long as there is some competent evidence, even though
contradicted, to support each fact necessary to make out the
State's case, [the reviewing court] must uphold the
standard of Jackson v. Virginia is met if the
evidence is sufficient for any rational trier of fact to find
the defendant guilty beyond a reasonable doubt of the crimes
charged." With these guiding principles in mind, we
turn now to the Appellant's specific claims of error.
Appellant argues that the evidence was insufficient for a
rational trier of fact to find him guilty of armed robbery
because the gun "was not used to effectuate the taking
[of the money] in this case[, ]" citing to Hicks v.
State as authority. Specifically, the Appellant
contends that the robber took the money from the countertop
while B. S.'s back was turned and before B. S. saw the
individual commits 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."
Hicks distinguishable from the instant action. In
Hicks, the Supreme Court of Georgia ruled that the
defendant did not commit armed robbery when he took the
victim's wallet while she slept because the offensive
weapon was not used to commit that particular crime, even
though it was later used in subsequent crimes.In contrast, E. M.
testified that B. S. froze when the Appellant pointed a gun
at B. S. and then took the money. Further, both B. S. and E.
M. identified the Appellant as the robber. "[A] jury is
authorized to believe or disbelieve all or any part of the
testimony of witnesses, and it serves as the arbiter of
conflicts in the evidence before it."
explained fully in Division 2, supra, the evidence supports a
finding that the Appellant took the money from B. S.'s
immediate presence by using a weapon. We conclude that the
evidence presented was sufficient for a rational trier of
fact to find the Appellant guilty of the armed robbery beyond
a reasonable doubt.
Appellant argues that a fatal variance existed as to
the averments in the indictment and the evidence at trial.
Specifically, the Appellant contends that the evidence showed
the perpetrator took the money from the store's
countertop and not from "the person of [B. S., ]"
as alleged in the indictment.
§ 16-8-41 (a) states, in pertinent part, that armed
robbery is committed by the taking of "property of
another from the person or the immediate presence of another.
. . ." The Supreme Court of Georgia has interpreted
"immediate presence of another" to mean,
not that the taking must necessarily be from the actual
contact of the body, but if it is from under the personal
protection that will suffice. Within this doctrine, the
person may be deemed to protect all things belonging to the
individual, within a distance, not easily defined, over which
the influence of the personal presence extends. In cases of
this type, all of the victim's property is, in
contemplation of law, upon the person of the owner, which is,
at the time of taking, in the immediate presence of the
owner, or is so near at hand, or stored in such position,
that, at the time of taking, it is under the immediate
personal protection of the owner. If the goods are in that
condition, then they are, within the contemplation of the
law, upon the person of the owner.
the evidence showed that the money taken from the store was
on the countertop, in the "immediate presence" and
in the "immediate personal protection" of the store
manager. Thus, there was no fatal variance
between the indictment and the evidence
Appellant argues that the trial court erred in permitting the
State to introduce evidence of a purported surveillance video
and in failing to grant a ...