EVANS v. the STATE.

FOURTH DIVISION
DILLARD, C. J.,
RAY and SELF, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
January 22, 2018
In the Court of Appeals of Georgia
A17A1964. EVANS v. THE STATE.
RAY, Judge.
After a jury trial, Tyson Danrail Evans was convicted of one count each of
aggravated assault, aggravated battery, possession of a firearm during the commission
of a felony, discharge of a firearm on the property of another, and possession of a
firearm by a convicted felon. He appeals from his conviction and the denial of his
motion for new trial, arguing that the trial court erred by failing to merge his
aggravated battery and aggravated assault convictions for the purposes of sentencing,
and that the trial court impermissibly expanded the jury charge on aggravated assault.
For the following reasons, we vacate Evans’ conviction for aggravated assault and
remand the case for re-sentencing.
Viewed in the light most favorable to the verdict,1 the evidence shows that
Evans was at a house party when an argument broke out between himself, Vickie
Evans (Evans’ mother), and Wayne Holland. Albert Dye, Hollard’s nephew, went
over to his uncle and tried to usher him out of the house to take him home. The
altercation turned physical when Evans’ mother moved to block Holland from leaving
and began to push Dye and slap him around the face to prevent them from leaving.
In order to keep her from slapping him, Dye caught Evans’ mother’s arms and pushed
her aside.
Evans, who was in another area in the living room, stood up and drew a black
handgun from his front waistband. From about six feet away, Evans fired at Dye and
Holland. The first bullet hit some furniture. Holland fell to the floor and dragged Dye
down with him. Evans then ran over and “straddled” both Holland and Dye as they
lay on the floor. Evans then fired again, striking Dye. Evans continued to pull the
trigger of his handgun as it was pointed at Dye, but the handgun did not go off and
Evans slapped at the upper slide of the handgun in an attempt to chamber another
round. Evans fired at least one additional round, but it did not strike anyone. As
1
Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2
Evans stood over Dye pulling the trigger, Evans’ mother shouted “Kill him, Tyson!,”
and beat Dye with a barstool. Evans then fled the house.
Emergency responders soon arrived on the scene. At the hospital, it was
determined that Dye had suffered liver damage, a collapsed lung, extensive damage
to his eyes and three broken ribs.
Evans was convicted of, inter alia, aggravated battery and aggravated assault.
He was sentenced, inter alia, to twenty years in confinement on the aggravated battery
charge and twenty years in confinement on the aggravated assault charge, to be
served consecutively.
1. Evans argues that the trial court erred by failing to merge his aggravated
assault and aggravated battery convictions for the purposes of sentencing. We agree.
The count of the indictment charging Evans with aggravated assault alleged,
in pertinent part, that Evans “did make an assault upon the person of Albert Dye with
a deadly weapon, to wit: a handgun by shooting said victim[.]” In charging
aggravated battery, the indictment alleged, in pertinent part, that Evans “did
maliciously cause bodily harm to Albert Dye by seriously disfiguring said person’s
body by shooting him in the abdomen[.]”
3
At issue in the instant case is whether the aggravated assault constituted a
lesser included offense, as a matter of fact, of the aggravated battery. A defendant
may not be “convicted of more than one crime where one crime is included in
another.” (Punctuation and footnote omitted.) Allen v. State, 302 Ga. App. 190, 193
(3) (690 SE2d 492) (2010). OCGA § 16-1-6 (1) provides that a crime is “included in
a crime charged in the indictment or accusation” when “[i]t 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 other crime].” Our Supreme Court has held that
[t]he test for determining whether one crime is included in another, and
therefore merges as a matter of fact, is the ‘required evidence’ test –
whether conviction for one of the offenses is established by proof of the
same or less than all the facts required to establish the other crime.
(Citation omitted.) Jeffrey v. State, 296 Ga. 713, 717 (3) (770 SE2d 585) (2015).
Applying this test to the indictments in this case, we find that the aggravated
assault conviction is a lesser included offense of the aggravated battery conviction.
Although the aggravated battery statutory provision required proof that the victim had
his body seriously disfigured,2 which was not a required showing under the applicable
2
OCGA § 16-5-24 (a) (“A person commits the offense of aggravated battery
when he or she maliciously causes bodily harm to another by depriving him or her of
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aggravated assault provision,3 “the latter provision did not require proof of any fact
that was not also required to prove the aggravated battery, as that offense could have
been proved under the indictment in this case.” (Footnote omitted; emphasis in
original.) Allen, supra (finding that the aggravated assault was a lesser included
offense of the aggravated battery when both offenses arose from the same incident
where the defendant struck the victim with a golf club). See also Adkins v. State, 301
Ga. 153, 160-161 (4) (800 SE2d 341) (2017) (aggravated assault with a deadly
weapon conviction and aggravated assault by discharging a weapon from a moving
vehicle conviction merged; there was no element of aggravated assault with a deadly
weapon that was not contained in aggravated assault by discharging a weapon from
a moving vehicle). The conviction and sentence for aggravated assault must therefore
be vacated and the case remanded to the trial court for re-sentencing.
a member of his or her body, by rendering a member of his or her body useless, or by
seriously disfiguring his or her body or a member thereof”).
3
OCGA § 16-5-21 (a) (2) (“A person commits the offense of aggravated
assault when he or she assaults. . . [w]ith a deadly weapon or with any object, device,
or instrument which, when used offensively against a person, is likely to or actually
does result in serious bodily injury).
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2. Evans argues that the trial court impermissibly expanded the jury charge on
aggravated assault. However, this enumeration is rendered moot by our holding in
Division 1.
Judgment vacated in part and case remanded. Dillard, C. J., and Self, J.,
concur.
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