Lead Opinion
Fоllowing a physical altercation at a local sports bar, the State charged Shawn Harlacher, via indictment, with one count of criminal attempt to commit aggravated assault with a deadly weapon. Harlacher filed a motion for a general demurrer, arguing that it is impossible to attempt to commit an aggravated assault, and thus, the indictment failed to allege any criminal offense under the laws of the State of Georgia. The trial court granted Harlacher’s demurrer, and the State now appeals. For the rеasons set forth infra, we affirm.
The record, as alleged by the State, shows that on August 24, 2014, Harlacher and the victim were patronizing a local sports pub when they became involved in a verbal altercation, which then escalated into a physical fight. By all acсounts, during the fight, the victim broke Harlacher’s nose, and when the fight was over, the victim turned to go back into the pub. As the victim walked away, Harlacher drew a handgun and pointed it at the victim’s head but did not fire. The victim never saw Harlacher’s gun, continued walking away, and the incident еnded without any further violence.
Subsequently, the State charged Harlacher, via indictment, with one count of criminal attempt to commit aggravated assault with a deadly weapon. Specifically, the indictment alleged that Harlacher
did knowingly and intentionally attеmpt to commit the crime of Aggravated Assault with a Deadly Weapon, in violation of Code Section 16-5-21... in that the said accused did attempt to place [the victim] in reasonable apprehension of immediately receiving a violent injury with a pistol, a deadly weapon and an object which when used offensively against a person is likely to result in serious bodily injury, by pointing said pistol at said [victim], an act which constitutes a substantial step toward the commission of said crime ....
On March 11, 2015, Harlacher filed a motion for a demurrer, arguing that assault is an attempt to commit battery and because “a person cannot be convicted of attempting to commit a crime that is itself an attempt to commit a crime,” the indictment failed to charge
At the outset, we note that an accused may challenge the sufficiency of an indictment by filing a general or special demurrer.
if an accused would be guilty of the crime charged if the facts as alleged in the indictment are taken as true, then the indictment is suffiсient to withstand a general demurrer; however, if an accused can admit to all of the facts charged in the indictment and still be innocent of a crime, the indictment is insufficient and is subject to a general demurrer.5
Furthermore, this Court reviews a trial court’s ruling on a general or special demurrer de novo in order to determine “whether the allegations in the indictment are legally sufficient.”
The State contends that the trial court erred in granting Harlacher’s motion for а general demurrer. Specifically, the State argues that although, under OCGA § 16-5-20 (a) (1), simple assault — which
Our analysis, of course, begins with an examination of the relevant statutes, and thus, we note that the fundamental rules of statutory construction require us to “construe the statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage.”
[i]n our search for the meaning of a particular statutory provision, we look not only to the words of that provision, but we considеr its legal context as well. After all, context is the primary determinant of meaning. For context, we may look to the other provisions of the same statute, the structure and history of the whole statute, and the other law — constitutional, statutory, and common law alike — thаt forms the legal background of the statutory provision in question.9
This is what we mean when we speak of discerning “the intent of the legislature,”
With regard to assault, OCGA § 16-5-20 (a) (1) provides: “A person commits the offense of simple assault when he or she . . . [a]ttempts to commit a violent injury to the person of another ...” Thus, under the plain language of this statutory provision, simple assault is, in essence, an attempted battery with the focus on the intention of the perpetrator to injure the victim.
In stark contrast, OCGA § 16-5-20 (a) (2) provides: “A person commits the offense of simple assault when he or she... [c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury ....” Accordingly, the focus of a reasonable apprehension of harm type of simple assault, under OCGA § 16-5-20 (a) (2), is “on the apprehension of the victim.”
Given these differences in the elements of the respective offenses, and more specifically the fact that, unlike OCGA § 16-5-20 (a) (1), the plain meaning of OCGA § 16-5-20 (a) (2) does not include “attempt” as an element of the offense, it would indeed seem feasible to convict an accused of attempting а reasonable-apprehension-of-harm type of assault.
Judgment affirmed.
Notes
See OCGA § 5-7-1 (a) (1) (“An appeal may be taken by and on behalf of the State of Georgia from the superior courts, state courts . .. and such other courts from which a direct appeal is authorized to the Court of Appeals and the Supreme Court in criminal cases... [f]rom an order, decision, or judgment setting aside or dismissing any indictment, accusation ... or any count thereof. . ..”).
See State v. Corhen,
Id. at 496-97 (punctuation omitted); see also Dunbar v. State,
OCGA § 17-7-54 (a); see also Corhen,
Corhen,
Sallee v. State,
Algren v. State,
Algren,
Loudermilk,
State v. Mussman,
See Loudermilk,
See former OCGA § 16-5-21 (b) (2) (2014). In 2015, subsection (m) was slightly modified, but that modification bears no relevance to this appeal. See Ga. L. 2015, p. 422, § 5-19.
See Maynor v. State,
Porter v. State,
Maynor,
See State v. Godsey,
See Perez v. State,
See OCGA § 16-4-1; see generally Anthony v. State,
See Ga. Const. art. VI, § VI, ¶ VI (“The decisions of the Supreme Court shall bind all other courts as precedents.”); State v. Smith,
Rhodes v. State,
See supra note 20.
Concurrence Opinion
concurring specially.
I concur in the judgment and in all of its analysis — except the text supported by footnotes 10 and 11. That text, which I take to be incidental to the majority’s analysis, undertakes to explain “what we mean when we speak of discerning ‘the intent of the legislature.’ ”
“In all interpretations of statutes,” we are charged to “look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” OCGA § 1-3-1 (a). The majority does not cite OCGA § 1-3-1 (a), but as I understand the text supported by those footnotes, it purports to authoritatively construe and confine the principle set out in that statute.
But that principle was in our first official Code, was part of our law long before that, and can be traced back to Blackstone’s Commentaries on the Laws of England. See Everett v. Planters’ Bank,
No doubt much of what has been written over the centuries in the hundreds of Georgia appellate decisions citing that principle can fairly be reconciled with what the majority writes today. But I am not prepared to declare that all of it can. Nor am I prepared to broadly disapprove of any and all of those opinions that cannot be so reconciled — especially as many of them are opinions of our Supreme Court.