McGlasker v. State

BARNES, Presiding Judge,

dissenting in part.

Although I concur fully with Division 1, because I believe that the aggravated assault upon the victim when he attempted to intervene in the attack of his assistant was separate and distinct from the *618armed robbery enterprise, I must respectfully dissent from Divisions 2 and 3 of the majority opinion.

Under the “required evidence” test discussed in Long v. State, 287 Ga. 886, 889 (2) (700 SE2d 399) (2010), as noted by the majority, convictions for the offenses of armed robbery and aggravated assault often will merge because “aggravated assault with a deadly weapon does not require proof of any element that armed robbery does not.” (Citation and punctuation omitted.) Bradley v. State, 292 Ga. 607, 610 (1) (c) (740 SE2d 100) (2013). However, this is true “only if the crimes are part of the same ‘act or transaction.’ ” (Citation omitted.) Thomas v. State, 289 Ga. 877, 880 (3) (717 SE2d 187) (2011). This court has equated the same act or transaction as one “which occurred either concurrently or in rapid succession [and which was] committed as part of one uninterrupted criminal transaction and in pursuit of a specific, predetermined goal: the armed robbery of a single victim.” Crowley v. State, 315 Ga. App. 755, 759-760 (3) (728 SE2d 282) (2012). We have further recognized that an “ensuing interval” or “deliberate interval” between the criminal acts can act to interrupt the criminal transaction. See id. at 760 (3). In other words, in some instances, the criminal may temporarily step away, so to speak, from his original criminal enterprise. It is within this period that he has “stepped away” that any ensuing criminal acts would not merge under the “required evidence” test in Long.

Here, the evidence at trial demonstrated that as a gun was being held to his head by the first robber, victim 2 attempted to stop a second robber from hitting his assistant, and because of his actions, the first robber pistol-whipped victim 2. The first robber subsequently robbed the victim. The first robber’s attack was not committed in furtherance of the robbery of victim 2, but instead was a response to the victim’s actions in trying to stop the attack of his assistant by a different robber.

Clearly, the assault happened during the robbery. However, as our Supreme Court recognized in Thomas, 289 Ga. at 880 (3), the inquiry must not end there. In Thomas, a home invasion case, in which multiple victims were robbed and assaulted, the Supreme Court found that “although the conviction for the armed robbery of [one of the victims] also resulted from the music-room holdup, the conviction for his aggravated assault was based on Appellant’s forcing the shotgun down his throat later in the bathroom.” Id. In so finding, the Supreme Court clearly determined that not every aggravated assault committed from the time the criminals entered the home to rob the victims until they left the home was subsumed within the robbery enterprise.

*619Decided April 12, 2013. Gerard B. Kleinrock, for appellant. Robert D. James, Jr., District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.

Likewise, in this case, I believe that the trial court was authorized to conclude that the pistol-whipping of the victim was a separate act from the armed robbery as it was not committed in “pursuit of a specific, predetermined goal” — the robbery of that victim. Crowley, 315 Ga. App. at 760 (3).