Bennett v. StateBennett v. State
Torey Joseph Bennett, Sr. appeals from his October 1999 battery conviction. He also challenges the trial court’s earlier denial of his motion for discharge and acquittal. Finding no error, we affirm.
Bennett was indicted on October 6, 1998, on two counts of cruelty to children. On October 21, 1998, Bennett’s attorney filed an entry of appearance and six motions. The first document was entitled “Entry of Appearance, Waiver of Arraignment, and Request for Jury Trial” and stated that “Defendant hereby waives formal arraign
ment, pleads not guilty, and requests a jury trial pursuant to
During the motion hearing, Bennett presented an affidavit from the trial court’s deputy clerk which showed that there were available jurors who were qualified and impaneled on October 21,1998, as well as during the November 1998 term of court. After hearing arguments, however, the trial court denied Bennett’s motion for discharge and acquittal, noting that the demand was legally insufficient and was presented in such a way that it appeared to be an attempt to find a “technicality with which to possibly get [Bennett] off.”
Following a jury trial, Bennett received a directed verdict on one count of cruelty to children and was convicted of the lesser included offense of battery on the other cruelty charge. This appeal followed. Held:
1. In his first enumeration of error, Bennett contends that the trial court erred in finding that his demand for speedy trial was insufficient to place the State on notice and, based upon such finding, in denying his motion for discharge and acquittal pursuant to
OCGA § 17-7-170 provides that when a person makes a demand for [speedy] trial he is entitled to be discharged and acquitted of the offense charged if he is not tried during the term in which his demand for trial is made or at the next succeeding regular term, and there were juries impaneled and qualified to try him at each of those terms.
(Citation and punctuation omitted; emphasis supplied.)
Scott v. State,
In determining whether a defendant is entitled to the extreme relief of discharge and acquittal, the trial court must decide whether the defendant’s “demand, considering both its caption and its text, can
reasonably be construed
as a
demand
for a speedy trial under the provisions of
In contrast, Bennett’s motion in this case
requested
a jury trial and referenced
2. In his second enumeration of error, Bennett contends that the trial court erred in charging the jury on the lesser included offense of battery. According to the trial court, the State requested such charge during an off-the-record charge conference. Bennett objected to the battery charge. Under
(1) [the offense] is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or (2) [the offense] differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person or a lesser kind of culpability suffices to establish its commission.
(Citation and punctuation omitted.)
Fulton v. State,
[T]he lesser offense may be an included offense in a particular case if the facts alleged in the indictment and the evidence presented at trial to establish the charged offense are sufficient to establish the lesser offense as well. Thus, whether a lesser offense is included in a greater offense as a matter of fact must be determined on a case-by-case basis, depending upon the facts alleged in the indictment and the evidence presented at trial.
(Citations, punctuation and emphasis omitted.)
Strickland v. State,
Bennett had been indicted for cruelty to children under
[t]he definition of battery is that a person commits the offense of battery when that person intentionally causes substantial physical harm or visible bodily harm to another. The term “visible bodily harm” means bodily harm capable of being perceived by a person other than the alleged victim.
The evidence presented in this case was sufficient to authorize the jury to find that Bennett repeatedly struck his nine-year-old child on the back, buttocks, and legs with his hand, leaving several visible, handprint-shaped bruises. As such, battery was a lesser included offense of cruelty to children as a matter of fact under
3. In his third enumeration, Bennett claims that, because battery is not a lesser included offense in this case, the jury was required to find him either (a) guilty of cruelty to children or (b) not guilty under parental
Judgment affirmed.
Notes
Under