☢ test - Í

automatic weapon is per se a deadly weapon.” “A firearm pointed at a victim and reasonably appearing to the assault victim to be loaded is a deadly weapon as a matter of law, regardless of whether it is loaded and, under such a circumstance, the trial court does not err when it takes the issue of ‘deadliness’ away from the jury. Adsitt v. State , 248 Ga. 237(6), 282 S.E.2d 305 (1981). See also Veal v. State , 191 Ga.App. 445(2), 382 S.E.2d 131 (1989) (pistol loaded with blanks that is pointed at victim in conjunction with an unlawful demand is a deadly weapon as a matter of law). A pellet gun is a deadly weapon per se when the uncontradicted evidence is that it reasonably appeared to the victim against whom it was used to be deadly. Clark v. State , 191 Ga.App. 386(3), 381 S.E.2d 763 (1989).” One of the victims here described defendant’s gun as appearing like a police Glock firearm. Reversing 296 Ga.App. 163(1), 674 S.E.2d 60 (2009). Accord, Jones v. State , 289 Ga. 145, 710 S.E.2d 127 (April 26, 2011). Futch v. State, 286 Ga. 378, 687 S.E.2d 805 (January 25, 2010). At defendant’s trial for felony murder based on aggravated assault, trial court correctly charged the jury in accordance with pattern jury charge that “a firearm when used as such is a deadly weapon as a matter of law.” “See Chappell v. State, 290 Ga.App. 691 (659 S.E.2d 919) (2008); Coney v. State, 290 Ga.App. 364, 366(1) (659 S.E.2d 768) (2008).” Preston v. State, 300 Ga.App. 433, 685 S.E.2d 420 (October 8, 2009). Evidence supported conviction for aggravated assault where “Preston entered the [victim’s] car without permission, demanded to be driven somewhere, and sat down next to the victim with the knife in his hand. Although it is true that Preston did not point the knife directly at the victim, he held that knife in his left hand as it rested on the middle console of the car – that is, only inches from the victim's side.” Williams v. State, 299 Ga.App. 345, 682 S.E.2d 586 (June 25, 2009). Evidence supported defendant’s conviction for aggravated assault, specifically, finding that victim had reasonable apprehension of injury. “[T]he evidence shows the victim was sitting down until he saw Williams approaching with the knife, and then he stood and fought with Williams. This evidence was sufficient for the jury to conclude that the victim was placed in apprehension of receiving an injury and was, therefore, sufficient to sustain Williams' conviction for aggravated assault. Furthermore, the mere ‘presence of a deadly weapon would normally place a victim in reasonable apprehension of being injured violently.’ Jackson v. State, 251 Ga.App. 578, 579(1) (554 S.E.2d 768) (2001). In this case, the presence of the knife in Williams' hand, coupled with the victim's actions after seeing the knife are sufficient evidence from which the jury could determine that the victim was placed in reasonable apprehension of being injured violently. Carter v. State, [248 Ga.App. 139, 140 (546 S.E.2d 5) (2001)].” See also Lemming (March 11, 2005), below. Crane v. State, 297 Ga.App. 880, 678 S.E.2d 542 (May 14, 2009). Evidence supported defendant’s conviction for aggravated assault although defendant “argues that he had no intention of hitting [victim] with the hammer and that the [victim] attacked him. … ‘ It is the victim's reasonable apprehension of injury from an assault by a deadly weapon that establishes the crime of aggravated assault, not the assailant's intent to injure.’ (Punctuation omitted.) Bostic v. State, 289 Ga.App. 195, 197 (656 S.E.2d 546) (2008).” Ratana v. State, 297 Ga.App. 747, 678 S.E.2d 193 (May 12, 2009). Defendant’s convictions for aggravated assault and possession of firearm during felony reversed based on insufficient evidence: defendant drove Hicks away from the scene where Hicks shot and killed victim, but “there is no evidence that Ratana drove Hicks to the scene or that Ratana did anything on the scene to advise or encourage Hicks to commit the crimes. Ratana's possession of a box of bullets of the same caliber as those used in the murder weapon in no way proves his possession of the weapon during the commission of the assault upon Howard.” Driving the perpetrator away might make Ratana an accomplice after the fact at common law, but does not make him a party to the crime. Fact that defendant’s car was parked in a position to enable a quick escape “showed nothing more than that Ratana's car, at some point, had been parked with its front end facing in the direction going out of the subdivision. To the extent that evidence constitutes circumstantial evidence of guilt, it simply does not exclude every other reasonable hypothesis.” Lewis v. State, 297 Ga.App. 517, 677 S.E.2d 723 (April 16, 2009). At his trial for aggravated assault, defendant was not entitled to charge on lesser offense of pointing a firearm, as defendant denied doing so. Lord v. State, 297 Ga.App. 88, 676 S.E.2d 404 (March 26, 2009). Two aggravated assaults against same victim didn’t merge where they were accomplished by different acts, though in same sequence of attacks, and resulted in “two unique and severe injuries.” One assault was by violent choking, resulting in ruptured blood vessels; the other was “a ‘penetrating’ injury from something being shoved deep into her throat.” “Because the evidence supports an inference that the two aggravated assaults occurred at separate times and in different ways, and because the nature of injuries strongly

Made with FlippingBook Ebook Creator