Regent v. State

299 Ga. 172

787 S.E.2d 217

Regent

v.The State.

S15G1829

Supreme Court of Georgia.

Decided: June 6, 2016

Tamara Natasha Crawford, Kenneth D. Kondritzer, Appellant.

Paul L. Howard, Jr., Dist. Atty., Paige Reese Whitaker, Michael V. Snow, Asst. Dist. Attys., for Appellee.

HUNSTEIN, Justice.

Appellant Steven Regent pled guilty to one count of aggravated assault and one count of aggravated battery arising out of an incident in which he twice, in quick succession, slashed his girlfriend's throat. The Court of Appeals affirmed Regent's conviction and sentence for each offense, see Regent v. State , 333 Ga.App. 350, 774 S.E.2d 213 (2015), and we granted certiorari to review the Court of Appeals' conclusion that Regent's convictions do not merge. We now hold that Regent's conviction for aggravated assault merged with his conviction for aggravated battery, and we reverse the judgment of the Court of Appeals.

A Fulton County grand jury indicted Appellant on one count of aggravated battery and one count of aggravated assault. The indictment charged as follows:

Count 1 of 2

... the citizens of Georgia, do charge and accuse [Appellant] with the offense of Aggravated Assault OCGA § 16–5–21, for the said accused, in the County of Fulton and State of Georgia, on the 27th day of January, 2008, did unlawfully commit an assault upon the [victim] by cutting her throat with a knife, an object which when used offensively against a person is likely to result in serious bodily injury;—contrary to the laws of said State, the good order, peace and dignity thereof;

Count 2 of 2

... and the Grand Jurors aforesaid, in the name and behalf of the citizens of Georgia do charge and accuse [Appellant] with the offense of Aggravated Battery OCGA § 16–5–24, for said accused, in the County of Fulton and State of Georgia, on the 27th day of January, 2008, did maliciously cause bodily harm to [the victim] by seriously disfiguring her body; said accused having accomplished said act by slashing her across the throat with a knife ;—contrary to the laws of said State, the good order, peace and dignity thereof.

(Emphasis supplied.) Appellant entered a non-negotiated plea of guilty to both counts, and, following Appellant's plea, the trial court received detailed testimony from the victim. The victim testified that, shortly after the couple returned to her residence following a birthday party, Appellant suddenly began punching her; she fell to the floor. Appellant retrieved a knife from the kitchen. According to the victim, Appellant “took the knife and slithered it across [her] throat,” almost slicing off her ear. The victim testified that she screamed and fought but that he “did it again,” cutting her throat below the original injury. As a result of her injuries, the victim has trouble speaking, eating, and swallowing; the victim has also lost her sense of taste and has no feeling on the injured side of her face.

Appellant was sentenced to prison for 20 years, with 12 years to serve, for the aggravated assault conviction; he received a consecutive 10–year sentence for aggravated battery. On appeal, Appellant argued that the trial court erred by denying his motion to merge the two convictions. The Court of Appeals, applying the “required evidence test,” see Drinkard v. Walker , 281 Ga. 211, 636 S.E.2d 530 (2006), concluded that “aggravated assault and aggravated battery are two separate offenses with different elements of proof” and, thus, that the two offenses did not merge. Regent , 333 Ga.App. at 352, 774 S.E.2d 213. We granted certiorari to review the Court of Appeals' merger analysis, which we conclude was incomplete and, therefore, incorrect.

“Whether offenses merge is a legal question, which we review de novo.” Louisyr v. State , 307 Ga.App. 724, 730, 706 S.E.2d 114 (2011).

As an initial matter, the indictment appears to charge Appellant as if each slice of the knife was a separate criminal act, the first count charging aggravated assault based on Appellant's act of “cutting” the victim's throat and the second count charging aggravated battery based on Appellant's act of “slashing” the victim's throat. Though we have not addressed this exact scenario, our case law plainly holds that multiple wounds inflicted in quick succession do not necessarily constitute distinct criminal acts. See Montes v. State , 262 Ga. 473, 421 S.E.2d 710 (1992). See also Coleman v. State , 286 Ga. 291, 295, 687 S.E.2d 427 (2009) (“When a victim suffers multiple wounds inflicted in quick succession, each infliction of injury does not constitute a separate assault.”). Cf. Lowe v. State , 267 Ga. 410, 412(1)(a), 478 S.E.2d 762 (1996) (separate convictions for aggravated assault and murder were authorized by evidence showing that defendant committed an initial aggravated assault independent of his subsequent act which caused the victim's death). Rather, we have recognized that a deliberate interval must exist between the completion of one criminal act and the start of a separate criminal act. Ingram v. State , 279 Ga. 132, 133, 610 S.E.2d 21 (2005).

Here, Appellant straddled his girlfriend, slashed her throat and, almost immediately thereafter while she fought against him, cut her again. The record sufficiently establishes that Appellant's actions were “part of a continuous criminal act, committed at the same time and place and inspired by the same criminal intent.” Ingram, 279 Ga. at 133(2), 610 S.E.2d 21. See also Mikell v. State , 286 Ga. 722, 724–725, 690 S.E.2d 858 (2010) (49 successive stab wounds inflicted in quick succession constituted a single assault). Accordingly, though Appellant was charged as if he had committed two distinct criminal acts, the charges here arose out of the same criminal transaction. This conclusion does not end our inquiry; we must next determine whether Appellant's separate conviction and sentence for each offense was proper.

While an accused may be prosecuted for more than one crime arising out of the same criminal conduct, he may not be convicted of more than one crime arising out of the same criminal conduct where one crime is included in the other. OCGA § 16–1–7 (a) (1). A 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. With respect to subsection (1), the “required evidence test” is utilized to determine “whether multiple convictions are precluded because one of the crimes was ‘established by proof of the same or less than all the facts' that were required to establish the other crime.” Drinkard , 281 Ga. at 216, n. 32, 636 S.E.2d 530. While the Court of Appeals employed the required evidence test below, that test is exclusive to a merger analysis under OCGA § 16–1–6 (1) ; however, there are other circumstances in which a merger analysis will not end with the required evidence test. Ledford v. State , 289 Ga. 70, 73, 709 S.E.2d 239 (2011). See also Crayton v. State , 298 Ga. 792, 801, 784 S.E.2d 343, 352–53 (2016) (Blackwell, J., concurring in part and dissenting in part). As this Court explained in Drinkard , “[t]hese other statutory provisions resolve potential gaps in the ...