                              SECOND DIVISION
                               ANDREWS, P. J.,
                            MCFADDEN and RAY , 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/


                                                                   February 10, 2015




In the Court of Appeals of Georgia
 A14A2200. BROOKS v. THE STATE.

      MCFADDEN, Judge.

      Alvin Lamond Brooks appeals from his convictions for robbery by intimidation

and aggravated assault, arguing that the evidence was insufficient to support the

convictions and that the trial court erred in failing to merge the convictions for

sentencing. The evidence was sufficient, and the convictions did not merge because

each offense required proof of a fact the other did not. Accordingly, we affirm.

      1. Sufficiency of the evidence.

      When a defendant challenges the sufficiency of the evidence supporting his

criminal convictions, “the relevant question is whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted;

emphasis in original).

        So viewed, the evidence showed that on December 29, 2011, Brooks accosted

Martin Rueda in an apartment complex. He held a box cutter against Rueda’s

stomach, cutting him, and demanded to know the whereabouts of another man, whom

Brooks apparently believed had been involved in a recent burglary of Brooks’s

apartment. Rueda was scared. Brooks then reached into Rueda’s pocket, took his cell

phone, said he would return the phone if Rueda brought the other man to him, and

left.

        Later that day, as Rueda was walking in the apartment complex, Brooks pulled

up next to him in a car and parked, nearly striking Rueda in the process. He got out

of the car, approached Rueda, called him a delinquent, and tried to strike him with a

belt. Brooks then returned to his car and drove away.

        Rueda called 911 and described Brooks and his car to the responding law

enforcement officers. Shortly thereafter, the officers saw Brooks returning to the

apartment complex in the car and stopped him. They found Rueda’s cell phone and

a box cutter in the car, and a second box cutter in Brooks’s front pocket.



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      This evidence authorized the jury to find Brooks guilty of robbery by

intimidation, which a person commits when, “with intent to commit theft, he takes

property of another from the person or immediate presence of another . . . [b]y

intimidation, by the use of threat or coercion, or by placing such person in fear of

immediate serious bodily injury to himself or another.” OCGA § 16-8-40 (2) (a). This

evidence also authorized the jury to find Brooks guilty of aggravated assault, which

a person commits when he assaults another with “any object, device, or instrument

which, when used offensively against a person, is likely to or actually does result in

serious bodily injury.” OCGA § 16-5-21 (b) (2). Although Brooks argues that the

evidence was insufficient because he “denied pulling the box cutter on Rueda,” the

jury was entitled to believe otherwise. “It is the function of the jury, not the reviewing

court, to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from the evidence.” Stills v. State, 327 Ga. App. 767, 768 (761

SE2d 159) (2014) (citation omitted).

      2. Merger.

      Brooks argues that the trial court should have merged his convictions for

sentencing. To determine whether convictions merge, we apply the “required

evidence” test, under which we “examine whether each offense requires proof of a

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fact which the other does not.” Long v. State, 287 Ga. 886, 888 (2) (700 SE2d 399)

(2010) (citation and punctuation omitted). Applying this test, the offenses for which

Brooks was convicted do not merge for sentencing, because the offense of robbery

by intimidation required proof that Brooks took Rueda’s cell phone by intimidation,

and the offense of aggravated assault required proof that Brooks assaulted Rueda with

the box cutter. See generally Elamin v. State, 293 Ga. App. 591, 593 (1) (667 SE2d

439) (2008) (finding that convictions for robbery by intimidation and aggravated

assault did not merge). We find no merit in Brooks’s argument that we should base

our merger analysis on the greater offense of armed robbery, for which he was

indicted, rather than the lesser offense of robbery by intimidation, for which he was

convicted.

      Judgment affirmed. Andrews, P. J., and Ray, J., concur.




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