Petro v. State
327 Ga. App. 254
Ga. Ct. App.2014Background
- Petro was tried by bench trial and convicted of two counts of aggravated assault, two counts of terroristic threats, two counts of possession of a knife during the commission of a crime, and one count of family violence battery.
- The incidents arose from an altercation between Petro, his girlfriend, her ex-boyfriend, and her niece at the girlfriend’s Effingham County residence.
- Petro allegedly assaulted the girlfriend with a butcher knife, cut her, and threatened others with the knife during the same episode.
- Witnesses included the girlfriend and her niece; the ex-boyfriend did not testify; photographs and the knife were introduced at trial.
- Petro appealed the sufficiency of the evidence and whether terroristic threats merged with aggravated assault for sentencing.
- The trial court denied Petro’s motion for new trial, and the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for aggravated assault and related offenses | Petro contends evidence fails to prove assault with a knife against both victims | State contends testimony and physical evidence establish all elements | Evidence sufficient for all charged offenses |
| Sufficiency of evidence for terroristic threats | Petro argues threats were not independently proven | State asserts independent corroboration supports threats | Sufficient corroboration; convictions upheld |
| Merger of terroristic threats into aggravated assault for sentencing | Terroist threats should merge as lesser included offenses | No merger under Drinkard v. Walker; separate elements require separate convictions | No merger; separate convictions affirmed |
| Surplusage and indictment framing affecting proof | Language alleging threats to kill is unnecessary surplusage | Indictment properly framed; evidence supports convictions regardless | Language deemed surplusage; does not negate proof of aggravated assaults |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for sufficiency of evidence in criminal cases)
- Drinkard v. Walker, 281 Ga. 211 (Ga. 2006) (required evidence test for merger of offenses)
- Mason v. State, 312 Ga. App. 723 (Ga. App. 2011) (drill-down on merger analysis under Drinkard)
- Hobby v. State, 298 Ga. App. 52 (Ga. App. 2009) (corroboration burden for terroristic threats)
- Hartley v. State, 299 Ga. App. 534 (Ga. App. 2009) (testimony of victim supports aggravated assault conviction)
- Brown v. State, 313 Ga. App. 907 (Ga. App. 2012) (surplusage concept in aggravated assault indictments)
- Franks v. State, 325 Ga. App. 488 (Ga. App. 2013) (indictment scope and Drinkard framework reference)
- Wilson v. State, 285 Ga. 224 (Ga. 2009) (consideration of indictment language under merger analysis)