The State v. Harlacher
336 Ga. App. 9
Ga. Ct. App.2016Background
- In August 2014, after a bar fight in which the victim broke Harlacher’s nose, Harlacher drew a handgun and pointed it at the victim’s head but did not fire; the victim never saw the gun and kept walking away.
- The State indicted Harlacher for criminal attempt to commit aggravated assault with a deadly weapon, alleging he took a substantial step by pointing the pistol to place the victim in reasonable apprehension of immediate violent injury.
- Harlacher moved for a general demurrer, arguing an attempt to commit aggravated assault is legally impossible because assault (in one form) is itself an attempt (an inchoate offense).
- The trial court granted the demurrer and dismissed the indictment, concluding (1) assault can be an attempt (so one cannot attempt an attempt) and (2) the victim’s lack of awareness prevented completed aggravated assault.
- The State appealed; the Court of Appeals reviewed the demurrer de novo and considered statutory construction, offense elements, and binding Supreme Court precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a defendant can be charged with attempt to commit aggravated assault when the underlying assault offense may itself be an attempt | The State: OCGA § 16-5-20(a)(2) (the apprehension-type assault) lacks an attempt element, so one can attempt that form of assault and thus attempt aggravated assault | Harlacher: Some assault definitions (OCGA § 16-5-20(a)(1)) are themselves attempts (attempted battery), so one cannot be convicted of attempting an inchoate offense | Court: Affirmed demurrer — constrained by Georgia precedent holding that where the victim is not placed in reasonable apprehension (as here), only pointing a firearm misdemeanor applies, so attempted aggravated assault cannot stand |
| Whether the victim’s lack of awareness permits conviction for attempted aggravated assault | The State: Even if victim was unaware, Harlacher took substantial steps and so could be guilty of attempt | Harlacher: Victim’s lack of apprehension negates the elements of (aggravated) assault, so no completed assault and no lawful attempt to commit that assault | Court: The State’s position is persuasive on plain-text analysis but is foreclosed by Georgia Supreme Court precedent; therefore demurrer proper |
Key Cases Cited
- Rhodes v. State, 257 Ga. 368 (1987) (holding that if pointing a firearm does not place victim in reasonable apprehension, only the misdemeanor of pointing a firearm is committed)
- State v. Corhen, 306 Ga. App. 495 (2010) (discussing standards for general demurrer and indictment sufficiency)
- Loudermilk v. Federal Deposit Insurance Corp., 295 Ga. 579 (2014) (articulating rules of statutory construction and that courts must give statutory text its plain and ordinary meaning)