FIRST DIVISION
PHIPPS, C. J.,
ELLINGTON, P. J., and MCMILLIAN, J.
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.
http://www.gaappeals.us/rules/
July 16, 2014
In the Court of Appeals of Georgia
A14A0539. LUCAS v. THE STATE.
PHIPPS, Chief Judge.
Christopher Lucas was convicted of two counts of burglary,1 criminal damage
to property (second degree),2 theft by taking,3 and possession of tools for the
commission of a crime.4 He contends that the trial court erred by (1) sentencing him
for both burglary counts, because they were part of a single continuous act and should
have merged; and (2) denying his motion for new trial based on his claim of
ineffective assistance of trial counsel. Because the two burglaries merged as a matter
of fact, we vacate one burglary conviction and sentence and remand the case for
1
OCGA § 16-7-1 (a) (2012) (former version).
2
OCGA § 16-7-23.
3
OCGA § 16-8-2.
4
OCGA § 16-7-20.
resentencing. We affirm Lucas’s remaining convictions because Lucas failed to show
that his trial counsel provided ineffective assistance.
1. Lucas contends that the trial court erred by sentencing him for two burglary
counts instead of only one. He asserts that the charged burglary offenses merged
because they were committed at the same time and place, were part of a continuous
criminal act, and were inspired by the same criminal intent.
Count 1 of the indictment alleged that Lucas committed burglary when, on
March 28, 2012, without authority and with intent to commit a theft therein, he
entered and remained within a building of another (to wit: a Huddle House restaurant
at a specified location). Count 5 alleged that Lucas committed burglary when, on the
same date, without authority and with intent to commit a theft therein, he entered and
remained within that same building (the Huddle House restaurant). The indictment
stated that the offense alleged in Count 1 was “separate and apart from the offense
alleged in Count 5” of the indictment, and that the offense alleged in Count 5 was
“separate and apart from the offense alleged in Count 1.”
The evidence showed the following. On March 28, 2012, a Huddle House
restaurant waitress arrived at work shortly after 5:00 a.m., and found the glass on the
front door broken. The waitress telephoned police and the manager. When the
2
manager arrived, she entered the store and observed that the frame of the office door
was broken, the safe that had been in the office was gone, and the cash register had
been pried, but not opened. A “change jar” that was kept inside the safe, containing
about $400, was also missing.
A police detective arrived and spoke with the owner, who had also arrived. The
owner showed the detective a surveillance video taken from the restaurant’s cameras;
the video was later shown to the jury.5 The video showed the glass on the front door
break and a person enter the building. The person attempted to open the cash register,
but could not. He left, and returned between five and twenty minutes later. When he
returned, he broke into the office with “some sort of metal thing,” dragged a safe out
of the office, put the safe in a vehicle, then left. A second police detective saw still
photographs taken from the video and told the first detective that he recognized the
person depicted therein as Lucas.
The two detectives then went to Lucas’s home to interview him. Lucas told the
detectives that he would return the safe to them and possibly some cash or the
5
Citing technical difficulties, the state did not show at trial the entire video. In
addition to showing parts of the video, the state introduced still photos taken from the
video and the testimony of the owner and detectives who had viewed the video,
regarding what it showed.
3
contents of the safe. The detectives went to the police station and waited for Lucas,
but he did not arrive.
The detectives later returned to Lucas’s house, which he shared with his
girlfriend, T. H. T. H. told the detectives that she and Lucas took the safe from the
restaurant. She also told the detectives where the safe could be found. Based on their
conversation with T. H., the detectives were able to locate the safe; it was in a ravine
by a roadside, and a section of the safe had been cut out. T. H. consented to a search
of the home, and directed detectives to a duffle bag in the home’s crawlspace. The
bag contained a crow bar, a power saw, and cutting blades capable of cutting through
pipes and “just about anything.” Detectives also found in the crawlspace a jar like the
cash jar that had been inside the safe.
“Under Georgia law, offenses merge and multiple punishment is prohibited if
one offense is included in the other as a matter of law or fact.”6 “For separate offenses
charged in one indictment to carry separate punishments, they must rest on distinct
criminal acts. If they were committed at the same time and place and [were part] of
a continuous criminal act, and inspired by the same criminal intent, they are
6
McConnell v. State, 263 Ga. App. 686, 693 (7) (589 SE2d 271) (2003).
4
susceptible of only one punishment.”7 “Whether offenses merge is a legal question,
which we review de novo.” 8
The version of OCGA § 16-7-1 (a) in effect in when the offenses were
committed (March 2012) provided, in pertinent part, that “[a] person commits the
offense of burglary when, without authority and with the intent to commit a felony
or theft therein, he enters or remains . . . within any . . . . building . . . or any room or
any part thereof.” The question presented here, then, is whether Lucas’s acts of
entering, exiting, and reentering the same restaurant twice within a five to twenty-
minute period for the purpose of committing theft can be punished as two “separate
units of prosecution” under the burglary statute.9 The state contends that the two
burglary counts did not merge, because the conduct at issue was not part of a single
7
Hawkins v. State, 302 Ga. App. 84, 86 (2) (690 SE2d 440) (2010); York v.
State, 242 Ga. App. 281, 295 (8) (528 SE2d 823) (2000); Hubbard v. State, 168 Ga.
App. 778, 779 (2) (310 SE2d 556) (1983).
8
Nosratifard v. State, 320 Ga. App. 564, 570 (2) (740 SE2d 290) (2013)
(citation and punctuation omitted).
9
See Withrow v. State, 275 Ga. App. 110, 114 (4) (619 SE2d 714) (2005);
Smith v. State, 290 Ga. 768, 773 (3), n. 4 (723 SE2d 915) (2012). See Nosratifard,
supra at 570 (2), n. 8 (“Because the instant case does not involve two distinct
statutory provisions, the ‘required evidence’ test does not apply.”) (citations and
punctuation omitted).
5
continuous act. According to the state, “the continuum of [Lucas’s] act was broken
when he left the premises of Huddle House for a period of time and returned to take
the store’s safe.”10 We disagree.
Here, both burglary counts charged Lucas with entering the same building on
the same date with the intent to commit the same crime – theft. And the evidence
showed that the acts were committed at the same location, were inspired by the same
criminal intent (to commit theft in the Huddle House restaurant building), and were
part of a continuous criminal act spanning a matter of minutes. The criminal acts were
not “separated by a meaningful interval of time or with distinct intentions.”11 The
interval of minutes between the acts “did not signal the completion of a separate
criminal act but signified only the temporary failure to accomplish the one intentional
criminal transaction.”12 The criminal conduct constituted a single course of conduct,
10
(Emphasis omitted.)
11
Thompson v. State, 291 Ga. App. 355, 361 (5) (662 SE2d 135) (2008)
(citations omitted); see generally Bonner v. State, 308 Ga. App. 827, 831 (2) (709
SE2d 358) (2011) (three batteries were part of a continuous criminal act and thus
merged into one).
12
Ingram v. State, 279 Ga. 132, 133 (2) (610 SE2d 21) (2005) (citations
omitted); Crowley v. State, 315 Ga. App. 755, 759-760 (3) (728 SE2d 282) (2012).
6
not separate offenses.13 Further, without evidence of a legislative intent to allow
multiple punishments for the same course of conduct, acts that constitute a continuing
criminal course of conduct are not punishable separately; 14 there is no evidence of
such legislative intent regarding the burglary statute. Thus, the trial court erred by
failing to merge the two counts.15 Accordingly, we vacate the conviction and sentence
on one of the burglary counts, and remand the case to the trial court for
resentencing.16
2. Lucas contends that his trial counsel provided ineffective assistance by not
moving to suppress incriminating statements that he had made to detectives at his
house. At trial, the detectives testified that when they interviewed Lucas at his house,
13
See generally Withrow, supra.
14
Id.
15
See generally Hubbard, supra at 779-780 (2).
16
See Curtis v. State, 275 Ga. 576, 577 (1) (571 SE2d 376) (2002); Crowley,
supra at 757, 760 (3), n. 4; Withrow, supra; Mack v. State, 283 Ga. App. 172, 175-176
(3) (641 SE2d 194) (2007); Ratledge v. State, 253 Ga. App. 5, 7 (3) (557 SE2d 458)
(2001); McConnell, supra. Compare Crumley v. City of Atlanta, 68 Ga. App. 69, 72-
73 (22 SE2d 181) (1942) (convictions for two counts of disorderly conduct were
authorized and were not part of one continuous criminal transaction, where acts
occurred two to three hours apart and at different locations).
7
Lucas told them that he knew where the safe was and promised to return the safe and
some of its contents. He also said that the safe was “heavier than we thought.”
Citing OCGA § 24-8-824,17 Lucas asserts that the incriminating statements
were inadmissible because they had been induced by the detectives’ promise to obtain
a bond for him and their suggestion that he would not be prosecuted if he returned the
property. When it denied Lucas’s motion for new trial based on the ineffective
assistance claim, the court found that Lucas had not shown, inter alia, a reasonable
probability that the outcome of the trial would have been different had his statements
been suppressed.
[I]n order to prevail on his claim of ineffective assistance of
counsel, [Lucas] must show under Strickland v. Washington,18 that his
attorney’s performance was deficient, and that, but for such deficiency,
there is a reasonable probability that the proceeding would have ended
differently. Moreover, in order to meet this burden, [Lucas] must
17
OCGA § 24-8-824 (former OCGA § 24-3-50) provides: “To make a
confession admissible, it shall have been made voluntarily, without being induced by
another by the slightest hope of benefit or remotest fear of injury.” See Woodall v.
State, 294 Ga. 624, 629 (4), n. 5 (754 SE2d 335) (2014) (noting that former OCGA
§ 24-3-50 is now codified as OCGA § 24-8-824 as part of the new Georgia Evidence
Code which took effect on January 1, 2013). Ga. L. 2011, pp. 99, 214, §101. The trial
in this case commenced in January 2013.
18
466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).
8
overcome the strong presumption that his attorney’s representation fell
within the wide range of reasonable professional conduct.19
This court reviews a trial court’s legal conclusions de novo, and will uphold a trial
court’s findings of fact on a claim of ineffective assistance of counsel unless those
findings are clearly erroneous.20
“When trial counsel’s failure to file a motion to suppress is the basis for a claim
of ineffective assistance, the defendant must make a strong showing that the
damaging evidence would have been suppressed had counsel made the motion.”21
Further, a court need not determine whether counsel’s performance was
deficient before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies. . . .If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.22
19
White v. State, 281 Ga. 20, 23 (4) (635 SE2d 720) (2006) (citations omitted).
20
See id.; Harris v. State, 314 Ga. App. 816 (726 SE2d 455) (2012).
21
Ross v. State, 313 Ga. App. 695, 697 (1) (b) (722 SE2d 411) (2012) (citation
and punctuation omitted).
22
Coney v. State, 316 Ga. App. 303, 306 (3) (a), (b) (728 SE2d 899) (2012)
(citation and punctuation omitted).
9
The detectives testified at trial about their interview of Lucas at his residence;
a portion of the interview was recorded, and a video and audio recording of the
interview was played at trial. The evidence showed that during the interview, the
detectives told Lucas that: the restaurant owners wanted the safe back; “[t]hat’s all
they want, is their safe back. That’s all you gotta do. Give these people their safe
back”; “[i]f Huddle House gets their safe, and their little bit of cash back, they’re
good to go”; if Lucas helped them get the safe back, Huddle House, the detectives,
their boss, and the district attorney (DA) would be happy; and the detectives would
tell the DA that Lucas had “worked with us, and see if they can help you out.” The
detectives added that if the DA’s office “wanted” Lucas, it would have prosecuted
him on an unrelated burglary charge, but had not, and that the DA’s office “doesn’t
care about Chris Lucas.” The detectives also purportedly promised to arrange for
bond for Lucas.
Assuming that the detectives’ statements to Lucas suggested that he would not
be prosecuted if he returned the property, and assuming further that the statements
constituted an impermissible hope of benefit (and that Lucas was induced thereby to
10
make the incriminating statements),23 and that Lucas has thus made a strong showing
that the evidence would have been suppressed had counsel made the motion,24 his
ineffective assistance claim still must fail. This is because Lucas has failed to show
a reasonable probability that the outcome of the trial would have been different had
his statements been excluded, given the other substantial evidence of his guilt.25
Judgment affirmed in part and vacated in part; case remanded for
resentencing. Ellington, P. J., and McMillian, J., concur.
23
See Canty v. State, 286 Ga. 608, 610-611 (690 SE2d 609) (2010) (reversing
conviction where trial court admitted appellant’s incriminating statement which had
been induced by the promise of a hope of benefit; appellant had been told that
confessing to the crime could result in a shorter term of punishment). Regarding
whether a promise to secure bond is a hope of benefit which would render a
confession inadmissible, see generally Pounds v. State, 189 Ga. App. 809, 810 (1)
(377 SE2d 722) (1989) (a reduction of bond is a collateral benefit, not the hope of
lighter punishment which renders a confession inadmissible).
24
See generally Ross v. State, 313 Ga. App. 695, 697 (1) (b) (722 SE2d 411)
(2012).
25
See Miller v. State, 293 Ga. 638, 640 (2) (748 SE2d 893) (2013); Wallace v.
State, 272 Ga. 501, 503-504 (3) (530 SE2d 721) (2000); Askea v. State, 153 Ga. App.
849, 851-852 (3) (267 SE2d 279) (1980). Compare Suluki v. State, 302 Ga. App. 735,
738 (1) (691 SE2d 626) (2010).
11