                              FIRST DIVISION
                              BARNES, P. J.,
                          MERCIER and BROWN, 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


                                                                    January 2, 2020




In the Court of Appeals of Georgia
 A19A2360. MERRITT v. THE STATE.

      MERCIER, Judge.

      Following a jury trial, Jeffery Merritt was convicted of armed robbery,

hijacking a motor vehicle, and two counts of aggravated assault. Merritt appeals,

arguing that the trial court erred in denying his motion for directed verdict on Count

1 (armed robbery) and Count 2 (hijacking a motor vehicle). We affirm.

      The denial of a motion for directed verdict is reviewed under the same standard

used to evaluate the sufficiency of the evidence supporting a criminal conviction. See

Williams v. State, 293 Ga. 750, 752 (1) (749 SE2d 693) (2013). We must consider

“whether the evidence, viewed in the light most favorable to the verdicts, would

enable a rational trier of fact to conclude beyond a reasonable doubt that the
defendant was guilty of the crimes for which he was convicted.” Id. (citations and

punctuation omitted).

      So viewed, the evidence shows that Merritt was standing outside of the

victim’s apartment building, folding a metal chair, when the victim left for work at

6:00 a.m. on June 22, 2017. As the victim walked around the building to the parking

lot where she had parked her car, Merritt hit her in the back of her head with the

chair, knocking her to the ground approximately one car-length away from her

vehicle. Merritt took her car key from her hand, then moved behind her.

      The victim sat up, revealing her purse that had fallen underneath her. Merritt

pulled a gun from his clothing, pointed it at the victim, and demanded the purse, but

briefly looked away as a car approached. The victim used that opportunity to flee,

hiding behind a nearby wall and calling 911 before she returned to her apartment to

wait for the police. When the police arrived less than ten minutes after the attack, the

victim discovered that her car was missing from the parking lot.

      A few weeks later, a police officer observed Merritt driving the victim’s car.

Detectives showed the victim a photographic lineup that included Merritt’s picture.

The victim identified Merritt as her assailant, indicating that she was “[o]ne hundred

percent” certain of her identification.

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      Following the presentation of evidence at trial, Merritt moved for a directed

verdict on Count 1 (armed robbery) and Count 2 (hijacking a motor vehicle). The trial

court denied the motion, and the jury found Merritt guilty of armed robbery, hijacking

a motor vehicle, and two counts of aggravated assault. This appeal followed.

      1. An armed robbery occurs “when, with intent to commit theft, [a person]

takes property of another from the person or the immediate presence of another by use

of an offensive weapon[.]” OCGA § 16-8-41 (a). Count 1 of the indictment alleged

that Merritt committed this offense by taking the victim’s car “from the immediate

presence of [the victim], by use of an offensive weapon, to wit: a handgun[.]”

Pointing to the victim’s testimony that he took her car key before pulling a gun from

his clothing, Merritt challenges his armed robbery conviction on appeal. In Merritt’s

view, the State failed to prove that he used a gun to take the victim’s car, entitling him

to a directed verdict on Count 1.

      We disagree. To support an armed robbery conviction, an offensive weapon

“must be used as a concomitant to a taking which involves the use of actual force or

intimidation (constructive force) against another person which must either precede

or be contemporaneous with, and not subsequent to, the taking.” Attaway v. State, 332

Ga. App. 375, 377 (1) (a) (722 SE2d 821) (2015) (citations and punctuation omitted).

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In other words, the State must prove beyond a reasonable doubt that use of the

weapon “occurred prior to or contemporaneously with the taking.” Id. (citation and

punctuation omitted). The evidence shows that Merritt took the victim’s car key

before he used the gun. But he was charged with stealing the victim’s vehicle, not her

car key. And based on the evidence presented, the jury was authorized to conclude

that Merritt took the victim’s car after he pointed the gun at her. See id. (“[T]he

taking is complete once control of the property is transferred involuntarily from the

victim to the defendant[.]”).

      Although the victim was not present in the apartment parking lot when Merritt

stole her car, “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.” Morgan v. State, 195 Ga. App. 732, 734 (1) (394 SE2d 639) (1990)

(citations omitted). Moreover, “[i]t has long been recognized . . . that when

perpetrators forcibly cause the victim to be away from the immediate presence of the

property at the time it is stolen, the offense of armed robbery can still be committed.”

Baldivia v. State, 267 Ga. App. 266, 269 (1) (599 SE2d 188) (2004). A victim’s flight

before property is taken, therefore, does not undermine an armed robbery conviction.

See id.; Heard v. State, 204 Ga. App. 757, 758 (1) (420 SE2d 639) (1992) (armed

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robbery conviction upheld where “evidence show[ed] the victims were not present

when the car was stolen because they were forced to flee into the woods after [the

defendant] fired shots and wounded [one of the victims]”); Maddox v. State, 174 Ga.

App. 728, 730 (1) (330 SE2d 911) (1985) (“The fortuitous escape of [the victim]

before he suffered the more direct physical threat of having the shotgun actually

pointed directly at his person at the exact moment that the theft was carried out

should not serve to absolve appellants from guilt for perpetrating what was an armed

robbery of his store.”).

      Prior to taking the victim’s car, Merritt pointed a gun at her, and she

immediately fled to a nearby hiding place from which she called the police. A few

minutes later, she discovered that her car was gone. These circumstances, particularly

the victim’s flight after Merritt pointed the gun at her, the fact that she remained in

the general vicinity while waiting for police, and Merritt’s subsequent possession of

the vehicle, supported the jury’s determination that Merritt used an offensive weapon

to take the victim’s car from her immediate presence, as alleged in Count 1 of the

indictment. Accordingly, Merritt was not entitled to a directed verdict on the armed

robbery charge. See Baldivia, supra (“Since the [vehicle] was under [its owner’s]

control and was stolen after [the defendants] had threatened [the owner] with a gun

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and forcibly caused her to be away from the immediate presence of the property, that

was sufficient to constitute a theft from her immediate presence.”); Morgan, supra

(“Since the victim fled the scene after he was threatened with a knife and the property

was stolen before he could even drive away, that was sufficient to constitute a theft

from his immediate presence.”).

      2. We reach a similar conclusion as to Count 2, which charged Merritt with

hijacking the victim’s vehicle. Pursuant to OCGA § 16-5-44.1 (b) (1), “[a] person

commits the offense of hijacking a motor vehicle in the first degree when such person

while in possession of a firearm or weapon obtains a motor vehicle from an individual

or the presence of another individual by force and violence or intimidation[.]”

      The evidence shows that the victim was close to her car when Merritt pointed

a gun at her, and he took the vehicle after she fled and hid nearby. Such evidence

authorized the jury to conclude that, while in possession of a firearm, Merritt obtained

the victim’s vehicle from her presence by force and violence, as charged in Count 2.

The victim’s absence from the parking lot at the time of the taking did not absolve

Merritt of this crime. The jury was authorized to conclude that the victim “was not too

distant from the vehicle” at the time of the theft. Kollie v. State, 301 Ga. App. 534,

541 (4) (687 SE2d 869) (2009) (physical precedent only); see also Heard v. State, 287

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Ga. 554, 555 (1) (697 SE2d 811) (2010) (citing Kollie with approval and employing

analysis used for more restrictive “immediate presence” language in armed robbery

statute to determine whether vehicle was taken from “the person or presence” of the

victim under OCGA § 16-5-44.1 (b)). And as in the armed robbery context, a

defendant cannot avoid a highjacking conviction by forcibly causing a victim to be

away from his or her vehicle when it is stolen. See Kollie, supra. The trial court,

therefore, properly denied Merritt’s motion for a directed verdict on Count 2. See

Heard, supra, 287 Ga. at 555 (1); Kollie, supra.

      Judgment affirmed. Barnes, P. J., and Brown, J., concur.




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