Ramsey appeals from his conviction of three counts of armed robbery, five counts of aggravated assault, and рossession of a firearm during commission of a felony. (Appellant was acquitted of kidnapping.)
1. Appellant contends that the trial court erred by charging the jury that aggravated assault was not a lesser included offense of armed robbery. This issuе arose when the jury, during its deliberations, asked the court several questions, including the following: “What is. an assault? What is aggravated assault? . . . During the actual attempt of armed robbery, is that considered aggravated assault? . . .” In response to those questions, the court recharged the jury on the offenses of armed robbery and aggravated assault, and informed the jury that aggravated assault is not a lesser included offense of armed robbery. Appellant objected to this latter statement, arguing that if the jury believed his testimony, aggravated assault could be a lesser included offense.
To put this issue in proper perspective, a brief statement of the facts is necessary. The evidence disclosed that Randy Mitchell went outside his homе, occupied by several members of the Mitchell family, to investigate why his dogs were barking. While checking the back of the house he was accosted by appellant, who was carrying a rifle and wearing a ski mask. Appellant forced Randy bаck inside the house, and then forced all occupants of the house into a bedroom. He ordered certain fаmily members to tie up Randy Mitchell and Kenneth Daniel, the two adult males present. Appellant then made every
Appellant testified that earlier the sаme day he had given Kenny Mitchell $4,000 for the purchase of cocaine, and appellant went to the Mitchell homе about 11:00 p.m. to get the cocaine. Randy Mitchell met appellant outside and said they did not have the cocaine and to come back later. Appellant got angry and said he wanted the cocaine or his money; Randy said hе did not have either, and went in the house. Appellant then got the rifle from his car and followed Randy into the house. After an аrgument over the drugs, Kenny offered appellant the family jewels to keep until Kenny could get the drugs or get appellаnt’s money back to him. According to appellant, after he picked up the jewelry and took the clip out of his gun, Kenny jumped up, grabbed the gun and the fight began.
Appellant argues that if the jury believed his testimony, aggravated assault would be a lesser offense of the armed robberies charged, and thus, the court’s charge that aggravated assault was not a lessеr offense was error. This argument is not well taken. Aggravated assault is not a lesser included offense of armed robbery as a matter of law, State v. Hightower,
2. Appellant asserts that the charges for aggravated assault upon Kenneth Daniel, Darlene Daniel and Audrey Mitchell merged with the charges of armed robbery of those individuals. We agree.
The armed robbery indictments alleged that appellant, with intent to commit theft, took certain items from the immediate presence of Kenneth Daniel, Darlene Daniеl and Audrey Mitchell “by the use of a rifle, the same being an offensive weapon.” The aggravated assault indictments alleged that appellant committed an assault upon the same three persons “with a rifle the same being a deadly weapon.” Thus, appellant’s pointing the rifle at these three individuals to effect the armed robbery is the act underlying apрellant’s convictions for both armed robbery and aggravated assault upon those individuals. Therefore, the three cоnvictions of aggravated assault at issue merge with the armed robberies of those three persons and must be set aside. Hambrick v. State,
Although the State argues that the assaults occurred after the armed robberies were completed, the State’s own evidence disclosed that the robberies were still in progrеss when Kenneth Daniel freed himself, jumped up and grabbed appellant’s rifle. Therefore, the convictions of aggravated assault upon Kenneth Daniel, Darlene Daniel and Audrey Mitchell must be set aside. Id.
Judgment affirmed as to Counts 1, 2, 3, 5, 7 and 10. Judgment reversed as to Counts 6, 8 and 9.