Following a jury trial, Vandy Mack Daniels was convicted of armed robbery OCGA § 16-8-41, aggravated assault OCGA SYMBOL 95 “Symbol” 10 16-5-21, and possession of a firearm during the commission of a crime OCGA § 16-11-106. The trial court denied Daniels’s motion for new trial. Daniels appeals, asserting that the trial court erred: i in failing to direct a verdict of acquittal; ii in failing to include a complete instruction on simple assault when defining the crime of aggravated assault; and iii in failing to merge the aggravated assault offense with the armed robbery offense for sentencing purposes. Finally, Daniels contends that he was not afforded reasonably effective assistance of counsel. We agree that the trial court’s failure to merge the aggravated assault conviction with Daniels’s armed robbery conviction in imposing the sentence was erroneous, and we therefore vacate the aggravated assault conviction and remand the case for resentencing. The remaining claims of error, however, are without merit and we affirm on those grounds. Viewed in the light most favorable to the verdict, see Jackson v. Virginia , 443 U.S. 307, 318-319 99 SC 2781, 61 LEd2d 560 1979, the evidence shows that on March 7, 2006, Daniels, who was wearing a dark mask with aluminum foil underneath entered a convenience store, pointed a gun at the store clerk behind the counter, and demanded money. A second store employee was also present behind the counter with the store clerk at the time of the robbery. While the store clerk was gathering money from the cash registers, Daniels pulled the trigger of his gun three or four times. Each time, however, Daniels’s weapon misfired. The store clerk put the cash into Daniels’s bank bag. After Daniels obtained the cash, he told the clerk to turn around and put her hands up, at which point Daniels ran out the front door of the convenience store.
At approximately the same time Daniels ran from the convenience store, a third employee, who had been unaware of the robbery, came out from the back room where he had been working. When the third employee was informed that the store had been robbed, he ran from the store, pursuing Daniels on foot. The store clerk thereafter called the police to report the robbery. While en route to the convenience store, the police were informed that a store employee was pursuing Daniels; they subsequently changed course and went directly to the area to which Daniels had fled.
