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Dean v. State

The trial court should have merged the aggravated assault and armed robbery convictions since the aggravated assault was included in the armed robbery.

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Michael Dean appeals his convictions for armed robbery,1 aggravated assault,2 and possession of a firearm during the commission of a felony.3 He contends that the trial court erred by: 1 allowing the state to introduce a witness’s out-of-court statement without laying a proper foundation and after the witness had been released from subpoena; and 2 not merging the aggravated assault offense into the armed robbery offense for sentencing purposes. For the reasons that follow, we affirm the judgment in part, vacate the judgment in part, and remand the case for re-sentencing and for consideration of ineffective assistance of counsel claims.

The evidence at trial showed the following. N. J. agreed to work as a confidential informant for law enforcement officials to “work off” pending criminal charges. As part of that agreement, he arranged for the purchase of marijuana from Richard Burnam. After N. J. made a phone call to set up the deal, officers gave him $600 to purchase the marijuana. N. J. put the $600 in his pocket, where he also had approximately $115 of his own money. N. J. did not have a valid driver’s license, so a friend, L. M., drove him to a location to meet Burnam. L. M. drove her truck, and she and N. J. picked up Burnam, who sat in the back seat. L. M. drove to a different location, where the three met Dean. Law enforcement officers followed.

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