Robbery, etc. Newton Superior Court. Before Judge Ott.
Long D. Vo, for appellant.
Layla H. Zon, District Attorney, Elizabeth K. Grofic, Assistant District Attorney, for appellee.
PHIPPS, Chief Judge. Ellington, P. J., and McMillian, J., concur.
Phipps, Chief Judge.
After a jury trial, Michael Payne was convicted of robbery by force (Count 1), robbery (by intimidation) (Count 2), and two counts of simple battery (Counts 3 and 4). He appeals, contending that: (1) the evidence was insufficient to support the conviction for robbery by intimidation; (2) even if the evidence was sufficient to support the robbery by intimidation conviction, the conviction is invalid because that offense should have merged with the robbery by force offense for sentencing purposes; and (3) his trial counsel provided ineffective assistance. We affirm the judgment in part, vacate the judgment in part, and remand the case for resentencing.
The evidence showed that Payne proposed to James Knight and other individuals an idea to rob Payne's former employer, G. S., as she left work at a restaurant on July 22, 2007. Payne drove himself, Knight, and another individual to the restaurant. As Payne had predicted, G. S. exited the restaurant with another person around 5:00 p.m., carrying a bag of money underneath her arm. Knight approached G. S. and the other person (a woman), as G. S. was at her vehicle and the other woman was walking toward her vehicle. Knight sprayed both women with pepper spray, grabbed the money bag from G. S., and fled to Payne's vehicle. Payne drove away from the scene. The money bag contained cash, which was later divided among the three perpetrators, including Payne.
Payne was indicted for, inter alia, robbery by force (Count 1) in that he did " on July 22, 2007, ... with intent to commit theft, take property of another, to wit: a bag containing United States currency, the property of [G. S.], from the immediate presence of [G. S.] by [329 Ga.App. 626] force" ; and robbery (Count 2) in that he did
on July 22, 2007 ... with intent to commit theft, ... take property of another, to wit: a bag containing United States currency, from the person and immediate presence of [G. S.] by use of intimidation, use of threat, and by placing such person in fear of immediate serious bodily injury to herself.
On March 22, 2011, the trial court sentenced Payne to imprisonment for 20 years, to serve 10 years in confinement and the balance on probation, on Count 1, and to imprisonment for 20 years, to serve 10 years in confinement and the balance on probation, on Count 2.
1. We first address Payne's challenge to the sufficiency of the evidence to support the robbery by intimidation conviction, and Payne's contention that
[e]ven if the State established the essential elements of robbery by intimidation beyond a reasonable doubt, [his] sentence as to count 2 [robbery by intimidation] is invalid and therefore must be vacated because it should have merged with count 1 [robbery by force] for sentencing as a matter of fact because there was only one act of robbery against one victim.
The state concedes, and we agree, that the trial court should have merged the robbery offenses for sentencing purposes, and that the case should be remanded for resentencing. ...