☢ test - Í

beating my ass.’ … As Hoglen continued to scream that ‘they’ were ‘killing,’ ‘beating’ and ‘hurting’ him, a shot rang out. At this, Hoglen screamed even more loudly that he was being harmed and also added, ‘Over here, over here[!]’” “The State’s theory of the case is that taken together, evidence of Hoglen’s cries for help before the single shot fired, as well as his exclamation ‘Over here!’ after that shot, authorized this jury to conclude that he was a party to the aggravated assault at issue. Even if, as the dissent asserts, ‘Hoglen intended his grandfather to intervene in his arrest,’ there is no evidence in the record to show that Hoglen knew that his grandfather possessed a pistol while driving his truck to the scene, that the grandfather was likely to respond to Hoglen’s initial cries for help by firing a shot, or that those cries intentionally encouraged the grandfather to discharge the single shot actually fired.” Hoglen’s shout after the shot was fired couldn’t make him anything more than an accessory after the fact, which is not how he was charged. Miller dissents. State v. Harlacher, 336 Ga.App. 9, 783 S.E.2d 411 (March 2, 2016). Trial court properly granted defendant’s general demurrer to indictment for “criminal attempt to commit aggravated assault with a deadly weapon.” Defendant correctly asserts that “a person cannot be convicted of attempting to commit a crime that is itself an attempt to commit a crime.” 1. Assault/aggravated assault – victim’s apprehension. “[T]he State charged Harlacher with criminal attempt to commit aggravated assault by alleging that he attempted to place the victim in apprehension of receiving a violent injury with a pistol.” “[I]t would indeed seem feasible to convict an accused of attempting a reasonable-apprehension-of-harm type of assault. [Cits. from other states] However, as the State concedes, the fact that the victim was unaware that Harlacher aimed a handgun at him precludes a conviction of a completed aggravated assault under OCGA §§ 16–5–21(b)(2) and 16–5–20(a)(2). [Cits.] And although we find persuasive the State’s logic (as dictated by the plain meaning of the relevant text) that a victim’s lack of awareness of a reasonable-apprehension-of-harm type of assault should not preclude a conviction of an attempt to do so when, as here, Harlacher took substantial steps toward committing such a crime, [cits.] we are nonetheless constrained by precedent that seemingly dictates otherwise. [Cits.] Indeed, the Supreme Court of Georgia has previously explained that if a ‘victim is not placed in reasonable apprehension of immediate violent injury by the pointing of [a] firearm, only the misdemeanor of pointing a firearm ... has been committed.’ Rhodes v. State, 257 Ga. 368, 370(5), 359 S.E.2d 670 (1987) (emphasis added); see also Manzano v. State, 282 Ga. 557, 558–559(2), 651 S.E.2d 661 (2007) (same); OCGA § 16–11–102 (‘A person is guilty of a misdemeanor when he intentionally and without legal justification points or aims a gun or pistol at another, whether the gun or pistol is loaded or unloaded.’). Thus, regardless of the merits of the State’s position, our Supreme Court—by implication at the very least—appears to have foreclosed the argument that the victim’s lack of a reasonable apprehension of immediately receiving a violent injury can nevertheless result in a conviction for attempted aggravated assault.” Invites Supreme Court to re-examine Rhodes . 2. Assault/aggravated assault – attempt to injure. Dicta. “With regard to assault, OCGA § 16–5–20(a)(1) provides that ‘[a] person commits the offense of simple assault when he or she ... [a]ttempts to commit a violent injury to the person of another....’ Thus, under the plain language of this statutory provision, simple assault is, in essence, an attempted battery with the focus on the intention of the perpetrator to injure the victim. See Maynor v. State, 257 Ga.App. 151, 154, 570 S.E.2d 428 (2002) (noting that simple assault is an attempted battery under OCGA § 16–5–20(a)(1) that focuses on the intention of the perpetrator to injure the victim). And as Harlacher argues and the State concedes, ‘[w]e know of no law authorizing the conviction for an attempt to commit a crime which itself is a particular type of attempt to commit a crime.’ Porter v. State, 124 Ga.App. 285, 286, 183 S.E.2d 631 (1971).” Goodrum v. State, 335 Ga.App. 831, 783 S.E.2d 354 (February 25, 2016). Aggravated assault conviction affirmed; contrary to defendant’s argument, pre-2014 OCGA § 16-5-21 covered choking although it didn’t specifically reference it. Defendant’s offense occurred in 2013; the statute was amended in 2014 “to specifically provide that aggravated assault occurs when a person assaults ‘[w]ith any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in strangulation.’ OCGA § 16-5-21(b)(3). … But this does not mean that prior to 2014, choking or strangulation could not support an aggravated assault conviction. On the contrary, we consistently held the opposite,” citing Whitley v. State, 307 Ga.App. 553, 707 S.E.2d 375 (2011), Hall v. State, 292 Ga.App. 544, 644 S.E.2d 882 (2008), and Richards v. State, 222 Ga.App. 853, 476 S.E.2d 598 (1996). Horne v. State, 333 Ga.App. 353, 773 S.E.2d 467 (June 23, 2015). Aggravated assault and related convictions affirmed; no ineffective assistance based on failing to seek jury charge on simply battery as a lesser-included offense of aggravated assault. “Contrary to Horne's argument, former OCGA § 16–5–21(a)(2) does not require that the State prove actual injuries. See Gutierrez v. State, 235 Ga.App. 878, 882(3), 510 S.E.2d 570 (1998) (aggravated assault conviction does not require actual injury, as the State may establish commission of offense by showing that serious bodily injury is likely to result from the assault).” Defendant here denied causing victim’s injuries, and claimed that she accidentally caused them herself, thus providing no factual basis for a simple battery charge.