Following this week’s state Supreme Court ruling, the definition of “armed robbery” in Georgia has been changed.
Now, according to the state’s high court, a person can be convicted of armed robbery without ever taking anything.
The case stems from an incident in March 2009 when defendant Francisco Gutierrez, then 16, and four others entered a Chinese restaurant in Winder, Ga. while armed with an assortment of weapons, including a handgun, an aluminum baseball bat and a hammer. An undercover officer witnessed the incident and fearing for the safety of the owner and a small child inside, fired at the intruders. All five suspects fled but were apprehended shortly thereafter. The owner of the business told police that no money had been taken from the cash register during the event.
Justices on the state’s high court were split on the ruling of Gutierrez v. The State of Georgia by a 4-3 margin. Presiding Justice George Carley, writing for the majority, noted that while the defendant, who at the time of the crime was a juvenile, did not physically come into contact with stolen money, his presence to “the dominion of the property” was sufficient enough to constitute asportation (an act of moving an object) and was therefore an instance of armed robbery.
Gutierrez was subsequently indicted on armed robbery charges, resulting in a trial court denying the defendant’s motion to transfer the case to a juvenile court. The Georgia Court of Appeals then ruled that although no “taking” of money had occurred, the business owner ceded “control of the money to the perpetrators” by opening the cash register, constituting an armed robbery in the process.
“In this case, the money was removed ‘from its original position or place where the [victims] wanted it to be’ and instead was placed and uncovered in front of the armed intruder in the place where he wanted it to be,” Justice Carley wrote.
“In this way,” the majority opinion continued, “the money came within the dominion and control of [Gutierrez] and his accomplice[s], and the asportation, or taking was complete.”
Joining Justice Carley in the majority were Justices Hugh Thompson, P. Harris Hines and David Nahmias. Justices Robert Benham and Harold Melton both issued dissenting opinions, and were joined by Chief Justice of the Supreme Court of Georgia Carol Hunstein.
The decision replaces an almost 40-year-old definition of “armed robbery” as established by the 1974 James vs. The State of Georgia ruling.