Reconsideration denied July 31, 2014.
Burglary, etc. Floyd Superior Court. Before Judge Niedrach.
Margaret E. Flynt, S. Cindy Wang, Roger L. Curry, for appellant.
Leigh E. Patterson, District Attorney, Emily G. Johnson , Assistant District Attorney, for appellee.
PHIPPS, Chief Judge. Ellington, P. J., and McMillian, J., concur.
Phipps, Chief Judge.
Christopher Lucas was convicted of two counts of burglary, criminal damage to property (second degree), theft by taking, and possession of tools for the commission of a crime. He contends that the trial court erred by (1) sentencing him for both burglary counts, because they were part of a single continuous act and should have merged; and (2) denying his motion for new trial based on his claim of ineffective assistance of trial counsel. Because the two burglaries merged as a matter of fact, we vacate one burglary conviction and sentence and remand the case for resentencing. We affirm Lucas's remaining
convictions because Lucas failed to show that his trial counsel provided ineffective assistance.
1. Lucas contends that the trial court erred by sentencing him for two burglary counts instead of only one. He asserts that the charged burglary offenses merged because they were committed at the same time and place, were part of a continuous criminal act, and were inspired by the same criminal intent.
Count 1 of the indictment alleged that Lucas committed burglary when, on March 28, 2012, without authority and with intent to commit a theft therein, he entered and remained within a building of another (to wit: a Huddle House restaurant at a specified location). Count 5 alleged that Lucas committed burglary when, on the same date, without authority and with intent to commit a theft therein, he entered and remained within that same building (the Huddle House restaurant). The indictment stated that the offense alleged in Count 1 was " separate and apart from the offense alleged in Count 5" of the indictment, and that the offense alleged in Count 5 was " separate and apart from the offense alleged in Count 1."
The evidence showed the following. On March 28, 2012, a Huddle House restaurant waitress arrived at work shortly after 5:00 a.m., and found the glass on the front door broken. The waitress telephoned [328 Ga.App. 742] police and the manager. When the manager arrived, she entered the store and observed that the frame of the office door was broken, the safe that had been in the office was gone, and the cash register had been pried, but not opened. A " change jar" that was kept inside the safe, containing about $400, was also missing.
A police detective arrived and spoke with the owner, who had also arrived. The owner showed the detective a surveillance video taken from the restaurant's cameras; the video was later shown to the jury. The video showed the glass on the front door break and a person enter the building. The person attempted to open the cash register, but could not. He left and returned between five and twenty minutes later. When he returned, he broke into the office with " some sort of metal thing," dragged a safe out of the office, put the safe in a vehicle, then left. A second police ...