McGlasker v. State
321 Ga. App. 614
Ga. Ct. App.2013Background
- Three robbery incidents occurred within three miles in DeKalb County on December 1, 2008, with a gold Chevrolet Cavalier linked to all three crimes.
- Victims described a female driver (McGlasker) and two male accomplices; pocketing of cash, phones, and other property occurred under threat with a gun.
- Victim 1 identified the two men from a lineup; victim 3 identified McGlasker as the driver; victim 2 identified one gunman but not the second robber.
- Police recovered stolen items and a .357 revolver from the residence; a be-on-the-lookout was issued; suspects were arrested.
- McGlasker was tried and convicted on three counts of armed robbery and four counts of aggravated assault; the trial court denied a motion for new trial.
- The appellate court affirmed some aspects, vacated the merger issue regarding victim 2, and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Venue sufficiency beyond reasonable doubt | McGlasker contends venue failed. | State failed to prove DeKalb County as venue for all acts. | Venue proven beyond reasonable doubt; DeKalb County established. |
| Merger of aggravated assault into armed robbery (victim 2) | Aggravated assault was part of the same act or transaction as the robbery and should merge. | Aggravated assault was a separate act arising from violence during the robbery and may not merge. | Aggravated assault merged into armed robbery; remand for resentencing. |
| Ineffective assistance of counsel for merger request | Counsel should have requested merger of Counts 2 and 8 based on merger ruling. | Issue moot after merger determination. | Moot due to merger ruling. |
Key Cases Cited
- Jones v. State, 272 Ga. 900 (Ga. 2000) (venue must be proven beyond a reasonable doubt)
- Chapman v. State, 275 Ga. 314 (Ga. 2002) (venue proof standards and admissible evidence considerations)
- Long v. State, 287 Ga. 886 (Ga. 2010) (required evidence test for merger of offenses)
- Thomas v. State, 289 Ga. 877 (Ga. 2011) (merger depends on acts within same act/transaction; later acts may not merge)
- Bradley v. State, 292 Ga. 607 (Ga. 2013) (aggravated assault with deadly weapon contains no unique element beyond armed robbery)
- Crowley v. State, 315 Ga. App. 755 (Ga. App. 2012) (same act/transaction concept and interruptions between acts)