Knight v. State , 190 Ga. App. 87 ( 1989 )

Banke, Presiding Judge.

The appellant was sentenced to consecutive prison terms for armed robbery, burglary, rape, aggravated battery, and aggravated assault. On appeal, he contends that the evidence did not authorize the armed robbery conviction and that the aggravated battery and aggravated assault convictions should have been merged because those offenses were established by the same conduct. Held:

1. The evidence was amply sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of armed robbery. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The aggravated assault count of the indictment alleged that the appellant had assaulted the victim with a knife. See generally OCGA § 16-5-21 (a) (2). The aggravated battery count alleged that he had caused bodily harm to the victim “by seriously disfiguring her body by causing scars to her neck. . . .” See generally OCGA § 16-5-24 (a). If these counts were based on the “same conduct,” it is clear that the aggravated assault would be included in the aggravated battery. See OCGA § 16-1-7. See also OCGA § 16-1-6; State v. Estevez, 232 Ga. 316, 319 (206 SE2d 475) (1974). However, the evidence showed that the appellant stabbed the victim with the knife “a dozen or so” times, transecting her larynx and esophagus and causing extensive scarring of her throat and breast. “Although occurring sequentially, one after the other, each of these transactions constituted a separate offense since each was established by proof of different facts; i.e., each offense was a completed crime when the next was perpetrated upon the victim. (Cits.)” Jones v. State, 161 Ga. App. 620, 622 (288 SE2d 795) (1982). Thus, the evidence in this case does not demonstrate that the aggravated assault and the aggravated battery were based on the “same conduct” within the contemplation of OCGA § 16-1-7, with the result that the separate convictions for these offenses may stand. Accord Talley v. State, 164 Ga. App. 150, 153 (7) (296 SE2d 173) (1982), aff’d 251 Ga. 42 (302 SE2d 355) (1983). Compare McClure v. State, 179 Ga. App. 245 (2) (345 SE2d 922) (1986).

Judgment affirmed.

Birdsong, J., concurs. Beasley, J., concurs specially.