Marlowe v. State, A02A1633.

Citation572 S.E.2d 685,258 Ga. App. 152
Decision Date09 October 2002
Docket NumberNo. A02A1633.,A02A1633.
PartiesMARLOWE v. The STATE.
CourtGeorgia Court of Appeals


John T. Strauss, Covington, for appellant.

W. Kendall Wynne, Jr., Dist. Atty., Jeffrey L. Foster, Asst. Dist. Atty., for appellee.

POPE, Senior Appellate Judge.

Kevin Marlowe appeals from the sentence entered on his guilty plea to charges of burglary, aggravated assault on a person over sixty-five, criminal attempt to commit armed robbery, and three counts of possession of a knife during commission of a felony.

On May 4, 2000, Marlowe performed yard work at the home of Regina Rapier, who is in her eighties. Later that day, Marlowe returned to Rapier's home with a large knife and awakened her. Marlowe forced Rapier from her bed and through the house to the living room. He demanded money, which she was unable to provide. At one point, when Rapier attempted to phone for police, Marlowe struggled with her for the phone, cutting her arm in the process. He then fled.

1. Marlowe first contends that the aggravated assault and the attempted armed robbery merge because the crime consisted of one continuous assault in an effort to obtain money. We disagree.

The offenses of aggravated assault and armed robbery do not merge as a matter of law, but the offenses may merge as a matter of fact. "The key question in determining whether a merger has occurred is whether the different offenses are proven with the same facts. For example, if one crime is complete before the other takes place, the two crimes do not merge." (Citation omitted.) Shelton v. State, 251 Ga.App. 34, 36(1), 553 S.E.2d 358 (2001).

Marlowe was charged with aggravated assault by placing a person over 65 in reasonable apprehension of immediately receiving a violent injury by use of a knife. That crime was complete when Marlowe stood over Rapier with a knife, awakening her from her sleep. He then forced her through the house at knifepoint while demanding money, thus completing the offense of attempted armed robbery. See Shelton, 251 Ga.App. at 36,553 S.E.2d 358Reeves v. State, 233 Ga.App. 802, 805(2), 505 S.E.2d 540 (1998); Taylor v. State, 219 Ga.App. 475, 478(4), 465 S.E.2d 473 (1995). But even if we determined that the initial assault factually merged with the later attempted armed robbery, a second assault occurred. The offense of attempted armed robbery was complete when Marlowe threatened Rapier with a knife and demanded money, and a separate offense of aggravated assault was committed when he struggled with Rapier over the telephone, cutting her. See Holmes v. State, 205 Ga.App. 168, 169(2), 421 S.E.2d 311 (1992); Hug v. State, 205 Ga.App. 746, 747(1), 423 S.E.2d 700 (1992); Johnson v. State, 190 Ga.App. 172, 173, 378 S.E.2d 700 (1989). Accordingly, the trial...

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3 cases
  • State v. Marlowe
    • United States
    • Georgia Supreme Court
    • November 17, 2003
    ...once for firearm possession for every crime enumerated in subsections (b)(2) through (5). 3. In light of the above legal analysis, in Marlowe, the Court of Appeals properly merged the two possession offenses stemming from attempted robbery and aggravated assault against a single victim. How......
  • Little v. State, A03A1196.
    • United States
    • Georgia Court of Appeals
    • November 5, 2003
    ...the weapons charges did not merge for sentencing purposes even though the same gun was used throughout the incident.4 Conversely, in Marlowe v. State, we held that three weapons offenses arising out of three felonies committed with the same weapon during a single encounter with a single vic......
  • Marlowe v. State, A02A1633.
    • United States
    • Georgia Court of Appeals
    • July 21, 2005
    ...No. S03G0351, the Supreme Court of Georgia reversed Division 2 of this Court's opinion in the above-captioned case, Marlowe v. State, 258 Ga.App. 152, 572 S.E.2d 685 (2002), in which we held that Marlowe's three counts of possession of a firearm during the commission of a felony should be m......

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