Opinion
A23A0894
08-17-2023
WILKINS v. The STATE.
Debra Kay Jefferson, Lawrenceville, for Appellant. Flynn D. Broady, Jr., District Attorney, Elizabeth M. York, Linda J. Dunikoski, Assistant District Attorneys, for Appellee.
Debra Kay Jefferson, Lawrenceville, for Appellant.
Flynn D. Broady, Jr., District Attorney, Elizabeth M. York, Linda J. Dunikoski, Assistant District Attorneys, for Appellee.
Pipkin, Judge. On June 9, 2017, Donatus Wilkins was indicted by a Cobb County grand jury for crimes he committed against his girlfriend. Wilkins was indicted on one count of hindering a 911 call and two counts of aggravated assault. Wilkins argues in his sole enumeration of error that the trial court erred by not merging the two counts of aggravated assault for sentencing purposes. We disagree, and, for the reasons discussed below, we affirm.
1. Wilkins was charged with two counts of aggravated assault as follows: Count 1 charged Wilkins with making "an assault upon the [victim] with intent to rape, by tearing and removing the underwear of said person as he held her down"; Count 2 charged Wilkins with "knowingly mak[ing] an assault upon the [victim] with his hands, instruments which when used offensively against a person are likely to result in strangulation, by applying pressure to the throat and neck of said person." Wilkins contends that, because he was indicted on two counts of aggravated assault, he was charged with violating the same criminal statute twice. This, he argues, required the trial court to merge his sentences for aggravated assault as a matter of law under a "unit of prosecution" analysis.
OCGA § 16-5-21 was amended effective July 1, 2023. Though we review this case under the Code that existed at the time of Wilkins’ sentencing, we note that the portions of the statute relevant to this case were not affected by the July 1, 2023 amendment.
"Whether offenses merge is a legal question, which we review de novo." Louisyr v. State , 307 Ga. App. 724, 730 (2), 706 S.E.2d 114 (2011). The Supreme Court of Georgia has explained that, when a defendant is convicted of multiple counts of aggravated assault that were indicted under the same subsection of the aggravated assault statute, we analyze the merger of those sentences under the unit of prosecution test. See State v. Owens , 312 Ga. 212, 223-224 (6), 862 S.E.2d 125 (2021) (applying the "unit of prosecution" test to two aggravated assault convictions indicted under OCGA § 16-5-21 (a) (2) ). However, where a defendant is convicted of multiple counts of aggravated assault that were indicted under different subsections of the aggravated assault statute, then the merger of those sentences is analyzed under the "required evidence" test. See Gipson v. State , 332 Ga. App. 309, 320 (7) (b) n. 7, 772 S.E.2d 402 (2015) ; see also Thomas v. State , 292 Ga. 429, 433-434 (5), 738 S.E.2d 571 (2013). Wilkins’ case falls under the latter category, so we turn to the required evidence test.
As we have previously explained, this Court's decision in Thomas v. State , 310 Ga. App. 404, 410 (5), 714 S.E.2d 37 (2011) applying the unit of prosecution test to the aggravated assault statute is physical precedent only and is, therefore, not binding. See Gipson , 332 Ga. App. at 320 (7) (b) n.8, 772 S.E.2d 402.
The required evidence test mandates that we look at whether each crime "requires proof of a fact which the other does not." (Citation and punctuation omitted.) Drinkard v. Walker , 281 Ga. 211, 215, 636 S.E.2d 530 (2006). Here, aggravated assault with intent to rape requires proof of a fact - intent to rape - that aggravated assault based on strangulation does not. Likewise, aggravated assault based on strangulation requires proof that a defendant used "any object, device, or instrument," in an offensive manner, which "is likely to or actually does result in strangulation," whereas aggravated assault with intent to rape does not. See OCGA § 16-5-21 (a) (1), (3). Accordingly, the trial court did not err in sentencing Wilkins on both of his aggravated assault convictions.
2. Wilkins also contends that his convictions for aggravated assault should have merged because, he argues, they were committed during one continuous criminal act against the same victim with no deliberate interval between the two aggravated assaults. "When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if ... [o]ne crime is included in the other[.]" OCGA § 16-1-7 (a) (1). See also Gibson v. State , 363 Ga. App. 296, 301 (2) (b), 870 S.E.2d 884 (2022). Indeed, "a defendant may not be convicted of two or more counts of the same crime where the evidence shows that the two counts are part of a single incident." (Emphasis supplied.) Taylor v. State , 307 Ga. 755, 756 (1), 838 S.E.2d 261 (2020). However, as discussed in Division 1, we have already determined that the aggravated assaults in this case are separate offenses under the required evidence test. To the extent that Wilkins is arguing that these two offenses run afoul of Georgia's statutory definitions of included offenses, thus triggering the "deliberate interval" test, we are not persuaded. Here, we cannot say that one crime "is established by proof of the same or less than all the facts or a less culpable mental state," or that one crime poses "a less serious injury or risk of injury to the same person." See OCGA §§ 16-1-6 ; 16-1-7. See also Norris v. State , 302 Ga. 802, 805, (III) 809 S.E.2d 752 (2018) ("Where ... each offense requires an element of proof beyond the degree of injury or culpability that the other does not, neither of the offenses is included in the other, and the crimes do not merge under OCGA §§ 16-1-7 (a) (1) [and] 16-1-6."). Based on the foregoing, the trial court did not err by imposing separate sentences for Wilkins’ convictions for aggravated assault with intent to rape and aggravated assault by strangulation.
Judgment affirmed.
Dillard, P. J., and Rickman, J., concur.