Supreme Court rules in Barrow robbery case

All five suspects were arrested outside the restaurant on March 6, 2009. But their Barrow County trials were postponed pending the outcome of a pre-trial appeal on behalf of Francisco Gutierrez, who was 16 at the time of his arrest.

His attorney, James Smith of Athens, asked a Barrow County Superior Court judge in 2009 to move the case to Juvenile Court. Juveniles charged with armed robbery are tried as adults in Superior Court, but Smith argued that there had not been an “armed robbery,” because no money had changed hands inside the China Wok.

The crime was interrupted by a Gwinnett County undercover police officer. He shot through the restaurant’s front window when he saw one of the suspects move over the cash register after it was opened by the owner’s 11-year-old son, who had seen his mother hit with a baseball bat.

Superior Court Judge David Motes refused to move the case but allowed Smith to file a pre-trial appeal to the Georgia Court of Appeals. That court affirmed Motes’ decision, stating that “the armed robbery was completed at the time the son opened the cash register and raised the flap resting on top of the cash, thereby ceding control of the money to the perpetrators.”

A majority of the Supreme Court justices concurred, stating that there must be only “the slightest” change of location of the property as it comes under control of the trespasser in order to constitute an armed robbery.

For the full story, see the Feb. 8 issue of the Barrow Journal.