FOURTH DIVISION
DILLARD, P. J.,
MERCIER and COLVIN, 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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
July 22, 2021
In the Court of Appeals of Georgia
A21A0710. GEE v. THE STATE.
COLVIN, Judge.
After a jury trial, Antonio Maurice Gee was convicted of burglary in the first
degree, aggravated battery (2 counts), aggravated assault (4 counts), armed robbery
(2 counts), aggravated stalking, false imprisonment (2 counts), cruelty to children in
the first degree (2 counts), and cruelty to children in the third degree (2 counts). Gee
appeals from the denial of his motion for new trial, arguing, inter alia, that the
evidence was insufficient to support his two armed robbery convictions. For the
following reasons, we affirm Gee’s armed robbery conviction under Count 9, but
reverse his armed robbery conviction under Count 8 and remand for resentencing.
When evaluating the sufficiency of evidence, the proper standard for review
is whether a rational trier of fact could have found the defendant guilty beyond a
reasonable doubt. See Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LEd2d
560) (1979). “This Court does not reweigh evidence or resolve conflicts in testimony;
instead, evidence is reviewed in a light most favorable to the verdict, with deference
to the jury’s assessment of the weight and credibility of the evidence.” (Citation and
punctuation omitted.) Hayes v. State, 292 Ga. 506, 506 (739 SE2d 313) (2013). When
a conviction is based upon circumstantial evidence,
questions as to reasonableness are generally to be decided by the jury
which heard the evidence and where the jury is authorized to find that
the evidence, though circumstantial, was sufficient to exclude every
reasonable hypothesis save that of guilt, the appellate court will not
disturb that finding, unless the verdict of guilty is insupportable as a
matter of law.
(Citations and punctuation omitted.) Kiser v. State, 327 Ga. App. 17, 21 (3) (755
SE2d 505) (2021).
So viewed, the evidence shows in December 2016, Gee was released from
prison where he was incarcerated for an aggravated stalking conviction involving
Jessica Crutchfield, the mother of his two children. Two days after his release, Gee
spent the morning communicating with Crutchfield over social media. Their
communications ended when Gee called Crutchfield to tell her that he was coming
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to her home to kill her. At about 5:00 p.m. that day, Gee came to Crutchfield’s home,
which she shared with her two children and 70-year-old grandmother, Janice Bauer.
As Crutchfield dialed 911, Gee smashed through the back patio door with an umbrella
stand. As soon as Gee broke in the door, the two women took the children upstairs
with them to hide in a closet. At the time, B. C. was a medically fragile four-month-
old and A. C. was 18 months old.
After searching the house, Gee found the two women and the children hiding
in the closet and physically assaulted both women while they used their bodies to
protect the children. Gee beat Crutchfield with his fists. When the cellphone that
Bauer was holding began to ring, Gee grabbed it and threw it across the room. He
then assaulted her by repeatedly punching her in the face so that Bauer required facial
reconstructive surgery. Gee broke Bauer’s jaw in two places, her palate, both of her
cheekbones, and her nose.
Hoping to spare Bauer from further injury, Crutchfield told Gee that she would
go with him if he would leave the kids with her grandmother. Gee took Crutchfield
and the toddler, A. C., downstairs. Gee then took a taser from Crutchfield and tasered
her twice, the second time rendering her unconscious. Gee then went upstairs and
attempted to attack Bauer, who was holding the infant, with a small bedside table.
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Bauer blocked it with her body. During these assaults, Gee also tased Bauer and the
infant, B. C., rendering him unconscious to the point that officers thought that he was
dead when they arrived at the scene.
When Crutchfield regained consciousness, Gee was standing over her and
punching her. Gee then stabbed Crutchfield in the arm and leg with a butterfly knife
that belonged to her and was attached to her car keys. Crutchfield testified that she
believed that she had left her keys downstairs, and that at the time, the butterfly knife
was attached to the keyring. Crutchfield screamed when it appeared that Gee was
attempting to stab her daughter, A. C., but he stabbed her in the leg instead as she
moved to protect the child. Police officers then kicked the door in. Crutchfield and
A. C. were taken outside while officers cleared the first level of the house. As they
were about to go upstairs, Bauer came downstairs with the unconscious infant, B. C.,
in her arms. As a result of Gee’s assaults, Crutchfield sustained a broken nose and a
fractured jaw, and lost multiple teeth.
After the victims were evacuated, the police withdrew from the home and a
five-hour standoff occurred before Gee surrendered. Officers then searched the house
and discovered the butterfly knife on a counter of the downstairs bathroom. After
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being Mirandized, Gee stated that he could not remember anything that happened and
that he suffered from blackouts.
On December 13, 2016, Tonya Bauer, Crutchfield’s aunt, found Crutchfield’s
car keys, two cell phones belonging to Crutchfield, a cell phone belonging to Bauer,
three of Bauer’s credit cards, Bauer’s smart watch and Crutchfield’s Department of
Corrections identification card hidden underneath a hope chest in the garage. The
police saw what they believed was blood on the back of a car in the garage when they
arrived to collect the evidence.
Bauer testified that she generally kept her car keys and credit cards in her purse in her
bedroom and her smart watch in a dresser drawer. Both Crutchfield and Bauer denied
that they placed their items in the garage. Neither Crutchfield nor Bauer saw Gee take
the items. Gee did not testify at trial.
1. In several related enumerations, Gee argues that the trial court erred in
denying his motion for a directed verdict and motion for new trial on the grounds that
the evidence was insufficient to support his conviction for armed robbery (Count 8).
Gee argues that there was no evidence to show that Gee used the knife to effectuate
the taking of the car keys. We agree.
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Gee was charged with armed robbery in Count 8 of the indictment: “with the
intent to commit a theft, did unlawfully take car keys, property of Jessica Crutchfield,
from the immediate presence of Jessica Crutchfield, by the use of a knife, an
offensive weapon.” Armed robbery occurs when the defendant, “with intent to
commit theft, . . . 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). “The State therefore was required
to prove beyond a reasonable doubt that [Gee’s] use of the [knife] occurred prior to
or contemporaneously with the taking” of the keys. (Citation and punctuation
omitted.) Harrington v. State, 300 Ga. 574, 577 (2) (a) (797 SE2d 107) (2017). See
also Attaway v. State, 332 Ga. App. 375, 377 (1) (a) (772 SE2d 821) (2015) (evidence
insufficient to support an armed robbery conviction because defendant had already
taken possession of laptop before brandishing weapon to effectuate his escape).
The evidence at trial showed that Crutchfield testified that she believed that she
had left her knife, still attached to her car keys, downstairs before Gee entered the
home. The evidence showed that Gee entered the home and rummaged around
downstairs before coming upstairs to find Crutchfield and Bauer hiding in a closet.
After assaulting them upstairs, Gee then took Crutchfield back downstairs where he
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then rendered her unconscious by use of a taser. When Crutchfield recovered
consciousness, Gee was standing over her and punching her. He then stabbed her in
the arm and leg with a butterfly knife that had been attached to her key ring. The
record does not contain testimony that Crutchfield saw Gee take the keys or the knife.
“Because it is at least equally likely that [Gee] took the [knife and keys] before rather
than after encountering the victim, the evidence was insufficient to support beyond
a reasonable doubt that” Gee used a knife to take the keys from Crutchfield.
Harrington, 300 Ga. at 577-578 (2) (a) (evidence was insufficient to support armed
robbery conviction when it was equally possible to infer that defendant took
possession of a cell phone before the victim interrupted the burglary). Accord Fox v.
State, 289 Ga. 34, 36-37 (1) (b) (709 SE2d 202) (2011) (circumstantial evidence was
insufficient to support to support an armed robbery conviction when it could support
two equally reasonable hypothesis – that the defendant took the items before
confronting victim with a weapon or after confronting victim). Accordingly, we
reverse Gee’s armed robbery conviction under Count 8 and remand this case for
resentencing.
2. In several related enumerations, Gee argues that the trial court erred in
denying his motion for a directed verdict and motion for new trial on the grounds that
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the evidence was insufficient to support his conviction for armed robbery (Count 9).
We disagree.
Count 9 of the indictment charged Gee with armed robbery as follows: “with
the intent to commit a theft, [Gee] did unlawfully take credit cards, a smart watch, and
two (2) cell phones, property of Janice Bauer, from the immediate presence of Janice
Bauer, by the use of a knife, an offensive weapon[.]”
As noted above, “[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[.]” OCGA § 16-8-41
(a). However, “Georgia courts have interpreted the ‘immediate presence’ standard
broadly; our case law reflects that, generally speaking, the victim’s physical presence
at the theft is not required for armed robbery if what was taken was under his control
or his responsibility and if he was not too far distant.” (Citation and punctuation
omitted.) Benton v. State, 305 Ga. 242, 244-245 (1) (b) (824 SE2d 322) (2019).
Further, Gee “cannot be absolved of armed robbery” simply because his actions
caused Bauer to flee from the residence during the course of the theft. Id. In Maddox
v. State, 174 Ga. App. 728 (330 SE2d 911) (1985), this Court upheld an armed
robbery conviction when a storekeeper was forced to flee his store as a result of
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defendant’s armed presence there even though the cash from the store was not
actually taken from the storekeeper himself or his immediate presence. Id. at 730 (1).
See also Booker v. State, 242 Ga. App. 80, 82 (1) (a) (528 SE2d 849) (2000) (money
found in victim’s personal possessions in the apartment from which he leaped to
escape from defendant was within his “immediate presence” within the meaning of
OCGA § 16-8-41 (a)); Merritt v. State, 353 Ga. App. 374, 376 (1) (837 SE2d 521)
(2020) (“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. A victim’s flight . . . does not undermine an armed robbery
conviction”) (citations and punctuation omitted).
Here, the evidence showed that police officers were able to remove the victims
from the house soon after Gee attacked Crutchfield with the butterfly knife. A five-
hour standoff then occurred where Gee remained inside the home before he
surrendered. Several days later, Bauer’s credit cards, cell phones, smart watch and
identification card were found hidden underneath furniture in the garage and
investigating officers noticed blood stains nearby. Bauer testified that these items had
been in her bedroom prior to Gee’s attack. Here, the facts presented by the evidence
do not provide a reasonable hypothesis that Gee was able to obtain the stolen items
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prior to brandishing the weapon, and there is no contention that these thefts occurred
before the use of the force. “Where, as here, the evidence is sufficient to authorize a
finding that the theft was completed after force was employed against the victim, a
conviction for armed robbery is authorized.” (Citation and punctuation omitted.)
Benton, 305 Ga. at 245 (1) (b). See Merritt, 353 Ga. App. at 376 (1) (To support an
armed robbery, “the State must prove beyond a reasonable doubt that the use of the
weapon occurred prior to or contemporaneously with the taking”) (citation and
punctuation omitted).
3. As a result of our holdings in Division 1 and 2, Gee’s remaining
enumerations of error are moot.
Judgment affirmed in part and reversed in part. Dillard, P. J., and Mercier, J.,
concur.
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