State v. Dixon

The state was not required to stipulate to venue, such that the defendant would then be entitled to a jury instruction on a lesser included offense of theft by taking in Dekalb county, when the alleged armed robbery took place in Clayton County.

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A DeKalb County jury convicted Andrew Dixon, Jr. on two counts of armed robbery for stealing a truck and personal belongings from a man at a DeKalb County car wash. Dixon admitted at trial that he stole the truck but claimed he took it from a gas station in Clayton County. He requested that the trial court instruct the jury on the lesser included offense of theft by taking. The trial court refused, noting that a DeKalb County jury could not convict him of a theft by taking that took place entirely in Clayton County. The Court of Appeals reversed. See Dixon v. State , 296 Ga. App. 716 675 SE2d 500 2009. We granted the State’s petition for certiorari, and we now hold that the trial court properly declined to instruct the jury on a lesser included offense when there was no evidence the included crime was committed in the county in which the defendant was being tried. We therefore reverse the Court of Appeals’ decision to the contrary. 1. At 12:30 a.m. on July 28, 2002, John Bean was detailing his girlfriend’s truck at a DeKalb County car wash. Dixon approached and asked Bean if he had change for a five-dollar bill. Bean answered no, and Dixon walked away. Dixon returned a few minutes later armed with a pistol and demanded the truck. Bean said the keys were in the ignition. Dixon ordered Bean to empty his pockets. Dixon took Bean’s wallet and pocketknife and a pack of Newport cigarettes, got in the truck, and fled.

The truck was equipped with OnStar, which has GPS tracking capability. Consequently, less than two hours later, the police found Dixon seated in the driver’s seat of the truck at an apartment complex in Clayton County. Bean’s cell phone charger was draped around Dixon’s neck, and he had an open pack of Newport cigarettes. Bean’s wallet and pocketknife were not recovered. Bean identified Dixon as the armed robber in a photo lineup the following day and later in person at the preliminary hearing and at trial.

State v. Dixon

The state was not required to stipulate to venue, such that the defendant would then be entitled to a jury instruction on a lesser included offense of theft by taking in Dekalb county, when the alleged armed robbery took place in Clayton County.

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