Long v. The State, S10A1322.

CourtSupreme Court of Georgia
Citation287 Ga. 886,700 S.E.2d 399
Docket NumberNo. S10A1322.,S10A1322.
PartiesLONG v. The STATE.
Decision Date04 October 2010

OPINION TEXT STARTS HERE

COPYRIGHT MATERIAL OMITTED.

Charles H. Frier, Atlanta, for appellant.

Thurbert E. Baker, Attorney General, Bettiane C. Hart, Deputy Dist. Atty., Paul L. Howard, Jr., District Attorney, Paula K. Smith, Senior Assistant Attorney General, Benjamin H. Pierman, Assistant Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Elizabeth A. Baker, Asst. Dist. Atty., for appellee.

NAHMIAS, Justice.

Charles Long and Jamie Watkins were jointly tried for and convicted of numerous crimes committed against Dennis Banks and Nathaniel Woodard. 1 We have already affirmed Watkins's convictions. See Watkins v. State, 285 Ga. 107, 674 S.E.2d 275 (2009). For the reasons that follow, we affirm Long's convictions in part, vacate his two aggravated assault convictions and sentences, and remand the case to the trial court for resentencing.

1. Viewed in the light most favorable to the verdict, the evidence at trial showed that the victims drove to an apartment complex with Frazier Todd, a friend of Long and Watkins, to buy some marijuana. Todd exited the victims' car, which was parked in the front of the complex, and walked to the back of the complex, where he spoke with Long and Watkins about selling marijuana to the victims. Long and Watkins, who both had handguns, then walked to the front of the complex and approached the victims while they were sitting in their car. Long approached Banks on the driver's side and Watkins approached Woodard on the passenger's side.

Woodard testified that Long asked if they were police officers and pulled out a gun. The victims said they were not police officers. Long began yelling at the victims to give them everything the victims had. Long then started hitting Banks in the head with his gun, and Banks began to cry and was “drenched in blood,” which was “coming from everywhere all over his head.” Watkins then started beating Woodard with his gun and broke a bone between Woodard's eyes. Watkins's gun fired while he was beating Woodard, and the bullet hit Banks in the head and killed him. Long and Watkins robbed the victims of their cell phones and wallets.

Long contends that his convictions on Counts 7 and 8 of the indictment, which charged him with aggravated assault of Banks and Woodard by striking them “on or about the head with a firearm, a deadly weapon,” cannot stand, because there was insufficient evidence to show that the firearms were deadly weapons under the circumstances of this case. This contention, however, is moot, because we conclude in Division 2 below that these two convictions merged into Long's armed robbery convictions. See Lupoe v. State, 284 Ga. 576, 577, n. 2, 669 S.E.2d 133 (2008) (holding that a claim of insufficient evidence to support a conviction that has been merged into another conviction for sentencing purposes is moot).

As for Long's remaining convictions, viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find the defendant guilty beyond a reasonable doubt of those crimes. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Long contends that his conviction on Count 7 (the aggravated assault on Banks by striking him with a gun) should have merged into the conviction on Count 5 (the armed robbery of Banks) 2 and that the conviction on Count 8 (the aggravated assault on Woodard by striking him with a gun) should have merged into the conviction on Count 4 (the armed robbery of Woodard). We agree.

To determine if the aggravated assaults were lesser included offenses of the armed robberies, we apply the “required evidence” test set forth in Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006). Under that test, we examine “whether each offense requires proof of a fact which the other does not.” Lucky v. State, 286 Ga. 478, 481, 689 S.E.2d 825 (2010). In Lucky, the defendant contended that his conviction for aggravated assault with intent to rob should merge into his armed robbery conviction. “Armed robbery (OCGA § 16-8-41) requires an intent to rob, the use of an offensive weapon, and the taking of property from the person or presence of another. Aggravated assault with intent to rob (OCGA § 16-5-21(a)) requires an assault upon the victim, with the intent to rob.” Lucky, 286 Ga. at 481, 689 S.E.2d 825. We concluded that armed robbery contained a requirement-the taking of property-that aggravated assault did not, but that aggravated assault with intent to rob did not require proof of a fact which armed robbery did not. See id. at 482, 689 S.E.2d 825. Both crimes required proof of an intent to rob, and the assault requirement of aggravated assault-that the defendant attempt to commit a violent injury to the victim or place the victim in reasonable apprehension of receiving a violent injury-was the equivalent of the “use of an offensive weapon” requirement of armed robbery. See id. Thus, we held that “the aggravated assault with intent to rob merges into the armed robbery conviction.” Id.

In this case, the aggravated assault with a deadly weapon, see OCGA § 16-5-21(a)(2), also does not require proof of a fact that armed robbery does not. Because Lucky establishes that the assault requirement of aggravated assault is the equivalent of the “use of an offensive weapon” requirement of armed robbery, the controlling issue is whether the “deadly weapon” requirement of this form of aggravated assault is the equivalent of the “offensive weapon” requirement of armed robbery. We conclude that it is.

For purposes of armed robbery, ‘the term “offensive weapon” includes not only weapons which are offensive per se, such as firearms loaded with live ammunition, but also embraces other instrumentalities not normally considered to be offensive weapons in and of themselves but which may be found by a jury to be likely to produce death or great bodily injury depending on the manner and means of their use.’ Phillips v. State, 259 Ga.App. 331, 332, 577 S.E.2d 25 (2003) (quoting Eady v. State, 182 Ga.App. 293, 295, 355 S.E.2d 778 (1987)). Similarly, with regard to the “deadly weapon” requirement for aggravated assault, our appellate courts have held that a weapon that may be found by a jury to produce death or great bodily injury based on its use in a particular case constitutes a deadly weapon. See Skaggs v. State, 278 Ga. 19, 20-21, 596 S.E.2d 159 (2004) (holding that fists and feet were deadly weapons because they were, under the circumstances of the case, capable of producing serious bodily injury or death); Johnson v. State, 185 Ga.App. 167, 169-170, 363 S.E.2d 773 (1987) (holding that it is appropriate to charge that a deadly weapon is one capable of inflicting great bodily injury).

We therefore conclude that there is no element of aggravated assault with a deadly weapon that is not contained in armed robbery and that Long's aggravated assault convictions merged into his armed robbery convictions. Those convictions and the sentences entered for them must therefore be vacated and the case remanded to the trial court for resentencing. 3 This holding also moots Long's contention regarding the trial court's jury charge on aggravated assault. See Vergara v. State, 287 Ga. 194, 196, 695 S.E.2d 215 (2010) (holding that a contention regarding an erroneous jury charge on a conviction that has been merged into another conviction for sentencing purposes is moot).

3. Long contends that the trial court erred in failing to grant his motion to sever his trial from Watkins's trial. To prevail on this claim, however, Long must demonstrate, among other things, that a joint trial prejudiced his defense and resulted in a denial of due process. See Krause v. State, 286 Ga. 745, 749, 691 S.E.2d 211 (2010). Long contends that he was prejudiced because he could not call Watkins as a witness at the joint trial. However, Long's assertion that he could have called his co-defendant as a witness at a separate trial, without Watkins's invoking his right against self-incrimination, was mere speculation, and Long also failed to show that Watkins's testimony would have been favorable to him. Long therefore failed to carry his burden to show the required prejudice. See Owen v. State, 266 Ga. 312, 314, 467 S.E.2d 325 (1996) (holding that Owen failed to show prejudice from the denial of her motion to sever, because she “made no showing that her co-defendants would be more likely to testify if they were tried separately; nor did she show that her co-def...

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