Benn v. State
309 Ga. App. 373
Ga. Ct. App.2011Background
- Benn was tried by jury on a multi-count indictment arising from a nighttime incident involving his fiancée, her daughter, and police.
- Counts included aggravated battery on a peace officer (Count 1), aggravated assault with intent to murder (Count 2) and with deadly weapon (Count 3), firearm possession during aggravated assault (Counts 4, 7, 9), robbery by sudden snatching (Count 5), aggravated assaults on two additional victims (Counts 6, 8), firearm possession during those assaults (Counts 7, 9), and fleeing (Count 11).
- Count 2 was vacated and merged into Count 1 at sentencing; nine counts remained for conviction and sentencing.
- Benn fired at a uniformed officer, wounding her, while also pursuing the fiancée and daughter as they fled.
- Benn fled the scene in a vehicle pursued with lights and sirens, ultimately captured; the officer suffered a chest wound requiring reconstructive surgery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Benn knew the victim in Counts 1 and 3 was a peace officer. | Benn contends proof failed on knowledge. | State argues knowledge was proven. | Sufficient evidence shows Benn knew officer was peace officer. |
| Whether Counts 1 and 3 merger was improper. | Counts 1 and 3 should have merged. | No merger; convict and sentence separately. | No merger; convictions and sentences proper. |
| Whether reopening evidence for sentencing provisions was improper. | Trial court erred by reopening for further sentencing testimony. | Court properly reopened to address sentencing provisions. | Court did not abuse discretion in reopening for sentencing evidence. |
Key Cases Cited
- Dawsey v. State, 234 Ga.App. 540 (1998) (knowledge that victim is peace officer supported by record)
- Coleman v. State, 286 Ga. 291 (2009) (two shots at once constitute one act of assault)
- Drinkard v. Walker, 281 Ga. 211 (2006) (test for merger when one crime is included in another)
- Leach v. State, 143 Ga.App. 598 (1977) (reopening evidence for sentencing purposes)
- Works v. State, 301 Ga.App. 108 (2009) (distinction between offenses arising from single act)