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Payne v. State

The trial court should have merged the defendant's robbery by force and robbery by intimidation convictions for sentencing purposes.

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After a jury trial, Michael Payne was convicted of robbery by force1 Count 1, robbery by intimidation2 Count 2, and two counts of simple battery Counts 3 and 4. He appeals, contending that: 1 the evidence was insufficient to support the conviction for robbery by intimidation; 2 even if the evidence was sufficient to support the robbery by intimidation conviction, the conviction is invalid because that offense should have merged with the robbery by force offense for sentencing purposes; and 3 his trial counsel provided ineffective assistance. We affirm the judgment in part, vacate the judgment in part, and remand the case for re-sentencing.

The evidence showed that Payne proposed to James Knight and other individuals an idea to rob Payne’s former employer, G. S., as she left work at a restaurant on July 22, 2007. Payne drove himself, Knight, and another individual to the restaurant. As Payne had predicted, G. S. exited the restaurant with another person around 5:00 p.m., carrying a bag of money underneath her arm. Knight approached G. S. and the other person a woman, as G. S. was at her vehicle and the other woman was walking toward her vehicle. Knight sprayed both women with pepper spray, grabbed the money bag from G. S., and fled to Payne’s vehicle. Payne drove away from the scene. The money bag contained cash, which was later divided among the three perpetrators, including Payne.

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