Regent v. State
299 Ga. 172
Ga.
2016
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REGENT v. THE STATE

S15G1829

Supreme Court of Georgia

JUNE 6, 2016

787 SE2d 217

meaningless. See (In intеrpreting a statute, we must “avoid a construction that makes some language [in the statute] mere surplusage“).

Accordingly, we reverse the Court of Appeals’ decision with respect to its interpretation of OCGA § 34-9-82 (a) as well.5

Judgments reversed. All the Justices concur.

DECIDED JUNE 6, 2016.

Speed, Seta, Martin & Trivett, Eric L. Trivett, Danielle R. Taylor; Swift, Currie, McGhee & Hiers, Michael Rosetti, for appellants.

Kermit S. Dorough, Jr., for appellee.

Constangy, Brooks, Smith & Prophete, Jason C. Logan, Eric S. Proser; Sponsler, Bishop, Koren & Hammer, Ann B. Bishop; Drew, Eckl & Farnham, Harold M. Bagley, amici curiae.

HUNSTEIN, Justice.

Appellant Steven Regent pled guilty to one count of aggravated assault and one count of aggravated battery arising out of an incident in which he twice, in quick succession, slashed his girlfriend‘s throat. The Court of Appeals affirmed Regent‘s conviction and sentence for each offense, see , and we granted certiorari to review the Court of Appeals’ conclusion that Regent‘s convictions do not merge. We now hold that Regent‘s conviction for aggravated assault merged with his conviction for aggravated battery, and we reverse the judgment of the Court of Appeals.

A Fulton County grand jury indicted Appellant on one count of aggravated battery and one count of aggravated assault. The indictment charged as follows:

Count 1 of 2

... the citizens of Georgia, do charge and accuse [Appellant] with the offense of Aggravated Assault OCGA § 16-5-21, for the said accused, in the County of Fulton and State of Georgia, on the 27th day of January, 2008, did unlawfully commit an assault upon the [victim] ‍‌​​​​​‌​‌‌‌​​‌​‌​​​‌‌​‌‌​‌‌​​​​​​​‌​‌​​​​​‌‌​‌‌‌‍by cutting her throat with a knife, an object which when used offensively against a person is likely to result in serious bodily injury; — contrаry to the laws of said State, the good order, peace and dignity thereof;

Count 2 of 2

... and the Grand Jurors aforesaid, in the name and behalf of the citizens of Georgia do charge and accuse [Appellant] with the offense of Aggravated Battery OCGA § 16-5-24, for said accused, in the County of Fulton and State of Georgia, on the 27th day of January, 2008, did maliciously cause bodily harm to [the victim] by seriously disfiguring her body; said accused having accomplished said act by slashing her across the throat with а knife; — contrary to the laws of said State, the good order, peace and dignity thereof.

(Emphasis supplied.) Appellant entered a non-negotiated plea of guilty to both counts, and, following Appellant‘s plea, the trial сourt received detailed testimony from the victim. The victim testified that, shortly after the couple returned to her residence following a birthday party, Appellant suddenly began punching her; she fell to the floor. Appellant retrieved а knife from the kitchen. According to the victim, Appellant “took the knife and slithered it across [her] throat,” almost slicing off her ear. The victim testified that she screamed and fought but that he “did it again,” cutting her throat below the original injury. As a result of her injuries, the victim has trouble speaking, eating, and swallowing; the victim has also lost her sense of taste and has no feeling on the injured side of her face. Appellant was sentenced to prison for 20 years, with 12 years to serve, for the aggravated assault conviction; he received a consecutive 10-year sentence for aggravated battery. On appeal, Appellant argued that the trial court erred by denying his motion to merge the two convictions. The Cоurt of Appeals, applying the “required evidence test,” see , concluded that “aggravated assault and aggravated battery are two separate offenses with different elements of proof” and, thus, that the two offenses did not merge. . We granted certiorari to review the Court of Appeals’ merger analysis, which we conclude was incomplete and, therefore, incorrect.

“Whether offenses merge is a legal question, which we review de novo.” .

As аn initial matter, the indictment appears to charge Appellant as if each slice of the knife was a separate criminal act, the first count charging aggravated assault based on Appellant‘s act of “cutting” the victim‘s throat and the second count charging aggravated ‍‌​​​​​‌​‌‌‌​​‌​‌​​​‌‌​‌‌​‌‌​​​​​​​‌​‌​​​​​‌‌​‌‌‌‍battery based on Appellant‘s act of “slashing” the victim‘s throat. Though we have not addressed this exact scenario, our case law plainly holds that multiple wounds inflicted in quick succession do not necessarily constitute distinct criminal acts. See . See also (“When a victim suffers multiple wounds inflicted in quick succession, each infliction of injury does not constitute a separate assault.“). Cf. (separate convictions for aggravated assault and murder were authorized by evidence showing that defendant committed an initial aggravated assault independent of his subsequent act which caused the victim‘s death). Rather, we have recognized that a deliberate intervаl must exist between the completion of one criminal act and the start of a separate criminal act. .

Here, Appellant straddled his girlfriend, slashed her throat and, almost immediately thereafter while she fought against him, cut her agаin. The record sufficiently establishes that Appellant‘s actions were “part of a continuous criminal act, committed at the same time and place and inspired by the same criminal intent.” . See also (49 successive stab wounds inflicted in quick succession constituted a single assault). Accordingly, though Appellant was charged as if he had committed two distinct criminal acts, the charges here arose out of the same criminal transaction. This conclusion does not end our inquiry; we must next dеtermine whether Appellant‘s separate conviction and sentence for each offense was proper.

While an accused may be prosecuted for more than one crime arising out of the same criminal сonduct, he may not be convicted of more than one crime arising out of the same criminal conduct where one crime is included in the other. OCGA § 16-1-7 (a) (1). A crime is included in the other when:

(1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or

(2) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind оf culpability suffices to establish its commission.

OCGA § 16-1-6. With respect to subsection (1), the “required evidence test” is utilized to determine “whether multiple convictions are precluded because one of the crimes was ‘established by proof оf the same or less than all the facts’ that were required to establish the other crime.” . While the Court of Appeals employed the required evidence test below, that test is exclusive to a merger analysis under OCGA § 16-1-6 (1); however, there are other circumstances in which a merger ‍‌​​​​​‌​‌‌‌​​‌​‌​​​‌‌​‌‌​‌‌​​​​​​​‌​‌​​​​​‌‌​‌‌‌‍analysis will not end with the required evidence test. . See also (Blackwell, J., concurring in part and dissenting in part). As this Court explained in , “[t]hese other statutory provisions resolve potential gaps in the ‘required evidence’ analysis which otherwise might support multiple convictions for closely related offenses where multiple convictions are unwarranted.” . Thus, even if the Court of Appeals correctly concluded that aggravated assault and aggravated battery each require proof of elements that the other does not — thus satisfying the required evidence test relevant to OCGA § 16-1-6 (1) — the merger of the two offenses may still be required by Georgia‘s other statutory definitions of included offenses. .

Relevant here, subsection (2) of OCGA § 16-1-6 provides that one crime is included in another if that crime differs from the other “only in the respect that a less serious injury or risk of injury to the same person, property, or public interest ... suffices to establish its commission.” In , this Court concluded “that the only difference between aggravated battery and murder is that the former requires a less serious injury to the person of the victim, as the injury to a bodily member specified in the aggravated battery statute is obviously less serious than death.” . See also . Likewise, the offenses here, which are based on the single criminal act of Appellant cutting the victim‘s throat with a knife, only differ with respect to the seriousness of the injury or risk of injury suffered by the victim; while the aggravated assault count requires proof that Appellant cut the victim‘s throat with a knife, a weapon likely to result in serious bodily injury, the aggravated battery count requires proof of actual “bodily harm by serious disfigurement” that resulted from Appellant having slashed the victim‘s thrоat with a knife. Accordingly, as charged here, aggravated assault is included in aggravated battery, and the two offenses should have merged.1 See (aggravated assault and aggravated battery, both premised on defendant‘s act of striking the victim with a hammer, merged pursuant to OCGA § 16-1-6 (2) because, as charged in the indictment, aggravated assault required ‍‌​​​​​‌​‌‌‌​​‌​‌​​​‌‌​‌‌​‌‌​​​​​​​‌​‌​​​​​‌‌​‌‌‌‍proof of a less serious injury than aggravated battery).

The trial court erred by failing to merge aggravated assault with aggravated battery, and the Cоurt of Appeals erroneously affirmed that decision. The judgment of the Court of Appeals is reversed, and this case is remanded for proceedings consistent with this opinion.2

Judgment reversed and case remanded. All the Justices concur.

Notes

1
There exists a line of cases in the Court of Appeals holding that аggravated assault with a deadly weapon and aggravated battery do not merge because aggravated assault requires proof of the use of a weapon, while aggravated battery does not. See, e.g., . These deсisions fail to recognize, however, that in cases where a defendant causes the serious bodily harm required for aggravated battery — which includes rendering a member of a body useless or serious disfigurement, see OCGA § 16-5-24 (a) — a defendant will almost always have used a “deadly weapon or ... any object, device, or instrument which, when used offensively ‍‌​​​​​‌​‌‌‌​​‌​‌​​​‌‌​‌‌​‌‌​​​​​​​‌​‌​​​​​‌‌​‌‌‌‍against a person, is likely to or actually does result in bodily injury,” which also proves aggravated assault, see OCGA § 16-5-21 (b) (2). See, e.g., (recognizing that hands and fеet may be deadly weapons depending on the circumstances of the offense and the victim‘s injuries). Accordingly, though the statutory provisions differ with respect to a “weapon” element, the practical result is that the same wеapon that is required for aggravated assault also plays a role in the injuries giving rise to the aggravated battery charge; in such cases, where serious bodily harm arises from the use of a deadly weapon, the bodily harm element imрlies the use of a weapon.
2
The Court of Appeals also vacated a banishment provision in Appellant‘s sentence; we were not asked to consider this issue, and our decision has no bearing on that portion of the Court of Appeals’ judgment.
5
Although we agree with Roseburg that Barnes’ claim with respect to his fictional new injury is barred by the one-year statute of limitation of OCGA § 34-9-82 (a), we reject Roseburg‘s claim that its insurer, ACE American, was not an alter ego of Roseburg for purposes of this claim. ACE American contends that, because CCMSI, and not ACE American, made the payments for Barnes’ remedial treatment, ACE American could not be considered to be an alter ego of Roseburg for purposes of Barnes’ workers’ compensation claim. This is incorrect. Regardless of which entity connected with Roseburg made the payments, Roseburg as a whole is the entity responsible for ensuring that the payments are made. Both CCMSI and ACE American are alter egos of Roseburg for purposes of the workers’ compensation claims for which Roseburg, as a whole, is ultimately responsible. See (“The insurer is the alter ego of the employer and what the employer knows the insurer knows as a matter of law“); OCGA § 34-9-82 (a) (remedial treatment is “furnished by the employer“) (emphasis supplied); OCGA § 34-9-1 (3) (“If the employer is insured, th[e] term [‘employer‘] shall include his insurer as far as applicable“).
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