HARP v. STATE (2010)

A Taylor County jury found Davoris Harp guilty of two counts of armed robbery and two counts of possession of a firearm during the commission of a crime. On appeal, Harp contends that the evidence was only sufficient to convict him for one count of armed robbery and one count of possession of a firearm during the commission of a crime. We disagree.

Viewed in the light most favorable to the jury's verdict, the evidence showed that Harp and another male approached P.H. and his girlfriend, D. M., outside their home. Harp pointed the gun at P. H .'s face and demanded money. When P.H. responded that he had no money, Harp turned the gun on D.M. She also denied having any money. Eventually, P.H. took his “papers” out of his shirt pocket, handed them to D. M., and asked her to “show them I don't have no money.” D.M. rummaged through the papers and found a $20 bill, which Harp directed she give to Harp's companion.

“A person commits the offense of 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.” OCGA § 16-8-41(a). “Robbery is a crime against possession, and is not affected by concepts of ownership.” (Citation omitted.) Carter v. State, 156 Ga.App. 633(3), 275 S.E.2d 716 (1980). Thus, if property owned by two different persons is taken from a single victim in a single transaction, there is only one robbery. Creecy v. State, 235 Ga. 542, 544(5), 221 S.E.2d 17 (1975). On the other hand, if property is taken from the immediate presence or the actual or constructive possession of more than one victim, “the defendant may be charged with the robbery of each victim.” Green v. State, 265 Ga.App. 126, 128-129(2), 592 S.E.2d 901 (2004). See also Kelly v. State, 234 Ga.App. 893, 894-895(2), 508 S.E.2d 228 (1998); Walker v. State, 206 Ga.App. 81, 82(2), 424 S.E.2d 364 (1992); Lawrence v. State, 198 Ga.App. 287, 290(3), 401 S.E.2d 275 (1991).

Here, the evidence showed that there were two victims who were robbed by Harp. D.M. was in actual possession of the $20 bill and was forced to surrender the money at gunpoint, and so she was a victim of armed robbery. See, e.g., Cecil v. State, 263 Ga.App. 48, 50(2), 587 S.E.2d 197 (2003). Additionally, P.H. was a victim of armed robbery because the $20 bill was taken from his immediate presence at gunpoint. See Welch v. State, 235 Ga. 243, 245(1), 219 S.E.2d 151 (1975) (in the context of armed robbery, “immediate presence” is construed broadly); Clements v. State, 84 Ga. 660, 664, 11 S.E. 505 (1890) (“It is not necessary in a case of robbery to prove that the property was actually taken from the person of the owner, but it is sufficient if it is taken in his presence”). Clearly, both D.M. and P.H. “were subject to [Harp's] exercise of actual force by the use of an offensive weapon so as to induce the relinquishment of the property of another, i.e., [the $20 bill].” Kelly v. State, 234 Ga.App. 893, 894(2), 508 S.E.2d 228 (1998). Hence, any rational trier of fact could have found Harp guilty beyond a reasonable doubt of two counts of armed robbery and two counts of possession of a firearm in the commission of a crime. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Judgment affirmed.

BERNES, Judge.

SMITH, P.J., and PHIPPS, J., concur.