Locklin v. State , 228 Ga. App. 696 ( 1997 )

492 S.E.2d 712 (1997) 228 Ga. App. 696

LOCKLIN
v.
The STATE.

No. A97A1798.

Court of Appeals of Georgia.

October 2, 1997.

John R. Mayer, for appellant.

Paul L. Howard, Jr., District Attorney, Juliette O.W. Scales, Assistant District Attorney, for appellee.

POPE, Presiding Judge.

A Fulton County jury convicted Vernico Locklin of robbery by force. We find the evidence sufficient but must reverse the conviction because Locklin was not present during a recharge the trial court gave in response to the jury's question.

1. We apply the principles set forth in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), to Locklin's challenges to the sufficiency of the evidence. Construed in favor of the verdict, the evidence showed Locklin, a cook at a fast-food restaurant, told the cashier he planned to take money from the cash register. The cashier, a small woman, was in charge of the register and was personally responsible for any money missing from it. When she expressed surprise at Locklin's plans, the much larger Locklin grabbed her arm, moved her out of the way, took money from the register, and left the store. Locklin admitted taking the money from the register but denied using force against the cashier.

(a) Locklin first claims the State failed to prove the allegations of the indictment that he forcibly took money "from the person and immediate presence" of the cashier. This claim has no merit. OCGA § 16-8-40(a)(1) allows the State to prove robbery by force upon a showing that the defendant, "with intent to commit theft, ... [took] property of another from the person or the immediate presence of another ... [b]y use of force." (Emphasis supplied.) When an indictment alleges that a crime was committed in more than one of the separate ways specified by the statute, the State need only prove the crime was committed in one of those separate ways. Stander v. State, 226 Ga. App. 495, 497(1), 486 S.E.2d 712 (1997); see also Hathcock v. State, 214 Ga.App. 188, 190(4), 447 S.E.2d 104 (1994). The evidence presented allowed the jury to find, beyond a reasonable doubt, that Locklin took the cash from the register in the cashier's immediate presence.

(b) Locklin also contends the evidence does not support a finding that he used force against the cashier. In support of his argument, he cites the cashier's testimony that she did not resist him or try to prevent him from taking the money. But "[i]t is not necessary to show a suggestion of force or violence on the part of a person robbed.... The force which differentiates robbery from [theft by taking] is the force employed by the criminal...." Merritt v. State, 139 Ga.App. 171, 172(1), 228 S.E.2d 149 (1976). Here, the jury could conclude beyond a reasonable doubt that Locklin used sufficient physical force to move the victim out of his way and to allow him to enter the cash register. The State's evidence was sufficient to support the verdict. See Lockett v. State, 147 Ga.App. 102(1), 248 S.E.2d 177 (1978) (defendant forcibly took money from victim's hand and pushed her away from cash register, from which he took additional money); Merritt, 139 Ga.App. at 172(2), 228 S.E.2d 149 (defendant exerted enough force to stop pedestrian victim and spin him around).

2. Locklin seeks a new trial because he was not present when the trial court recharged the jury in response to a question regarding the robbery statute's "force" requirement. Under the circumstances of this case, we are constrained to agree with Locklin's argument. "The rule is well established in this state, that the defendant on trial must be present when the court takes any action materially affecting his case." (Citation and punctuation omitted.) Collins v. State, 191 Ga.App. 289, 290(2), 381 S.E.2d 430 (1989). This Court has held that recharges and colloquies between the court and jury are such "critical" portions of the trial. Id. at 290-291, 381 S.E.2d 430 (recharge); Seay v. State, 111 Ga.App. 22, 25(3), 140 S.E.2d 283 (1965) (colloquy). Here, the recharge contained substantive additional instructions not included in the court's original charge. Compare Scott v. State, 219 Ga.App. 798, 799(2), 466 S.E.2d 678 (1996), finding no error where the court responded to jurors' questions in defendant's absence but gave jurors no substantive information. The record shows Locklin was not present during the recharge. Compare Hollis v. State, 201 Ga.App. 224(1), 411 S.E.2d 48 (1991), in which the record did not establish the defendant's absence. Although Locklin's counsel was present during the recharge and did not object to his client's absence until after the jury rendered its verdict, "[a] defendant's right to be present during all phases of the trial is guaranteed by our [state] constitution and counsel's ability to waive it is limited.... [S]uch right can be waived where done so by his attorney in the defendant's presence, by the defendant's express authority, or by subsequent acquiescence of the defendant." (Citation and punctuation omitted.) Stewart v. State, 210 Ga. App. 474(1), 436 S.E.2d 679 (1993). See Ga. Const.1983, Art. I, § I, Par. XII. Nothing in the record shows Locklin acquiesced in the waiver or gave his attorney permission to waive his absence. Compare Parker v. State, 220 Ga.App. 303, 311-312(12), 469 S.E.2d 410 (1996), in which the record established that counsel told the defendant of proceedings which occurred in his absence, and the defendant's failure to object at that time allowed this Court to find the defendant acquiesced in the waiver. Therefore, despite the attorney's failure to raise this issue until after the jury returned its verdict, we must reverse the conviction. See Goodroe v. State, 224 Ga.App. 378, 380-381(1), 480 S.E.2d 378 (1997); Seay, 111 Ga.App. at 25, 140 S.E.2d 283.

3. Our disposition of this case makes it unnecessary to review Locklin's remaining enumerations.

Judgment reversed.

JOHNSON and BLACKBURN, JJ., concur.