A jury found Ricky Heard guilty of two counts of felony murder, two counts of armed robbery, three counts of aggravated assault, two counts of theft by receiving stolen property, criminal use of an article with an altered identification mark, possession of a firearm during the commission of a crime, and hijacking a motor vehicle. Treating one of the felony murder counts as surplusage, the trial court sentenced Heard to life imprisonment for the other felony murder count and for one of the armed robbery counts, a consecutive 20-year term for hijacking, ten-year terms each for two of the aggravated assault counts and for the two counts of theft by receiving, and five-year terms for the weapons offense and criminal use of an article. The remaining counts were merged by the trial court. Heard appeals after the denial of a motion for new trial.1 1. Construed most strongly in support of the verdicts, the evidence shows that, on May 22, 2005, Heard and three other young men entered a tennis center where Stephanie Bishop was working. The young men left the building at Ms. Bishop’s request, but then Heard and another member of the group returned. They threw Ms. Bishop to the ground, punched her, and threatened to shoot her. The assailants took money, Ms. Bishop’s car keys, and other items, and then fled from the scene in her car. Approximately three weeks later, on June 13, 2005, Heard obtained a stolen handgun and was using a stolen vehicle. He and some of the same accomplices approached Alberto Ramirez and Juan Navarro at an apartment complex. Heard brandished a gun and demanded money. He and his accomplices took Ramirez’s wallet, but it was empty, and they started to leave. Ramirez got a bat from his apartment and ran after Heard, who then shot and killed Ramirez. The stolen gun, with the serial number partially scratched off, was found in the stolen vehicle.
Heard specifically contends that the trial court erred in failing to direct a verdict of acquittal as to the count of hijacking Ms. Bishop’s motor vehicle. The offense of hijacking a motor vehicle is committed when a “person while in possession of a firearm or weapon obtains a motor vehicle from the person or presence of another by force and violence or intimidation or attempts or conspires to do so.” OCGA § 16-5-44.1 b. Heard argues that the State presented no evidence that the vehicle was taken from the person or presence of Ms. Bishop, as she testified that, after her car keys were taken, she locked herself in a closet some 200 yards away from her car’s location in a parking lot. However, “the statute does not require that the person be in the motor vehicle.” Stephens v. State , 245 Ga. App. 823, 825 2 538 SE2d 882 2000. Even the more restrictive language in the armed robbery statute, ” ‘immediate presence,” has been held to extend “ fairly far,” and robbery convictions are upheld even out of the physical presence of the victim.’ Cit.” Johnson v. State , 246 Ga. App. 109, 112 3 539 SE2d 605 2000. ” ‘Further, the concept of immediate presence is broadly construed if the object taken was under the victim’s control or responsibility and the victim is not too distant.’ Cit.” Kollie v. State , 301 Ga. App. 534, 541 4 687 SE2d 869 2009. Although Ms. Bishop’s vehicle was not immediately outside the building and therefore perhaps not in her “ immediate” presence, it was at the tennis center in a parking lot. “The jury could have concluded that Heard took the keys to the vehicle which were under Ms. Bishop’s control . . . .” Kollie v. State , supra. The evidence shows that her car keys, which are integral to the car’s operation, were taken directly from her person upon threat of injury. Given these circumstances, the jury was authorized to find that Heard took the vehicle from Ms. Bishop’s “person or presence” for purposes of the offense of hijacking a motor vehicle. Johnson v. State , supra where victim was in store and his car was parked just outside. See also Kollie v. State , supra where victim was in his home and the vehicle was in the attached garage.
