Epperson v. the State

SECOND DIVISION
BARNES, P. J.,
BOGGS and RICKMAN, 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.
http://www.gaappeals.us/rules

December 28, 2016

In the Court of Appeals of Georgia
A16A1849. EPPERSON v. THE STATE.

BARNES, Presiding Judge.

A jury found Rodney Rodriguez Epperson guilty of armed robbery, aggravated

assault, aggravated battery, and three counts of possession of a firearm during the

commission of a felony. The trial court subsequently denied Epperson’s motion for

new trial. On appeal, Epperson contends that the trial court erred in denying his

motion to dismiss the indictment based on the alleged violation of his constitutional

right to a speedy trial, that the evidence was insufficient to support his convictions,

and that the trial court should have merged his aggravated battery conviction into his

armed robbery and aggravated assault convictions for purposes of sentencing. For the

reasons discussed below, we affirm.
 “Following a criminal conviction, the defendant is no longer presumed

innocent, and we view the evidence in the light most favorable to sustain the verdict.”

Anthony v. State, 317 Ga. App. 807 (732 SE2d 845) (2012). So viewed, the evidence

showed that on the evening of April 20, 2010, the victim and his girlfriend were at

their friend’s house smoking crack cocaine. Several times that night, when the group

ran out of drugs, the victim would provide more money, and a member of the group

would walk over to the neighboring apartments and buy more drugs from Epperson

and one of his associates. When the victim ran out of money, he decided to return to

his apartment to get more money for drugs. The victim did not have transportation,

but Epperson came over to the friend’s house where the victim and the others had

been smoking crack cocaine and agreed to give the victim a ride so that he could get

his money. The victim then got into a cream-colored car with Epperson and another

individual, and they drove to the victim’s apartment.

Upon arriving at his apartment, the victim woke up his brother, who lived with

the victim and had previously agreed to safeguard the victim’s money for him. After

retrieving the victim’s money, the brother noticed a man with dreadlocks standing at

the doorway of the bedroom next to the victim. The victim’s brother, however, did

not get a good look at the man because he was sleepy from having just been

2
awakened by the victim. While the victim and man were leaving the apartment, the

brother overheard the man asking the victim for the money, but the victim told him

he would have to wait until they got back to the car. The brother looked out the

window, where he saw a cream-colored car drive up and the victim and the man get

inside and leave together.

The victim then was driven in the cream-colored car to the apartment complex

next to his friend’s house where he had been smoking crack cocaine. The victim got

out of the car and bought more drugs at one of the apartment units, but as he was

returning to the car, he was robbed at gunpoint. The victim initially took his wallet

and the drugs out of his pockets to hand over to the gunman, but the victim then

attempted to disarm the gunman using a maneuver he had learned in the military. The

victim’s attempt was unsuccessful, and the gunman shot him several times.

The victim’s friend had been standing on the porch of her house next to the

apartment complex and had seen the cream-colored car travel over to the neighboring

apartments a few minutes before the gunshots. When she heard the gunshots, the

victim’s friend ran from her house over to the apartment complex, where she saw

Epperson running away from the victim’s body with a gun in his hand. Epperson

3
looked up and saw the victim’s friend, jumped into the cream-colored car, and fled

from the scene.

The friend ran back to her house and told the victim’s girlfriend that the victim

had been shot. The girlfriend ran over to the apartment complex, where she found the

victim lying motionless in the street. The victim told his girlfriend that he had just

been robbed. The victim later testified that he did not remember anything after the

first shot was fired, and he did not identify the person who had robbed him at trial.

The police and an ambulance responded to the scene. The victim was

transported to the hospital and treated for his gunshot wounds. One of the gunshots

damaged his spinal cord, paralyzing the victim from the chest down.

Epperson was arrested in June 2010 for the armed robbery incident at issue in

this case and for two other unrelated armed robberies, and he was not released on

bond and remained in jail while awaiting trial. In December 2010, a grand jury

indicted Epperson in the present case on charges of armed robbery, aggravated

assault, aggravated battery, and three counts of possession of a firearm during the

commission of a felony.1 The trial of the case thereafter was delayed several times

1
Epperson also was indicted for possession of a firearm by a convicted felon,
but the State later requested and obtained entry of a nolle prosequi order on that
count.

4
because of, among other things, Epperson’s consent to a continuance, an overcrowded

docket, turnover in the district attorney’s office, and the fact that the paralyzed victim

was often medically unstable and unavailable for trial.

In July 2013, Epperson filed a motion to dismiss the indictment based on the

alleged violation of his constitutional right to a speedy trial. After conducting a

hearing, the trial court denied the motion, and the case proceeded to a jury trial in

June 2014.

At trial, the State called several witnesses, including the victim, the victim’s

brother, the victim’s girlfriend, and the victim’s friend who lived at the house next to

the apartments where the group had been smoking crack cocaine. Epperson elected

not to testify and did not call any defense witnesses. After hearing all the evidence,

the jury found Epperson guilty of the charged offenses.

For purposes of sentencing, the trial court merged Epperson’s aggravated

assault conviction into his armed robbery conviction and merged together his three

firearm possession convictions. The trial court sentenced Epperson to life in prison

for armed robbery, a consecutive sentence of 20 years in prison for aggravated

battery, and a consecutive sentence of 5 years in prison for the firearm possession

conviction.

5
 Epperson filed a motion for new trial, challenging the trial court’s failure to

grant his motion to dismiss the indictment on constitutional speedy trial grounds, the

sufficiency of the evidence to convict him of the charged offenses, and the trial

court’s failure to merge his aggravated battery conviction into his armed robbery and

aggravated assault convictions. Because the original trial judge who had presided

over the trial and sentencing of Epperson retired, a new trial judge was assigned to

hear the motion for new trial. Following a hearing, the newly assigned trial judge

addressed Epperson’s motion for new trial in a detailed order, which included specific

findings related to Epperson’s speedy trial claim. The trial judge noted that, “[i]n an

abundance of caution,” he had independently reevaluated Epperson’s motion to

dismiss the indictment on constitutional speedy trial grounds and had concluded that

no constitutional violation had occurred. The trial court also concluded that the

evidence was sufficient to sustain the verdict and that Epperson’s aggravated battery

conviction did not merge with his other convictions. In light of these conclusions, the

trial court denied Epperson’s motion for new trial, and this appeal followed.

1. Epperson first contends that the trial court erred in denying his motion to

dismiss the indictment because his constitutional right to a speedy trial was violated

as a result of the delay between his arrest and trial. We disagree.

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 A criminal defendant is guaranteed a speedy trial under the Sixth Amendment

to the United States Constitution and the Georgia Constitution. See U. S. Const.,

Amend. VI; Ga. Const., Art. I, Sec. I, Par. XI (a). “Speedy trial rights attach at the

time of arrest or formal indictment, whichever is earlier.” Salahuddin v. State, 277

Ga. 561, 562 (2) (592 SE2d 410) (2004).

When considering a motion to dismiss on speedy trial grounds, the trial
court must conduct a two-part test as set forth in the United States
Supreme Court decisions in Barker v. Wingo, 407 U.S. 514, 530 (92 SCt
2182, 33 LE2d 101) (1972), and Doggett v. United States, 505 U.S. 647,
651-652 (112 SCt 2686, 120 LE2d 520) (1992). First, the trial court
must determine whether the interval from the defendant’s arrest,
indictment, or other formal accusation to trial is sufficiently long to be
considered presumptively prejudicial. If the delay is presumptively
prejudicial, the trial court must then determine whether the defendant
has been deprived of his right to a speedy trial by analyzing a four-part
balancing test that considers (1) the length of the delay, (2) the reason
for the delay, (3) the defendant’s assertion of the right to a speedy trial,
and (4) prejudice to the defendant.

(Citation omitted.) Smith v. State, 336 Ga. App. 229, 230-231 (2) (784 SE2d 76)

(2016).

Application of the Barker-Doggett test “to the circumstances of a particular

case is a task committed principally to the discretion of the trial courts, and it is

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settled law that our role as a court of review is a limited one.” State v. Buckner, 292

Ga. 390, 391 (738 SE2d 65) (2013). “In reviewing the trial court’s resolution of a

speedy trial claim, we must accept the court’s findings of fact if the record contains

any evidence to support them, and we will defer to the trial court’s ultimate

conclusion unless it amounts to an abuse of discretion[.]” (Citation and punctuation

omitted.) York v. State, 334 Ga. App. 581, 584 (2) (780 SE2d 352) (2015).

As previously noted, the newly assigned trial judge who heard Epperson’s

motion for new trial conducted a hearing and independently reviewed and reevaluated

all of the evidence and the pleadings associated with Epperson’s motion to dismiss

the indictment on speedy trial grounds. In a detailed order, the trial judge found that

the delay of several years was presumptively prejudicial, triggering consideration of

the four-factor balancing test set forth in Barker and Doggett. Analyzing those four

factors, the trial judge found that the length of the delay was uncommonly long and

weighed heavily against the State; that the reason for the delay was the negligence of

the State rather than bad faith, which weighed minimally against the State; that

Epperson’s delay in asserting his speedy trial right weighed heavily against him; and

that the prejudice factor weighed slightly against Epperson. The trial judge then

balanced the four factors and concluded that Epperson had not been deprived of his

8
constitutional right to a speedy trial, and that his motion to dismiss the indictment on

speedy trial grounds thus had been properly denied.

On appeal, Epperson contends that the trial judge assigned to hear his motion

for new trial erred in finding that his motion to dismiss the indictment on speedy trial

grounds had been correctly denied. Specifically, Epperson maintains that the newly

assigned trial judge erred by finding that the fourth and final factor of the Barker-

Doggett balancing test, the prejudice factor, weighed slightly against him.2 According

to Epperson, the prejudice factor should have been weighed against the State because

he was not required to present particularized proof of prejudice, the length of the

delay created a presumption of prejudice, and the case was not complex and could

have been brought to trial more quickly by the State. Epperson maintains that if the

prejudice factor had been properly weighed against the State, three of the four

Barker-Doggett factors then would have weighed in his favor, and the balancing of

2
Epperson also challenges the initial denial of his motion to dismiss the
indictment on speedy trial grounds by the trial judge originally assigned to the case.
However, as noted above, Epperson’s motion to dismiss was later reviewed de novo
and independently decided by the trial judge assigned to his motion for new trial.
Consequently, the original trial judge’s ruling on the motion to dismiss was rendered
moot and will not be separately considered on appeal. We also note that Epperson has
not challenged the newly assigned trial judge’s rulings with respect to the first three
Barker-Doggett factors.

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those factors would have led the trial court to find that his speedy trial right had been

violated. We are unpersuaded.

The prejudice factor of the Barker-Doggett balancing test “addresses three

interests which the right to a speedy trial was designed to protect, with the last

interest being of the most import; these interests are to prevent pre-trial incarceration

from being oppressive, to minimize any anxiety and concern on the part of the

accused, and to limit possible impairment of the defense.” (Citation and punctuation

omitted.) Jones v. State, 296 Ga. 561, 571 (7) (769 SE2d 307) (2015). Additionally,

“consideration of prejudice is not limited to the specifically demonstrable, and . . .

affirmative proof of particularized prejudice is not essential to every speedy trial

claim.” Doggett, 505 U.S. at 655 (III) (A). Hence, as part of its analysis of the

prejudice factor, a trial court should take into account any presumption of prejudice

that has arisen as a result of the length of the delay between the defendant’s arrest and

trial, with the presumption intensifying over time. See Wilkie v. State, 290 Ga. 450,

451 (721 SE2d 830) (2012); Smith v. State, 338 Ga. App. 62, 72-73 (1) (d) (i) (789

SE2d 291) (2016).

In analyzing Epperson’s speedy trial claim as part of the motion for new trial,

the trial court noted that Epperson was not required to present affirmative proof of

10
particularized prejudice and factored this into its analysis. The trial court then

considered the specific interests addressed by the prejudice factor of the Barker-

Doggett balancing test and found that, while Epperson’s pre-trial incarceration was

excessive, Epperson was also being held on other, unrelated charges during the same

time period. The trial court further noted that Epperson never testified about his

speedy trial claim, never offered any evidence regarding his level of anxiety or

concern, and never presented any evidence that his defense had been impaired by the

delay. In light of these findings, the trial court found that the prejudice factor weighed

slightly against Epperson.

We discern no error by the trial court in its analysis of the prejudice factor.

Where, as in the present case, “the defendant has made no attempt at all to

demonstrate (or even argue) that he has suffered any particular prejudice to his mental

or physical condition or to his defense strategy, any prejudice that might be presumed

by virtue only of the passage of time will carry very little weight in the Barker[-

Doggett] analysis.” Phan v. State, 290 Ga. 588, 596 (1) (d) (723 SE2d 876) (2012).

Accordingly, we conclude that “[g]iven the paucity of evidence of actual prejudice,

the trial court did not abuse his discretion in weighing the prejudice factor in the

[S]tate’s favor.” Cawley v. State, 330 Ga. App. 22, 28 (2) (d) (766 SE2d 581) (2014).

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See Dillard v. State, 297 Ga. 756, 761-762 (4) (778 SE2d 184) (2015) (trial court did

not err in weighing prejudice factor against defendant, where defendant failed to

show that his pre-trial incarceration harmed his mental health, that “the delay

interfered with his ability to present evidence which would have strengthened his

defense,” or that he suffered “any harm other than the incarceration itself”); Smith,

336 Ga. App. at 234-235 (2) (b) (iv) (although delay of approximately three years and

three months between arrest and trial was presumptively prejudicial, the trial court did

not err in weighing prejudice factor against defendant, where defendant was confined

on other charges, did not testify regarding any anxiety he suffered, and failed to show

that his defense was impaired by the delay).

2. Epperson contends that the evidence was insufficient to support his

convictions because the State failed to prove that he was the perpetrator of the

charged offenses. Epperson emphasizes that the victim was unable to identify him as

the gunman, and he argues that the testimony of the other State’s witnesses provided

insufficient circumstantial evidence to prove his identity as the perpetrator. Again, we

disagree.

“When an appellant challenges the sufficiency of the evidence to support his

conviction, the relevant question is whether, after viewing the evidence in the light

12
most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” (Punctuation and

footnote omitted; emphasis in original.) Ward v. State, 312 Ga. App. 609, 609-610

(1) (718 SE2d 915) (2011). See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99

SCt 2781, 61 LE2d 560) (1979). Furthermore, the testimony of a single witness is

generally sufficient to establish a fact, OCGA § 24-14-8, and the credibility of a

particular witness’s testimony is for the jury to determine. Reyes v. State, 334 Ga.

App. 552, 557 (3) (780 SE2d 674) (2015).

“To warrant a conviction on circumstantial evidence, the proved facts shall not

only be consistent with the hypothesis of guilt, but shall exclude every other

reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-14-6. As the

language of the statute reflects, the

circumstantial evidence does not have to exclude every possible
hypothesis other than the defendant’s guilt, but only reasonable
hypotheses. And whether circumstances are sufficient to exclude every
reasonable hypothesis is a question for the jury, and that finding will not
be disturbed unless the verdict of guilt is insupportable as a matter of
law.

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(Citations and punctuation omitted; emphasis in original.) Clemente v. State, 331 Ga.

App. 84, 87 (769 SE2d 790) (2015).

Guided by these principles, we turn to the testimony in this case. The victim’s

girlfriend testified that on the evening of the robbery, she saw the victim get into a car

with Epperson at their friend’s house, and the victim’s friend similarly testified that

she saw the victim get into a car with Epperson and leave to go to his apartment to get

his money for more drugs. The victim’s brother testified that when the victim

subsequently came to their apartment and got money for more drugs, he saw a man

with dreadlocks asking the victim for the money, and then saw the victim and the man

get into a car and drive away. The description of the car given by the victim’s brother

matched the description of the car given by the victim’s friend, and Epperson was

identified as having dreadlocks during the trial. The victim’s friend also testified that

later that evening, she saw the same car pull into the apartment complex next to her

house, and, immediately after hearing gunshots, saw Epperson run away from the

victim’s body with a gun in his hand and flee in the same car.

While the victim could not identify the gunman, the combined testimony of the

other witnesses, construed in favor of the verdict, was sufficient to enable a rational

jury to find Epperson guilty beyond a reasonable doubt as the perpetrator of the

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charged crimes and to exclude every reasonable hypothesis except that of his guilt.

Jackson, 443 U. S. at 319 (III) (B). How much weight and credibility to afford the

witness testimony identifying Epperson and linking him to the victim was for the jury

to determine rather than this Court. See Sutton v. State, 295 Ga. 350, 352 (1) (759

SE2d 846) (2014); Trammell v. State, 328 Ga. App. 45, 47 (1) (761 SE2d 470)

(2014). Furthermore, evidence of Epperson’s presence at the scene of the shooting

and his conduct before and after the shooting of the victim, including his flight from

the crime scene, gave rise to an inference that he participated in the shooting. See

Babbage v. State, 296 Ga. 364, 367 (1) (768 SE2d 461) (2015); Johnson v. State, 277

Ga. App. 499, 503 (1) (a) (627 SE2d 116) (2006). Because the jury was authorized

to convict Epperson based on the testimony of the State’s witnesses, his challenge to

the sufficiency of the evidence is without merit.

3. Epperson contends that the trial court should have merged his aggravated

battery conviction into his armed robbery and aggravated assault convictions for

purposes of sentencing. We do not agree.3

3
The State concedes in its brief that Epperson’s aggravated battery conviction
merged into his armed robbery and aggravated assault convictions, but we are not
bound by the State’s concession and must perform our own independent analysis of
the merger question. See Shelton v. State, 251 Ga. App. 34, 36 (1) (553 SE2d 358)
(2001).

15
 (a) We first address Epperson’s contention that his aggravated battery

conviction should have been merged into his armed robbery conviction. “Georgia law

prohibits multiple convictions if one crime is included in the other.” (Citations and

punctuation omitted.) Ledford v. State, 289 Ga. 70, 71 (1) (709 SE2d 239) (2011). See

OCGA § 16-1-7 (a) (1). A crime is included in the other when “[i]t 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.” OCGA § 16-1-6 (1). To

determine whether one crime is included in another under OCGA § 16-1-6 (1), we

apply the required evidence test as adopted in Drinkard v. Walker, 281 Ga. 211, 215-

217 (636 SE2d 530) (2006).

Under the required evidence test, neither offense is included in the other
if each statutory provision requires proof of a fact which the other does
not. Consequently, when each of two statutes requires proof of an
additional fact which the other does not, an acquittal or conviction under
one statute does not exempt the defendant from prosecution and
punishment under the other, even though the charges are based on a
single act.

(Citation and punctuation omitted.) Petro v. State, 327 Ga. App. 254, 259 (2) (758

SE2d 152) (2014).

16
 As to aggravated battery, the indictment charged that Epperson “maliciously

cause[d] bodily harm to [the victim] by depriving said person[] of the use of his legs,

members of said victim’s body,” in violation of OCGA § 16-5-24 (a). As to armed

robbery, the indictment charged that Epperson, with the intent to commit a theft, took

money from the victim by use of a handgun, an offensive weapon, in violation of

OCGA § 16-8-41 (a). Based on these charges and the underlying criminal statutes,

Epperson’s aggravated battery conviction did not merge into his armed robbery

conviction. Because the taking of the victim’s property was not a fact required to

establish the aggravated battery offense, and because depriving the victim of a

member of his body was not a fact required to establish the armed robbery offense,

the two offenses did not merge under the required evidence test. See Blanch v. State,

306 Ga. App. 631, 635 (4) (703 SE2d 48) (2010); Smashum v. State, 293 Ga. App. 41,

43 (2) (666 SE2d 549) (2008).

Epperson, however, argues that his aggravated battery conviction should have

been merged into his armed robbery conviction in light of our Supreme Court’s recent

decision in Regent v. State, 299 Ga. 172 (787 SE2d 217) (2016). His argument is

unavailing under the circumstances of this case.

17
 In Regent, our Supreme Court reiterated that even if two crimes do not merge

under the required evidence test applicable under OCGA § 16-1-6 (1), that does not

necessarily end the merger analysis. 299 Ga. at 175. Rather, the Supreme Court

explained, merger of the offenses still may be required under Georgia’s other

statutory definitions of included offenses, including OCGA § 16-1-6 (2), which

provides that one crime is included in another if that crime differs from the other

“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.” Regent, 299 Ga. at 175-176. See also Ledford v. State, 289 Ga. 70, 73

(1) (709 SE2d 239) (2011); Hernandez v. State, 317 Ga. App. 845, 851-852 (3) (733

SE2d 30) (2012). Applying OCGA § 16-1-6 (2), our Supreme Court in Regent held

that the defendant’s convictions for aggravated assault and aggravated battery, which

were based on the single criminal transaction of the defendant twice stabbing the

victim in quick succession, merged because they differed only with respect to the

seriousness of the injury or risk of injury suffered by the victim. 299 Ga. at 176.

Contrary to Epperson’s contention, Regent does not support the merger of his

aggravated battery and armed robbery convictions. While the aggravated battery and

armed robbery in the present case were based on the same criminal transaction,

18
aggravated battery and armed robbery do not differ only with respect to the

seriousness of the injury or risk of injury suffered by the victim. Aggravated battery

and armed robbery do not simply prohibit different degrees of injury or risk of injury;

rather, the two crimes prohibit entirely different categories of injury – depriving a

victim of a member of his body versus depriving a victim of property. Thus, the two

offenses serve different primary purposes and do not merge under OCGA § 16-1-6

(2), in contrast to the offenses in Regent. See Sullivan v. State, 331 Ga. App. 592, 596

(1) (771 SE2d 237) (2015) (offenses did not merge under OCGA § 16-1-6 (2) where

they “prohibit different risks of injury” and serve different primary purposes, such as

protecting human life and safety versus protecting private property).

For these combined reasons, Epperson’s convictions for aggravated battery and

armed robbery did not merge under the required evidence test applicable under

OCGA § 16-1-6 (1) or under the statutory definition for included offense found in

OCGA § 16-1-6 (2). Consequently, the trial court committed no error in sentencing

Epperson for both offenses.

(b) We next address Epperson’s contention that his aggravated battery

conviction should have been merged into his aggravated assault conviction under the

reasoning of the Regent case. Regent arguably supports the merger of Epperson’s

19
aggravated battery and aggravated assault convictions under OCGA § 16-1-6 (2), see

Regent, 299 Ga. at 176, but the merger of those crimes would not change the

sentencing in this case. If those two convictions merged, Epperson’s aggravated

assault conviction would be the included offense and thus would be merged into his

aggravated battery conviction. See Regent, 299 Ga. at 176 (concluding that, as

charged, the aggravated assault was “included in” the aggravated battery for

sentencing); Emberson v. State, 271 Ga. App. 773, 775 (1) (611 SE2d 83) (2005)

(“Since the trial court merged the convictions for sentencing but did not specify

which conviction merged into the other, the trial court is directed on remand to

specify that the aggravated assault merged into the aggravated battery and that the

sentence imposed was for the offense of aggravated battery.”); Mills v. State, 187 Ga.

App. 79, 80-81 (4) (369 SE2d 283) (1988) (because aggravated assault should have

been merged into aggravated battery, defendant should only have been sentenced for

aggravated battery).

Here, as previously noted, the trial court merged Epperson’s aggravated assault

conviction into his armed robbery conviction, and then sentenced Epperson for armed

robbery and aggravated battery. Thus, even if the trial court should have merged

Epperson’s aggravated battery and aggravated assault convictions, the end result

20
would have been the same – Epperson would have been sentenced for aggravated

battery rather than aggravated assault, given that the aggravated assault would

constitute the included offense. See Regent, 299 Ga. at 176; Emberson, 271 Ga. App.

at 775 (1); Mills, 187 Ga. App. at 80-81 (4). Consequently, any error by the trial court

in failing to merge Epperson’s aggravated battery and aggravated assault convictions

was harmless and provides no basis for vacating his sentence.

Judgment affirmed. Boggs and Rickman, JJ., concur.

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