In Re Dm
708 S.E.2d 550
Ga. Ct. App.2011Background
- D.M., age 15, was adjudicated delinquent for aggravated assault with the intent to rob under OCGA 16-5-21(a)(1).
- Evidence showed D.M. approached D.B. in a school hallway, put his hands in D.B.'s pockets, and asked what was in them, while D.B. was scared and did not resist.
- D.B. reported the incident to security; he was upset and nearly in tears after the encounter.
- At adjudicatory hearing, D.B. testified he did not fight back, did not threaten D.M., and did not see a weapon; D.M. did not touch him beyond pocket intrusion.
- The State argued aggravated assault with intent to rob; the defense pressed that the act could only support simple battery, not aggravated assault.
- The juvenile court vacated the aggravated assault adjudication and, on remand, could adjudicate for simple battery as a lesser included offense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was evidence sufficient for aggravated assault? | D.M. placed hands in pockets, displaying intent to rob; fear of imminent harm shown. | There was no substantial step, no weapon, and no demonstration of violence or imminent injury. | Insufficient evidence for aggravated assault; sufficient for simple battery on remand. |
| Did trial counsel render ineffective assistance? | Counsel failed to investigate and present favorable witnesses (investigator and T.T.). | Counsel's performance was not deficient and any deficiency did not prejudice the outcome. | Ineffective assistance claim failed; no reversible error. |
Key Cases Cited
- In the Interest of D.B., 284 Ga.App. 445 (2007) (simple assault requires demonstrated violence or imminent injury)
- Bearden v. State, 291 Ga.App. 805 (2008) (simple assault requires demonstration of violence with apparent ability to injure)
- In the Interest of J. S., 296 Ga.App. 144 (2009) (adjudication standards for delinquency include lesser included offenses)
- In the Interest of M.C.A., 263 Ga.App. 770 (2003) (standard of review for sufficiency of evidence in delinquency cases)
- Suggs v. State, 272 Ga. 85 (2000) (mixed legal/factual standard for ineffectiveness claims)
- Johnson v. State, 158 Ga.App. 432 (1981) (evidence of mere gestures without present ability to injure insufficient)
- Daniels v. State, 298 Ga.App. 736 (2009) (close proximity and actions can show demonstration of violence)
- Williams v. State, 299 Ga.App. 345 (2009) (presence of weapon and victim's perception of threat may matter)