Luke v. State

• Decision Date: 14 June 1984
• Docket Number: No. 68025,68025
• Citation: Luke v. State, 318 S.E.2d 833, 171 Ga.App. 201 (Ga. App. 1984)
• Parties: LUKE v. The STATE.
• Court: Georgia Court of Appeals

Page 833

318 S.E.2d 833

171 Ga.App. 201

LUKE v.The STATE.

No. 68025.

Court of Appeals of Georgia.

June 14, 1984.

Charles R. Reddick, Homerville, for appellant.

Lew S. Barrow, Dist. Atty., Robert B. Ellis, Jr., David C. Walker, Asst. Dist. Attys., for appellee.

BENHAM, Judge.

Appellant was convicted of burglary, robbery, and aggravated assault and brings this appeal from the judgment entered on the jury's verdicts.

1.The charges brought against appellant concerned events which took place in the home of Mrs. Clarence King on July 11, 1983.In his first enumerated error, appellant contends that his constitutional guarantee against double jeopardy was infringed upon when the trial court refused to rule that the robbery charge factually merged into the burglary charge.

"A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another ..."OCGA § 16-7-1(a).In the burglary count of the indictment, the grand jury alleged that robbery was the felony appellant intended to commit when he entered Mrs. King's home.Appellant contends that the State had to prove the robbery in order to prove the burglary, and concludes that it was error to allow appellant to be convicted and sentenced on both the robbery and burglary charges.SeeOCGA § 16-1-7(a).

"Common law burglary was recognized as an offense against habitation, whereas robbery was classified as a species of aggravated larceny which violated the social interest in the safety and security of the person as well as the social interest in the protection of property rights.[Cit].The statutory definition of these offenses makes it clear that the Georgia legislature also intended to prohibit two designated kinds of general conduct, and that the two crimes, which were codified in separate chapters, are not established by the same proof of all the facts.[Cits].The burglary statute prohibits specified types of entry on the property of another without permission and with intent to commit a felony or theft.[OCGA § 16-7-1(a) ] ... [R]obbery does not involve any entry and can be committed anywhere, but the perpetrator must [take property by force, threat, or sudden snatching] and property must be taken from the person or immediate presence of another.[OCGA § 16-8-40(a) ].Thus neither crime is a lesser, or included, offense of the other as a matter of law or fact, for the facts must differ to convict under the statutes.[Cits]."Moore v. State, 140 Ga.App. 824(2), 232 S.E.2d 264(1976).See alsoOglesby v. State, 243 Ga. 690(2), 256 S.E.2d 371(1979)(neither burglary nor voluntary manslaughter is an offense included in the other within the meaning of OCGA § 16-1-7(a));Boyd v. State, 168 Ga.App. 246(8), 308 S.E.2d 626(1983)(neither burglary nor armed robbery is an offense included in the other);Bissell v. State, 157 Ga.App. 711(4), 278 S.E.2d 415(1981)(neither burglary nor attempted aggravated sodomy is an offense included in the other).Thus, no double jeopardy violation occurred when appellant was convicted of and sentenced for both the burglary and the robbery counts.

2.Appellant also contends that the trial court erroneously permitted him to be convicted of and sentenced for both robbery and aggravated assault.The evidence adduced at trial showed that appellant rifled Mrs. King's cash register drawer while his co-indictee forcibly restrained her from leaving her bed.

"A person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another: (1) By use of force; (2) By intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury ..."OCGA § 16-8-40(a)."A person commits the offense of aggravated assault when he assaults: (1) With intent to murder, to rape, or to rob ..."OCGA § 16-5-21(a).Simple assault occurs when a person "[c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury."OCGA § 16-5-20(a).

Under the indictments, as drawn, the aggravated assault conviction must merge with the robbery conviction since the victim was placed in fear of receiving bodily injury before her money was taken.Since the facts adduced to support the robbery charge were the same facts used to support the aggravated assault charge, the aggravated assault charge must be considered an offense included with the robbery charge under OCGA § 16-1-7(a).SeeHizine v. State, 148 Ga.App. 375(1), 251 S.E.2d 393(1978).See alsoChitwood v. State, 170 Ga.App. 599(4), 317 S.E.2d 589(1984).

3.Finally, appellant asserts as error the trial court's denial of his motion for mistrial after a witness for the State allegedly injected appellant's character into the trial.The witness, who had been riding in a car with appellant and his co-indictee prior to the incidents at Mrs. King's home, stated that appellant and his co-indictee were "talking crazy" and "doing crazy things" in the car.When asked by the district attorney to relate what the two men were talking about doing, the witness responded, "Well, they were talking about how one of them had been in prison and all of that, you know ... Mr. Luke,...