MCFADDEN, P. J., BRANCH and BETHEL, JJ.
McFadden, Presiding Judge.
jury trial, Frankie Outz was convicted of family violence
aggravated assault (OCGA § 16-5-21 (i)) and family
violence aggravated battery (OCGA § 16-5-24 (g)). He
appeals the denial of his motion for new trial, arguing that
the evidence does not support his convictions because the
state failed to prove that the victim was not his sibling,
which it was required to do to invoke the family-violence
sentence enhancement provisions of the aggravated assault and
aggravated battery statutes. But the circumstantial evidence
allowed the jury to draw this conclusion. Outz also argues
that the convictions merge. We disagree because one crime was
completed before the other was committed and different
conduct was used to prove each crime. So we affirm.
Sufficiency of the evidence.
appeal from a criminal conviction, we construe the evidence
in the light most favorable to the jury verdict. Parker
v. State, 220 Ga.App. 303 (1) (469 S.E.2d 410) (1996).
So viewed, the evidence showed that the 55-year-old victim
met Outz through mutual friends about ten years before the
time of trial. At the time of the incident, she was in a
romantic relationship with him and they lived together.
one morning, Outz became angry with the victim and knocked
out two of her teeth with his fist. Outz then beat the victim
with a wire clothes hanger. He squirted lighter fluid on the
victim's head and chest, and used a lighter to set her on
argues that the state failed to prove that he and the victim
were not siblings, which it was required to do in order to
subject him to an enhanced sentence for committing his crimes
in the context of family violence. See OCGA § 16-5-21
(i) ("If the offense of aggravated assault is committed
between . . . persons excluding siblings living or
formerly living in the same household, the defendant shall be
punished by imprisonment for not less than three nor more
than 20 years.") (emphasis supplied); OCGA §
16-5-24 (g) ("If the offense of aggravated battery is
committed between . . . persons excluding siblings
living or formerly living in the same household, the
defendant shall be punished by imprisonment for not less than
three nor more than 20 years.") (emphasis supplied).
"[A]ny fact that serves to enhance a mandatory minimum
sentence is an element of the crime that must be found by a
jury beyond a reasonable doubt." Jeffrey v.
State, 296 Ga. 713, 718 (3) (770 S.E.2d 585) (2015)
neither the victim nor any other witness testified directly
that the victim and Outz were not siblings,
direct evidence is not required to support a conviction.
Moreover, a conviction may be based upon circumstantial
evidence if the proved facts are not only consistent with the
hypothesis of guilt, but exclude every other reasonable
hypothesis but the guilt of the accused. When the evidence
meets this test, circumstantial evidence is as probative as
direct evidence, and whether this burden has been met is a
question for the jury. When the jury is authorized to find
that the evidence, though circumstantial, excluded every
reasonable hypothesis except the defendant's guilt, the
verdict will not be disturbed unless the verdict is
insupportable as a matter of law. Further, while
circumstantial evidence must exclude every other reasonable
hypothesis but the defendant's guilt, the evidence need
not exclude every inference or hypothesis.
Joiner v. State, 257 Ga.App. 375, 375-376 (1) (571
S.E.2d 430) (2002) (citations and punctuation omitted). The
victim's testimony that she and Outz were romantically
involved and had met 10 years before through mutual friends
allowed the jury to conclude that they were not siblings. See
id. at 376 (although there was no direct evidence that
statutory-rape victim was not defendant's spouse, the
jury could make that conclusion from the evidence that the
defendant was the boyfriend of the victim's mother).
argues that the trial court should have merged his
convictions because they were based on conduct that occurred
too close in time to support separate convictions. We
facts show one crime was completed before the commission of a
subsequent crime, the crimes are separate as a matter of law,
and there is no merger." Womac v. State,
__Ga.__, __(3) (__ S.E.2d __) (Case No. S17A1385, decided
Dec. 11, 2017) (citation omitted). Similarly, "[t]he
rule prohibiting more than one conviction if one crime is
included in the other does not apply unless the same conduct
of the accused establishes the commission of multiple
crimes." Waits v. State, 282 Ga. 1, 4 (2) (644
S.E.2d 127) (2007) (citations and punctuation omitted).
indictment charged Outz with aggravated battery by striking
the victim with his fist and depriving her of two upper
incisors. It charged Outz with aggravated assault by striking
the victim with a wire hanger and pouring lighter fluid on
her person and setting her on fire. The evidence showed that
Outz completed one crime before committing the other and that
the crimes were based on different conduct. So the crimes did
not merge. See Jones v. State, 285 Ga.App. 114,
115-116 (1) (645 S.E.2d 602) (2007) (aggravated assault with
a knife did not merge with aggravated assault with a gun
because different conduct established each offense and the
evidence showed that one crime was complete before the other
was committed). See also Collins v. State, 277
Ga.App. 381, 382-383 (626 S.E.2d 513) (2006) ...