Henry Lewis Dobbs (Dobbs) was charged with armed robbery, two counts of aggravated assault, possession of a firearm by a convicted felon and possession of a firearm during commission of a crime. Dobbs, armed with a weapon, robbed a convenience store on the evening of January 12, 1990. While fleeing, he threatened two witnesses with the weapon. The charge of possession of a firearm by a convicted felon was severed from the trial of this case. The charge of possession of a firearm during the commission of a crime was merged by the trial court into the remaining counts of the indictment. After a jury trial, Dobbs was found guilty of the remaining charges, armed robbery and two counts of aggravated assault. The trial court denied Dobbs’ motion for a new trial.
1. Dobbs alleges that the trial court erred in refusing to grant his motion for severance of the charges. He argues that because the charges of aggravated assault and armed robbery involved two different locations and two different victims they should be tried separately. It is clear from the facts of this case that the crimes were committed in order to accomplish a single criminal purpose and were part of a single scheme or plan. See
Bailey v. State,
2. Dobbs further alleges that the trial court erred in failing to direct a verdict on all three counts. As to the armed robbery count, he asserts that a fatal variance existed between the wording of the indictment and the proof offered at trial rendering a verdict that was contrary to law. Count One of the indictment was drawn, in part, as follows: “with intent to commit theft, take property of another from the person and immediate presence . . . .” (Emphasis supplied.) The corresponding portion of OCGA § 16-8-41 (a) reads: “with intent to commit theft, he takes property of another from the person or the immediate presence of another. ...” (Emphasis supplied.) Evidence presented at trial established that Dobbs reached over and took money directly out of the cash register, and not from (the person of) the clerk. Since no money was taken from the clerk and the immediate presence of the clerk, Dobbs contends that the verdict did not conform to the evidence presented with regard to that charge.
An indictment must adequately inform a defendant of the charges against him, so that the can effectively prepare a defense. “ ‘ “Variance between the
allegata
and
probata
is not fatal unless it misinforms the defendant as to the charges against him or leaves him open to subsequent prosecutions for the same offense. (Cit.)” (Cit.) Since it does not appear that appellant was misled or prejudiced, it was not error for the trial court to deny appellant’s motion for directed verdict.’ [Cit.]”
Stacy v. State,
Dobbs also contends that the trial court erred in failing to grant his motion for a directed verdict as to Counts Two and Three, which he claims were not proven beyond a reasonable doubt. Neither of the victims of the aggravated assaults, who had pursued Dobbs in the dark outside the store, was able to positively identify Dobbs. However, circumstantial evidence was presented with regard to these offenses which linked Dobbs to the scene. “The circumstantial evidence need not remove every possibility of innocence but depends upon reasonableness generally decided by the jury.”
Strickland v. State,
3. Dobbs’ third enumeration asserts that the trial court erred in denying his motion in limine seeking to exclude evidence of other robberies allegedly committed by him. The other robberies all involved convenience stores, and the witnesses testifying as to the similar transactions both identified Dobbs as the perpetrator of those crimes. “ ‘ “Evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct
outweighs
its prejudicial impact.” (Cit.) [Cits.]’ ”
Pinson v. State,
4. Finally, Dobbs contends that the trial court erred in its denial of his general demurrer and motion in arrest of judgment as to Counts Two and Three. He maintains that the indictment specified the charge of “Aggravated Assault” but was described as: “make an assault upon the person of (victim) with a handgun, a deadly weapon, by pointing said weapon at him.” He claims that this created an ambiguity which rendered the charges indistinguishable from the misdemeanor charge of pointing or aiming a gun or pistol at another (OCGA § 16-11-102) forcing him to defend two crimes rather than one. As set forth in Division 2 above, the indictment serves to put the defendant on notice of the charges against him. It cannot be argued that the general language of the indictment would control over the specific charge contained therein so as to give rise to any confusion as to the nature of the offense. Preparing a defense to the lesser included offense of pointing a pistol at another would be intrinsic to any preparation of a defense to the aggravated assault charge. This enumeration is without merit.
Judgment affirmed.