Eric Mitchell v. State

• Court: Court of Appeals of Georgia
• Decided: April 26, 2023
• Docket: A23A0358
• Status: Published

Opinion

FIFTH DIVISION MCFADDEN, P. J., BROWN and MARKLE, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

April 26, 2023

In the Court of Appeals of Georgia A23A0358. MITCHELL v. THE STATE.

MCFADDEN, Presiding Judge.

Eric Mitchell appeals from his aggravated battery and aggravated assault

convictions, claiming that the two offenses were part of a continuous act and should

have merged for sentencing purposes. But because the evidence shows a deliberate

interval between the two offenses, the court did not err in refusing to merge the

offenses for sentencing. So we affirm.

1. Facts and procedural posture.

On the evening of May 24, 2020, Mitchell attacked two young women, L. S.

and C. B., at a convenience store in Athens, Georgia. As the women left the store,

Mitchell, who was standing near the door, followed them and assaulted L. S. outside

the store. C. B. fled back into the store and several seconds later, L. S. was also able to retreat into the store. Mitchell then came back into the store and attacked C. B.,

violently shoving her to the floor and slashing at her with a box cutter in his right

hand. When L. S. attempted to intervene, Mitchell turned from C. B. and, while still

holding the box cutter in his right hand, viciously punched L. S. in the face with his

left fist, knocking her to the floor and causing facial injuries requiring reconstructive

surgery. As Mitchell stood between the two prone victims, a police car with blue

lights flashing arrived at the scene. Mitchell then walked out of the store, surrendered

to the officer, and later admitted committing the unprovoked attacks of the victims.

Mitchell was charged by indictment with multiple offenses, including a count

of aggravated battery for striking L. S.’s face, causing her to have a broken nose, and

a count of aggravated assault for striking L. S. with the box cutter and his hands,

resulting in lacerations to her torso. Mitchell pled guilty to all counts of the

indictment and the court imposed a sentence totaling 75 years in confinement,

including consecutive 20-year sentences for the aggravated battery and the aggravated

assault committed against L. S. This appeal followed.

2. Merger.

2 Mitchell contends that the aggravated battery and aggravated assault offenses

committed against L. S. should have merged because they were part of a continuous

act and were not distinct criminal acts. We disagree.

“In order for the aggravated assault and aggravated battery counts to be treated

as distinct criminal acts, there must be a ‘deliberate interval’ between the completion

of one offense and the start of the other. If there was no deliberate interval, then the

two offenses were part of a continuous act and merge for sentencing purposes.” Price

v. State, 313 Ga. 578, 581 (872 SE2d 275) (2022) (citations omitted). Mitchell argues

that the instant case is controlled by Regent v. State, 299 Ga. 172 (787 SE2d 217)

(2016), in which the Supreme Court held that convictions for aggravated battery and

aggravated assault merged because the two offenses were based on a single criminal

act of cutting the victim’s throat, albeit twice in quick succession. Id. at 176.

But in this case, unlike in Regent, there were not two actions in quick

succession that constituted a single criminal act against L. S. and that formed the

basis for the aggravated battery and aggravated assault charges. Rather, as the trial

court found, a security video from the store showed that Mitchell’s acts were “back

and forth between the two women, not a continuous act . . . and the elements of both

[the aggravated battery and the aggravated assault] are different, and they are charged

3 differently.” Indeed, the security video, along with the facts admitted to by Mitchell

at the plea hearing, show that Mitchell committed two distinct acts against L. S. that

were separated by a deliberate interval.

He first attacked L. S. outside the store and then, after re-entering the store and

assaulting the other victim, he assaulted L. S. a second time by punching her face and

breaking her nose. Because the video plainly shows that Mitchell’s only action

toward L. S. inside the store was to hit her face with his left hand, while holding the

box cutter in his right hand, it is apparent from the video that he did not lacerate her

torso with the box cutter inside the store. So Mitchell’s admitted act of cutting L. S.

with the box cutter could only have occurred during his attack on her outside the

store. Under these circumstances, “[t]he evidence was sufficient to support [a] factual

finding of a deliberate interval [between the aggravated assault by cutting the victim’s

torso and the aggravated battery by striking the victim’s face], and thus we affirm the

court’s legal determination that merger was inappropriate.” Price, supra at 583.

Judgment affirmed. Brown and Markle, JJ., concur.