Following a bench trial in the Superior Court of Cobb County, Michael Rigo was found guilty of false imprisonment, aggravated assault, cruelty to children, and battery under the Family Violence Act, which charges arose in relation to acts Rigo perpetrated against his wife. He appeals, claiming that the trial court erred by failing to merge the offense of false imprisonment with the offense of battery; that the evidence was insufficient to support his conviction for cruelty to children; that the trial court improperly relied upon a pre-sentence investigation in aggravation of sentence; and that he received ineffective assistance of counsel at trial. We have reviewed these enumerated errors and, finding each meritless, affirm Rigo’s conviction. 1. The offense of battery is not a lesser included offense of false imprisonment and the crimes do not merge as a matter of law.1 Nor, in this case, did the offenses merge as a matter of fact because the proof of each offense was distinct from proof of the other. Rigo bruised his wife’s throat by strangling her after he had already bound her hands and wrists with duct tape and was unlawfully holding her against her will. That a distinct separate offense, like a battery or a rape, occurs during the on-going course of another completed offense, like false imprisonment, does not in itself preclude conviction and sentence for each.2 Rigo’s claims to the contrary are without merit.
2. Equally without merit is Rigo’s claim that the evidence was insufficient to support his conviction for cruelty to children because the State failed to prove that he intentionally allowed his child to witness his felonious acts against the victim. Viewed to support the verdict,3 the evidence was that Rigo’s young daughter woke up when Rigo began screaming at her mother and was present when Rigo pointed a gun at her mother and bound her mother with duct tape. The victim testified that during the above acts, the child “was coming in between us. And he’s Rigo like, how come she was in bed with you and I wasn’t expecting her to see this. And it’s all your fault. She’s going to witness you die, and she’s never going to forget that. And she’s going to be scarred.” The evidence was that Rigo repeatedly pushed the child out of his way so he could continue his attack on the victim. We find this evidence sufficient for a rational trier of fact to have found beyond a reasonable doubt that Rigo intentionally allowed his minor daughter to witness the felonious acts he perpetrated.
