                                 FIRST DIVISION
                                  DOYLE, C. J.,
                            PHIPPS, P. J, and BOGGS, J.

                    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


                                                                  November 18, 2015




In the Court of Appeals of Georgia
 A15A1256. PAGE v. THE STATE.                                                 DO-046 C

      DOYLE, Chief Judge.

      Charles Monroe Page appeals his conviction for armed robbery,1 arguing that

the evidence was insufficient to support the conviction because the act of taking was

completed prior to the homeowner’s entry into the room, and any use of force

occurred after the taking of the homeowner’s property was complete. For the reasons

that follow, we reverse.2




      1
          OCGA § 16-8-41 (a).
      2
        Page also was convicted of aggravated assault, theft by taking with a firearm,
three counts of theft by taking, and three counts of burglary, but he does not
enumerate any error related to those counts. This appeal does not review the portion
of the judgment related to those counts.
      Viewed in the light most favorable to the verdict,3 the evidence at trial showed

that around mid-day on December 24, 2011, Johnny Ray Mangum was in the

basement of his home when he heard someone run upstairs toward the bedrooms.

Mangum expected his adult daughter to return home that day, so he was not surprised

at the sound and went upstairs to meet her.

      Instead of his daughter, Mangrum came upon Page, who was in Mangrum’s

bedroom, coming out of a closet and walking toward the bathroom. Page was holding

Mangum’s wife’s jewelry box in one hand and carrying Mangrum’s gun in the other

hand. Page pointed the gun at Mangrum and told him to get out, at which point

Mangrum first fled to another bedroom and then back to the basement and outside.

From a neighbor’s house, Mangrum called 911, and when police arrived at the scene,

Mangrum saw pieces of jewelry scattered in the house along the route Page would

have taken from the bedroom to escape via the kitchen.

      Based on the foregoing, Page was convicted of multiple crimes, including

armed robbery. He now appeals, and relying on the Supreme Court of Georgia’s

      3
         See Fox v. State, 289 Ga. 34, 35-36 (1) (a) (709 SE2d 202) (2011) (applying
the standard of review announced in Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt
2781, 61 LE2d 560) (1979), that evidence will be viewed in the light most favorable
to the verdict and any issues of witness credibility or inconsistency of evidence are
for the factfinder to resolve).

                                          2
opinions in Fox,4 and Hicks v. State,5 Page contends that his taking of the property

was complete prior to his coming into the immediate presence of Mangum.

      Page was charged with committing armed robbery of Mangum by taking

Mangum’s firearm and jewelry box “by use of an offensive weapon . . . a handgun.”

Thus, as in Fox, the State was required to establish “beyond a reasonable doubt that

[Page’s] use of a handgun occurred ‘prior to or contemporaneously with the taking.’”6

      The State, primarily citing Cantrell v. State,7 Dutton v. State,8 and Nuckles v.

State,9 argues that the evidence was sufficient to convict Page for armed robbery

because the taking did not occur until Page exercised dominion over the property by

threatening Mangum with the gun. Those cases, however, are inapposite. In Dutton

and Nuckles the defendants did not exercise dominion and control over the property

at issue until they threatened the store clerks at the time payment would have been



      4
          289 Ga. at 36-37 (1) (b).
      5
          232 Ga. 393, 402-403 (207 SE2d 30) (1974).
      6
          Fox, 289 Ga. at 36 (1) (b).
      7
          184 Ga. App. 384 (361 SE2d 689) (1987).
      8
          199 Ga. App. 750 (406 SE2d 85) (1991).
      9
          137 Ga. App. 200 (223 SE2d 245) (1976).

                                          3
expected under normal circumstances.10 In Cantrell, the defendant did not exercise

dominion and control over the stolen item until he used force because he previously

acted as if he simply was borrowing the item.11

      In this case, as in Hicks, Page had exercised control over the items (the gun and

the jewelry box) prior to exerting any force against Mangum, who appeared after

Page had obtained the items.12 Moreover, neither our review of the record nor the

State’s brief reveals evidence in the record to exclude the hypothesis that Page left

the scene after confronting Mangum without taking additional property.13

Accordingly, his conviction for armed robbery is reversed.

      Judgment reversed. Phipps, P. J., and Boggs, J., concur.




      10
           See Dutton, 199 Ga. App. at 750; Nuckles, 137 Ga. App. at 201 (1), 204 (5).
      11
           See Cantrell, 184 Ga. App. at 385 (1).
      12
           See Hicks, 232 Ga. at 402-403.
      13
         See Fox, 289 Ga. at 37 (1) (b) (reversing armed robbery conviction because
“[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only
be consistent with the hypothesis of guilt, but shall exclude every other reasonable
hypothesis save that of the guilt of the accused,” and the evidence presented could not
exclude the hypothesis that the defendant first robbed the home before killing the
victim) (punctuation omitted).

                                            4
