Following a jury trial, Courtney Feagin was convicted of aggravatedbattery (OCGA § 16-5-24 (a)), criminal trespass (OCGA § 16-7-21 (a)), andhindering an emergency telephone call (OCGA § 16-10-24.3). Feagin filed a motion for new trial, which the trial court denied. On appeal, Feagin challenges the sufficiency of the evidence supporting his convictions. For the reasons that follow, we affirm Feagin’s convictions for aggravated battery and criminal trespass. However, we must reverse Feagin’s hindering an emergency telephone call conviction for lack of evidence. Accordingly, Feagin’s convictions are affirmed in part and reversed in part.
On appeal from a criminal conviction, we view the evidence in a light most favorable to the verdict, and [Feagin] no longer enjoys a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but only determine whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.
(Punctuation and footnotes omitted.) Ferrell v. State,
So viewed, the trial evidence showed that this incident arose out of an argument on December 24, 2010 between Feagin and his sister, the victim. A few weeks prior to the incident, the victim allowed Feagin to move into her home, where their mother and the victim’s two young children also resided. On the morning of the incident, the victim began having a conversation with Feagin regarding the rules of the house and shared household duties. The victim gave Feagin an ultimatum, telling Feagin that he would have to leave if he did not comply with the rules. The conversation escalated into an argument. The victim testified that as the heated exchange continued, she grabbed her cell phone because she was “looking for something to ... throw at that point in time” and “just in case [she] did need to call someone.” The victim stated that she did not think about calling 9-1-1 and that “9[-] 1[-] 1 wasn’t on [her] mind.” After initially grabbing her cell phone, the victim subsequently placed it on the kitchen counter. Thereafter, Feagin grabbed the victim’s cell phone and “snapped it in half,” rendering it inoperable. The victim testified that her cell phone was worth less than $500.
The victim retreated to the upstairs area of the residence, but Feagin followed her as
The mother called 9-1-1 to report the incident. The responding officers observed that the victim’s left eye was swollen shut. An officer took photographs depicting the victim’s eye injuries. Another officer testified that the victim’s eye injury was one of the worst that he had seen in handling a domestic fight call.
The victim was taken to the hospital for treatment. The emergency room physician who treated the victim testified that the victim had bruising and swelling around her eye such that her eye was swollen shut. A CAT scan further revealed that the victim’s eye socket was fractured. The victim’s injuries required treatment with narcotic pain medications and an antibiotic. The physician testified that the victim’s eye injuries were clearly caused by trauma. The victim stated that her eye remained swollen for approximately two weeks, and that the bruising around her eye remained for approximately two months after the incident.
The responding officers apprehended Feagin approximately one mile from the residence. After being advised of his Miranda rights, Feagin gave a statement to police, admitting that he had punched the victim in her face during the argument. Feagin was arrested, charged, and subsequently convicted of the aggravated battery, criminal trespass, and hindering an emergency call offenses stemming from the incident.
1. Feagin contends that the evidence was insufficient to support his aggravated battery conviction. The aggravated battery charge was based upon Feagin’s alleged act of seriously disfiguring the victim’s eye. Feagin argues that there was no evidence that the victim’s eye was seriously disfigured as alleged. We disagree.
“A person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another ... by seriously disfiguring his or her body or a member thereof.” OCGA § 16-5-24 (a). Although OCGA § 16-5-24 does not define the term “serious disfiguring,” this Court has ruled that the crime of aggravated battery does not require that the victim’s disfigurement be permanent; however, the injury must be more severe than a mere visible or superficial wound. See Williams v. State,
The trial evidence in this case included photographs depicting the victim’s severely swollen and bruised left eye, along with testimony that the victim’s eye was swollen shut and her eye socket was fractured. The victim’s injuries required treatment with narcotic pain medications and an antibiotic. The victim’s eye injuries took several weeks to heal. The jury was authorized to find that the victim’s severely swollen, bruised eye and eye socket fracture constituted serious disfigurement. See Ferrell, supra,
2. Feagin also challenges the sufficiency of the evidence supporting his criminal trespass conviction. He argues that there was no evidence that he broke the victim’s cell phone as alleged in the indictment. His argument is without merit.
OCGA § 16-7-21 (a) pertinently provides that “[a] person commits the offense of criminal trespass when he or she intentionally damages any property of another without
3. Feagin also contends that the evidence was insufficient to support his conviction for hindering an emergency telephone call. We agree, and therefore, Feagin’s conviction of this charge must be reversed.
A person commits the misdemeanor offense of hindering an emergency telephone call when he
physically obstructs, prevents, or hinders another person with intent to cause or allow physical harm or injury to another person from making or completing a 9-1-1 telephone call or a call to any law enforcement agency to request police protection or to report the commission of a crime [.]
OCGA § 16-10-24.3. Significantly, the victim testified that when she grabbed her cell phone, she was not thinking of or attempting to call 9-1-1. Rather, the victim claimed that she picked up the cell phone during the argument because she was looking for something to throw.
The State nevertheless argues that Feagin’s conviction of this offense was proper based upon the responding officer’s testimony regarding the victim’s prior report that she had grabbed the cell phone to call 9-1-1 when Feagin took the cell phone out of her hand and broke it in half. The State asserts that evidence of the victim’s prior inconsistent statement to the responding officer was substantive evidence pursuant to Gibbons v. State,
Notably, a proper evidentiary foundation must be laid before a witness’s prior inconsistent statement can be admitted. See Edmond v. State,
Here, however, [the victim] testified before the issue of her alleged statement to [the responding officer] had been raised, and she was never questioned with the specificity necessary to establish the foundation for admission of any such statement.Thus, the trial court erred in admitting the testimony at issue as a prior inconsistent statement.
(Punctuation and footnote omitted.) Edmond, supra,
Thus, the victim’s prior statement to the responding officer was inadmissible hearsay, which is wholly without probative value and cannot be considered in determining the sufficiency of the evidence, even if introduced without objection. See Patterson v. State,
Judgment affirmed in part and reversed in part.
Notes
Although the victim also stated that she grabbed her cell phone “just in case [she] did need to call someone,” she testified that she was not thinking about calling 9-1-1. There was no evidence that the victim had attempted to make an emergency call to police during the argument, and in fact, the victim subsequently placed her cell phone down on the kitchen counter.