Following a jury trial, Telly Lafonz Brown was convicted in Butts County Superior Court on multiple charges, including two counts of aggravated battery, two counts of aggravated assault, and two counts of leaving the scene of an accident involving serious injury. Brown now appeals from the denial of his motion for a new trial, arguing that the trial court erred in failing to instruct the jury on his sole defense of accident; in failing to instruct the jury on the intent element of aggravated assault and in failing to give an instruction on simple assault, as an element of aggravated assault; and in failing to merge, for sentencing purposes, the two counts of leaving the scene of an accident involving serious injury. For reasons explained more fully below, we find no error in the trial court’s jury instructions, and we therefore affirm the denial of Brown’s motion for a new trial. We further find, however, that the trial court erred in failing to merge the two counts of fleeing the scene of an accident involving serious injury. We therefore vacate the trial court’s sentencing order and remand the case for resentencing on those counts.
On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict. Marriott v. State, 320 Ga. App. 58 739 SE2d 68 2013 citation omitted. So viewed, the record shows that Brown and B. B. dated for approximately one year. Although B. B. attempted to end the relationship after approximately six months, her efforts were unsuccessful, with Brown refusing to accept the breakup, phoning and texting B. B. repeatedly, and appearing at her house uninvited. Eventually, in November 2011, B. B. managed to end her relationship with Brown. Approximately two weeks later, B. B. was visiting her cousin, at the cousin’s apartment. The two women heard what sounded like a hissing noise coming from outside, and when they looked through the window, they both saw Brown letting the air out of the tires on B. B.’s car. One week after that incident, B. B. and her cousin went to a local nightclub. Brown was present at the club and, fearing that he would attempt to speak with her, B. B. left and went to her car to wait for her cousin. As she sat in the parking lot, Brown approached B. B., and she spoke with him briefly through the window, telling him she would not take him back. A short time later, B. B. and her cousin left the parking lot and Brown watched as they drove in the direction of the cousin’s apartment. The two women stopped at an all-night restaurant to eat before proceeding to the cousin’s apartment, where B. B. planned to spend the night. At some point after the women left the nightclub but before they reached the cousin’s apartment, Brown called B. B.’s cell phone. In response to B. B.’s question, Brown told her he was at her home. According to B. B., however, the background noise on the call indicated that Brown was traveling in a car.
