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Mullis v. State

The trial court erred in failing to merge the defendant's convictions for aggravated assault and criminal attempt to commit armed robbery, since the offenses arose out of the same act or transaction.

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Following a jury trial, Barry Mullis was convicted of criminal attempt to commit armed robbery,1 aggravated assault,2 burglary,3 and three counts of possession of a knife during the commission of a felony.4 Mullis appeals the denial of his motion for new trial, arguing that his convictions of aggravated assault with intent to rob and attempted armed robbery merged as a matter of fact. We vacate Mullis’s aggravated assault conviction and remand for resentencing, for the reasons that follow.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia,5 and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve.6

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