Corrick D. Johnson was tried before a jury on charges of
malice murder, felony murder (two counts), aggravated
assault, and false imprisonment, in the death of Latresh
Brown. He now appeals, claiming, among other
things, that the trial court erred in failing to merge the
aggravated assault conviction with the murder conviction and
that the court erred in its instructions to the jury. We
agree with Johnson that the failure to merge was error and
therefore vacate his conviction for aggravated
assault. The remainder of the judgment is affirmed.
in the light most favorable to the verdict, the evidence
presented at trial showed that Johnson and the victim spent
two nights together at a motel. In the early morning hours
after the second night, Johnson, along with his mother and
brother, went to a police station and informed police that
Johnson had been in an "altercation" in a motel
room and "there was a body there." Officers arrived
at the motel to confirm this information, and, upon entering
the room, found the deceased victim naked on the floor and a
large amount of blood all over the room, including the
entrance door frame and door knob. Most of the blood stains
were transfer stains, meaning that blood was transferred from
a person or object to another surface. One blood transfer
pattern appeared to be the outline of a body with arms
"[r]aised enough for the shoulders to transfer on the
wall." Police also discovered drugs, a rolled up playing
card, a man's shirt, condoms, and broken parts of a
liquor bottle, the neck of which was covered with blood. The
contents of a pocketbook were dumped on the floor.
autopsy revealed the victim suffered numerous sharp-force
injuries to her cheek, lips, forehead, collar bone, right
shoulder, left shoulder, right hip, mid-back and neck (which
severed her jugular vein). The medical examiner testified
that all of the sharp-force injuries could have been
inflicted by the broken liquor bottle. He concluded that the
victim's death was caused by "multiple sharp force
trauma . . . with blunt force head and abdominal
trauma." The victim was five feet two and half inches
tall and weighed 120 pounds.
waived his rights and agreed to be interviewed by police. He
had a scratch on his arm, some scratches on his left leg, and
pointed to places on his neck where he claimed he was hit
with a bottle. Johnson had some blood on his hand, shorts,
and on the outside of his right foot. He told police that at
some point, he dozed off, and when he woke up, he noticed the
victim was carrying her clothes and trying to leave, but that
he blocked the door. Johnson explained further that when he
noticed his money was missing from his wallet, he
"wanted to look at [the victim's] facial
expressions. At that point, he sat down on the bed and
that's . . . when she became irate and jumped up, "
and threw the bottle at him. Johnson stated he threw the
bottle back and hit the victim in the forehead, and that she
ended up with the bottle and tried to break it on the
entrance to the bathroom.
Johnson does not challenge the sufficiency of the evidence.
Nevertheless, we have independently reviewed the record and
conclude that the evidence, as outlined above, was legally
sufficient to authorize a rational trier of fact to find
beyond a reasonable doubt that Johnson was guilty of the
crimes charged under the standard of Jackson v.
Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560)
Johnson argues that his conviction for aggravated assault
merged with his malice murder conviction.
OCGA § 16-1-7 (a) affords a defendant with substantive
double jeopardy protection by prohibiting multiple
convictions and punishments for the same offense.
Drinkard v. Walker, 281 Ga. 211, 212 (636 S.E.2d
530) (2006). OCGA § 16-1-7 (a) (1) prohibits a defendant
from being convicted of more than one crime if one crime is
included in another, and aggravated assault is included in
the crime of malice murder when the former is established by
proof of the same or less than all the facts or a less
culpable mental state than is required to establish the
commission of the latter.
and punctuation omitted.) Reddings v. State, 292 Ga.
364, 366 (2) (738 S.E.2d 49) (2013). "Separate
convictions for the malice murder and aggravated assault of a
single victim may be permitted, however, where there is
evidence that a 'deliberate interval' separated the
infliction of an initial non-fatal injury from the infliction
of a subsequent fatal injury.[Cits.]" Id. at
just as in Reddings, supra, there is no evidence of
an interval separating the infliction of the victim's
non-fatal wounds from the infliction of the wounds that
killed her. The medical examiner testified that with regard
to the sharp force and blunt force injuries, he could not
state "in the scheme of things, what came first, second
or third." In the absence of some evidence of a
"deliberate interval" between the infliction of any
of the wounds the victim suffered, we must vacate
Johnson's aggravated assault conviction. See id. at 367
(2); see also Schutt v. State, 292 Ga. 625, 627 (2)
(740 S.E.2d 163) (2013) (aggravated assault conviction merged
into malice murder conviction where although defendant cut
victim's throat after she inflicted fatal injuries, it is
not clear that there was deliberate interval between
Johnson contends that his false imprisonment conviction
merged with his conviction for malice murder. Relying on the
argument of the State in opening and closing, he asserts that
the evidence showed that the victim was pinned against a wall
and slashed until she died.
explained in Division 2 above, the test for determining
whether one crime is included in another, and therefore
merges, is whether the conviction for one of the offenses is
established by proof of the same or less than all the facts
required to establish the other conviction. Grissom v.
State, 296 Ga. 406, 410 (1) (768 S.E.2d 494) (2015)
(explaining "required evidence" test).
"[M]alice murder requires proof of, among other things,
the victim's death, a fact which is not required to
support" false imprisonment; the latter requires proof
that Johnson did arrest, confine, and detain the victim in
violation of her personal liberty. McDonald v.
State, 296 Ga. 643, 649-650 (5) (770 S.E.2d 6) (2015).
False imprisonment therefore did not merge into malice murder
Johnson presents three claims of error in the trial
court's instructions to the jury. Although he argues only
that the trial court committed reversible error, he concedes
in his claims of ineffective assistance that counsel failed
to object in each instance; we therefore review the
instructions for plain error.
First, there must be an error or defect - some sort of
deviation from a legal rule - that has not been intentionally
relinquished or abandoned, i.e., affirmatively waived, by the
appellant. Second, the legal error must be clear or obvious,
rather than subject to reasonable dispute. Third, the error
must have affected the appellant's substantial rights,
which in the ordinary case means he must demonstrate that it
affected the outcome of the trial court proceedings. Fourth
and finally, if the above three prongs are satisfied, the
appellate court has the discretion to remedy the error -