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Garland v. State

The defendant's conviction for aggravated assault was vacated, as it should have merged into his attempted armed robbery conviction on the basis that it did not require proof of any fact that the latter conviction did not also require.

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Convicted of numerous offenses, Mack Garland raises claims concerning trial counsel ineffectiveness, evidentiary sufficiency, and merging of counts for sentencing purposes. We find merit in only the merger claim, and thus affirm in part, vacate in part, and remand the case for resentencing. For purposes here, the trial evidence can be summarized as follows. On December 10, 2003, two men broke into a residence and demanded at gunpoint drugs from the homeowner, an admitted marijuana dealer. During the encounter, one of the intruders used a gun to strike the homeowner about the head. The homeowner was able to grab his own gun and shoot the other intruder. Both intruders then fled the scene, without having obtained the marijuana they had demanded.

In connection therewith, three men were indicted. One of them, Russell Stahl, entered guilty pleas to several charges in exchange for his testimony about the incident. Accordingly, at trial, Stahl testified that he and Garland’s brother were the intruders, and that although Garland had not gone to the residence with them, he had plotted and then helped cover up the attempted marijuana heist. The state presented additional evidence to corroborate Stahl’s account. Neither Garland nor his co-defendant Garland’s brother testified.

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