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Polanco v. State

The defendant's convictions for aggravated assault should have merged with his convictions for armed robbery, as they arose out of the same act or continuous transactions as the armed robbery against the same victims.

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Following a jury trial, Pablo Polanco was convicted of four counts of armed robbery OCGA § 16-8-41 a, four counts of aggravated assault OCGA § 16-5-21, four counts of false imprisonment OCGA § 16-5-41, theft by taking OCGA § 16-8-2, and possession of a firearm or knife during the commission of a felony OCGA § 16-11-106. Polanco appeals from the denial of his motion for a new trial, contending that: 1 the trial court erred in failing to merge his aggravated assault convictions into his armed robbery convictions; 2 the trial court erred in refusing to allow him to identify jurors who would have been unfairly prejudiced by the large number of counts in the indictment; and 3 trial counsel rendered ineffective assistance. For the reason that follow, we affirm in part, reverse in part, and remand for resentencing.

Viewed in the light most favorable to Polanco’s convictions,1 the evidence shows that the victims Rafael, Raul, Rigoberto, Rodrigo, and Jesus all lived in a house on Doyle Street in Tucker, Georgia, which is located in Gwinnett County. Around 10:00 p.m. on the night of February 12, 2010, Polanco went over to the victims’ house with several others—Rosa, Braen, Mendy, Frank, Yuri and a juvenile. The juvenile and Yuri rode with Rosa in her Lexus. Polanco, Mendy and Frank rode with Braen in his gray Mercedes. The driver of the Mercedes parked in the victims’ driveway, while Rosa dropped off her passengers and left.

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