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Potts v. State

The trial court erred in failing to merge two of the defendant's aggravated assault convictions with his armed robbery conviction.

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Aerius Deshad Potts was tried by a Carroll County jury and convicted of seven counts of aggravated assault,1 three counts of felony cruelty to children,2 one count of armed robbery,3 one count of possession of a firearm during the commission of a crime,4 and one count of possession of a pistol or revolver by a person under 18 years of age.5 He now appeals from the denial of his motion for a new trial, asserting that the trial court erred in charging the jury and in failing to merge two of the aggravated assault convictions with the armed robbery conviction. We find no error in the trial court’s jury charge and therefore affirm the denial of Potts’s motion for a new trial. We further find, however, that the trial court erred in failing to merge two of Potts’s aggravated assault convictions Counts 5 and 11 with his conviction for armed robbery Count 4. We therefore vacate Potts’s convictions as to Counts 5 and 11 and remand the case so that Potts may be re-sentenced.

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. Martinez v. State, 306 Ga. App. 512, 514 702 SE2d 747 2010. So viewed, the record shows that on the evening of July 19, 2006, Pedro Espinoza was robbed at gunpoint, beaten, and shot while outside of his residence in the Elizabeth Village mobile home park in Carrollton. Inside the residence were Espinoza’s brother, Jorge Espinoza; Jorge’s wife, Paola Cabanas; and three children that Paola was babysitting: Sabrina, Pablo, and Valerie Monsivais. When Jorge opened the door of the mobile home to see what was happening to his brother, one of the assailants pointed his gun at Jorge. Jorge immediately closed the door and at least two assailants then began shooting at the trailer. Jorge suffered a gunshot wound to his arm and Paola was struck and killed by one of the bullets shot into the home. Another bullet struck Sabrina Monsivais, injuring the child in both legs.

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