A Fulton County jury found Teontre Crowley guilty beyond a reasonable doubt of armed robbery, OCGA § 16-8-41 a; aggravated assault, OCGA § 16-5-21 a 2 with a deadly weapon; possession of a handgun by a person under the age of 18 years, OCGA § 16-11-132 b; and possession of a firearm during the commission of a felony crime against another person, OCGA § 16-11-106 b 1. He appeals from the denial of his motion for new trial, contending that the trial court abused its discretion when it improperly dismissed a juror, that it erred in denying his motion for mistrial that was based upon the juror’s dismissal, and that it erred in refusing to instruct the jury on robbery as a lesser included offense of armed robbery. He also contends that his convictions for armed robbery and aggravated assault should have been merged for sentencing. For the following reasons, we affirm the judgment of conviction, but vacate in part Crowley’s sentence and remand for resentencing. 1. Crowley contends that the trial court abused its discretion when it improperly dismissed a juror without a sound legal basis and that it erred in denying his motion for mistrial that was based upon the juror’s dismissal. Pursuant to OCGA § 15-12-172, “if at any time, whether before or after final submission of the case to the jury, a juror dies, becomes ill, upon other good cause shown to the court is found to be unable to perform his duty, or is discharged for other legal cause , the first alternate juror shall take the place of the first juror becoming incapacitated.” Emphasis supplied.
In this case, the record shows the following, undisputed facts. The prosecutor and the attorneys for Crowley and his co-defendant, Samuel Hartley, selected twelve jurors and one alternate juror from the panels, and the trial court told the selected jurors to sit in the jury box as their number was called out by the court’s case manager. After the remaining potential jurors were dismissed, the selected jurors were sworn in and the trial court gave them initial instructions, including the specific directions that they must not speak with anyone about the case or conduct any outside investigation about the case. After the jurors were released for the day, it was discovered that only 11 jurors and the alternate had been in the jury box during the oath and instructions and that Juror No. 35 had left the courtroom instead of sitting with the rest of the selected jurors, apparently because she had not heard her number when it was called. When the trial resumed the next morning, the trial court ruled that the trial would proceed with the 11 jurors and the alternate, noting that they had been selected by the parties and had been sworn in and given instructions the previous afternoon, and that it was going to excuse Juror No. 35. Crowley’s counsel objected and moved for a mistrial, which was denied.
