                                 FOURTH DIVISION
                                   BARNES, P. J.,
                               RAY and MCMILLIAN, JJ.

                      NOTICE: Motions for reconsideration must be
                      physically received in our clerk’s office within ten
                      days of the date of decision to be deemed timely filed.
                                 http://www.gaappeals.us/rules/


                                                                          July 7, 2015




In the Court of Appeals of Georgia
 A15A0618. TIGNER v. THE STATE.

      RAY, Judge.

      A Fulton County jury found Demarius Tigner guilty on four counts of

aggravated assault; two counts each of armed robbery, criminal attempt to commit

armed robbery, and theft by receiving stolen property; and one count of possession

of a firearm during the commission of a felony. On appeal, Tigner contends that the

evidence was insufficient to support his conviction on one of the counts of theft by

receiving. Tigner does not challenge his convictions on the remaining offenses. For

the reasons that follow, we reverse his conviction only as to the one count of theft by

receiving at issue.

      “On appeal from a criminal conviction, we view the evidence in the light most

favorable to the verdict, and the [defendant] is no longer entitled to the presumption
of innocence.” (Citation omitted.) Newsome v. State, 324 Ga. App. 665, 665 (751

SE2d 474) (2013). In determining the sufficiency of the evidence, we neither weigh

the evidence nor assess the credibility of the witnesses, but determine only whether

the evidence authorized the jury to find the appellant guilty of the crime charged

beyond a reasonable doubt. Byrd v. State, 325 Ga. App. 24, 24 (752 SE2d 84) (2013).

      The evidence shows that on September 10, 2009, Jocquilynn Millines was

walking to her car when she was approached by two men. One of the men had a gun,

and Millines was ordered to get on the ground. After the men took her car keys and

cell phone, one of the men asked her for money. When Millines stated that she did not

have any, the two men got in her car and drove away. The vehicle stolen from

Millines was a silver, 2008 Pontiac Grand Prix. She had recently purchased the car,

and it still had the drive-out dealer tag affixed. During the subsequent investigation,

the police presented Millines with photographic line-ups of possible suspects.

However, she was unable to identify the two perpetrators from those line-ups.1

      Two days later, on September 12, 2009, Millines’s stolen car was used during

the commission of two armed robberies and two attempted armed robberies. Based

on witness testimony, the car had several occupants at that time, and the evidence

      1
          The State did not attempt to have Millines identify Tigner at trial.

                                            2
shows that Tigner was one of the passengers. Shortly after the victims reported the

incidents to the police, a police officer located a car matching the description given

by the victims parked in the driveway of a residence.2 Police officers detained four

men who were found at the scene, later identified as Tigner, Fabian Avery, Lawrence

Burton, and Randy Redding. Three of the victims were later able to identify these

men as the perpetrators.

      At trial, Burton testified that he had obtained the car that was used on

September 12, 2009, from a friend who was not involved in the case. There was no

evidence presented at trial to show that Tigner was involved in the previous theft of

Millines’s car or that he knew, or should have known, that the car had been stolen.

      On appeal, Tigner contends that the evidence was insufficient to support his

conviction for theft by receiving Millines’s stolen car. We agree.

      Pursuant to OCGA § 16-8-7 (a),

      [a] person commits the offense of theft by receiving stolen property
      when he receives, disposes of, or retains stolen property which he knows
      or should know was stolen unless the property is received, disposed of,
      or retained with intent to restore it to the owner. “Receiving” means


      2
       It was later determined that the residence belonged to Sheneal Redding and
her two sons, Randy and Lamarkus Redding.

                                          3
      acquiring possession or control or lending on the security of the
      property.


      All the evidence presented indicates that Tigner was a passenger in the stolen

car, not the driver. Therefore, we must consider whether the State presented sufficient

evidence that Tigner knew the car was stolen and that he acquired possession or

control of the car or otherwise actively aided or abetted in the theft of the car.

      [R]iding in a stolen . . . automobile as a passenger does not support a
      conviction for theft by receiving unless the accused also, at some point,
      acquires possession of or controls the vehicle, i.e., has the right to
      exercise power over a corporeal thing, or there exists some evidence,
      either direct or circumstantial, that the accused was a party to the crime
      by aiding and abetting its commission.


(Citations and punctuation omitted.) In the Interest of C.W., 226 Ga. App. 30, 31 (485

SE2d 561) (1997).

      In Hurston v. State, 202 Ga. App. 311 (414 SE2d 303) (1991) (physical

precedent only), we concluded that the State presented sufficient evidence that the

defendant passenger knew the car was stolen by establishing that: the defendant

admitted doubting the car belonged to the driver; the steering wheel was damaged;

the car was driven without keys; personal papers including the car registration in the


                                           4
owner’s name were strewn about the disheveled interior; and a picture of the owner’s

daughter was displayed on a visor. Id. at 312-313 (1). We determined that the State

presented sufficient evidence of “possession or control” as required by OCGA §

16-8-7 by establishing that the driver “left [the defendant] alone in the car with the

vehicle running when he went into the convenience store.” Id. at 313 (1).

      Similarly, in Sanders v. State, 204 Ga. App. 545 (419 SE2d 759) (1992), we

affirmed the defendant passenger’s conviction of theft by receiving where the State

showed that: the defendant was in the car only a few hours after it was stolen; the

owner’s personal items were strewn about the car; the steering column was damaged;

the car was driven without keys; the defendant fled the scene when stopped by a

police officer; and the defendant had in his possession items “that appeared to have

been taken from the car[.]” Id. at 546 (1) (a).

      Finally, in Johnson v. State, 236 Ga. App. 356 (511 SE2d 921) (1999), we

affirmed the defendants’ convictions for theft by receiving a stolen vehicle where the

evidence showed that: the defendants admitted that the car was stolen; the car was

used in an armed robbery in which the defendants participated, after which a chase

ensued; and the steering column was damaged. Id. at 357 (1).



                                           5
      Unlike the cases cited above, in the case before us, the State presented no

evidence to show that it would have been readily apparent to Tigner that the car had

been stolen, that he had taken items from the car that belonged to Millines, or that he

admitted doubts as to the car’s ownership. Furthermore, the State presented no

evidence that Tigner exerted possession or control over the car or otherwise

participated in the theft of the car. The evidence presented was that Tigner was later

a passenger in the car and had participated in the crimes that took place on September

12, 2009. As the evidence was insufficient to show that Tigner knew or should have

known the car was stolen, and because there was no evidence to show that he

possessed or controlled the car or was involved in the theft of the car, his conviction

of theft by receiving a motor vehicle must be reversed. See In the Interest of C.W.,

supra. Accord Morgan v. State, 280 Ga. App. 646, 648-650 (634 SE2d 818) (2006)

(defendant passenger’s conviction for theft by receiving motor vehicle reversed where

there was no evidence that defendant possessed or exercised control over the car or

that he aided or abetted in the theft); Harris v. State, 247 Ga. App. 41, 42 (543 SE2d

75) (2000) (same). See generally Owens v. State, 192 Ga. App. 335, 340 (1) (b) (384

SE2d 920) (1989) (the fact that defendant was guilty of another crime tried jointly

with the theft by receiving charge was simply insufficient evidence to authorize a

                                          6
finding, beyond a reasonable doubt, that he was in possession or control of the stolen

property).

      Applying the foregoing authorities to the particular facts of this case, we must

reverse Tigner’s conviction for theft by receiving motor vehicle. However, our

holding in no way affects his convictions on the remaining offenses.

      Judgment reversed in part. Barnes, P. J., and McMillian, J., concur.




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