333 Ga. App. 339
Ga. Ct. App.2015Background
- On Sept. 8, 2011, C.B. was approached at a Citgo in Clayton County; a man brandished a gun, ordered her into her car, and drove off.
- The man (later identified as Demetrius Jernigan) kept a gun on him while forcing C.B. to use her ATM at a BP; he took cash.
- Jernigan then drove C.B. to DeKalb County, forced her to perform oral sex and then have sexual intercourse while wearing a condom.
- He again attempted ATM withdrawals at other stations, ultimately abandoned C.B. on a street; a passerby called police; C.B. identified Jernigan in a photo array and at trial.
- Indictment charges included kidnapping, hijacking, two counts of armed robbery (vehicle and currency), aggravated assault with a deadly weapon, and aggravated assault with intent to rape.
- On appeal Jernigan challenged (1) sufficiency of evidence for aggravated assault with intent to rape, and (2) sentencing of multiple counts that he argued should have merged.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for aggravated assault with intent to rape | State: circumstantial evidence (gun, isolation, condom, forced intercourse) supports intent to rape | Jernigan: no evidence he intended to rape at initial encounter when he brandished gun at Citgo | Evidence sufficient; jury could infer intent from circumstances and continuous conduct; conviction upheld |
| Whether two armed robbery counts (vehicle at Citgo and cash at BP) merge | State: robberies were separate acts at different times/locations | Jernigan: taking vehicle and later taking cash were part of one continuous transaction and should merge | Did not merge; thefts were sequential and occurred at different times/places; convictions both stand |
| Whether aggravated assault (deadly weapon) merges into armed robbery counts or assault-with-intent-to-rape | Jernigan: Count 6 is a lesser-included or duplicative offense of an armed robbery or the sexual-assault charge and should merge | State conceded Count 6 should merge with the armed robbery count for taking currency | Court: Count 6 (aggravated assault with a deadly weapon) merged with Count 5 (armed robbery by taking currency); conviction/sentence for Count 6 vacated and remanded for resentencing |
Key Cases Cited
- Kinney v. State, 155 Ga. App. 95 (1980) (intent to commit rape may be proven circumstantially)
- Butler v. State, 194 Ga. App. 895 (1990) (circumstantial evidence can establish intent for sexual offenses)
- Davis v. State, 281 Ga. 871 (2007) (single-victim multiple-items rule in robbery merger analysis)
- Drinkard v. Walker, 281 Ga. 211 (2006) (required-evidence test for merger: compare elements of offenses)
- Long v. State, 287 Ga. 886 (2010) (merger analysis and required-evidence framework applied)
- Thomas v. State, 289 Ga. 877 (2011) (same-act/transaction requirement for merger under Drinkard)
- Andrews v. State, 328 Ga. App. 344 (2014) (no merger where distinct takings occurred at different times/locations)