311 Ga. App. 668
Ga. Ct. App.2011Background
- A BOLO advised Myers was traveling in a green Chevrolet Tahoe, leading to police pursuit after a traffic stop.
- Myers fled toward and then away from an officer, triggering a high-speed chase that ended with the Tahoe abandoned in woods.
- The Tahoe’s owner (Myers’s passenger) was later apprehended near the same wooded area; something was heard running in the woods.
- Myers was arrested days later and subsequently indicted for aggravated assault, fleeing/attempting to elude, two counts of obstructing officers, and traffic offenses.
- A jury convicted Myers of aggravated assault, fleeing and eluding, two obstructing- officer counts, and traffic offenses; the counts were merged at sentencing for aggravated assault counts.
- Myers argued insufficiency of the evidence, improper/incomplete indictment allegations, and improper character placement of issue by the prosecution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Insufficiency of aggravated assault proof | Myers argues no intent or apprehension of injury by officer. | State proved officer apprehension of serious bodily injury. | Evidence sufficient; officer apprehended serious injury. |
| Arrest-of-judgment timing for aggravated assault and fleeing | Indictments inadequately alleged manner of deadly-weapon use and eluding elements. | Motion in arrest of judgment untimely; not reviewable on appeal. | No error; timely issue not reviewable due to untimeliness. |
| Character at issue through fugitive status | Prosecution’s references to fugitive status placed Myers’s character at issue. | Fugitive status relevant to motive and admissible; not improper character placement. | Admission proper; information relevant to motive. |
Key Cases Cited
- Powell v. State, 310 Ga.App. 144 (Ga. App. 2011) (presumption of innocence after conviction not applicable; sufficiency review)
- Watson v. State, 301 Ga.App. 824 (Ga. App. 2009) (aggravated assault requires evidence of apprehension of serious injury)
- Williams v. State, 270 Ga.App. 371 (Ga. App. 2004) (driving toward officers can support aggravated assault if apprehension shown)
- Richardson v. State, 261 Ga.App. 55 (Ga. App. 2003) (evidence of threats supports aggravated assault conviction)
- Blalock v. State, 165 Ga.App. 269 (Ga. App. 1983) (automobile not per se deadly weapon; manner of use matters)
- Dasher v. State, 285 Ga. 308 (Ga. 2009) (timeliness of motions in arrest of judgment matters)
- Johnson v. State, 260 Ga. 457 (Ga. 1990) (fugitive status evidence admissible for motive in certain contexts)
- Sterling v. State, 267 Ga. 209 (Ga. 1996) (evidence relevance and error limitations in trial)
- Brown v. State, 268 Ga. 354 (Ga. 1997) (fugitive information can be central to motive and admissible)
- Jarrett v. State, 299 Ga.App. 525 (Ga. App. 2009) (plain-error doctrine generally not extended in post-judgment contexts)