☢ test - Í

Gipson v. State, 332 Ga.App. 309, 772 S.E.2d 402 (May 6, 2015). Convictions for aggravated assault with intent to murder, and related offenses, affirmed. 1. Evidence supported finding of intent to murder . “The evidence … showed that Gipson lured the victim down a secluded path while arguing with her, where he repeatedly kicked her and struck her with tree limbs. The victim could barely walk after the attack, had to be taken to the emergency room at the hospital, and was treated for bruising to her arms, legs, and back that was so severe that the treating physician was concerned that she was at risk of a pulmonary embolism or kidney damage. In light of these combined circumstances, we conclude that a reasonable jury was entitled to find beyond a reasonable doubt that Gipson acted with the intent to kill the victim and find him guilty of aggravated assault with intent to murder. See, e.g., Tanner [ v. State, 86 Ga.App. 767(1), 72 S.E.2d 549 (1952)] (throwing ‘some kind of blunt instrument like a rock’ at the victim, resulting in severe injury, supported inference that defendant acted with intent to kill); Thomas v. State, 75 Ga.App. 334, 43 S.E.2d 352 (1947) (striking victim with brass knuckles, resulting in severe injury, supported inference that defendant acted with intent to kill).” 2. Indictment for aggravated assault with intent to murder doesn’t require allegation of use of deadly weapon , citing Grant v. State, 326 Ga.App. 121, 122(1), 756 S.E.2d 255 (2014) (“aggravated assault with intent to murder requires proof of intent to kill at the time of the assault”). Zamudio v. State, 332 Ga.App. 37, 771 S.E.2d 733 (April 13, 2015). Indictment charging aggravated assault was in proper form where it alleged that defendant “did commit an act, to wit, possess a cutting device in the presence of [the victim], said device being an object which when used offensively against another person is likely to result in serious bodily injury, which placed ... [the victim] in reasonable apprehension of immediately receiving a violent injury....” Contrary to defendant’s argument, aggravated assault doesn’t require that defendant use the object; simply possessing it could be sufficient to cause reasonable apprehension of receiving violent injury. Patterson v. State, 332 Ga.App. 221, 770 S.E.2d 62 (March 30, 2015). Aggravated assault conviction affirmed; trial court properly declined to charge jury on simple assault, reckless conduct, or reckless driving as lesser offenses. Offense here was committed by “driving his Chevrolet van into Nathaniel Silvers and pinning Silvers between the van and a mobile home,” resulting in internal injuries requiring a multi-day hospital stay. None of the proposed lesser offenses fits because defendant was charged with “reasonable apprehension of injury” aggravated assault, which doesn’t require a showing of intent to injure. 1. Simple assault. “[W]here a person is charged with a reasonable-apprehension-of-injury assault and the indictment charges[fn] and the undisputed evidence shows that the assault was committed with the second aggravating factor listed in OCGA § 16–5–21(b), a charge on simple assault is not required. [ Dickerson v. State, 207 Ga.App. 241(1), 427 S.E.2d 591 (1993)] (‘Where ... the undisputed evidence shows that the assault was committed with a deadly weapon, it is not error to refuse to give a charge on simple assault as a lesser included offense.’) (citation and emphasis omitted); Davis v. State, 308 Ga.App. 7, 17(5)(b), 706 S.E.2d 710 (2011) (where defendant was charged with and evidence showed that defendant ‘took a swing’ at victim with hand holding a screwdriver, an instrument that when used offensively is likely to or actually does result in serious bodily injury, and victim immediately retreated, there was no evidence of simple assault and no error refusing a charge on simple assault).” 2. Reckless conduct/reckless driving. Because no intent to injure is required with “reasonable apprehension of injury” aggravated assault, criminal negligence offenses don’t require “a less culpable mental state,” making them lesser-included offenses. Craft v. State, 309 Ga.App. 698, 707(7)(a), 710 S.E.2d 891 (2011) (reckless conduct – intentionally firing a gun into the air); Shaw v. State, 238 Ga.App. 757, 759(1), 519 S.E.2d 486 (1999) (“[A] reckless conduct charge is not warranted for an aggravated assault committed by placing another in reasonable apprehension of immediately receiving a violent injury. If the victim reasonably fears an immediate violent injury from a firearm, the aggravated assault has occurred.”) (citations omitted); Young v. State, 294 Ga.App. 227, 230, 669 S.E.2d 407 (2008) (reckless driving). Cert. granted on these issues, case no. S15G1303, November 2, 2015. Thompson v. State, 332 Ga.App. 204, 770 S.E.2d 364 (March 30, 2015). Evidence supported conviction for aggravated assault. Contrary to defendant’s argument, fact “that Thompson was ‘maybe 15 feet’ from the loss prevention officer when he waived the knife towards him in a threatening manner” didn’t prevent the victim from being “in reasonable apprehension of immediately receiving a violent injury.” “To prove that a victim had a reasonable apprehension of immediately receiving a violent injury, ‘there need not be an actual present ability to commit a violent injury upon the person assailed, but if there be such a demonstration of violence, coupled with the apparent ability to inflict the injury, so as to cause the person against whom it is directed reasonably to fear the injury unless he retreat to secure his safety, and under such circumstances he is compelled to retreat to avoid an impending danger, the assault is complete, though the assailant may never have been within actual striking distance of the person assailed.’ (Citation and punctuation omitted.) King v. State, 213 Ga.App. 268, 269, 444 S.E.2d 381 (1994).” Evidence did show that victim exhibit apprehension of injury; “in response to Thompson brandishing the razor knife, the loss prevention officer stepped