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Reed v. State

When convictions for aggravated assault and attempted armed robbery merge as a matter of fact, the aggravated assault conviction is the lesser offense and merges into the attempted armed robbery conviction.

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An eleven-person jury found Percy Joseph Reed guilty of aggravated assault, aggravated assault with intent to rob, and attempted armed robbery. After finding that the three counts merged as a matter of fact, the trial court merged the other two counts into the count for aggravated assault with intent to rob and sentenced him to twenty years imprisonment. Reed moved for a new trial, and the trial court denied the motion. On appeal, Read contends that the trial court erred in allowing the case to proceed with only eleven jurors and in sentencing him for aggravated assault with intent to rob rather than for attempted armed robbery. For the reasons discussed below, we conclude that, while the trial court did not err in allowing the case to proceed with eleven jurors, the court misapplied merger principles and erred in sentencing Reed for aggravated assault with intent to rob. Accordingly, Reed’s conviction for aggravated assault with intent to rob must be set aside and the case remanded for resentencing on his conviction for attempted armed robbery.

Following a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict. See Vadde v. State, 296 Ga. App. 405 674 SE2d 323 2009. So viewed, the evidence showed that on July 2, 2004, Reed entered a feed-and-seed store in Tifton, Georgia where he routinely purchased horse feed and supplies. Reed had been a customer at the store for approximately one year and had previously been sold goods there on account.

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