A jury found Darius Darnell Haynes guilty of armed robbery, aggravated assault, burglary, and possession of a firearm during the commission of a felony based on his participation in a home invasion. The trial court denied Haynes’s motion for new trial. On appeal, Haynes contends that there was insufficient evidence to convict him of aggravated assault and that the trial court erred in failing to merge his aggravated assault conviction into his armed robbery conviction for purposes of sentencing. For the reasons set forth below, we agree
Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to the jury’s verdict. Braham v. State,
Responding to a knock at the front door, the husband was confronted by two men holding handguns. The first gunman wore a baseball cap with a hoodie pulled over it, while the second gunman had on a baseball cap, a hoodie, and a piece of clothing covering his face. The two gunmen forced their way through the doorway and into the living room. During the course of the home invasion, they repeatedly demanded money and demanded to know the whereabouts of the tenant who lived in the basement.
The husband began wrestling with the first gunmen while his wife ran down the hall in an effort to find her cell phone and call for help. The second gunman then hit the husband in the head with his gun and ran down the hall in pursuit of the wife. After getting hit with the gun, and after the first gunman threatened to have his partner shoot the wife and children if the husband continued to fight, the husband stopped wrestling with the gunman. The husband stood in front of his children in an effort to shield them from harm as the first gunman held them at gunpoint. During the fight with the husband, the hoodie had slipped off the first gunman’s head, and the husband could now get “a clear look at [the gunman’s] face” as he was pointing the gun at the husband.
When the wife was unable to find her cell phone, she barricaded herself in the master bathroom. The second gunman who had pursued her down the hall began banging on the bathroom door, and the wife opened the door out of fear that he would start shooting. The second gunman forced her to walk back down the hall into the living room at gunpoint, where she was ordered to lie down on the floor. The wife was able to clearly see the face of the first gunman, who was pointing a gun at her husband, as she was forced into the living room and onto the floor at gunpoint.
After forcing the wife back into the living room, the second gunman ran downstairs to the basement and began ransacking it. While the second gunman was ransacking the basement, the first gunman held the family at gunpoint in the living room, continuing to ask “where the money was” and “where [the tenant] was,” and the
Detectives identified Haynes as a potential suspect because he had previously been involved in a heated dispute over money with the tenant who lived in the basement of the family’s home. A detective prepared separate photographic lineups, each of which included a picture of Haynes,
Haynes was indicted and tried before a jury on charges of armed robbery, aggravated assault, burglary, and possession of a firearm during the commission of a felony.
1. Haynes contends that there was insufficient evidence to convict him of aggravated assault, but his contention is.moot because we conclude in Division 2 below that his aggravated assault conviction merged into his armed robbery conviction for sentencing purposes. See Long v. State,
2. Haynes contends that the trial court erred in failing to merge his aggravated assault conviction into his armed robbery conviction for purposes of sentencing. The indictment alleged that Haynes committed the offense of armed robbery under OCGA § 16-8-41 (a) in that, with the intent to commit a theft, he took certain electronic equipment from the immediate presence of the husband and wife “by use of an offensive weapon, to wit: a handgun.” The indictment further alleged that Haynes committed the offense of aggravated assault under OCGA § 16-5-21 (a) (2) in that he assaulted the husband “with an object, to wit: a handgun, which, when used offensively against another person is likely to result in serious bodily injury, by striking [him] in the back of the head with the handgun.” According to Haynes, the aggravated assault was a lesser included offense of the armed robbery, requiring merger. We agree.
‘Whether offenses merge is a legal question, which we review de novo.” McGlasker v. State,
It is axiomatic that Georgia law bars conviction for a crime that arises from the same criminal conduct included as a matter of fact or as a matter of law in another crime for which the defendant has been convicted. To determine if an aggravated assault with a deadly or offensive weapon, indicted under OCGA § 16-5-21 (a) (2), is a lesser included offense of armed robbery, we apply the “required evidence” test set forth in Drinkard v. Walker,281 Ga. 211 (636 SE2d 530 ) (2006). Long[,287 Ga. at 888 (2)]. Under that test, the important question is . . . whether, looking at the evidence required to prove each crime, one of the crimes was established by proof of the same or less than all the facts required to establish the commission of the other crime charged. In Long, the Supreme Court of Georgia concluded that there is no element of aggravated assault with a deadly or offensive weapon, OCGA § 16-5-21 (a) (2), that is not contained in armed robbery, OCGA § 16-8-41 (a). Consequently, convictions for both offenses will merge — but only if the crimes are part of the same act or transaction.
(Citations and punctuation omitted.) Crowley v. State,
Here, the husband and wife testified that in addition to demanding to know the whereabouts of the tenant who lived in the basement, the gunmen repeatedly demanded to know “where the money was” during the home invasion, and the husband was struck in the head with the handgun as the gunmen were attempting to subdue the family so that the money and tenant could be located in the home, and before any of the family’s property had been taken. Under these circumstances, the striking of the husband with the handgun and the commission of the armed robbery were not separate and distinct acts committed in sequential order but rather were “one uninterrupted criminal transaction.” Crowley,
The State, however, attempts to differentiate between the gunmen’s search for money in the home and their subsequent taking of the electronics when no money could be found. The State suggests that the gunmen’s efforts to subdue the family and hold them at gunpoint so that they could search for money in the home was a separate act or transaction from the ultimate taking of the electronics. We are unpersuaded.
We rejected a similar argument in Hall,
[t]he State’s argument that Hall’s taking of the Xbox console was an “afterthought” in no way changes this result. Indeed, it is not determinative under the merger analysis... that the desired object of Hall’s armed robbery was something other than that which he actually took. Instead, what dictates merger is the fact that both crimes for which Hall was convicted were predicated upon the same conduct — namely, Hall’s use of the handgun to overpower and intimidate [one of the victims] for the purpose of robbing the victims of their belongings.
Id. at 69.
Similar to Hall, the aggravated assault and armed robbery in the present case were predicated on the same conduct — the gunman’s use of the handgun to overpower and intimidate the husband for the purpose of robbing the family of their belongings. Thus, contrary to the State’s argument, the aggravated assault conviction merged into the armed robbery conviction, Haynes’s conviction and sentence for aggravated assault must be vacated, and the case must be remanded to the trial court for resentencing. See generally Sears v. State,
Judgment affirmed in part and vacated in part, and case remanded for resentencing.
Notes
The four photographic lineups prepared by the detective had pictures of the same six individuals (including Haynes), but the pictures were assigned a different order in each lineup.
The couple’s son was one year old at the time of the home invasion.
Detectives ultimately identified the second gunman, who had his face covered during the home invasion. The charges relating to the home invasion brought against the second gunman were nolle prossed as part of a plea deal under which the gunman pled guilty to other unrelated crimes.
We note that neither battery nor aggravated battery was charged in this case. See Bradley v. State,
The State’s reliance on Bunkley v. State,