A Gwinnett County jury found Byron Gonzalez guilty beyond a reasonable doubt of armed robbery by use of a device having the appearance of an offensive weapon, OCGA § 16-8-41 a. He appeals from the denial of his motion for new trial, contending that the trial court gave a jury charge that was not supported by the evidence, resulting in plain error. He also complains that he received ineffective assistance of counsel. For the following reasons, we reverse Gonzalez’s conviction and remand this case to the trial court for a new trial. Viewed in the light most favorable to the jury’s verdict,1 the evidence at trial showed that, in the early morning hours of February 2, 2008, a man “the victim” was walking through a subdivision in Lawrenceville when another man “the assailant” approached him. The assailant blocked the victim’s path and told the victim that he was looking for an apartment because he was going to kill someone. When the victim said that he was not from the area, the assailant grabbed him by the back of his belt and told him to start walking. As the assailant walked behind the victim, he told the victim that he had a gun and that he was going to kill him if the victim kept talking. The assailant took the victim behind a building where it was very dark, let go of the victim’s belt, and told the victim that this was a robbery and that he wanted the victim’s wallet. The victim gave the assailant his wallet, and the assailant took cash from it before throwing it to the ground. It is undisputed that, throughout the encounter, the assailant kept his right hand behind his back —the victim never saw the assailant’s right hand or any weapon.
The victim picked up his wallet and started running toward a nearby gas station while calling 911 on his cell phone.2 The victim reported that the assailant had stolen three $100 bills from him and was wearing a white jacket with a hood covering his face. The victim flagged down a taxi and, while talking on his phone and riding through the area, the victim saw the assailant walking down a street and alerted the taxi driver and the police. The taxi driver told the police that the man the victim had identified as the assailant had a beard and was wearing a hooded sweat shirt and sweat pants. The police apprehended Gonzalez a short time later. Gonzalez was wearing a black coat and dark colored jeans. The police called the victim and told him to come and see if Gonzalez was the man who had robbed him; the victim then identified Gonzalez as the assailant. During a search incident to arrest, the police found two $100 bills in Gonzalez’s possession. Police officers searched the area where the victim had been robbed but did not find a white jacket or a gun.
