Knight v. State, 77577

• Decision Date: 30 January 1989
• Docket Number: No. 77577,77577
• Citation: Knight v. State, 378 S.E.2d 373, 190 Ga.App. 87 (Ga. App. 1989)
• Parties: KNIGHT v. The STATE.
• Court: Georgia Court of Appeals

Page 373

378 S.E.2d 373

190 Ga.App. 87

KNIGHT v.The STATE.

No. 77577.

Court of Appeals of Georgia.

Jan. 30, 1989.

Andrews & Seery, Stephen H. Andrews, Thomasville, for appellant.

H. Lamar Cole, Dist. Atty., James E. Hardy, Asst. Dist. Atty., for appellee.

BANKE, Presiding Judge.

The appellant was sentenced to consecutive prison terms for armed robbery, burglary, rape, aggravated battery, and aggravated assault.On appeal, he contends that the evidence did not authorize the armed robbery conviction and that the aggravated battery and aggravated assault convictions should have been merged because those offenses were established by the same conduct.Held:

1.The evidence was amply sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of armed robbery.See generallyJackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).

2.The aggravated assault count of the indictment alleged that the appellant had assaulted the victim with a knife.See generallyOCGA § 16-5-21(a)(2).The aggravated battery count alleged that he had caused bodily harm to the victim "by seriously disfiguring her body by causing scars to her neck...."See generallyOCGA § 16-5-24(a).If these counts were based on the "same conduct," it is clear that the aggravated assault would be included in the aggravated battery.SeeOCGA § 16-1-7.See alsoOCGA § 16-1-6;State v. Estevez, 232 Ga. 316, 319, 206 S.E.2d 475(1974).However, the evidence showed that the appellant stabbed the victim with the knife "a dozen or so" times, transecting her larynx and esophagus and causing extensive scarring of her throat and breast."Although occurring sequentially, one after the other, each of these transactions constituted a separate offense since each was established by proof of different facts; i.e., each offense was a completed crime when the next was perpetrated upon the victim.(Cits.)"Jones v. State, 161 Ga.App. 620, 622, 288 S.E.2d 795(1982).Thus, the evidence in this case does not demonstrate that the aggravated assault and the aggravated battery were based on the "same conduct" within the contemplation of OCGA § 16-1-7, with the result that the separate convictions for these offenses may stand.AccordTalley v. State, 164 Ga.App. 150, 153(7), 296 S.E.2d 173(1982), aff'd251 Ga. 42, 302 S.E.2d 355(1983).CompareMcClure v. State, 179 Ga.App. 245(2), 345 S.E.2d 922(1986).

Judgment affirmed.

BIRDSONG, J., concurs.

BEASLEY, J., concurs specially.

BEASLEY, Judge, concurring specially.

I fully concur in Division 1 but concur in the judgment only, with respect to Division 2.

I find no case where multiple stab wounds, inflicted sequentially and without interruption, constitute separate crimes.However, considering the indictment, the proof, and the verdict in this case, what we have is that one series of stabbings, unbroken by any other act of defendant, is regarded as two acts, one being the initial assault or all of the assaults which did not result in scarring to the neck, and the other being the several stabbings resulting in scars to the neck.

Although I have a hard time viewing these multiple stabs as two separate and independent crimes, I concede that it is analytically possible and so concur in the judgment.I do not believe, however, that we should open the door to multiple counts for each stab, which I read the opinion as doing.

This case is close to, but differs from, Mills v. State, 187 Ga.App. 79, 80(4), 369 S.E.2d 283(1988), where "[t]he facts adduced to support the aggravated assault charge, as it was set forth in the indictment, were the same facts used to support the...