Kenneth Washington and Kendrick Hurst were tried jointly and both were convicted of robbery,1 kidnapping,2 aggravated assault,3 and possession of marijuana with intent to distribute.4 In Case No. A11A0082, we find no merit in Washington’s claims that the state violated Batson v. Kentucky 5 during jury selection; that the court erred in admitting as substantive evidence a written statement from the victim; and that the court improperly charged the jury. In Case No. A11A0083, we find no merit in Hurst’s claims that the state violated Batson v. Kentucky 6 and that the evidence was insufficient to support the verdicts. In both cases, however, the court erred, as Washington claims, in failing to merge the aggravated assault conviction into the robbery conviction; accordingly, we affirm in part and vacate in part, and we remand the cases for resentencing. The events at issue occurred on the night of July 27, 2007. The robbery victim, Michael Chitwood, testified that he saw a gold SUV with two occupants pull into the parking lot of a store. He had seen the passenger there before. He approached the SUV and began to talk to the passenger about purchasing some marijuana; he then got into the backseat of the SUV and took approximately $460 from his wallet. At that point, the driver of the SUV pointed a gun at Chitwood and demanded his money. Although he was afraid, Chitwood refused to hand over the money.
The driver then instructed the passenger to lock the doors and close the windows of the SUV. Chitwood yelled for help and tried to prevent the window from closing. The passenger put his arm around Chitwood’s neck and held him in a choke hold, and the driver drove out of the parking lot. The passenger and Chitwood struggled, and Chitwood pushed his feet against one of the SUV’s doors. The passenger then obtained the gun, placed it against Chitwood’s head, asked him whether he wanted to die, and demanded the money.