☢ test - Í
not an element of OCGA § 16-5-21(a)(2). See Riels [ v. State, 259 Ga.App. 420, 421 (577 S.E.2d 88) (2003)].” Accord, Greene v. State , 295 Ga.App. 803, 673 S.E.2d 292 (January 30, 2009); Green v. State , 291 Ga. 287, 728 S.E.2d 668 (June 25, 2012) (reference in jury charge to hands as deadly weapons was equivalent to reference in indictment to object or device likely to result in bodily injury, not an “alternate means” of committing aggravated assault); In re: O.L. , 326 Ga.App. 640, 757 S.E.2d 236 (March 27, 2014) (no victim apprehension required where defendant “actually attempted to commit a violent injury to the person of the victim.”) (Physical precedent only). Miller v. State, 292 Ga.App. 641, 666 S.E.2d 35 (June 24, 2008). Defendant’s conviction for aggravated assault was adequately supported by the evidence although “no weapon was recovered and none of the witnesses actually saw a weapon or ‘sharp instrument’ as alleged in the indictment. However, ‘[e]ven in the absence of a description of the offensive weapon, evidence as to the nature, kind, and location of wounds inflicted is sufficient to allow the jury to infer the character of the weapon.’ (Citations and punctuation omitted.) Hill v. State, 230 Ga.App. 395 (496 S.E.2d 526) (1998). Here, the evidence that, as a result of Miller’s attack, Swann suffered a clean cut from his forehead to his lip was sufficient to allow the jury to infer that the wound was caused by a sharp instrument and to find beyond a reasonable doubt that Miller is guilty of aggravated assault.” Hamilton v. State, 291 Ga.App. 655, 662 S.E.2d 759 (May 22, 2008). “Hamilton’s contention that the trial court erred by charging the jury ‘that it is not essential for the State to locate bullets or bullet holes or expended shells to establish the crime of aggravated assault’ is controlled adversely to him by Willis v. State, 214 Ga.App. 479, 480(5) (448 S.E.2d 223) (1994).” Chappell v. State, 290 Ga.App. 692, 659 S.E.2d 919 (April 1, 2008). At defendant’s trial for aggravated assault, trial court properly charged jury “that a firearm, when used as such, is a deadly weapon as a matter of law.” Based on Adsitt v. State, 248 Ga. 237, 240-241(6) (282 S.E.2d 305) (1981), “holding that a shotgun that was intentionally pointed at another in a threatening manner was a deadly weapon under OCGA § 16-5-21(a)(2) as a matter of law.” “Similarly, ‘a handgun is a deadly weapon as a matter of law.’ Wyman v. State, 278 Ga. 339, 341(4) (602 S.E.2d 619) (2004). See Diaz v. State, 255 Ga.App. 288, 290(3) (564 S.E.2d 872) (2002). Intentionally pointing a handgun at a victim means that the handgun ‘is a “deadly weapon” within the meaning of OCGA § 16-5-21(a) as a matter of law even [if it were] loaded only with blanks....’ Veal v. State, 191 Ga.App. 445, 446(2) (382 S.E.2d 131) (1989).” Gibson v. State, 283 Ga. 377, 659 S.E.2d 372 (March 31, 2008). “Defendant asserts that the trial court erred by charging the jury that they could find defendant guilty of aggravated assault if the flashlight was ‘likely to or actually [did] result in serious bodily injury.’ Defendant objects to the inclusion of ‘or actually did’ because this phrase was not included in the indictment . However, ‘a charge on a code section in its entirety is not error where a part thereof is applicable and it does not appear that the inapplicable part misled the jury or erroneously affected the verdict.’ Searcy v. State, 168 Ga.App. 233(1) (308 S.E.2d 621) (1983). Here, the charge was taken from OCGA § 16-5-21, and, immediately after giving the charge, the court correctly instructed the jury to determine whether the flashlight was ‘likely to cause serious bodily injury,’ using evidence of actual injury as part of this inquiry. See Hannah v. State, 125 Ga.App. 596, 598 (188 S.E.2d 401) (1972) ( lethal character of weapon may be inferred from the nature and extent of the wound it inflicted ). Therefore, we find no error.” Coney v. State, 290 Ga.App. 364, 659 S.E.2d 768 (March 19, 2008). Aggravated assault conviction reversed for failure to define simple assault as part of jury charge on aggravated assault. Follows Chase (February 4, 2004), below, rather than line of cases holding that charge on aggravated assault does not require definition of simple assault, e.g., Sutton v. State, 245 Ga. 192 (264 S.E.2d 184) (1980). Note, Chase found reversible error in trial court’s failure to instruct the jury that intent to commit “violent” injury was an element of the offense; Chase does not expressly require charge on simple assault as part of charge on aggravated assault. Court of Appeals agrees with defendant’s assertion “that, given the absence of the statutory definition of ‘assault,’ the final charge improperly allowed the jury to find him guilty of aggravated assault based merely on criminal negligence.” Also based on Smith v. Hardrick, 266 Ga. 54 (464 S.E.2d 198) (1995), and Brinson v. State , 272 Ga. 345 (529 S.E.2d 129) (2000). Reversal required although defendant did not object at trial, as this failure constituted “a substantial error in the charge that was harmful as a matter of law.” Distinguished, Emmanuel v. State , 300 Ga.App. 378, 685 S.E.2d 361 (October 7, 2009) (“While we have previously held it harmful error for a trial court to fail to charge the statutory definition of assault in a case where the jury could find a defendant guilty of aggravated assault based merely on criminal negligence rather than intent, [citing Coney ] this is not such a case.”); Fullwood v. State , 304 Ga.App. 341, 696 S.E.2d 367 (June 7, 2010) (“Since the aggravated assault instruction in the present case clearly informed the jury that Fullwood must have attempted to cause a violent injury to the victim, there was
Made with FlippingBook Ebook Creator