Gross v. State
312 Ga. App. 362
Ga. Ct. App.2011Background
- Gross was convicted of aggravated assault and battery after a parking-lot altercation with Barone on November 11, 2006.
- The trial court merged the battery into the aggravated assault and sentenced Gross to six years in confinement and fourteen years on probation.
- Gross appealed alleging ineffective assistance of counsel, improper aggravated assault jury charge, and incorrect merger treatment.
- Gross admitted kicking Barone but claimed self-defense; the evidence supported either guilt on aggravated assault as charged or no offense.
- The court held the charge track to OCGA § 16-5-21(a)(2); the defense had helped induce the exact charge now challenged, and no reversible error occurred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the aggravated assault charge was improper | Gross argued the "actually does" language was improper. | State maintained the charge tracked the statute and was not erroneous. | No reversible error; charge was substantially correct. |
| Ineffective assistance for failing to object and for not requesting a lesser charge | Gross asserts counsel failed to object and should have requested simple assault. | Counsel's performance was not deficient; no prejudice since evidence supported aggravated assault or justification. | No ineffective assistance; no prejudice established. |
| Whether aggravated assault must merge into battery | Gross argued the felony should merge into the misdemeanor. | Court previously rejected merger of felony into misdemeanor. | Affirmed that merger was not required; felony may not merge into misdemeanor. |
Key Cases Cited
- Jones v. State, 287 Ga. 770 (2010) (party cannot complain about induced error in jury charge)
- Gibson v. State, 283 Ga. 377 (2008) (inclusion of 'actually did' not reversible error)
- Hudson v. State, 296 Ga. App. 692 (2009) (effective-assistance standards; burden on showing prejudice)
- Chancey v. State, 258 Ga. App. 319 (2002) (failure to request lesser offense charge not reversible error)
- Burnette v. State, 291 Ga. App. 504 (2008) (ineffective-assistance claims require showing possible guilty only of lesser offense)
- Kelley v. State, 248 Ga. App. 721 (2001) (merger considerations between battery and aggravated assault)
- Helmeci v. State, 230 Ga. App. 866 (1998) (no merit to proposition that a felony must merge into a misdemeanor)