THOMPSON v. THE STATE
Court of Appeals of Georgia
Decided March 30, 2015
Reconsideration denied April 14, 2015
Long D. Vo, Cara E. Clark, for appellant. Herbert E. Franklin, Jr., District Attorney, Kay Baker, Assistant District Attorney, for appellee.
(2010).11 “Value,” according to the statute, “means the actual retail price of the property at the time and place of the offense,” and “[t]he unaltered price tag or other marking on property, or duly identified photographs thereof, shall be prima-facie evidence of value and ownership of the property.”
The State did not introduce the price tags for the stolen camera and game console, photographs of the tags, or testimony regarding the prices from an employee at the store with personal knowledge regarding pricing. Instead, the sole evidence of the value of the stolen items introduced by the State was the Shoplifting Report. Consequently, the improper admission of the Shoplifting Report contributed to Thompson‘s felony shoplifting conviction, and we should reverse his conviction and sentence on that count of the indictment.
I am authorized to state that Judge Miller joins in this dissent.
PATTERSON v. THE STATE.
A14A2208
Court of Appeals of Georgia
Decided March 30, 2015
Reconsideration denied April 14, 2015
770 SE2d 62
G. Brandon Sparks, Michael P. Manfredi, for appellant. Herbert M. Poston, Jr., District Attorney, Susan L. Franklin, Assistant District Attorney, for appellee.
Following a trial by jury, Ricky Patterson was convicted of several crimes arising out of driving his Chevrolet van into Nathaniel Silvers and pinning Silvers between the van and a mobile home. Patterson appeals following the denial of his motion for new trial, asserting only that the trial court erred by refusing to give a charge on three lesser included offenses of aggravated assault as charged in Count 4 of the special presentment. Patterson does not challenge the sufficiency of the evidence.
The evidence presented at trial shows that on November 1, 2011, Patterson‘s live-in girlfriend, Wanda Bartley, and her adult son Silvers were at Patterson‘s mobile home, that the two had been working on the trailer that afternoon, and that Bartley and Silvers had been drinking beer. Bartley and Silvers were sitting by a fire outside the home when Patterson returned from work in his van and parked the van facing toward, and about 20 feet from, one end of the mobile home. Patterson and Bartley almost immediately began arguing about Silvers being there to help Bartley work on the home. Patterson went into the home, took a roast out of the oven and threw it out the back door; Patterson also threw a cell phone through a glass gun cabinet. Bartley went inside, the couple continued to argue, and Bartley asked Patterson to leave. Silvers defended his mother and also urged Patterson to leave. At some point Patterson went outside and got into his van; Bartley was outside near the fire, and Silvers was on the porch telling Patterson to leave. Then, at the moment that Silvers walked off the porch near the same end of the trailer as the van, Patterson shifted the van into low gear, revved the engine, and drove rapidly and directly toward the end of the mobile home and Silvers. Silvers‘s path off the porch took him toward the van initially; Silvers then turned away from the trailer briefly but reversed and tried to run past the end of the trailer as the van approached. The van struck Silvers and pinned him to the side of the trailer, resulting in internal injuries that required a multi-day stay in the hospital; the trailer sustained a dent from Silvers‘s body being pinned against it.
Silvers later signed a statement stating that he had taken no part in the argument, that he and Patterson had a good relationship, that Silvers thought the incident was not intentional, that Patterson appeared to lose control of the van, and that after the incident Patterson asked Silvers if he was okay. Silvers also testified that the incident was an “accident,” that he was not arguing with Patterson that day, that he did not remember getting hit, and that he had no time to react before being struck. But a fellow detainee at the county jail testified that Patterson stated that he had struck Silvers intentionally. And both Silvers and Bartley told a responding officer that the act was “intentional.”
Patterson later was indicted. In the first four counts, Patterson was charged with four forms of aggravated assault: (Count 1) aggravated assault with intent to commit murder by attempting to commit a violent injury on the victim; (Count 2) aggravated assault with intent to commit murder by placing the
With regard to Count 4, Patterson filed written requests to charge the jury on simple assault, reckless conduct, and reckless driving as lesser included offenses of aggravated assault as charged in that count.2 The trial court denied the requests and counsel objected to the ruling. At the conclusion of the trial, the jury returned a verdict. With regard to the four counts of aggravated assault, the jury found Patterson guilty on the lesser included offense of simple assault on Counts 1 and 2, not guilty on Count 3, but guilty on Count 4. The jury also found Patterson not guilty on Count 5 (aggravated battery) but guilty on Count 7 (disorderly conduct). Counts 1 and 2 merged into Count 4 for the purpose of sentencing, and Patterson was sentenced to 20 years on Count 4 and 12 months on Count 7 to run concurrent with Count 4. On appeal, Patterson contends the trial court erred by refusing to charge the jury on three requested lesser included offenses for Count 4: simple assault, reckless conduct, and reckless driving.
1. Georgia law provides that “[a]n accused may be convicted of a crime included in a crime charged in the indictment or accusation.”
A crime is so included when: (1) It 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) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.
[W]here the state‘s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense. . . . Where a case contains some evidence, no matter how slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense.
Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994) (citations omitted; emphasis in original); see also Mobley v. State, 279 Ga. App. 476, 479 (2) (631 SE2d 491) (2006) (same). The question before us, therefore, is whether the evidence established only the greater offense as charged in Count 4 or whether some evidence was presented to establish any of the three lesser offenses requested by Patterson.
he did commit an act which placed another person, to wit: Nathaniel Lane Silvers, in reasonable apprehension of immediately receiving a violent injury, said assault having been committed with an object which when used offensively against a person, is likely to and actually does result in serious bodily injury, by driving a motor vehicle in the direction of Nathaniel Silvers, striking Mr. Silvers with said vehicle, and pinning him up against a mobile home with said vehicle.
Thus, the charge specifies the two elements of an aggravated assault required by
The indictment also shows that the State charged Patterson with the second statutory aggravator, i.e., where a person “assaults . . . [w]ith a deadly weapon or with any object, device or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury[.]”
Accordingly, based on Count 4 as charged, the State was required to show that Patterson intended to drive his van in the direction of Silvers, that Silvers was placed in reasonable apprehension of injury, and that the van was an object that when used offensively against a person, was likely to or actually did result in serious bodily injury. The State
(a) Patterson contends the trial court erred by refusing to give his requested charge of simple assault as to Count 4. He largely contends that he was entitled to the charge because the evidence showed a less culpable mental state than required to establish Count 4 as charged. See
Simple assault is necessarily a lesser included offense of the greater crime of aggravated assault and is an essential part thereof. Thus, any defendant who has committed the greater offense of aggravated assault has necessarily committed the lesser offense of simple assault. But this does not mean that the trial court should authorize the jury to enter a verdict for the lesser crime in every case.
Dickerson v. State, 207 Ga. App. 241 (1) (427 SE2d 591) (1993) (citation and punctuation omitted). Rather, where a person is charged with a reasonable-apprehension-of-injury assault and the indictment charges6 and the undisputed evidence shows that the assault was committed with the second aggravating factor listed in
Even if there was an issue of fact regarding whether Silvers was in reasonable apprehension of immediately receiving a violent injury, it is undisputed that Patterson hit Silvers while driving his van toward Silvers from only 20 or so feet away after revving his engine and that his action resulted in serious bodily injury to Silvers. Accordingly, Patterson was either guilty of the greater crime of aggravated assault as charged in Count 4 or not guilty at all. Thus, the evidence did not support an instruction on simple assault as a lesser included offense of aggravated assault.7
Patterson offers three theories for why he was entitled to a charge on simple assault. He first argues that the evidence could show that he lacked the general intent to cause an injury even though he intentionally drove in a manner that placed Silvers in reasonable apprehension of injury. As shown above, however, the State was not required to show an intent to injure but only that Patterson‘s driving placed Silvers in reasonable apprehension of injury. Thus, Patterson either committed the crime as charged or committed no charged crime.
Second, Patterson argues that he was entitled to a charge on simple assault because the evidence could have shown that Patterson drove recklessly but never intended to cause any injury and that the law allows conviction of reasonable-apprehension-of-injury assault based on reckless conduct, citing one statement in Flores v. State, 277 Ga. 780, 784 (3) (596 SE2d 114) (2004) (“an assault conviction under
Finally, Patterson argues that there was evidence upon which the jury could conclude that the van was not used in a way likely to cause serious bodily injury. Patterson relies on Cordis v. State, 236 Ga. App. 629 (513 SE2d 45) (1999), in which this Court held that the defendant was entitled to a charge on simple assault as a lesser included offense of aggravated assault in a case where the defendant “poked [an officer] with a piece of broken plexiglass,” thereby causing “small lacerations [that] required no bandaging or other treatment.” Id. at 630. Thus in Cordis, whether the assault was committed with a deadly weapon “was clearly disputed.” Id. at 630 (1). Here, there was no such dispute over the object (the van), which in fact caused serious injuries; injuries requiring a multi-day hospital stay are obviously serious. We agree with the trial court‘s conclusion in its order denying Patterson‘s motion for new trial that “there was no evidence on the record, however slight, to suggest that the van was not intentionally used as an object, which when used offensively against a person, is likely to or actually does result in serious bodily injury.” (Punctuation omitted.) See Davis, 308 Ga. App. at 17 (5) (b) (counsel not deficient in failing to request a charge on simple assault where there was no evidence that defendant did not use screwdriver in an offensive manner, which was likely to result in serious bodily injury).
We therefore conclude that the trial court did not err by refusing to charge the jury on simple assault as a lesser included offense of Count 4 as charged.
(b) Patterson contends the trial court erred by refusing to give his requested charge of reckless conduct8 as to Count 4. He essentially argues that he was entitled to the charge because the evidence showed a less culpable mental state than required to establish Count 4 as charged. See
But as with simple assault, because the State charged Patterson with aggravated assault by placing another in reasonable apprehension of immediately receiving a violent injury, a charge on reckless conduct was not warranted. Craft v. State, 309 Ga. App. 698, 707 (7) (a) (710 SE2d 891) (2011). In Craft, the defendant shot a gun into the air several times, causing one bullet to go into a nearby apartment where the residents were cowering in fear as a result of the gunfire. As explained in that decision, a charge on reckless conduct was not warranted “because evidence that a defendant fired a gun into the air, and thereby placed another in reasonable apprehension of immediately receiving a violent injury, demonstrates the intent required for aggravated assault, not the criminal negligence required for reckless conduct.” Id. (footnote omitted).
The facts in this case are undisputed that Patterson drove his van and struck and injured Silvers. Thus, under Count 4 as charged, if Silvers reasonably feared an immediate violent injury from Patterson driving the van, the crime of aggravated assault occurred, not reckless conduct. Craft, 309 Ga. App. at 707; see also Shaw v. State, 238 Ga. App. 757, 759 (1) (519 SE2d 486) (1999) (“[A] reckless conduct charge is not warranted for an aggravated assault committed by placing another in reasonable apprehension of immediately receiving a violent injury. If the victim reasonably fears an immediate violent injury from a firearm, the aggravated assault has occurred.“) (citations omitted). Accordingly, a charge on reckless conduct was not warranted.
(c) Patterson contends the trial court erred by refusing to give his requested
The same analysis applicable to reckless conduct applies to Patterson‘s contention that the trial court erred by failing to give a charge on reckless driving because the evidence showed a less culpable mental state. Like reckless conduct, reckless driving requires an act of criminal negligence, rather than an intentional act. Young v. State, 294 Ga. App. 227, 230 (669 SE2d 407) (2008). Count 4 only required the State to prove that Patterson had the general intent to drive the van. In this case, therefore, reckless driving would not show a less culpable mental state than that which was required to establish the commission of the crime as charged. See
For all of the above reasons, we hold that the trial court did not err by refusing to charge simple assault, reckless conduct, and reckless driving as lesser included offenses of Count 4 as charged.
Judgment affirmed. Barnes, P. J., and Boggs, J., concur.
DECIDED MARCH 30, 2015 —
RECONSIDERATION DENIED APRIL 14, 2015 —
Notes
[W]here the defendant is charged by a narrowly drawn indictment with a specific crime it is not within the power of the judge or the jury to interpret the facts as presented at trial to support an alternative, separate offense. Criminal indictments are not deemed amendable to conform to the evidence.State v. Hightower, 252 Ga. 220, 223 (312 SE2d 610) (1984) (citation omitted).
A person who causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation is guilty of a misdemeanor.