FOURTH DIVISION
DILLARD, P. J.,
MERCIER and COLVIN, 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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
July 8, 2021
In the Court of Appeals of Georgia
A21A0666. GAINES v. THE STATE.
MERCIER, Judge.
Following a bench trial, Gregory Gaines was convicted of aggravated assault
and aggravated battery, and he was sentenced to two concurrent 20-year prison terms.
Gaines appeals, asserting in his sole claim of error that the trial court erred in failing
to merge the two offenses at sentencing. Because the indicted offenses merged as a
matter of fact, we affirm Gaines’s judgment of conviction for aggravated battery,
vacate his conviction for aggravated assault, vacate his sentence, and remand the case
for resentencing.
Viewed in the light most favorable to the verdict, see Anderson v. State, 352
Ga. App. 275, 277 (1) (834 SE2d 369) (2019), the evidence shows that on July 5,
2014, Gaines was an inmate at the Augusta State Medical Prison, where the victim
worked as a corrections officer. While the victim was supervising the inmates in a
dormitory that day, Gaines grabbed her around the neck, hit her in the face, and
dragged her toward a metal bench in the dormitory’s common area. When they
reached the bench, Gaines slammed the victim’s forehead on the bench and continued
to hit her multiple times. Other inmates eventually pulled Gaines away from the
victim, and she ran from the building. The victim suffered a fractured cheekbone, a
broken nose, a concussion, and multiple lacerations during the attack.
Gaines was indicted for the aggravated assault (Count 1) and aggravated
battery (Count 2) of a correctional officer. The trial court found him guilty of both
charges, sentenced him on the two offenses, and denied his subsequent motion for
new trial. Gaines now argues that the trial court should have merged the offenses
prior to his conviction and sentencing. We agree.
“Whether offenses merge is a legal question, which we review de novo.”
Regent v. State, 299 Ga. 172, 174 (787 SE2d 217) (2016) (citation and punctuation
omitted). Although a defendant may be prosecuted for multiple crimes arising out of
the same conduct, “[h]e may not . . . be convicted of more than one crime if . . . [o]ne
crime is included in the other[.]” OCGA § 16-1-7 (a) (1). A crime is included in
another if:
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(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.
Count 1 of the indictment charged that Gaines committed an aggravated assault
on a correctional officer by using his hands (objects that when used offensively
against another person were likely to result in serious bodily injury) to “strike [the
victim’s] face repeatedly and . . . to strike [the victim’s] head against a bench
resulting in a concussion, a broken cheekbone and nose, swelling, lacerations and
scarring.” Count 2 alleged that he committed aggravated battery against a correctional
officer by maliciously causing her bodily harm “by seriously disfiguring a member
of her body, to-wit: her face, by striking her face repeatedly and striking her head
against a bench resulting in a broken cheekbone and nose, swelling, lacerations and
scarring.”
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By their very terms, Counts 1 and 2 accused Gaines of committing aggravated
assault and aggravated battery through the exact same conduct — by repeatedly
striking the victim’s face and by striking her head against the bench. The only
difference between the indicted crimes was “the seriousness of the injury or risk of
injury suffered by the victim.” Regent, supra at 176. The aggravated assault count
alleged that Gaines’s hands, when used offensively, were likely to result in serious
bodily injury, while the aggravated battery count required proof of actual bodily harm
by serious disfigurement. As charged, therefore, “aggravated assault [was] included
in aggravated battery, and the two offenses should have merged.” Id.
The State argues that Gaines’s act of striking the victim in the face constituted
an aggravated assault that was separate from — and completed before — the
aggravated battery that occurred when he struck her head against the bench. In the
State’s view, Gaines can be punished for both crimes. But the indictment did not
separate the acts in this manner. On the contrary, it explicitly alleged that Gaines
committed both offenses in the same two ways: by striking the victim’s face and by
striking her head against the bench. We cannot ignore or rewrite the allegations in the
indictment on appeal. See Anderson, supra at 283-284 (3) (“Averments in an
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indictment as to the specific manner in which a crime was committed are not mere
surplusage.”) (citation and punctuation omitted)).
The trial court should have merged Count 1 (aggravated assault) into Count 2
(aggravated battery) prior to Gaines’s conviction and sentencing. See Harris v. State,
309 Ga. 599, 610 (4) (847 SE2d 563) (2020) (trial court erred in failing to merge
aggravated assault offense into aggravated battery where “both the aggravated assault
and the aggravated battery were based on the same conduct of shooting the same
victim”); Regent, supra (aggravated assault merged into aggravated battery where
both offenses were based on the same criminal act of cutting the victim’s throat with
a knife); see also Hamlette v. State, 353 Ga. App. 640, 647 (3) (839 SE2d 161) (2020)
(aggravated assault merged into voluntary manslaughter where the indictment alleged
that both offenses resulted from the “exact same conduct”). Accordingly, although we
affirm the judgment of conviction as to Count 2, we vacate Gaines’s conviction on
Count 1, vacate his sentence, and remand for resentencing with direction that the trial
court merge Count 1 into Count 2.
Judgment affirmed in part, vacated in part, and case remanded with direction.
Dillard, P. J., and Colvin, J., concur.
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