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Dixon v. State

The trial court erred in refusing to charge the jury on the lesser offense of theft by taking, since the defendant offered to waive proof of venue as part of his request for the charge and his sole defense was that he drove off in an unoccupied truck, which was left with its engine running in a gas station parking lot.

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A jury found Andrew Dixon, Jr. guilty of two counts of armed robbery.1 Dixon appeals, claiming that, among other things, the evidence was insufficient to sustain his convictions and that the trial court erred in failing to charge the jury as to the lesser included offense of theft by taking. Because we agree that Dixon was entitled to a charge on theft by taking and find that the trial court’s error in failing to properly charge the jury was not harmless, we are constrained to reverse Dixon’s conviction. On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.2 We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt of the charged offenses.3

So viewed, the record shows that at approximately 12:30 a.m. on July 28, 2002, the victim was at a car wash in DeKalb County when he was approached by a man he later identified as Dixon. The man asked the victim if he had change for a five dollar bill, and the victim told him he did not. A few minutes later, the man approached the victim again, pointed a pistol at him, and demanded his truck. After the victim replied that the keys were in the ignition, the man told an accomplice to start the truck and demanded that the victim empty his pockets. The victim pulled out his wallet, a pocketknife, and an unopened pack of Newport cigarettes, and he threw each of those items on the ground. The man picked up the items, got into the victim’s truck, and fled with his accomplice.

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