Aggravated assault, etc. Carroll Superior Court. Before Judge Blackmon.
David D. Marshall, for appellant.
Peter J. Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney, for appellee.
Aerius Deshad Potts was tried by a Carroll County jury and convicted of seven counts of aggravated assault, three counts of felony cruelty to children, one count of armed robbery, one count of possession of a firearm during the commission of a crime, and one count of possession of a pistol or revolver by a person under 18 years of age. He now appeals from the denial of his motion for a new trial, asserting that the trial court erred in charging the jury and in failing to merge two of the aggravated assault convictions with the armed robbery conviction. We find no error in the trial court's jury charge and therefore affirm the denial of Potts's motion for a new trial. We further find, however, that the trial court erred in failing to merge two of Potts's aggravated assault convictions (Counts 5 and 11) with his conviction for armed robbery (Count 4). We therefore vacate Potts's convictions as to Counts 5 and 11 and remand the case so that Potts may be resentenced.
On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury's guilty verdict. Martinez v. State, 306 Ga.App. 512, 514 (702 S.E.2d 747) (2010). So viewed, the record shows that on the evening of July 19, 2006, Pedro Espinoza was robbed at gunpoint, beaten, and shot while outside of his residence in the Elizabeth Village mobile home park in Carrollton. Inside the residence were Espinoza's brother, Jorge Espinoza; Jorge's wife, Paola Cabanas; and three children that Paola was babysitting: Sabrina, Pablo, and Valerie Monsivais. When Jorge opened the door of the mobile home to see what was happening to his brother, one of the assailants pointed his gun at Jorge. Jorge immediately closed the door and at least two assailants then began shooting at the trailer. Jorge suffered a gunshot wound to his arm, and Paola was struck and killed by one of the bullets shot into the home. Another bullet struck Sabrina Monsivais, injuring the child in both legs.
After police investigated the incident, Potts and eight other young men were arrested and indicted for malice murder, felony murder, armed robbery, aggravated assault (eight counts), felony [331 Ga.App. 858] cruelty to children (three counts), possession of a knife or gun during the commission of a crime, and possession of a pistol or revolver by a person under the age of 18. Potts was tried separately from his co-indictees, and the evidence presented at his trial included the testimony of two of those co-indictees, Christopher Coleman and Chade Ackey. Coleman testified that on the evening of July 19, 2006, he, together with Potts and co-indictees LaBryan Lytle, Varion " Snoopy" Shell, and Arlandra Deonte " Red" Holland, made a plan to rob someone. To that end, Coleman borrowed a white Dodge Neon from a friend so that he could drive the others. The original plan had been to travel to LaGrange to commit the robbery. As the group was driving around Carrollton, however, Potts made a phone call. After the call, Potts directed
Coleman, who was not from Carrollton, to Elizabeth Village.
At the mobile home park, the group in the white car met Ackey, Cody Buchanan, Marcus Oliphant, and Randall " Boots" Laye, who were riding in a blue Oldsmobile. The two cars then moved to a different location in Elizabeth Village, closer to the exit. Potts obtained a nine millimeter pistol from one of the men in the blue car, and Coleman helped Potts load the gun with ammunition. Coleman testified that he, Lytle, Shell, Holland, and Potts (the group from the white car), together with Laye, walked toward a mobile home with two SUVs parked out front; Oliphant and Buchanan walked behind this group. Laye knocked several times on the door of the target mobile home, but got no response. As Laye was knocking, Pedro Espinoza came out of the neighboring home, leaned against the trunk of his car, and began smoking a cigarette. Coleman approached Pedro and asked him for a cigarette, and Espinoza responded that he had no more cigarettes.
Laye approached Pedro, put a gun to Pedro's head, and demanded money. Potts then moved toward Pedro, and when Pedro stated that he had no money, Potts placed his gun in Pedro's mouth, and Holland kneed Pedro in the groin, knocking him to the ground. At some point during this encounter, Potts took Pedro's cell phone from him. Both Jorge and Paola came to the door of the home at different times during [331 Ga.App. 859] the attack on Pedro and asked what was going on. After the trailer door was opened and closed a second time, Potts started shooting, and Coleman followed suit. Coleman, Potts, and their companions then fled back to their cars and drove away from Elizabeth Village.
Later that evening, Coleman drove Oliphant, Potts, and Ackey to a rural area, where Potts disposed of the gun he had used, together with a second gun used in the crimes, by tossing them out of the car window. Investigators eventually recovered both of these guns, as well as a .380 caliber semi-automatic handgun which Coleman admitted to using in the crimes. Four cartridge cases and a bullet found at the scene, as well as the bullet recovered from Paola's body, were matched by ballistics experts to the nine millimeter pistol used by Potts and to Coleman's .380 caliber gun.
Ackey testified that on the evening in question he, Oliphant, and Buchanan were riding in a blue Oldsmobile driven by Randall Laye. Potts called Ackey's cell phone, and Ackey immediately handed the phone to Oliphant, explaining that he did not want to talk to Potts because he viewed Potts as " unpredictable crazy." After Oliphant spoke with Potts, Laye drove the car to Elizabeth Village, where Ackey and his companions met up with Potts and his companions. All of the young men riding in the white car exited their vehicle and walked over to the blue Oldsmobile. Once at the blue car, Potts asked Oliphant about a gun, and Oliphant handed him a nine millimeter pistol. According to Ackey, at that point " the talk was about fixing to rob somebody." Ackey then saw all five occupants of the white car, including Potts, together with the three men with whom Ackey had been riding, walk down a hill in the direction of some mobile homes. Ackey, however, remained in the car because he did not want to participate in the robbery. According to Ackey, about five of the eight men who walked toward the mobile homes had guns.
Shortly after his companions walked away from the cars, Ackey heard gunfire, and all of the young men came running back toward the cars; everyone got back into the car in which they had come, and both cars fled the scene. Sometime later that night, Ackey and Oliphant met the white car in the parking lot of a Kroger store and joined the five men therein. The group then drove ...