Following a jury trial, Johnny Culbreath was convicted of four counts of aggravated assault with a deadly weapon OCGA § 16-5-21 a 2, three counts of false imprisonment OCGA § 16-5-41, five counts of possession of a firearm during the commission of certain crimes OCGA § 16-11-106, and one count each of burglary OCGA § 16-7-1 b, aggravated assault with intent to rob OCGA § 16-5-21 a 1, attempted armed robbery OCGA § 16-8-41, kidnapping OCGA § 16-5-40, and cruelty to children in the first degree OCGA § 16-5-70 b.1 Culbreath appeals from the denial of his motion for new trial, contending that 1 the witnesses’ in-court identifications were tainted; 2 his convictions for burglary, false imprisonment, and aggravated assault should have merged with his attempted armed robbery conviction; 3 the trial court erred in allowing the prosecutor to comment in closing on Culbreath’s failure to present an alibi; and 4 the trial court erred in its analysis of his speedy trial claim. For the reasons that follow, we vacate Culbreath’s conviction and sentence as to aggravated assault against victim Margaret Parris, and we vacate the denial of Culbreath’s speedy trial motion for discharge and remand this case with direction. As to Culbreath’s remaining contentions, we affirm the judgment.
Viewed in the light most favorable to the jury’s verdict,2 the evidence shows that on July 14, 2009, Culbreath broke into the home of John and Margaret Parris in Cobb County. Mrs. Parris, who was 81 years old at the time of the offense and Mr. Parris, who was 83 years old at the time of the offense, lived in the downstairs unit of a home belonging to their daughter and son-in-law, Danny Carlson. The Parrises heard dogs barking, and Mrs. Parris went to investigate. When Mrs. Parris pushed open the downstairs bathroom door, Culbreath stepped out with a gun and put it to her head. Culbreath demanded to know where was the money and threatened to “blow her brains out.” Culbreath then forced Mrs. Parris to lie down on the floor and bound her wrists, ankles and mouth with duct tape. Culbreath then entered the dining room, where he pointed his gun at Mr. Parris, demanded money, asked him where he could find Danny Carlson, bound his hands, feet and mouth with duct tape, and put an afghan over his head. Culbreath then went upstairs, to the main level of the house, where he found then ten-year-old K. M., a tennis student of Carlson’s, eating lunch in a room next to the kitchen. Culbreath pointed a gun at her and asked her to take him to Carlson, and they wandered the house, looking for him. Upon finding Carlson in his office on the top floor, Culbreath ordered Carlson and K. M. to the floor and bound them with duct tape. Culbreath also put a blanket over Carlson’s head.
