Armed robbery, etc. Clayton Superior Court. Before Judge Carter.
S. Cindy Wang, Long D. Vo, for appellant.
Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.
Phipps, Presiding Judge.
Demetrius Jernigan was found guilty of kidnapping, hijacking a motor vehicle, armed robbery (two counts), aggravated assault with a deadly weapon, and aggravated assault with intent to rape. He appeals from the convictions, contending that the evidence was insufficient to support the verdict for aggravated assault with intent to rape, and that the court erred by sentencing him on convictions that should have merged. For the reasons that follow, we hold that the evidence was sufficient and that the two armed robbery convictions [333 Ga.App. 340] did not merge. However, the court erred in not merging the aggravated assault (with a deadly weapon) conviction into one of the armed robbery convictions. Thus, we affirm in part, vacate in part, and remand for resentencing.
1. Jernigan contends that the evidence was insufficient to prove aggravated assault with intent to rape. We disagree.
On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and [the appellant] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.
So viewed, the evidence showed the following. On September 8, 2011, C. B. went alone to a Citgo gas station in Clayton County and was preparing to pump gasoline into her vehicle's gas tank when a man approached her. He lifted his shirt, displayed a gun, and told C. B., " [D]on't scream, don't make a scene, and I won't hurt you." He told C. B. to finish " pump[ing] the gas," then demanded her keys and ordered her to get in the passenger seat of her vehicle. C. B. complied, and the man drove the vehicle to a BP gas station. The man put the gun in his waistband and ordered C. B. to go inside the store with him to withdraw money from an automated teller machine (ATM) using her ATM card. With the gun still tucked in his pants, he again warned C. B. not to " make a scene." C. B. complied, and when the ATM dispensed money, the man grabbed it. The man then drove C. B. in her vehicle to another gas station (this time in DeKalb County); he attempted to add more gasoline to the
vehicle's tank using her ATM card, but the transaction was declined.
With C. B. still in the vehicle, the man drove to a school in DeKalb County, where he forced C. B. to perform oral sex on him. He then forced her to have sexual intercourse with him.
[333 Ga.App. 341] The man then drove C. B. to another gas station, where he unsuccessfully attempted to use her ATM card to withdraw money from an ATM. He next drove C. B. to another street and forced her to get out of the vehicle. A passerby came to C. B.'s aid and phoned police. C. B. gave police a description of her assailant, ...