308 Ga. App. 589
Ga. Ct. App.2011Background
- D. M., 15, was adjudicated delinquent for aggravated assault with intent to rob under OCGA § 16-5-21 (a) (1) based on an incident at Clarkston High School on January 30, 2009.
- The victim, D. B., testified that D. M. put his hands in D. B.'s pockets; D. B. was scared but did not resist or fight back, and no weapons were displayed.
- A security officer observed that the victim was upset and nearly in tears after the incident.
- There was no evidence that D. M. displayed a weapon, made a threatening gesture, or touched D. B. beyond placing hands in pockets.
- The juvenile court found insufficient evidence to prove aggravated assault, but sufficient evidence to support the lesser included offense of simple battery, and vacated/remanded for that disposition.
- D. M. contends trial counsel was ineffective for failing to locate/involve witnesses (investigator and T. T.) whose testimony might have favored his defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for aggravated assault | D. M. asserts evidence showed no reasonable apprehension of imminent violent injury. | D. M. claims the State proved an assault with intent to rob under OCGA § 16-5-21 (a) (1). | Evidence insufficient for aggravated assault; reversed as to that offense. |
| Sufficiency of evidence for simple battery | D. M. supported simple battery by touching the victim’s pockets. | State argues a battery required more than pocket intrusion. | Evidence sufficient for simple battery; adjudication limited to that offense. |
| Ineffective assistance of counsel | Counsel failed to investigate or present investigator and TT testimony. | Defense claims deficient performance prejudiced outcome. | No ineffective assistance proven; testimony and proffers lacking; no prejudice shown. |
Key Cases Cited
- Bearden v. State, 291 Ga. App. 805 (Ga. App. 2008) (simple assault requires a demonstration of violence and apparent ability to injure)
- In the Interest of D. B., 284 Ga. App. 445 (Ga. App. 2007) (demonstration of violence and present ability to injure essential for simple assault)
- Williams v. State, 299 Ga. App. 345 (Ga. App. 2009) (presence of weapon with victim's fear supports imminent injury)
- Maynor v. State, 257 Ga. App. 151 (Ga. App. 2002) (reasonable apprehension is not the same as simple fear)
- Lawson v. State, 275 Ga. App. 334 (Ga. App. 2005) (simple battery encompasses prohibited contact beyond substantial harm)
- Dickens v. State, 280 Ga. 320 (Ga. 2006) (cannot rely on uncalled witness testimony to prove counsel deficiency)
- Suggs v. State, 272 Ga. 85 (Ga. 2000) (ineffective assistance claims require affirmative showing of prejudicial outcome)
- In the Interest of J. S., 296 Ga. App. 144 (Ga. App. 2009) (adjudication for lesser included offense may be appropriate on remand)
- Johnson v. State, 158 Ga. App. 432 (Ga. App. 1981) (evidence of implied threat without proximity may be insufficient)