☢ test - Í
merged with malice murder conviction). Compare McCloud v. State, 284 Ga. 665, 670 S.E.2d 784 (November 17, 2008) (charges did not merge where aggravated assault was established by evidence the victim was beaten and strangled and malice murder was established by evidence the victim was stabbed to death).” Williams v. State, 295 Ga.App. 9, 670 S.E.2d 828 (November 26, 2008). No merger of aggravated assault with intent to rape, and rape. “The record shows that Williams, while in the hallway, touched and fondled the victim while threatening to kill her. He was armed with a handgun at the time. Moments later, he forced the victim into the prayer room across the hall, where he pointed the gun at the victim, forcibly undressed her, and then proceeded to rape her. The acts in the hallway ‘were separate and distinct acts of force and intimidation outside that necessary to accomplish the rape. Thus, the jury was authorized to find [Williams] guilty of both rape and aggravated assault with [intent to rape] under the circumstances.’ (Citations omitted.) Culver v. State, 230 Ga.App. 224, 230-231(5) (496 S.E.2d 292) (1998).” Reynolds v. State, 294 Ga.App. 213, 668 S.E.2d 846 (October 23, 2008). 1. Evidence supported defendant’s conviction for aggravated assault by causing “serious bodily injury” to victim. “[T]he victim was bruised on multiple parts of her body and experienced soreness. The victim also testified that she ‘saw stars’ and fell to the ground when Reynolds first struck her in the head with the plank. Given this evidence, a rational trier of fact was entitled to find beyond a reasonable doubt that the victim suffered serious bodily injury.” Citing Miller v. State, 273 Ga.App. 761, 762(1) (615 S.E.2d 843) (2005) (“victim ‘had bruises around her right eye, near her cheekbone, and on her neck’”), Allsup v. State, 250 Ga.App. 53, 550 S.E.2d 425 (2001) (victim “sustained serious bodily injury where she ‘suffered visible bruising’ to her face and had a black eye and bloody lips”), and Price v. State, 237 Ga.App. 54, 55(1) (513 S.E.2d 40) (1999) (“the victim sustained serious bodily injury where her face was damaged, her eye was swollen, and she had a large bruise on the back of her head”). 2. In defendant’s trial for aggravated assault, trial court properly denied defendant’s request to charge jury by defining “serious bodily injury” as “bodily injury which creates substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Defendant’s request taken from Rivers v. State , 255 Ga.App. 422, 423 (565 S.E.2d 596) (2002), an aggravated battery case. “Contrary to Reynolds' assertion, we have not defined serious bodily injury in our aggravated assault cases, given that the circumstances surrounding each aggravated assault differ on a case-by-case basis and require a consideration of degree. Rather, we have taken a more flexible approach, holding that whether the injury sustained by a victim is sufficient to support an aggravated assault conviction is a ‘question[ ] particularly within the province of the trier of fact.’ LaPann v. State, 191 Ga.App. 499, 501 (382 S.E.2d 200) (1989).” Windham v. State, 294 Ga.App. 72, 668 S.E.2d 526 (October 16, 2008). Accusation charging defendant with assaulting victim with his “shoe clad feet, a means likely to cause serious bodily injury,” did not require State to prove actual serious bodily injury; “rather, the indictment charged that his shoe-clad feet are objects which, when used offensively against a person, are likely to result in serious bodily injury. See Anthony v. State, 275 Ga.App. 274, 275(1), 620 S.E.2d 491 (2005). Whether Windham's shoe-clad feet constituted objects likely to result in serious injury was a question of fact for the jury.” Accord, Dasher v. State , 285 Ga. 308, 676 S.E.2d 181 (April 28, 2009) (proof that shod feet were deadly weapons did not require “detailed evidence of the footwear worn, e.g., whether it was a shoe or boot, its size, weight, construction, and the manner in which it was used.”). Hall v. State, 292 Ga.App. 544, 664 S.E.2d 882 (July 8, 2008). 1. “‘Aggravated assault committed by means of a deadly or offensive weapon, unlike aggravated assault committed with the intent to murder, rape, or rob, does not require a specific criminal intent.’ (Punctuation omitted.) Riels v. State, 259 Ga.App. 420, 421 (577 S.E.2d 88) (2003). ‘[T]he state was required to prove only a general intent to injure.’ (Punctuation omitted.) Id. [Victim] J.V.'s testimony that during the altercation with Hall, she could not breathe and, in fact, briefly lost consciousness, was evidence of such intent.” Accord, Atwell v. State , 293 Ga.App. 586, 667 S.E.2d 442 (September 18, 2008). 2. Indictment adequately charged defendant with aggravated assault. “Although the indictment does not state that Hall used his hands as deadly weapons, ‘this omission does not render the charge flawed .’ Id. at 345(1). In Pye v. State, 274 Ga. 839, 841(4) (561 S.E.2d 109) (2002), our Supreme Court explained that ‘[t]he specific reference to “deadly weapon” in Smith v. Hardrick [266 Ga. 54, 55(2) (464 S.E.2d 198) (1995)] must be seen as a general reference to the aggravating circumstance in OCGA § 16-5-21(a)(2), which also includes “any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.”’ (Footnote and punctuation omitted.) Here, the indictment sets forth both the unlawful assault and the aggravating circumstance. Furthermore, ‘it was unnecessary to allege apprehension by the victim as apprehension is not an essential element of an assault in which it is alleged that the defendant attempted to commit a violent injury upon the victim.’ (Punctuation omitted.) [ State v. English, 276 Ga. 343, 345(1) (578 S.E.2d 413) (2003)]. Similarly, it was unnecessary to allege that Hall intended to murder, rape, or rob [victim] given the fact that such intent is
Made with FlippingBook Ebook Creator