Head v. State

413 S.E.2d 533, 202 Ga. App. 209, 1991 Ga. App. LEXIS 1702

• Court: Court of Appeals of Georgia
• Decided: December 5, 1991
• Docket: A91A1454
• Status: Published

Opinions

Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of burglary, aggravated assault, and robbery. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

1. The victim testified that he had known appellant for a number of years and that, although he had been attacked from behind, he had recognized appellant’s voice. The “ ‘personal identity of [the] accused may be established by the testimony of a witness that he was familiar with [the accused’s] voice and recognized it.’ [Cits.] In the instant case we . . . have a witness who was ‘familiar with [appellant’s] voice and recognized it.’ ” Henderson v. State, 209 Ga. 238, 240 (1) (71 SE2d 628) (1952). This evidence, coupled with evidence of appellant’s fingerprint on a piece of glass from a broken window, was sufficient to authorize a rational trior of fact to find proof of appellant’s guilt beyond a reasonable doubt. Mercer v. State, 169 Ga. App. 723, 725 (1) (314 SE2d 729) (1984). See also Stevanus v. State, 185 Ga. App. 7, 10 (1) (363 SE2d 322) (1987). Accordingly, appellant’s enumeration of the general grounds is without merit.

2. Appellant urges that the aggravated assault count merged into the robbery count.

“ ‘ “Offenses merge as a matter of fact pursuant to OCGA § 16-1-6 (1) if one of them is established by proof of the same or less than all the facts required to prove the other. (Cits.) The only aggravated assault (committed by appellant) shown by the evidence in this case was that by which the commission of the . . . robbery was effectuated. There having been no additional, gratuitous violence employed against the victim, it follows that the evidentiary basis for the aggravated assault conviction was ‘used up’ in proving the . . . robbery. (Cit.) The entry of separate convictions for both offenses is thus barred by OCGA § 16-1-7 (a), which prohibits multiple convictions for the same conduct. (Cits.) The aggravated assault conviction is accordingly vacated.” [Cits.]’ [Cit.]” Smith v. State, 193 Ga. App. 208, 209 (1) (387 SE2d 419) (1989).

3. The' convictions and sentences for burglary and robbery are affirmed. The conviction and sentence for aggravated assault are reversed.

Judgment affirmed in part and reversed in part.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Pope, Cooper, JJ., and Judge Arnold Shulman concur. Beasley and Andrews, JJ., concur in part and dissent in part.