Haynes v. State

743 S.E.2d 617, 322 Ga. App. 57, 2013 Fulton County D. Rep. 1741, 2013 WL 2321895, 2013 Ga. App. LEXIS 451
CourtCourt of Appeals of Georgia
DecidedMay 29, 2013
DocketA13A0556
StatusPublished
Cited by7 cases

This text of 743 S.E.2d 617 (Haynes v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Haynes v. State, 743 S.E.2d 617, 322 Ga. App. 57, 2013 Fulton County D. Rep. 1741, 2013 WL 2321895, 2013 Ga. App. LEXIS 451 (Ga. Ct. App. 2013).

Opinion

BARNES, Presiding Judge.

A jury found Darius Darnell Haynes guilty of armed robbery, aggravated assault, burglary, and possession of a firearm during the commission of a felony based on his participation in a home invasion. The trial court denied Haynes’s motion for new trial. On appeal, Haynes contends that there was insufficient evidence to convict him of aggravated assault and that the trial court erred in failing to merge his aggravated assault conviction into his armed robbery conviction for purposes of sentencing. For the reasons set forth below, we agree [58]*58with Haynes that the trial court erred with respect to merger, and for that reason, we must vacate his conviction and sentence for aggravated assault and remand for resentencing. We otherwise affirm.

Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to the jury’s verdict. Braham v. State, 260 Ga. App. 533 (580 SE2d 256) (2003). So viewed, the evidence showed that on the evening of January 7, 2010, a husband and wife were at home with their three children. A tenant rented a room in the basement of the home, but he was not there that evening.

Responding to a knock at the front door, the husband was confronted by two men holding handguns. The first gunman wore a baseball cap with a hoodie pulled over it, while the second gunman had on a baseball cap, a hoodie, and a piece of clothing covering his face. The two gunmen forced their way through the doorway and into the living room. During the course of the home invasion, they repeatedly demanded money and demanded to know the whereabouts of the tenant who lived in the basement.

The husband began wrestling with the first gunmen while his wife ran down the hall in an effort to find her cell phone and call for help. The second gunman then hit the husband in the head with his gun and ran down the hall in pursuit of the wife. After getting hit with the gun, and after the first gunman threatened to have his partner shoot the wife and children if the husband continued to fight, the husband stopped wrestling with the gunman. The husband stood in front of his children in an effort to shield them from harm as the first gunman held them at gunpoint. During the fight with the husband, the hoodie had slipped off the first gunman’s head, and the husband could now get “a clear look at [the gunman’s] face” as he was pointing the gun at the husband.

When the wife was unable to find her cell phone, she barricaded herself in the master bathroom. The second gunman who had pursued her down the hall began banging on the bathroom door, and the wife opened the door out of fear that he would start shooting. The second gunman forced her to walk back down the hall into the living room at gunpoint, where she was ordered to lie down on the floor. The wife was able to clearly see the face of the first gunman, who was pointing a gun at her husband, as she was forced into the living room and onto the floor at gunpoint.

After forcing the wife back into the living room, the second gunman ran downstairs to the basement and began ransacking it. While the second gunman was ransacking the basement, the first gunman held the family at gunpoint in the living room, continuing to ask “where the money was” and “where [the tenant] was,” and the [59]*59family repeatedly responded that they “didn’t know.” The husband implored the first gunman not to hurt them and for him and his partner to take whatever they wanted from the house. Unable to find the tenant or any money, the gunmen eventually grabbed electronics off a computer table and fled from the house.

Detectives identified Haynes as a potential suspect because he had previously been involved in a heated dispute over money with the tenant who lived in the basement of the family’s home. A detective prepared separate photographic lineups, each of which included a picture of Haynes,1 for the husband, wife, and their fourteen-year-old and six-year-old daughters to view individually.2 The fourteen-year-old daughter was unable to identify anyone in the photographic lineup, but the husband, wife, and their six-year-old daughter identified Haynes as the first gunman.

Haynes was indicted and tried before a jury on charges of armed robbery, aggravated assault, burglary, and possession of a firearm during the commission of a felony.3 The husband, wife, and their two daughters testified at trial about the home invasion and the photographic lineups that they viewed, and the husband and wife positively identified Haynes in the courtroom as the first gunman. The tenant testified regarding his dispute with Haynes over money, and the detectives involved in the case also testified on behalf of the State. In contrast, Haynes testified that he was not involved in the home invasion and presented several defense witnesses in an effort to establish that he had an alibi and had been erroneously identified by the family as one of the gunmen. After hearing the conflicting testimony, the jury found Haynes guilty of the charged offenses.

1. Haynes contends that there was insufficient evidence to convict him of aggravated assault, but his contention is.moot because we conclude in Division 2 below that his aggravated assault conviction merged into his armed robbery conviction for sentencing purposes. See Long v. State, 287 Ga. 886, 887-888 (1) (700 SE2d 399) (2010). With regard to Haynes’s remaining convictions, the evidence presented at trial and summarized above, construed in the light most favorable to the verdict, was sufficient to authorize a rational jury to find him guilty beyond a reasonable doubt. See Jackson v. Virginia, [60]*60443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). We therefore affirm his convictions on those counts.

2. Haynes contends that the trial court erred in failing to merge his aggravated assault conviction into his armed robbery conviction for purposes of sentencing. The indictment alleged that Haynes committed the offense of armed robbery under OCGA § 16-8-41 (a) in that, with the intent to commit a theft, he took certain electronic equipment from the immediate presence of the husband and wife “by use of an offensive weapon, to wit: a handgun.” The indictment further alleged that Haynes committed the offense of aggravated assault under OCGA § 16-5-21 (a) (2) in that he assaulted the husband “with an object, to wit: a handgun, which, when used offensively against another person is likely to result in serious bodily injury, by striking [him] in the back of the head with the handgun.” According to Haynes, the aggravated assault was a lesser included offense of the armed robbery, requiring merger. We agree.

‘Whether offenses merge is a legal question, which we review de novo.” McGlasker v. State, 321 Ga. App. 614, 616 (2) (741 SE2d 303) (2013).

It is axiomatic that Georgia law bars conviction for a crime that arises from the same criminal conduct included as a matter of fact or as a matter of law in another crime for which the defendant has been convicted. To determine if an aggravated assault with a deadly or offensive weapon, indicted under OCGA § 16-5-21

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743 S.E.2d 617, 322 Ga. App. 57, 2013 Fulton County D. Rep. 1741, 2013 WL 2321895, 2013 Ga. App. LEXIS 451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/haynes-v-state-gactapp-2013.