Page v. the State

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 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, Mangum came upon Page, who was in Mangum’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 Mangum’s gun in the other hand. Page pointed the gun at Mangum and told him to get out, at which point Mangum first fled to another bedroom and then back to the basement and outside. From a neighbor’s house, Mangum called 911, and when police arrived at the scene, Mangum 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 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 *658 establish “beyond a reasonable doubt that [Page’s] use of the handgun occurred ‘prior to or contemporaneously with the taking.’ ” 6 Decided November 18, 2015. Virginia R. Priddy, Travis A. Williams, for appellant. Lee Darragh, District Attorney, Juliet Aldridge, Assistant District Attorney, for appellee. 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 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. Footnotes [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. [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). [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). [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 “to 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).