WILSON v. the STATE.

THIRD DIVISION
ELLINGTON, P. J.,
ANDREWS 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

January 22, 2018

In the Court of Appeals of Georgia
A17A2092. WILSON v. THE STATE.

ANDREWS, Judge.

Following a jury trial, Leroy Wilson was convicted of criminal attempt to

commit armed robbery, aggravated assault, entering an auto to commit theft, and first

degree criminal damage to property. Wilson appeals, challenging the sufficiency of

the evidence. He also argues that he received ineffective assistance of counsel at trial

and that the trial court erred in failing to merge two of his convictions. For reasons

that follow, we affirm in part, vacate in part, and remand for re-sentencing.

1. On appeal from a criminal conviction, the evidence must be viewed in the

light most favorable to the verdict, and a defendant no longer enjoys a presumption

of innocence. See Buruca v. State, 278 Ga. App. 650 (629 SE2d 438) (2006). We do

not weigh the evidence or resolve credibility issues, but merely determine whether the
jury was authorized to find the defendant guilty beyond a reasonable doubt. See id.

at 650-651. “As long as there is some competent evidence, even though contradicted,

to support each fact necessary to make out the state’s case, we must uphold the jury’s

verdict.” Id. at 651.

So viewed, the evidence shows that the victim worked at a restaurant located

on Russell Parkway in Warner Robins. On May 29, 2015, she arrived at work around

9:30 a.m., parked in front of the restaurant, and began taking groceries inside. As she

returned to her car, she encountered a masked man dressed in dark clothing in the

restaurant doorway. The victim tried to run, but fell down, and the man picked her up,

placing a gun to her head. The victim managed to get away after a struggle and ran

for help. She heard gunshots as she fled.

An employee and a customer at a nearby pawn shop saw the gunman assaulting

the victim. The employee called the police from the back of the shop, then heard two

gunshots. The police responded, and a patrolman began driving around the area,

looking for the gunman. As the patrolman entered a neighborhood approximately one

block from the restaurant, he saw Wilson standing in a yard, wearing dark blue jeans

rolled up to his ankles, black shoes, and a light-colored t-shirt. When Wilson saw the

patrol car, he ran, carrying a black bag.

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 The patrolman apprehended Wilson after a short chase and recovered the bag,

which contained medical supplies, as well as a loaded gun with one spent round in

the magazine. The victim identified the bag as hers, and she testified that she kept the

bag, in which she stored medical supplies needed for her second job, in the back seat

of her car. The evidence further showed that ammunition in the gun recovered from

the bag bore the same identifying marks as a spent shell casing found outside the

restaurant.

Around the time of the incident, an individual residing near the crime scene

found a long-sleeved black shirt and a pair of black gloves in his yard. A hat worn by

the gunman was also located behind the restaurant. Video surveillance cameras in the

area recorded the assault, revealing that a masked individual wearing dark clothing,

a black hat, and gloves confronted the victim with a gun, struggled with her briefly,

and removed a black bag from the victim’s car once she fled the scene. As he left the

area, the gunman stopped briefly to fire the gun in the direction of Russell Parkway,

striking the car with a bullet.

Based on the evidence presented, the jury found Wilson guilty of criminal

attempt to commit armed robbery, aggravated assault, entering an automobile to

commit theft, and first degree criminal damage to property. Wilson challenges these

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findings on appeal, asserting that the evidence failed to identify him as the assailant

and did not establish that the alleged interference with property endangered human

life. We disagree.

(a) With respect to identity, Wilson notes that neither the victim nor any other

witness identified him as the assailant. But “circumstantial evidence of identity may

be sufficient to enable a rational trier of fact to find a defendant guilty beyond a

reasonable doubt.” Minor v. State, 328 Ga. App. 128, 130-131 (1) (761 SE2d 538)

(2014) (citation and punctuation omitted). And significant circumstantial evidence

tied Wilson to the offenses here.

Specifically, Wilson was observed shortly after the crimes in a nearby

neighborhood carrying a bag taken from the victim’s car. Although Wilson was not

wearing the hat, gloves, or shirt worn by the assailant, his pants were cuffed in the

same way as the culprit, and police found the other clothing discarded close to the

restaurant. Wilson attempted to elude police, but was captured and found in

possession of a gun linked to the crime scene. Such evidence authorized the jury to

conclude beyond a reasonable doubt that Wilson was the assailant. See Minor, supra

at 131 (“[C]ircumstantial evidence of a defendant’s identity need not exclude every

conceivable inference or hypothesis — only those that are reasonable. To set aside

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the conviction it is not sufficient that the circumstantial evidence show that the act

might by bare possibility have been done by somebody else.”) (citation and

punctuation omitted); Roberts v. State, 322 Ga. App. 659, 662-663 (2) (a) (745 SE2d

850) (2013) (although victim could not positively identify defendant as assailant, jury

was authorized to find him guilty based on circumstantial evidence, including that he

fled from police near scene and had property belonging to victim, as well as shotgun

used during robbery, in his car).

(b) Wilson argues that his conviction for first degree criminal damage to

property cannot stand because the State offered no evidence that the interference with

property endangered human life. A person commits criminal damage to property in

the first degree when he “[k]nowingly and without authority interferes with any

property in a manner so as to endanger human life.” OCGA § 16-7-22 (a) (1). The

phrase “in a manner so as to endanger human life” means “reckless endangerment

rather than actual endangerment.” Carthern v. State, 272 Ga. 378, 381 (529 SE2d

617) (2000). An “actual risk of danger must exist and the defendant must at least act

recklessly.” Id. (punctuation omitted). As explained by our Supreme Court, “[t]his

interpretation is consistent with the purpose of the statute in seeking to protect human

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life and recognizes the heightened punishment for criminal damage to property when

human safety is threatened.” Id.

Construed favorably to the verdict, the evidence shows that Wilson shot a gun

in the direction of the victim’s vehicle and Russell Parkway, a five-lane road.

Although Wilson argues that the vehicle was unoccupied at the time, the video

surveillance recording shows a steady flow of traffic on Russell Parkway just before

the shooting. Under these circumstances, the jury was authorized to find that Wilson

recklessly endangered the lives of people on Russell Parkway, in violation of OCGA

§ 16-7-22 (a) (1).

2. Wilson contends that his trial counsel provided ineffective assistance by not

attacking the sufficiency of the indictment. To prevail on this claim, Wilson “must

prove both that . . . trial counsel’s performance was deficient and that there is a

reasonable probability that the trial result would have been different if not for the

deficient performance.” Atkinson v. State, 301 Ga. 518, 524-525 (6) (801 SE2d 833)

(2017) (citation omitted). Failure to satisfy either prong of this test undermines the

ineffective assistance claim. See id.

Wilson’s allegations focus on Count 1 of the indictment, which charged that

he attempted to commit armed robbery as follows:

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 the said accused, in the State of Georgia and County of Houston, on or
about the 29th day of May, 2015, did knowingly and intentionally
attempt to commit the crime of ARMED ROBBERY, in violation of
Code section 16-4-1 of the Official Code of Georgia, in that the said
accused did point a 9mm handgun at [the] victim . . . while grabbing
onto her person. The accused attempted to push the victim back into a
business in an attempt to commit Robbery, an act which constitute[d] a
substantial step toward the commission of said crime, contrary to the
laws of said State, the good order, peace and dignity thereof.

According to Wilson, Count 1 was flawed because (1) it did not allege that he

intended to take property from the person or immediate presence of the victim, and

(2) it stated that he took a substantial step toward the commission of robbery, rather

than armed robbery. He claims that Count 1 was subject to attack through a special

demurrer, general demurrer, or motion in arrest of judgment, and that counsel’s

failure to challenge the indictment entitles him to a new trial. We disagree.

An indictment is intended “to enable the defendant to prepare his defense

intelligently and to protect him from double jeopardy.” Issa v. State, 340 Ga. App.

327, 334 (3) (796 SE2d 725) (2017) (punctuation and footnote omitted). It is

“technically correct and sufficient if it states the offense in the terms and language of

the Code or in language so plain that jurors understand the nature of the charged

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offense.” Id. (punctuation and footnote omitted). The true test of an indictment’s

sufficiency

is not whether it could have been made more definite and certain, but
whether it contains the elements of the offense intended to be charged,
and sufficiently apprises the defendant of what he must be prepared to
meet, and, in case any other proceedings are taken against him for a
similar offense, whether the record shows with accuracy to what extent
he may plead a former acquittal or conviction.

Id. (footnote omitted).

The allegations in Count 1 meet these requirements. A criminal attempt results

“when, with intent to commit a specific crime, [a defendant] performs any act which

constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1.

We recognize that Count 1 does not track the criminal attempt statute exactly. But to

properly charge attempt, the State must merely “allege that, with an intent to commit

the underlying crime, [the defendant] performed some overt act toward its

commission.” Coleman v. State, 318 Ga. App. 478, 480 (1) (735 SE2d 788) (2012)

(punctuation and footnote omitted). Read as a whole, Count 1 asserts that, with intent

to commit armed robbery, Wilson committed a substantial step toward commission

of the crime by pointing a gun at the victim and grabbing her person. See id. at 481

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(allegations in indictment must be read as a whole). Although Count 1 references an

attempt to commit robbery, it clearly alleges use of a gun, and “[a]rmed robbery

occurs when a person commits a robbery by use of an offensive weapon.” Rogers v.

State, 255 Ga. App. 416, 418 (1) (b) (565 SE2d 583) (2002) (punctuation omitted).

The language in Count 1 sufficiently apprised Wilson of the crime charged

(attempt to commit armed robbery), as well as the manner in which the state alleged

that the crime had been committed. Moreover, “[i]f all the facts which the indictment

charges can be admitted, and still the accused be innocent, the indictment is bad; but

if, taking the facts alleged as premised, the guilt of the accused follows as a legal

conclusion, the indictment is good.” Bradford v. State, 327 Ga. App. 621, 627 (2) (a)

(1) (760 SE2d 630) (2014). Admission of the facts as alleged in Count 1 would result

in a finding of guilt. See OCGA § 16-4-1; OCGA § 16-8-41 (a) (defining armed

robbery).

Given the circumstances here, “there can be no reasonable doubt that [Wilson]

was sufficiently informed of the charges against him and also protected from

subsequent prosecution for the same crime.” Coleman, supra at 481. The indictment

is not defective, and trial counsel was not deficient in failing to attack it. See

Atkinson, supra at 526 (6) (g) (trial counsel’s failure to file a general or special

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demurrer to indictment was not ineffective assistance where “the indictment properly

set out all of the facts and elements of the crimes necessary to show that [defendant]

could be found guilty of the crimes alleged, and the indictment sufficiently informed

[defendant] of the allegations against him such that he could prepare an intelligent

defense”); Bradford, supra (failure to file meritless motion does not constitute

deficient performance).

3. Finally, Wilson argues that the trial court erred in failing to merge his

convictions for Count 1 (attempted armed robbery) and Count 2 (aggravated assault).

As detailed above, Count 1 alleges that Wilson attempted to commit armed robbery

when, with the necessary intent, he pointed a gun at the victim, grabbed her, and

pushed her into the restaurant. Count 2 alleges that he “did make an assault upon the

person of [the victim] with a deadly weapon, to wit: 9mm handgun by pointing it at

the victim.”

A criminal defendant may not “be convicted of more than one crime if . . . [o]ne

crime is included in the other.” OCGA § 16-1-7 (a) (1). In determining whether an

offense is included in another, we use the “required evidence” test. See Garland v.

State, 311 Ga. App. 7, 13 (3) (714 SE2d 707) (2011). In other words, “[w]here the

same act or transaction constitutes a violation of two distinct statutory provisions, the

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test to be applied to determine whether there are two offenses or only one, is whether

each provision requires proof of a fact which the other does not.” Id. (punctuation and

footnote omitted).

As found by our Supreme Court, “[b]ecause aggravated assault does not require

proof of any element that armed robbery does not, convictions for both offenses will

merge . . . if the crimes are part of the same act or transaction.” Thomas v. State, 289

Ga. 877, 880 (3) (717 SE2d 187) (2011) (citation and punctuation omitted). The same

is true here. Although attempted armed robbery involves greater proof elements than

aggravated assault, the latter charge “did not require proof of any fact that was not

also required to prove the attempted armed robbery, as that offense could have been

proved under the indictment in this case.” Garland, supra at 13. For purposes of

merger, therefore, the question becomes whether the two crimes arose from the same

act or transaction.

The State concedes on appeal that the conduct involved in Counts 1 and 2 arose

out of the same act or transaction. The record supports this concession. Wilson used

the handgun to control the victim during the attempted armed robbery, and the State

does not claim that a different act gave rise to the assault. On the contrary, both

counts allege that Wilson pointed the gun at the victim, and the victim indicated that

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the gun was directed at her one time. Nothing in the indictment or the evidence

separates the conduct. Merger, therefore, was necessary. See Mullis v. State, 321 Ga.

App. 720, 721-722 (742 SE2d 750) (2013) (aggravated assault arose out of same act

or transaction as criminal attempt to commit armed robbery, resulting in merger).

Accordingly, we vacate Wilson’s conviction and sentence for Count 2 and remand for

re-sentencing with direction that the trial court merge Count 2 into Count 1. See

Morris v. State, 340 Ga. App. 295, 314 (7) (797 SE2d 207) (2017).

Judgment affirmed in part and vacated in part, and case remanded with

direction. Ellington, P. J., and Rickman, J., concur.

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