Davis v. State

The trial court erred in failing to merge the defendant's aggravated assault conviction into his attempted armed robbery conviction, as both crimes were complete when the defendant pointed a gun at the victim while simultaneously entering the victim's apartment.

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Justin Davis, a/k/a Shaun Neverson, appeals from his convictions of burglary, aggravated assault, attempt to commit armed robbery, and possession of a firearm during the commission of a felony.1 Davis contends 1 that the trial court erred by failing to merge his aggravated assault conviction into the attempted armed robbery conviction; 2 that the trial court erred by limiting defense counsel’s cross-examination of a State’s witness; and 3 that he received ineffective assistance of counsel. For the reasons set forth below, we affirm in part, vacate in part, and remand for resentencing. Viewed in the light most favorable to the verdict, the record shows that the victim was at home in his apartment with his two teenage daughters when he “heard somebody try his doorknob” around 11:00 p.m. When he looked out the window, he saw “two guys coming out the front of the apartment building running around towards the back, so he went and checked the back door to make sure that was locked.” He retrieved his gun and went back to the front of his apartment where he saw someone try the door again. When he went and checked the front door, it was unlocked, and the door came open. He saw three men wearing bandannas and hoodies and then a fourth man wearing a ski mask who “came from the blind side” of the doorway with a raised gun. The victim testified that when he saw the gun, he pulled his own gun and shot the man holding the gun in the leg. After the gunman was shot, his three companions fled.

The victim testified that the gunman was inside his apartment when he shot him. The two men then struggled with one another for both weapons and the gunman’s ski mask fell off. During the struggle, one daughter used a bat to hit the gunman on his injured leg, while the other daughter called the police. After a few minutes of struggle, the man “gave the weapon up” and told the victim “it’s the wrong apartment, it was a mistake.”

Davis v. State

The trial court erred in failing to merge the defendant's aggravated assault conviction into his attempted armed robbery conviction, as both crimes were complete when the defendant pointed a gun at the victim while simultaneously entering the victim's apartment.

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