LONON v. the STATE.

FIFTH DIVISION
MCFADDEN, P. J.,
RICKMAN and MARKLE, 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

February 7, 2019

In the Court of Appeals of Georgia
A18A1436. LONON v. THE STATE.

RICKMAN, Judge.

China Lonon was tried by a jury and convicted of armed robbery, criminal

attempt to commit murder, aggravated battery, three counts of aggravated assault, two

counts of first degree arson, false imprisonment, theft by taking, and aggravated

cruelty to animals. Lonon subsequently filed a motion for new trial and to correct

sentence, alleging that the evidence was insufficient to support the jury’s verdict for

the offenses of armed robbery, theft by taking, and aggravated cruelty to animals; that

the trial court erred in numerous respects; and that trial counsel rendered ineffective

assistance. After conducting a hearing, the trial court denied Lonon’s motion for new

trial, but granted his motion to correct sentence and vacated the sentences for theft by

taking and one count of first degree arson. On appeal, Lonon contends that the
evidence was insufficient to support his convictions for criminal attempt to commit

murder, first degree arson, and aggravated cruelty to animals; that his trial counsel

was ineffective; and that the trial court erred by refusing to merge aggravated assault

into aggravated battery and by refusing to merge first degree arson into criminal

attempt to commit murder. For reasons that follow, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most

favorable to the verdict. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d

560) (1979). So viewed, the evidence presented at trial showed that on the afternoon

of April 22, 2016, the victim was at his home when China Lonon, Arturo Lopez, and

a bald-headed man later identified as Markius Curtis showed up, asking to buy

marijuana. The victim knew Lopez and had seen Lonon a few times before, but he did

not know Curtis. At Lonon’s request, the three men were driven to the victim’s home

by Cammy Jackson. Lonon did not tell Jackson why they were going to the victim’s

residence, and there was no discussion of it while she was driving.

When they arrived, Lonon, Curtis, and Lopez went inside the victim’s

residence. Curtis asked the victim about purchasing a large quantity of marijuana, and

the victim told him that he could not supply it but that he might be able to call

someone else about it. Shortly thereafter, Lopez left the residence.

2
 While the victim was sitting on a couch in the front room, Curtis punched him,

and the victim fought back. Lonon got involved, and the victim fought both men until

he fell back on the couch. Curtis asked him where he kept the drugs and the money,

and the victim replied that he only had money and that it was under his mattress. At

that point, Lonon pulled out a machete, and he and Curtis went to get the money.

While the victim was on the couch, Lonon started talking to one of the dogs living in

the house, “cussing at the dog, telling the dog to come on, I wish you would, and so

on and so forth.”1

Lonon then told the victim to get up and go into the bedroom and lie down on

the floor. While the victim was on the floor, Lonon and Curtis began discussing how

they wanted to take the victim’s Xbox, his television, and his handgun, which was in

the box that it came in when he purchased it. The victim pleaded with Lonon to take

the possessions and let him go, promising not to tell anyone. The victim testified that

Lonon responded, “we’ve got to kill him,” I know he’s going to tell. Curtis suggested

1
There were two dogs living in the house at the time, and it is unclear which
dog Lonon was addressing. One of the dogs was a pit bull that belonged to the
victim’s roommate, and he kept the dog caged in a room in the house while he was
at work.

3
that they just “take the stuff” and go. After discussing it briefly, Curtis said that if

Lonon thought the victim was going to tell, “we got to do it then.”

After the discussion ended, the victim felt the first chop from the machete

Lonon was wielding. He felt at least three chops from the machete before he got up

and began to fight back. He made it to the front room and started beating on the door

and yelling for help, but Curtis told him to get away from the door, pretending he had

a gun that was actually an Xbox controller. At that point, the victim noticed that his

couch was on fire. The victim managed to get the door open and run out. As he

looked back, he saw Lonon and Curtis run out his back door.

The victim testified that Lonon and Curtis took his gun and $400 cash, that his

house was destroyed by the fire, and that the pit bull belonging to one of his

roommates “got killed during the situation.” The victim sustained blows to his hand

and the back of his head and suffered nerve damage, memory loss, headaches, and

nightmares.

Lopez and Jackson were still outside the residence when Lopez saw the victim

come out of his house, screaming for help. Lopez told Jackson to drive, and they went

back to Jackson’s house, where Lopez was arrested less than two hours later. Lopez

testified that he and Lonon are friends and that although he thought that Lonon was

4
going to the victim’s house to buy marijuana on the date of the incident, Lonon had

discussed robbing the victim twice in the past.

One of the victim’s neighbors came home on the date of the incident and saw

a vehicle sitting in the street with two occupants, one female and one male. He then

saw someone exit the back door of the victim’s house, moving at a fast pace. As he

got out of his car, he saw the victim holding his head, covered in blood, and pointing

to his house, saying “they’re trying to kill me, they’re trying to rob me.” He also saw

smoke billowing out the back of the house. The neighbor and his wife began assisting

the victim, and their son called 911. When they asked the victim who had done this

to him, all he said was “China.”

An officer with the Rincon Police Department responded to the call, and when

he arrived, the residence was completely engulfed in flames and the victim was sitting

on the ground covered in blood. He told the officer that he was attacked by two males

with a machete and that one of the males was named “China.”

The Chief of Police for the Rincon Police Department responded to the call to

assist in crime scene processing. He observed a blood spatter going up the steps of

and into the residence, which was completely damaged, and observed an obvious area

of struggle between the living room and the bedroom, which contained a pool of

5
blood on the floor and looked like it had been rummaged through. In another

bedroom, he found a dead dog on the floor, outside its cage.

A detective with the Rincon Police Department was called to investigate the

scene. As part of his investigation, he spoke to the patrol officers who had

interviewed the neighbor and learned that the suspects had run into the fields located

behind the victim’s residence. The police chief informed the detective that they had

picked up a gun box that matched the type of gun taken from the victim, and that the

gun box was found on a trail in the woods behind the victim’s residence. The

detective went to the hospital shortly after the incident and spoke to the victim, who

told him that “China,” Lopez, and a third man with an odd-shaped head were the ones

at his house and that “China” was the one who hit him.

The evidence room custodian, a sergeant with the Rincon Police Department,

got involved in the investigation by sorting through the evidence that had been

obtained in the case. He processed a cardboard gun box for prints and sent a portion

of the box to a fingerprint expert. There was not enough detail for the expert to match

the fingerprints to a specific person.

An arson specialist with the Effingham County Sheriff’s Office responded to

the victim’s residence and met with the fire department on the scene. He determined

6
that the fire was caused by a human act and observed a burn pattern that was

consistent with an ignitable liquid being poured on the floor.2 The officer testified

that when he saw the dead dog, it was in the middle of a bedroom floor, and that no

necropsy was performed on the dog.

An acquaintance of Lonon was incarcerated with Curtis in the Effingham

County Jail, and Curtis talked to him about what happened on the date of the incident.

Curtis told the acquaintance that he went to the victim’s house with Jackson (the

acquaintance’s sister-in-law), Lopez, and Lonon. While Curtis and Lonon were inside

the victim’s house, they asked the victim where he kept the money and the marijuana.

The victim told them he had no marijuana, but had $400 in a mattress. When the

victim showed Lonon where the money was located, Lonon hit him with the machete

in the back of the head and the arm. Curtis then went into the living room and started

setting the fire. While Lonon and the victim were fighting, Curtis grabbed a chair

from the kitchen and hit the victim in the back of the head with it. After the fire was

set, both men ran out the back door, down the street, and through a trail into an open

area with bales of hay, where they hid.

2
Although lab tests came back negative for the presence of an accelerant, the
officer testified that result is common in fire investigations.

7
 1. Lonon contends that the evidence was insufficient to support his convictions

as a party to the crimes of attempted murder3 and first degree arson.4 He argues that

the evidence showed that Curtis set the fire and that it failed to show that Lonon aided

or abetted the arson or that arson was a reasonably foreseeable consequence of the

plan to rob the victim.5

When determining whether the evidence is sufficient to support a conviction,

this Court “does not weigh the evidence or determine witness credibility. Any

conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there

is some competent evidence, even though contradicted, to support each fact necessary

3
“A person commits the offense of criminal attempt when, with intent to
commit a specific crime, he performs any act which constitutes a substantial step
toward the commission of that crime.” OCGA § 16-4-1. “A person commits the
offense of murder when he unlawfully and with malice aforethought, either express
or implied, causes the death of another human being.” OCGA § 16-5-1 (a).
4
“A person commits the offense of arson in the first degree when, by means of
fire or explosive, he or she knowingly damages or knowingly causes, aids, abets,
advises, encourages, hires, counsels, or procures another to damage . . . [a]ny
dwelling house of another without his or her consent. . . or “[a]ny building. . . or other
structure under such circumstances that it is reasonably foreseeable that human life
might be endangered.” OCGA § 16-7-60 (a) (1), (5).
5
Lonon challenges his convictions on Count 3 (criminal attempt to commit
murder), Count 8 (first degree arson), and Count 9 (first degree arson). At Lonon’s
resentencing hearing, the trial court merged Counts 8 and 9 and vacated the sentence
on Count 9. Accordingly, we only address his claims with respect to Counts 3 and 8.

8
to make out the State’s case, the appellate court must uphold the jury’s verdict.”

Canelas v. State, 345 Ga. App. 497, 499 (1) (813 SE2d 170) (2018).

Count 3 of the indictment charged Lonon individually and as a party to the

crime of criminal attempt to commit murder,

in that the said accused. . . , on or about the 22nd day of April, 2016, did
knowingly and intentionally attempt to commit the crime of murder, . .
. in that said accused did enter the dwelling house of [the victim]. . . ,
armed with a machete, and did strike the said [victim] on the head
multiple times with said machete, and did set fire to the house while it
was occupied by [the victim], acts which constitute a substantial step
toward the commission of said crime. . . .

Count 8 of the indictment charged Lonon individually and as a party to the crime of

arson in the first degree “in that the said accused. . . , on or about the 22nd day of

April, 2016, did knowingly damage, by means of fire, the dwelling house of [the

victim]. . . , without said owner’s consent. . . .”

“Every person concerned in the commission of a crime is a party thereto and

may be charged with and convicted of commission of the crime.” OCGA § 16-2-20

(a). “A person who does not directly commit a crime may nevertheless be convicted

as a party to that crime upon proof that he or she intentionally aided or abetted the

commission of the crime, or intentionally advised, encouraged, hired, counseled, or

9
procured another to commit the crime.” Cisneros v. State, 299 Ga. 841, 846 (2) (792

SE2d 326) (2016); OCGA § 16-2-20 (b) (3), (4). “All of the participants in a plan to

commit a crime are criminally responsible for the acts of each, committed in the

execution of the plan, and which may be said to be a probable consequence of the

unlawful design, even though the particular act may not have actually been a part of

the plan.” (Citation and punctuation omitted.) Cisneros, 299 Ga. at 846-847 (2); see

also Menzies v. State, 304 Ga. 156, 160 (II) (816 SE2d 638) (2018) (“[W]hen a group

of individuals join together to plan and commit a crime, each member of the criminal

plot is responsible for the acts of the others – regardless of whether a particular act

was part of the original plan – as long as such acts were “naturally or necessarily

done” in the execution or furtherance of the common purpose.”). “Whether a person

is a party to a crime may be inferred from that person’s presence, companionship, and

conduct before, during, and after the crime.” (Citation and punctuation omitted.)

Harper v. State, 298 Ga. 158, 160 (780 SE2d 308) (2015).

Relying on James v. State, 260 Ga. App. 350 (579 SE2d 750) (2003), Lonon

argues that the evidence failed to show a common intent to set fire to the victim’s

residence and, at best, showed only that Lonon merely approved of Curtis’s act of

setting fire to the residence. James, however, is distinguishable because James was

10
not present at the crimes, there was no evidence that he helped plan the crimes, and

the evidence presented only established that James found out about the crimes after

they were committed and did everything he could to help one of the perpetrators

avoid prosecution. Id. at 352-353 (1).

Here, however, Lonon was with Curtis before, during, and after the crimes.

Evidence was presented that Lonon and Curtis intended to rob the victim and then kill

him to avoid detection. When Lonon stated that they needed to kill the victim, Curtis

was initially reluctant until Lonon convinced him that they had to kill the victim so

that he would not report them. Hitting the victim with the machete and setting fire to

his residence were both acts that the jury could infer were done in the execution or

furtherance of the common purpose – to rob the victim and then silence him

permanently. Accordingly, the evidence authorized the jury to find Lonon guilty as

a party to the crimes of attempted murder and first degree arson, as charged in Counts

3 and 8 of the indictment.

2. Lonon contends that the evidence was insufficient to support his conviction

for aggravated cruelty to animals.6 He argues that there is no evidence that he set fire

6
“A person commits the offense of aggravated cruelty to animals when he or
she . . . [m]aliciously causes the death of an animal.” OCGA § 16-12-4 (d) (1).

11
to the residence or that he knew the pit bull was in the residence and that the

circumstantial evidence failed to prove that the fire proximately caused the dog’s

death.

(a) With respect to Lonon’s contention that he did not set the fire and that he

was not a party to the arson, as set forth in Division 1, the jury was authorized to

conclude that Lonon was a party to the crime of first degree arson. See Cisneros, 299

Ga. at 846-847 (2).

(b) Lonon contends that the evidence did not show that he caused the death of

the dog maliciously. The aggravated cruelty to animals statute defines “malice” as

“(A) [a]n actual intent, which may be shown by the circumstances connected to the

act, to cause the particular harm produced without justification or excuse; or (B) [t]he

wanton and willful doing of an act with an awareness of a plain and strong likelihood

that a particular harm may result.” OCGA § 16-12-4 (a) (2) . Lonon argues that he

lacked knowledge that the pit bull was present and therefore malice could not be

shown.

Evidence was presented that there were two dogs living in the residence at the

time and that Lonon spoke to one of them during the attack on the victim. Thus,

Lonon was aware of the presence of at least one dog, and the jury was authorized to

12
conclude that, as a party to the crime of arson, Lonon was aware of the strong

likelihood that a dog inside the residence could be killed by the fire. See Harden v.

State, 164 Ga. App. 59, 60 (2) (296 SE2d 372) (1982) (whether action was taken

maliciously was a question for the jury). The dog killed did not have to be the

intended target of the fire. See Fort v. State, 274 Ga. 518, 519 (1) (558 SE2d 1)

(2001); see generally Cash v. State, 297 Ga. 859, 860-861 (1) (778 SE2d 785) (2015)

(although appellant contended that he did not know that victim would be present or

that his accomplice would shoot her, evidence was sufficient for the jury to find

beyond a reasonable doubt that appellant was a party to the aggravated assault of

victim under doctrine of transferred intent); Blackwell v. State, 302 Ga. 820, 821-822

(1) (809 SE2d 727) (2018); Dunn v. State, 242 Ga. App. 525, 528 (2) (530 SE2d 236)

(2000).

(c) Lonon also contends that, without a necropsy, the circumstantial evidence

failed to prove that the fire proximately caused the dog’s death. He posits that the dog

could have died from malnutrition prior to the fire because there was evidence that

the dog stayed in a cage in a bedroom while her owner was at work from

approximately 2:00 pm to 11:00 pm, and that the victim sometimes took the dog out

for walks and fed her while his roommate was at work, but did not do so every day.

13
 The offense of aggravated cruelty to animals may be proven by circumstantial

evidence. See Favors v. State, 326 Ga. App. 373, 375 (1) (756 SE2d 612) (2014);

Futch v. State, 314 Ga. App. 294, 296 (1) (723 SE2d 714) (2012). “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. “The jury decides questions

concerning the reasonableness of hypotheses, and where the jury is authorized to find

that the evidence was sufficient to exclude every reasonable hypothesis except that

of guilt, we will not disturb that finding unless the verdict of guilty is insupportable

as a matter of law.” Futch, 314 Ga. App. at 296 (1).

There were two dogs in the victim’s residence at the time of the fire, and one

of them was confined inside a bedroom. When the fire department entered the

residence to fight the fire, all of the doors were closed except for the back door to the

residence. After the fire, a dead dog was found on the floor of the back bedroom, and

the victim testified that his roommate’s dog “got killed during the situation.”

Based upon the evidence, the jury was not required to find that the hypothesis

that the dog had already died from malnutrition before the fire began was a

reasonable one. See Akhimie v. State, 297 Ga. 801, 804 (1) (777 SE2d 683) (2015)

14
(“Not every hypothesis is reasonable, and the evidence does not have to exclude

every conceivable inference or hypothesis; it need rule out only those that are

reasonable.”). We conclude that the evidence presented was sufficient to authorize

a rational jury to find that the State had excluded every reasonable hypothesis except

that of Lonon’s guilt as a party to the crime of aggravated cruelty to animals.

3. Lonon contends that his trial counsel was ineffective in several respects. He

argues that his trial counsel failed to object to inadmissible hearsay, failed to object

to the jury instruction on aggravated battery, and failed to move to quash Count 3 as

duplicitous.

To prevail on a claim of ineffective assistance of counsel, a criminal defendant

must show that counsel’s performance was deficient and that the deficient

performance prejudiced the defense. Strickland v. Washington, 466 U. S. 668, 687

(III) (104 SCt 2052, 80 LEd2d 674) (1984). To prove that the performance of his trial

counsel was deficient, Lonon must show that he performed his duties at trial in an

objectively unreasonable way, considering all the circumstances, and in the light of

prevailing professional norms. Id. at 687-688 (III) (A). To prove that he was

prejudiced by the performance of his trial counsel, Lonon “must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

15
proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694 (III) (B).

(a) Lonon contends that his trial counsel performed deficiently when he failed

to object to testimony from the detective about what other officers had told him about

the location of the gun box, arguing that the testimony constituted inadmissible

hearsay because the detective did not locate the gun box and was not present when

it was located. Pretermitting whether trial counsel was deficient in failing to object

to the detective’s testimony, we conclude that Lonon has failed to show the requisite

prejudice. See Ramirez v. State, 345 Ga. App. 611, 618 (3) (814 SE2d 751) (2018) (if

defendant fails to meet his burden on one prong of the two-prong Strickland test, this

court need not review the other prong).

To show prejudice, Lonon asserts that the detective’s testimony regarding the

location of the gun box was the only evidence to support the taking element of the

armed robbery and theft by taking counts and that, without that testimony, a

reasonable jury could have found that the gun was not taken, but instead destroyed

in the fire. The victim testified that on the day of the incident, his gun was in the gun

box he received when he purchased it, that the gun box was inside his residence, that

Lonon and Curtis discussed the fact that they were going to take the gun, and that

16
they took the gun. After the victim’s residence was destroyed by fire, a cardboard gun

box for the exact same type of gun was recovered as evidence in this case. The

evidence does not support a finding that the box could have been found inside the

residence after the fire because the victim testified that his house was destroyed and

that although he had his head down and did not see Lonon and Curtis take the gun,

when he got up to defend himself, the property he claims was taken was no longer

there. And it would not be reasonable to conclude that someone took the gun box, but

left the gun inside the residence, where it was destroyed by the fire. Because Lonon

has not shown that there is a reasonable probability that, but for the detective’s

testimony about where the gun box was found, the result of the proceeding would

have been different, he has failed to satisfy the prejudice prong of the Strickland test.

See Miller v. State, 300 Ga. App. 652, 655 (686 SE2d 302) (2009) (prejudice prong

not satisfied where omission of hearsay statement would not have resulted in the jury

believing that appellant was innocent).

(b) Lonon contends that his trial counsel performed deficiently in failing to

object to the jury instruction on aggravated battery. He argues that the instruction

constructively amended Count 4 of the indictment.

17
 Count 4 of the indictment charged Lonon with aggravated battery, alleging that

“on or about the 22nd day of April, 2016, [he] did maliciously cause bodily harm to

[the victim], by seriously disfiguring said person’s body by striking the [victim]

multiple times on his head and his left arm with a machete. . . .” The jury was

instructed that “a person commits the offense of aggravated battery when he

maliciously causes bodily harm to another by depriving him of a member of his body,

by rendering a member of his body useless, or by seriously disfiguring his body or a

member thereof.”

“Where the indictment charges a defendant committed an offense by one

method, it is reversible error for the court to instruct the jury that the offense could

be committed by other statutory methods with no limiting instruction.” (Citation and

punctuation omitted; emphasis in original.) Boccia v. State, 335 Ga. App. 687, 694

(2) (782 SE2d 792) (2016). This “defect is cured, however, where the court provides

the jury with the indictment and instructs jurors that the burden of proof rests upon

the State to prove every material allegation of the indictment and every essential

element of the crime charged beyond a reasonable doubt.” Id.; see also Walls v. State,

283 Ga. App. 560, 562 (3) (642 SE2d 195) (2007).

18
 Here, the trial court read the indictment to the jury and further instructed them

that “[t]he burden of proof rests upon the State to prove every material allegation in

the indictment and every essential element of each crime charged in the indictment.

. . beyond a reasonable doubt.” The jury was also instructed to make a separate

finding as to each defendant with regard to each individual charge in the indictment

and was given a copy of the indictment during deliberations. Because the charge,

when considered as a whole, fairly instructed the jurors that they could convict Lonon

only of the specific offense with which he was charged in the indictment, we find no

reversible error. See Walls, 283 Ga. App. at 562-563 (3); Dumas v. State, 283 Ga.

App. 279, 282 (4) (641 SE2d 271) (2007). As a result, trial counsel was not deficient

in failing to object to the instruction on aggravated battery. See Ray v. State, 345 Ga.

App. 522, 525 (3) (b) (812 SE2d 97) (2018).

(c) Lonon contends that his trial counsel was ineffective because he did not

move to quash Count 3 of the indictment as duplicitous.

Lonon’s appellate counsel filed an amended motion for new trial and a second

amended motion for new trial, both of which alleged that trial counsel was

ineffective. But the specific issue of trial counsel’s failure to file a motion to quash

Count 3 of the indictment was never raised in either amended motion for new trial or

19
at the hearing on those motions. As a result, Lonon has waived this argument. See

Serdula v. State, 344 Ga. App. 587, 592-593 (3) (a) (812 SE2d 6) (2018); Debaeke

v. State, 270 Ga. App. 169, 170 (1) (605 SE2d 882) (2004); Moon v. State, 252 Ga.

App. 796, 799 (2) (e) (557 SE2d 442) (2001).

4. Lonon contends that the trial court erred in failing to merge Count 7

(Aggravated Assault) into Count 4 (Aggravated Battery). The State concedes that

those counts should have been merged for sentencing.

When the same conduct of an accused may establish the commission of more

than one crime, the accused may be prosecuted for each crime, but may not be

convicted of more than one crime if one crime is included in the other. OCGA § 16-1-

7. One crime is included in the other when:

(1) It 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; or

(2) It differs from the crime charged 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.

OCGA § 16-1-6.

20
 Relying on Regent v. State, 299 Ga. 172, 176 (787 SE2d 217) (2016), Lonon

argues that the aggravated assault charge in Count 7 should be merged into the

aggravated battery charge in Count 4 under OCGA § 16-1-6 (2). Count 7 charged

Lonon with aggravated assault on the victim “by striking the [victim] with a deadly

weapon, to wit: a machete, by striking the [victim] multiple times with said machete.”

And as previously noted, Count 4 charged Lonon with aggravated battery by

maliciously causing bodily harm to the victim “by seriously disfiguring said person’s

body by striking the [victim] multiple times on his head and left arm with a machete.”

In Regent, the offenses of aggravated battery and aggravated assault were based

on the single criminal act of the appellant cutting the victim’s throat with a knife, and

only differed with respect to the seriousness of the injury or risk of injury suffered by

the victim. Regent, 299 Ga. at 176. As a result, the court held that, as charged,

aggravated assault was included in aggravated battery, and the two offenses should

have merged. Id.

Although Regent arguably supports the merger of Lonon’s convictions for

aggravated battery and aggravated assault (Count 7), the merger of those crimes

would not change the sentencing in this case. The trial court merged Count 7 into

Count 3 (criminal attempt to commit murder) and sentenced Lonon for his

21
convictions of criminal attempt to commit murder and aggravated battery, among

others. Lonon was not sentenced on aggravated assault. “Thus, even if the trial court

should have merged [the challenged] aggravated battery and aggravated assault

convictions, the end result would have been the same – [Lonon] would have been

sentenced for aggravated battery rather than aggravated assault. . . .” Epperson v.

State, 340 Ga. App. 25, 36 (3) (b) (796 SE2d 1) (2016). “Consequently, any error by

the trial court in failing to merge [Lonon]’s aggravated battery and aggravated assault

convictions was harmless and provides no basis for vacating his sentence.” Id.

5. Lonon contends that the trial court erred in failing to merge Count 9 (first

degree arson) into Count 3 (criminal attempt to commit murder). He argues that they

should merge under OCGA § 16-1-6 (2), and he seeks resentencing.

As previously noted, the trial court vacated the sentence on Count 9 when it

merged the two arson convictions. Although Lonon argues that the trial court should

have merged the first count of arson (Count 8) into Count 9, the trial court’s actions

are supported by authority of the Supreme Court of Georgia. See Stinski v. State, 286

Ga. 839, 841 (1) (691 SE2d 854) (2010) (where appellant was convicted of two

counts of first degree arson for burning one house, trial court was directed to vacate

the sentence it imposed on the second count of arson in the first degree); O’Kelley v.

22
State, 284 Ga. 758, 760-761 (1) (670 SE2d 388) (2008). Thus, even if merger was

required, merging Count 9 into Count 3 would not alter the sentencing in this case

because no sentence is currently imposed on Count 9. Accordingly, “any error by the

trial court in failing to merge [Lonon]’s [challenged arson and attempted murder]

convictions was harmless and provides no basis for vacating his sentence.” Epperson,

340 Ga. App. at 36 (3) (b).

Judgment affirmed. McFadden, P. J., and Markle, J., concur.

23