X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Phipps, Senior Appellate Judge. A jury found brothers Jarvis and Jason Tucker guilty of multiple counts of armed robbery, aggravated assault, conspiracy, and numerous related offenses. In Case No. A21A1760, Jarvis appeals from the denial of his motion for a new trial, arguing that: (i) the trial court plainly erred when it admitted several witnesses’ out-of-court statements; (ii) his trial counsel rendered ineffective assistance by failing to object to those statements and by failing to move to sever some of the charges against him; (iii) the trial court erroneously admitted improper opinion testimony; and (iv) several of his convictions should merge. In Case No. A22A0023, Jason likewise appeals from the denial of his motion for a new trial, arguing that: (i) the trial court committed plain error by failing to instruct the jury that one cannot conspire with a government agent; (ii) the trial court erred by denying his motion for a directed verdict on a charge of possession of a firearm during the commission of a felony; (iii) his trial and post-conviction counsel rendered ineffective assistance in connection with statute-of-limitation issues; and (iv) several of his convictions also should merge. For the reasons that follow, we agree that the trial court should have merged each appellant’s two conspiracy convictions and also should have merged one of each appellant’s aggravated assault convictions into one of the armed robbery convictions. We further conclude that the sentences imposed for two of each appellant’s convictions are void. We therefore vacate the affected convictions and sentences and remand for the trial court to resentence both defendants. We discern no other reversible errors and otherwise affirm the trial court’s judgments. On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. Krauss v. State, 263 Ga. App. 488, 488 (1) (588 SE2d 239) (2003). So viewed, the evidence shows that one of the victims, N. A., owned several fine jewelry stores in Atlanta, including one at Greenbriar Mall. Early one morning in September 2011, he parked in his home driveway and was exiting his car when a masked man carrying a walkie-talkie put a shotgun to his head. Almost immediately, two other masked, armed men joined them. The men took N. A. inside his home, held him at gunpoint against a wall, removed his wallet and jewelry, including a “fake AP watch,” and demanded more money and the location of a safe, although N. A.’s home did not have one. At some point, one of the men fired a gun so close to N. A.’s head that he felt the bullet pass through his hair. When N. A.’s wife K. A. emerged from her upstairs bedroom, a masked man pointed a gun at her and ordered her downstairs. As she made her way down, the man pulled a necklace from her neck and demanded money, jewelry, and the location of a safe. K. A. retrieved a jewelry box from under a sink and gave it to the intruder, who then ordered her to kneel in a laundry room. In the interim, another intruder awoke the couple’s then-teenage son, ordered him at gunpoint into the laundry room, and then retrieved the couple’s then-three-year-old daughter from K. A.’s bedroom and brought her to the laundry room, as well. The masked men ransacked the victims’ home, searching for money and more jewelry. At some point, one of the intruders told another that “the ride is here,” after which they bound the hands of N. A., K. A., and their son with duct tape and fled. Shortly thereafter, K. A. freed herself and summoned law enforcement. N. A., K. A., and their son all gave first-hand accounts of the home invasion during the Tuckers’ trial. Two of the participants in the robbery — Lamon Jackson and Darden Walker — testified at trial that Jarvis was the driver for the robbery and that Jason also participated in the robbery. According to Jackson, Jarvis primarily stayed in the getaway car while the three others entered the victims’ home, although Jarvis also entered the home at some point. Once inside the home, Jackson — who was armed with a revolver — held N. A. at gunpoint while Jason and Walker — who was armed with a shotgun — went upstairs. Jackson testified that he fired the gunshot that nearly grazed N. A.’s head. After binding N. A., K. A., and their son with duct tape, the men left with money and jewelry, which they later divided among themselves. Walker testified that Jarvis also gave him the proceeds from the sale of some of the stolen jewelry at some point after the robbery. Steven Thompson testified that he recruited Jarvis, Jason, Jackson, and Walker to rob N. A.’s home, although Thompson did not directly participate in the robbery itself. Before the robbery, Thompson, Jarvis, and Jason attached a GPS tracking device to N. A.’s car to obtain his home address. Thompson and Jason then monitored the car’s movements remotely. Thompson, the Tucker brothers, and Walker thereafter conducted surveillance on N. A.’s home to determine the best way to gain entry. Thompson and Jarvis retrieved the GPS tracker at some point before the robbery. Norris Owens testified that he helped Thompson plan the September 2011 home invasion by obtaining the GPS tracking device that was used to obtain N. A.’s home address. On the day the tracker was placed on N. A.’s car, Owens met the Tucker brothers and Thompson across the street from Greenbriar Mall, where one of N. A.’s jewelry stores was located. Shortly after the robbery, Owens learned that Jarvis and Thompson had an “AP” watch for sale; Owens offered to sell it to a club owner in South Carolina by the name of Edwin Francisco. When Owens drove to South Carolina to meet Francisco, the Tucker brothers followed him. And while Owens discussed the watch with Francisco, either Jarvis or Jason placed the same GPS tracking device that was used in the robbery of N. A.’s home on Francisco’s car and later monitored Francisco’s movements remotely. When Francisco drove home the following day, he noticed a truck that appeared to be following him. As he exited his car, a man ran towards him from some bushes. Francisco immediately got back in his car, and, as he backed up, he saw three armed men, who got into the truck and fled. Francisco and Walker both testified that the Tucker brothers were part of the armed crew that attempted to rob Francisco.[1] Law enforcement later obtained the GPS tracker used in both episodes, and data obtained from the device corroborated the testimony of Jackson, Walker, Thompson, and Owens. After Owens was implicated in the 2011 home invasion, he agreed to cooperate with law enforcement and began recording phone calls with Jarvis and Jason; audio recordings of several such calls were admitted and played at trial. During the calls, Owens sought to recruit a crew to commit a fictitious robbery of another jeweler’s family and planned that robbery with the Tucker brothers. Owens also recorded in-person conversations with Jarvis and Jason in which Jarvis played an active role in planning the fictitious robbery. During one of the recorded phone calls, Owens, an undercover law enforcement agent, and Jarvis discussed accosting one of the victims outside the home, and Jarvis agreed that the jeweler needed to be home to show the robbers where to find money and jewelry. Jarvis thereafter recruited Walker to take part in the robbery. On the night of January 28, 2016, Owens and the undercover agent met the Tucker brothers and Walker at a café; they planned to leave from there to travel to the fictitious robbery location, with Owens and the undercover agent in the agent’s SUV, and the other three men in a separate sedan. The Tucker brothers and Walker — all of whom were wearing black — were arrested en route, shortly after their car broke off from following the SUV and after a brief motor vehicle chase. Two loaded guns were found in their car. The jury found both Tucker brothers guilty of four counts each of false imprisonment and kidnapping, three counts of aggravated assault, two counts of armed robbery, and one count each of conspiracy to commit armed robbery, conspiracy to commit burglary, burglary, first-degree cruelty to children, and possession of a firearm or knife during the commission of a felony.[2] Both men filed motions for a new trial, which the trial court denied, and these appeals followed. Case No. A21A1760 1. At trial, FBI Special Agent Jamie Hipkiss testified that he interviewed Thompson in August 2015. Hipkiss relayed several statements made by Thompson during that interview concerning the planning and execution of the September 2011 home invasion. As Hipkiss began to recount Thompson’s statements about the robbery itself, Jason’s counsel objected to the line of questioning on hearsay grounds. The State responded that the testimony was proper as co-conspirators’ statements in furtherance of a conspiracy and as prior consistent statements, as the defendants had tried to impeach Thompson with the benefits he expected to receive in exchange for his cooperation. The trial court overruled Jason’s objection, and Hipkiss relayed Thompson’s statements about how the robbery of N. A.’s family and the attempted robbery of Francisco unfolded, which were consistent with the evidence discussed above. Hipkiss also provided testimony regarding statements made to him by Owens about the planning of the 2011 home invasion and attempted robbery of Francisco, and by Francisco about the attempt to rob him. Jarvis’s counsel did not raise any hearsay objections to this testimony. Jarvis contends on appeal that the trial court committed plain error when it admitted Hipkiss’s testimony regarding out-of-court statements made by Thompson, Owens, and Francisco. According to Jarvis, the challenged testimony was hearsay, did not qualify for admission as prior consistent statements, and instead improperly bolstered Thompson’s, Owens’s, and Francisco’s testimony. For the reasons that follow, Jarvis has not met his burden of establishing plain error. We generally review a trial court’s evidentiary rulings for abuse of discretion. McCoy v. State, 332 Ga. App. 626, 628 (774 SE2d 179) (2015). “However, where, as here, a defendant has not timely objected to the evidence [before the trial court], we review for plain error.”[3] Carmichael v. State, 353 Ga. App. 64, 70 (2) (836 SE2d 184) (2019) (citation and punctuation omitted); see also OCGA § 24-1-103 (d) (a court may take notice of “plain errors affecting substantial rights” concerning evidentiary rulings even absent a contemporaneous objection). “To establish plain error, [an a]ppellant must identify an error that was not affirmatively waived, was clear and not open to reasonable dispute, likely affected the outcome of the proceeding, and seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Thompson v. State, 304 Ga. 146, 151 (6) (816 SE2d 646) (2018); accord Roberts v. State, 305 Ga. 257, 263 (4) (824 SE2d 326) (2019). “Satisfying all four prongs of this standard is difficult, as it should be.” McGarity v. State, 311 Ga. 158, 162-163 (2) (856 SE2d 241) (2021) (citation and punctuation omitted). Here, pretermitting whether Hipkiss’s challenged testimony was improperly admitted, Jarvis has not met his burden of showing that the testimony likely affected the outcome of his trial. Notably, Jarvis’s claims of bolstering do not implicate the testimony of Jackson and Darden, both of whom gave the jury first-hand accounts of their participation in the 2011 home invasion with Jarvis and Jason that were substantially corroborated by the victims’ testimony and data obtained from the GPS tracker. The testimony by Hipkiss alleged to be improper, on the other hand, was largely limited to background information concerning the planning stages of the 2011 home invasion (including the placement of the GPS tracker on N. A.’s car) and its aftermath (including attempts to sell the AP watch and rob Francisco). While that testimony gave context to the charged crimes, it did not appreciably add to the other strong evidence of Jarvis’s guilt. And although Hipkiss also relayed some of Thompson’s statements regarding various details concerning the actual commission of the 2011 robbery, that testimony was largely — if not entirely — cumulative of the testimony of Jackson, Darden, and the victims. Moreover, Hipkiss’s testimony as to statements made by Francisco — regarding the robbery attempt on him and the discovery of the GPS tracker on his car — also concerned events that were collateral to the crimes charged in this case. All in all, Hipkiss’s testimony concerning statements made to him by Thompson, Owens, and Francisco was cumulative of other unchallenged evidence, collateral to the charged crimes, or both. And when viewed in context with the totality of the evidence, there is no likelihood that Hipkiss’s challenged testimony — regardless of whether any of it was improperly admitted — affected the outcome of Jarvis’s trial, which is fatal to his plain-error claim.[4] See Roberts, 305 Ga. at 263 (4); Thompson, 304 Ga. at 151 (6); see also Mosley v. State, 298 Ga. 849, 852-853 (2) (b) (785 SE2d 297) (2016) (because an investigator’s testimony describing another witness’s out-of-court statements was merely cumulative of other properly admitted evidence, the investigator’s testimony did not likely affect the outcome of the trial, and its admission thus was not plain error); Fraser v. State, 329 Ga. App. 1, 2 (763 SE2d 359) (2014) (it was not plain error to admit an officer’s testimony relaying the battery victim’s out-of-court statements about a prior violent act by the defendant, as the testimony was merely cumulative of the victim’s own testimony in that regard and thus did not likely affect the outcome of the trial). Moreover, Jarvis also has not met his burden of satisfying the final step of the plain-error analysis — showing that the alleged error “seriously affected the fairness, integrity, or public reputation of judicial proceedings” — as he elaborates no argument in that regard aside from a single, conclusory assertion that “this error seriously affected the fairness of the trial.” See McGarity, 311 Ga. at 162 (2); Thompson, 304 Ga. at 151 (6); see also Court of Appeals Rule 25 (c) (2) (“Any enumeration of error that is not supported in the brief by citation of authority or argument may be deemed abandoned.”); Brittain v. State, 329 Ga. App. 689, 704 (4) (a) (766 SE2d 106) (2014) (“[A]n appellant must support enumerations of error with argument and citation of authority, and mere conclusory statements are not the type of meaningful argument contemplated by our rules.”) (citations and punctuation omitted). For each of the above reasons, this enumeration of error is without merit. 2. Jarvis argues that his trial counsel rendered ineffective assistance by failing to (a) object to certain testimony and (b) move to sever several of the charges against him. We disagree. To establish ineffective assistance of counsel, one must show that counsel rendered deficient performance that prejudiced the defense. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984); Seabolt v. Norris, 298 Ga. 583, 584 (783 SE2d 913) (2016). Counsel’s performance is deficient only if it falls below the wide range of competence demanded of attorneys in criminal cases. Strickland, 466 U. S. at 687689 (III) (A). This requires a showing of errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Id. at 687 (III). Prejudice is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Id. at 694 (III) (B); Seabolt, 298 Ga. at 584-585. An ineffective-assistance claim is a mixed question of law and fact, and we accept the trial court’s factual findings unless clearly erroneous but independently apply the law to those facts.[5] Hulett v. State, 296 Ga. 49, 60 (5) (766 SE2d 1) (2014); see also Strickland, 466 U. S. at 698 (IV). The defendant bears the burden of proof on both prongs of an ineffectiveassistance claim — if he fails to establish either prong, a reviewing court need not examine the other. See Robinson v. State, 298 Ga. 455, 463 (6) (782 SE2d 657) (2016). (a) Jarvis first contends that his trial counsel rendered ineffective assistance by failing to object to Hipkiss’s improper testimony regarding out-of-court statements by Thompson, Owens, and Francisco. For the reasons stated above in Division 1, Jarvis cannot establish a reasonable probability that, but for the admission of the challenged testimony, the result of his trial would have been different. See Strickland, 466 U. S. at 694 (III) (B); Seabolt, 298 Ga. at 584-585; see also Jackson v. State, 306 Ga. 69, 84 (4) (b) (829 SE2d 142) (2019) (prejudice under the plainerror standard is equivalent to prejudice for an ineffective-assistance claim); Bozzie v. State, 302 Ga. 704, 711 (4) (b) (808 SE2d 671) (2017) (same); Wilson v. State, 297 Ga. 86, 87-88 (2) (772 SE2d 689) (2015) (the defendant could not establish prejudice resulting from trial counsel’s failure to object to the admission of a co-defendant’s out-of-court statements, as those statements were merely cumulative of properly admitted testimony). Consequently, we need not decide whether Jarvis’s trial counsel performed deficiently by failing to object to the testimony at trial. See Robinson, 298 Ga. at 463 (6). (b) Jarvis also argues that his trial counsel was ineffective for failing to move to sever the 2011 home invasion charges from the 2016 conspiracy charges. Whether to file a motion to sever some charges from others, however, is a matter of strategy, and the failure to file such a motion does not require a finding that counsel was ineffective. See Ross v. State, 313 Ga. App. 695, 696 (1) (a) (722 SE2d 411) (2012); Level v. State, 273 Ga. App. 601, 606 (2) (a) (615 SE2d 640) (2005). And, importantly, the trial court here denied Jason’s motion to sever the 2011 charges from the 2016 charges. Moreover, at the hearing on Jarvis’s motion for a new trial, he presented no new evidence that would distinguish his request for a severance from Jason’s. Under these circumstances, Jarvis’s trial counsel cannot be deemed to have performed deficiently by failing to file a motion that, in all likelihood, would have been futile. See Moon v. State, 286 Ga. App. 360, 362-363 (2) (a) (649 SE2d 355) (2007) (concluding that the defendant did not show that his trial counsel rendered ineffective assistance by not moving to sever his trial from his co-defendants’ trial after the trial court denied one co-defendant’s request for the same relief); see also Clowers v. State, 299 Ga. App. 576, 579 (2) (c) (683 SE2d 46) (2009) (rejecting a claim of ineffective assistance for failing to move to sever the defendant’s trial from the co-defendant’s trial because, inter alia, the defendant failed to show that the motion would have been granted). This claim therefore also is without merit. 3. At trial, FBI airplane pilot Richard Bell testified that, on January 28, 2016, he provided aerial surveillance for law enforcement by following a sedan, which itself was following a law enforcement SUV. As the sedan began to turn around, Bell “started calling it out” to officers on the ground; he testified that the maneuver was one that he “[saw] a lot from the air.” When Bell was asked to give some context regarding “similar maneuvers” he had seen in other cases, Jarvis’s counsel objected on the ground that the question called for speculation. Outside the presence of the jury, the State responded, “[The defense is] trying to leave the implication with this jury that their clients abandoned the operation when we all know they turned around to flee. And [Bell] can testify in other operations he’s seen similar evasive maneuvers.” The trial court overruled the objection, and the following exchange ensued: [Bell:] If that vehicle comes to a stop for any reason, it gets — it gets my attention and I alert our ground crews. And if it starts going back the opposite way it came, I call out that it’s going away, it’s moving, and I’ve seen this many, many times, hundreds of times. . . . So I’ve seen evasive maneuvers my entire career, and it’s my job to call them out. [The State:] Did you call out that this was an evasive maneuver? [Bell:] I did, because then obviously at that point they had separated, so something wasn’t the norm. During Bell’s testimony, a recording of the video he obtained during the January 28 operation was admitted, and portions of it were played for the jury. Jarvis contends that the above testimony was inadmissible because it was irrelevant and speculative and improperly usurped the role of the jury, which should have been free to make its own assessment of the aerial surveillance video. We discern no reversible error in its admission. While we generally review evidentiary rulings for abuse of discretion, such rulings are subject to harmless-error review. See Venturino v. State, 306 Ga. 391, 393 (2) (830 SE2d 110) (2019); accord OCGA § 24-1-103 (a) (“Error shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected . . . .”). In determining whether an evidentiary error was harmless, “we review the record de novo and weigh the evidence as we would expect reasonable jurors to have done so” to “assess whether it is highly probable that the error did not contribute to the verdict.” Venturino, 306 Ga. at 393 (2) (citation and punctuation omitted). In the aerial surveillance video played for the jury, the sedan in which Jarvis and his accomplices were traveling can be seen turning around and attempting to depart after it followed the undercover agent’s SUV behind a shopping center; several other vehicles then converged on the sedan. Pretermitting whether Bell’s testimony that the sedan engaged in an “evasive maneuver” was improper, any potential error in its admission was harmless, as it was cumulative of other officers’ testimony that the sedan “turned around” and engaged in “evasive” movements after its occupants “got spooked.”[6] See Bridges v. State, 293 Ga. App. 783, 784-785 (2) (668 SE2d 293) (2008) (any potential error in a former 911 operator’s testimony regarding the demeanor of 911 callers was harmless because it was cumulative of other testimony admitted without objection); Jackson v. State, 270 Ga. App. 166, 168-169 (2) (605 SE2d 876) (2004) (any potential error in two officers’ opinion testimony that a toy gun used by the defendant looked real was harmless because it was cumulative of similar testimony by the victims and another officer). Moreover, when asked during cross-examination whether he thought the occupants of the sedan “were leaving,” Bell responded, “I’m not sure where they’re going . . . .” And when asked, “[Y]ou have no idea what precipitated them turning, around; correct?” Bell responded, “No, sir.” Under these circumstances, there is no likelihood that the challenged portions of Bell’s testimony — when viewed in context with the remainder of his testimony and all of the other evidence presented — had any effect on the outcome of Jarvis’s trial, regardless of whether it was properly admitted, and this enumeration of error therefore fails. 4. (a) Jarvis argues, and the State agrees, that the trial court erred by failing to merge his two conspiracy convictions. We also agree. The merger doctrine precludes the imposition of multiple punishments for conduct that constitutes more than one crime. McKenzie v. State, 302 Ga. App. 538, 539 (1) (a) (691 SE2d 352) (2010); see also OCGA § 1617 (a). “The key question in determining whether a merger has occurred is whether the different offenses are proven with the same facts. For example, if one crime is complete before the other takes place, the two crimes do not merge. However, if the same facts are used to prove the different offenses, the different crimes merge.” Bonner v. State, 308 Ga. App. 827, 830 (2) (709 SE2d 358) (2011) (citation and punctuation omitted). Whether the object of a conspiracy is to commit one or many crimes, “it is in either case the agreement that constitutes the conspiracy, and if there is only one agreement there can be only one conspiracy.” Dorsey v. State, 331 Ga. App. 486, 489 (2) (771 SE2d 167) (2015) (citation and punctuation omitted). We review the application of the merger doctrine de novo. See Brown v. State, 314 Ga. App. 198, 205 (6) (723 SE2d 520) (2012). Jarvis was convicted of two counts of conspiracy arising out of his plan to commit the fictitious 2016 home invasion: conspiracy to commit armed robbery (Count 1) and conspiracy to commit burglary (Count 2). Because both convictions arose out of the same agreement, he could be convicted of and sentenced for only one count of conspiracy. See Dorsey, 331 Ga. App. at 489 (2); accord Price v. State, 247 Ga. 58, 60-61 (273 SE2d 854) (1981) (where, as here, a defendant is found guilty of multiple violations of a single conspiracy statute based on evidence showing “only one conspiracy,” the defendant can be convicted of only one offense of conspiracy); see also generally Waldrip v. State, 267 Ga. 739, 747 (10) (b) (482 SE2d 299) (1997) (“Evidence of a violation of a different statute does not create separate conspiracies, since the character and effect of a conspiracy are not to be judged by dismembering it and viewing separate parts but by looking at it as a whole.”), abrogated in part on other grounds as recognized in Archie v. State, 248 Ga. App. 56, 57 (1) & n. 3 (545 SE2d 179) (2001). Moreover, the trial court’s error here was not harmless because the total sentence imposed for Jarvis’s conspiracy convictions — twenty years (ten for each count) — exceeds the maximum for a single conspiracy conviction. See Dorsey, 331 Ga. App. at 489-490 (2). A conviction for conspiracy to commit a felony punishable by life imprisonment carries a maximum sentence of ten years, while a conviction for conspiracy to commit a felony punishable by a term of years carries a maximum sentence of “onehalf the maximum period of time for which [the defendant] could have been sentenced if he had been convicted of the crime conspired to have been committed.” OCGA § 16-4-8. The maximum sentence for burglary is 20 years, while armed robbery is punishable by life in prison. OCGA §§ 16-7-1 (b); 16-8-41 (b).[7] Consequently, Jarvis is subject to a maximum sentence of ten years for conspiracy, and his twenty-year total sentence for his two conspiracy convictions requires us to vacate his conspiracy conviction under Count 2 and remand the case to the trial court for resentencing. See Dorsey, 331 Ga. App. at 489-490 (2); see also generally Sears v. State, 292 Ga. 64, 73-74 (6) (734 SE2d 345) (2012) (vacating conviction that should have merged and remanding for resentencing). (b) Finally, Jarvis contends that the trial court erred by failing to merge his convictions for the aggravated assaults with a firearm of N. A. and K. A. (Counts 13 and 14) into his convictions for the armed robberies of those victims (Counts 6 and 7). The State concedes that the convictions naming K. A. as a victim (Counts 7 and 14) should merge, but maintains that the convictions naming N. A. as a victim (Counts 6 and 13) should stand. We agree with the State. Georgia law bars conviction for a crime that arises from the same criminal conduct included as a matter of fact or as a matter of law in another crime for which the defendant has been convicted. To determine if an aggravated assault with a deadly or offensive weapon, indicted under OCGA § 16521 (a) (2), is a lesser included offense of armed robbery, we apply the “required evidence” test set forth in Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530) (2006). Under that test, the important question is whether, looking at the evidence required to prove each crime, one of the crimes was established by proof of the same or less than all the facts required to establish the commission of the other crime charged. . . . [T]here is no element of aggravated assault with a deadly or offensive weapon, OCGA § 16-5-21 (a) (2), that is not contained in armed robbery, OCGA § 16-8-41 (a).[[8]] Consequently, convictions for both offenses will merge — but only if the crimes are part of the same act or transaction. Haynes v. State, 322 Ga. App. 57, 60 (2) (743 SE2d 617) (2013) (citations and punctuation omitted); accord Jefferson v. State, 360 Ga. App. 75, 79-80 (2) (860 SE2d 614) (2021). Thus, for purposes of the merger doctrine, “a lesser crime is included in the crime charged if the evidence actually presented at trial to establish the elements of the crime charged also establishes all the elements of the lesser crime.” Young v. State, 272 Ga. App. 304, 308 (2) (612 SE2d 118) (2005) (citation and punctuation omitted). It therefore is possible “to first commit aggravated assault by frightening the victim with a weapon and immediately thereafter to commit armed robbery by proceeding to use the weapon to rob the victim.” Id. (“If separate facts are used to prove each crime, the defendant may be convicted of both crimes.”); accord Smith v. State, 354 Ga. App. 882, 888 (3) (842 SE2d 305) (2020) (“[W]hen one crime is completed before the other begins, there is no merger.”) (citation and punctuation omitted); Haynes, 322 Ga. App. at 61 (2) (“If the underlying facts show that the aggravated assault was completed prior to the armed robbery, or vice versa, there is no merger.”). Where, however, “the same assault is used to support a charge of aggravated assault and a charge of armed robbery, the aggravated assault conviction must merge with the conviction of armed robbery.” Young, 272 Ga. App. at 308 (2). (i) Here, the aggravated assault and armed robbery of N. A. were two distinct episodes. The aggravated assault was completed when Walker held a shotgun to N. A.’s head outside of his home and escorted him into the home. The armed robbery subsequently occurred when Jackson guarded N. A. with a revolver against a wall inside the home while another intruder removed his wallet and jewelry and Walker and Jason ransacked the victims’ home. See Henderson v. State, 285 Ga. 240, 244 (4) (675 SE2d 28) (2009) (defendant’s aggravated assault and armed robbery convictions did not merge because the aggravated assault was completed when the defendant pointed a gun at the victim outside of a residence, inside of which the armed robbery of the victim subsequently occurred); McKenzie, 302 Ga. App. at 539 (1) (a) (defendant’s armed robbery and aggravated assault convictions did not merge because he had completed the armed robbery before he pushed his gun against the victim’s neck and asked whether she wanted to die); Ransom v. State, 298 Ga. App. 360, 361-362 (1) (680 SE2d 200) (2009) (defendant had completed the crime of aggravated assault when he pointed a gun at and threatened to kill the victim, after which he committed an armed robbery when he ordered the victim to empty his pockets at gunpoint). Consequently, Jarvis’s convictions for the aggravated assault and armed robbery of N. A. (Counts 6 and 13) do not merge. (ii) In contrast, the aggravated assault and armed robbery of K. A. were both part of the same continuous transaction that began when one intruder pointed a gun at her, ordered her downstairs, pulled a necklace from her neck, and demanded money, jewelry, and the location of a safe. The trial court therefore should have merged Jarvis’s convictions for Counts 7 and 14. See Jefferson, 360 Ga. App. at 79-80 (2) (the defendant’s convictions for aggravated assault and armed robbery should have merged because th

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
July 22, 2024 - July 24, 2024
Lake Tahoe, CA

GlobeSt. Women of Influence Conference celebrates the women who drive the commercial real estate industry forward.


Learn More
September 05, 2024
New York, NY

The New York Law Journal honors attorneys and judges who have made a remarkable difference in the legal profession in New York.


Learn More
September 06, 2024
Johannesburg

The African Legal Awards recognise exceptional achievement within Africa s legal community during a period of rapid change.


Learn More

CLIENT SERVICES/Hospitality REPRESENTATIVE-FLORIDA OFFICE Prominent mid-Atlantic law firm with multiple regional office locations seeks a f...


Apply Now ›

Prominent mid-Atlantic law firm with multiple regional office locations seeks a legal practice assistant (LPA) for our Boca Raton, FL. Offic...


Apply Now ›

Description: Fox Rothschild has an opening in the Philadelphia, PA office for a litigation associate. The ideal candidate will have two to t...


Apply Now ›
06/27/2024
The American Lawyer

Professional Announcement


View Announcement ›
06/21/2024
Daily Business Review

Full Page Announcement


View Announcement ›
06/14/2024
New Jersey Law Journal

Professional Announcement


View Announcement ›