Simmons v. The State

The evidence supported defendant's conviction for aggravated assault and criminal attempt to commit armed robbery, but the trial court erred in failing to merge the two convictions for sentencing purposes.

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Bethel, Judge.

Ivory Joseph Simmons appeals from the denial of his motion for a new trial following his conviction on one count of aggravated assault and one count of criminal attempt to commit armed robbery. On appeal, he enumerates several errors. First, he argues that the evidence presented by the State on both counts was insufficient to support a verdict of guilt beyond a reasonable doubt. Second, he argues that his trial counsel was ineffective by failing to object to certain evidence identifying Simmons as the assailant and by not objecting to the admission of records of a prior conviction for purposes of sentencing. Third, he argues that the trial court’s instructions to the jury regarding the elements of simple assault were erroneous because they were not tailored to the indictment and the evidence presented by the State. Finally, he argues that the trial court erred by not merging his convictions for aggravated assault and attempted armed robbery for the purposes of sentencing. Because Simmons’ first three enumerations are without merit, we affirm his convictions. However, because the trial court erred by not merging his convictions for purposes of sentencing, we vacate his sentence and remand this case to the trial court for further proceedings consistent with this opinion.On appeal, the defendant “is no longer presumed innocent and all of the evidence is to be viewed in the light most favorable to the jury verdict.” Batten v. State, 295 Ga. 442, 443 (1) (761 SE2d 70) (2014) (citation omitted). So viewed, the evidence shows that one evening a man (the “Victim”) delivered a pizza to an apartment unit. After handing the pizza to the customer, receiving payment in cash, and turning to walk back to his car, the Victim was suddenly attacked from behind.

Simmons v. The State

The evidence supported defendant's conviction for aggravated assault and criminal attempt to commit armed robbery, but the trial court erred in failing to merge the two convictions for sentencing purposes.

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