☢ test - Í

he thought he was going to be killed). Here, the evidence produced by the State failed to show any details about the use of the handgun as alleged in Count 3 of the indictment that would render the handgun a ‘deadly weapon’ as a matter of law. [fn] Under these particular circumstances, trial counsel was ineffective for failing to object to the trial court's instruction that ‘[a] firearm, when used as such, is a deadly weapon as a matter of law.’ The trial court's instruction seemly removes from the jury's province the question of whether the State had established an essential element of aggravated assault in Count 3, i.e. the use of the handgun as a deadly weapon. Additionally, the facts as proven cannot support a conclusion that the firearm was used as a deadly weapon as it must have been so used due to the language of the indictment. Thus, the requisite prejudice for trial counsel's ineffective assistance has been shown.” Distinguished, Howell (February 11, 2015), above. Marshall v. State, 324 Ga.App. 348, 750 S.E.2d 418 (October 25, 2013). Aggravated assault and firearms convictions affirmed; no plain error where trial court didn’t include charge on simple assault when instructing jury on aggravated assault with a deadly weapon. Mathis v. State, 293 Ga. 837, 750 S.E.2d 308 (October 21, 2013). Felony murder and related convictions affirmed; evidence supported convictions for aggravated assault. “Appellant asserts these aggravated assault counts should have been dismissed because the indictment charged him with assaulting these victims ‘with intent to rob,’ thus requiring both an intent to rob on his part and reasonable apprehension of receiving bodily injury on the part of the victims. With respect to these two counts, neither of the named victims testified to having a reasonable apprehension of bodily injury. Indeed, one victim whose cell phone was stolen testified he was not afraid during the commission of the crime, while the other victim who was hiding during the robbery had no items taken from him by the assailants. Aggravated assault [as charged here] requires an assault coupled with the intent to rob, however, there is no provision that property actually be taken. Lucky v. State, 286 Ga. 478, 482 (689 S.E.2d 825) (2010). Nor does the fact that a victim claims to have been unafraid preclude a finding of reasonable apprehension. Bates v. State, 275 Ga. 862, 865 (572 S.E.2d 550) (2002).” Jordan v. State, 322 Ga.App. 252, 744 S.E.2d 447 (June 13, 2013). Aggravated assault convictions affirmed; where indictment “alleged that Jordan ‘unlawfully ma[de] an assault upon the [victim] with a gun, a deadly weapon, by shooting at him,’” trial court properly charged jury on both definitions of aggravated assault. “This allegation could encompass either method of committing an assault —attempting to commit a violent injury to the person of another under OCGA § 16–5–20(a)(1), or committing an act that places another in reasonable apprehension of receiving a violent injury under OCGA § 16–5–20(a)(2). ‘The trial court did not charge a separate, unalleged method of committing aggravated assault, but simply defined both methods of committing simple assault, a lesser included offense.’ (Citation and punctuation omitted.) Johnson v. State, 281 Ga. 229, 230(2), 637 S.E.2d 393 (2006).” Braziel v. State, 320 Ga.App. 6, 739 S.E.2d 13 (February 26, 2013). Evidence supported defendant’s conviction for aggravated assault on a peace officer where officer “testified that Braziel yelled to his dog ‘sic him boy, bite him’ before the dog attacked the officer. Another deputy testified that the dog had been aggressive in past encounters at Braziel's home, but that ‘Braziel ha[d] usually called it off.’” Touchstone v. State, 319 Ga.App. 477, 735 S.E.2d 805 (December 19, 2012). Conviction for aggravated assault reversed; 1. evidence that defendant fired a gun, with no evidence that he aimed it at the alleged victim, was insufficient to support aggravated assault by “attempt to commit a violent injury.” “[Victim/Officer] Touchstone was out of the officer's view when he fired the gun, [fn] no other officer or witness saw him fire the gun, no witness saw where he aimed the gun when he fired it, and no forensic or other evidence was introduced which suggested that he fired the gun in Billups' direction. In sum, there is no evidence here that Touchstone intentionally fired the gun at Billups, intending to inflict a violent injury to her person.” 2. Indictment was broad enough to cover aggravated assault by placing victim in reasonable apprehension of immediately receiving a violent injury, and evidence supported such a charge, but that definition of the offense wasn’t included in the jury charge. “Thus, although the indictment and governing law may have authorized the jury to convict Touchstone based on either OCGA § 16–5–20(a)(1) or OCGA § 16–5–20(a)(2), we agree with Touchstone that, pursuant to the trial court's instructions, the jury was authorized to convict him of aggravated assault only if it was established beyond a reasonable doubt that he attempted to commit a violent injury to Billups.” Gunter v. State, 316 Ga.App. 485, 729 S.E.2d 597 (June 28, 2012). Convictions for aggravated assault and terroristic threats affirmed; “the jury was authorized to conclude that the large knife held by Gunter, which itself was introduced into evidence, was a deadly weapon and that it could be easily removed from its sheath.” Distinguishing Ware v. State, 289