Reed v. State, 318 Ga. App. 412

Reed was convicted by an eleven-person jury of two counts of aggravated assault and one count of attempted armed robbery.
The trial court merged the three counts as a matter of fact and sentenced Reed to twenty years for aggravated assault with intent to rob.
Reed moved for a new trial, which the court denied.
A juror violated court orders by reading a news article; the court replaced the juror and proceeded with eleven jurors.
On appeal Reed argues (a) proceeding with eleven jurors was error, and (b) improper merger for sentencing; the court remands for resentencing on the attempted armed robbery conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether proceeding with eleven jurors violated rights	Reed's waiver of a twelve-member jury was valid through counsel's request and Reed's assent.	Reed contends the waiver was improper and prejudicial.	Waiver valid; proceeding with eleven jurors proper.
Whether aggravated assault counts merged into attempted armed robbery for sentencing	Aggravated assault counts were lesser offenses included in attempted armed robbery and should merge.	Merger principle not correctly applied; aggravated assaults should not be merged here.	Aggravated assault counts must merge into attempted armed robbery; vacate and remand for resentencing on attempted armed robbery.

Vadde v. State, 296 Ga. App. 405 (2009) ((674 SE2d 323) (2009) – standard viewing evidence in light most favorable to verdict)
Hambrick v. State, 256 Ga. 148 (1986) (when convictions merge as a matter of fact, lesser includes into greater)
Davis v. State, 312 Ga. App. 328 (2011) (convictions merging; appellate review of merger)
Garland v. State, 311 Ga. App. 7 (2011) (merger principles for concurrent offenses)
Herndon v. State, 229 Ga. App. 457 (1997) (merger when aggravated assault and armed robbery merge)
Redding v. State, 196 Ga. App. 751 (1990) (convictions merge; sentencing based on greater offense)