Allen v

State, 300 Ga. 500, 796 S.E.2d 708 (2017). No speedy trial violation. — Convictions for armed robbery, aggravated assault with the intent to rob, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon were proper because the defendant’s right to a speedy trial was not violated by the 20-month delay between the date the indictment was issued to the date of the defendant’s actual trial as the delay was due to a higher priority of statutory speedy trial demands, so it was not a deliberate delay on the part of the state, and as the defendant failed to show any prejudice from the delay. Herndon v. State, 277 Ga. App. 374, 626 S.E.2d 579 (2006). Severance of trials. — After the defendants were convicted of possession of a firearm during a crime, the trial court did not abuse the court’s discretion by denying the defendants’ motions to sever the defendants’ trials as the defendants failed to make a clear showing of prejudice and a denial of due process protection. Attaway v. State, 259 Ga. App. 822, 578 S.E.2d 529 (2003). In a prosecution on two counts of attempting to hijack a motor vehicle, four counts of aggravated assault, possession of a firearm during the commission of a 858 crime, and criminal trespass, because the offenses committed by a defendant and a codefendant amounted to a series of continuous acts connected together both in time and the area in which committed, and there was no likelihood of confusion, the trial court did not abuse the court’s discretion in denying the defendant’s motion to sever the trial from that of the codefendant; furthermore, the mere fact that the codefendants’ defenses were antagonistic was insufficient in itself to warrant separate trials. Diaz v. State, 280 Ga. App. 413, 634 S.E.2d 160 (2006). Defendant’s motion to sever the failure to register as a sex offender counts under former O.C.G.A. § 42-1-12 from the remaining aggravated sodomy and child molestation counts was properly denied as: (1) the defendant was not entitled to severance as a matter of right since the charges involved a series of acts which were connected together; (2) the case was not so complex as to impair the jury’s ability to distinguish the evidence and to apply the law intelligently to the counts as joined; and (3) the failure to sever the failure to register as a sex offender counts was proper, even applying an analogy to cases involving possession of a firearm by a convicted felon, as the failure to report charges were legally material to the crimes against two children because the failure constituted evasive conduct that was circumstantial evidence of guilt and evidence of the conduct underlying the defendant’s conviction of a sex offense in North Carolina was admissible as a similar transaction. Bryson v. State, 282 Ga. App. 36, 638 S.E.2d 181 (2006). No merger if different victims and different incidents despite same weapon. — Defendant’s two convictions of violating O.C.G.A. § 16-11-106 were based on felonies charged in separate indictments that arose out of unrelated incidents and involved different victims. The fact that the same weapon may have been used was irrelevant; consequently, the offenses did not merge. Little v. State, 263 Ga. App. 893, 589 S.E.2d 656 (2003). Convictions merged since single victim. — Two convictions for possession of a firearm, one involving an aggravated assault and the other an armed robbery, 16-11-106 should have been merged as there was a single victim. Wells v. State, 294 Ga. App. 277, 668 S.E.2d 881 (2008). Although the defendant was engaged in a continuous crime spree consisting of murder, possession of a firearm during the commission of a crime, and, as a party to the crime, possession of a firearm during the commission of a crime, because only one victim was involved in the crime spree, the defendant could only be convicted once under O.C.G.A. § 16-11-106(b)(1) for possession of a firearm during the commission of a crime. Stovall v. State, 287 Ga. 415, 696 S.E.2d 633 (2010). Multiple convictions. — When multiple crimes are committed together during the course of one continuous crime spree, a defendant may be convicted once for possession of a firearm during the commission of a crime as to every individual victim of the crime spree as provided under O.C.G.A. § 16-11-106(b)(1), and additionally once for firearm possession for every crime enumerated in paragraphs (b)(2) through (5). State v. Marlowe, 277 Ga. 383, 589 S.E.2d 69 (2003). Trial court erred by sentencing defendant on both the possession of a knife during the commission of murder and on the possession of a knife during the commission of kidnapping with bodily injury in a case alleging that defendant killed defendant’s estranged spouse by stabbing the spouse. Bell v. State, 278 Ga. 69, 597 S.E.2d 350 (2004). Two of the five convictions for possession of a firearm during the commission of a crime must be vacated, because there were two individual victims and the defendant was convicted of burglary, a crime enumerated in O.C.G.A. § 16-11106(b)(2). Accordingly, the statute authorized imposition of sentence on the defendant for three of the guilty verdicts returned on the five counts charging the defendant with being in possession of a firearm during the commission of a crime: the count in which burglary was the underlying felony, one of the counts in which one person was the victim, and one of the counts in which another person was the victim. Grell v. State, 291 Ga. 615, 732 S.E.2d 741 (2012). 859 General Consideration (Cont’d) Pre- and post-Miranda statements properly admitted. — In a prosecution for aggravated assault and possession of a firearm during the commission of a crime, despite testimony from the arresting officer that the defendant was complaining of physical problems and under the influence of alcohol, both the pre- and post-Miranda statements made, as well as the numerous voluntary and unsolicited remarks which were not made in response to any form of interrogation, were properly admitted. Dorsey v. State, 285 Ga. App. 510, 646 S.E.2d 713 (2007). Conviction for possession had to be vacated because conviction for criminal damage was reversed. — After a juvenile was convicted of first degree criminal damage to property and possession of a firearm during the commission of this crime, and the conviction for first degree criminal damage to property was reversed, the conviction for possession of a weapon during this crime had to be vacated. In the Interest of M.D.L., 271 Ga. App. 738, 610 S.E.2d 687 (2005). Sentence not excessive. — Trial court did not err in sentencing defendant because the sentence the court imposed on defendant was ten years in prison and ten years probation for aggravated assault, ten years in prison to run concurrently for aggravated battery, and five years confinement to run consecutively for possession of a firearm during the commission of a crime as each part of defendant’s sentence was well within the statutory limits for the respective crime involved; accordingly, defendant’s sentence would not be modified on appeal. King v. State, 269 Ga. App. 658, 605 S.E.2d 63 (2004). Although the victim was unable to identify defendant in court as the person who robbed the victim at gunpoint, due to defendant’s changed appearance, the victim positively identified defendant from a photo lineup both immediately after the robbery and at trial; therefore, the evidence was sufficient to convict defendant of possession of a firearm during the commission of a felony. Garcia v. State, 271 Ga. App. 794, 611 S.E.2d 92 (2005). Evidence of possession sufficient. — There was sufficient evidence to convict 16-11-106 the defendant of the possession of a firearm while committing the felony of cocaine trafficking; an undercover officer testified that the weapon seized by police was the same gun the defendant had brandished after the defendant sold cocaine to the officer at a residence, and the gun and a briefcase of cocaine were found hidden in the same room where the defendant had gone before admitting other officers to the residence no more than an hour later. Daugherty v. State, 283 Ga. App. 664, 642 S.E.2d 345 (2007). When the defendants, a married couple who were in a car with a third person, were charged with trafficking in cocaine, possession of cocaine with intent to distribute, possession of amphetamine, and possession of a firearm during certain crimes, there was sufficient evidence that the defendants had joint constructive possession of a duffel bag in which drugs and a weapon were found. The evidence showed that one spouse exercised control over the car that transported the contraband and that the other spouse tried to retrieve a paper sack inside the duffel bag at the sheriff ’s office with suspicious and inconsistent explanations. Howard v. State, 291 Ga. App. 289, 661 S.E.2d 644 (2008). Because testimony about the circumstances of the victim’s visit to a home when defendant was shot was relevant and admissible to explain defendant’s motive in shooting the victim, the evidence was sufficient to convict defendant of malice murder, aggravated assault with a deadly weapon, and possession of a firearm during the commission of a felony. Taylor v. State, 287 Ga. 440, 696 S.E.2d 652 (2010). Sufficient evidence showed the defendant committed possession of a firearm, under O.C.G.A. § 16-11-106(b), in the process of hijacking a victim’s vehicle and committing an aggravated assault of the victim, because the defendant undisputedly possessed a handgun during the commission of these crimes and fled the scene. Campbell v. State, 314 Ga. App. 299, 724 S.E.2d 24 (2012). Evidence was sufficient to convict the defendant of aggravated assault, motor-vehicle hijacking, and possession of 860 a firearm during the commission of a crime, under O.C.G.A. §§ 16-5-21(a)(2), 16-5-44.1(b), and 16-11-106(b)(1), because the defendant waited in a getaway vehicle while an accomplice hijacked the victim’s vehicle, and possessed the gun that the accomplice used in the crime. Gordon v. State, 316 Ga. App. 42, 728 S.E.2d 720 (2012). As the first defendant aided and abetted in effecting a plan to steal the victim’s car, and as the second defendant took the victim’s money, the evidence was sufficient to convict both of the defendants of armed robbery, hijacking a motor vehicle, and possession of a firearm during the commission of a crime under O.C.G.A. §§ 16-5-44.1, 16-8-41(a), and 16-11-106. Copeny v. State, 316 Ga. App. 347, 729 S.E.2d 487 (2012). Sufficient evidence supported the defendant’s convictions for armed robbery, hijacking a motor vehicle, and two counts of possession of a firearm because the evidence showed that the defendant was identified by the victim, the defendant was arrested about an hour and a half after the crimes occurred in the Lincoln Town car used during the commission of the crimes, which the defendant admitted belonged to the defendant, and the cell phone that the victim had reported stolen was found in the car in addition to guns matching the victim’s description of the weapons used. Hinton v. State, 321 Ga. App. 445, 740 S.E.2d 394 (2013). Evidence sufficient to support convictions. — Evidence including DNA evidence, the victim’s testimony regarding the nature of the attack and description of the attacker, and the store surveillance video of an individual who wore clothing similar to that worn by the attacker and who appeared to be the same race as the attacker, supported the defendant’s convictions for rape, kidnapping, armed robbery, theft by taking, and three counts of possession of a gun during the commission of a crime. Glaze v. State, 317 Ga. App. 679, 732 S.E.2d 771 (2012). Evidence was sufficient to convict the defendant of felony obstruction, possession of a knife during the commission of a felony, and disorderly conduct because the defendant slammed the refrigerator door 16-11-106 twice, breaking items stored in the door; the victim called 9-1-1 seeking assistance for a domestic dispute in progress; when one of the responding officers told the defendant that the defendant would have to leave the house as the victim did not want the defendant living there, the defendant told the officer that the officer could not make the defendant leave; and, when the officer unsnapped a taser from the taser’s holster and approached the defendant, the defendant grabbed a knife with an eight-inch blade and threatened the officers with the knife. Owens v. State, 329 Ga. App. 455, 765 S.E.2d 653 (2014). Prior convictions properly admitted for both impeachment and sentencing purposes. — Trial court properly admitted certified copies of the defendant’s two prior convictions of aggravated assault and possession of a firearm during the commission of a felony as: (1) the court carefully balanced the competing interests; (2) the prior offenses had a substantial probative value which outweighed the offense’s prejudicial effect; and (3) nothing prevented the use of a defendant’s convictions for both impeachment and sentencing purposes. Moreover, the court rejected the defendant’s claim that by adding the word ‘‘substantially’’ to the balancing test, the Georgia legislature meant to incorporate the standard for admissibility embodied in Fed. R. Evid. 609(b). Newsome v. State, 289 Ga. App. 590, 657 S.E.2d 540 (2008), cert. denied, No. S08C1042, 2008 Ga. LEXIS 494 (Ga. 2008). Cited in Roberts v. State, 228 Ga. 298, 185 S.E.2d 385 (1971); Chumley v. State, 235 Ga. 540, 221 S.E.2d 13 (1975); Brock v. State, 239 Ga. 326, 236 S.E.2d 835 (1977); Dunbar v. State, 163 Ga. App. 243, 292 S.E.2d 897 (1982); Teague v. State, 165 Ga. App. 470, 301 S.E.2d 667 (1983); Miller v. State, 165 Ga. App. 638, 302 S.E.2d 394 (1983); Pittman v. State, 172 Ga. App. 22, 322 S.E.2d 71 (1984); Weaver v. State, 178 Ga. App. 91, 341 S.E.2d 921 (1986); King v. State, 178 Ga. App. 343, 343 S.E.2d 401 (1986); Allen v. State, 180 Ga. App. 701, 350 S.E.2d 478 (1986); Donaldson v. State, 180 Ga. App. 879, 350 S.E.2d 849 (1986); Johnson v. State, 181 Ga. App. 822, 357 S.E.2d 161 (1987); Rus- 861 16-11-106 General Consideration (Cont’d) sell v. State, 183 Ga. App. 209, 358 S.E.2d 631 (1987); McMachren v. State, 187 Ga. App. 793, 371 S.E.2d 445 (1988); Curtis v. State, 190 Ga. App. 173, 378 S.E.2d 516 (1989); In re M.J.H, 193 Ga. App. 621, 388 S.E.2d 738 (1989); Tatum v. State, 195 Ga. App. 349, 393 S.E.2d 494 (1990); Hollingsworth v. State, 195 Ga. App. 502, 394 S.E.2d 131 (1990); Whatley v. State, 196 Ga. App. 73, 395 S.E.2d 582 (1990); Busch v. State, 234 Ga. App. 766, 507 S.E.2d 868 (1998); Daniels v. State, 238 Ga. App. 511, 519 S.E.2d 269 (1999); Green v. State, 249 Ga. App. 546, 547 S.E.2d 569 (2001); Guild v. State, 255 Ga. App. 285, 564 S.E.2d 862 (2002); Darnell v. State, 257 Ga. App. 555, 571 S.E.2d 547 (2002); Clark v. State, 258 Ga. App. 347, 574 S.E.2d 344 (2002); Jackson v. State, 262 Ga. App. 451, 585 S.E.2d 745 (2003); Fernandez v. State, 263 Ga. App. 750, 589 S.E.2d 309 (2003); Blake v. State, 272 Ga. App. 181, 612 S.E.2d 33 (2005); Hill v. State, 281 Ga. 795, 642 S.E.2d 64 (2007); Fagan v. State, 283 Ga. App. 784, 643 S.E.2d 268 (2007); Jaheni v. State, 285 Ga. App. 266, 645 S.E.2d 735 (2007); Rivera v. State, 282 Ga. 355, 647 S.E.2d 70 (2007); Swain v. State, 285 Ga. App. 550, 647 S.E.2d 88 (2007); Withers v. State, 282 Ga. 656, 653 S.E.2d 40 (2007); Smith v. State, 289 Ga. App. 742, 658 S.E.2d 156 (2008); Lemming v. State, 292 Ga. App. 138, 663 S.E.2d 375 (2008); Johnson v. State, 293 Ga. App. 32, 666 S.E.2d 452 (2008); Williams v. State, 293 Ga. App. 193, 666 S.E.2d 703 (2008); Abdullah v. State, 284 Ga. 399, 667 S.E.2d 584 (2008); Burton v. State, 293 Ga. App. 822, 668 S.E.2d 306 (2008); Gordon v. State, 294 Ga. App. 908, 670 S.E.2d 533 (2008); Fisher v. State, 295 Ga. App. 501, 672 S.E.2d 476 (2009); Mathis v. State, No. A09A0215; No. A09A0308, 2009 Ga. App. LEXIS 586 (May 20, 2009); Bonker v. State, 298 Ga. App. 867, 681 S.E.2d 256 (2009); Verdree v. State, 299 Ga. App. 673, 683 S.E.2d 632 (2009); Crawford v. State, 301 Ga. App. 633, 688 S.E.2d 409 (2009); Souder v. State, 301 Ga. App. 348, 687 S.E.2d 594 (2009); Gutierrez v. State, 285 Ga. 878, 684 S.E.2d 652 (2009); Martinez v. State, 303 Ga. App. 166, 692 S.E.2d 766 (2010); Anthony v. State, 315 Ga. App. 701, 727 S.E.2d 528 (2012); Russell v. State, 319 Ga. App. 472, 735 S.E.2d 797 (2012); Hyman v. State, 320 Ga. App. 106, 739 S.E.2d 395 (2013); Vann v. State, 322 Ga. App. 148, 742 S.E.2d 767 (2013); Martin v. State, 324 Ga. App. 252, 749 S.E.2d 815 (2013); Banks v. State, 329 Ga. App. 174, 764 S.E.2d 187 (2014); Young v. State, 328 Ga. App. 857, 763 S.E.2d 137 (2014); Young v. State, 329 Ga. App. 70, 763 S.E.2d 735 (2014); Williams v. State, 330 Ga. App. 606, 768 S.E.2d 788 (2015); Howard v. State, 334 Ga. App. 7, 778 S.E.2d 19 (2015); Wiggins v. State, 334 Ga. App. 54, 778 S.E.2d 60 (2015); McGil v. State, 339 Ga. App. 130, 793 S.E.2d 442 (2016). Application Probable cause for arrest. — Police search of a defendant’s bag and person, which produced handguns, cocaine, cash, and other drugs was lawful because the search was made pursuant to the police officers’ lawful warrantless arrest of the defendant when the defendant arrived at a motel room exactly answering a detailed description provided by a confidential informant, who stated that the defendant would be carrying a shoulder bag containing drugs and a loaded handgun. Green v. State, 302 Ga. App. 388, 691 S.E.2d 283 (2010). Marijuana is not a controlled substance under O.C.G.A. § 16-13-30 for the purpose of a prosecution for possession of a firearm during the commission of a ‘‘crime involving the possession, manufacture, delivery, distribution, dispensing, administering, selling, or possession with intent to distribute any controlled substance.’’ Asberry v. State, 220 Ga. App. 40, 467 S.E.2d 225 (1996). Evidence was sufficient to convict the defendant of armed robbery, two counts of aggravated assault, and possession of a firearm during the commission of a felony because the credibility of the victim’s identification of the defendant was a matter to be determined by the jury; and, even though the defendant was covered from head to toe in clothing with only the defendant’s eyes visible, the victim was able to identify the defendant, who spoke during the robbery, as the defendant was 862 a regular customer and the victim watched the defendant grow up. Wiggins v. State, 334 Ga. App. 54, 778 S.E.2d 60 (2015). Predicate felony offense involving marijuana. — Trial counsel was not ineffective for failing to object to the trial court’s jury instruction on possession of a firearm during the commission of a crime that referenced possession of marijuana as a potential predicate felony offense because there was sufficient evidence to support the defendant’s felony conviction for possession of marijuana with intent to distribute, which could serve as the predicate felony offense for the defendant’s conviction of possession of a firearm during the commission of a crime; and there was not a reasonable probability that, if the trial court had omitted the reference to simple possession of marijuana from the instruction, the outcome of the trial would have been more favorable to the defendant. McNorrill v. State, 338 Ga. App. 466, 789 S.E.2d 823 (2016). Evidence of knife blade length sufficient. — Victim’s testimony that the blade of a knife used by the defendant to stab the victim was longer and wider than the blade of a facsimile knife blade, which itself exceeded three inches in length, along with presentation of the facsimile to the jury, although it was not admitted into evidence, was sufficient to support conviction under O.C.G.A. § 16-11-106. Fuller v. State, 235 Ga. App. 436, 509 S.E.2d 79 (1998). While no witness testified to the length of the blade, proof of the length of the knife blade was sufficient because the knife was admitted into evidence and the jury was charged in two separate instances, that defendant could not be convicted unless the jury found that the knife had a ‘‘blade three inches or more in length.’’ Johnson v. State, 247 Ga. App. 157, 543 S.E.2d 439 (2000). There was sufficient evidence about a knife blade’s length to support a conviction under O.C.G.A. § 16-11-106(b): (1) there was witness testimony that the defendant carried a five-inch knife with a long blade; (2) it could be inferred from another witness’s testimony about the witness’s own knife that the defendant’s 16-11-106 knife was longer than three inches; and (3) there was expert and eyewitness testimony that the victim’s wound was at least two and a half inches deep and was gaping in nature. Stanley v. State, 283 Ga. 36, 656 S.E.2d 806 (2008). Despite the defendant’s claim that no trial witness testified that the knife used had a blade of any certain length, because the knife itself was introduced into evidence, the jury was authorized to use the jury’s senses to determine if the knife blade was of the requisite length. Mitchell v. State, 283 Ga. 341, 659 S.E.2d 356 (2008). Stabbing of victim with knife. — Conviction of possession of a knife during the commission of a felony was supported by sufficient evidence that, after the victim confronted the defendant about a comment made to the victim’s wife, the defendant stabbed the victim to death; witnesses saw the defendant fighting with the victim, saw the defendant fold up a knife after the victim fell, and the defendant admitted to stabbing the victim. Williams v. State, 280 Ga. 297, 627 S.E.2d 32 (2006). Firearm capable of being fired not required. — O.C.G.A. § 16-11-106 does not require that the state prove that the firearm ‘‘within arm’s reach’’ must be capable of being fired. Smith v. State, 214 Ga. App. 631, 448 S.E.2d 906 (1994); Herndon v. State, 229 Ga. App. 457, 494 S.E.2d 262 (1997), overruled on other grounds, Howard v. State, 233 Ga. App. 724, 505 S.E.2d 768 (1998), overruled on other grounds, Gomillion v. State, 236 Ga. App. 14, 512 S.E.2d 640 (1999), overruled on other grounds, Wilson v. State, 277 Ga. 195, 586 S.E.2d 669 (2003). Evidence of bullets properly admitted. — With regard to a defendant’s convictions on two counts of armed robbery, possession of a firearm during the commission of a crime, failure to obey a traffic control device, fleeing and attempting to elude a police officer, reckless driving, failure to stop at the scene of an accident, and possession of a firearm by a convicted felon, the trial court properly denied the defendant’s motion for a new trial and sufficient evidence existed to support the defendant’s convictions as the trial court 863 Application (Cont’d) did not err in admitting into evidence certain bullets found in the defendant’s possession at the time of the defendant’s arrest based on the state allegedly not providing a proper chain of custody; the bullets, unlike fungible articles, were distinct and recognizable physical objects that were identifiable by observation, eliminating the necessity of a chain-of-custody showing. Green v. State, 287 Ga. App. 248, 651 S.E.2d 174 (2007). Possession of pellet gun not prohibited. — Legislature did not intend to have O.C.G.A. § 16-11-106 prohibit the possession of a ‘‘Marksman repeater pellet pistol’’ (otherwise described as a ‘‘.177 caliber Marksman Repeater B-B pistol ...’’) as this weapon is not mentioned in the statute and there is no proof that the weapon is capable of discharging a projectile via force of gunpowder. Fields v. State, 216 Ga. App. 184, 453 S.E.2d 794 (1995). Possession of black powder guns sufficient. — Evidence that the defendant was found in possession of two black powder guns was sufficient to support the convictions for possession of a firearm during the commission of a crime and by a convicted felon. Hall v. State, 322 Ga. App. 313, 744 S.E.2d 833 (2013). Use of firearm is aggravating circumstance. — The use of a firearm to commit a murder for pecuniary gain is an aggravating circumstance which warrants separate consideration. Simpkins v. State, 268 Ga. 219, 486 S.E.2d 833 (1997). Felony requirement. — Conviction of possession of a weapon during the commission of a felony must stand or fall in conjunction with the underlying felony upon which the charge is predicated. Strong v. State, 223 Ga. App. 434, 477 S.E.2d 866 (1996) (overruling Cleveland v. State, 212 Ga. App. 361, 441 S.E.2d 820 (1994)). Evidence showed that defendant’s commission of crimes against the victim while holding a gun on the victim were felonies; the crime of possession of a firearm during the commission of a crime against the person of another, such as the rape and armed robbery of the victim, or during an unlawful entry into a building, such as 16-11-106 defendant’s act in kicking in the door of the victim’s residence to unlawfully gain entry, were felonies because the rape, armed robbery, and burglary were each felonies punishable by imprisonment for more than 12 months. Moore v. State, 261 Ga. App. 752, 583 S.E.2d 588 (2003). Offense of criminal damage to property in the first degree, pursuant to O.C.G.A. § 16-7-22(a)(1), involves a person, and thus may serve as a predicate for a conviction for possession of a firearm during the commission of a felony under O.C.G.A. § 16-11-106(b)(1). Craft v. State, 309 Ga. App. 698, 710 S.E.2d 891 (2011). No merger of related offenses. — As separate facts were used to prove each crime, the trial court did not err by refusing to merge the offenses of armed robbery, aggravated assault, and possession of a firearm during the commission of the felonies. Blocker v. State, 265 Ga. App. 846, 595 S.E.2d 654 (2004). No merger into conviction for felony murder. — A conviction for possession of a firearm during the commission of a felony (O.C.G.A. § 16-11-106) does not merge with a conviction for felony murder. Hawkins v. State, 262 Ga. 193, 415 S.E.2d 636 (1992). Possession of firearm conviction did not merge with attempted armed robbery. — Possession of a firearm during the commission of a felony did not merge with an attempted armed robbery conviction because the crime of possession of a firearm is considered to be a separate offense under O.C.G.A. § 16-11-106(b) and (e). McKinney v. State, 274 Ga. App. 32, 619 S.E.2d 299 (2005). Merger for continuous crime spree. — When a defendant was convicted of aggravated assault, armed robbery, and two counts of kidnapping, but each crime occurred within the course of one continuous crime spree against two victims, two of the defendant’s four firearm possession offenses were to be merged. Lenon v. State, 290 Ga. App. 626, 660 S.E.2d 16 (2008). Robbers in a home robbery and murder had one gun, and there were two victims of the crimes, the decedent and the decedent’s grandmother; therefore, under O.C.G.A. § 16-11-106(b)(1), the defendant 864 should have been convicted of only two counts of possession of a firearm while committing a crime, one for each of the victims, and the third count should have been merged. Moore v. State, 294 Ga. 682, 755 S.E.2d 703 (2014). Double punishment included. — Counts of possession of a firearm during the commission of a crime and armed robbery did not merge. Baker v. State, 214 Ga. App. 640, 448 S.E.2d 745 (1994). When the defendant’s codefendant was within arm’s length of two pistols during the commission of the crime, the defendant is guilty of the offense as a party to the crime. Victrum v. State, 203 Ga. App. 377, 416 S.E.2d 740, cert. denied, 203 Ga. App. 907, 416 S.E.2d 740 (1992). Armed robbery by use of a firearm. standing alone and without further proof also demonstrates a violation of O.C.G.A. § 16-11-106. Coleman v.