SECOND DIVISION MILLER, P. J., MERCIER, J., and SENIOR APPELLATE JUDGE PHIPPS
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
DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.
January 21, 2021
In the Court of Appeals of Georgia A20A1829. CAMERON v. THE STATE.
MERCIER, Judge.
Following a jury trial, Milton Cameron was convicted of simple battery (as a
lesser included offense of kidnapping with bodily injury), terroristic threats, criminal
damage to property, and two counts of misdemeanor battery.1 He appeals, arguing
that the trial court erred in refusing to merge his battery convictions. We affirm.
Viewed favorably to the jury’s verdict, the evidence shows the following. See
Wilson v. State, 354 Ga. App. 64 (840 SE2d 601) (2020). On January 26, 2002, the
victim was at her apartment with several individuals, including Cameron, who was
her boyfriend at the time. When the victim indicated that she needed to leave for
1 The jury found Cameron not guilty of arson, false imprisonment, and aggravated assault. work, Cameron began to argue with her, telling her not to go. As the argument
escalated, Cameron punched the victim in the mouth, then dragged her by her hair
from the living room to her bedroom. Once in the bedroom, Cameron locked the door,
continued to physically assault the victim, and placed her in a choke-hold. The victim
managed to escape from the room and her apartment, but not before Cameron hit and
kicked her multiple times, leaving her with a broken lip and blood on her shirt, and
threatened to kill her.
A few minutes after she ran from the apartment, the victim saw Cameron
walking down the street. She returned home to find that items in her closet had been
set on fire. The police and fire department were called, and the victim went to the
hospital for treatment.
Following her release from the hospital, the victim spent two nights in a hotel,
then went to a shelter for battered women. Over the next few days, Cameron left voice
mail messages for her, threatening to hurt her family if she did not contact him.
Fearing for her family’s safety, the victim met with Cameron on February 1, 2002,
and accompanied him to his sister’s apartment. When the victim decided to leave later
that night, Cameron told her that he did not want her to go and placed a gun on the
bed. The victim agreed to stay.
2 The two remained together in the apartment for several days without further
incident. On February 4, 2002, however, Cameron began to look at her “all crazy,”
slapped her, and punched her in the eye and mouth, causing her to bleed. The victim
tried to walk out of the apartment, but Cameron placed an object around her neck,
choking her. The victim fell to the floor, and Cameron hit her in the head. She lost
consciousness for a period of time, then woke to Cameron carrying her up the stairs
of the apartment. Cameron eventually fell asleep, and the victim fled from the home.
The jury found Cameron guilty of simple battery (as a lesser included offense
of kidnapping with bodily injury) (Count 1), criminal damage to property (Count 2),
terroristic threats (Count 3), misdemeanor battery with respect to the events on
January 26, 2002 (Count 4), and misdemeanor battery with respect to the events on
February 4, 2002 (Count 7). Cameron appeals the denial of his motion for new trial,
arguing that the three battery offenses should have been merged at sentencing.2
1. First, Cameron claims that the trial court erred in failing to merge his
conviction for simple battery (as a lesser included offense of kidnapping with bodily
2 Cameron filed a timely motion for new trial following his convictions in October 2002. It appears that the trial court orally denied Cameron’s motion in 2004, but the ruling was not reduced to writing until November 14, 2019.
3 injury) (Count 1) into his misdemeanor battery conviction relating to the January 26,
2002 incident (Count 4). We disagree.
“Whether two offenses should be merged is a question of law, and we apply a
‘plain legal error’ standard of review.” Wilson, supra at 72 (3) (citation and
punctuation omitted). Under the merger doctrine, “a criminal defendant cannot be
subject to the imposition of multiple punishment when the same conduct establishes
the commission of more than one crime.” Id. (citation and punctuation omitted). The
doctrine does not apply, however, when multiple convictions are based on different
conduct. See id. And in this case, the record clearly shows that Cameron’s
convictions on Counts 1 and 4 arose from different conduct.
Count 1 alleged that on January 26, 2002, Cameron committed the offense of
kidnapping with bodily injury by “unlawfully and forcibly abduct[ing] and steal[ing]
away [the victim], a person, without lawful authority and warrant and hold[ing] said
person against her will; said act resulting in bodily injury to said [victim].” Both sides
recognized at trial that this charge centered on Cameron’s conduct in forcibly
dragging the victim by her hair through the apartment to her bedroom, causing pain
to her head and loss of hair.
4 During a charge conference held prior to closing arguments, defense counsel
requested that the trial court instruct on simple battery as a lesser included offense of
kidnapping (Count 1), explaining: “The evidence in the case has been that [Cameron]
pulled [the victim’s] hair and drug her across the room. . . . I think the jury might be
able to find that that is a battery.” The trial court questioned: “Don’t they have a
battery wound up in that whole thing, too, as a separate charge?” Defense counsel
responded: “[The battery charge] does not allege the hair. So I would respectfully
request a lesser included charge of battery on the hair pulling and dragging incident.”
The State did not object, and the trial court granted Cameron’s request for the
instruction.
Defense counsel subsequently highlighted the lesser included offense during
his closing argument, asserting that “[d]ragging somebody by the hair is not
kidnapping.” He further argued to the jury:
You are going to get a charge on a lesser included offense when it comes to kidnapping. The judge is going to instruct you all on a lesser included offense of battery, and I submit to you all that when [Cameron] pulled [the victim’s] hair and dragged her across the floor, that that’s a battery. That’s not kidnapping.
5 Ultimately, the jury agreed with Cameron that the hair-dragging conduct
involved in Count 1 constituted simple battery, not kidnapping. See OCGA § 16-5-23
(a) (“simple battery” occurs when a person “[i]ntentionally makes physical contact
of an insulting or provoking nature with the person of another . . . or . . .
[i]ntentionally causes physical harm to another.”). In contrast, Count 4 alleged that
Cameron committed a different crime – misdemeanor battery – by “intentionally
caus[ing] visible bodily harm to [the victim] by punching her in the face with his fist,
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SECOND DIVISION MILLER, P. J., MERCIER, J., and SENIOR APPELLATE JUDGE PHIPPS
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
DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.
January 21, 2021
In the Court of Appeals of Georgia A20A1829. CAMERON v. THE STATE.
MERCIER, Judge.
Following a jury trial, Milton Cameron was convicted of simple battery (as a
lesser included offense of kidnapping with bodily injury), terroristic threats, criminal
damage to property, and two counts of misdemeanor battery.1 He appeals, arguing
that the trial court erred in refusing to merge his battery convictions. We affirm.
Viewed favorably to the jury’s verdict, the evidence shows the following. See
Wilson v. State, 354 Ga. App. 64 (840 SE2d 601) (2020). On January 26, 2002, the
victim was at her apartment with several individuals, including Cameron, who was
her boyfriend at the time. When the victim indicated that she needed to leave for
1 The jury found Cameron not guilty of arson, false imprisonment, and aggravated assault. work, Cameron began to argue with her, telling her not to go. As the argument
escalated, Cameron punched the victim in the mouth, then dragged her by her hair
from the living room to her bedroom. Once in the bedroom, Cameron locked the door,
continued to physically assault the victim, and placed her in a choke-hold. The victim
managed to escape from the room and her apartment, but not before Cameron hit and
kicked her multiple times, leaving her with a broken lip and blood on her shirt, and
threatened to kill her.
A few minutes after she ran from the apartment, the victim saw Cameron
walking down the street. She returned home to find that items in her closet had been
set on fire. The police and fire department were called, and the victim went to the
hospital for treatment.
Following her release from the hospital, the victim spent two nights in a hotel,
then went to a shelter for battered women. Over the next few days, Cameron left voice
mail messages for her, threatening to hurt her family if she did not contact him.
Fearing for her family’s safety, the victim met with Cameron on February 1, 2002,
and accompanied him to his sister’s apartment. When the victim decided to leave later
that night, Cameron told her that he did not want her to go and placed a gun on the
bed. The victim agreed to stay.
2 The two remained together in the apartment for several days without further
incident. On February 4, 2002, however, Cameron began to look at her “all crazy,”
slapped her, and punched her in the eye and mouth, causing her to bleed. The victim
tried to walk out of the apartment, but Cameron placed an object around her neck,
choking her. The victim fell to the floor, and Cameron hit her in the head. She lost
consciousness for a period of time, then woke to Cameron carrying her up the stairs
of the apartment. Cameron eventually fell asleep, and the victim fled from the home.
The jury found Cameron guilty of simple battery (as a lesser included offense
of kidnapping with bodily injury) (Count 1), criminal damage to property (Count 2),
terroristic threats (Count 3), misdemeanor battery with respect to the events on
January 26, 2002 (Count 4), and misdemeanor battery with respect to the events on
February 4, 2002 (Count 7). Cameron appeals the denial of his motion for new trial,
arguing that the three battery offenses should have been merged at sentencing.2
1. First, Cameron claims that the trial court erred in failing to merge his
conviction for simple battery (as a lesser included offense of kidnapping with bodily
2 Cameron filed a timely motion for new trial following his convictions in October 2002. It appears that the trial court orally denied Cameron’s motion in 2004, but the ruling was not reduced to writing until November 14, 2019.
3 injury) (Count 1) into his misdemeanor battery conviction relating to the January 26,
2002 incident (Count 4). We disagree.
“Whether two offenses should be merged is a question of law, and we apply a
‘plain legal error’ standard of review.” Wilson, supra at 72 (3) (citation and
punctuation omitted). Under the merger doctrine, “a criminal defendant cannot be
subject to the imposition of multiple punishment when the same conduct establishes
the commission of more than one crime.” Id. (citation and punctuation omitted). The
doctrine does not apply, however, when multiple convictions are based on different
conduct. See id. And in this case, the record clearly shows that Cameron’s
convictions on Counts 1 and 4 arose from different conduct.
Count 1 alleged that on January 26, 2002, Cameron committed the offense of
kidnapping with bodily injury by “unlawfully and forcibly abduct[ing] and steal[ing]
away [the victim], a person, without lawful authority and warrant and hold[ing] said
person against her will; said act resulting in bodily injury to said [victim].” Both sides
recognized at trial that this charge centered on Cameron’s conduct in forcibly
dragging the victim by her hair through the apartment to her bedroom, causing pain
to her head and loss of hair.
4 During a charge conference held prior to closing arguments, defense counsel
requested that the trial court instruct on simple battery as a lesser included offense of
kidnapping (Count 1), explaining: “The evidence in the case has been that [Cameron]
pulled [the victim’s] hair and drug her across the room. . . . I think the jury might be
able to find that that is a battery.” The trial court questioned: “Don’t they have a
battery wound up in that whole thing, too, as a separate charge?” Defense counsel
responded: “[The battery charge] does not allege the hair. So I would respectfully
request a lesser included charge of battery on the hair pulling and dragging incident.”
The State did not object, and the trial court granted Cameron’s request for the
instruction.
Defense counsel subsequently highlighted the lesser included offense during
his closing argument, asserting that “[d]ragging somebody by the hair is not
kidnapping.” He further argued to the jury:
You are going to get a charge on a lesser included offense when it comes to kidnapping. The judge is going to instruct you all on a lesser included offense of battery, and I submit to you all that when [Cameron] pulled [the victim’s] hair and dragged her across the floor, that that’s a battery. That’s not kidnapping.
5 Ultimately, the jury agreed with Cameron that the hair-dragging conduct
involved in Count 1 constituted simple battery, not kidnapping. See OCGA § 16-5-23
(a) (“simple battery” occurs when a person “[i]ntentionally makes physical contact
of an insulting or provoking nature with the person of another . . . or . . .
[i]ntentionally causes physical harm to another.”). In contrast, Count 4 alleged that
Cameron committed a different crime – misdemeanor battery – by “intentionally
caus[ing] visible bodily harm to [the victim] by punching her in the face with his fist,
choking her, and kicking her in the stomach.” See OCGA § 16-5-23.1 (a) (“A person
commits the offense of battery when he or she intentionally causes substantial
physical harm or visible bodily harm to another.”). Count 4 focused on Cameron’s
acts of hitting, kicking, and choking the victim, rather than the hair-dragging conduct.
As defense counsel argued to the trial court when requesting a charge on the
lesser included offense of simple battery, the conduct underlying the jury’s verdict on
Counts 1 and 4 was not the same. Accordingly, Cameron’s convictions on these two
counts did not merge. See Waits v. State, 282 Ga. 1, 4 (2) (644 SE2d 127) (2007)
(“The 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.”); Wilson, supra at 73 (3) (trial court did not err in failing to
6 merge convictions for crimes that “were separate and sequential and not based on the
same exact conduct”); Johnson v. State, 305 Ga. App. 838, 840-841 (2) (700 SE2d
726) (2010) (no merger where convictions not based on the same conduct).
2. Cameron also argues that the trial court should have merged Count 4
(alleging a battery committed on January 26, 2002) and Count 7 (alleging a battery
committed on February 4, 2002) because, in his view, the two charges are almost
“indistinguishable.” It is true that “if the counts in the indictment are identical except
for the dates alleged, and the dates were not made essential averments, only one
conviction can stand.” Thomas v. State, 352 Ga. App. 640, 642-643 (1) (a) (835 SE2d
640) (2019) (citation and punctuation omitted). The two counts at issue, however, not
only alleged different dates, but different conduct as well. As noted in Division 1,
Count 4 alleged that on January 26, 2002, Cameron intentionally caused “visible
bodily harm to [the victim] by punching her in the face with his fist, choking her, and
kicking her in the stomach[.]” Count 7, on the other hand, charged that on February
4, 2002, Cameron “did intentionally cause substantial bodily harm to [the victim] by
punching and choking her[.]”
Pursuant to OCGA § 16-5-23.1 (a), a battery results when a person
intentionally causes substantial physical harm or visible bodily harm to another
7 person. Count 4 alleged one way of committing the offense (by intentionally causing
visible bodily harm), while Count 7 alleged a different method (by intentionally
causing substantial bodily harm). Given the differences in the allegations, as well as
the clear testimony at trial that Cameron physically assaulted the victim on two
separate occasions in two different locations, the trial court did not err in failing to
merge Counts 4 and 7. See Torres v. State, 353 Ga. App. 470, 484 (6) (838 SE2d 137)
(2020) (“Where an averment in one count of an accusation or indictment
distinguishes it from all other counts, either by alleging a different set of facts or a
different date which is made an essential averment of the transaction, the State may
on conviction punish the defendant for the various crimes.” (citations, punctuation,
and emphasis omitted)); see also Griffin v. State, 294 Ga. 325, 328 (751 SE2d 773)
(2013) (“The state must prove all material allegations in an indictment which describe
the offense or the particular manner in which the offense was committed.” (citation
and punctuation omitted)).
Judgment affirmed. Miller, P. J., and Senior Appellate Judge Hebert E. Phipps,
concur.