Fox v. State

The defendant's conviction for armed robbery could not stand, since the evidence supported two equally reasonable hypotheses regarding whether the defendant used a weapon prior to or contemporaneously with taking the victims' property as alleged in the indictment.

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Michael Fox was convicted by a Gwinnett County jury of malice murder, felony murder, and armed robbery stemming from the shooting death of Jerry Ann Elliot.1 On appeal, Fox contends, among other things, that the evidence is insufficient to support his convictions. We conclude that the evidence is sufficient to support his conviction for malice murder but insufficient to support his armed robbery conviction. We see no merit in Fox’s other contentions, and we therefore affirm in part and reverse in part. 1. Viewed in the light most favorable to the verdict, the evidence at trial showed that the victim and her husband, James Elliott, sold pine straw for a living, required cash payments from most customers, and usually kept $6,000 to $15,000 in cash in a kitchen drawer at their home. Fox knew about the pine straw business and how the money was handled, and Mr. Elliott had seen Fox with a 9mm handgun.

On September 27, 2007, the day before the shooting, Mr. Elliott went to check on some property he owned in Toccoa and stayed the night there. He returned home about 5:00 p.m. on September 28. When he pulled into his garage, he noticed that a utility closet door had been “busted open,” and when he entered his house, he found his wife dead on the den floor, which adjoins the kitchen. The money for the pine straw business was missing from the kitchen drawer, as was Ms. Elliott’s wallet and a cup containing gold dollar coins. Ms. Elliott died from three gunshot wounds to the head, all fired from the same 9mm handgun.

Fox v. State

The defendant's conviction for armed robbery could not stand, since the evidence supported two equally reasonable hypotheses regarding whether the defendant used a weapon prior to or contemporaneously with taking the victims' property as alleged in the indictment.

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