Gregory Gaines v. State

• Court: Court of Appeals of Georgia
• Decided: July 23, 2021
• Docket: A21A0666
• Status: Published

Opinion

FOURTH DIVISION DILLARD, P. J., MERCIER and COLVIN, 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

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July 8, 2021

In the Court of Appeals of Georgia A21A0666. GAINES v. THE STATE.

MERCIER, Judge.

Following a bench trial, Gregory Gaines was convicted of aggravated assault

and aggravated battery, and he was sentenced to two concurrent 20-year prison terms.

Gaines appeals, asserting in his sole claim of error that the trial court erred in failing

to merge the two offenses at sentencing. Because the indicted offenses merged as a

matter of fact, we affirm Gaines’s judgment of conviction for aggravated battery,

vacate his conviction for aggravated assault, vacate his sentence, and remand the case

for resentencing.

Viewed in the light most favorable to the verdict, see Anderson v. State, 352

Ga. App. 275, 277 (1) (834 SE2d 369) (2019), the evidence shows that on July 5,

2014, Gaines was an inmate at the Augusta State Medical Prison, where the victim worked as a corrections officer. While the victim was supervising the inmates in a

dormitory that day, Gaines grabbed her around the neck, hit her in the face, and

dragged her toward a metal bench in the dormitory’s common area. When they

reached the bench, Gaines slammed the victim’s forehead on the bench and continued

to hit her multiple times. Other inmates eventually pulled Gaines away from the

victim, and she ran from the building. The victim suffered a fractured cheekbone, a

broken nose, a concussion, and multiple lacerations during the attack.

Gaines was indicted for the aggravated assault (Count 1) and aggravated

battery (Count 2) of a correctional officer. The trial court found him guilty of both

charges, sentenced him on the two offenses, and denied his subsequent motion for

new trial. Gaines now argues that the trial court should have merged the offenses

prior to his conviction and sentencing. We agree.

“Whether offenses merge is a legal question, which we review de novo.”

Regent v. State, 299 Ga. 172, 174 (787 SE2d 217) (2016) (citation and punctuation

omitted). Although a defendant may be prosecuted for multiple crimes arising out of

the same conduct, “[h]e may not . . . be convicted of more than one crime if . . . [o]ne

crime is included in the other[.]” OCGA § 16-1-7 (a) (1). A crime is included in

another if:

2 (1) It 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 crime charged; or

(2) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.

OCGA § 16-1-6.

Count 1 of the indictment charged that Gaines committed an aggravated assault

on a correctional officer by using his hands (objects that when used offensively

against another person were likely to result in serious bodily injury) to “strike [the

victim’s] face repeatedly and . . . to strike [the victim’s] head against a bench

resulting in a concussion, a broken cheekbone and nose, swelling, lacerations and

scarring.” Count 2 alleged that he committed aggravated battery against a correctional

officer by maliciously causing her bodily harm “by seriously disfiguring a member

of her body, to-wit: her face, by striking her face repeatedly and striking her head

against a bench resulting in a broken cheekbone and nose, swelling, lacerations and

scarring.”

3 By their very terms, Counts 1 and 2 accused Gaines of committing aggravated

assault and aggravated battery through the exact same conduct — by repeatedly

striking the victim’s face and by striking her head against the bench. The only

difference between the indicted crimes was “the seriousness of the injury or risk of

injury suffered by the victim.” Regent, supra at 176. The aggravated assault count

alleged that Gaines’s hands, when used offensively, were likely to result in serious

bodily injury, while the aggravated battery count required proof of actual bodily harm

by serious disfigurement. As charged, therefore, “aggravated assault [was] included

in aggravated battery, and the two offenses should have merged.” Id.

The State argues that Gaines’s act of striking the victim in the face constituted

an aggravated assault that was separate from — and completed before — the

aggravated battery that occurred when he struck her head against the bench. In the

State’s view, Gaines can be punished for both crimes. But the indictment did not

separate the acts in this manner. On the contrary, it explicitly alleged that Gaines

committed both offenses in the same two ways: by striking the victim’s face and by

striking her head against the bench. We cannot ignore or rewrite the allegations in the

indictment on appeal. See Anderson, supra at 283-284 (3) (“Averments in an

4 indictment as to the specific manner in which a crime was committed are not mere

surplusage.”) (citation and punctuation omitted)).

The trial court should have merged Count 1 (aggravated assault) into Count 2

(aggravated battery) prior to Gaines’s conviction and sentencing. See Harris v. State,

309 Ga. 599, 610 (4) (847 SE2d 563) (2020) (trial court erred in failing to merge

aggravated assault offense into aggravated battery where “both the aggravated assault

and the aggravated battery were based on the same conduct of shooting the same

victim”); Regent, supra (aggravated assault merged into aggravated battery where

both offenses were based on the same criminal act of cutting the victim’s throat with

a knife); see also Hamlette v. State, 353 Ga. App. 640, 647 (3) (839 SE2d 161) (2020)

(aggravated assault merged into voluntary manslaughter where the indictment alleged

that both offenses resulted from the “exact same conduct”). Accordingly, although we

affirm the judgment of conviction as to Count 2, we vacate Gaines’s conviction on

Count 1, vacate his sentence, and remand for resentencing with direction that the trial

court merge Count 1 into Count 2.

Judgment affirmed in part, vacated in part, and case remanded with direction.

Dillard, P. J., and Colvin, J., concur.