☢ test - Í
for aggravated assault, but did for simple battery. “D.M. approached [victim] D.B. in the [school] hallway, stuck his hands in D.B.’s pockets, and said ‘What’s in them pockets?’” Victim was scared that D.M. would take his phone, MP3 player and money from his pocket and told D.M. “to get his hands out of my pockets” but he didn’t. A few minutes later, however, D.M. walked away without taking anything. Held, no aggravated assault because no weapon, no threats, no gestures suggesting imminent harm; thus, “the State failed to prove that he placed the victim in reasonable apprehension of immediately receiving a violent injury.” “Although the State contends that D.B.'s testimony that he was scared during the incident was sufficient to show that he had been placed in reasonable apprehension of receiving a violent injury, we have routinely held that ‘[r]easonable apprehension of injury is not the same as simple fear[.]’ (Citations and punctuation omitted.) Bates v. State, 275 Ga. 862, 865(3), 572 S.E.2d 550 (2002). Here, D.B.'s fear was based on a concern that D.M. would take his personal property, not an apprehension of injury .” Instead, D.M.’s act constituted ‘physical contact of an insulting nature’ such as to constitute simple battery under OCGA § 16-5-23(a)(1). Howard v. State, 288 Ga. 741, 707 S.E.2d 80 (March 7, 2011). Malice murder and related convictions affirmed. “Testimony that the victims ran from the gunfire is sufficient evidence that Appellants placed them in reasonable apprehension of immediately receiving a violent injury. See Adkins v. State, 279 Ga. 424, 425-426(2) (614 S.E.2d 67) (2005); Roberts v. State, 267 Ga. 669, 671(1) (482 S.E.2d 245) (1997); Lewis v. State, [ v. State, 215 Ga.App. 161 (450 S.E.2d 448) (1994)]; Heard v. State, [204 Ga.App. 757 (420 S.E.2d 639) (1992)]. Sanders testified that he was sitting on the ground, could have been shot, and would have been if he had stood up. A jury could find that Sanders experienced a reasonable apprehension of receiving a violent injury even though he affirmatively testified that he was not afraid. Lunsford v. State, 260 Ga.App. 818, 821(2) (581 S.E.2d 638) (2003). ‘“(R)easonable apprehension of injury is not the same as simple fear,” and the fact that the victim does not necessarily experience fear does not preclude a finding of reasonable apprehension. [Cits.]’ Bates v. State, 275 Ga. 862, 865(4) (572 S.E.2d 550) (2002).” Accord, Bostic v. State , 294 Ga. 845, 757 S.E.2d 59 (March 28, 2014) (evidence of victims’ retreat was sufficient to support finding that they had “been placed in apprehension of immediately receiving a violent injury,” though they didn’t testify). Lizana v. State, 287 Ga. 184, 695 S.E.2d 208 (May 17, 2010). Defendant’s felony murder conviction based on aggravated assault affirmed; allegation was sufficient to set out aggravated assault ““by striking [victim] about the head and body, using his hands and feet as objects likely to, and which actually did result in serious bodily injury....” Contrary to defendant’s contention, indictment didn’t have to include the words “when used offensively.” “Lizana argues that omission of the phrase ‘when used offensively’ effectively silenced his defense of justification by implying that his hands and feet could have been used in a defensive manner. However, Lizana does not support this argument with authority, and we conclude that the absence of self-defense, like general intent, ‘need not be expressly alleged in an indictment. [Cits.]’ State v. Austin, 297 Ga.App. 478, 479 (677 S.E.2d 706) (2009).” Reese v. State, 303 Ga.App. 871, 695 S.E.2d 326 (April 29, 2010). Evidence supported defendant’s conviction for aggravated assault upon a peace officer; “the evidence allowed for a finding that Reese, reacting to the officer's entry into his residence despite having heard his vehement objection, approached the doorway and threw at the officer from a short distance a 12-ounce glass bottle with sufficient force that the bottle shattered upon impact. Given the circumstances underlying this case, the jury was authorized to conclude that Reese used a bottle offensively against the officer in a manner likely to have resulted in serious bodily injury.” Griggs v. State, 303 Ga.App. 442, 693 S.E.2d 615 (April 6, 2010). 1. Evidence supported defendant’s conviction for aggravated assault. “ Griggs stabbed [a store] manager with the pen with such force that it bent the pen and broke the manager's skin, causing bleeding . … ‘[W]hether the instrument used constitutes ... an object ... which, when used offensively against a person, is likely to ... result in serious bodily injury is properly for the jury's determination.’ (Punctuation omitted.) [Cit.]” 2. Jury charge was accurate: “the trial court's instruction that the jury had to find ‘that the assault was made with an object when used offensively against a person is likely to result in serious bodily injury’ (emphasis supplied), substantially covered the principle that the jury should consider the manner and means of the object's use.” 3. Charge on lesser-included offense of simple assault was appropriate. “‘ Simple assault is necessarily a lesser[- ]included offense of aggravated assault. Therefore, any defendant who has committed the greater offense of aggravated assault has necessarily committed the lesser offense of simple assault.’ (Punctuation and footnote omitted.) Bostic v. State , 289 Ga.App. 195, 196, 656 S.E.2d 546 (2008). … The fact that actual contact occurred did not diminish the fact that there was evidence of a simple assault .” State v. Nejad, 286 Ga. 695, 690 S.E.2d 846 (March 15, 2010). At defendant’s trial for assault with a deadly weapon, aggravated battery, and various sexual offenses, trial court properly instructed jury that “a pellet gun in the shape of an
Made with FlippingBook Ebook Creator