Mullis v. State
321 Ga. App. 720
Ga. Ct. App.2013Background
- Mullis was tried by jury and convicted of criminal attempt to commit armed robbery, aggravated assault, burglary, and three counts of possession of a knife during the commission of a felony.
- On appeal Mullis contends aggravated assault with intent to rob and attempted armed robbery merged as a matter of fact.
- Evidence shows Mullis tricked a 84-year-old homeowner, Leola Freeman, into opening her screen door, entered her home by force, and threatened her with a knife while attempting to rob her.
- Freeman fought Mullis, Mullis pushed her, she fell, and Mullis fled after she grabbed a phone; Mullis admitted to police he intended to rob Freeman.
- The trial court denied a motion for new trial; the appellate court must decide whether the offenses merge under legal standards for merger.
- The court vacates one conviction (aggravated assault) and remands for resentencing, holding the offenses merged.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do aggravated assault and attempted armed robbery merge? | Mullis argues the two offenses arose from separate elements and should not merge. | State contends the offenses were part of the same act/transaction, so they merge. | Yes, they merge; aggravated assault conviction vacated; remanded for resentencing. |
Key Cases Cited
- Blockburger v. United States, 284 U.S. 299 (U.S. Supreme Court 1932) (two offenses require proof of different facts to avoid merger)
- Rankin v. State, 278 Ga. 704, 705 (Ga. 2004) (merger depends on whether one offense is included in the other)
- Long v. State, 287 Ga. 886, 889 (Ga. 2010) (merger analysis emphasized when offenses arise from same act/transaction)
- Thomas v. State, 289 Ga. 877, 880 (Ga. 2011) (recognizes factors in merger and required evidence test)
- Bradley v. State, 292 Ga. 607, 610 (Ga. 2013) (illustrates application of merger/required evidence framework)
- McGlasker v. State, 321 Ga. App. 614, 616 (Ga. Ct. App. 2013) (merger analysis in Georgia appellate context)
- Drinkard v. Walker, 281 Ga. 215 (Ga. 2006) (required evidence test governs whether two offenses are separate)
- Blockburger v. United States, 284 U.S. 299 (U.S. Supreme Court 1932) (classic test for merger when acts constitute multiple offenses)