Lummen v. State

Deen, Presiding Judge. Mark Henry Lummen was convicted of aggravated assault, mutiny in a penal institution, and criminal attempt (escape). On appeal he contends that the trial court erred in denying his motion for a directed verdict on the aggravated assault charge because that offense merged as a matter of law with mutiny in a penal institution. Held: The evidence showed that the victim, a jailer, was jumped from the rear by the defendant and his head was slammed into the bars of a jail cell. The defendant hit the jailer on the back of his head with his shoe and then pulled him down a couple of stairs with his hand. The jailer fell; his arm was broken; and Lummen took his keys. A trusty pulled Lummen off the jailer. This case is controlled by Green v. State, 170 Ga. App. 594 (317 SE2d 609) (1984); and Chitwood v. State, 170 Ga. App. 599 (317 SE2d 589) (1984); wherein this court held that a charge of aggravated [205] assault on a peace officer merges into the mutiny conviction because the aggravated assault charge is established by proof of less than all the facts required to establish the commission of mutiny. Accordingly, it was error for the court below to fail to direct a verdict on the aggravated assault charge. Judgment affirmed in part and reversed in part. Benham and Beasley, JJ., concur. Beasley, J., also concurs specially.