After a jury found Charles May guilty of aggravated assault in connection with an attack on his girlfriend, he was convicted and sentencеd to twenty years with ten to serve. On appeal, May argues that the evidence was insufficient, that the indictment against him was defеctive, that the trial court erred in admitting evidence of prior difficulties and in charging the jury, and that trial counsel was ineffective. We find no error and affirm.
On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. Reese v. State,
So viewed, the record shows that the victim and May, who had moved tо Walnut Street a few weeks before, were walking down the street toward the house they shared when they began to argue. May went into the house while the victim remained outside. May then came out of the house and advanced toward the victim, who baсked into the street and was almost hit by a car. Soon afterward, when May again came after the victim, she asked the garbage men in the area to call police. Finally, May approached the victim with a stick and tried to hit her. When the victim again retreated into the street, May knocked her down and brought his right foot down on her head three or four times until someone tоld him that the police were coming. A police officer coming around the corner at that moment saw May in the middle of the street stomping the victim repeatedly with his right leg. May was arrested on the spot, and told police later that day that hе had beaten the victim because she had disrespected him. The victim, who bled heavily at the scene, suffered a two-inch long laceration, brain hemorrhaging resulting in a stroke, and permanent brain injury.
The essential elements of aggravated assault are “(1) an assault on a person as defined in OCGA§ 16-5-20 and (2) [the]’use of a deadly weapon or an object which when used offensively against a person is likely to or actually does rеsult in serious bodily injury.” (Emphasis supplied.) Jay v. State,
did then and there assault [the victim] by hitting her in the face with his fist and knocking her down and stomping her on the head with his feet, said hands and feet, instrumentalities when used offensively against a person, [being] likely to or actually resulting] in serious bodily injury. . . .
When this indictment specified that May’s hands and feet “were likely to result in serious bodily injury,” it successfully charged him with aggravated assault. See Jay, supra (when indictment charged that defendant’s fists were likely to result in serious bodily injury, no rеference to deadly weapons was required). May having been properly charged, the evidence outlined above was sufficient to sustain his conviction. Jackson, supra.
2. May also argues that the trial court erred when it admitted his prior guilty plea for aggravated assault and other crimes concerning his 2001 pistol-whipping of the victim, and that the trial court’s limiting instruction was inadequate. We disagree.
The record shows that when the victim testified as to the 2001 incident, the trial court instructed the jury that the evidence was admissible “for the sole purpose of showing the defendant’s bent of mind . . . and the nature of the relationship between them. . . . The prior incidents are not direct evidence of what haрpened in the incident that’s in the indictment.” On direct inquiry, May agreed that this instruction was sufficient. Later on the same day, May took the stаnd and raised the subject of his probation for the 2001 incident. The State then introduced a certified copy of his plea аnd conviction.
As counsel agreed at the hearing on May’s motion for new trial, evidence of prior difficulties between him and the victim was admissible to show his motive, intent, and bent of mind. See Williams v. State,
3. Mаy also argues that the trial court erred when it delivered the instruction to the jury that “every person is presumed to he of sound mind аnd discretion, but the presumption may be rebutted.” See OCGA § 16-2-3. The charge recited the pattern charge on presumption wоrd for word. See Council of Superior Court Judges, Suggested Pattern Jury Instructions, Vol. II (3d ed. 2006), § 1.41.12, p. 34; Pollard v. State,
4. Finally, May argues in passing that counsel was ineffective when he failed to demur to the indictment and to request an additional limiting instruction concerning the 2001 incident at the time the certified copy of the conviction was introduced. We disagree.
“To prove an ineffective assistance of сounsel claim, [a] defendant must show that trial counsel performed deficiently and that the result of the trial would have been diffеrent hut for the deficiency.” Fargason v. State,
As we have suggested above, counsel’s failure to demur to the indictment and to request an additional limiting instructiоn concerning the 2001 incident could not have amounted to deficient performance, since the acts, had they oсcurred, would have been unavailing. See Harris v. State,
For all these reasons, the trial court did not err when it denied May’s motion for new trial.
Judgment affirmed.