Wright v. State, 492 S.E.2d 680 (Ga. Ct. App. 1997). · Go Syfert
Wright v. State, 492 S.E.2d 680 (Ga. Ct. App. 1997). Cases Citing This Book View Copy Cite
30 citation events (24 in the last 25 years) across 3 distinct courts.
Strongest positive: Jeffrey S. Leeper v. Safebuilt Georgia, Inc. (gactapp, 2019-11-01)
Treatment trajectory · 1998 → 2026 · click a year to view as-of
1998 2012 2026
Top citers, strongest first. 8 distinct citers.
discussed Cited as authority (rule) Jeffrey S. Leeper v. Safebuilt Georgia, Inc.
Ga. Ct. App. · 2019 · confidence medium
Only the holdings of judicial decisions are law.” (citation omitted)); accord Zepp v. Brannen, 283 Ga. 395, 397 ( 658 SE2d 567 ) (2008) (declining to give force to dicta in a prior decision “because it was not necessary to resolve the issue before the Court[.]”); Wright v. State, 228 Ga. App. 779, 780 (1) ( 492 SE2d 680 ) (1997) (statements in prior decisions purporting to construe statutes were dicta because they were not necessary to the prior decisions).
discussed Cited as authority (rule) Boccia v. the State
Ga. Ct. App. · 2016 · confidence medium
We note that “hands and feet do not constitute offensive weapons for purposes of the armed robbery statute.” Wright v. State, 228 Ga. App. 779, 780 (1) ( 492 SE2d 680 ) (1997). 6 Milner v. State, 297 Ga. App. 869 ( 678 SE2d 563 ) (2009) is distinguishable and does not require a different result.
cited Cited as authority (rule) Taylor v. State
Ga. Ct. App. · 2010 · confidence medium
Wright v. State, 228 Ga. App. 779, 780 (1) ( 492 SE2d 680 ) (1997) (hands and feet may be deadly weapons under aggravated assault statute but not under armed robbery statute).
discussed Cited as authority (rule) LIZANA v. State
Ga. · 2010 · confidence medium
“The purpose of [that] statute is to treat as a felony those assaults likely to result or actually resulting in serious bodily injury, whether through the use of an external weapon or the defendant’s hands and feet. [Cits.]” Wright v. State, 228 Ga. App. 779, 780 (1) ( 492 SE2d 680 ) (1997).
discussed Cited as authority (rule) Fuller v. State
Ga. Ct. App. · 2009 · confidence medium
Barnes and Phipps, JJ., concur. 1 Johnson v. State, 279 Ga. App. 182, 183 ( 630 SE2d 778 ) (2006). 2 Odett v. State, 273 Ga. 353, 353-354 (1) ( 541 SE2d 29 ) (2001). 3 Thomas v. State, 273 Ga. App. 357, 358 (1) ( 615 SE2d 196 ) (2005). 4 See Grant v. State, 289 Ga. App. 230, 234 (3) (b) ( 656 SE2d 873 ) (2008). 5 Hill v. State, 279 Ga. App. 666, 667 (1) ( 632 SE2d 443 ) (2006). 6 See Houston v. State, 270 Ga. App. 456, 458 (1) ( 606 SE2d 883 ) (2004). 7 See Guinn v. State, 224 Ga. App. 881, 882 (1) (a) ( 482 SE2d 480 ) (1997) (bent of mind and course of conduct are both proper purposes for int…
discussed Cited as authority (rule) State v. Duff
N.C. Ct. App. · 2005 · confidence medium
Although the issue was raised in State v. Gibbons, 303 N.C. 484, 488 , 279 S.E.2d 574, 577 (1981), our Supreme Court did not rule on the issue, concluding that because “[t]he trial judge in his charge related the facts and law concerning the use of fists as a deadly weapon only to the crime of assault with a deadly weapon[,]” the Court did not need to consider the State’s “novel” argument that fists could be considered dangerous weapons. “ ‘The layman’s phrase “armed robbery” is not at all an inaccurate description of the offense.’ ” Wright v. State, 228 Ga. App. 779, 7…
cited Cited "see" Maskivish v. State
Ga. Ct. App. · 2005 · signal: see · confidence high
See Wright v. State, supra, 228 Ga. App. at 779 .
examined Cited "see" Haugland v. State (5×)
Ga. Ct. App. · 2002 · signal: see · confidence high
Andrews, P. J., and Eldridge, J., concur. 1 OCGA § 16-5-44.1 (b). 2 See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Kelley v. State, 233 Ga. App. 244 ( 503 SE2d 881 ) (1998). 3 OCGA § 16-8-2. 4 Patterson v. State, 258 Ga. 592, 594 (1) ( 372 SE2d 809 ) (1988); see Stewart v. State, 163 Ga. App. 735, 737 (1) ( 295 SE2d 112 ) (1982). 5 See Shaheed v. State, 245 Ga. App. 754, 755 (1) ( 538 SE2d 823 ) (2000) (“Flight is circumstantial evidence of consciousness of guilt. . . . [Cit.]”) (punctuation omitted). 6 See Foster v. State, 273 Ga. 34, 35 (1) ( 537 SE2d 659 ) (2…
Wright
v.
the State
A97A1709.
Court of Appeals of Georgia.
Sep 19, 1997.
492 S.E.2d 680
Harold D. McLendon, for appellant., Ralph M. Walke, District Attorney, Wesley C. Ross, Assistant District Attorney, for appellee.
Blackburn, Pope, Johnson.
Cited by 13 opinions  |  Published
Blackburn, Judge.

Jimmie Lee Wright appeals his convictions of armed robbery and aggravated assault, contesting the sufficiency of the evidence. He also contends that a photographic lineup was impermissibly suggestive and that the court erred in failing to charge on a lesser included offense. For the reasons discussed below, we reverse the conviction for armed robbery but affirm the conviction for aggravated assault.

1. Wright contends that the court erred in denying his motion for directed verdict of acquittal on the armed robbery charge. “The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citations, punctuation and emphasis omitted.) Noble v. State, 225 Ga. App. 470 (484 SE2d 78) (1997).

Viewed in the light most favorable to the verdict, the evidence showed that Wright entered a convenience store, jumped over the counter, and attacked the manager, Rose Marie Lane. He grabbed her by the hair, slammed her head on the floor, hit her in the face, and kicked her in the head. Wright took a roll of quarters from the ledge of a safe mounted in the counter.

“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). The undisputed evidence shows that Wright did not possess a weapon during the robbery. However, the indictment states, and the State contends, that Wright’s hands and fists constituted an offensive weapon in the manner used.

The State does not cite, and we have not found, any authority for the proposition that hands and feet may be considered offensive weapons for purposes of OCGA § 16r8-41. We have held that hands and feet may be considered deadly weapons for purposes of OCGA § 16-5-21, the aggravated assault statute. See Wright v. State, 211 Ga. App. 474, 475 (1) (440 SE2d 27) (1993); Haygood v. State, 154 Ga. App. 633, 635 (4) (269 SE2d 480) (1980); Kirby v. State, 145 Ga. App.[*780] 813, 815 (4) (245 SE2d 43) (1978). However, the language of the aggravated assault statute is not the same as that of the armed robbery statute. OCGA § 16-5-21 (a) (2) provides that a person commits aggravated assault when he assaults “[w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” Under this language, a person may properly be found to have committed aggravated assault where hands and feet are used in a manner which is likely to or actually does produce serious bodily injury.

The armed robbery statute, by contrast, expressly requires the use of an “offensive weapon.” Although we have held that this term includes “instrumentalities not normally considered to be offensive weapons per se which may be found by a jury to be likely to produce death or great bodily injury depending on the manner and means of their use,” we have never construed the statute to authorize a conviction for armed robbery where no weapon or instrument was used other than the defendant’s own hands and feet. (Emphasis supplied.) Meminger v. State, 160 Ga. App. 509 (2) (287 SE2d 296) (1981) (liquor bottle may constitute offensive weapon), rev’d on other grounds, 249 Ga. 561 (292 SE2d 681) (1982); see also Vicks v. State, 189 Ga. App. 835 (377 SE2d 863) (1989) (flare may constitute offensive weapon).

Although statements in Meminger and Vicks imply that anything which constitutes a deadly weapon under the aggravated assault statute, including fists, may also constitute an offensive weapon under the armed robbery statute, such statements are dicta and not necessary to the decisions. We take this occasion to clarify that a defendant’s hands and feet do not constitute offensive weapons for purposes of the armed robbery statute. This ruling comports with common sense and the clear intent of the statute, since a defendant who does not carry or imply that he is carrying some form of external weapon or instrument cannot in any realistic sense be said to be “armed.” “The layman’s phrase ‘armed robbery’ is not at all an inaccurate description of the offense.” People v. Dozie, 36 Cal. Rptr. 728, 730 (3rd Dist. 1964).

Our decision is not incompatible with our holdings in aggravated assault cases, because the purposes of the two statutes are different. The purpose of the aggravated assault statute is to treat as a felony those assaults likely to result or actually resulting in serious bodily injury, whether through the use of an external weapon or the defendant’s hands and feet. Compare OCGA § 16-5-20 (misdemeanor simple assault) with OCGA § 16-5-21 (felony aggravated assault). The purpose of the armed robbery statute, by contrast, is to punish more severely those defendants who use a weapon in the commission of a robbery, which would constitute a felony even in the absence of such[*781] a weapon. Compare OCGA § 16-8-40 (felony robbery) with OCGA § 16-8-41 (felony armed robbery). Thus, the focus in an aggravated assault case is the likelihood or actual presence of serious bodily harm, while the focus in an armed robbery case is on the presence of a weapon.

Accordingly, as there was no evidence of the use of an offensive weapon in this case, Wright’s conviction for armed robbery must be reversed.

2. Wright contends that his identification as the assailant was the result of an impermissibly suggestive photographic lineup, and that the court thus erred in denying his motion in limine to exclude identification testimony. “Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial, likelihood of irreparable misidentification.” Tiller v. State, 222 Ga. App. 840, 841 (476 SE2d 591) (1996).

The record reflects that Dean McManus of the Georgia Bureau of Investigation showed the victim and other witnesses Polaroid photographs of six black males. Although the photographs are not included in the record, McManus testified that all of the subjects appeared to be approximately the same age, with medium complexion, similar hair, and no facial hair. McManus did not inform the witnesses that Wright was in the photographic array. Each of the witnesses picked Wright from the array.

Under these circumstances, the identification procedure was not impermissibly suggestive. Although Wright contends that some of the subjects in the array were not the same size as him, this does not render the array impermissibly suggestive. See Green v. State, 219 Ga. App. 878, 880-881 (4) (467 SE2d 203) (1996). And while he contends that he was the only individual in the array wearing a t-shirt, the record reflects that it was a different color t-shirt than he was wearing during the attack. Cf. Hendry v. State, 177 Ga. App. 439, 440 (1) (339 SE2d 650) (1986) (photographic lineup not impermissibly suggestive even though suspects wearing same clothing as during robbery). “Since the pre-indictment lineup procedures were not impermissibly suggestive, so as to lead the witnesses to an £all but inevitable’ identification of defendant,” this enumeration is without merit. (Punctuation and emphasis omitted.) Brewer v. State, 219 Ga. App. 16, 20 (6) (463 SE2d 906) (1995).

3. Given our reversal of Wright’s armed robbery conviction, we need not address his contention that the court erred in failing to charge on the lesser included offense of robbery by intimidation.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Johnson, J., concur. [*782] Decided September 19, 1997 Reconsideration denied October 10, 1997 Harold D. McLendon, for appellant. Ralph M. Walke, District Attorney, Wesley C. Ross, Assistant District Attorney, for appellee.