A jury found Anthony Jackson guilty of two counts of aggravated assault, two counts of aggravated battery, and burglary.
1. Jackson challenges the sufficiency of the evidence to convict him of the charged offenses. In reviewing whether the evidence was sufficient,
we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
(Citations and punctuation omitted.) Sidner v. State,
Viewed in this manner, the evidence showed that Jackson and the female victim, his former girlfriend, had been involved in an “off and on” intimate relationship lasting several years, had a daughter together, and lived with one another for a period of time at the victim’s apartment in Chatham County. Their relationship was tumultuous and marked by episodes of physical violence. In October 2005, the girlfriend broke up with Jackson for the last time and told him to stay out of her apartment, and he moved back into his mother’s house. Because she had ended her relationship with Jackson, the girlfriend
In the early morning hours of January 15,2006, Jackson’s former girlfriend and her new boyfriend were spending the night at her apartment. The girlfriend and her boyfriend had been romantically involved previously, and Jackson and the boyfriend knew of one another.
At the time of the attack at issue in this case, the girlfriend and her boyfriend were together in bed in the upstairs bedroom. The girlfriend was watching television, and her boyfriend was asleep beside her. Jackson suddenly entered the bedroom with a steak knife in his hand that had been retrieved from the downstairs kitchen. He approached the bed “real fast” with the knife. The boyfriend awoke when he heard his girlfriend say in a frightened voice to Jackson, “How the f**k you get in my house?” The girlfriend tried to grab the knife from Jackson, but he cut her hand. When the boyfriend sat up in bed, Jackson stabbed him in the spine. As Jackson tried to pull the knife out, the blade broke off in the boyfriend’s back. Jackson then reached for a baseball bat that the girlfriend kept by her bed for personal protection, and the boyfriend began “tussling” with him over it. During the struggle over the bat, the boyfriend fell from the bed onto the floor, and Jackson fled from the bedroom. Unable to get up from the floor, the boyfriend realized that he could not feel his legs.
After Jackson fled from the bedroom, his former girlfriend headed downstairs to call the police on the land-line in the kitchen. Upon retrieving another steak knife from the kitchen, Jackson attacked her on the stairway. While calling her a “bitch” and a “whore,” Jackson cut his former girlfriend with the knife on the back of her head, on the side of her face, and on her shoulder and back. Jackson slashed her across the nose with the knife and stabbed her in the stomach. Jackson eventually stopped striking his former girlfriend with the knife and fled from the apartment.
The girlfriend ran outside and had a neighbor call 911. After the police and emergency medical technicians arrived at the scene, she and her boyfriend were taken to the hospital. Her boyfriend was hospitalized for over a month after the attack. He was paralyzed as a result of his spinal cord injury. The girlfriend received staples and stitches for her cuts and stab wounds, and she continues to bear scars on her body from the knife attack. After the attack, Jackson’s former girlfriend and her boyfriend got married and have remained married, although his paralysis has made their marriage difficult over the years.
Based upon his entering and remaining in the apartment and his stabbing of his former girlfriend and her new boyfriend, Jackson was charged and tried before a jury on two counts of aggravated assault, two counts of aggravated battery, and burglary.
When viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Jackson guilty beyond a reasonable doubt of the two counts of aggravated battery and burglary for which
Jackson, however, argues that there was insufficient evidence to convict him of aggravated battery for stabbing his former girlfriend because her wounds were “superficial” and no “medical evidence was presented by trained physicians to explain the injury.” Consequently, Jackson contends, there was insufficient evidence that the girlfriend suffered serious disfigurement, one of the elements of aggravated battery as charged in this case. See OCGA § 16-5-24 (a) (“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.”).
We are unpersuaded because the evidence showed that Jackson’s former girlfriend bore scars as a result of her stab wounds. Whether the scars rose to the level of serious disfigurement was a factual issue for the jury to resolve. See Grace v. State,
2. Jackson maintains that the burglary count of the indictment was defective because the offense was misnamed as “aggravated battery.” Specifically, Count 5 of the indictment stated:
COUNT [FIVE]: BUGLARY [sic]
(OCGA § 16-7-1)
And the jurors aforesaid, in the name and behalf of the citizens of Georgia, further charge and accuse ANTHONY JACKSON with having committed the offense of AGGRAVATED BATTERY [sic], for that the said ANTHONY JACKSON, in the County of Chatham and State of Georgia, did knowingly, intentionally, unlawfully and without authority, on or about January 15, 2006, enter or remain within the dwelling house of another, to wit: [his former girlfriend’s apartment], with the intent to commit a felony, to wit: aggravated assault, therein, contrary to the laws of the State of Georgia, the good order, peace and dignity thereof.
According to Jackson, the mislabeling of the offense as “aggravated battery” in the body of the indictment required the trial court to grant his motion to quash Count 5.
We disagree. As an initial matter, we note that “[a]n accused may challenge the sufficiency of an indictment by filing a general or special demurrer. A general demurrer challenges the sufficiency of the substance of the indictment, whereas a special demurrer challenges the sufficiency of the form of the indictment.” (Citation, punctuation and emphasis omitted.) State v. Corhen,
While Jackson did not file a timely special demurrer and thus waived his right to a perfect indictment, see Jones v. State,
In determining the sufficiency of an indictment to withstand a general demurrer, the following test is applied: If all the facts which the indictment charges can be admitted, and still the accused be innocent, the indictment is bad; but if, taking the facts alleged as premised, the guilt of the accused follows as a legal conclusion, the indictment is good. An indictment which charges the offense in the language of the defining statute and describes the acts constituting the offense sufficiently to put the defendant on notice of the offense with which he is charged survives a general demurrer.
(Footnote omitted.) Pulliam v. State,
The burglary count of the indictment was sufficient to withstand a general demurrer. Although the offense was mislabeled as “aggravated battery” in the body of Count 5, “it is immaterial what the offense is called, if the averments of the presentment are such as to describe an offense against the laws of the [S]tate. It is not the name given to the bill which characterizes it, but the description in the averments of the indictment.” (Citation and punctuation omitted.) Williams v. State,
3. Jackson also contends that Count 5 of the indictment was defective because burglary was misspelled as “buglary” in the subject heading. Yet, at the hearing on the motion for new trial, Jackson conceded that the misspelling was not a ground for reversal. Because Jackson abandoned this enumeration of error at the hearing, it is not properly preserved for appellate review. See Donald v. State,
4. Jackson argues that the trial court erred by prohibiting him from impeaching the boyfriend with his guilty plea for possession of more than an ounce of marijuana. The boyfriend’s plea to the marijuana charge had been accepted under the First Offender Act, OCGA § 42-8-60 et seq., and he had completed his sentence and been discharged without an adjudication of guilt prior to the trial in this case.
[I]t is well settled that the first offender record of one who is currently serving a first offender sentence or of one who has successfully completed the first offender sentence may not be used to impeach the first offender on general credibility grounds (i.e., by establishing that the first offender has been convicted of a felony or crime of moral turpitude) because no adjudication of guilt has been entered.
(Citation and punctuation omitted.) Davis v. State,
Jackson sought to admit evidence of the boyfriend’s first offender guilty plea to impeach him on general credibility grounds, not to show bias, prejudice, or ulterior motive. Therefore, the trial court committed no error in prohibiting him from using the plea for impeachment. See Davis,
5. Jackson asserts that the trial court made several errors in its final charge to the jury. We will address each purported error separately.
(a) The trial court declined to charge the jury on the defense of justification, and Jackson contends that this was error. Under Georgia law, “[a] person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself... against such other’s imminent use of unlawful force[.]”QCGA § 16-3-21 (a). “[I]t is not error to refuse a justification charge where there is no evidence to support it.” Reese v. State,
(b) The trial court charged the jury with the definition of an “offensive weapon” drawn from Section 2.60.31 of the Suggested Pattern Jury Instructions, Vol. II: Criminal Cases. Specifically, the trial court charged the jury:
An offensive weapon is any object, device, or instrument that, when used offensively against a person, is likely to or gives the appearance of being likely to or actually does result in serious bodily injury. The character of a weapon may be established by direct or circumstantial evidence.
Jackson contends that the trial court erred in giving this charge defining an “offensive weapon” because the charge is intended for armed robbery cases, where use of an “offensive weapon” is an element of the offense. See OCGA § 16-8-41 (a).
We do not agree. As an initial matter, after the final jury charge, the State made the trial court aware that the “offensive weapon” definition had mistakenly been included
Nevertheless, regardless of the lack of preservation in the court below, we must review the trial court’s charge on the definition of “offensive weapon” to determine whether it constituted plain error, given that Jackson has properly enumerated and argued the error on appeal. See OCGA § 17-8-58 (b); State v. Kelly,
Irrespective of whether any of the other prongs were satisfied, there is no plain error because Jackson cannot show that the error likely affected the outcome of the proceedings. Jackson was charged and tried for having committed aggravated assault “with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” (Emphasis supplied.) OCGA § 16-5-21 (a) (2). He also was charged and tried for having committed burglary by entering or remaining in his former girlfriend’s apartment with the intent to commit aggravated assault. And we have noted that the definition of “offensive weapon” applicable to armed robbery “mirrors very closely” the definition of aggravated assault set forth in OCGA § 16-5-21 (a) (2), and that an “offensive weapon” under the armed robbery statute “necessarily wouldfall within the category of weapons described in OCGA § 16-5-21 (a) (2).” Taylor v. State,
(c) Count 4 of the indictment charged Jackson with aggravated battery. In its final charge, the trial court accurately read Count 4, but prefaced its reading of that count by mistakenly labeling the crime as aggravated assault:
Aggravated assault, count four. And the jurors aforesaid in the name and behalf of the citizens of Georgia further charge and accuse Anthony Jackson with having committed the offense of aggravated battery. For that the said Anthony Jackson in the County of Chatham in the State of Georgia did knowingly, intentionally, and unlawfully on or about January 15th, 2006 maliciously cause bodily harm to another, towit [his former girlfriend], by seriously disfiguring her body by repeatedly slashing or stabbing her with a knife, contrary to the laws of the State of Georgia, the good order, peace, and dignity thereof.
Jackson argues that by initially referring to Count 4 as an aggravated assault count rather than an aggravated battery count, the trial court likely confused the jurors, justifying a new trial.
Again, we disagree. “The general rule is that, a mere verbal inaccuracy in a charge, which results from a palpable slip of the tongue, and clearly could not have misled or confused the jury is not reversible error.” (Citation and punctuation omitted.) Arthur v. Walker,
6. Lastly, Jackson contends that his trial counsel was ineffective in several respects.
To prevail on a claim of ineffective assistance, appellant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. We need not address both the deficient performance and prejudice prongs of the test if the defendant has made an insufficient showing on either prong.
(Citation and punctuation omitted.) Ledford v. State,
(a) Jackson contends that his trial counsel was ineffective for failing to file a timely special demurrer challenging the form of the burglary count of the indictment.
To succeed on his ineffective assistance claim, [Jackson] was required to show that his trial counsel’s failure to specially demur materially impacted his ability to present a defense, thereby creating a reasonable probability that counsel’s deficiency changed the outcome of the case.
(Citation and punctuation omitted.) Lewis v. State,
Here, the evidence of record fails to establish that Jackson was unable to present a defense to the burglary count as a result of the imperfections in the indictment identified supra in Divisions 2 and 3. Furthermore, as pointed out above, even if Jackson’s trial counsel had filed a timely special demurrer, it would not have prevented the State from reindicting and trying him for burglary. Accordingly, Jackson has failed to show that he was prejudiced by his trial counsel’s failure to file a timely special demurrer. See Wallace v. State,
(b) Jackson also argues that his trial counsel was ineffective for failing to object to the trial court’s charge on the definition of “offensive weapon.” However, as explained supra in Division 5 (b), the giving of the charge did not affect the outcome of the proceedings, and, therefore, Jackson cannot show that he was prejudiced by his counsel’s alleged deficiency.
(c) Additionally, Jackson asserts that his trial counsel was ineffective for failing to encourage him to testify on his own behalf to support a defense of justification and right of habitation. At the hearing on Jackson’s motion for new trial, his trial counsel testified that he advised Jackson not to testify because he believed that “putting him on the witness stand could be the worst thing that [he could] do,” given that the State would likely impeach Jackson with his five
(d) Jackson further maintains that his trial counsel was ineffective for failing to request a jury charge on common law marriage. But “trial counsel cannot be faulted for failing to request a jury charge that was not authorized by the evidence,” Jones v. State,
(e) Finally, Jackson contends that his trial counsel was ineffective for failing to object to the boyfriend’s sister giving victim impact testimony during the sentencing hearing because the defense had no prior notice of her testimony. See OCGA§ 17-10-1.2 (a) (3) (authorizing the victim, the family of the victim, or other witnesses with personal knowledge of the crime to testify during the sentencing phase regarding “the impact of the crime on the victim, the family of the victim, or the community”). However, Jackson has failed to explain how the sister’s testimony during sentencing prejudiced him, given that the trial court had already heard the boyfriend’s testimony that he had been hospitalized for over a month as a result of the knife attack, that the attack had paralyzed him, that he could not live with his wife (Jackson’s former girlfriend) because her Section 8 housing could not accommodate his disability, and that his only income now is social security disability payments. Because Jackson cannot establish prejudice, he cannot succeed on his ineffective assistance claim.
Judgment affirmed.
Notes
Jackson was previously tried and convicted of the same offenses, but his prior conviction was reversed on appeal as a result of improper witness testimony about his criminal history. See Jackson v. State,
Jackson and the boyfriend had known each other for approximately 15 to 20 years but were not friends. Both men had fathered children with the same woman before they became involved with the female victim in this case.
As noted supra in footnote 1, this was the second jury trial. In the first trial, Jackson was acquitted of armed robbery and two additional counts of aggravated assault.
We need not address the sufficiency of the evidence as to the merged aggravated assault counts, given that the trial court did not enter judgment on them. See Mays v. State,
Former OCGA § 16-7-1 (a), applicable in this case, provides in relevant part: “A person commits the offense of burglary in the first degree when, without authority and with the intent to commit a felony or theft therein, he or she enters or remains within [the] dwelling house of another . . . .”
Citing to OCGA § 24-9-84.1 (c) (1), Jackson contends that a witness should be subject to impeachment despite a successful discharge under the First Offender Act, if the witness was “convicted of a subsequent crime that was punishable by death or imprisonment for one year or more,” as was the boyfriend, who later pled guilty to another drug charge. We disagree because OCGA § 24-9-84.1 (c) (1) is inapposite. By its plain terms, that statutory subsection applies to a “conviction [that] has been the subject of a pardon or annulment.” (Emphasis supplied.) OCGA§ 24-9-84.1 (c) (1). In contrast, a defendant who successfully completes a first offender sentence cannot he said to have had a criminal conviction, given that there was never an adjudication of guilt. See OCGA § 42-8-62 (a); Priest v. State,
OCGA § 16-8-41 (a) provides in relevant part: “A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.”
As noted supra in footnote 3, Jackson was acquitted of armed robbery in the first trial.
OCGA§ 17-8-58 (a) applies to all trials occurring on or after July 1,2007. See Ga. L. 2007, p. 595, § 5.
We also note that the “offensive weapon” charge did not affect Jackson’s aggravated battery conviction, given that the definition of aggravated battery does not refer to use of a “weapon” or to an object, device, or instrument used in an “offensive” manner. See OCGA § 16-5-24 (a).