Cert. applied for.
Armed robbery, etc. Putnam Superior Court. Before Judge Brown.
Vernon H. Smith, for appellant.
Fredric D. Bright, District Attorney, Dawn M. Baskin, Assistant District Attorney, for appellee.
PHIPPS, Chief Judge. Ellington, P. J., and McMillian, J., concur.
Phipps, Chief Judge.
Following a jury trial, Jonas Mathis was found guilty of armed robbery and aggravated assault. The trial court sentenced Mathis on both crimes. Mathis appeals, contending that the trial court erred by failing to merge the aggravated assault and armed robbery convictions, and by finding that trial counsel provided ineffective assistance. For the reasons that follow, we hold that the two offenses did merge, and thus the conviction and sentence for aggravated assault must be vacated and the case remanded for resentencing on that crime. We find no other grounds for reversal, however, and we otherwise affirm the judgment below.
Viewed in the light most favorable to support the verdict, the evidence showed the following. S. C. testified that he was at home on July 24, 2010 when, between 11:30 p.m. and 12:00 midnight, his friend Sarettia Mackey came to the door and asked him to come outside. S. C. walked outside, where he was struck in the head from [328 Ga.App. 293] behind; he believed the assailant used hands and fists to strike him. S. C. fell to the ground, and two men kicked him repeatedly as he lay on the ground; Mackey stood and watched. While S. C. was on the ground, one of the assailants struck him in the face with a car battery charger, and the assailants took from his pants pocket his wallet, which contained cash, and his cell phone. One assailant poured gasoline on S. C. while he was on the ground and said, " light him up." S. C. begged them not to, and, when the men looked away, S. C. fled back into the house. The two male assailants and Mackey then left.
Mackey testified that earlier on the date of the incident she had been riding in Mathis's vehicle with him and his brother, Brian Hurt. Mackey asked Mathis to drive her to S. C.'s house, which he did. The group later left S. C.'s house, and, a short time afterwards, Mathis told Mackey: " if you let me rob [S. C.], we can split the money." The group returned to S. C.'s house, and Mackey asked S. C. to come outside; Mathis and Hurt stood at the side of the house. When S. C. came outside, Mathis approached, and, using his hands, struck S. C. repeatedly. S. C. fell to the ground. Mathis kicked him several times as he lay on the ground, saying " Give me the money, give me the money." S. C. replied that he had no money. Mathis " went through all [S. C.'s] pockets." Mackey added that, besides hitting S. C. with his fists and kicking him, Mathis grabbed a battery charger, hit S. C. in the face, grabbed a gasoline can and poured gasoline on him, and asked for a lighter. Mackey told Mathis to stop. " Then, after that, that's when he had -- that's when he kept going through his pockets and we left."
A witness (B. M.) testified that he had been incarcerated with Mathis in the Putnam County Sheriff's Detention Center. Mathis, whom he had known most of his life, talked to B. M. at the detention center about the charges pending in this case. Mathis told B. M. that he had hit S. C. when S. C. " came out on the porch to talk to the girl, ... and knocked him down" ; when S. C. was down, Mathis struck him with a battery charger, poured gasoline on him, and took his wallet and cash. B. M. stated that he and Mathis had " [q]uite a few" conversations about the incident, and that the conversations occurred " either in the end of November or beginning of December" 2010.
1. Mathis contends that the trial court erred by failing to merge his conviction for aggravated assault into his conviction for armed robbery, asserting that " [t]here was no proof of a fact required by [328 Ga.App. 294] either count which the other count did not also require." ...