2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 5 - Crimes Against the Person
Article 3 - Kidnapping, False Imprisonment, and Related Offenses
§ 16-5-44.1. Hijacking a Motor Vehicle

1. As used in this Code section:
   1. "Firearm" means any handgun, rifle, shotgun, or similar device or weapon which will or can be converted to expel a projectile by the action of an explosive or electrical charge and includes stun guns and tasers as defined by subsection (a) of Code Section 16-11-106, as amended, andany replica, article, or device having the appearance of a firearm.
   2. "Motor vehicle" means any vehicle which is self-propelled.
   3. "Weapon" means an object, device, or instrument which when used against a person is likely to or actually does result in serious bodily injury or death or any replica, article, or device having the appearance of such a weapon including, but not limited to, any object defined as a hazardous object by Code Section 20-2-751 or as a dangerous weapon by Code Section 16-11-121.
2. 1. A person commits the offense of hijacking a motor vehicle in the first degree when such person while in possession of a firearm or weapon obtains a motor vehicle from an individual or the presence of another individual by force and violence or intimidation or attempts or conspires to do so.
   2. A person commits the offense of hijacking a motor vehicle in the second degree when such person obtains a motor vehicle from an individual without his or her consent or from the immediate presence of another individual without his or her consent or attempts or conspires to do so.
3. 1. A person convicted of the offense of hijacking a motor vehicle in the first degree shall be punished by imprisonment for not less than ten nor more than 20 years and a fine of not less than $10,000.00 nor more than $100,000.00, provided that any person who has previously committed an offense under the laws of the United States or of Georgia or of any of the several states or of any foreign nation recognized by the United States which if committed in Georgia would have constituted the offense of hijacking a motor vehicle shall be punished by imprisonment for life and a fine of not less than $100,000.00 nor more than $500,000.00. The punishment imposed pursuant to this paragraph shall not be deferred, suspended, or probated. For purposes of this paragraph, the term "state" shall include the District of Columbia and any territory, possession, or dominion of the United States.
   2. A person convicted of the offense of hijacking a motor vehicle in the second degree shall be punished upon a first conviction by imprisonment for not less than one nor more than ten years and a fine of not more than $5,000.00. Upon a second conviction for hijacking a motor vehicle in the second degree, a person shall be punished by imprisonment for not less than three nor more than 15 years and a fine of not more than $5,000.00. Upon a third or subsequent conviction of hijacking a motor vehicle in the second degree, a person shall be punished by imprisonment for not less than five nor more than 20 years and a fine of not more than $5,000.00.
4. The offense of hijacking a motor vehicle in the first degree shall be considered a separate offense and shall not merge with any other offense.
5. 1. As used in this subsection, the terms "proceeds" and "property" shall have the same meanings as set forth in Code Section 9-16-2.
   2. Any property which is, directly or indirectly, used or intended for use in any manner to facilitate a violation of this Code section and any proceeds are declared to be contraband and no person shall have a property right in them.
   3. Any property subject to forfeiture pursuant to paragraph (2) of this subsection shall be forfeited in accordance with the procedures set forth in Chapter 16 of Title 9.

(Code 1981, §16-5-44.1, enacted by Ga. L. 1994, p. 1625, § 3; Ga. L. 2014, p. 432, § 2-4/HB 826; Ga. L. 2015, p. 693, § 2-1/HB 233; Ga. L. 2017, p. 417, § 1-1/SB 104.)

The 2017 amendment, effective July 1, 2017, in paragraph (c)(1) and subsection (d), inserted "in the first degree" near the beginning; substituted the present provisions of subsection (b) for the former provisions, which read: "A person commits the offense of hijacking a motor vehicle when such 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."; designated the existing provisions of subsection (c) as paragraph (c)(1); in paragraph (c)(1), added the second sentence, and substituted "paragraph, the term" for "subsection" in the last sentence; added paragraph (c)(2); and deleted "; and the punishment prescribed by subsection (c) of this Code section shall not be deferred, suspended, or probated" following "other offense" at the end of subsection (d).

- Pursuant to Code Section 28-9-5, in 1994, "subsection (c)" was substituted for "subsection (b)" in subsection (d).

- Ga. L. 1994, p. 1625, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Anti-motor Vehicle Hijacking Act of 1994'."

Ga. L. 2015, p. 693, § 4-1/HB 233, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2015, and shall apply to seizures of property for forfeiture that occur on or after that date. Any such seizure that occurs before July 1, 2015, shall be governed by the statute in effect at the time of such seizure."

- For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 1 (2015). For article on the 2017 amendment of this Code section, see 34 Ga. St. U. L. Rev. 61 (2017). For annual survey on criminal law, see 69 Mercer L. Rev. 73 (2017). For note on the 1994 enactment of this Code section, see 11 Ga. St. U. L. Rev. 99 (1994).

JUDICIAL DECISIONS

Constitutional challenge waived.

- While a defendant challenged the constitutionality of the non-merger provision of the hijacking a motor vehicle statute, O.C.G.A. § 16-5-44.1(d), the Supreme Court, after the initial appeal had been filed under Ga. Const. 1983, Art. VI, Sec. VI, Para. II, had determined that the challenge was untimely and thus had been waived; thus, the defendant could not pursue the challenge at the appellate court level after the case had been transferred. Rutland v. State, 296 Ga. App. 471, 675 S.E.2d 506 (2009).

- O.C.G.A. § 16-5-44.1(d) supersedes the double jeopardy provisions of O.C.G.A. § 16-1-7 in carjacking cases. Campbell v. State, 223 Ga. App. 484, 477 S.E.2d 905 (1996).

Statute prohibiting the hijacking of a motor vehicle does not violate the prohibition against double jeopardy since the double jeopardy clause of the Georgia Constitution does not prohibit additional punishment for a separate offense which the General Assembly has deemed to warrant separate sanction. Mathis v. State, 273 Ga. 508, 543 S.E.2d 712 (2001).

Defendant's conviction of hijacking a motor vehicle and armed robbery were properly entered, despite defendant's contention that the state used the same facts to establish both offenses and that defendant should have only been convicted of and sentenced for one of the offenses, as: (1) hijacking a motor vehicle was considered a separate offense and did not merge with any other offense; (2) O.C.G.A. § 16-5-44.1 superseded the double jeopardy provisions of O.C.G.A. § 16-1-7 in motor vehicle hijacking cases; (3) O.C.G.A. § 16-5-44.1(d) did not violate the prohibition against double jeopardy, since the double jeopardy clause of the Georgia Constitution did not prohibit additional punishment for a separate offense which the legislature deemed to warrant separate sanction; and (4) defendant failed to offer any evidence in support of defendant's allegation that O.C.G.A. § 16-5-44.1(d) otherwise violated defendant's double jeopardy rights. Holman v. State, 272 Ga. App. 890, 614 S.E.2d 124 (2005).

Defendant's separate convictions for armed robbery and hijacking a motor vehicle did not violate the prohibitions against double jeopardy as O.C.G.A. § 16-5-44.1(d) provided that hijacking a motor vehicle was a separate offense and did not merge and it therefore superseded the state statutory double jeopardy provision; further, the Georgia Constitution did not prohibit additional punishment for a separate offense that the Georgia legislature had deemed to warrant a separate sanction; defendant failed to show how the hijacking statute violated the federal double jeopardy clause. Mullins v. State, 280 Ga. App. 689, 634 S.E.2d 850 (2006).

Separate convictions for armed robbery and hijacking a motor vehicle did not violate the state and federal prohibitions against double jeopardy as the latter constituted a separate offense warranting a separate sanction under Georgia law, thus warranting an additional punishment. Dumas v. State, 283 Ga. App. 279, 641 S.E.2d 271 (2007).

Defendant's argument that separate convictions for armed robbery and hijacking a motor vehicle violated prohibitions against double jeopardy was properly rejected because O.C.G.A. § 16-5-44.1(d) expressly provided that hijacking a motor vehicle was a separate offense, superseding the statutory double jeopardy provisions of O.C.G.A. § 16-1-7. Souder v. State, 301 Ga. App. 348, 687 S.E.2d 594 (2009), cert. denied, No. S10C0536, 2010 Ga. LEXIS 343 (Ga. 2010).

Since the defendant was indicted in Fulton County on charges of armed robbery and hijacking of a motor vehicle, but the defendant had been previously convicted in Clayton County of theft by receiving stolen property by retaining the same car on the same day, the defendant's plea in bar and motion to dismiss the Fulton County indictment was improperly denied as the charges in the Fulton County case were mutually exclusive of the defendant's prior conviction for theft by receiving because the theft by receiving conviction contained an implicit and necessary finding that the defendant did not steal the car, and the charges of armed robbery and hijacking a motor vehicle each required proof that the defendant actually took the car. Bonner v. State, 339 Ga. App. 539, 794 S.E.2d 186 (2016).

- Jury was authorized to find that defendant took the car from the victim's "person or presence" for purposes of O.C.G.A. § 16-5-44.1, when, although the victim, a store clerk, was not actually in the victim's car, it was parked just outside the store, and the car keys were taken directly from the victim's person upon threat of injury. Johnson v. State, 246 Ga. App. 109, 539 S.E.2d 605 (2000).

Because the family members in a home invasion were bound and lying in the foyer of their home when their vehicle was taken from the attached garage, the jury could have concluded that the theft of the vehicle was in the husband's presence, because the defendants took the keys to the vehicle which were under the husband's control, or the jury could have concluded that the vehicle was under the husband's control simply because the vehicle was located in the attached garage. Kollie v. State, 301 Ga. App. 534, 687 S.E.2d 869 (2009).

- For purposes of O.C.G.A. § 16-5-44.1, threatening someone with a gun constitutes intimidation, as well as force and violence. Collis v. State, 252 Ga. App. 659, 556 S.E.2d 221 (2001).

- Because the text of the hijacking statute, O.C.G.A. § 16-5-44.1, does not define "obtain", a court looks to the ordinary meaning of that word given that it was not a term of art or a technical term pursuant to O.C.G.A. § 1-3-1(b); ordinarily, "obtain" means to gain or attain possession, usually by some planned action or method, and applying the ordinary meaning of "obtain", the offense of hijacking a motor vehicle is concluded when possession of the motor vehicle is attained. Jackson v. State, 309 Ga. App. 24, 709 S.E.2d 44 (2011).

Applying the ordinary meaning of obtain, the offense of hijacking a motor vehicle is concluded when possession of the motor vehicle is acquired; 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. Holloway v. State, 342 Ga. App. 462, 804 S.E.2d 125 (2017).

- Theft by receiving a motor vehicle is not a lesser included offense of hijacking a motor vehicle. Middlebrooks v. State, 241 Ga. App. 193, 526 S.E.2d 406 (1999).

Trial court did not err in failing to give a requested jury instruction on a lesser offense of theft by receiving stolen property as theft by receiving stolen property is not a lesser included offense of armed robbery, theft by taking, or hijacking a motor vehicle. Mullins v. State, 267 Ga. App. 393, 599 S.E.2d 340 (2004).

- Jury returned verdicts that were legally and logically irreconcilable when the jury found the defendant guilty of hijacking a motor vehicle, necessarily finding that the defendant was the principal thief of the motor vehicle, and also finding the defendant guilty of theft by receiving for retaining the same motor vehicle, finding that the defendant was not the principal thief of that vehicle. Accordingly, the defendant's convictions on those two counts were mutually exclusive. Middleton v. State, Ga. , 846 S.E.2d 73 (2020).

- Offense of hijacking did not merge with defendant's armed robbery conviction for sentencing purposes. Dillard v. State, 223 Ga. App. 405, 477 S.E.2d 674 (1996).

Aggravated assault offense was properly not merged with the offense of hijacking a motor vehicle because the latter crime was considered a separate offense and would not merge with any other offense charged. Kemper v. State, 251 Ga. App. 665, 555 S.E.2d 40 (2001).

O.C.G.A. § 16-5-44.1(d) supersedes the double jeopardy provision contained in O.C.G.A. § 16-1-7(a). Thus, the trial court did not err in refusing to merge the defendant's armed robbery and hijacking convictions. Boykin v. State, 264 Ga. App. 836, 592 S.E.2d 426 (2003).

- Because no evidence was offered to establish the physical manifestation requirement necessary to sustain a reasonable inference that the defendant had a gun, a weapon, or any object, defendant's conviction was reversed. Bradford v. State, 223 Ga. App. 424, 477 S.E.2d 859 (1996).

- O.C.G.A. § 16-5-44.1(b) does not authorize a conviction for hijacking a motor vehicle since no weapon or instrument was used other than the defendant's own hands and feet. Haugland v. State, 253 Ga. App. 423, 560 S.E.2d 50 (2002).

- State failed to prove venue for armed robbery and hijacking a motor vehicle since the facts showed that the victim was forced at gunpoint into the victim's car in a parking lot in one county and then ordered the victim to drive into a second county (the place of trial) since the victim was taken from the car and shot; both offenses were complete in the first county and neither O.C.G.A. § 16-8-1 nor O.C.G.A. § 17-2-2(d) were applicable to confer venue in the second county. Bradley v. State, 272 Ga. 740, 533 S.E.2d 727 (2000).

- O.C.G.A. § 16-5-44.1 does not require that the person be in the motor vehicle; thus, evidence that the cars were taken from the "presence of" the victims was sufficient to prove the elements of the crime. Stephens v. State, 245 Ga. App. 823, 538 S.E.2d 882 (2000).

Trial court properly denied the defendant's motion for a directed verdict with regard to the convictions of armed robbery and hijacking a motor vehicle because the evidence supported the jury's finding that the defendant took the victim's car after pointing a gun at the victim and the fact that the victim fled to a nearby hiding place from where the police were called did not negate that the victim's vehicle was taken from the victim's presence by force and violence. Merritt v. State, 353 Ga. App. 374, 837 S.E.2d 521 (2020).

- Evidence was sufficient to support defendant's conviction for hijacking a motor vehicle, as defendant's challenge to that conviction was meritless; defendant's contention that the evidence was insufficient had to be rejected because it was premised on the argument that the victims' identification of defendant as a perpetrator was tainted by an impermissibly suggestive photographic lineup and the photographic lineup procedure was not impermissibly suggestive. Evans v. State, 261 Ga. App. 22, 581 S.E.2d 676 (2003).

- State did not have to prove the defendant had knowledge of the weapon to be convicted of felony murder, aggravated assault with a deadly weapon, armed robbery, hijacking a motor vehicle, possession of a firearm during a felony, conspiracy to commit armed robbery, and conspiracy to commit hijacking a motor vehicle. The evidence was sufficient to authorize a rational jury to find that the defendant conspired to rob the victims and murder was a reasonably foreseeable consequence of the conspiracy. Hicks v. State, 295 Ga. 268, 759 S.E.2d 509 (2014).

- In a prosecution on two counts of attempting to hijack a motor vehicle, four counts of aggravated assault, possession of a firearm during the commission of a crime, and criminal trespass, because the offenses committed by a defendant and a codefendant amounted to a series of continuous acts connected together both in time and the area in which committed, and there was no likelihood of confusion, the trial court did not abuse its discretion in denying the defendant's motion to sever the trial from that of the codefendant; furthermore, the mere fact that the codefendants' defenses were antagonistic was insufficient in itself to warrant separate trials. Diaz v. State, 280 Ga. App. 413, 634 S.E.2d 160 (2006).

- Evidence did not authorize a finding that the defendant committed the crime of hijacking a motor vehicle, O.C.G.A. § 16-5-44.1(b), because the defendant did not use a gun as a concomitant to induce the owner of the vehicle to relinquish possession of the car, but the gun was used only after the defendant had attained possession of the vehicle; when the gun was pointed at the car's owner the defendant was already inside the car and was driving away in the car, and by that point, the car had already been attained by the defendant. Jackson v. State, 309 Ga. App. 24, 709 S.E.2d 44 (2011).

- See Anderson v. State, 246 Ga. App. 189, 539 S.E.2d 879 (2000).

Defendant's possession of a recently stolen vehicle within minutes of its hijacking; defendant's flight from the police when they attempted to stop the vehicle; the presence of a gun, which did not belong to the victim, in the victim's vehicle after defendant's arrest; and the victim's positive identification of defendant at the arrest scene not long after the hijacking, was sufficient evidence to support defendant's convictions of armed robbery in violation of O.C.G.A. § 16-8-41(a), and hijacking a motor vehicle in violation of O.C.G.A. § 16-5-44.1(b). Lane v. State, 255 Ga. App. 274, 564 S.E.2d 857 (2002).

There was sufficient evidence to convict defendant of hijacking a motor vehicle since the defendant had a weapon and took a vehicle from the person or presence of another while in possession of the weapon, and defendant used force, violence or intimidation to accomplish the taking. Pearson v. State, 258 Ga. App. 651, 574 S.E.2d 820 (2002).

When the defendant took a cab driver's fare money, a gold coin, and the cab and was apprehended after a chase, the evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt of armed robbery, hijacking a motor vehicle, and obstruction of a police officer. Frazier v. State, 263 Ga. App. 12, 587 S.E.2d 173 (2003).

Evidence was sufficient to support defendant's hijacking a motor vehicle conviction under O.C.G.A. § 16-5-44.1(b) where: (1) the car was registered to an owner in another state, but the victim primarily used it; (2) although another person was holding the keys at the time of the taking, the victim was standing by the car when a gunman pointed a gun at both individuals; and (3) the gunman took the keys, and drove away. Mullins v. State, 267 Ga. App. 393, 599 S.E.2d 340 (2004).

Victim's testimony and in-court identification was sufficient evidence to convict defendant of hijacking the victim's motor vehicle at a gas station and of aggravated assault for shooting the victim three times; furthermore, the photo lineup was not unduly suggestive. Weeks v. State, 268 Ga. App. 886, 602 S.E.2d 882 (2004).

In addition to the second codefendant's testimony, the state showed that, shortly after the murder, the defendant was in possession of the victim's cab, that the victim's blood was found in the vehicle and on the defendant, and that the defendant made incriminating admissions to others; thus, the evidence was sufficient to authorize a rational trier of fact to find proof beyond a reasonable doubt of the defendant's guilt of malice murder, armed robbery, aggravated assault, hijacking a motor vehicle, and possession of a firearm during the commission of a felony. Wicks v. State, 278 Ga. 550, 604 S.E.2d 768 (2004).

Evidence that the defendant and others approached two separate victims while the defendant brandished a shotgun, that defendant threatened the victims with the gun, and that defendant and the compatriots stole both of the victims' cars, sufficed to sustain convictions of two counts of hijacking a motor vehicle, two counts of armed robbery, two counts of aggravated assault with a deadly weapon, and two counts of possession of a firearm during the commission of a felony; the jury was free to disbelieve defendant's testimony that defendant was coerced into threatening the victims at gunpoint and participating in the car thefts. Martinez v. State, 278 Ga. App. 500, 629 S.E.2d 485 (2006).

Evidence identifying the defendant as the perpetrator who stole a victim's car and purse at gunpoint, coupled with evidence of the defendant's flight from police, possession of the stolen car, and possession of the revolver used in the crimes, was sufficient to support convictions for hijacking a motor vehicle, possession of a firearm during the commission of a felony, armed robbery, and aggravated assault with a deadly weapon; however, the conviction and sentence for aggravated assault merged as a matter of fact into the armed robbery conviction and sentence. Doublette v. State, 278 Ga. App. 746, 629 S.E.2d 602 (2006).

Convictions of armed robbery, possession of a firearm during the commission of a crime, false imprisonment, and hijacking a motor vehicle were supported by sufficient evidence since a perpetrator identified as the defendant robbed a pizza restaurant at gunpoint, ordered everyone into a cooler, and took the restaurant manager's vehicle, after which an officer discovered the defendant the next day driving the manager's vehicle and wearing a hat identical to that worn by the perpetrator, and since a customer at the restaurant identified the defendant as the robber in a photo line-up and at trial; while three of the four crimes arising out of the incident were committed after the customer, who was the only witness to identify defendant, was ordered into the cooler, only one robber entered the restaurant and the jury was authorized to infer that the person identified by the customer also committed the crimes committed after the customer was in the cooler. Head v. State, 279 Ga. App. 608, 631 S.E.2d 808 (2006).

Sufficient circumstantial evidence excluded every reasonable hypothesis of innocence in the armed robbery in violation of O.C.G.A. § 16-8-41 and hijacking a motor vehicle in violation of O.C.G.A. § 16-5-44.1 case; after the victim's car was stolen, the defendant used the victim's cell phone, a search of the defendant's residence uncovered the victim's and the victim's spouse's keys, and prints in the car matched the defendant's prints. Huff v. State, 281 Ga. App. 573, 636 S.E.2d 738 (2006).

Because: (1) the trial court did not err in admitting certain identification evidence alleged to be hearsay, as testimony relative to that evidence was not offered for the truth of the matter asserted; (2) the defendant's requested instruction was not tailored to the facts and was potentially confusing; and (3) the defendant's character was not placed in issue, convictions of armed robbery, hijacking a motor vehicle, and obstruction were all upheld on appeal. Jennings v. State, 285 Ga. App. 774, 648 S.E.2d 105 (2007), cert. denied, No. S07C1576, 2007 Ga. LEXIS 667 (Ga. 2007).

Trial court properly convicted defendant of armed robbery and hijacking of a motor vehicle because: (1) there was sufficient evidence to establish defendant committed the crimes based on the testimony of the victim, who identified defendant as the individual who approached the victim's vehicle, pointed a gun, and demanded the vehicle; (2) two officers testified as to observing defendant driving the stolen vehicle the same night; and (3) the victim's cell phone was found on defendant's person when the defendant was arrested. Culver v. State, 290 Ga. App. 321, 659 S.E.2d 390 (2008).

Testimony by a victim that the defendant and an accomplice, armed with handguns, forcibly entered the victim's apartment, raped and sodomized the victim, struck the victim with a gun, stole jewelry, bound the victim, and escaped in a car owned by the victim's prospective spouse, and evidence that 24 fingerprints lifted from the apartment and car matched the defendant's, was sufficient to convict the defendant of hijacking a motor vehicle. Crawford v. State, 292 Ga. App. 463, 664 S.E.2d 820 (2008).

Defendant's possession of a vehicle within minutes of the vehicle's hijacking, the defendant's attempted flight when police ordered the defendant out of the car, the recovery of a .40 caliber handgun in the car, and the victim's positive identification of the defendant authorized the jury to find the defendant guilty of hijacking a motor vehicle and of possession of a firearm during the commission of a felony. Wilcox v. State, 297 Ga. App. 201, 677 S.E.2d 142 (2009), cert. denied, No. S09C1285, 2009 Ga. LEXIS 342 (Ga. 2009).

Even if defendant was not physically present during the hijacking, given the evidence of the defendant's agreement with defendant's passenger to steal a car, any act done in pursuance of that association by the defendant's passenger would, in legal contemplation, be the act of defendant. Additionally, defendant could have been convicted of hijacking a motor vehicle even if the defendant had no knowledge that the defendant's passenger was planning to use a gun to perpetrate the crime because defendant's passenger's use of the gun was naturally or necessarily done in furtherance of the conspiracy to steal a vehicle even though not part of the original agreement; therefore, given that the evidence supported defendant's conviction under the theories of conspiracy and parties to a crime, the evidence was sufficient to convict defendant of hijacking a motor vehicle in violation of O.C.G.A. § 16-5-44.1(b). Johnson v. State, 299 Ga. App. 706, 683 S.E.2d 659 (2009).

Although under Georgia law, a defendant could not be convicted solely upon the uncorroborated testimony of an accomplice, former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8), the evidence corroborated some particulars of the accomplice's testimony implicating the codefendants in the charged crimes since all three of the victims from the three separate gas stations provided descriptions of their assailants that generally matched the codefendants and the accomplice, and all three victims also testified that their assailants brandished a handgun and a shotgun, which were indeed the weapons that were found at the scene where the stolen SUV crashed and where the accomplice was arrested. Accordingly, the evidence corroborating the accomplice's testimony was sufficient to authorize the jury's determination that the codefendants were guilty beyond a reasonable doubt as parties to armed robbery, O.C.G.A. § 16-8-41, hijacking a motor vehicle, O.C.G.A. § 16-5-44.1, aggravated assault, O.C.G.A. § 16-5-21, theft by taking, O.C.G.A. § 16-8-2, theft by receiving, O.C.G.A. § 16-8-7, and possession of a firearm during the commission of a felony, O.C.G.A. § 16-11-106. Daniels v. State, 306 Ga. App. 577, 703 S.E.2d 41 (2010).

Defendant's convictions for kidnapping, hijacking a motor vehicle, armed robbery, possession of a firearm during the commission of a felony, carrying a concealed weapon, and possession of a weapon on school property were authorized because, pursuant to former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8), the victim's testimony alone established the essential elements of the offenses. Lester v. State, 309 Ga. App. 1, 710 S.E.2d 161 (2011).

Trial court did not err in denying the defendant's motion for a directed verdict of acquittal because the state presented sufficient evidence to corroborate a coconspirator's testimony under former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8) and for the jury to find beyond a reasonable doubt that the defendant committed armed robbery, O.C.G.A. § 16-8-41(a), hijacking a motor vehicle, O.C.G.A. § 16-5-44.1(b), and kidnapping, O.C.G.A. § 16-5-40(a); the state presented the testimony of numerous witnesses and other evidence that sufficiently corroborated the co-conspirator's testimony about the defendant's participation in the crimes. Walker v. State, 310 Ga. App. 223, 713 S.E.2d 413 (2011).

Evidence was sufficient to authorize the defendant's convictions for hijacking a motor vehicle, in violation of O.C.G.A. § 16-5-44.1(b), armed robbery, in violation of O.C.G.A. § 16-8-41, aggravated assault, in violation of O.C.G.A. § 16-5-21(a)(2), and possession of a knife during the commission of a crime, in violation of O.C.G.A. § 16-11-106(b), based on the defendant's involvement as a party to the crimes, or as a coconspirator under O.C.G.A. § 16-2-20(b). The evidence presented was that: (1) when two people walked past the victim's parked vehicle, one of the people held a knife to the victim's stomach and ordered the victim to give the person the victim's wallet and keys; (2) the victim complied; (3) the person with the knife got into the driver's seat and the defendant, who had stood nearby during the incident, got into the passenger seat; (3) the victim identified the defendant as the person who got into the passenger seat; (4) the people drove away, but were apprehended; (5) the victim's wallet was recovered, on the ground to the rear of the vehicle, on the passenger side; and (6) the defendant wanted to leave the area because there was a warrant for the defendant's arrest. Harrelson v. State, 312 Ga. App. 710, 719 S.E.2d 569 (2011).

Sufficient evidence showed the defendant committed a hijacking, under O.C.G.A. § 16-5-44.1(b), because: (1) the statute included attempt as a means of committing the crime; and (2) the defendant's assertion of ownership of a victim's vehicle and the fact that the victim was pulled out of the vehicle constituted substantial steps toward committing the crime. Campbell v. State, 314 Ga. App. 299, 724 S.E.2d 24 (2012).

Evidence was sufficient to convict the defendant of aggravated assault, motor-vehicle hijacking, and possession of a firearm during the commission of a crime, under O.C.G.A. §§ 16-5-21(a)(2),16-5-44.1(b), and16-11-106(b)(1), because the defendant waited in a getaway vehicle while an accomplice hijacked the victim's vehicle and possessed the gun that the accomplice used in the crime. Gordon v. State, 316 Ga. App. 42, 728 S.E.2d 720 (2012).

As the first defendant aided and abetted in effecting a plan to steal the victim's car, and as the second defendant took the victim's money, the evidence was sufficient to convict both of them of armed robbery, hijacking a motor vehicle, and possession of a firearm during the commission of a crime under O.C.G.A. §§ 16-8-41(a),16-5-44.1,16-11-106, respectively. Copeny v. State, 316 Ga. App. 347, 729 S.E.2d 487 (2012).

Sufficient evidence supported the defendant's convictions for armed robbery, hijacking a motor vehicle, and two counts of possession of a firearm because the evidence showed that the defendant was identified by the victim, the defendant was arrested about an hour and a half after the crimes occurred in the Lincoln Town car used during the commission of the crimes, which the defendant admitted belonged to the defendant, and the cell phone that the victim had reported stolen was found in the car in addition to guns matching the victim's description of the weapons used. Hinton v. State, 321 Ga. App. 445, 740 S.E.2d 394 (2013).

Evidence showing that the defendant opened the passenger door of a car, sat down, grabbed a woman's purse, told the woman to drive or die while pointing a sock covered object at the woman supported the defendant's conviction for hijacking a motor vehicle. Hughes v. State, 323 Ga. App. 4, 746 S.E.2d 648 (2013).

Evidence that the defendant took the car keys directly from the victim upon threat of violent injury and then retrieved the victim's car from the parking lot was sufficient for the jury to find that the defendant took the car from the victim's "presence" for purposes of the offense of hijacking a motor vehicle. Whaley v. State, 337 Ga. App. 50, 785 S.E.2d 685 (2016).

No fatal variance existed between the indictment and the proof at trial as to the defendant's hijacking a motor vehicle and two counts of aggravated assault convictions because the evidence showed that the defendant struck the victim with a handgun and, shortly thereafter, two men fled in the minivan, while a Hispanic male and the man that struck the victim, the defendant, fled in a red car, thus, there was no fatal variance between the evidence and the indictment. Scott v. State, 342 Ga. App. 442, 803 S.E.2d 600 (2017).

Evidence that the defendant and others lured the victim to an isolated location with the intention of taking items of value from the defendant, used one or more firearms to confront the victim, and took possession of the victim's vehicle was sufficient for the jury to conclude that the defendant was guilty of hijacking a motor vehicle. Davis v. State, 306 Ga. 594, 832 S.E.2d 341 (2019).

- As the Georgia Court of Appeals has ruled in Johnson v. State, 299 Ga. App. 706 (2009), the act of pointing a gun at the head of the vehicle's owner and ordering th owner from the car is an overt act to effect the object of a conspiracy to hijack a vehicle. Holloway v. State, 342 Ga. App. 462, 804 S.E.2d 125 (2017).

Sufficient evidence supported the defendant's conviction for hijacking a motor vehicle based on the woman being pulled from the car being a cousin to the defendant, the defendant's admitted presence at the scene, the defendant's possession of a firearm, the defendant's role in forcibly removing the occupants, and the defendant's presence in the vehicle after the vehicle was stolen, even though the defendant was not the person who ultimately drove the vehicle from the scene. Holloway v. State, 342 Ga. App. 462, 804 S.E.2d 125 (2017).

- Given that a defendant repeatedly stabbed a victim in the throat in a parking lot to attempt to force the victim to get inside the victim's car, the trial court could find that the defendant rejected the car keys when the victim offered the keys because the defendant intended to abscond with both the car and the victim as needed to prove attempted hijacking of a motor vehicle under O.C.G.A. §§ 16-4-1 and16-5-44.1(b). Hickman v. State, 311 Ga. App. 544, 716 S.E.2d 597 (2011).

- Trial court did not abuse its discretion in admitting similar transaction evidence of a first car-jacking to show bent of mind, course of conduct, and identity where: (1) both incidents constituted car-jackings committed with a gun pointed at the victim; (2) the incidents occurred within six days of each other; (3) the first car-jacking involved a car of the same make and color as one used in the car-jacking that was being tried; (4) the victim of the first car-jacking positively identified defendant as the perpetrator of the first car-jacking; and (5) the testimony of the victim of the first car-jacking was sufficient to meet the elements of O.C.G.A. § 16-5-44.1(b). Mullins v. State, 267 Ga. App. 393, 599 S.E.2d 340 (2004).

- Convictions for hijacking a motor vehicle in violation of O.C.G.A. § 16-5-44.1(b), battery in violation of O.C.G.A. § 16-5-23, and two counts of kidnapping with bodily injury under O.C.G.A. § 16-5-40(b) were supported by sufficient evidence because the victim testified that defendant forced a way into the car at gunpoint while defendant and the infant child were in the vehicle and then sexually assaulted the victim after threatening to harm the child, defendant's wallet was found in the abandoned car, and defendant admitted to the hijacking. Adams v. State, 276 Ga. App. 319, 623 S.E.2d 525 (2005).

- Specific inclusion of conspiracy as a method of committing the crime of hijacking a motor vehicle does not alter the general rule that a conspiracy can be proven and charged without being indicted; therefore, the trial court did not err by reading the entire hijacking statute or defining "conspiracy" in response to a jury question. Middlebrooks v. State, 241 Ga. App. 193, 526 S.E.2d 406 (1999).

Defendant was properly convicted of hijacking where defendant was seen leaving a party with a pistol, discussed robbing a cab driver with two accomplices, was seen entering the victim's cab, was identified as one of the accomplices, and was identified as the person who shot the victim in the head, after which defendant participated in stealing $ 50 from the cab. Chinn v. State, 276 Ga. 387, 578 S.E.2d 856 (2003).

Trial court did not abuse the court's discretion in the manner in which the court recharged the jury. It did not appear that the jury was confused or misled by the lack of a recharge on hijacking; moreover, counsel did not request one or submit an alternate request to charge. Wilcox v. State, 297 Ga. App. 201, 677 S.E.2d 142 (2009), cert. denied, No. S09C1285, 2009 Ga. LEXIS 342 (Ga. 2009).

Trial court did not abuse the court's discretion in charging the jury on the definitions of a firearm and a weapon in response to the jury's question regarding the offense of hijacking a motor vehicle because those terms were included within the definition of hijacking a motor vehicle. Smith v. State, 304 Ga. App. 708, 699 S.E.2d 742 (2010).

Defendant's trial counsel was not ineffective in failing to request a jury charge on hijacking a motor vehicle because under O.C.G.A. § 16-5-44.1(c) hijacking a motor vehicle was punishable by imprisonment for not less than ten nor more than 20 years, the same range as kidnapping. Therefore, the defendant could show no prejudice from the defendant's counsel's failure to request such a charge. Howard v. State, 310 Ga. App. 659, 714 S.E.2d 255 (2011).

- Defendant convicted under O.C.G.A. § 16-5-44.1 who was originally sentenced to the maximum 20 years under the recidivist provisions of O.C.G.A. § 17-10-7, with ten of the 20 years to be served on probation, was properly re-sentenced because O.C.G.A. § 16-5-44.1 provides that the prescribed punishment "shall not be deferred, suspended, or probated." Stephens v. State, 245 Ga. App. 823, 538 S.E.2d 882 (2000).

Because the trial court imposed consecutive sentences upon the defendant's conviction of hijacking a motor vehicle because it mistakenly believed it had no discretion to do otherwise, the sentence was vacated and a resentencing was ordered on remand, as O.C.G.A. § 16-5-44.1(d) did not mandate the sentence. Smith v. State, 278 Ga. App. 858, 630 S.E.2d 125 (2006).

Cited in Callahan v. State, 250 Ga. App. 193, 550 S.E.2d 757 (2001); Jaheni v. State, 285 Ga. App. 266, 645 S.E.2d 735 (2007); Hyde v. State, 291 Ga. App. 662, 662 S.E.2d 764 (2008); Bradshaw v. State, 284 Ga. 675, 671 S.E.2d 485 (2008); Smith v. State, 304 Ga. App. 708, 699 S.E.2d 742 (2010), overruled on other grounds, Reed v. State, 291 Ga. 10, 727 S.E.2d 112 (2012); Russell v. State, 319 Ga. App. 472, 735 S.E.2d 797 (2012); Young v. State, 329 Ga. App. 70, 763 S.E.2d 735 (2014); Priester v. State, 350 Ga. App. 200, 828 S.E.2d 439 (2019); Gay v. State, 351 Ga. App. 811, 833 S.E.2d 305 (2019), cert. denied, No. S20C0264, 2020 Ga. LEXIS 317 (Ga. 2020).

RESEARCH REFERENCES

ALR.

- Validity, construction, and application of state carjacking statutes, 100 A.L.R.5th 67.