Head v. State

¶1concurring in part and dissenting in part.

¶2I concur in Division 1 but not in Division 2 in that there was not a merger of the aggravated assault charge with the robbery charge.

¶3With respect to the crime wholly against the person, the indictment alleged that defendant “knowingly, willfully and intentionally” assaulted the victim “with a certain flashlight, same being a deadly weapon, in the manner then and there used. . . .” OCGA § 16-5-21 (a) (2). It was not alleged that he assaulted “with intent... to rob,” as prohibited by subsection (1).

¶4*211Robbery is a crime which violates “the social interest in the safety and security of the person as well as the social interest in the protection of property rights.” Moore v. State, 140 Ga. App. 824, 827 (2) (232 SE2d 264) (1976). Aggravated assault is codified in the Code chapter on “Crimes Against the Person,” whereas robbery’s place is in the chapter on “Offenses Involving Theft.” The indictment alleged armed robbery, that defendant “unlawfully, knowingly, willfully and intentionally with intent to commit theft, take property, to-wit: cash, from the person of [the victim], by use of a certain flashlight, same-being an offensive weapon, in the manner then and there used. . . .” OCGA § 16-8-41 (a). That subsection also provides: “The offense of robbery by intimidation shall be a lesser included offense in the offense of armed robbery.” The latter is defined as occurring “when, with intent to commit theft, [a person] takes property of another from the person ... by intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another; . . .” OCGA § 16-8-40 (a) (2). The court charged that “a person commits robbery when with intent to commit theft he takes property of another from the person or from the immediate presence of another by the use of force.” The court did not define or limit what was meant by “force.”

¶5Robbery was the jury’s conviction. The jury rejected a conviction of armed robbery, which the court charged occurs when “with intent to commit theft [a person] takes property of another from the person or from the immediate presence of another by the use of an offensive weapon.”

¶6The victim testified that he did not realize that anyone was still in his trailer home when he began to investigate what appeared to be a burglary. He had his flashlight in his hand. As he passed the bathroom, he was caught from behind by two men. One man wrapped his arms around the victim and the other covered his nose with a rag, smothering him. He could not do anything to protect himself or his property because he was partially paralyzed and used a cane and was alone. It is a reasonable inference that this was abundantly evident to the men who had broken into his home.

¶7The assailants threw him down on his knees on the floor beside the bed, with his body across the bed and his head face down on the bed. One assailant beat him by striking him five or six times in the head with the victim’s flashlight and the other pinched his nose. They also beat his hands, fracturing and permanently disfiguring his right fifth finger and lacerating his right middle finger and his left hand. He lost over one-half pint of blood and partial use of his right hand.

¶8The victim, obviously motivated by fear and desirous of avoiding further injury, “played ’possum,” in his words. This defensive measure succeeded and the aggravated assault stopped.

¶9*212“[T]hey quit,” the victim stated, “and then they robbed me.” They took all the money he had by going through his pockets. Thus the robbery was effected by putting the victim in fear of further violence from the flashlight and otherwise so that he did not resist the rifling of his pockets and the taking of the money. The potent force of the flashlight’s destructive capacity in the hands of these two men, of which the victim was already painfully aware, was an ominous presence.1

¶10In this case, “[e]ach offense charged is clearly supported by its own set of facts.” Millines, 188 Ga. App. 655, 656 (1) (373 SE2d 838) (1988). Separate facts prove each crime, and the elements of each crime are separate, so the aggravated assault is not subsumed in the robbery. Miller v. State, 174 Ga. App. 42, 44 (5) (329 SE2d 252) (1985) . Considering the circumstances, the vicious assault was “additional., gratuitous violence employed against the victim,” unlike the circumstances in Smith v. State, 193 Ga. App. 208, 209 (1) (387 SE2d 419) (1989); Kelly v. State, 188 Ga. App. 362, 363 (3) (373 SE2d 63) (1988) ; and Young v. State, 177 Ga. App. 756, 757 (2) (341 SE2d 286) (1986) , which cases use that test.

¶11The victim was a 67-year-old man who was “about seventy-five percent” paralyzed from the waist down, with an artificial hip and emphysema, and was using a cane which he needed for walking. It was after 9:00 p.m. and he was alone as he came into his trailer from his part-time job at a store. Two men, who had broken into the victim’s house trailer through a window, hid in the bathroom and grabbed him from behind as he walked past it. The jury could find that the repeated beating which was inflicted was a separate incident, involving different actions and a different specific objective or intent than the subsequent acquisition of the money he was carrying. Mil-lines, supra at 657 (2). The actions of the two men related to the assault evinced an intent to inflict serious bodily injury, far beyond and in addition to a mere intent to obtain money from this man who was obviously powerless even before the assault. The beating, in the manner and to the degree it was carried out, was patently not merely “an effort to subdue him prior to taking” his money, as was the assault in Chitwood v. State, 170 Ga. App. 599, 601 (4) (317 SE2d 589) (1984). Nor was it inflicted after a demand for money and failure to comply, as in Smith v. State, 193 Ga. App. 208 (1) (387 SE2d 419) (1989) . See Coaxum v. State, 146 Ga. App. 370, 371 (3) (246 SE2d 403) (1978), for a situation comparable to that here. As demonstrated *213by that case, the personal violence need not be subsequent to the robbery in order to support a separate conviction.

¶12As in Evans v. State, 173 Ga. App. 655, 656 (2) (327 SE2d 784) (1985), had the assailants left after they beat and smothered him, they would have been guilty only of aggravated assault. But they moved from violence to the person with an object resulting in serious bodily injury, OCGA § 16-5-21 (2), to accomplish their additional and perhaps initial intention, the subsequent taking of property from his possession by placing him in fear of further injury by use of the flashlight, OCGA § 16-8-40 (a) (2). The convictions and sentences in this case did not deviate from the law as set forth in OCGA §§ 16-1-6 (1) and 16-1-7 (a) (1).