Thomas v. State, 325 Ga. App. 682

Timothy Thomas pointed a loaded gun at Dennis Lopez’s head during an altercation at Cherokee Summit Apartments; a struggle ensued and Lopez was shot in both hands.
Thomas was convicted by a jury on one count of aggravated assault, two counts of aggravated battery, and one count of possession of a firearm by a convicted felon.
Thomas appealed alleging the trial court erred in not merging the two aggravated battery convictions and in not merging the aggravated assault conviction with the aggravated battery convictions.
Evidence shows Thomas was highly intoxicated, confronted Lopez and his pitbull, and fired the gun at close range, causing separate injuries to Lopez’s hands on distinct occasions.
The court held that separate acts caused separate injuries, and thus the two aggravated batteries do not merge; the aggravated assault conviction does not merge with the aggravated battery convictions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the two aggravated battery convictions merge.	Thomas argues for merger of the two batteries.	State argues no merger due to separate conduct causing separate injuries.	No merger; separate acts support separate batteries.
Whether the aggravated assault conviction merges with the aggravated battery convictions.	Thomas contends the assault should merge into the batteries as part of the same act.	State argues the assault and batteries are separate completed crimes.	No merger; assault was a separate act from the subsequent batteries.

Ledford v. State, 289 Ga. 70 (Ga. 2011) (separate conduct may yield separate aggravated batteries)
Brockington v. State, 316 Ga. App. 90 (Ga. App. 2012) (aggravated assault not merging with later aggravated battery)
Yates v. State, 298 Ga. App. 727 (Ga. App. 2009) (threat with gun followed by resistance supports non-merger)
Gonzales v. State, 298 Ga. App. 821 (Ga. App. 2009) (inapposite to the merger issue here)
Drinkard v. Walker, 281 Ga. 211 (Ga. 2006) (evidence-theory when determining merger)