Cross references. - Disfranchisement of persons for conviction of felony involving moral turpitude, Ga. Const. 1983, Art. II, Sec. I, Para. III and § 21-2-216 .
Applicability of title to financial institutions and their directors, officers, and others, § 7-1-841 .
Offenses giving rise to cancellation, suspension, or revocation of drivers' licenses, § 40-5-50 et seq.
Law reviews. - For article discussing history of criminal law in Georgia, and some of the problems facing the criminal law study commission created in 1961, see 15 Mercer L. Rev. 399 (1964). For article advocating the adoption of the proposed Criminal Code of 1968, see 3 Ga. St. B. J. 145 (1966). For article discussing the 1968 Criminal Code of Georgia, comparing pre-existing provisions of Georgia criminal law, see 5 Ga. St. B. J. 185 (1968). For article discussing developments in Georgia criminal law in 1976 to 1977, see 29 Mercer L. Rev. 55 (1977). For article, "Toward a Perspective on the Death Penalty Cases," see 27 Emory L.J. 469 (1978). For article surveying cases dealing with criminal law and criminal procedure from June 1, 1977 through May 1978, see 30 Mercer L. Rev. 27 (1978). For article surveying judicial developments in Georgia Criminal Law, see 31 Mercer L. Rev. 59 (1979). For annual survey of criminal law and procedure, see 35 Mercer L. Rev. 103 (1983). For article surveying criminal law and procedure in 1984-1985, see 37 Mercer L. Rev. 179 (1985). For annual survey of criminal law and procedure, see 39 Mercer L. Rev. 127 (1987). For annual survey of criminal law and procedure, see 40 Mercer L. Rev. 153 (1988). For annual survey on criminal law and procedure, see 42 Mercer L. Rev. 141 (1990). For annual survey of criminal law and procedure, see 43 Mercer L. Rev. 175 (1991). For annual survey on criminal law and procedure, see 44 Mercer L. Rev. 165 (1992). For annual survey on criminal law and procedure, see 45 Mercer L. Rev. 135 (1993). For annual survey on criminal law and procedure, see 46 Mercer L. Rev. 153 (1994). For annual survey on criminal law and procedure, see 48 Mercer L. Rev. 219 (1996). For annual survey discussing developments in criminal law, see 51 Mercer L. Rev. 209 (1999). For annual survey discussing developments in criminal law, see 52 Mercer L. Rev. 167 (2000). For article, "Criminal Law as Family Law," see 33 Ga. St. U. L. Rev. 285 (2017). For article, "From the Crime Scene to the Courtroom: The Future of Forensic Science Reform: Safety from Flawed Forensic Sciences Evidence," see 34 Ga. St. U. L. Rev. 1129 (2018). For article, "From the Crime Scene to the Courtroom: The Future of Forensic Science Reform: The First Amendment Case for Public Access to Secret Algorithms Used in Criminal Trials," see 34 Ga. St. U. L. Rev. 915 (2018). For article, "From the Crime Scene to the Courtroom: The Future of Forensic Science Reform: The UK Forensic Science Regulator: A Model for Forensic Science Regulation?," see 34 Ga. St. U. L. Rev. 945 (2018). For article, "From the Crime Scene to the Courtroom: The Future of Forensic Science Reform: Three Transformative Ideals to Build a Better Crime Lab," see 34 Ga. St. U. L. Rev. 1007 (2018). For article, "From the Crime Scene to the Courtroom: The Future of Forensic Science Reform: Deploying the Secret Police: The Use of Algorithms in the Criminal Justice System," see 34 Ga. St. U. L. Rev. 1073 (2018). For article, "From the Crime Scene to the Courtroom: The Future of Forensic Science Reform: Symposium Keynote Address: Uncovering Forensic Laws: An Outside Perspective," see 34 Ga. St. U. L. Rev. 1221 (2018). For article, "From the Crime Scene to the Courtroom: The Future of Forensic Science Reform: Safety from Flawed Forensic Sciences Evidence," see 34 Ga. St. U. L. Rev. 1129 (2018). For article, "Restoring Public Confidence in the Criminal Justice System: Policing Prosecutions When Prosecutors Prosecute Police," see 67 Emory L.J. 853 (2018). For article, "The Right to Two Criminal Defense Lawyers," see 69 Mercer L. Rev. 675 (2018). For article, "Participatory Defense: Humanizing the Accused and Ceding Control to the Client," see 69 Mercer L. Rev. 715 (2018). For article, "Racial Justice and Federal Habeas Corpus as Postconviction Relief from State Convictions," see 69 Mercer L. Rev. 453 (2018). For note, "Seen But Not Heard: An Argument for Granting Evidentiary Hearings to Weigh the Credibility of Recanted Testimony," see 46 Ga. L. Rev. 213 (2011).
RESEARCH REFERENCES
Investigating Particular Crimes, 2 Am. Jur. Trials 171.
CHAPTER 1 GENERAL PROVISIONS
Sec.
RESEARCH REFERENCES
Abandonment of Crime, 8 POF2d 231.
Attachment of Double Jeopardy, 13 POF2d 609, § 4.
ALR. - Employer's liability for assault, theft, or similar intentional wrong committed by employee at home or business of customer, 13 A.L.R.5th 217.
16-1-1. Short title.
This title shall be known and may be cited as the "Criminal Code of Georgia."
(Code 1933, § 26-101, enacted by Ga. L. 1968, p. 1249, § 1.)
16-1-2. Purposes of title.
The general purposes of this title are:
- To forbid and prevent conduct which unjustifiably and inexcusably causes or threatens substantial harm to individual or public interests;
- To give fair warning of the nature of the conduct forbidden and the sentence authorized upon conviction;
- To define that which constitutes each crime; and
-
To prescribe penalties which are proportionate to the seriousness of crimes and which permit recognition of differences in rehabilitation possibilities among individual criminals.
(Code 1933, § 26-102, enacted by Ga. L. 1968, p. 1249, § 1.)
JUDICIAL DECISIONS
Pregnant woman not guilty of transporting drugs to fetus. - Pregnant woman could not have reasonably known that she could have been prosecuted for delivering or distributing cocaine to her fetus since the fetus was not a "person" within the meaning of the relevant statute; thus, she did not receive the fair warning mandated by O.C.G.A. § 16-1-2 . State v. Luster, 204 Ga. App. 156 , 419 S.E.2d 32 , cert. denied, 204 Ga. App. 922 , 419 S.E.2d 32 (1992).
RESEARCH REFERENCES
Am. Jur. 2d. - 16A Am. Jur. 2d, Constitutional Law, § 427. 16B Am. Jur. 2d, Constitutional Law, § 972. 21 Am. Jur. 2d, Criminal Law, § 15 et seq.
C.J.S. - 22 C.J.S., Criminal Law: Substantive Principles, §§ 8, 23.
16-1-3. Definitions.
As used in this title, the term:
- "Affirmative defense" means, with respect to any affirmative defense authorized in this title, unless the state's evidence raises the issue invoking the alleged defense, the defendant must present evidence thereon to raise the issue. The enumeration in this title of some affirmative defenses shall not be construed as excluding the existence of others.
-
"Agency" means:
- When used with respect to the state government, any department, commission, committee, authority, board, or bureau thereof; and
- When used with respect to any political subdivision of the state government, any department, commission, committee, authority, board, or bureau thereof.
- "Another" means a person or persons other than the accused.
- "Conviction" includes a final judgment of conviction entered upon a verdict or finding of guilty of a crime or upon a plea of guilty.
- "Felony" means a crime punishable by death, by imprisonment for life, or by imprisonment for more than 12 months.
- "Forcible felony" means any felony which involves the use or threat of physical force or violence against any person.
- "Forcible misdemeanor" means any misdemeanor which involves the use or threat of physical force or violence against any person.
- "Government" means the United States, the state, any political subdivision thereof, or any agency of the foregoing.
- "Misdemeanor" and "misdemeanor of a high and aggravated nature" mean any crime other than a felony.
- "Owner" means a person who has a right to possession of property which is superior to that of a person who takes, uses, obtains, or withholds it from him and which the person taking, using, obtaining, or withholding is not privileged to infringe.
- "Peace officer" means any person who by virtue of his office or public employment is vested by law with a duty to maintain public order or to make arrests for offenses, whether that duty extends to all crimes or is limited to specific offenses.
- "Person" means an individual, a public or private corporation, an incorporated association, government, government agency, partnership, or unincorporated association.
- "Property" means anything of value, including but not limited to real estate, tangible and intangible personal property, contract rights, services, choses in action, and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, and electric or other power.
- "Prosecution" means all legal proceedings by which a person's liability for a crime is determined, commencing with the return of the indictment or the filing of the accusation, and including the final disposition of the case upon appeal.
- "Public place" means any place where the conduct involved may reasonably be expected to be viewed by people other than members of the actor's family or household.
- "Reasonable belief" means that the person concerned, acting as a reasonable man, believes that the described facts exist.
- "State" means the State of Georgia, all land and water in respect to which this state has either exclusive or concurrent jurisdiction, and the airspace above such land and water.
- "Without authority" means without legal right or privilege or without permission of a person legally entitled to withhold the right.
-
"Without his consent" means that a person whose concurrence is required has not, with knowledge of the essential facts, voluntarily yielded to the proposal of the accused or of another.
(Laws 1833, Cobb's 1851 Digest, p. 780; Code 1863, § 6; Code 1868, § 5; Code 1873, § 5; Code 1882, § 5; Penal Code 1895, § 2; Penal Code 1910, § 2; Code 1933, § 26-101; Code 1933, § 26-401, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1970, p. 236, § 1; Ga. L. 1973, p. 292, § 3; Ga. L. 1982, p. 3, § 16.)
Law reviews. - For article on the effect of nolo contendere plea on conviction, see 13 Ga. L. Rev. 723 (1979). For article, "Misdemeanor Sentencing in Georgia," see 7 Ga. St. B. J. 8 (2001). For note discussing the felony murder rule, and proposing legislation to place limitations on Georgia's felony murder statute, see 9 Ga. St. B. J. 462 (1973). For note, "I Tolled You I Had More Time!: The Future of Tolling Looks Bright for Crime Victims, as the Georgia Court of Appeals Establishes New Meaning of O.C.G.A. § 9-3-99 ," see 68 Mercer L. Rev. 557 (2017). For comment on Tant v. State, 123 Ga. App. 760 , 182 S.E.2d 502 (1971), advocating additional reform of Georgia's system of appellate review of criminal cases, see 9 Ga. St. B. J. 490 (1973).
JUDICIAL DECISIONS
ANALYSIS
General Consideration
Construction with more specific sentencing statute. - It was error to charge as to a minimum period of imprisonment under former Code 1933, § 26-401, where the statute under which defendant was charged with possession of secobarbital provided for both a fine and imprisonment "not to exceed two years" but did not provide a minimum term of imprisonment. Neal v. State, 130 Ga. App. 708 , 204 S.E.2d 451 (1974).
Term "another" in O.C.G.A. § 16-6-2(a) (sodomy) includes the accused person. Porter v. State, 168 Ga. App. 703 , 309 S.E.2d 919 (1983).
Term "person". - On remand from the U.S. Supreme Court, a class action suit filed by legal employees of a Georgia rug manufacturer, alleging state RICO violations based on the widespread hiring of illegal aliens in order to depress the hourly wages of its workers, survived a motion to dismiss for failure to state a claim; the federal appellate court deferred to the Supreme Court of Georgia holding that O.C.G.A. § 16-14-4 , when read in conjunction with O.C.G.A. §§ 1-3-3(14) and 16-1-3(12) , provided that "any person" could be sued under the Georgia RICO statute, including corporations such as the rug manufacturer. Williams v. Mohawk Indus., 465 F.3d 1277 (11th Cir. 2006), cert. denied, mot. denied, 549 U.S. 1260, 127 S. Ct. 1381 , 167 L. Ed. 2 d 174 (2007).
Term "property". - Taxpayers were not entitled to a theft loss under 26 U.S.C. § 165(e) with respect to a decline in value of publicly traded stock, as a theft by taking did not occur under O.C.G.A. § 16-8-2 because a corporation did not unlawfully take or appropriate any property from the taxpayer, and there was no evidence of any intention by the corporation or its executives to deprive the taxpayer of the property at issue. Although corporate stock, which was in the taxpayer's control after the taxpayer exercised the taxpayer's stock options, subsequently declined in value, there was no evidence that the corporate executives had any specific intent with regard to the taxpayer to take or appropriate the taxpayer's stock by devaluation or by any other means; rather, the goal of the corporation, including its later-convicted executives, was to increase the value of the stock, including any stock owned and controlled by the taxpayer. Schroerlucke v. United States, 100 Fed. Cl. 584 (Fed. Cl. 2011).
Term "prosecution". - Prosecution of the defendants for theft by taking and criminal trespass in Calhoun County, O.C.G.A. §§ 16-7-21 (b) and 16-8-2 , was not prohibited by double jeopardy based on their prior entry into a pretrial intervention program under O.C.G.A. § 15-18-80(b) following charges of theft by receiving stolen property, O.C.G.A. § 16-8-7(a) , in Irwin County because there was no prosecution in Irwin County within the meaning of O.C.G.A. §§ 16-1-3(14) and 16-1-8(a)(1)-(2). Palmer v. State, 341 Ga. App. 433 , 801 S.E.2d 300 (2017).
Recruiting services not included in definition of term of service. - Trial court erred in denying the agency summary judgment on the recruiter's civil RICO claims because the trial court erred by concluding the term services meant the definition of personal property under the RICO Act, O.C.G.A. § 16-14-1 et seq., specifically O.C.G.A. § 16-1-3 , as recruiting services were not included within the scope of the RICO Act. Five Star Athlete Mgmt., Inc. v. Davis, 355 Ga. App. 774 , 845 S.E.2d 754 (2020).
Fears must be those of a reasonable man, and not just the defendant's. Thus, where the defense was self-defense, the trial court did not err in excluding testimony, the purpose of which was to describe particular circumstances such as would excite the defendant's fears. Daniels v. State, 158 Ga. App. 476 , 282 S.E.2d 118 , rev'd on other grounds, 248 Ga. 591 , 285 S.E.2d 516 (1981).
"Conviction". - Entry of a guilty plea was not a judgment of conviction until sentence was imposed; therefore, a defendant who walked away from the courthouse after plea entry but before sentencing was not guilty of felony escape, but could be convicted only of misdemeanor escape. Dorsey v. State, 259 Ga. App. 254 , 576 S.E.2d 637 (2003).
Remand for further determination was necessary because it was unclear whether one of defendant's convictions, which was a first offender conviction pursuant to O.C.G.A. § 42-8-60 et seq., was successfully completed, in which case there was no "conviction" as that term was defined under O.C.G.A. § 16-1-3(4) as there would have been no adjudication of guilt, or alternatively, whether the first offender sentence was violated and the trial court thereafter entered an adjudication of guilt and a sentence thereon, in which case it could be counted as one of the three felonies for purposes of recidivist sentencing under O.C.G.A. § 17-10-7(c) . Swan v. State, 276 Ga. App. 827 , 625 S.E.2d 97 (2005).
Prospective petit juror serving a sentence under the First Offender Act, O.C.G.A. § 42-8-60 et seq., had not been "convicted" within the meaning of O.C.G.A. § 15-12-163(b)(5), which allowed either the state or the accused to object to the seating of a juror who had been convicted of a felony; the trial court therefore erred in disqualifying the juror for cause. Humphreys v. State, 287 Ga. 63 , 694 S.E.2d 316 , cert. denied, 131 S. Ct. 599 , 178 L. Ed. 2 d 438 (2010), overruled in part by Willis v. State, 304 Ga. 686 , 820 S.E.2d 640 (2018).
Trial counsel was not ineffective as the defendant's guilty plea to speeding prior to the driving under the influence (DUI) of alcohol trial did not result in a conviction because the trial judge's oral announcement that the judge would accept the plea and would impose the sentence recommended by the state was not a judgment; and the trial judge did not enter the final written judgment of conviction and sentence on the guilty plea to speeding until after the DUI trial, at the same time and on the same order form as the judgment and sentence entered for the DUI offense; thus, the defendant was not subjected to any former prosecution, and the trial court would not have erred in denying the defendant's plea in bar. Hantz v. State, 337 Ga. App. 675 , 788 S.E.2d 567 (2016).
False swearing constituted a felony. - Defendant was not entitled to relief from defendant's sentence for false swearing, in violation of O.C.G.A. § 21-2-565 , because the rule of lenity did not apply in that there was no uncertainty as to the applicable sentence for the crime, and the imposition of a five-year sentence was appropriate and within the sentencing range, under O.C.G.A. § 16-10-71 , for the offense, which constituted a felony under O.C.G.A. § 16-1-3 . Hogan v. State, 316 Ga. App. 708 , 730 S.E.2d 178 (2012).
"Forcible felony". - Child molestation constitutes a forcible felony for the purpose of establishing the defense of justification pursuant to O.C.G.A. § 16-3-21(a) . Brown v. State, 268 Ga. 154 , 486 S.E.2d 178 (1997).
When the defendant was charged with aggravated assault and family-violence battery arising from a chokehold the defendant applied to the defendant's pregnant wife, the defendant's motion for immunity was improperly granted because the defendant and the victim were married at the time of the altercation, they lived in the house where the incident occurred together, the victim routinely took care of the parties' small dog, and the victim was entitled to handle the dog, including putting the dog out of the house; and the defendant reacted to the victim's struggling against the chokehold by tightening the defendant's grip, which was not justified as the victim was not committing a forcible felony against the dog. State v. Morgan, 346 Ga. App. 702 , 814 S.E.2d 823 (2018).
Defense of personal property during aggravated assault, a forcible felony. - Trial court did not commit plain error in charging the jury because the jury was charged that the defendant's use of deadly force in defense of property would be justified if reasonably believed to be necessary to prevent the commission of a forcible felony and that aggravated assault was a forcible felony; thus, the jury had sufficient direction in order to intelligently consider the defense-of- personal-property theory of justification based on the defendant's claim that the victim committed aggravated assault when the victim lunged at the individual holding the gun and attempted to wrestle the gun away from the other individual. Hood v. State, 303 Ga. 420 , 811 S.E.2d 392 (2018).
State carried burden of disproving justification defense. - Trial court did not err in determining that the state carried the state's burden of introducing evidence that disproved the defendant's alleged justification for the defendant's use of deadly force because the defendant intentionally fired a gun at the defendant's fiancee and the fiancee's three children while they were sitting in the fiancee's car and it was within the jury's province to reject the defendant's contention that the defendant was afraid the fiancee was trying to run the defendant over. Williams v. State, 347 Ga. App. 171 , 818 S.E.2d 88 (2018).
Age at the time of the offense. - Defendant did not show that pursuant to O.C.G.A. § 16-1-3 (1) either the defendant or the state raised the issue as to the defendant's age at the time of the crimes, and thus, neither an allegation nor proof of the defendant's age was necessary to show the defendant's capacity for committing the crimes charged. Construed most strongly in support of the verdicts, the evidence was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the crimes of child molestation and aggravated child molestation as charged in the indictment. Adams v. State, 288 Ga. 695 , 707 S.E.2d 359 (2011).
Failure to charge on affirmative defenses error even if defendant refused to admit criminal conduct. - In the defendant's aggravated assault trial, O.C.G.A. § 16-5-21(a)(2), based on the defendant aiming a BB rifle at two victims, the trial court erred in denying the defendant's requested jury instructions on the defense of self and habitation, on the basis that the defendant did not admit pointing the gun at the victims; if slight evidence supported the defenses, the charges should have been given. Defendant was not required to admit the elements of the crime in order to argue the defendant's theory of defense. McClure v. State, 306 Ga. 856 , 834 S.E.2d 96 (2019).
Cited in Massey v. State, 226 Ga. 703 , 177 S.E.2d 79 (1970); Moore v. State, 228 Ga. 662 , 187 S.E.2d 277 (1972); Gordon v. State, 127 Ga. App. 308 , 193 S.E.2d 255 (1972); Chandle v. State, 230 Ga. 574 , 198 S.E.2d 289 (1973); Pope v. State, 129 Ga. App. 209 , 199 S.E.2d 368 (1973); Andrews v. State, 130 Ga. App. 2 , 202 S.E.2d 246 (1973); Cauley v. State, 130 Ga. App. 2 78 , 203 S.E.2d 239 (1973); E.P. v. State, 130 Ga. App. 512 , 203 S.E.2d 757 (1973); Walker v. Caldwell, 476 F.2d 213 (5th Cir. 1973); White v. Henry, 232 Ga. 64 , 205 S.E.2d 206 (1974); Key v. State, 131 Ga. App. 126 , 205 S.E.2d 510 (1974); Walker v. State, 132 Ga. App. 274 , 208 S.E.2d 5 (1974); DeFoor v. State, 233 Ga. 190 , 210 S.E.2d 707 (1974); Baxter v. State, 134 Ga. App. 286 , 214 S.E.2d 578 (1975); Hall v. Hopper, 234 Ga. 625 , 216 S.E.2d 839 (1975); Moore v. State, 137 Ga. App. 735 , 224 S.E.2d 856 (1976); White v. State, 138 Ga. App. 470 , 226 S.E.2d 296 (1976); Brown v. State, 143 Ga. App. 256 , 238 S.E.2d 258 (1977); Singleton v. State, 143 Ga. App. 387 , 238 S.E.2d 743 (1977); Singleton v. State, 146 Ga. App. 72 , 245 S.E.2d 473 (1978); Busbee v. Reserve Ins. Co., 147 Ga. App. 451 , 249 S.E.2d 279 (1978); Manemann v. State, 147 Ga. App. 747 , 250 S.E.2d 164 (1978); State v. Raybon, 242 Ga. 858 , 252 S.E.2d 417 (1979); State v. Moore, 243 Ga. 594 , 255 S.E.2d 709 (1979); Ratliff v. State, 150 Ga. App. 695 , 258 S.E.2d 324 (1979); Ramsey v. Powell, 244 Ga. 745 , 262 S.E.2d 61 (1979); State v. Davis, 246 Ga. 761 , 272 S.E.2d 721 (1980); Crook v. State, 156 Ga. App. 756 , 275 S.E.2d 794 (1980); Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980); State v. Shepherd Constr. Co., 248 Ga. 1 , 281 S.E.2d 151 (1981); State v. Roulain, 159 Ga. App. 233 , 283 S.E.2d 89 (1981); Collins v. State, 160 Ga. App. 680 , 288 S.E.2d 43 (1981); Morgan v. State, 161 Ga. App. 484 , 287 S.E.2d 739 (1982); Coppola v. State, 161 Ga. App. 517 , 288 S.E.2d 744 (1982); Wilson v. State, 250 Ga. 630 , 300 S.E.2d 640 (1983); Hambrick v. State, 174 Ga. App. 444 , 330 S.E.2d 383 (1985); Brown v. State, 177 Ga. App. 284 , 339 S.E.2d 332 (1985); Smith v. State, 190 Ga. App. 246 , 378 S.E.2d 493 ; Rucker v. State, 191 Ga. App. 108 , 381 S.E.2d 91 (1989); Griffin v. State, 199 Ga. App. 646 , 405 S.E.2d 877 (1991); Leslie v. State, 211 Ga. App. 871 , 440 S.E.2d 757 (1994); Kelley v. State, 235 Ga. App. 177 , 509 S.E.2d 110 (1998); State v. Lockett, 259 Ga. App. 179 , 576 S.E.2d 582 (2003); Middleton v. State, 264 Ga. App. 615 , 591 S.E.2d 493 (2003); Roberts v. State, 280 Ga. App. 672 , 634 S.E.2d 790 (2006); In the Interest of P.R., 282 Ga. App. 480 , 638 S.E.2d 898 (2006); Lee v. State, 283 Ga. App. 826 , 642 S.E.2d 876 (2007); Leachman v. State, 286 Ga. App. 708 , 649 S.E.2d 886 (2007); Burnette v. State, 291 Ga. App. 504 , 662 S.E.2d 272 (2008), overruled on other grounds by McClure v. State, 306 Ga. 856 , 834 S.E.2d 96 (2019); Land v. State, 291 Ga. App. 617 , 662 S.E.2d 368 (2008); Hollis v. State, 295 Ga. App. 529 , 672 S.E.2d 487 (2009); State v. Canup, 300 Ga. App. 678 , 686 S.E.2d 275 (2009); Moreland v. State, 304 Ga. App. 468 , 696 S.E.2d 448 (2010); DeLong v. State, 310 Ga. App. 518 , 714 S.E.2d 98 (2011); Wells v. State, 313 Ga. App. 528 , 722 S.E.2d 133 (2012); State v. Ogilvie, 292 Ga. 6 , 734 S.E.2d 50 (2012); State v. Newton, 294 Ga. 767 , 755 S.E.2d 786 (2014); Banks v. State, 329 Ga. App. 174 , 764 S.E.2d 187 (2014); Nordahl v. State, 306 Ga. 15 , 829 S.E.2d 99 (2019); Budhani v. State, 306 Ga. 315 , 830 S.E.2d 195 (2019); Bd. of Regents of the Univ. Sys. of Ga. v. One Sixty Over Ninety, LLC, 351 Ga. App. 133 , 830 S.E.2d 503 (2019), cert. denied, No. S19C1521, 2020 Ga. LEXIS 118 (Ga. 2020).
Public Place
What constitutes "public place". - What constitutes a "public place" within the meaning of former Code 1933, § 26-401 is a question of fact which must be proved or disproved by evidence in each case. Rushing v. State, 133 Ga. App. 434 , 211 S.E.2d 389 (1974).
Whether the act giving rise to a charge of public indecency was performed in a "public place" within the meaning of O.C.G.A. § 16-1-3 was a question of fact which the trial court properly left for the jury's resolution. Collins v. State, 191 Ga. App. 289 , 381 S.E.2d 430 (1989).
Evidence supported defendant's conviction for abandonment of a controlled substance in a public place, in violation of O.C.G.A. § 16-13-3 , because when defendant realized that undercover officers were approaching, defendant threw the crack cocaine that defendant was holding at a trash barrel on the abandoned residential lot where defendant was standing; the area was within the definition of "public place" under O.C.G.A. § 16-1-3(15) , as it was viewed by persons other than the members of defendant's family or household. Woods v. State, 275 Ga. App. 471 , 620 S.E.2d 660 (2005).
Jail is not a public place. - Defendant's conviction for affray in violation of O.C.G.A. § 16-11-32 was reversed because the altercation occurred in the Hall County Jail, which was not a "public place" as required for conviction pursuant to O.C.G.A. §§ 16-1-3(15) and 16-6-8(d) . Singletary v. State, 310 Ga. App. 570 , 713 S.E.2d 698 (2011).
Exposure in front of window. - Evidence that defendant would come home from work, pull off clothes and be exposed in front of the window "[j]ust to get a thrill" was sufficient to support conviction for public indecency although the act was committed in a private residence. Hester v. State, 164 Ga. App. 871 , 298 S.E.2d 292 (1982).
Exposure in marital bedroom and adjoining bathroom. - Where defendant appeared nude in the presence of a teenage female babysitter in the marital bedroom and bathroom at his home, the evidence indicated that defendant by his own behavior converted his bedroom and bath from a private zone to a public place, where his nudity might reasonably be expected to be viewed by people other than members of his family or household, and thereby supports his conviction and sentence for public indecency. Greene v. State, 191 Ga. App. 149 , 381 S.E.2d 310 , cert. denied, 191 Ga. App. 922 , 381 S.E.2d 310 (1989).
Visible from outside apartment. - In prosecution for public indecency, although an apartment may come within the definition of "public place," in such a case the state must show that defendant was visible from outside the apartment. McGee v. State, 165 Ga. App. 423 , 299 S.E.2d 573 (1983).
A shopping center parking lot is a public place. Clark v. State, 169 Ga. App. 535 , 313 S.E.2d 748 (1984).
Defendant's loud and boisterous actions in backyard and driveway were sufficiently "public" to support a charge of public drunkenness. Ridley v. State, 176 Ga. App. 669 , 337 S.E.2d 382 (1985).
Burglary from office which was not public. - Jury was authorized to conclude that the defendant was "without authority" to enter the victim's office as the evidence did not show that the building where the offense occurred was open to the public and the victim's purse was located in the victim's private office; thus, sufficient evidence supported the defendant's burglary conviction. Streeter v. State, 331 Ga. App. 322 , 771 S.E.2d 33 (2015).
Prosecution
Filing of accusation. - Generally, a prosecution in state court commences with the filing by the solicitor of an accusation or Uniform Traffic Citation with the clerk of the court. State v. Rish, 222 Ga. App. 729 , 476 S.E.2d 50 (1996).
Where the initial filing of a Uniform Traffic Citation (UTC) was not done by the solicitor, or with the solicitor's permission, the dismissal of the charges did not preclude the solicitor from refiling them on a new, formally drawn accusation, or on a UTC. State v. Rish, 222 Ga. App. 729 , 476 S.E.2d 50 (1996).
Prosecution against defendant for simple battery was timely filed within two years, pursuant to O.C.G.A. § 17-3-1(d) , since the accusation was filed within the time period which was deemed the commencement of the matter pursuant to O.C.G.A. § 16-1-3(14) ; the fact that the supporting affidavit was filed six days after the limitations period ran did not affect the timeliness of the action, pursuant to O.C.G.A. § 17-7-71(a) , because that document was for the issuance of an arrest warrant. Cochran v. State, 259 Ga. App. 130 , 575 S.E.2d 901 (2003).
Return of indictment. - In Georgia, a limitation period expires when a suspect is indicted or, more precisely, when the indictment is "returned." Dean v. State, 252 Ga. App. 204 , 555 S.E.2d 868 (2001).
A trial court did not err in denying a defendant's motion to quash the indictment charging trafficking of cocaine since another county had not yet commenced its prosecution with the return of an indictment; therefore, the county charging defendant was authorized to exercise its jurisdiction by indicting defendant for trafficking in cocaine. Lawrence v. State, 289 Ga. App. 698 , 658 S.E.2d 144 (2008), cert. denied, No. S08C1086, No. S08C1084, 2008 Ga. LEXIS 486 (Ga. 2008).
Return of second indictment. - Trial court did not err in finding that the state had the ability to bring the second indictment against the defendant because the first appeal filed concerned the issue of whether the first indictment was read in open court as required under Georgia law whereas the second indictment initiated a completely separate prosecution on the same charges and no contention was raised that the second indictment suffered from the same infirmity as the first indictment. Brown v. State, 322 Ga. App. 446 , 745 S.E.2d 699 (2013).
Indictment charging involuntary manslaughter by simple battery sufficient. - Indictment charging the defendant with involuntary manslaughter by the commission of the unlawful act of simple battery in violation of O.C.G.A. §§ 16-5-3(a) and 16-5-23(a) was not void because the factual allegations in the indictment sufficiently described the offense of involuntary manslaughter in the commission of the unlawful act of simple battery. Morris v. State, 310 Ga. App. 126 , 712 S.E.2d 130 (2011).
Prosecution for misdemeanor. - The trial court did not err in refusing to dismiss uniform traffic citations issued within two years of the date the offenses occurred, but later amended by the state, on the ground that the statute of limitation expired; the amended accusations did not constitute the commencement of a new prosecution and there had been no final disposition of the previously filed accusations. Prindle v. State, 240 Ga. App. 461 , 523 S.E.2d 44 (1999).
OPINIONS OF THE ATTORNEY GENERAL
District attorney does not fall within definition of "peace officer" in former Code 1933, § 26-401. 1969 Op. Att'y Gen. No. 69-339.
Coroners are not "peace officers" under paragraph (11). - Under former Code 1933, § 26-401 (see now O.C.G.A. § 17-4-20 ), a peace officer may arrest a sheriff with or without a warrant; however coroners do not fall within aegis of "peace officers" under former Code 1933, § 26-401 (see now O.C.G.A. § 16-1-3(11) ) and consequently cannot arrest a sheriff in circumstances where a peace officer may be able to, but a private citizen would not. 1973 Op. Att'y Gen. No. 73-93.
Military police distinguished from "peace officers." - Military police, unlike peace officers, are not vested by law with a duty to maintain "public" order. Instead, military police are confined to law and order operations within the military reservation. 1991 Op. Att'y Gen. No. 91-3.
Off-duty military police may not be employed by a chief of police as part-time city police officers. 1991 Op. Att'y Gen. No. 91-3.
RESEARCH REFERENCES
Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, § 114. 29 Am. Jur. 2d, Evidence, § 195. 30 Am Jur. 2d, Evidence § 1048. 75 Am. Jur. 2d, Trial, §§ 312, 331.
Defending Minor Felony Cases, 13 Am. Jur. Trials 465.
C.J.S. - 22 C.J.S., Criminal Law: Substantive Principles, §§ 46, 47. 23 C.J.S., Criminal Procedure and Rights of the Accused, §§ 970, 972.
ALR. - Validity of statute or ordinance prohibiting or regulating holding of meeting in street, 25 A.L.R. 114 .
"Property" as including business or profession, 34 A.L.R. 716 .
Character of offense as a felony as affected by discretion of court or jury as regards punishment, 95 A.L.R. 1115 .
What amounts to conviction or satisfies requirement as to showing of conviction, within statute making conviction a ground for refusing to grant or for canceling license or special privilege, 113 A.L.R. 1179 .
When criminal prosecution deemed pending within saving clause of statute, or principle which prevents application of statute to pending prosecution, 122 A.L.R. 670 .
What constitutes former "conviction" within statute enhancing penalty for second or subsequent offense, 5 A.L.R.2d 1080.
Larceny: entrapment or consent, 10 A.L.R.3d 1121.
Burden of proof of defendant's age, in prosecution where attainment of particular age is statutory requisite of guilt, 49 A.L.R.3d 526.
Homicide: burden of proof on defense that killing was accidental, 63 A.L.R.3d 936.
What constitutes "public place" within meaning of statutes prohibiting commission of sexual act in public place, 96 A.L.R.3d 692.
Right of party litigant to defend or counterclaim on ground that opposing party or his attorney is engaged in unauthorized practice of law, 7 A.L.R.4th 1146.
Who "harbors" or "keeps" dog under animal liability statute, 64 A.L.R.4th 963.
What constitutes "public place" within meaning of state statute or local ordinance prohibiting indecency or commission of sexual act in public place, 95 A.L.R.5th 229.
16-1-4. When conduct constitutes a crime; power of court to punish contempt or enforce orders, civil judgments, and decrees.
No conduct constitutes a crime unless it is described as a crime in this title or in another statute of this state. However, this Code section does not affect the power of a court to punish for contempt or to employ any sanction authorized by law for the enforcement of an order, civil judgment, or decree.
(Code 1933, § 26-201, enacted by Ga. L. 1968, p. 1249, § 1.)
Cross references. - Exercise of contempt power generally, § 15-1-4 .
JUDICIAL DECISIONS
Editor's notes. - In light of the similarity of the statutory provisions, decisions decided prior to codification of this principle of law by Ga. L. 1968, p. 1249, § 1 are included in the annotations for this Code section.
Since 1833 we have had only statutory offenses. Kilpatrick v. State, 72 Ga. App. 669 , 34 S.E.2d 719 (1945) (decided under former Code 1933).
Violation of public law. - Our law recognizes no crimes save such as consist of violation of a public law, and there are in this state no common-law offenses save such as have been especially recognized by statutory enactment. Moore v. State, 94 Ga. App. 210 , 94 S.E.2d 80 (1956) (decided under former Code 1933).
Defendant was improperly convicted of criminal contempt as defendant ended defendant's cross-examination when defendant was told that the time was up, and defendant might have desired to ask additional questions; that the trial court felt that some areas had not been adequately covered or covered only at the end was of no consequence; and the order to reorganize a cross-examination was too vague to be enforceable as the manner in which the cross-examination was organized was more properly left to defendant's discretion, and the exercise of that discretion in a manner different from what the trial court would have exercised was not grounds for finding that defendant willfully violated a trial court order. In re Butterfield, 265 Ga. App. 745 , 595 S.E.2d 588 (2004).
Court without authority to enforce 2010 order. - Trial court erred in upholding the decision of a recorder's court finding the defendant in contempt of the 2010 order from an unrelated case because the uncontroverted evidence showed that the 2010 case against the defendant had been dismissed; thus, the recorder's court was divested of jurisdiction to consider the contempt motion as part of the 2013 enforcement action and lacked authority to enforce the 2010 order, which was no longer in effect. Lewis v. City of Savannah, 336 Ga. App. 126 , 784 S.E.2d 1 (2016).
Criminal contempt conviction reversed. - Defendant's criminal contempt conviction was reversed as the trial court relied on another court's ex parte immunity grant in ordering the defendant to testify and neither court made a finding that the defendant's testimony was "necessary to the public interest" as required by former O.C.G.A. § 24-9-28 (see now O.C.G.A. § 24-5-507 ); the state had to grant a valid immunity as broad in scope as the privilege it replaced and to show the applicability of that state immunity to the witness. In re Long, 276 Ga. App. 306 , 623 S.E.2d 181 (2005).
Appeal from conviction not rendered moot. - The Court of Appeals of Georgia rejected the state's claim that an attorney's appeal from a criminal contempt conviction was moot, based on the possible continuing adverse collateral consequences that the attorney could suffer as a result of that conviction. In re Hatfield, 290 Ga. App. 134 , 658 S.E.2d 871 (2008).
Although a judge informed an attorney of the conduct found to be criminally contemptuous, because the judge not only refused to afford that attorney an opportunity to be heard, but also became involved in the controversy, the criminal contempt finding entered against the attorney had to be reversed. In re Hatfield, 290 Ga. App. 134 , 658 S.E.2d 871 (2008).
Cited in Gunn v. Balkcom, 228 Ga. 802 , 188 S.E.2d 500 (1972); Johnson v. State, 135 Ga. App. 360 , 217 S.E.2d 618 (1975); Wiggins v. State, 139 Ga. App. 98 , 227 S.E.2d 895 (1976); State v. Burroughs, 149 Ga. App. 183 , 254 S.E.2d 144 (1979); Boss v. State, 152 Ga. App. 169 , 262 S.E.2d 527 (1979); Rushin v. State, 154 Ga. App. 41 , 267 S.E.2d 473 (1980); Billingsley v. State, 183 Ga. App. 850 , 360 S.E.2d 451 (1987); Cotton v. State, 263 Ga. App. 843 , 589 S.E.2d 610 (2003).
RESEARCH REFERENCES
Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, §§ 1, 11 et seq.
C.J.S. - 22 C.J.S., Criminal Law: Substantive Principles, §§ 3, 7, 22.
ALR. - Degree of proof necessary in contempt proceedings, 49 A.L.R. 975 .
What courts or officers have power to punish for contempt, 54 A.L.R. 318 ; 73 A.L.R. 1185 .
Assault as contempt of court, 55 A.L.R. 1230 .
Assaulting, threatening, or intimidating witness as contempt of court, 52 A.L.R.2d 1297.
Who may institute civil contempt proceedings, 61 A.L.R.2d 1083.
Acquittal of criminal charges other than contempt as precluding contempt proceedings relating to same transaction, 88 A.L.R.3d 1089.
Contempt finding as precluding substantive criminal charges relating to same transaction, 26 A.L.R.4th 950.
Oral communications insulting to particular state judge, made to third party out of judge's physical presence, as criminal contempt, 30 A.L.R.4th 155.
Failure to rise in state courtroom as constituting criminal contempt, 38 A.L.R.4th 563.
16-1-5. Presumption of innocence; standard of proof for conviction.
Every person is presumed innocent until proved guilty. No person shall be convicted of a crime unless each element of such crime is proved beyond a reasonable doubt.
(Code 1933, § 26-501, enacted by Ga. L. 1968, p. 1249, § 1.)
Law reviews. - For comment on Rehak v. Mathis, 239 Ga. 541 , 238 S.E.2d 81 (1977), see 12 Ga. L. Rev. 361 (1978).
JUDICIAL DECISIONS
ANALYSIS
General Consideration
Editor's notes. - In light of the similarity of the statutory provisions, decisions decided under former Penal Code 1910, § 1010 and former Code 1933 are included in the annotations for this Code section.
Doctrine of continuity is inapplicable in criminal cases. - Presumption of continuance, that a state of things proved to have once existed is presumed to have continued to exist until a change or some adequate cause of change appears, is not applicable to criminal cases because in criminal cases the presumption of innocence is inviolate. Sokolic v. State, 228 Ga. 788 , 187 S.E.2d 822 (1972).
"Presumption of innocence" is not synonymous with "reasonable doubt of guilt." - The presumption refers to a substantive right, which is in the nature of evidence, and the phrase "reasonable doubt" applies to a mental condition where there is an absence of the degree of proof necessary to produce mental conviction. Ealey v. State, 141 Ga. App. 94 , 232 S.E.2d 620 (1977).
Defendant has right to remain silent in view of presumption of innocence. Sokolic v. State, 228 Ga. 788 , 187 S.E.2d 822 (1972).
Guilt must affirmatively appear by evidence. - One accused of crime has right to stand mute and unless it affirmatively appears by evidence that one is guilty, one cannot be legally so held. Sokolic v. State, 228 Ga. 788 , 187 S.E.2d 822 (1972).
Under certain proved facts, presumption of guilt may arise. - While presumptions arise, under certain proved facts, that a criminal charge against accused is well-founded, such presumption can never arise except upon proved facts. Sokolic v. State, 228 Ga. 788 , 187 S.E.2d 822 (1972).
Medical malpractice action following crime. - Because a patient had not been convicted of murder, no court had entered a judgment finding the patient sane at the time of the crime, and the evidence did not establish, as a matter of law, that the patient was sane when the patient killed the patient's mother, the patient was presumed innocent under O.C.G.A. § 16-1-5 and was not a "wrongdoer" whose status as such would be a bar to any of the patient's medical malpractice claims against a psychiatrist, and consequently, summary judgment on that issue or any issue relating to the patient's contributory negligence for causing the patient's mother's death was not authorized by the evidence since a jury issue existed as to whether the patient had the requisite mental capacity to commit murder. Bruscato v. O'Brien, 307 Ga. App. 452 , 705 S.E.2d 275 (2010).
Failure to charge as to presumption of innocence requires new trial. - Failure of trial judge in criminal case to charge jury to effect that defendant enters upon trial with a presumption of innocence in defendant's favor, and that this presumption remains with defendant, in the nature of evidence, until rebutted by proof satisfying jury of defendant's guilt to exclusion of reasonable doubt, is error requiring grant of new trial. Schuh v. State, 150 Ga. App. 700 , 258 S.E.2d 328 (1979).
Charge that presumption remains until guilt established beyond reasonable doubt. - It was not error to charge that defendant entered into murder trial with presumption of innocence in defendant's favor, and that presumption would remain with defendant throughout trial and until defendant's guilt was established by evidence beyond all reasonable doubt. Anderson v. State, 196 Ga. 468 , 26 S.E.2d 755 (1943).
"Unless and until" included in charge. - A charge taken almost verbatim from O.C.G.A. § 16-1-5 and concluding with the statement that no person shall be convicted of any crime "unless and until" each element of the crime is proved beyond a reasonable doubt was not defective. Roberts v. State, 267 Ga. 669 , 482 S.E.2d 245 (1997).
Failure to charge that presumption covers incidents occurring before crime charged. - It afforded no reason for granting new trial that in charging on presumption of innocence court did not also instruct jury that this presumption covered incidents in which evidence showed that defendant had participated shortly before moment of homicide. Anderson v. State, 196 Ga. 468 , 26 S.E.2d 755 (1943) (decided under former Code 1933, § 26-1004; murder statute).
Omission to charge that presumption of innocence remains until overcome by proof. - In absence of appropriate request for more specific instruction, excerpt from charge of court, in which jury were told that defendant was presumed to be innocent, and that burden was upon state to establish defendant's guilt to a moral and reasonable certainty and beyond a reasonable certainty and beyond a reasonable doubt, was not subject to exception merely because judge omitted to state to jury that presumption of innocence remained with defendant until overcome by proof. Payne v. State, 233 Ga. 294 , 210 S.E.2d 775 (1974).
Jury instruction on presence at scene. - The presumption of innocence is in the nature of evidence and this evidentiary presumption is sufficient to support a proper written request for a jury instruction on mere presence at the scene. Lowe v. State, 241 Ga. App. 335 , 526 S.E.2d 634 (1999).
Directed verdicts. - If prima facie case against accused is made out, though defendant offers no evidence, court has no legal power to direct verdict, or to express opinion of defendant's guilt. Johnson v. State, 69 Ga. App. 440 , 26 S.E.2d 121 (1943) (decided under former Code 1933).
At sentencing phase of trial there is no presumption of innocence. - During sentencing phase of defendant's trial, the defendant, having already been convicted of crimes, benefits from no presumption of innocence. Defendant stands before sentencing jury as a convicted felon. Brown v. State, 247 Ga. 298 , 275 S.E.2d 52 , cert. denied, 454 U.S. 882, 102 S. Ct. 366 , 70 L. Ed. 2 d 192 (1981), overruled on other grounds, Wilson v. Zant, 249 Ga. 373 , 290 S.E.2d 442 (1982).
On appeals from findings of guilt, presumption of innocence no longer prevails; the fact finders have determined the credibility of witnesses, and have been convinced beyond a reasonable doubt, and appellate courts review evidence only to determine if there is any evidence sufficient to authorize fact finder to return verdict of guilty. Stallworth v. State, 150 Ga. App. 766 , 258 S.E.2d 611 (1979).
Cited in Spencer v. State, 231 Ga. 705 , 203 S.E.2d 856 (1974); Ford v. State, 232 Ga. 511 , 207 S.E.2d 494 (1974); Woods v. State, 233 Ga. 347 , 211 S.E.2d 300 (1974); Royal v. State, 134 Ga. App. 203 , 213 S.E.2d 561 (1975); Franklin v. State, 136 Ga. App. 47 , 220 S.E.2d 60 (1975); Berryhill v. State, 235 Ga. 549 , 221 S.E.2d 185 (1975); Parker v. State, 137 Ga. App. 6 , 223 S.E.2d 6 (1975); Carter v. State, 137 Ga. App. 824 , 225 S.E.2d 73 (1976); Wiggins v. State, 139 Ga. App. 98 , 227 S.E.2d 895 (1976); Dasher v. State, 140 Ga. App. 517 , 231 S.E.2d 510 (1976); Futch v. State, 145 Ga. App. 485 , 243 S.E.2d 621 (1978); Davis v. State, 147 Ga. App. 107 , 248 S.E.2d 181 (1978); Ault v. State, 148 Ga. App. 761 , 252 S.E.2d 668 (1979); Moreland v. State, 154 Ga. App. 375 , 268 S.E.2d 425 (1980); Wallace v. State, 246 Ga. 738 , 273 S.E.2d 143 (1980); Cole v. State, 156 Ga. App. 288 , 274 S.E.2d 685 (1980); Phillips v. State, 162 Ga. App. 471 , 291 S.E.2d 776 (1982); Bowman v. State, 186 Ga. App. 544 , 368 S.E.2d 143 (1988); Kersey v. State, 243 Ga. App. 689 , 534 S.E.2d 428 (2000).
Proof Beyond Reasonable Doubt
Reasonable doubt means such doubt as a reasonable man would have after hearing all testimony in the case, including statement of defendant. Faulkner v. State, 43 Ga. App. 763 , 160 S.E. 117 (1931);(decided under former Penal Code 1910, § 1010).
Definition of phrase unnecessary. - It is not necessary to attempt any definition of the phrase "reasonable doubt"; the words are self-explanatory, and simplicity would be rendered confusing, and meaning obscure, by any elaboration. Cason v. State, 60 Ga. App. 626 , 4 S.E.2d 713 (1939) (decided under former Code 1933 and organic law); Brooks v. State, 63 Ga. App. 575 , 11 S.E.2d 688 (1940);.
An otherwise correct charge in a criminal case on reasonable doubt is not reversible error because the term reasonable doubt is not defined. Brock v. State, 91 Ga. App. 141 , 85 S.E.2d 177 (1954) (decided under former Code 1933).
It is not error in absence of a request, to fail to attempt a definition of the words "reasonable doubt." McDowell v. State, 78 Ga. App. 116 , 50 S.E.2d 633 (1948) (decided under former Code 1933 and organic law).
Court did not err in failing to give to jury a definition of reasonable doubt, where there was no written request for such definition; it was sufficient to charge that jury must be satisfied by evidence beyond a reasonable doubt of defendant's guilt. Fountain v. State, 71 Ga. App. 191 , 30 S.E.2d 359 (1944) (decided under former Code 1933).
"Reasonable doubt" need not be defined absent request. - "Reasonable doubt" has often been held to be a self-explanatory term, readily understandable by the average juror, for which no further definition need be given in absence of request. Payne v. State, 233 Ga. 294 , 210 S.E.2d 775 (1974).
Moral and reasonable certainty. - The trial court's charge to the jury that "moral and reasonable certainty is all that can be required in a legal investigation" did not effectively permit the jury to convict defendant on a standard of proof which is less than the standard of "beyond a reasonable doubt". Marion v. State, 263 Ga. 358 , 434 S.E.2d 463 (1993).
Phrase "to extent required by law" rather than "beyond reasonable doubt." - Where jury was repeatedly instructed throughout trial court's charge that state had to prove each and every element of its case against defendant beyond a reasonable doubt, jury instruction that prosecution had to disprove defendant's claim of right "to extent required by law" instead of "beyond a reasonable doubt," did not constitute reversible error by trial court. Jackson v. State, 157 Ga. App. 581 , 278 S.E.2d 156 (1981).
Language "reasonable doubt" or "without any reservations" in closing argument. - Statement in closing argument that "unless you can honestly say without any reservations or qualifications that the state has proven the defendant guilty beyond a reasonable doubt, then you must acquit" was closer to the applicable law than the statement, "unless you can honestly say, 'yes, the defendant did it,' without any reservations or any qualifications, then you must acquit." Thus, the trial court properly prohibited defense counsel from making the latter statement when the court allowed defense counsel to make the former statement. Allen v. State, 292 Ga. App. 133 , 663 S.E.2d 370 (2008), aff'd, 286 Ga. 273 , 687 S.E.2d 417 (2009).
Relevant question in criminal prosecution is whether after viewing evidence in light most favorable to prosecution, any rational trier of fact could have found essential elements of crime beyond a reasonable doubt. Rachel v. State, 247 Ga. 130 , 274 S.E.2d 475 (1981).
Effect of conflicting testimony. - While there may be conflicts in testimony of witnesses at trial, a rational trier of fact, in certain cases, may still reasonably find from evidence adduced at trial proof of defendant's guilt beyond a reasonable doubt. Hammonds v. State, 157 Ga. App. 393 , 277 S.E.2d 762 (1981).
It is error to fail to charge on quantum of proof necessary to establish guilt beyond a reasonable doubt. Brock v. State, 91 Ga. App. 141 , 85 S.E.2d 177 (1954).
Jury instructions. - The charge as a whole accurately conveyed the concept of reasonable doubt to the jury. Ruff v. State, 212 Ga. App. 245 , 441 S.E.2d 534 (1994).
Court need not instruct on reasonable doubt as to each proposition of case. - According to Georgia practice, it is not the duty of the court to carve up case into different propositions and instruct jury specifically on each as to reasonable doubt, but to submit case as a whole, upon all evidence, and instruct upon subject of doubt, in appropriate terms, upon whole case. Geer v. State, 184 Ga. 805 , 193 S.E. 776 (1937).
Where in criminal trial judge fully and fairly charged jury concerning law of reasonable doubt, the judge was not bound to give requested instruction, in effect, that if jury had a reasonable doubt as to existence of some particular and specially enumerated fact, or what should be the proper inference therefrom, it would be their duty to give the accused the benefit of such doubt. Pierce v. State, 66 Ga. App. 737 , 19 S.E.2d 192 (1942).
Charge that reasonable doubt is actual doubt that one is conscious of is not erroneous. Hancock v. State, 196 Ga. 351 , 26 S.E.2d 760 (1943).
Phrase "doubt for which you can give reason." - In charge of court on subject of reasonable doubt, it was not error to include the phrase, "a doubt for which you can give a reason." Bryant v. State, 197 Ga. 641 , 30 S.E.2d 259 (1944).
Charge that reasonable doubt is doubt with a reason, not a vague, artificial, or fictitious doubt is not erroneous in that it restricts meaning of reasonable doubt to instances in which juror finds affirmative reason. Jackson v. State, 59 Ga. App. 344 , 200 S.E. 808 (1939).
Defendant need only raise reasonable doubt in minds of jury. - Defendant is required only to raise in minds of jury a reasonable doubt as to defendant's guilt, even though state has by evidence first proved its case beyond a reasonable doubt; there is no requirement that defendant rebut case thus made by state to reasonable satisfaction of jury. Patterson v. State, 181 Ga. 698 , 184 S.E. 309 (1936).
Introduction that jurors should "acquit defendant" if their minds were wavering, unsettled, or unsatisfied was not misleading or unconstitutional. Tyson v. State, 217 Ga. App. 428 , 457 S.E.2d 690 (1995).
Charge that defendant must rebut case made by state. - Charge "if . . . defendant has to your reasonable satisfaction rebutted case as made by state, it would be your duty to find defendant not guilty . . ." placed burden on defendant to rebut evidence produced by state, in proof of homicide, to reasonable satisfaction of jury, whereas defendant was only required to create in minds of jury reasonable doubt as to truth of charge against defendant, and this constituted grounds for new trial. Patterson v. State, 181 Ga. 698 , 184 S.E. 309 (1936).
Evidence sufficient to support guilt beyond a reasonable doubt. - Sufficient evidence was presented to sustain defendant's conviction for selling cocaine because unrefuted testimony from an undercover agent identifying the defendant as the seller of the cocaine purchased in a controlled buy conducted by the agent was corroborated by an audio tape and the testimony of other officers at the scene. Moreover, the defendant failed to present any evidence on appeal that the state failed to prove guilt beyond a reasonable doubt. Thompson v. State, 289 Ga. App. 387 , 657 S.E.2d 296 (2008).
RESEARCH REFERENCES
Am. Jur. 2d. - 16B Am. Jur. 2d, Constitutional Law, § 1016. 29 Am. Jur. 2d, Evidence, §§ 185 et seq., 227 et seq.
C.J.S. - 23 C.J.S., Criminal Procedure and Rights of the Accused, §§ 981, 982. 23A C.J.S., Criminal Procedure and Rights of the Accused, § 1562.
ALR. - Propriety of instructions as to the significance of evidence concerning the defendant's good character as an element bearing upon the question of reasonable doubt, 10 A.L.R. 8 ; 68 A.L.R. 1068 .
Degree of proof necessary in contempt proceedings, 49 A.L.R. 975 .
Instruction applying rule of reasonable doubt specifically to particular matter or defense as curing instruction placing burden of proof upon defendant in that regard, 120 A.L.R. 591 .
Rule of reasonable doubt as applicable to reasonable doubt on part of individual juror, 137 A.L.R. 394 .
Use of term "actual doubt" in instruction on reasonable doubt, 147 A.L.R. 1046 .
Presumption of innocence as evidence, 152 A.L.R. 626 .
Conviction of possession of illicit drugs found in premises of which defendant was in nonexclusive possession, 56 A.L.R.3d 948.
Burden of proof as to lack of license in criminal prosecution for carrying or possession of weapon without license, 69 A.L.R.3d 1054.
Admissibility of evidence of subsequent criminal offenses as affected by proximity as to time and place, 92 A.L.R.3d 545.
16-1-6. Conviction for lesser included offenses.
An accused may be convicted of a crime included in a crime charged in the indictment or accusation. A crime is so included when:
- 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
-
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.
(Code 1933, § 26-505, enacted by Ga. L. 1968, p. 1249, § 1.)
Law reviews. - For annual survey of criminal law, see 38 Mercer L. Rev. 129 (1986). For annual survey on criminal law and procedure, 42 Mercer L. Rev. 141 (1990). For note discussing organized crime in Georgia with respect to the application of state gambling laws, and suggesting proposals for combatting organized crime, see 7 Ga. St. B. J. 124 (1970).
JUDICIAL DECISIONS
ANALYSIS
- General Consideration
- Armed Robbery
- Assault
- Controlled Substances
- Kidnapping
- Murder
- Rape
- Child Molestation
- Other Offenses Involving Children
- Other Property Offenses
- Vehicular Offenses
- Miscellaneous Crimes
General Consideration
Statutes controlling double jeopardy questions. - Ga. L. 1968, p. 1249 extends proscription of double jeopardy beyond that provided for in United States and Georgia Constitutions. Therefore, questions of double jeopardy in Georgia must be determined under proscriptions of former Code 1933 §§ 26-505 through 26-507 (see now O.C.G.A. §§ 16-1-6 through 16-1-8 ). State v. Warren, 133 Ga. App. 793 , 213 S.E.2d 53 (1975).
Former Code 1933 §§ 26-505 through 26-507 (see now O.C.G.A. §§ 16-1-6 through 16-1-8 ) provide expanded statutory test for determining double jeopardy questions, thereby rendering inapplicable previous Georgia decisions applying only minimum constitutional standards of double jeopardy. Stephens v. Hopper, 241 Ga. 596 , 247 S.E.2d 92 , cert. denied, 439 U.S. 991, 99 S. Ct. 593 , 58 L. Ed. 2 d 667 (1978).
Questions of double jeopardy in Georgia must be determined under the expanded statutory proscriptions found in O.C.G.A. §§ 16-1-6 through 16-1-8 , which place limitations upon multiple prosecutions, convictions, and punishments for the same criminal conduct. Stone v. State, 166 Ga. App. 245 , 304 S.E.2d 94 (1983).
Statutes controlling double jeopardy questions. - Where a defendant engaged in two separate courses of conduct, the attempt to sell marijuana to an undercover police officer and the possession of 12 pounds of marijuana at defendant's home, double jeopardy did not attach to the second prosecution, as these acts occurred at different times and locations with distinct quantities of contraband, even though defendant might have at some earlier time possessed all the marijuana in defendant's home. Kinchen v. State, 265 Ga. App. 474 , 594 S.E.2d 686 (2004).
Successive state and municipal prosecutions. - In creating expanded statutory protection against being twice placed in jeopardy for same offense, the legislature intended former Code 1933, §§ 26-505 through 26-507 (see now O.C.G.A. §§ 16-1-6 through 16-1-8 ) to affect only successive prosecutions for state crimes and not successive state and municipal prosecutions. State v. Burroughs, 244 Ga. 288 , 260 S.E.2d 5 (1979).
Criminal indictments are not deemed amendable to conform to the evidence. State v. Hightower, 252 Ga. 220 , 312 S.E.2d 610 (1984).
Conviction in different county. - A prosecution for a lesser included offense, which includes the underlying felony in a felony murder case, after a conviction for the greater offense in a different county violates O.C.G.A. § 16-1-6(a), Ga. Const. 1983, Art. I, Sec. I, Par. XVIII, and the Fifth and Fourteenth Amendments to the United States Constitution. Perkinson v. State, 273 Ga. 491 , 542 S.E.2d 92 (2001).
Distinction between two aspects of double jeopardy. - Former Code 1933 §§ 26-505 through 26-507 (see now O.C.G.A. §§ 16-1-6 through 16-1-8 ) distinguish between two aspects of double jeopardy: first, limitations upon multiple prosecutions for crimes arising from same conduct (referred to as procedural bar of double jeopardy); and, second, limitations upon multiple convictions or punishments that may be imposed for such crimes (referred to as substantive bar of double jeopardy). Stephens v. Hopper, 241 Ga. 596 , 247 S.E.2d 92 , cert. denied, 439 U.S. 991, 99 S. Ct. 593 , 58 L. Ed. 2 d 667 (1978).
Forfeiture proceedings not a bar to prosecution. - Double jeopardy did not attach to bar prosecution of defendant on state drug charges following federal civil forfeiture proceedings because defendant's failure to contest the forfeiture meant defendant was not placed in jeopardy in those proceedings and, also, Georgia constitutional and statutory provisions did not bar the prosecution because they apply only to criminal proceedings, not civil proceedings. Waye v. State, 219 Ga. App. 22 , 464 S.E.2d 19 (1995).
Applicability to crimes. - Inclusion provisions of O.C.G.A. § 16-1-6 do not apply to aggravating circumstances but to crimes. Collier v. State, 244 Ga. 553 , 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346 , 63 L. Ed. 2 d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538 , 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23 , 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819 , 561 S.E.2d 82 (2002).
Accused may be convicted of a crime included in a crime charged in the indictment or accusation, and that a crime is so included when 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. Morast v. State, 323 Ga. App. 808 , 748 S.E.2d 287 (2013).
O.C.G.A. § 16-1-6 makes no attempt to detail all instances where one offense is not included within another. Satterfield v. State, 248 Ga. 538 , 285 S.E.2d 3 (1981).
Ga. L. 1968, p. 1249, § 1 (see now O.C.G.A. §§ 16-1-6 and 16-1-7 ) establishes alternative rules for determining when one crime is included in another as a matter of fact or as a matter of law. Harmon v. State, 235 Ga. 329 , 219 S.E.2d 441 (1975); Williams v. State, 156 Ga. App. 481 , 274 S.E.2d 826 (1980).
Under O.C.G.A. § 16-1-6(1) , offenses merge as a matter of fact if one of them is established by proof of the same or less than all the facts required to prove the other; under Georgia law, multiple punishment is prohibited if one offense is included in the other as a matter of law or fact. Phillips v. State, 259 Ga. App. 331 , 577 S.E.2d 25 (2003).
Former Code 1933, § 26-505(1) set out rules for determining included crimes as a matter of fact. Stephens v. Hopper, 241 Ga. 596 , 247 S.E.2d 92 , cert. denied, 439 U.S. 991, 99 S. Ct. 593 , 58 L. Ed. 2 d 667 (1978).
Former Code 1933, § 26-505(2) set out rules for determining included crimes as a matter of law. Stephens v. Hopper, 241 Ga. 596 , 247 S.E.2d 92 , cert. denied, 439 U.S. 991, 99 S. Ct. 593 , 58 L. Ed. 2 d 667 (1978).
Multiple conviction prohibited where crimes charged are same in law or fact. - Although defendant may be prosecuted for all crimes committed, defendant may not be convicted of more than one crime if crimes charged are same in law or fact. Gunter v. State, 155 Ga. App. 176 , 270 S.E.2d 224 (1980).
A crime is an included crime and multiple punishment is barred if it is the same as a matter of fact or as a matter of law. Williams v. State, 156 Ga. App. 481 , 274 S.E.2d 826 (1980).
Verdicts for aggravated assault and involuntary manslaughter/reckless conduct not inconsistent. - When the evidence authorizes a finding that a defendant's reckless conduct is an included crime in an aggravated assault, the verdicts finding the defendant guilty of both of those offenses are not mutually exclusive. Thus, Jackson v. State, 276 Ga. 408 , 577 S.E.2d 570 (2003), is overruled. State v. Springer, 297 Ga. 376 , 774 S.E.2d 106 (2015).
When the facts supporting two counts are the same. - When the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under O.C.G.A. § 16-1-6 . Haynes v. State, 249 Ga. 119 , 288 S.E.2d 185 (1982), overruled on other grounds by Drinkard v. Walker, 281 Ga. 211 , 636 S.E.2d 530 (2006); Phillips v. State, 162 Ga. App. 199 , 290 S.E.2d 142 (1982); Jones v. State, 185 Ga. App. 595 , 365 S.E.2d 153 (1988); Martin v. State, 189 Ga. App. 483 , 376 S.E.2d 888 , cert. denied, 189 Ga. App. 911 , 376 S.E.2d 888 (1989); Montes v. State, 262 Ga. 473 , 421 S.E.2d 710 (1992).
If the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of law, and the defendant may not be sentenced for both. Chadwick v. State, 236 Ga. App. 199 , 511 S.E.2d 286 (1999).
Elements of lesser included offense. - A crime will constitute a lesser included offense as a matter of law when, inter alia, it differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person or public interest or a lesser kind of culpability suffices to establish its commission. Brewton v. State, 216 Ga. App. 346 , 454 S.E.2d 558 (1995), rev'd on other grounds, 266 Ga. 160 , 465 S.E.2d 668 (1996).
Supreme Court of Georgia utilizes alternative test. - Supreme Court of Georgia utilizes more lenient alternative test, rather than narrower conjunctive standard prevailing in federal courts. A crime is included within another if, as a matter of fact or, alternatively, as a matter of law, conditions stipulated by former Code 1933, § 26-505 are satisfied. The conjunctive test requires that conditions be satisfied both as a matter of fact and as a matter of law before one crime will be held to be included within another. Ramsey v. State, 145 Ga. App. 60 , 243 S.E.2d 555 , rev'd on other grounds, 241 Ga. 426 , 246 S.E.2d 190 (1978).
One crime is not included within another if each affects a different person. Harshaw v. State, 134 Ga. App. 581 , 215 S.E.2d 337 (1975).
Most obvious example of noninclusion is when crime is charged in separate count of indictment as having been committed upon another person. Satterfield v. State, 248 Ga. 538 , 285 S.E.2d 3 (1981).
When incidents are factually and legally distinct. - When two separate incidents are involved, each established by proof of different facts and distinct as a matter of law, the possibility of inclusion is obviated. Ramsey v. State, 145 Ga. App. 60 , 243 S.E.2d 555 , rev'd on other grounds, 241 Ga. 426 , 246 S.E.2d 190 (1978).
Required evidence test adopted. - In determining when one crime is included in another under O.C.G.A. §§ 16-1-6(1) and 16-1-7(a) , the actual evidence test has been overruled and replaced with the Blockburger required evidence test, as this is consistent with the statutory framework of O.C.G.A. § 16-1-6(1) , which speaks of required elements. Drinkard v. Walker, 281 Ga. 211 , 636 S.E.2d 530 (2006).
Using up evidence that defendant committed one crime in establishing another. - If the state uses up all of the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact. Dawson v. State, 203 Ga. App. 146 , 416 S.E.2d 125 , cert. denied, 203 Ga. App. 905 , 416 S.E.2d 125 (1992).
Actual evidence test meant that if the state used up all the evidence that the defendant committed one crime in establishing another crime, the former crime was included in the latter as a matter of fact under O.C.G.A. § 16-1-6 . Ruffin v. State, 252 Ga. App. 289 , 556 S.E.2d 191 (2001).
Question of whether there was a factual merger of crimes is determined by looking to the actual evidence introduced at trial to determine whether a crime is established by proof of the same or fewer than all the facts required to establish the commission of another crime within the meaning of O.C.G.A. § 16-1-6 ; if the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under O.C.G.A. § 16-1-6 . Brewster v. State, 261 Ga. App. 795 , 584 S.E.2d 66 (2003).
Retrial of greater offense after conviction of lesser. - When the state sought to prosecute the defendant on two offenses in a single prosecution, one of which is included in the other, and the defendant receives a mistrial on the greater offense, the remaining conviction of the lesser offense does not bar retrial of the greater offense. Bell v. State, 249 Ga. 644 , 292 S.E.2d 402 (1982).
Conviction of lesser included misdemeanor not ground for new trial. - It is not ground for new trial that on felony indictment defendant may be convicted of lesser included crime which is itself only a misdemeanor. Ennis v. State, 130 Ga. App. 716 , 204 S.E.2d 519 (1974).
No issue of fact as to whether one crime included in another. - Court did not err in failing to instruct the jury to decide which one of the offenses charged in the indictment or of the lesser included offense to find defendant guilty of. There was no issue of fact as to whether one crime was included in another and the court was not required to charge on O.C.G.A. § 16-1-6 . Leslie v. State, 211 Ga. App. 871 , 440 S.E.2d 757 (1994).
To warrant conviction of lesser offense on indictment or information charging greater offense, it is essential that allegations describing greater offense contain all essential averments relating to lesser offense or that greater offense necessarily include all essential ingredients of lesser. Williams v. State, 144 Ga. App. 130 , 240 S.E.2d 890 (1977); Tuggle v. State, 145 Ga. App. 603 , 244 S.E.2d 131 (1978).
Rule of inclusion. - Even if a lesser offense is not included in a charged offense as a general matter because the two offenses have different elements, the lesser offense may be an included offense in a particular case if the facts alleged in the indictment and the evidence presented at trial to establish the charged offense are sufficient to establish the lesser offense as well. Messick v. State, 209 Ga. App. 459 , 433 S.E.2d 595 (1993).
Improper merger. - Trial court erred in merging the conviction requiring a greater injury into that which required the lesser injury. Zamudio v. State, 332 Ga. App. 37 , 771 S.E.2d 733 (2015).
Effect of conviction on nonincluded charge. - After a jury convicted a defendant on an aggravated battery charge, but acquitted the defendant on charges of obstruction, simple battery, and aggravated assault and could not reach a verdict on a second charge of aggravated assault, the jury's inability to reach a verdict on the second aggravated assault charge, a lesser included offense, did not invalidate the jury verdict on the aggravated battery charge. Collier v. State, 195 Ga. App. 380 , 393 S.E.2d 509 (1990).
Sequential assaults held to be two offenses, the first a completed crime when the second was perpetrated. Talley v. State, 164 Ga. App. 150 , 296 S.E.2d 173 (1982), aff'd, 251 Ga. 42 , 302 S.E.2d 355 (1983).
Conviction of both crime charged and lesser included offense. - Defendant may be prosecuted for each crime arising from same conduct, but may not be convicted of more than one crime if one crime is included in the other. Addison v. State, 239 Ga. 622 , 238 S.E.2d 411 (1977).
Under O.C.G.A. §§ 16-1-6 and 16-1-7 , a defendant may be prosecuted for two crimes based on the same conduct, but defendant may not be convicted of more than one crime if one crime is included in the other. Padgett v. State, 205 Ga. App. 576 , 423 S.E.2d 411 (1992).
Defendant on notice of lesser included crimes. - As a matter of law a defendant is on notice of lesser crimes which are included in the crime charged, and the defendant's due process rights were therefore not violated where remand for an adjudication of delinquency was made, based on a lesser included offense, after vacation of a conviction on the more serious offense. In re A.F., 236 Ga. App. 60 , 510 S.E.2d 910 (1999).
Trial court did not err by granting the state's request to charge the jury on robbery by sudden snatching, and the defendant's due process rights were not violated as: (1) the indictment alleging armed robbery gave the defendant sufficient notice; (2) the essential elements of both armed robbery and robbery by sudden snatching were contained within the indictment; (3) robbery by sudden snatching was a lesser included offense of armed robbery as a matter of law; and (4) the defendant conceded that the trial evidence supported such a charge. Millender v. State, 286 Ga. App. 331 , 648 S.E.2d 777 (2007), cert. denied, No. S07C1717, 2008 Ga. LEXIS 80 (Ga. 2008).
Trial court did not err in failing to merge the defendant's convictions for the criminal damage to property in the first degree and criminal damage to property in the second degree because, although the charges were defined by degrees, the statutes prohibited different risks of injury - knowing interference with property in a manner that endangered human life and a certain level of damage to the property. Sullivan v. State, 331 Ga. App. 592 , 771 S.E.2d 237 (2015).
Sentences for offenses not considered. - Statutes pertaining to lesser included offenses and multiple prosecutions for the same conduct do not purport to make any offense a greater offense, either as a matter of law or fact, solely because violation thereof mandates or otherwise results in the imposition of a greater sentence, or to make any offense a lesser included offense merely because a lesser sentence was statutorily authorized for the statute's violation. Hancock v. State, 210 Ga. App. 528 , 437 S.E.2d 610 (1993).
Cited in Wells v. State, 127 Ga. App. 109 , 192 S.E.2d 567 (1972); Fallings v. State, 232 Ga. 798 , 209 S.E.2d 151 (1974); Williamson v. State, 134 Ga. App. 583 , 215 S.E.2d 518 (1975); Kramer v. Hopper, 234 Ga. 395 , 216 S.E.2d 119 (1975); D.C.A. v. State, 135 Ga. App. 234 , 217 S.E.2d 470 (1975); Tarpkin v. State, 236 Ga. 67 , 222 S.E.2d 364 (1976); Thomas v. State, 237 Ga. 690 , 229 S.E.2d 458 (1976); Torley v. State, 141 Ga. App. 366 , 233 S.E.2d 476 (1977); Perkins v. State, 143 Ga. App. 124 , 237 S.E.2d 658 (1977); Butler v. State, 239 Ga. 591 , 238 S.E.2d 387 (1977); Corson v. State, 144 Ga. App. 559 , 241 S.E.2d 454 (1978); Lowe v. State, 240 Ga. 767 , 242 S.E.2d 582 (1978); State v. Gilder, 145 Ga. App. 731 , 245 S.E.2d 3 (1978); Brock v. State, 146 Ga. App. 78 , 245 S.E.2d 442 (1978); Coaxum v. State, 146 Ga. App. 370 , 246 S.E.2d 403 (1978); State v. Burroughs, 149 Ga. App. 183 , 254 S.E.2d 144 (1979); Groves v. State, 152 Ga. App. 606 , 263 S.E.2d 501 (1979); Duke v. State, 153 Ga. App. 204 , 264 S.E.2d 721 (1980); Doucet v. State, 153 Ga. App. 775 , 266 S.E.2d 554 (1980); Griffeth v. State, 154 Ga. App. 643 , 269 S.E.2d 501 (1980); Powell v. State, 154 Ga. App. 674 , 270 S.E.2d 6 (1980); High v. State, 247 Ga. 289 , 276 S.E.2d 5 (1981); Taylor v. State, 157 Ga. App. 212 , 276 S.E.2d 691 (1981); Bissell v. State, 157 Ga. App. 711 , 278 S.E.2d 415 (1981); Peavy v. State, 159 Ga. App. 280 , 283 S.E.2d 346 (1981); Head v. State, 248 Ga. App. 767 , 285 S.E.2d 735 (1981); Jones v. State, 161 Ga. App. 620 , 288 S.E.2d 795 (1982); Dalton v. State, 162 Ga. App. 7 , 289 S.E.2d 801 (1982); Williams v. State, 162 Ga. App. 350 , 291 S.E.2d 425 (1982); Dalton v. State, 249 Ga. 720 , 292 S.E.2d 834 (1982); Smith v. State, 163 Ga. App. 531 , 295 S.E.2d 208 (1982); Collins v. State, 164 Ga. App. 482 , 297 S.E.2d 503 (1982); Dickson v. State, 167 Ga. App. 685 , 307 S.E.2d 267 (1983); Potts v. Zant, 575 F. Supp. 374 (N.D. Ga. 1983); Caldwell v. State, 171 Ga. App. 680 , 320 S.E.2d 888 (1984); Weaver v. State, 176 Ga. App. 639 , 337 S.E.2d 420 (1985); Clarington v. State, 178 Ga. App. 663 , 344 S.E.2d 485 (1986); Rank v. State, 179 Ga. App. 28 , 345 S.E.2d 75 (1986); McClure v. State, 179 Ga. App. 245 , 345 S.E.2d 922 (1986); Preston v. State, 257 Ga. 42 , 354 S.E.2d 135 (1987); Sablon v. State, 182 Ga. App. 128 , 355 S.E.2d 88 (1987); Mathis v. State, 184 Ga. App. 455 , 361 S.E.2d 856 (1987); Edwards v. State, 258 Ga. 12 , 364 S.E.2d 869 (1988); Moore v. State, 190 Ga. App. 278 , 378 S.E.2d 880 (1989); Iglesias v. State, 191 Ga. App. 403 , 381 S.E.2d 604 (1989); State v. Evans, 192 Ga. App. 216 , 384 S.E.2d 404 (1989); Redding v. State, 196 Ga. App. 751 , 397 S.E.2d 34 (1990); Kennedy v. State, 199 Ga. App. 803 , 406 S.E.2d 136 (1991); Head v. State, 262 Ga. 795 , 426 S.E.2d 547 (1993); Woody v. State, 212 Ga. App. 186 , 441 S.E.2d 505 (1994); King v. State, 214 Ga. App. 311 , 447 S.E.2d 645 (1994); Golden v. State, 233 Ga. App. 703 , 505 S.E.2d 242 (1998); Powles v. State, 248 Ga. App. 4 , 545 S.E.2d 153 (2001); Dorsey v. State, 251 Ga. App. 640 , 554 S.E.2d 278 (2001); Climpson v. State, 253 Ga. App. 485 , 559 S.E.2d 495 (2002); Williams v. State, 255 Ga. App. 775 , 566 S.E.2d 477 (2002); Lewis v. State, 261 Ga. App. 273 , 582 S.E.2d 222 (2003); Kinchen v. State, 265 Ga. App. 474 , 594 S.E.2d 686 (2004); Wilkerson v. State, 267 Ga. App. 585 , 600 S.E.2d 677 (2004); Melton v. State, 282 Ga. App. 685 , 639 S.E.2d 411 (2006); Guyton v. State, 281 Ga. 789 , 642 S.E.2d 67 (2007); Arnold v. State, 293 Ga. App. 395 , 667 S.E.2d 167 (2008); Wells v. State, 294 Ga. App. 277 , 668 S.E.2d 881 (2008); Epps v. State, 297 Ga. App. 66 , 676 S.E.2d 791 (2009); Gonzales v. State, 298 Ga. App. 821 , 681 S.E.2d 248 (2009); Strickland v. State, 300 Ga. App. 898 , 686 S.E.2d 486 (2009); Stepp v. State, 286 Ga. 556 , 690 S.E.2d 161 (2010); State v. Wilson, 318 Ga. App. 88 , 732 S.E.2d 330 (2012); State v. Pruiett, 324 Ga. App. 789 , 751 S.E.2d 579 (2013); State v. Leatherwood, 326 Ga. App. 730 , 757 S.E.2d 434 (2014); Henderson v. State, 333 Ga. App. 759 , 777 S.E.2d 48 (2015); Palmer v. State, 341 Ga. App. 433 , 801 S.E.2d 300 (2017); Woods v. State, 342 Ga. App. 301 , 802 S.E.2d 822 (2017); Vasquez v. State, 306 Ga. 216 , 830 S.E.2d 143 (2019).
Armed Robbery
Aggravated assault and armed robbery as separate crimes. - Aggravated assault and armed robbery differ in more ways than that a less serious injury or risk of injury or a lesser kind of culpability, applies to one crime than the other. Thus, aggravated assault is not included in armed robbery as a matter of law. Harvey v. State, 233 Ga. 41 , 209 S.E.2d 587 (1974).
Aggravated assault and armed robbery may not be different crimes as a matter of fact. Lambert v. State, 157 Ga. App. 275 , 277 S.E.2d 66 (1981).
Aggravated assault and armed robbery are different crimes as a matter of law. Lambert v. State, 157 Ga. App. 275 , 277 S.E.2d 66 (1981).
Aggravated assault was not included within armed robbery as a matter of fact. Evans v. State, 173 Ga. App. 655 , 327 S.E.2d 784 (1985).
Conviction for aggravated assault did not merge with conviction for armed robbery where the evidence showed that the defendant had completed the armed robbery at the time defendant assaulted the security guard. Loumakis v. State, 179 Ga. App. 294 , 346 S.E.2d 373 (1986).
Offenses of aggravated assault and robbery did not merge as a matter of law, where although the occurrences happened within a short span of time, the robbery had been completed at the time defendant fired a gun and involved different actions and intents. Phelps v. State, 194 Ga. App. 493 , 390 S.E.2d 899 (1990).
Aggravated assaults did not merge with the robbery of two victims, where the robberies were completed, both victims having been deprived of their property, when they were marched off for another criminal purpose and the aggravated assaults on each victim occurred. Glass v. State, 199 Ga. App. 530 , 405 S.E.2d 522 (1991).
In a trial for armed robbery and aggravated assault, the evidence showed that defendant forced the victim at knifepoint to open the safe and that after taking the money from the safe, defendant cut the victim during the victim's attempt to escape. Since the act which constituted the offense of armed robbery was proved without any reference to the act which constituted the aggravated assault, no merger occurred. Holmes v. State, 205 Ga. App. 168 , 421 S.E.2d 311 (1992).
Trial court did not err by failing to merge the defendants' convictions on counts one through five into one conviction for armed robbery because the aggravated assaults and armed robbery (none of which could have been proven by the same or less than all the facts required to prove another) occurred later and the facts required to prove those offenses were separate from the burglary. Dunbar v. State, 273 Ga. App. 29 , 614 S.E.2d 472 (2005).
Evidence that the victim was beaten over the head with a pistol showed a completed aggravated assault prior to the armed robbery which was also committed with a pistol; in other words, the pistol was used to effect bodily harm as well as to effect a theft. Since separate facts were used to prove each crime, the trial court did not err by refusing to merge the offenses under O.C.G.A. § 16-1-6 . Bunkley v. State, 278 Ga. App. 450 , 629 S.E.2d 112 (2006).
As the armed robberies and aggravated assaults the defendant was charged with were committed against different victims, the crimes did not merge as a matter of law or fact. Verdree v. State, 299 Ga. App. 673 , 683 S.E.2d 632 (2009).
Facts used to convict of armed robbery and aggravated assault. - Where facts adduced to support armed robbery charge were same facts used to support aggravated assault charge, aggravated assault charge must be considered an included offense with armed robbery charge pursuant to former Code 1933, § 26-505. Hizine v. State, 148 Ga. App. 375 , 251 S.E.2d 393 (1978) (see O.C.G.A. § 16-1-6 ).
Aggravated assault with intent to rob and armed robbery. - Because all of the facts used to prove the offense of aggravated assault with intent to rob were used up in proving the armed robbery, merger was required. Mercer v. State, 289 Ga. App. 606 , 658 S.E.2d 173 (2008).
Separate convictions for armed robbery and aggravated assault were barred, and conviction for the latter offense would have to be vacated, where the only aggravated assault shown by the evidence was that by which the commission of the armed robbery was effectuated. Young v. State, 177 Ga. App. 756 , 341 S.E.2d 286 (1986).
Conviction for aggravated assault should have been vacated pursuant to the doctrine of merger since the only aggravated assault shown by the evidence was that by which the commission of armed robbery was effectuated. There having been no additional, gratuitous violence employed against the victim, it followed that the evidentiary basis for the aggravated assault conviction was "used up" in proving the armed robbery. Kelly v. State, 188 Ga. App. 362 , 373 S.E.2d 63 (1988); Head v. State, 202 Ga. App. 209 , 413 S.E.2d 533 (1991).
Conviction for aggravated assault should have been vacated pursuant to the doctrine of merger since the only aggravated assault shown by the evidence was that by which the commission of armed robbery was effectuated. There having been no additional, gratuitous violence employed against the victim, it followed that the evidentiary basis for the aggravated assault conviction was "used up" in proving the armed robbery. Kelly v. State, 188 Ga. App. 362 , 373 S.E.2d 63 (1988); Head v. State, 202 Ga. App. 209 , 413 S.E.2d 533 (1991).
Defendants' robbery and aggravated assault convictions, under O.C.G.A. §§ 16-5-21 and 16-8-40 , merged because, while aggravated assault did not require taking property from another, aggravated assault was proved by the same or less than all facts required to show robbery, as the assault forming the basis of the aggravated assault with intent to rob, which was pointing a pistol at the victim, was "contained within" the element of robbery requiring the defendants to have used force, intimidation, threat or coercion, or placed the victim in fear of immediate serious bodily injury. Washington v. State, 310 Ga. App. 775 , 714 S.E.2d 364 (2011).
Defendant's conviction for aggravated assault merged into the defendant's conviction for attempted armed robbery because the relevant aggravated assault provision did not require proof of any fact that was not also required to prove the attempted armed robbery as that offense could have been proved under the indictment in the case. Garland v. State, 311 Ga. App. 7 , 714 S.E.2d 707 (2011).
Aggravated assault and armed robbery convictions merged as the assault count did not require proof of any fact not required to prove armed robbery. Newsome v. State, 324 Ga. App. 665 , 751 S.E.2d 474 (2013).
Because a habeas applicant's crimes of aggravated assault with intent to rob and armed robbery occurred at the same time and resulted from the same conduct, the applicant's holding a store owner at gunpoint, taking money from the cash register, and fleeing, the two offenses merged; the assault conviction and sentence should have been set aside. Johnson v. Williams, 304 Ga. 771 , 22 S.E.2d 264 (2018).
Armed robbery and motor vehicle theft. - After the defendant took two checks from the victim at knife point and, later, after defendant tied up the victim and left the victim in the bedroom, took the victim's keys and drove off in the victim's car, the motor vehicle theft was not a lesser included offense of the armed robbery. Fonseca v. State, 212 Ga. App. 463 , 441 S.E.2d 912 (1994).
Burglary and armed robbery. - There is no prohibition against a defendant's being convicted of both burglary and a completed criminal offense, such as armed robbery, after gaining entry into the dwelling, as each offense has distinct elements. Brown v. State, 199 Ga. App. 773 , 406 S.E.2d 248 (1991).
Because defendant's one entry into the victim's house was committed with a dual intent to commit theft and aggravated assault, the trial court should not have imposed two separate sentences for the two burglary charges based on the two intents, and instead should have merged the burglary counts for sentencing. However, merger of an aggravated robbery charge was properly rejected. Ward v. State, 339 Ga. App. 621 , 794 S.E.2d 246 (2016).
Assault and robbery. - When facts adduced to support the two counts are different, assault is not included within robbery. Harvey v. State, 233 Ga. 41 , 209 S.E.2d 587 (1974); Dunbar v. State, 163 Ga. App. 243 , 292 S.E.2d 897 (1982).
Armed robbery and kidnapping. - Kidnapping was completed when defendant seized the women and forcibly moved them from one location in the store to another, and then defendant committed the armed robbery; accordingly, convictions for both offenses did not amount to two punishments for the same conduct, nor was one offense included in the other as a matter of fact. Phillips v. State, 259 Ga. App. 331 , 577 S.E.2d 25 (2003).
Conviction for attempt to commit armed robbery did not merge with conviction for armed robbery since, although both offenses occurred at the same place and at the same time and under the same circumstances, the object of the offenses was different and the victims were different. Loumakis v. State, 179 Ga. App. 294 , 346 S.E.2d 373 (1986).
Armed robbery and malice murder. - In considering whether two crimes merged as a matter of fact, the courts look to whether the crimes were established by proof of the same or less than all the facts required to establish the commission of another crime; since convictions for armed robbery and malice murder were both supported by the evidence, they did not merge as a matter of fact. Baines v. State, 276 Ga. 117 , 575 S.E.2d 495 (2003).
Armed robbery and robbery by intimidation. - Defendant's indictment for armed robbery put defendant on notice that conviction of the lesser included offense of robbery by intimidation was possible. Mills v. State, 244 Ga. App. 28 , 535 S.E.2d 1 (2000).
Armed robbery and theft by taking. - Since the same evidence that was used to prove the armed robbery charges against defendant was also used to prove the theft by taking charges and the property in question was taken from the victims' possession in the same incident in a store and constituted a single crime, the theft by taking offenses were lesser included offenses of the armed robbery offenses as a matter of fact pursuant to O.C.G.A. § 16-1-6(1) and should have merged into those convictions for sentencing purposes. Phanamixay v. State, 260 Ga. App. 177 , 581 S.E.2d 286 (2003).
Armed robbery and aggravated battery did not merge. - Trial court did not err in failing to merge the defendant's aggravated battery conviction into the defendant's armed robbery conviction because the taking of the victim's property was not a fact required to establish the aggravated battery offense, and depriving the victim of a member of the victim's body was not a fact required to establish the armed robbery offense; and, while the aggravated battery and armed robbery were based on the same criminal transaction, aggravated battery and armed robbery did not simply prohibit different degrees of injury or risk of injury; rather, the two crimes prohibited entirely different categories of injury - depriving the victim of a member of the victim's body versus depriving the victim of property. Epperson v. State, 340 Ga. App. 25 , 796 S.E.2d 1 (2016).
Sentencing. - Since the evidence the state used to convict defendant of aggravated assault with intent to rob and possession of a firearm during the commission of that crime was also used to convict defendant of armed robbery, defendant could not be sentenced for all of the offenses, and, accordingly, the first two offenses merged into the armed robbery offense for sentencing purposes. Cutkelvin v. State, 258 Ga. App. 691 , 574 S.E.2d 883 (2002).
Assault
Aggravated assault properly not merged with theft by taking. - Trial court properly refused to merge an aggravated assault count with a theft by taking of a motor vehicle count and did not err in sentencing the defendant for both offenses because by choking the victim in a manner likely to have caused serious bodily injury, the defendant committed aggravated assault, and by taking the victim's car and driving away, the defendant committed the theft. As such, it was obvious that the offenses involved, although taking place at the same general time and location, were separate offenses in that each was established by proof of different facts and each offense was distinct as a matter of law; thus, obviating any possibility of one's inclusion in the other. Hall v. State, 292 Ga. App. 544 , 664 S.E.2d 882 , cert. denied, No. S08C1841, 2008 Ga. LEXIS 926 (Ga. 2008).
Robbery by force and aggravated assault on a person over the age of 65 years have different elements and prohibit different conduct, and neither is included in the other as a matter of law. Manuel v. State, 245 Ga. App. 565 , 538 S.E.2d 472 (2000).
Criminal trespass and aggravated assault. - Criminal trespass is not a lesser included offense of aggravated assault as a matter of law, and, where the indictment for aggravated assault alleged that defendant committed an assault by shooting a deadly weapon "at, toward and in the direction of" the victim, the state was not required to prove that defendant interfered with the victim's property, and criminal trespass was the victim's property, and criminal trespass was not an included offense as a matter of fact. Robinson v. State, 217 Ga. App. 832 , 459 S.E.2d 588 (1995).
Aggravated assault did not merge with damage to property. - Because charges alleging aggravated assault did not amount to lesser-included offenses as a matter of fact of a charge of first-degree criminal damage to property, and the property offense was not a lesser-included offense of any aggravated assault offense, merger of the offenses was unwarranted. Louis v. State, 290 Ga. App. 106 , 658 S.E.2d 897 (2008).
Reckless conduct and aggravated assault. - Reckless conduct may become a lesser included offense of aggravated assault, not necessarily by the adding or subtracting of elements, but merely the substitution of another element for that of any formed general intent to commit the greater offense thereby resulting, in essence, in a finding of a lesser degree of culpability within the meaning of O.C.G.A. § 16-1-6 . Brewton v. State, 216 Ga. App. 346 , 454 S.E.2d 558 (1995), rev'd on other grounds, 266 Ga. 160 , 465 S.E.2d 668 (1996); Idowu v. State, 233 Ga. App. 418 , 504 S.E.2d 474 (1998).
Because the defendant drove the van and struck and injured the victim, the state charged the defendant with aggravated assault by placing another in reasonable apprehension of immediately receiving a violent injury, and because the offense of reckless conduct would not show a less culpable mental state than that which was required to establish the commission of aggravated assault as charged, a charge on reckless conduct was not warranted. Patterson v. State, 332 Ga. App. 221 , 770 S.E.2d 62 (2015), aff'd, 299 Ga. 491 , 789 S.E.2d 175 (2016).
Aggravated assault merged into aggravated battery. - Because the indictment alleged only one act, the shooting of the victim, and because the evidence showed only that defendant's actions were the result of a single act of firing a series of shots in quick succession at the victim, the convictions for aggravated assault merged into the aggravated battery. Brown v. State, 246 Ga. App. 60 , 539 S.E.2d 545 (2000).
Trial court erred in failing to merge a defendant's offenses of aggravated battery under O.C.G.A. § 16-5-24(a) and aggravated assault under O.C.G.A. § 16-5-21(a) , for sentencing purposes, because the assault was a lesser included offense of the battery offense under O.C.G.A. § 16-1-6(1) , given the defendant's single attack on the victim with a golf club. Allen v. State, 302 Ga. App. 190 , 690 S.E.2d 492 (2010).
Defendant's aggravated battery and aggravated assault convictions merged because the counts of the indictment were based on the same conduct of hitting the victim with a hammer, resulting in serious bodily injury to the victim's hand and one of the victim's fingers being rendered useless when the victim placed the victim's hands up in an attempt to protect the victim's head; the aggravated assault was a lesser included offense of the aggravated battery because the assault required proof of a less serious injury than the aggravated battery. Thomas v. State, 310 Ga. App. 404 , 714 S.E.2d 37 (2011).
In an aggravated assault and aggravated battery case arising out of an incident in which the defendant twice, in quick succession, slashed the throat of the victim, the defendant's girlfriend, the trial court erred by failing to merge the defendant's convictions, and the court of appeals erroneously affirmed that decision because the record sufficiently established that the defendant's actions were part of a continuous criminal act, committed at the same time and place and inspired by the same criminal intent; and the offenses, which were based on the single criminal act of the defendant cutting the victim's throat with a knife, only differed with respect to the seriousness of the injury or risk of injury suffered by the victim. Regent v. State, 299 Ga. 172 , 787 S.E.2d 217 (2016).
Because the aggravated assault charge was based on the single criminal act of the defendant throwing acid on the victim, and differed from the aggravated battery counts only with respect to the specificity of the injury or risk of injury the victim actually suffered, the aggravated assault was included in the aggravated battery and should have merged. Fordham v. State, 352 Ga. App. 520 , 835 S.E.2d 360 (2019), cert. denied, No. S20C0442, 2020 Ga. LEXIS 392 (Ga. 2020).
Aggravated assault did not merge into aggravated battery and kidnapping. - Crimes did not merge legally or factually because aggravated assault required proof that the defendant assaulted the victim using a deadly weapon, aggravated battery required proof that the defendant maliciously caused bodily harm to the victim by rendering a member of the victim's body useless, and kidnapping required asportation of the victim. The offenses were distinct with each requiring proof of a fact which the others did not. Reynolds v. State, 311 Ga. App. 119 , 714 S.E.2d 621 (2011).
Aggravated assault did not merge into aggravated battery. - Under the required evidence test, the defendant's convictions for aggravated assault and aggravated battery did not merge because the aggravated battery count required the state to prove that the defendant rendered a member of the victim's body useless, which the state did not have to prove for the conviction of aggravated assault with a deadly weapon; and aggravated assault with an offensive weapon required the state to prove that the defendant used a hammer, an object likely to result in serious bodily injury, which the state did not have to prove for the aggravated battery conviction. Howard v. State, 334 Ga. App. 229 , 779 S.E.2d 5 (2015).
Trial court did not err in failing to merge Count Three, charging the defendant with aggravated assault with intent to murder, into the aggravated battery convictions because the count of aggravated assault with intent to murder required proof of a fact - the intent to kill - that the aggravated battery counts did not, and the aggravated battery counts required proof of a fact - the infant's skull was rendered useless and the infant's face was disfigured - that the aggravated assault with intent to murder count did not; thus, the trial court did not err in sentencing the defendant separately for aggravated assault with intent to murder, as well as two counts of aggravated battery. Busby v. State, 332 Ga. App. 646 , 774 S.E.2d 717 (2015).
When the trial court merged the defendant's aggravated assault conviction into the defendant's armed robbery conviction, and then sentenced the defendant for armed robbery and aggravated battery, even if the trial court should have merged the defendant's aggravated battery and aggravated assault convictions, the end result would have been the same as the defendant would have been sentenced for aggravated battery rather than aggravated assault, given that the aggravated assault constituted the included offense; thus, any error by the trial court in failing to merge the defendant's aggravated battery and aggravated assault convictions was harmless and provided no basis for vacating the defendant's sentence. Epperson v. State, 340 Ga. App. 25 , 796 S.E.2d 1 (2016).
Simple assault was not lesser included offense of aggravated assault. - Trial court did not err by refusing to charge simple assault as a lesser included offense of aggravated assault in Count 4, alleging aggravated assault by placing another in reasonable apprehension of immediately receiving a violent injury with an object which, when used offensively against a person, was likely to and actually did result in serious bodily injury, as the defendant was either guilty of aggravated assault or not guilty at all because it was undisputed that the defendant hit the victim and pinned the victim against a mobile home while driving the van toward the victim from only about 20 feet away and that the defendant's action resulted in serious bodily injury to the victim. Patterson v. State, 332 Ga. App. 221 , 770 S.E.2d 62 (2015), aff'd, 299 Ga. 491 , 789 S.E.2d 175 (2016).
Merger of aggravated assault and simple battery. - Trial court should have merged the defendant's convictions for aggravated assault and simple battery, a lesser included offense, because the two offenses only differed with respect to the risk of, or seriousness of, injury to the victim. Hicks v. State, 337 Ga. App. 567 , 788 S.E.2d 502 (2016).
Aggravated assault and kidnapping. - Crimes did not merge legally or factually because aggravated assault required proof that the defendant assaulted the victim using a deadly weapon, aggravated battery required proof that the defendant maliciously caused bodily harm to the victim by rendering a member of the victim's body useless, and kidnapping required asportation of the victim. The offenses were distinct with each requiring proof of a fact which the others did not. Reynolds v. State, 311 Ga. App. 119 , 714 S.E.2d 621 (2011).
Simple battery as lesser included offense of aggravated assault. - Where jury was authorized to decide defendant's fist and hands were not used as deadly weapons as required for aggravated assault, there was no error in charging on simple battery, which was here a lesser included offense of aggravated assault. Guevara v. State, 151 Ga. App. 444 , 260 S.E.2d 491 (1979).
Evidence that defendant did not use a pistol in a deadly fashion in striking the victim supported a conviction of simple battery as a lesser included offense of aggravated assault Fulton v. State, 232 Ga. App. 898 , 503 S.E.2d 54 (1998).
Defendant failed to show error in refusing to merge offenses because defendant failed to show that aggravated assault was established by the same facts used to prove simple battery; evidence that defendant: (1) entered a store wearing a mask; (2) opened the cash drawer; (3) tried to wrangle a key to the drawer from the employee's hand; (4) demanded money; (5) banged on the register; and (6) appeared to have had a gun supported the aggravated assault conviction, but none of this evidence was needed to prove simple battery, which was established by evidence of defendant's bruising blows to the employee's arm. Lawson v. State, 275 Ga. App. 334 , 620 S.E.2d 600 (2005).
Aggravated assault on a police officer merged with obstruction of a police officer. - Trial court erred in failing to merge the defendant's convictions for four counts of obstruction of a police officer into the convictions for four counts of aggravated assault on a police officer because each count of the crime of obstruction was established by proof of the same or less than all the facts required to establish each count of the crime of aggravated assault; the state conceded that the trial court erred in failing to merge the convictions for obstruction into the convictions for aggravated assault on a police officer. Dobbs v. State, 302 Ga. App. 628 , 691 S.E.2d 387 (2010).
Terroristic threats and aggravated assault with deadly weapon. - The offense of terroristic threats was included in the offense of aggravated assault with a deadly weapon as a matter of fact since from the evidence the jury would have been authorized to find either that defendant used a gun to place the victim in reasonable apprehension of immediately receiving a violent injury or that defendant threatened to commit a crime of violence with the purpose of terrorizing the victim. Messick v. State, 209 Ga. App. 459 , 433 S.E.2d 595 (1993).
Contrary to the defendant's claim, the convictions for terroristic threats and aggravated assault should not have merged as aggravated assault required proof of an assault with a knife, while terroristic threats required proof that the defendant threatened to murder the victims; each crime requiring the state to prove at least one fact different from the other. Petro v. State, 327 Ga. App. 254 , 758 S.E.2d 152 (2014).
Possession of destructive device offense did not merge with aggravated assault. - Defendant's aggravated assault and possession of a destructive device convictions did not merge because the possession offense required that the weapon function in a certain way and have certain dimensions, and the assault offense required that the victim was conscious of the risk of immediately receiving a violent injury by use of an offensive weapon. Because each offense required proof of a fact not required for the other, there was no merger under the required evidence test. Mason v. State, 312 Ga. App. 723 , 719 S.E.2d 581 (2011).
Battery conviction did not merge into conviction for aggravated assault with offensive weapon. - Under the required evidence test, defendant's conviction for battery did not merge into the defendant's conviction for aggravated assault with an offensive weapon. Gipson v. State, 332 Ga. App. 309 , 772 S.E.2d 402 (2015).
Assault with intent to murder and aggravated assault charges. - Under the required evidence test, the defendant's two aggravated assault convictions did not merge because the assault with intent to murder count required the state to prove that the defendant intended to kill the victim, which the state was not required to prove for the charge of aggravated assault with a deadly weapon; and the aggravated assault with a deadly weapon count required the state to prove that the defendant used a deadly weapon, a knife, box-cutter, or other sharp-edged instrument, which the state did not have to prove for the conviction of aggravated assault with intent to murder. Howard v. State, 334 Ga. App. 229 , 779 S.E.2d 5 (2015).
Jury instruction on terroristic threats as lesser included offense of aggravated assault. - Defendant was not entitled to a jury instruction on terroristic threats as a lesser included offense of aggravated assault because terroristic threats was not a lesser included offense of aggravated assault. Soto v. State, 303 Ga. 517 , 813 S.E.2d 343 (2018).
Controlled Substances
Illegal possession not included in illegal sale as matter of law. - As a matter of law, crime of illegal possession of heroin is not included in crime of illegal sale of heroin for purposes of double jeopardy and multiple prosecution. Wilson v. Hopper, 234 Ga. 859 , 218 S.E.2d 573 (1975).
Illegal possession of controlled substance may be included in illegal sale. - If evidence required to convict of illegal sale of controlled substance is the only evidence showing possession, illegal possession is included in crime of illegal sale as a matter of fact. Harmon v. State, 235 Ga. 329 , 219 S.E.2d 441 (1975).
Multiple accusations and indictments not barred. - Because no evidence showed that the information concerning the defendant was known to the proper prosecuting officer in Gwinnett County, and because no basis otherwise existed for a charge of conspiracy to traffic based on what officers recovered in the search of the defendant's home, the appeals court refused to state that the defendant could have been convicted of conspiracy to traffic methamphetamine in Gwinnett County, or that Gwinnett County should have charged the defendant with this crime; hence, under these circumstances, the Dawson County indictment was not barred under O.C.G.A. §§ 16-1-6(b)(1) and 16-1-7(b) . Bradford v. State, 283 Ga. App. 75 , 640 S.E.2d 630 (2006).
Controlled substances. - Defendant may be prosecuted, convicted, and separately sentenced for the simultaneous possession of each of the controlled substances listed in Schedule II of the Controlled Substances Act. Tabb v. State, 250 Ga. 317 , 297 S.E.2d 227 (1982).
Offense of unlawfully selling a noncontrolled substance while representing the substance to be a controlled substance (O.C.G.A. § 16-13-30.1 ) is not included in the offense of conspiracy to sell or distribute cocaine (O.C.G.A. § 16-13-30 ). Smith v. State, 202 Ga. App. 664 , 415 S.E.2d 481 (1992).
Possession of cocaine included in trafficking offense. - Offenses of possession of cocaine and possession of cocaine with intent to distribute were lesser included offenses, as a matter of fact, of the trafficking offense since proof of the two possession offenses was established by "the same or less than all the facts" required to establish the distribution offense; thus, it was error to convict the defendant of all three offenses. Hancock v. State, 210 Ga. App. 528 , 437 S.E.2d 610 (1993).
Possession of marijuana not included in crime of manufacturing. - Possession of marijuana is not a necessary element of the crime of knowingly manufacturing marijuana by cultivating or planting, and so misdemeanor possession is not a lesser offense included in the crime of manufacturing as a matter of law. Galbreath v. State, 213 Ga. App. 80 , 443 S.E.2d 664 (1994); Hunt v. State, 222 Ga. App. 66 , 473 S.E.2d 157 (1996).
Possession of marijuana and possession with intent to distribute. - Offense of possession of marijuana was included in the offense of possession of marijuana with intent to distribute, where the possession charge could be established by proof of a less culpable mental state (general criminal intent) than was required to establish the commission of possession with intent to distribute (specific criminal intent to distribute). Talley v. State, 200 Ga. App. 442 , 408 S.E.2d 463 (1991).
Charge on lesser included offense of possession with intent to distribute. - Because defendant was indicted for possession of more than 28 grams of methamphetamine, a violation of O.C.G.A. § 16-13-31 , defendant had sufficient notice that the lesser included offense of possession with intent to distribute, a violation of O.C.G.A. § 16-13-30(b) , might be submitted to the jury if the evidence warranted it; consequently, by charging the lesser offense in accordance with O.C.G.A. § 16-1-6 , the trial court did not permit the jury to convict defendant in a manner not alleged in the indictment in violation of defendant's due process rights. Rupnik v. State, 273 Ga. App. 34 , 614 S.E.2d 153 (2005).
Possession of drug-related objects conviction merged as a matter of fact into defendant's felony conviction for possession of cocaine. Reddick v. State, 249 Ga. App. 678 , 549 S.E.2d 151 , cert. denied, No. S01C1352, 2001 Ga. LEXIS 802 (Oct. 1, 2001).
Solicitation is not a lesser included offense of trafficking in methamphetamine in violation of O.C.G.A. § 16-13-31(e) , as the facts necessary to prove each offense are different. Dimas v. State, 276 Ga. App. 245 , 622 S.E.2d 914 (2005).
No separate quantity used to prove trafficking charge distinct from possession charge. - Because both the trafficking and manufacturing charges against defendants arose from methamphetamine found in a cooler, no other quantity of methamphetamine was presented at trial, and there was no separate quantity of methamphetamine used to prove the trafficking charge, defendants were entitled to resentencing because the convictions merged and the trial court erred in sentencing for both offenses. Goldsby v. State, 273 Ga. App. 523 , 615 S.E.2d 592 (2005).
Imposition of separate trafficking sentences proper. - Trial court did not err under O.C.G.A. §§ 16-1-6(2) and 16-1-7(a)(1) by sentencing the defendant separately for trafficking in methamphetamine, in violation of O.C.G.A. § 16-13-31 , and trafficking in ecstasy, in violation of O.C.G.A. § 16-13-31 .1, when the substance which was found in the defendant's vehicle tested positive for both methamphetamine and ecstasy as there was no evidence that chemical compounds or elements were shared between the drugs. Ahmad v. State, 312 Ga. App. 703 , 719 S.E.2d 563 (2011).
Kidnapping
Offenses of kidnapping and aggravated assault with intent to rape were not included in each other in law or in fact. Strozier v. State, 171 Ga. App. 703 , 320 S.E.2d 764 (1984); Isaacs v. State, 213 Ga. App. 379 , 444 S.E.2d 409 (1994).
Aggravated assault as included offense of kidnapping with bodily injury. - Because elements of crime of aggravated assault must have been proved in order to sustain conviction for crime of kidnapping with bodily injury, aggravated assault is an included offense of crime of kidnapping with bodily injury. Brown v. State, 247 Ga. 298 , 275 S.E.2d 52 , cert. denied, 454 U.S. 882, 102 S. Ct. 366 , 70 L. Ed. 2 d 192 (1981).
Aggravated assault and kidnapping. - Aggravated assault, with intent to rob as the factor in aggravation, is not a lesser included offense of kidnapping with bodily injury. Brown v. State, 232 Ga. App. 787 , 504 S.E.2d 452 (1998).
When one offense is established by the same but less than all of the facts required to establish another offense, the first merges into the second as a matter of fact; aggravated assault is a lesser included offense of, and merges with, the crime of kidnapping with bodily injury, and a trial court erred by failing to merge defendant's aggravated assault conviction into defendant's kidnapping with bodily injury conviction. Bailey v. State, 269 Ga. App. 262 , 603 S.E.2d 786 (2004).
Trial court did not err in denying defendant's motion to correct an illegal sentence, pursuant to O.C.G.A. §§ 16-1-6 and 16-1-7 , as defendant's convictions for aggravated assault and kidnapping, in violation of O.C.G.A. §§ 16-5-21 and 16-5-40(a) , respectively, did not merge as a matter of law, as only aggravated assault and kidnapping with bodily injury merged as a matter of law; further, the crimes did not merge as a matter of fact, as they were based on separate and distinct facts, and due to the timing of defendant's actions during the incident, the separate convictions were proper. Walker v. State, 275 Ga. App. 862 , 622 S.E.2d 64 (2005).
Kidnapping, aggravated assault, and rape were separate offenses, completed individually, and did not merge as a matter of fact; thus, the trial court did not err in refusing to merge the kidnapping counts into the aggravated assault and rape counts for purposes of sentencing. Dasher v. State, 281 Ga. App. 326 , 636 S.E.2d 83 (2006).
Because there was independent evidence to support each of the offenses as indicted, a defendant's aggravated assault conviction did not merge as a matter of fact with either the aggravated battery or kidnapping with bodily injury convictions. Pitts v. State, 287 Ga. App. 540 , 652 S.E.2d 181 (2007).
Trial court did not err in declining to merge kidnapping counts with aggravated assault counts because the aggravated assault involved different conduct from the kidnapping and was completed prior thereto and, thus, the same conduct did not establish the commission of both offenses; even if the kidnapping counts involved the same conduct as the aggravated assault, neither was included in the other after application of the "required evidence" test. Jones v. State, 290 Ga. 670 , 725 S.E.2d 236 (2012).
Kidnapping and aggravated sodomy. - Kidnapping and aggravated sodomy are not included in offenses as a matter of law and, even though they may be included as a matter of fact, where the same evidence was not used to prove both crimes, the trial court did not err by refusing to find a merger. Hardy v. State, 210 Ga. App. 811 , 437 S.E.2d 790 (1993).
Armed robbery and kidnapping. - Offenses of armed robbery and kidnapping with bodily injury did not merge as a matter of fact or law, where the robbery and kidnapping were completed before the victim was shot in the leg, and the evidence of neither offense was necessary to prove the other. Solomon v. State, 195 Ga. App. 882 , 395 S.E.2d 335 (1990).
Kidnapping with bodily injury and aggravated battery. - State established all the necessary elements of kidnapping with bodily injury upon showing that defendant grabbed victim's arm, forced the victim to the rear of the store, and then struck the victim in the face. The offense of aggravated battery was shown by the evidence of defendant's subsequent banging of victim's head against a concrete floor and choking of the victim. Robinson v. State, 210 Ga. App. 175 , 435 S.E.2d 466 (1993).
Kidnapping with bodily injury and battery. - In a prosecution for kidnapping with bodily injury and battery, use of the same evidence to prove that defendant perpetrated battery as proof of the offense of kidnapping with bodily injury required reversal of defendant's conviction and sentence for battery. Holmes v. State, 229 Ga. App. 671 , 494 S.E.2d 560 (1998).
Prosecution for kidnapping and escape. - See Bailey v. State, 146 Ga. App. 774 , 247 S.E.2d 588 (1978).
Kidnapping and false imprisonment. - After the defendant had been convicted of kidnapping with bodily injury, subsequent charges of false imprisonment, arising out of the same set of facts, were barred by former jeopardy under the "required evidence test" because false imprisonment was a lesser included offense of kidnapping with bodily injury. Sallie v. State, 216 Ga. App. 502 , 455 S.E.2d 315 (1995).
Trial court did not err in allowing the jury to consider the lesser included offense of false imprisonment after granting a directed verdict on the kidnapping charges against the defendant because false imprisonment was a lesser included offense of kidnapping, and the indictment against the defendant contained all the essential elements related to false imprisonment. Martinez v. State, 318 Ga. App. 254 , 735 S.E.2d 785 (2012).
Prosecution for felony murder upon conviction for kidnapping. - Once the state tried and convicted petitioner for kidnapping, it would be barred from prosecuting the petitioner for felony murder only if underlying felony upon which that prosecution was based was that same kidnapping. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575 , 70 L. Ed. 2 d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733 , 77 L. Ed. 2 d 235 (1983).
Malice murder and kidnapping are not same offense for double jeopardy purposes even though they involve same transaction and considerably overlap each other factually. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575 , 70 L. Ed. 2 d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733 , 77 L. Ed. 2 d 235 (1983).
Evidence of murder as a basis for separate conviction of kidnapping. - Evidence of murder of a given victim can be used as basis for separate conviction of murder count and also as basis for conviction of kidnapping with bodily injury to same victim. Brown v. State, 247 Ga. 298 , 275 S.E.2d 52 , cert. denied, 454 U.S. 882, 102 S. Ct. 366 , 70 L. Ed. 2 d 192 (1981).
Murder and kidnapping with bodily injury are not included crimes as a matter of law. Stephens v. Hopper, 241 Ga. 596 , 247 S.E.2d 92 , cert. denied, 439 U.S. 991, 99 S. Ct. 593 , 58 L. Ed. 2 d 667 (1978).
Murder and kidnapping with bodily injury not included as a matter of fact under former Code 1933, § 26-505(1) since these crimes have distinct elements. Stephens v. Hopper, 241 Ga. 596 , 247 S.E.2d 92 , cert. denied, 439 U.S. 991, 99 S. Ct. 593 , 58 L. Ed. 2 d 667 (1978).
When the defendant was convicted for murder and kidnapping with bodily injury of the same victim, the bodily injury alleged was the killing of the victim. As a matter of fact, as well as a matter of law, the murder and kidnapping with bodily injury were not included offenses so as to bar the defendant from being prosecuted and subsequently convicted of both crimes. Neither crime could have been established by proof of the same or less than all of facts required to establish commission of crime charged. The murder required finding of malice aforethought, but the kidnapping required no such finding. The kidnapping required a finding of unlawful abduction, while such a finding is not necessary for conviction for murder. Brown v. State, 247 Ga. 298 , 275 S.E.2d 52 , cert. denied, 454 U.S. 882, 102 S. Ct. 366 , 70 L. Ed. 2 d 192 (1981).
Kidnapping, rape, and sodomy. - When the evidence used to establish the offense of kidnapping with bodily injury was the asportation of the victim and the bite marks, bumps, and bruises suffered by the victim when the victim was pushed inside the apartment and prevented from leaving and the offenses of rape and sodomy were proved by testimony concerning subsequent events, the facts used to prove the crimes of rape and sodomy were different from those used to show the essential elements of kidnapping with bodily injury; therefore, the offenses did not merge. Peterson v. State, 212 Ga. App. 31 , 441 S.E.2d 267 (1994).
Rape and kidnapping with bodily injury. - Double jeopardy attached where the state sought to prosecute defendant for rape and sodomy in one county based upon the same facts, upon the same actual evidence, which was used to convict defendant for kidnapping with bodily injury in another county. State v. Sallie, 206 Ga. App. 732 , 427 S.E.2d 11 (1992).
Because the proof establishing the crime of rape did not use up the proof establishing the crime of kidnapping with bodily injury, the crimes did not merge; accordingly, the trial court did not err by refusing to merge two of defendant's kidnapping with bodily injury convictions with two of defendant's rape convictions. Collins v. State, 267 Ga. App. 784 , 600 S.E.2d 802 (2004).
Kidnapping with bodily harm and rape. - In a criminal trial, the offenses of kidnapping with bodily harm and rape were not merged where under the facts neither offense was included in the other as a matter of fact nor as a matter of law. Turner v. State, 194 Ga. App. 878 , 392 S.E.2d 256 (1990).
Kidnapping and rape not included. - Since neither the crime of kidnapping nor rape were included in the other as a matter of fact, the court did not err by sentencing defendant for both offenses. Dawson v. State, 203 Ga. App. 146 , 416 S.E.2d 125 , cert. denied, 203 Ga. App. 905 , 416 S.E.2d 125 (1992).
Kidnapping is not included in crime of robbery as a matter of law. Chambley v. State, 163 Ga. App. 502 , 295 S.E.2d 166 (1982).
Robbery by force and kidnapping with bodily injury. - After the victim testified that defendants grabbed the victim outside of the restaurant, forced the victim into and through the restaurant and the victim did not willingly accompany the defendants, and that the robbery was effectuated once defendants were inside the restaurant, the offenses of robbery by force and kidnapping with bodily injury were not merged as a matter of fact. Powell v. State, 210 Ga. App. 409 , 437 S.E.2d 598 (1993).
Murder
Aggravated assault with intent to commit murder and with a deadly weapon may be charged as lesser included offenses of murder. Hall v. State, 163 Ga. App. 515 , 295 S.E.2d 194 (1982).
Aggravated assault and attempt to commit murder. - Aggravated assault conviction merged into a criminal attempt to commit murder conviction, where both counts were based on allegations that defendant had stabbed the victim with a knife. Kelley v. State, 201 Ga. App. 343 , 411 S.E.2d 276 (1991).
Aggravated assault and malice murder. - Where evidence used to prove that defendant perpetrated the aggravated assault of decedent - that defendant fired a deadly weapon and wounded the victim - was used to establish that defendant had committed malice murder, convictions for both aggravated assault and murder violated double jeopardy. Montes v. State, 262 Ga. 473 , 421 S.E.2d 710 (1992).
Codefendant's conviction for aggravated assault had to be vacated because that conviction merged as a matter of fact into the conviction for malice murder since the medical examiner who performed the autopsy of the victim testified that the cause of death was "gunshot wounds," did not identify any injury as the fatal shot, acknowledged the examiner could not testify as to the order in which the bullets entered the victim's body, and stated no single wound would have instantly stopped the victim; in the absence of evidence that one wound was fatal and was preceded by a "deliberate interval" in the series of shots fired and by the infliction of non-fatal wounds, there was no evidence to support the infliction of an aggravated assault separate and apart from the malice murder. Coleman v. State, 286 Ga. 291 , 687 S.E.2d 427 (2009).
Defendant's conviction for aggravated assault of the victim merged into the conviction for malice murder of the victim because there was no evidence that the victim suffered a non-fatal injury prior to a deliberate interval in the attack and a fatal injury thereafter; the forensic pathologist who conducted the autopsy catalogued the victim's wounds as "chop injuries" that fractured the victim's skull and incapacitated the victim and were likely inflicted with a hatchet, punctures and superficial, deep, and very deep incisions and stab wounds that were inflicted by knives. Alvelo v. State, 290 Ga. 609 , 724 S.E.2d 377 (2012).
Aggravated assault merged with malice murder. - When the evidence did not support a conviction for aggravated assault that was independent of acts that caused the victim's death, conviction of the defendant for aggravated assault merged with the defendant's conviction for malice murder. Fetty v. State, 268 Ga. 365 , 489 S.E.2d 813 (1997).
Although the evidence was sufficient to find defendant guilty of malice murder, because the aggravated assault was not independent of the act that caused the victim's death, the aggravated assault charge was included in the murder conviction. Evans v. State, 275 Ga. 672 , 571 S.E.2d 780 (2002).
Defendant's conviction and sentence for aggravated assault was vacated as the malice murder and the aggravated assault charges merged as a matter of fact, because the same evidence to prove aggravated assault as indicted, stabbing the victim with a knife, was used to prove malice murder. Williams v. State, 279 Ga. 154 , 611 S.E.2d 19 (2005).
Convictions against the defendant for both malice murder and aggravated assault were error under O.C.G.A. § 16-1-7(a)(1) as the aggravated assault was included within the malice murder conviction under O.C.G.A. § 16-1-6(1) because the same conduct established the commission of both offenses. Bell v. State, 284 Ga. 790 , 671 S.E.2d 815 (2009).
Armed robbery is not a lesser included offense of malice murder as a matter of law. Addison v. State, 239 Ga. 622 , 238 S.E.2d 411 (1977); Chafin v. State, 246 Ga. 709 , 273 S.E.2d 147 (1980). (But see Burke v. State, 234 Ga. 512 , 216 S.E.2d 812 (1975)).
When the evidence showed the defendant was one of three perpetrators contemplating both murder and armed robbery when the perpetrators embarked on the criminal venture, defendant was a knowing participant in both crimes, and a pistol subsequently found in defendant's possession was property taken from the victim which formed the basis for the armed robbery charge, the armed robbery was not a lesser included offense of malice murder. Lemay v. State, 264 Ga. 263 , 443 S.E.2d 274 (1994).
Armed robbery as included offense of malice murder. - When the defendant is charged with armed robbery of a murder victim, proof of the armed robbery is essential to support the defendant's conviction of malice murder and is an included offense. Burke v. State, 234 Ga. 512 , 216 S.E.2d 812 (1975).
Burglary and murder not lesser included offenses of each other. - Charges of burglary based on defendant's intent to commit aggravated assault on the occupant of the entered dwelling and murder for death of the occupant during burglary were neither legally incompatible nor lesser included offenses of each other. Williams v. State, 250 Ga. 553 , 300 S.E.2d 301 (1983), overruled on other grounds by Venturino v. State, 830 S.E.2d 110 , 2019 Ga. LEXIS 435 (Ga. 2019), cert. denied, 462 U.S. 1124, 103 S. Ct. 3097 , 77 L. Ed. 2 d 1356 (1983).
When the defendant is found guilty of felony murder, the underlying felony is a lesser included offense. Blankenship v. State, 247 Ga. 590 , 277 S.E.2d 505 (1981), overruled on other grounds, Thompson v. State, 263 Ga. 23 , 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819 , 561 S.E.2d 82 (2002).
Additional felony murder charge predicated on burglary cannot be construed as a lesser-included offense of felony murder predicated on aggravated assault or of malice murder under O.C.G.A. § 16-1-6 . Sallie v. State, 276 Ga. 506 , 578 S.E.2d 444 , cert. denied, 540 U.S. 902, 124 S. Ct. 251 , 157 L. Ed. 2 d 185 (2003).
Felony firearm possession and felony murder. - Conviction of possession of a firearm by a convicted felon merged with the conviction of felony murder, as the underlying felony was possession of a firearm by a convicted felon, such that defendant's conviction and sentence on the possession charge were vacated. Garrett v. State, 263 Ga. 131 , 429 S.E.2d 515 (1993).
Conviction for possession of a firearm by a convicted felon required vacating, as that crime was specified as underlying the felony murder charge in the indictment and in the court's instructions to the jury. Dennis v. State, 263 Ga. 257 , 430 S.E.2d 742 (1993).
Underlying felony is a lesser included offense of felony murder under O.C.G.A. § 16-1-6 and conviction of both offenses is proscribed under provisions of O.C.G.A. § 16-1-7 . Woods v. State, 233 Ga. 495 , 212 S.E.2d 322 (1975); Atkins v. Hopper, 234 Ga. 330 , 216 S.E.2d 89 (1975); Jowers v. State, 259 Ga. 401 , 382 S.E.2d 595 (1989).
As felony murder is defined under Georgia law, the underlying felony is a lesser included offense of felony murder and thus the same offense for double jeopardy purposes. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575 , 70 L. Ed. 2 d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733 , 77 L. Ed. 2 d 235 (1983).
Robbery by force and malice murder were separate crimes which did not merge as a matter of law. Hill v. State, 274 Ga. 591 , 555 S.E.2d 696 (2001).
Armed robbery and felony murder. - When proof of the armed robbery is essential to the conviction for felony murder, the armed robbery is a lesser included offense in the felony murder. Sanborn v. State, 251 Ga. 169 , 304 S.E.2d 377 (1983).
Felony murder not lesser included offense. - Since the defendant used a pistol in two different ways to inflict separate and distinct wounds on the victim, and the acts giving rise to the two crimes were separated by intervening events, the crime of aggravated assault was not established by the same but by less than all the facts required to establish the crime of felony murder, and the trial court did not err in refusing to merge the aggravated assault conviction. Garrett v. State, 263 Ga. 131 , 429 S.E.2d 515 (1993).
In a prosecution on separate counts of malice murder, armed robbery, and kidnapping, the trial court did not err in failing to charge the jury on felony murder as a lesser included offense. Henry v. State, 265 Ga. 732 , 462 S.E.2d 737 (1995).
Murder is not a lesser included offense under crime of possession of firearm during commission of felony. Wilson v. Zant, 249 Ga. 373 , 290 S.E.2d 442 , cert. denied, 459 U.S. 1092, 103 S. Ct. 580 , 74 L. Ed. 2 d 940 (1982).
Voluntary manslaughter is a lesser included offense of felony murder. Young v. State, 141 Ga. App. 261 , 233 S.E.2d 221 (1977).
Voluntary manslaughter is a lesser included offense of felony murder, because an act done in passion involves a less culpable mental state than that of real or imputed malice which is the foundation of the felony murder rule. Therefore, where facts warrant it, a charge on voluntary manslaughter may indeed be given in a felony murder trial. Malone v. State, 238 Ga. 251 , 232 S.E.2d 907 (1977).
Merger of aggravated assault conviction into voluntary manslaughter conviction. - Trial court erred in failing to merge both defendants' convictions for voluntary manslaughter and aggravated assault with a deadly weapon because the indictments charged the defendants with felony murder by alleging that the defendants committed aggravated assault, but the court then charged the defendants with aggravated assault based on the exact same conduct; and, although the jury convicted the defendants of voluntary manslaughter as a lesser-included offense of felony murder, the court, nevertheless, followed the defendants' convictions for aggravated assault merged as a matter of fact into the defendants convictions for voluntary manslaughter. Hamlette v. State (two cases), 353 Ga. App. 640 , 839 S.E.2d 161 (2020).
Indictment sufficient to notify defendant of felony murder. - Defendant indicted in two counts, one for malice murder and the other for the armed robbery of the deceased at the same time, is on notice that defendant may be found guilty of felony murder, armed robbery being the felony. But a defendant indicted only for malice murder cannot be convicted of felony murder unless the defendant has been put on notice of the felony by the facts alleged to show how the murder was committed. McCrary v. State, 252 Ga. 521 , 314 S.E.2d 662 (1984).
An accused may be convicted of an offense included in the underlying felony charged in a felony-murder indictment; if the evidence would authorize a finding that the accused committed an offense included in the underlying felony charged in a felony murder indictment, and if that included offense was a misdemeanor, then a guilty verdict as to felony-grade involuntary manslaughter would be authorized. Motes v. State, 192 Ga. App. 302 , 384 S.E.2d 463 (1989).
Indictment charging involuntary manslaughter by simple battery sufficient. - Indictment charging the defendant with involuntary manslaughter by the commission of the unlawful act of simple battery in violation of O.C.G.A. §§ 16-5-3(a) and 16-5-23(a) was not void because the factual allegations in the indictment sufficiently described the offense of involuntary manslaughter in the commission of the unlawful act of simple battery. Morris v. State, 310 Ga. App. 126 , 712 S.E.2d 130 (2011).
Aggravated battery merged with malice murder. - Defendant's convictions for both aggravated battery and malice murder were prohibited by O.C.G.A. § 16-1-6(2) because the victim's death was caused by the same actions that caused the victim's murder; because the only difference between the offenses was that the former required a lesser injury, the defendant could not be convicted of both. Ledford v. State, 289 Ga. 70 , 709 S.E.2d 239 , cert. denied, 565 U.S. 1017, 132 S. Ct. 556 , 181 L. Ed. 2 d 401 (2011), overruled on other grounds by Willis v. State, 394 Ga. 686 , 820 S.E.2d 640 (2018).
Evidence of a three-year-old child's injuries and death was sufficient to support the defendant's conviction for malice murder, felony murder, aggravated assault, and aggravated battery; however, the defendant's conviction for aggravated battery based on the fracture of the child's ribs should have been merged into the defendant's conviction for murder under O.C.G.A. § 16-1-6(b). Soilberry v. State, 289 Ga. 770 , 716 S.E.2d 162 (2011).
Aggravated battery merged with attempted murder. - Most reasonable understanding of the conviction for lesser included offenses statute as applied to attempted murder and aggravated battery is that the aggravated battery merges into the greater offense of attempted murder when the crimes are predicated upon the same conduct. The Georgia Supreme Court overrules Hernandez v. State, 317 Ga. App. 845 (2012), Zamudio v. State, 332 Ga. App. 37 (2015), and Dobbs v. State, 2020 Ga. App. Lexis 279 (2020), to the extent that those cases hold otherwise. Priester v. State, Ga. , 845 S.E.2d 683 (2020).
Family violence aggravated battery merged with attempted murder. - Trial court erred in failing to merge the offense of family violence aggravated battery with attempted murder as both convictions were established by the same conduct. Hernandez v. State, 317 Ga. App. 845 , 733 S.E.2d 30 (2012).
Aggravated battery did not merge into attempted murder. - Trial court erred in merging the conviction that required the greater injury, aggravated battery, into the conviction that required the lesser injury, attempted murder. Zamudio v. State, 332 Ga. App. 37 , 771 S.E.2d 733 (2015).
Merger of counts follow murder and multiple victims. - Conspiracy to commit the two alleged injuries to one victim and the victim's property did not require proof of causing a second victim's death, and proof of causing the second victim's death as a result of aggravated assault did not require proof of acts for which the defendant was found guilty in two counts; thus, that portion of the sentencing order whereby the trial court merged the convictions on those counts had to be vacated. Grissom v. State, 296 Ga. 406 , 768 S.E.2d 494 (2015).
Rape
Crime of adultery is not a lesser offense included in crime of rape, because in order to prove adultery, additional fact of marriage must be shown. Lamar v. State, 243 Ga. 401 , 254 S.E.2d 353 , appeal dismissed, 444 U.S. 803, 100 S. Ct. 23 , 62 L. Ed. 2 d 16 (1979).
When evidence of aggravated assault was unnecessary to prove rape both crimes were properly submitted. Hughes v. State, 239 Ga. 393 , 236 S.E.2d 829 (1977).
Where there was evidence presented that more than one assault took place prior to and during a rape, the jury was authorized to conclude that at least one of the assaults was gratuitous and unconnected with the rape offense; the defendant could be convicted of both rape and aggravated assault. Sylvester v. State, 168 Ga. App. 718 , 310 S.E.2d 284 (1983).
Conviction of aggravated assault. - When, after completing the act of forcible intercourse (rape), defendant drew a gun again, pulled back the hammer, and threatened to shoot both victims if they did not obey defendant's further commands, this second drawing of the deadly weapon was subsequent to, and separate from, the completed offense of rape against the first victim; thus, the evidence regarding the use of force during the incident was not "used up" in the offense of rape, and defendant could properly be convicted of aggravated assault. Ellis v. State, 181 Ga. App. 826 , 354 S.E.2d 15 (1987).
When aggravated assaults constituted gratuitous physical violence which was distinguished from the forced sex acts, and occurred in different locations in the house and to different parts of the victim's body than the sex crimes, there was no factual merger of the offenses of aggravated assault and of rape and aggravated sodomy. Taylor v. State, 202 Ga. App. 671 , 415 S.E.2d 483 (1992).
Incest may be an included offense of statutory rape under appropriate facts. McCranie v. State, 157 Ga. App. 110 , 276 S.E.2d 263 (1981), overruled on other grounds by Drinkard v. Walker, 281 Ga. 211 , 636 S.E.2d 530 (2006).
Statutory rape and incest not included offenses. - Defense counsel was not ineffective under Ga. Const. 1983, Art. I, Sec. I, Para. XIV and U.S. Const., amend. 6 in failing to argue at trial and on appeal that the inmate's statutory rape and incest convictions should have merged into the inmate's rape conviction as a matter of fact since all of the crimes arose out of the same incident, as the crimes of statutory rape and incest were not established by proof of the same or less than all the facts required to establish the crime of rape; the inmate's convictions of statutory rape under O.C.G.A. § 16-6-3 and incest under O.C.G.A. § 16-6-22 were not included pursuant to O.C.G.A. § 16-1-6(1) in the rape conviction under O.C.G.A. § 16-6-1 , as statutory rape, which required evidence as to the victim's age and that the victim was not the inmate's spouse, and incest, which required proof of the victim's relation to the inmate, had elements not required for rape. Drinkard v. Walker, 281 Ga. 211 , 636 S.E.2d 530 (2006).
Statutory rape not lesser included offense of forcible rape. - Trial court did not err in failing to instruct the jury that statutory rape was a lesser included offense of forcible rape because a conviction of statutory rape required proof that the victim was under the age of consent, while a conviction of rape required proof of force, regardless of the victim's age. Stuart v. State, 318 Ga. App. 839 , 734 S.E.2d 814 (2012).
Rape and assault with intent to rape. - Offense of rape includes the lesser offense of assault with intent to rape. Padgett v. State, 205 Ga. App. 576 , 423 S.E.2d 411 (1992).
Simple assault did not merge with assault with intent to rape. - There was no merger of offenses as a result of defendant's conviction of simple assault and aggravated assault with the intent to rape, where there was sufficient evidence of two separate assaults, the simple assault having been a sequential reaction to the victim's resistance to the charged sexual assault. Watson v. State, 178 Ga. App. 778 , 344 S.E.2d 667 (1986).
Merger of attempted rape and aggravated assault. - Defendant's conviction for aggravated assault with intent to rape under O.C.G.A. § 16-5-21(a)(1) merged into the defendant's conviction for attempted rape under O.C.G.A. §§ 16-4-1 (criminal attempt) and 16-6-1 (rape) because the same evidence supported both convictions and, therefore, the aggravated assault conviction was vacated. Smith v. State, 313 Ga. App. 170 , 721 S.E.2d 165 (2011).
Simple battery as included offense of rape. - Simple battery merged into the defendant's rape conviction as a matter of fact, since the same impermissible touching - the hitting and slapping which constituted simple battery - also supplied the element of force necessary for conviction of rape, thereby requiring reversal of the simple battery conviction. Johnson v. State, 195 Ga. App. 723 , 394 S.E.2d 586 (1990).
No merger of rape and incest. - Defendant's rape and incest convictions did not merge because each crime required proof of an additional fact that the other did not because, to establish the crime of rape, the state had to prove that the defendant lacked consent, which was not an element of incest; and, to establish the crime of incest, the state had to prove that the victim was of a certain relation to the defendant, which was not an element of rape; thus, the trial court did not err in sentencing the defendant for both rape and incest. Tinson v. State, 337 Ga. App. 83 , 785 S.E.2d 914 (2016).
Acquittal of offense charged precludes adjudication as to lesser included offense. - When the defendant cannot be guilty of charge of rape without also being guilty of the burglary of which the defendant has been tried and acquitted, as an essential element of burglary is an intent to commit a felony, specified in the indictment as rape, the defendant cannot be put in jeopardy for purpose of again adjudicating an issue which has already been determined in the defendant's favor. State v. Lamb, 147 Ga. App. 435 , 249 S.E.2d 150 (1978).
Child Molestation
Aggravated child molestation and rape. - Entering separate convictions and sentences for aggravated child molestation and rape was error where the evidence established that the injuries sustained by the victim as a result of the rape were the same injuries as those alleged as the basis for the charge of aggravated child molestation. Caldwell v. State, 263 Ga. 560 , 436 S.E.2d 488 (1993).
Where the forcible rape was both the act and the cause-in-fact of the injuries that formed the basis for the aggravated child molestation, the proof of one necessarily proved the other and, while it was proper to prosecute defendant for both rape and aggravated child molestation, defendant should have been convicted and sentenced only for the rape. Donaldson v. State, 244 Ga. App. 89 , 534 S.E.2d 839 (2000).
Because defendant's aggravated child molestation and rape convictions were based on separate and distinct sexual acts and different conduct, those convictions could not have been included offenses under O.C.G.A. §§ 16-1-6 and 16-1-7 ; accordingly, defendant's pro se motion to vacate the sentence as void was properly denied. Reed v. State, 297 Ga. App. 850 , 678 S.E.2d 560 (2009).
Aggravated assault to commit rape did not merge with cruelty to children and sexual battery. - Juvenile court was authorized to adjudicate juvenile delinquent for aggravated battery with intent to rape upon evidence showing that the juvenile removed the victim's t-shirt and bra against her will; cruelty to children offense was supported by evidence showing that the victim after the fact was scared, crying, shaking, and subject to hives causing her to withdraw from school; and the sexual battery offense was supported by evidence that the juvenile touched the victim's breasts and vaginal area after striking her in the face, forcing her onto her back on the sofa. In the Interest of J.C., 255 Ga. App. 471 , 566 S.E.2d 39 (2002).
Attempted aggravated child molestation and attempted aggravated sodomy. - In the defendant's trial for charges for going to a meeting place with the purpose of having sex with fictitious brothers, ages 12 and 5, the trial court erred in merging attempted aggravated child molestation into attempted aggravated sodomy convictions because the offenses did not merge in either direction under O.C.G.A. §§ 16-1-6 and 16-1-7 . Each required proof of an element the other did not, and the two crimes were equally serious. Metcalf v. State, 349 Ga. App. 408 , 825 S.E.2d 909 (2019).
Aggravated sodomy did not merge into the offense of child molestation, where one of the offenses was established by proof of the same or less than all the facts required to prove the other. LeGallienne v. State, 180 Ga. App. 108 , 348 S.E.2d 471 (1986).
Evidence demonstrated that defendant's convictions of aggravated sodomy and aggravated child molestation were supported by separate facts because the victim testified to several separate sexual acts; thus, the evidence authorized the jury to find that more than one instance of sodomy and molestation occurred, permitting a conviction for each offense based on separate occasions, the crimes did not merge, and the trial court was correct in sentencing defendant on each count. Henry v. State, 274 Ga. App. 139 , 616 S.E.2d 883 (2005).
Child molestation and aggravated sexual battery did not merge where the child molestation conviction was supported by evidence that the defendant fondled the victim's breasts and the exterior of her vagina on numerous occasions, and the aggravated sexual battery conviction was based on evidence that defendant penetrated the victim's vagina with defendant's finger. Seidenfaden v. State, 249 Ga. App. 314 , 547 S.E.2d 578 (2001).
Trial court did not err in refusing to merge defendant's offenses of child molestation and aggravated sexual battery, as defendant's conviction of aggravated sexual battery was supported by evidence that defendant penetrated the victim's vagina with defendant's fingers, and defendant's conviction of child molestation was supported by evidence that he also touched her down in between the victim's legs; thus, the convictions were supported by separate facts, and there was no merger. Childers v. State, 257 Ga. App. 377 , 571 S.E.2d 420 (2002).
Trial court did not err in sentencing defendant on defendant's convictions for aggravated sexual battery and child molestation by not merging the aggravated sexual battery offense into the child molestation offense involving the same victim; the state proved that the offenses involved separate acts, and, thus, merger of those offenses would not have been appropriate. Aaron v. State, 275 Ga. App. 269 , 620 S.E.2d 499 (2005).
Because a defendant's convictions for aggravated sexual battery and child molestation were both based on the defendant's touching of the victim's genital area in connection with the penetration of her vagina with a finger, the offenses merged under O.C.G.A. § 16-1-6(1) . Davenport v. State, 277 Ga. App. 758 , 627 S.E.2d 133 (2006).
Trial court properly refused to merge, for sentencing purposes, defendant's convictions for aggravated sexual battery and child molestation since the charged offense of aggravated sexual battery required proof of penetration, whereas the charged offense of child molestation did not. As a result, the separate acts were neither factually nor legally contained in the other respective count and, therefore, the offenses did not merge. Daniel v. State, 292 Ga. App. 560 , 665 S.E.2d 696 , cert. denied, No. S08C1931, 2008 Ga. LEXIS 891 (Ga. 2008).
Defendant's child molestation conviction under O.C.G.A. § 16-6-4(a) did not merge under O.C.G.A. §§ 16-1-6(1) and 16-1-7(a) into the defendant's aggravated sexual battery conviction under O.C.G.A. § 16-6-22.2 as the child molestation charge required proof that the defendant committed an immoral and indecent act with the intent to arouse and satisfy the defendant's sexual desires, whereas the aggravated sexual battery charge did not, and the aggravated sexual battery charge required proof of penetration, whereas the child molestation charge did not. Gaston v. State, 317 Ga. App. 645 , 731 S.E.2d 79 (2012).
Child molestation and aggravated child molestation. - Trial court did not err in entering separate sentences for the offenses of aggravated child molestation and child molestation, where the indictment charged defendant with separate and different sexual acts, and the act which constituted the offense of aggravated child molestation was proved without any reference to the acts which constituted the offenses of child molestation. Sweet v. State, 196 Ga. App. 451 , 396 S.E.2d 82 (1990).
Two crimes of aggravated child molestation and child molestation did not merge when different evidence could be used to prove each offense separately. Brewer v. State, 251 Ga. App. 77 , 553 S.E.2d 363 (2001)(Unpublished).
Child molestation and cruelty to children. - Trial court did not err in failing to merge the defendant's convictions for child molestation, O.C.G.A. § 16-6-4(a) , and cruelty to children, O.C.G.A. § 16-5-70 , because each crime required proof of at least one additional element that the other did not, and thus, even if the same conduct established the commission of both child molestation and cruelty to children, the two crimes did not merge; cruelty to children, but not child molestation, requires proof that the victim was a child under the age of 18 who was caused cruel or excessive physical or mental pain, O.C.G.A. § 16-5-70(b) , and in contrast, child molestation, but not cruelty to children, requires proof that the victim was under 16 years of age and that the defendant performed an immoral or indecent act upon or in the presence of the child for the purpose of arousing or satisfying the defendant's or the child's sexual desires, O.C.G.A. § 16-6-4(a) . Chandler v. State, 309 Ga. App. 611 , 710 S.E.2d 826 (2011).
Child molestation and rape. - Conviction of child molestation did not merge into the offense of rape, where the evidence showed that the jury was authorized to find that defendant fondled the victim and, in an entirely separate incident later that evening, raped the victim. Jimmerson v. State, 190 Ga. App. 759 , 380 S.E.2d 65 , cert. denied, 190 Ga. App. 898 , 380 S.E.2d 65 (1989).
Child molestation and aggravated sodomy. - O.C.G.A. § 16-6-4(a) (child molestation) was not a lesser included offense of O.C.G.A. § 16-6-2 (aggravated sodomy), either as a matter of law under O.C.G.A. § 16-1-6(2) or O.C.G.A. § 16-1-7(a) , or as a matter of fact. Hill v. State, 183 Ga. App. 654 , 360 S.E.2d 4 (1987).
Child molestation in connection with the fondling of the victim's vagina did not merge with aggravated sodomy charges based on two acts of oral sex, where the acts of sodomy were not used to establish the child molestation charge. Pressley v. State, 197 Ga. App. 270 , 398 S.E.2d 268 (1990).
Child molestation and aggravated sodomy are legally distinct, and when the indictment for each offense is based on separate and distinct acts, the offenses do not merge. Howard v. State, 200 Ga. App. 188 , 407 S.E.2d 769 , cert. denied, 1991 Ga. LEXIS 542 (Ga. 1991), subsequent appeal, 210 Ga. App. 716 , 437 S.E.2d 483 (1993), habeas corpus denied, 266 Ga. 771 , 470 S.E.2d 678 (1996), recons. denied; overruled on other grounds by State v. Burns, 829 S.E.2d 367 , 2019 Ga. LEXIS 400 (Ga. 2019), cert. denied, 200 Ga. App. 896 , 407 S.E.2d 769 (1991), cert. denied, 1991 Ga. LEXIS 542 (Ga. 1991), subsequent appeal, 210 Ga. App. 716 , 437 S.E.2d 483 (1993), habeas corpus denied, 266 Ga. 771 , 470 S.E.2d 678 (1996), recons. denied; overruled on other grounds by State v. Burns, 829 S.E.2d 367 , 2019 Ga. LEXIS 400 (Ga. 2019).
When the victim's testimony and other physical evidence clearly showed two incidents of sodomy, one occurring prior to the rape and one afterward, the appellant's contention that the counts of aggravated child molestation and aggravated sodomy were based on a single sexual act and should be merged was invalid. Garland v. State, 213 Ga. App. 583 , 445 S.E.2d 567 (1994).
Child molestation and other sexual assaults. - Because the evidence of defendant's sexual assault of the child victim over a period of a year was sufficient to find defendant guilty of rape, two counts of aggravated child molestation, sodomy, and the charge of aggravated sexual battery, the two counts of aggravated child molestation did not merge as a matter of fact under O.C.G.A. § 16-1-6(1) . Keown v. State, 275 Ga. App. 166 , 620 S.E.2d 428 (2005).
In a criminal trial on multiple counts of sexual offenses committed against a child victim, there was no error in the trial court's decision not to merge all of the convictions into a cruelty to children count, as the record was replete with multiple acts of sexual abuse and the evidence accordingly did not require merger because the state did not use evidence that the defendant committed one crime in proving another. Daniels v. State, 278 Ga. App. 332 , 629 S.E.2d 36 (2006).
Child molestation as lesser included offense of statutory rape. - Trial court did not err in instructing the jury that it could return a verdict on child molestation, where defendant had been indicted for statutory rape and the evidence showed that child molestation was a lesser included offense of statutory rape as a matter of fact. Burgess v. State, 189 Ga. App. 790 , 377 S.E.2d 543 (1989), aff'd, 194 Ga. App. 179 , 390 S.E.2d 92 (1990).
Trial court erred when it convicted defendant of child molestation because the facts which were used to prove child molestation were the same facts which proved statutory rape, and the court should have merged the child molestation conviction with the statutory rape conviction. Dorsey v. State, 265 Ga. App. 404 , 593 S.E.2d 945 (2004).
Cruelty to children and rape. - When the evidence used to establish the offense of cruelty to children was grabbing and pulling the victim's hair and holding the victim's throat, and the offense of rape, including the element of force, was amply proven by the subsequent events including the defendant's threats to kill the victim before and during intercourse, the jury was authorized to conclude that two separate and distinct offenses were committed. Love v. State, 190 Ga. App. 264 , 378 S.E.2d 893 (1989), overruled on other grounds by Drinkard v. Walker, 281 Ga. 211 , 636 S.E.2d 530 (2006).
Lesser offense of cruelty to children did not merge into the greater offenses of rape and aggravated child molestation, where the facts that the victim was threatened and terrorized, that the victim screamed in pain, and that the victim continued to experience pain and discomfort and would suffer forever from the venereal diseases contracted from defendant were not needed to prove the elements of rape and aggravated child molestation. Ranalli v. State, 197 Ga. App. 360 , 398 S.E.2d 420 (1990).
Charges of rape, statutory rape, incest, aggravated child molestation, sodomy, and cruelty to children. - Charges of rape, statutory rape, incest, aggravated child molestation, sodomy, and cruelty to children did not merge into the single count of cruelty to children where the evidence showed that defendant repeatedly sexually assaulted and sodomized the victim, defendant's 13-year old adopted daughter, over a nine-month period. Edmonson v. State, 219 Ga. App. 323 , 464 S.E.2d 839 (1995), overruled on other grounds, Collins v. State, 229 Ga. App. 658 , 495 S.E.2d 59 (1997).
Sexual battery can be a lesser included offense of child molestation in particular cases where the facts alleged in the indictment for child molestation also include all of the elements of sexual battery. Strickland v. State, 223 Ga. App. 772 , 479 S.E.2d 125 (1996), overruled on other grounds, Watson v. State, 297 Ga. 718 , 777 S.E.2d 677 (2015).
Even though the facts in an indictment for child molestation were sufficient to charge the lesser offense of sexual battery, where the evidence presented demanded a finding of child molestation or nothing, the trial court did not err by refusing to charge on sexual battery. Strickland v. State, 223 Ga. App. 772 , 479 S.E.2d 125 (1996), overruled on other grounds, Watson v. State, 297 Ga. 718 , 777 S.E.2d 677 (2015).
Sexual battery does not differ from child molestation in the manners set forth in O.C.G.A. § 16-1-6(2) . Teasley v. State, 207 Ga. App. 719 , 429 S.E.2d 127 (1993), overruled on other grounds, Strickland v. State, 223 Ga. App. 772 , 479 S.E.2d 125 (1996).
Indictment taken together with the evidence indicated that sexual battery was not a lesser included offense of child molestation in case as a matter of fact, and there was no error in the trial court's refusal to charge the jury on the law of sexual battery for such a charge was not authorized by the law or the evidence. Teasley v. State, 207 Ga. App. 719 , 429 S.E.2d 127 (1993), overruled on other grounds, Strickland v. State, 223 Ga. App. 772 , 479 S.E.2d 125 (1996).
Sodomy count merged into child molestation, where the offense of sodomy as alleged was included as a matter of fact in the offense of child molestation as alleged. Horne v. State, 192 Ga. App. 528 , 385 S.E.2d 704 (1989), cert. denied, 494 U.S. 1006, 110 S. Ct. 1302 , 108 L. Ed. 2 d 749 (1990).
Sodomy is a lesser included offense of aggravated sodomy. Stover v. State, 256 Ga. 515 , 350 S.E.2d 577 (1986).
Statutory rape included in crime of aggravated child molestation. - Crime of statutory rape was included, as a matter of fact, in the crime of aggravated child molestation since both convictions were in fact based upon the same single act. Andrews v. State, 200 Ga. App. 47 , 406 S.E.2d 801 (1991).
There was no error for sentencing defendant for both offenses for which defendant was convicted, where defendant was indicted for statutory rape and for molesting the victim by fondling her breasts. No elements of each offense are necessarily elements of the other, thus the crimes for which he was convicted arose from two separate acts as a matter of fact. Bryant v. State, 204 Ga. App. 856 , 420 S.E.2d 801 (1992); Baker v. State, 211 Ga. App. 515 , 439 S.E.2d 668 (1993).
While an indictment did not charge the defendant with statutory rape, O.C.G.A. § 16-6-3 , the allegations of the indictment notified the defendant that statutory rape could have been considered a lesser included offense of the indicted crime of child molestation; since the defendant admitted that the defendant tried to place his penis in the victim's vagina, and since the victim testified that "it hurt," a jury instruction on statutory rape as a lesser included offense of child molestation was proper. Stulb v. State, 279 Ga. App. 547 , 631 S.E.2d 765 (2006).
Attempted statutory rape and child molestation. - Trial court did not err in merging an attempted statutory rape charge into a child molestation charge as the state was required to prove the commission of an immoral or indecent act (removing the victim's and defendant's clothing), the victim's age was less than 16, and defendant's intent to arouse or satisfy defendant's own or the child's sexual desires; thus, the state used up the evidence that defendant committed attempted statutory rape in establishing that defendant committed child molestation. Leaptrot v. State, 272 Ga. App. 587 , 612 S.E.2d 887 (2005).
Trial court did not err in merging an attempted statutory rape charge into a child molestation charge, instead of merging the child molestation counts into the attempted statutory rape count, as the evidence establishing that defendant fondled the victim's breasts was not used up in proving that defendant removed their clothing and attempted penetration; accordingly, three child molestation charges were not subject to merger with the attempted statutory rape count. Leaptrot v. State, 272 Ga. App. 587 , 612 S.E.2d 887 (2005).
Charge on public indecency as lesser included offense of child molestation. - Although the trial court should have charged the jury on public indecency as a lesser included offense to the charge of child molestation, any error was harmless as it was highly probable that the failure to give the public indecency charge did not contribute to the child molestation verdicts; furthermore, the trial court did not err in refusing to charge the jury on simple assault as the indictment did not allege acts which could support a conviction for simple assault as a matter of law. Damare v. State, 257 Ga. App. 508 , 571 S.E.2d 507 (2002).
Other Offenses Involving Children
Battery lesser included offense of cruelty to children. - Where the evidence was sufficient to establish that defendant repeatedly struck defendant's nine-year-old child on the back, buttocks, and legs with defendant's hand, leaving several visible, handprint-shaped bruises, battery was a lesser included offense of cruelty to children. Bennett v. State, 244 Ga. App. 149 , 534 S.E.2d 881 (2000).
No merger of aggravated battery and cruelty to children. - Aggravated battery and cruelty to children each requires proof of at least one additional element which the other does not, and the two crimes are not so closely related that multiple convictions are prohibited under O.C.G.A. §§ 16-1-6 and 16-1-7 ; accordingly, even if the same conduct establishes the commission of both aggravated battery and cruelty to children, the two crimes do not merge, and thus a defendant was properly convicted of both crimes (overruling Jones v. State, 276 Ga. App. 762 ( 624 S.E.2d 291 ) (2005); Etchinson v. State, 245 Ga. App. 449 ( 538 S.E.2d 87 ) (2000); and Harmon v. State, 208 Ga. App. 271 ( 430 S.E.2d 399 ) (1993)). Waits v. State, 282 Ga. 1 , 644 S.E.2d 127 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Cruelty to children may be lesser included offense in aggravated assault with deadly weapon. - Cruelty to children, which requires only "maliciously [causing] the child cruel or excessive physical . . . pain," can be lesser included crime under indictment for aggravated assault with a deadly weapon. Williams v. State, 144 Ga. App. 130 , 240 S.E.2d 890 (1977); Cranford v. State, 186 Ga. App. 862 , 369 S.E.2d 50 (1988).
Cruelty to children and use of fighting words. - Evidence authorized a jury charge on the offense of "fighting words," where defendant schoolteacher was indicted for battery and cruelty to children, and the proof tracked the indictment which set forth words defendant said to a student which would fall within the parameter of those forbidden by the "fighting words" statute. Shuler v. State, 195 Ga. App. 849 , 395 S.E.2d 26 (1990).
Cruelty to children and felony murder. - Because the evidence established that the child victim had been subjected to multiple assaults to the head, limbs, and torso, which were in distinct stages of healing, and which occurred at various times, the predicate child cruelty offense count did not merge as a matter of fact into felony murder, and the trial court was authorized to enter a judgment of conviction and sentence on that count. Delacruz v. State, 280 Ga. 392 , 627 S.E.2d 579 (2006).
Cruelty to children and malice murder. - Although both malice murder and cruelty to children required a malicious intent, O.C.G.A. §§ 16-5-1(a) and 16-5-70(b) , the fact that such intent supported an element in each crime did not warrant merging of the sentences when other mutually exclusive elements of the crimes remained, and the other elements of the two offenses had to be compared; malice murder, but not cruelty to children, required proof that defendant caused the death of another human being, § 16-5-1(a) , and cruelty to children, but not malice murder, required proof that the victim was a child under the age of 18 who was caused cruel or excessive physical or mental pain, § 16-5-70(b) . Each crime required proof of at least one additional element which the other did not and the crimes of malice murder and cruelty to children were not so closely related that multiple convictions were prohibited under other provisions of O.C.G.A. §§ 16-1-6 and 16-1-7 ; accordingly, even if the same conduct established the commission of both malice murder and cruelty to children, the two crimes did not merge. Linson v. State, 287 Ga. 881 , 700 S.E.2d 394 (2010).
Cruelty to children count did not merge with reckless driving count. - Trial court properly did not merge the appellant's convictions for cruelty to children in the second degree and serious injury by vehicle by the act of reckless driving with respect to the same victim for the purpose of sentencing because each offense required proof of a different wrongful act as the cruelty to children conviction required proof of facts not required by the serious injury by vehicle conviction and vice versa. McNeely v. State, 296 Ga. 422 , 768 S.E.2d 751 (2015).
Use of fighting words not included in offense of cruelty to children. - Offense of use of fighting words is not included in the offense of cruelty to children as a matter of law. Shuler v. State, 195 Ga. App. 849 , 395 S.E.2d 26 (1990).
Interference with custody was not a lesser included offense of kidnapping, as a matter of law or fact, where the indictment did not allege that the mother of the child was the victim of any crime. Stroud v. State, 200 Ga. App. 387 , 408 S.E.2d 175 (1991).
Cruelty to children and battery. - Although the trial court should have given the defendant's requested charge on battery, O.C.G.A. § 16-5-23.1 , since the evidence authorized a finding that the defendant intentionally caused substantial physical harm and visible bodily harm to the victims by beating the victims with a bat and a belt, the failure to give the battery charge was harmless error in light of the overwhelming evidence of the commission of the greater offense, cruelty to children, O.C.G.A. § 16-5-70 ; the indictment alleged that the defendant unlawfully and maliciously caused the victims cruel and excessive physical and mental pain by striking the victims about the body with a belt and wooden bat. Dinkler v. State, 305 Ga. App. 444 , 699 S.E.2d 541 (2010), overruled on other grounds, Stuart v. State, 318 Ga. App. 839 , 734 S.E.2d 814 (2012).
Deprivation of minor and cruelty to children. - Trial court did not err in failing to merge the defendant's misdemeanor convictions for contributing to the deprivation of a minor, O.C.G.A. § 16-12-1(b)(3), with the defendant's corresponding felony convictions for cruelty to children in the second degree, O.C.G.A. § 16-5-70(c) , pursuant to the "required evidence" test, the offenses did not merge as a matter of law; the offenses of cruelty to children in the second degree and contributing to the deprivation of a minor each have at least one essential element that the other does not: causing the child cruel or excessive physical or mental pain and wilfully failing to provide the child with the proper care necessary for his or her health, respectively. Staib v. State, 309 Ga. App. 785 , 711 S.E.2d 362 (2011).
Other Property Offenses
Burglary and robbery. - Statutory definition of burglary and robbery makes it clear that legislature intended to prohibit two designated kinds of general conduct, and that the two crimes, which were codified in separate chapters, are not established by same proof of all facts, thus neither crime is a lesser, or included, offense of the other as a matter of law or fact. Moore v. State, 140 Ga. App. 824 , 232 S.E.2d 264 (1976).
Burglary and financial transaction card theft. - Defendant was properly convicted of both burglary and financial transaction card theft after gaining entry into the dwelling as each offense had distinct elements. McConnell v. State, 263 Ga. App. 686 , 589 S.E.2d 271 (2003).
Burglary conviction and entering an automobile with intent to commit a theft conviction did not merge as the state was required to show unlawful entry into a warehouse to convict defendant of burglary, but not to obtain a conviction for entry of automobile with intent to commit a theft; the burglary offense was completed when defendant entered the warehouse without authority and with the intent to commit the theft of the computers; the automobile offense occurred when defendant entered the victim's car with the intent to take the computers. Morris v. State, 274 Ga. App. 41 , 616 S.E.2d 829 (2005).
State may convict and punish accused for burglary and unlawful possession of firearm by a previously convicted felon, when the firearm was taken in the burglary. The offenses charged were separate and distinct and there was no merger; evidence used to establish the burglary was not again used to establish the later crime of possession of a weapon by a convicted felon. Bogan v. State, 177 Ga. App. 614 , 340 S.E.2d 256 (1986).
Criminal trespass and criminal damage to property are identical crimes except for the amount of damage required for conviction and the former is a lesser included offense of the latter. Merrell v. State, 162 Ga. App. 886 , 293 S.E.2d 474 (1982).
Because it was undisputed that the victim failed to testify regarding the value of the damage to the subject property, an adjudication for the offense of second-degree criminal damage to property entered against a juvenile was vacated; however, given evidence that the juvenile intentionally damaged the property of another without consent, and the damage was $500 or less, an adjudication could be entered on a charge of criminal trespass, which did not violate the juvenile's due process right to be notified of the charges. In the Interest of J.T., 285 Ga. App. 465 , 646 S.E.2d 523 (2007).
First and second degree criminal damage to property do not merge. - Trial court did not err in failing to merge the defendant's convictions for the criminal damage to property charges because criminal damage to property in the first degree required evidence that the defendant acted in a manner that endangered human life, whereas criminal damage to property in the second degree required evidence that the damage to property exceeded $500, neither of which was required in the other. Sullivan v. State, 331 Ga. App. 592 , 771 S.E.2d 237 (2015).
Criminal damage as lesser included offense of arson. - Criminal damage to property in the second degree is a lesser included offense of arson in the first degree. One who commits first-degree arson has also committed criminal damage to property when the property in question belongs to another, but while the latter crime is established by the same conduct as the former, it requires proof of a "less culpable mental state" under the Criminal Code. Bryant v. State, 188 Ga. App. 505 , 373 S.E.2d 289 (1988).
Trial court properly merged a conviction of criminal damage to property in the second degree, in violation of O.C.G.A. § 16-7-23(a)(1), into a conviction for arson in the second degree, in violation of O.C.G.A. § 16-7-61 , as the arson was not a lesser included offense of the criminal damage offense pursuant to O.C.G.A. § 16-1-6(1) ; arson required the higher mentally culpable state of knowingly, rather than the criminal damage scienter requirement of intentionally, and arson required that the damage to the property have been caused by fire or explosive. Youmans v. State, 270 Ga. App. 832 , 608 S.E.2d 300 (2004).
Theft by receiving not lesser included offense of burglary as matter of fact or law. State v. Bolton, 144 Ga. App. 797 , 242 S.E.2d 378 (1978).
Theft by taking as included offense of theft by receiving. - When proof of recent unexplained possession of stolen property was sufficient in itself to prove theft by taking but was only one element necessary to prove theft by receiving, theft by taking must be considered an included offense in theft by receiving. Callahan v. State, 148 Ga. App. 555 , 251 S.E.2d 790 (1978).
Theft by taking as lesser included offense of robbery. - Defendant's claim of error in the failure to instruct the jury on theft by taking was rejected as defendant failed to request an instruction on theft by taking as a lesser included offense of robbery. Young v. State, 280 Ga. 65 , 623 S.E.2d 491 (2005).
Theft by taking a motor vehicle and theft by taking purse. - Trial court erred by failing to merge a theft by taking of a motor vehicle count with a theft by taking a purse count as the state conceded that the record was unclear as to whether the theft of the vehicle and the theft of the purse constituted two separate acts, and the evidence appeared to show that the victim's purse was stolen as a result of being inside the car when the car was stolen by the defendant. Hall v. State, 292 Ga. App. 544 , 664 S.E.2d 882 , cert. denied, No. S08C1841, 2008 Ga. LEXIS 926 (Ga. 2008).
Plow and tractor were stolen at same time from same place. - In prosecution for theft, where evidence showed that tractor and plow were stolen at same time and from same place and victim, provisions of former Code 1933, § 26-506 concerning multiple prosecutions for same conduct, prohibited multiple conviction, since theft of plow was included within larceny of tractor. Brogdon v. State, 138 Ga. App. 900 , 228 S.E.2d 5 (1976) (see O.C.G.A. § 16-1-7(a)(1)).
Criminal trespass and burglary. - In prosecution for child molestation and burglary, defendant was not entitled to an instruction on criminal trespass where defendant's claim of alibi did not reasonably raise the inference that defendant entered the home with a less culpable state of mind than the felonious intent of a burglar as charged in the indictment. Brewer v. State, 219 Ga. App. 16 , 463 S.E.2d 906 (1995).
Attempted arson and criminal trespass. - Where the indictment which charged defendant with attempted arson in the first degree alleged that defendant poured gasoline on the front porch of a house and threatened to burn the house, and neither the indictment nor O.C.G.A. § 16-7-60 applied to defendant's act of pouring gasoline on a rug which was on the porch, the facts as alleged in the indictment were insufficient to establish criminal trespass regarding the rug; and, therefore, the trial court properly declined to instruct the jury on criminal trespass as a lesser included offense of attempted arson. Dodson v. State, 257 Ga. App. 344 , 571 S.E.2d 403 (2002).
Criminal damage to property and criminal trespass. - Trial court did not err when it reduced a charge of criminal damage to property in the second degree to criminal trespass when the state failed to prove damages in excess of $500, instead of granting defendant's motion for acquittal on the charge. The evidence showed that defendant broke the windshield and at least one other window on defendant's wife's car during an argument and therefore was sufficient to sustain defendant's conviction for criminal trespass. Hill v. State, 259 Ga. App. 363 , 577 S.E.2d 61 (2003).
Vehicular Offenses
Driving with a suspended or revoked license was a lesser included offense of operating a motor vehicle after revocation of one's license as an habitual violator, where defendant had been stopped by the police while operating an automobile on an interstate highway at a time when the Georgia driver's license was revoked due to the driver having been declared a habitual violator. Parks v. State, 180 Ga. App. 31 , 348 S.E.2d 481 (1986).
After a defendant was convicted of driving with a suspended license in violation of O.C.G.A. § 40-5-121 , and was later indicted for a violation of O.C.G.A. § 40-5-58 based upon defendant's operation of a motor vehicle after the defendant had been notified of having been declared a habitual violator, the trial court erred in denying the defendant's double-jeopardy plea. Whaley v. State, 260 Ga. 384 , 393 S.E.2d 681 (1990).
Convictions under both O.C.G.A. §§ 40-5-58(c) and 40-6-395(b)(5)(A) were proper under O.C.G.A. § 16-1-6 , as the elements of both charged offenses required different proof; under O.C.G.A. § 40-5-58(c) , the state proved that defendant was declared an habitual violator, was properly notified of such status, and that defendant operated a vehicle without having obtained a valid driver's license, while under O.C.G.A. § 40-6-395(b)(5)(A), proof that the driver committed a misdemeanor while fleeing or attempting to elude, that the driver was trying to escape arrest for a felony offense other than road violations, and that the driver committed one of the statutorily enumerated acts was required. Buggay v. State, 263 Ga. App. 520 , 588 S.E.2d 244 (2003).
Proof of motor vehicle theft included proof of aggravated assault. - When there is no evidence of violence or physical assault upon the victim during the commission of the crimes alleged, proof of the crime of armed robbery included crime of aggravated assault as a matter of fact and likewise, proof of the crime of motor vehicle theft was included in armed robbery the convictions and sentences for aggravated assault and motor vehicle theft must be vacated. Jones v. State, 238 Ga. 51 , 230 S.E.2d 865 (1976).
When motor vehicle theft is lesser included offense of armed robbery. - When theft of automobile was part of armed robbery as a matter of fact, crime of motor vehicle theft became a lesser included offense of armed robbery, and separate conviction for motor vehicle theft cannot stand. Painter v. State, 237 Ga. 30 , 226 S.E.2d 578 (1976).
Driving under the influence was lesser included offense of first degree vehicular homicide, and conviction of both offenses was proscribed. Duncan v. State, 183 Ga. App. 368 , 358 S.E.2d 910 (1987).
Convictions for driving under the influence of alcohol and reckless driving merged into a vehicular homicide conviction and were vacated. Harris v. State, 272 Ga. App. 366 , 612 S.E.2d 557 (2005).
Because DUI was a predicate offense set out in the indictment against the defendant only as an element of the offense of vehicular homicide, in violation of O.C.G.A. § 40-6-393(a) , and not as a separate crime for which defendant risked separate criminal liability, a trial court did not err by denying the defendant's plea in bar because, as a felony offense, prosecution on the vehicular homicide counts were commenced within four years after the commission of the crime as required by O.C.G.A. § 17-3-1(c) ; the expiration of the limitations period for the driving under the influence counts did not preclude a prosecution for vehicular homicide. Leachman v. State, 286 Ga. App. 708 , 649 S.E.2d 886 , cert. denied, No. S07C1816, 2007 Ga. LEXIS 768 (Ga. 2007).
Public drunkenness and driving under the influence. - Public drunkenness is not, as a matter of fact or law, a lesser included offense of driving under the influence of alcohol to the extent it is less safe to drive. State v. Tweedell, 209 Ga. App. 13 , 432 S.E.2d 619 (1993).
Improper lane change, driving without headlights, and driving under the influence of alcohol (DUI) convictions did not merge because the facts alleged in the accusation with regard to the DUI charge were not also sufficient to establish the lesser offenses of improper lane change and driving without headlights. Parker v. State, 249 Ga. App. 530 , 549 S.E.2d 154 (2001).
Operating motor vehicle without insurance is not a lesser included offense of false swearing. Bowen v. State, 173 Ga. App. 361 , 326 S.E.2d 525 (1985).
Reckless conduct was not a lesser included crime of driving under the influence as a matter of fact since the accusation included no allegation of harm or danger to another person and there was no proof of such at trial. Whiteley v. State, 188 Ga. App. 129 , 372 S.E.2d 296 .
Trial court erred in failing to merge defendant's convictions for reckless driving, speeding, and reckless conduct since defendant's conviction for reckless conduct was proved by fewer than all of the facts used to prove defendant's guilt of reckless driving, and the speeding charge, as alleged, was an element of both reckless driving and reckless conduct. Carrell v. State, 261 Ga. App. 485 , 583 S.E.2d 167 (2003).
Reckless driving was not a lesser included offense to aggravated assault. - Because Count 4, alleging aggravated assault by placing another in reasonable apprehension of immediately receiving a violent injury with an object which, when used offensively against a person, was likely to and actually did result in serious bodily injury, only required the state to prove that the defendant had the general intent to drive the van, the offense of reckless driving would not show a less culpable mental state than that which was required to establish the commission of the crime of aggravated assault as charged, and the trial court did not err by refusing to give the requested charge of reckless driving as a lesser included offense of aggravated assault as alleged in Count 4. Patterson v. State, 332 Ga. App. 221 , 770 S.E.2d 62 (2015), aff'd, 299 Ga. 491 , 789 S.E.2d 175 (2016).
Reckless driving was not a lesser included offense, as a matter of law or fact, of driving under the influence under O.C.G.A. § 16-1-6 , as the facts in the State of Georgia's indictment of defendant were insufficient to support a reckless driving charge under O.C.G.A. § 40-6-390(a) , and as a matter of law, the crimes were equally serious. Shockley v. State, 256 Ga. App. 892 , 570 S.E.2d 67 (2002).
Defendant's conviction and sentence for speeding were vacated where the speeding offenses factually merged into the reckless driving offense for which defendant was also convicted because the same conduct, speeding, was used to prove both crimes. Fraser v. State, 263 Ga. App. 764 , 589 S.E.2d 329 (2003).
Trial court's failure to merge defendant's convictions for driving recklessly and committing second degree vehicular homicide, in violation of O.C.G.A. §§ 40-6-390 and 40-6-393 , respectively, was not error for sentencing purposes, as the reckless driving offense was not the underlying offense of the homicide, but rather, improper lane change was, in violation of O.C.G.A. § 40-6-123(a) ; further, pursuant to O.C.G.A. § 16-1-6 , there was no factual merger because the crimes were committed sequentially and separately. Cutter v. State, 275 Ga. App. 888 , 622 S.E.2d 96 (2005).
Defendant's conviction for aggravated assault with an object under O.C.G.A. § 16-5-21(b)(2) with regard to pinning the victim to a house with a vehicle was affirmed because the defendant was not entitled to jury instructions on the lesser included crimes of reckless conduct and reckless driving since the base crime of simple assault under O.C.G.A. § 16-5-20(a)(2) did not require a specific intent to cause the victim to be apprehensive of receiving a violent injury. Patterson v. State, 299 Ga. 491 , 789 S.E.2d 175 (2016).
Reckless driving was a lesser included offense to aggravated assault. - Defendant was entitled to a new trial on the charge of aggravated assault upon a police officer in violation of O.C.G.A. § 16-5-21 because the trial court should have given the defendant's requested charge on reckless driving in violation of O.C.G.A. § 40-6-390(a) as a lesser included offense since there was evidence that the defendant did not intend to injure a police officer but that the defendant's decision to drive off suddenly with the officer in close proximity to the defendant's truck was nonetheless an act of criminal negligence, which would have supported a conviction for reckless driving. Young v. State, 294 Ga. App. 227 , 669 S.E.2d 407 (2008).
Reckless driving and serious injury by vehicle. - Trial court did not err by failing to merge a reckless-driving charge into a serious-injury-by-vehicle charge because the two crimes were entirely separate and distinct, requiring a showing of different elements and based on the defendant's drunk driving of a four-wheeler ATV with a 10-year-old passenger, who was brain-damaged when the defendant clipped a tractor and flipped the ATV; the state used the evidence of the clipping of the tractor scoop, which caused the rollover and injury to the child, as the elements of the serious-injury-by-vehicle offense, which was separate from and sequential to the reckless-driving offense, which was premised on the defendant's intoxication. Croft v. State, 278 Ga. App. 107 , 628 S.E.2d 144 (2006).
Serious injury by vehicle and vehicular homicide. - Five convictions for serious injury by vehicle and a conviction for vehicular homicide did not merge; although the convictions stemmed from one incident of driving under the influence, there were separate victims for each offense. Harris v. State, 272 Ga. App. 366 , 612 S.E.2d 557 (2005).
Double jeopardy issues. - Because a uniform traffic citation was deliberately withheld from filing, and the state did not authorize or participate in the prosecution of the case, the probate court lacked authority to accept defendant's plea to the proposed charge and impose a fine, making its resulting judgment void; hence, the trial court did not err in denying defendant's plea in bar based on double jeopardy, since the probate court's void judgment could not serve as the basis for barring the subsequent indictment and prosecution of defendant in the superior court. Roberts v. State, 280 Ga. App. 672 , 634 S.E.2d 790 (2006).
Miscellaneous Crimes
Aggravated stalking did not merge with burglary count. - Trial court did not err by not merging a defendant's aggravated stalking count into a burglary count based upon the defendant's contention that under the actual evidence test, the same factual evidence was used to prove both crimes; as to prove the burglary count, the state had to prove that the defendant entered the victim's residence without authority and with the intent to commit aggravated stalking, and to prove the aggravated stalking count, the state had to prove that the defendant surveilled and contacted the victim in violation of a condition of probation for the purpose of harassing and intimidating the victim. As such, the burglary statute required that the state show entry into the residence, which was not required by the aggravated stalking statute, and, on the other hand, the aggravated stalking statute required that the state prove that the defendant actually contacted the victim, which was not required by the burglary statute that only required that the defendant contact the victim when the defendant entered the residence. Williams v. State, 293 Ga. App. 193 , 666 S.E.2d 703 (2008).
Gambling and operating a gambling house are entirely different. - Gambling is one thing and operating a gambling house is a kindred but entirely different thing; different evidence is required to convict of these separate offenses. No absurdity or repugnancy is created by acquittal of gambling and conviction of operating a gambling house. McGahee v. State, 133 Ga. App. 964 , 213 S.E.2d 91 (1975).
Issuing bad checks and forgery. - Offense of issuing bad checks is not a lesser included offense of forgery, and, in a prosecution for forgery, the trial court's failure to give a charge on issuing bad checks was not error. Adams v. State, 217 Ga. App. 759 , 458 S.E.2d 918 (1995).
Negotiating a fictitious check and forgery. - Offense of negotiating a fictitious check is a lesser included offense of forgery, and, in a prosecution for forgery, the trial court's failure to give a charge on negotiating fictitious checks constituted reversible error. Adams v. State, 217 Ga. App. 759 , 458 S.E.2d 918 (1995).
Theft by taking and forgery. - After defendant pled guilty to theft by taking for writing fraudulent checks, defendant's subsequent prosecution for forgery for uttering and delivering the checks was not barred under O.C.G.A. § 16-1-6 or O.C.G.A. § 16-1-7(a) because the two crimes were not lesser included offenses of the other. Cade v. State, 262 Ga. App. 206 , 585 S.E.2d 172 (2003).
Forgery and false writing. - When the defendant was convicted of first-degree forgery under O.C.G.A. § 16-9-1 and false writing under O.C.G.A. § 16-10-20 for obtaining expungement order by presenting a Georgia Crimes Information Center certificate that had been altered to state that the defendant had no criminal record, counts were not included in each other under O.C.G.A. §§ 16-1-6 and 16-1-7 ; false writing charge did not require proof that the writing purported to be made by authority of one who in fact gave no such authority, and forgery charge did not require proof that the writing was made or used in a matter within the jurisdiction of the district attorney's office. Jones v. State, 290 Ga. App. 490 , 659 S.E.2d 875 (2008).
Possession of firearm not merged into accompanying felony. - Offense of possession of a firearm during the commission of a felony does not merge into the accompanying felony, i.e., armed robbery, so that the defendant can be convicted of both without statutory or constitutional prohibition. Brown v. State, 199 Ga. App. 773 , 406 S.E.2d 248 (1991).
Trial court did not err in failing to merge an aggravated assault charge and firearm possession charges with an aggravated battery charge because the crimes did not merge legally or factually since each of the crimes required proof of a fact that the other crimes did not. Gant v. State, 291 Ga. App. 823 , 662 S.E.2d 895 (2008).
Multiple firearms possession. - Trial court properly refused to merge the two arms-possession counts for sentencing purposes because those charges were based on defendants' possession of two guns during the burglary; the acts were separate crimes involving multiple defendants, separate crimes for which each defendant bore individual responsibility as either a principal or an accessory. Dunbar v. State, 273 Ga. App. 29 , 614 S.E.2d 472 (2005).
Simple battery as included in battery. - Trial court erred by sentencing appellant on all three counts, two counts of simple battery, O.C.G.A. § 16-5-23(a)(1) (intentionally making physical contact of an insulting and provoking nature) and (a)(2) (intentionally causing physical harm), and the offense of battery, O.C.G.A. § 16-5-23.1 (intentionally causing visible bodily harm), in the accusation, rather than merging the two counts of simple battery with the battery, given that the evidence at trial established that each crime was established by proof of the same facts, except that the battery charge required proof that the defendant caused visible bodily harm. Hussey v. State, 206 Ga. App. 122 , 424 S.E.2d 374 (1992).
Simple battery is not a lesser included offense of felony obstruction because it is a separate and independent offense wherein the intent is to make physical contact or cause physical harm. Pearson v. State, 224 Ga. App. 467 , 480 S.E.2d 911 (1997).
Simple battery merged with robbery. - Because the single continuous act of simple battery, O.C.G.A. § 16-5-23(a)(1), was the evidence required to show the "force" used to accomplish a robbery, O.C.G.A. § 16-8-40(a)(1), the defendant's battery convictions merged with the robbery conviction; the "use of force" charged in connection with the robbery was "hitting," which was the same type of force used in the continuous battery. Bonner v. State, 308 Ga. App. 827 , 709 S.E.2d 358 (2011).
Simple battery convictions merged. - Defendant's simple batteries convictions merged as a matter of fact because the three batteries were part of a continuous criminal act; the indictment charged the defendant with simple battery by "grabbing" the victim, "holding him down," and "hitting" the victim, respectively. Bonner v. State, 308 Ga. App. 827 , 709 S.E.2d 358 (2011).
Aggravated battery counts merged. - As to the two counts of aggravated battery, both counts were accomplished by the single act of throwing acid on the victim and, therefore, one count should have merged into the other. Fordham v. State, 352 Ga. App. 520 , 835 S.E.2d 360 (2019), cert. denied, No. S20C0442, 2020 Ga. LEXIS 392 (Ga. 2020).
Harassing telephone calls and terroristic threats. - Depending on the facts, harassing telephone calls may be an included offense of terroristic threats. Todd v. State, 230 Ga. App. 849 , 498 S.E.2d 142 (1998).
Because defendant's defense to the charge of terroristic threats was that defendant never made any threats or intimidating remarks at all, the trial court did not err in refusing to give defendant's request for an instruction on the offense of harassing telephone calls. Todd v. State, 230 Ga. App. 849 , 498 S.E.2d 142 (1998).
In a prosecution on three counts of aggravated stalking, the defendant was not entitled a jury charge on the lesser included offense of harassing telephone calls, based on the fact that under the evidence presented, the defendant was either guilty of the indicted offenses or was guilty of no offense whatsoever. Patterson v. State, 284 Ga. App. 780 , 645 S.E.2d 38 (2007).
Harassing phone calls and aggravated stalking. - Trial court did not err by failing to give the defendant's requested charges on the lesser included offenses of harassing phone calls and violation of a temporary protective order because the state's evidence was sufficient to establish all of the elements of the aggravated stalking offenses as indicted; under the evidence, either the defendant was guilty of the indicted offenses or the defendant was guilty of no offense whatsoever. Brooks v. State, 313 Ga. App. 789 , 723 S.E.2d 29 (2012), cert. denied, No. S12C0974, 2012 Ga. LEXIS 1035 (Ga. 2012).
Shoplifting. - When the evidence was uncontradicted that the value of two watches exceeded $300 each, a jury charge on misdemeanor shoplifting was not warranted and the defendant was properly convicted of felony shoplifting based on the retail value of the goods. Reeves v. State, 261 Ga. App. 466 , 582 S.E.2d 590 (2003).
Violation of oath by a public officer is a lesser included offense of bribery. Nave v. State, 171 Ga. App. 165 , 318 S.E.2d 753 (1984); Nave v. Helms, 845 F.2d 963 (11th Cir. 1988).
False swearing and malicious confinement. - Defendant's convictions for false swearing under O.C.G.A. § 16-10-71 , proven by evidence that defendant made false statements in an affidavit seeking an involuntary commitment order for the victim, and malicious confinement under O.C.G.A. § 16-5-43 , supported by proof apart from the execution of the false affidavit, did not merge as a matter of fact. Washington v. State, 271 Ga. App. 764 , 610 S.E.2d 692 (2005).
Felony escape and misdemeanor escape. - Entry of a guilty plea was not a judgment of conviction until sentence was imposed; therefore, a defendant who walked away from the courthouse after plea entry but before sentencing was not guilty of felony escape, but could be convicted only of misdemeanor escape. Dorsey v. State, 259 Ga. App. 254 , 576 S.E.2d 637 (2003).
Mutiny in a penal institution and aggravated assault require proof of different elements and, therefore, the former offense cannot be a lesser included offense of the latter. Bierria v. State, 232 Ga. App. 622 , 502 S.E.2d 542 (1998).
Public drunkenness not included in crime of public indecency. - With regard to the defendant's conviction for felony public indecency for urinating in public, the trial court's refusal to charge the jury on public drunkenness as a lesser included offense of public indecency was not error because the crime of public drunkenness requires proof that the defendant was intoxicated, which the crime of public indecency does not; the crime of public drunkenness does not require a lewd exposure of sexual organs, which is required by the crime of public indecency; and, the crime of public indecency requires proof of exposure of sexual organs, which the crime of public drunkenness does not; therefore, the offense of public drunkenness was not included in the crime of public indecency. Loya v. State, 321 Ga. App. 430 , 740 S.E.2d 382 (2013).
Failure to request lesser included offense instruction. - Counsel was not ineffective for failing to request a jury instruction on the crime of pimping as a lesser-included offense of trafficking a minor for sexual servitude without the use of coercion because the jury found the defendant guilty on the three trafficking without coercion counts and on three related counts charging the greater offense of trafficking the victim for sexual servitude through the use of coercion; thus, the defendant did not meet the defendant's burden of showing that there was a reasonable possibility that the jury would have acquitted the defendant on all of the indicted offenses and, instead, convicted the defendant only of pimping if counsel had requested a jury instruction on pimping as a lesser-included offense. Byrd v. State, 344 Ga. App. 780 , 811 S.E.2d 85 (2018), overruled on other grounds by Thomas v. State, 352 Ga. App. 640 , 835 S.E.2d 640 (2019).
OPINIONS OF THE ATTORNEY GENERAL
Separate prosecutions for municipal and state law violations. - An accused arrested for separate non-included offenses arising out of a single transaction, which violate municipal ordinances and state law respectively, may be prosecuted first in the recorder's court for the municipal ordinance violations, and then transferred to the superior court to be prosecuted for the separate state violations, without violating statutory or constitutional double jeopardy prohibitions. 1986 Op. Att'y Gen. No. U86-32.
RESEARCH REFERENCES
Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, § 299 et seq. 41 Am. Jur. 2d, Indictments and Informations, §§ 106, 282.
C.J.S. - 42 C.J.S., Indictments and Informations, § 298 et seq.
ALR. - Conviction or acquittal of larceny as bar to prosecution for burglary, 19 A.L.R. 626 .
Pendency in one county of charge of larceny as bar to subsequent charge in another county of offense which involves both felonious breaking and felonious taking of same property, 19 A.L.R. 636 .
Duty to charge as to reasonable doubt as between different degrees of crime or included offenses, 20 A.L.R. 1258 .
Forgery of names of several individuals to the same instrument as more than one offense, 33 A.L.R. 562 .
Acquittal or conviction of one offense in connection with operation of automobile as bar to prosecution for another, 44 A.L.R. 564 ; 172 A.L.R. 1053 .
Acquittal or conviction of assault and battery as bar to prosecution for rape, or assault with intent to commit rape, based on same transaction, 78 A.L.R. 1213 .
Conviction of lesser offense, against which statute of limitations has run, where statute has not run against offense with which defendant is charged, 47 A.L.R.2d 887.
Application of felony-murder doctrine where the felony relied upon is an includible offense with the homicide, 40 A.L.R.3d 1341.
When should jury's deliberation proceed from charged offense to lesser-included offense, 26 A.L.R.5th 603.
Propriety of lesser-included-offense charge to jury in federal prosecution for crime involving property rights, 105 A.L.R. Fed. 669.
Propriety of lesser-included-offense charge in federal prosecution of narcotics defendant, 106 A.L.R. Fed. 236.
16-1-7. Multiple prosecutions for same conduct.
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When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if:
- One crime is included in the other; or
- The crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.
- If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution except as provided in subsection (c) of this Code section.
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When two or more crimes are charged as required by subsection (b) of this Code section, the court in the interest of justice may order that one or more of such charges be tried separately.
(Code 1933, § 26-506, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1982, p. 3, § 16.)
Cross references. - Multiple jeopardy, U.S. Const., amend. 5 and Ga. Const. 1983, Art. I, Sec. I, Para. XVIII.
Fraud generally, § 16-9-50 et seq.
Law reviews. - For survey article citing developments in Georgia criminal law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 95 (1981). For annual survey of criminal law, see 38 Mercer L. Rev. 129 (1986). For annual survey on criminal law and procedure, see 42 Mercer L. Rev. 141 (1990). For note discussing organized crime in Georgia with respect to the application of state gambling laws, and suggesting proposals for combatting organized crime, see 7 Ga. St. B. J. 124 (1970). For comment, "Grady v. Corbin: An Unsuccessful Effort to Define Same Offense," see 25 Ga. L. Rev. 143 (1990).
JUDICIAL DECISIONS
ANALYSIS
General Consideration
Statute proscribes multiple convictions and successive prosecutions for same conduct. Brock v. State, 146 Ga. App. 78 , 245 S.E.2d 442 (1978).
O.C.G.A. § 16-1-7 constitutes Georgia's statutory bar to successive prosecutions, the procedural aspect of double jeopardy. Mann v. State, 160 Ga. App. 527 , 287 S.E.2d 325 (1981).
The state is required to prosecute all offenses arising out of the same course of conduct at the same time in a single prosecution. Where the state attempts to charge the defendant with all offenses arising out of a vehicular accident involving a death, but the trial judge, finding no allegations in the indictment permitting proof of an exception to the statute of limitations, permits no evidence as to the counts other than the one charging murder, and the state proceeds with a prosecution as to the murder count, any other counts as to vehicular homicide, reckless driving, driving under the influence, and driving off the center lane are barred by procedural double jeopardy. State v. Stowe, 167 Ga. App. 65 , 306 S.E.2d 663 (1983).
O.C.G.A. § 16-1-7(a) precludes conviction or punishment for more than one crime if one is included in the other as a matter of law or fact. Teal v. State, 203 Ga. App. 440 , 417 S.E.2d 666 , cert. denied, 203 Ga. App. 908 , 417 S.E.2d 666 (1992).
Under O.C.G.A. §§ 16-1-6 and 16-1-7 , a defendant may be prosecuted for two crimes based on the same conduct, but defendant may not be convicted of more than one crime if one crime is included in the other. Padgett v. State, 205 Ga. App. 576 , 423 S.E.2d 411 (1992).
Although the heading of O.C.G.A. § 16-1-7 relates to multiple prosecutions for the same conduct, it actually proscribes multiple convictions and successive prosecutions for the same conduct. State v. Kennedy, 216 Ga. App. 405 , 454 S.E.2d 600 (1995).
An accused may be prosecuted for both rape and child molestation based on the same conduct, but he may not be convicted of both Mackey v. State, 235 Ga. App. 209 , 509 S.E.2d 68 (1998).
When defendant was charged with child molestation, incest, interstate interference with custody, and statutory rape, all concerning the same victim, except for one count naming the parents as victims, and defendant pled guilty to interstate interference with custody and statutory rape, with the state requesting a nolle prosequi order on the remaining counts, it was not error to convict defendant of statutory rape and enter a nolle prosequi order as to child molestation and incest on the theory that all charges arose from the same events, because defendant was only convicted of statutory rape and interstate interference with custody, and nothing showed that defendant was improperly convicted of lesser included crimes based on the same conduct under O.C.G.A. § 16-1-7(a)(1). Hernandez v. State, 276 Ga. App. 57 , 622 S.E.2d 594 (2005).
Trial court erred in granting the defendant's plea in bar on the ground of procedural double jeopardy because the defendant failed to demonstrate actual knowledge of all the pending charges on the part of the proper prosecuting officer as the defendant did not establish the identity of the prosecuting officer, if any, at the defendant's guilty plea in recorder's court; the trial court's deputy clerk testified that no prosecutor was assigned to the traffic docket on which the defendant's expired tag charge was mistakenly entered; and the defendant did not establish that any prosecuting officer in recorder's court was aware of all the pending charges. State v. Hill, 333 Ga. App. 785 , 777 S.E.2d 265 (2015).
Purpose of statute. - First policy underlying double jeopardy bar is to prevent harassment of accused by successive prosecutions. Marchman v. State, 234 Ga. 40 , 215 S.E.2d 467 (1975).
Statute was designed to protect accused against the harassment of multiple prosecutions arising from same conduct. Waites v. State, 238 Ga. 683 , 235 S.E.2d 4 (1977).
Effect of conviction. - Defendant can be convicted on only one of multiple pending indictments; the remaining indictments are to be dismissed following trial on one of the cases on the merits. Geckles v. State, 177 Ga. App. 70 , 338 S.E.2d 473 (1985).
When a jury convicted a defendant on an aggravated battery charge, but acquitted defendant on charges of obstruction, simple battery, and aggravated assault and could not reach a verdict on a second charge of aggravated assault, the jury's inability to reach a verdict on the second aggravated assault charge, a lesser included offense, did not invalidate the jury verdict on the aggravated battery charge. Collier v. State, 195 Ga. App. 380 , 393 S.E.2d 509 (1990).
Double jeopardy questions controlled by O.C.G.A. §§ 16-1-6 , 16-1-7 , and 16-1-8 . - Former 1968 Criminal Code (see now O.C.G.A. T. 16) extends proscription of double jeopardy beyond that provided for in United States and Georgia Constitutions. Therefore, questions of double jeopardy in Georgia must be determined under the proscriptions of former Code 1933, §§ 26-505 through 26-507 (see now O.C.G.A. §§ 16-1-6 through 16-1-8 ). State v. Warren, 133 Ga. App. 793 , 213 S.E.2d 53 (1975).
Former 1968 Criminal Code (see now O.C.G.A. T. 16) extends double jeopardy proscription beyond that provided for in United States and Georgia Constitutions. Marchman v. State, 234 Ga. 40 , 215 S.E.2d 467 (1975) (see O.C.G.A. T. 16).
Former Code 1933, §§ 26-505 through 26-507 see now O.C.G.A. §§ 16-1-6 through 16-1-8 ) provided an expanded statutory test for determining double jeopardy questions, thereby rendering inapplicable previous Georgia decisions applying only minimum constitutional standards of double jeopardy. Stephens v. Hopper, 241 Ga. 596 , 247 S.E.2d 92 , cert. denied, 439 U.S. 991, 99 S. Ct. 593 , 58 L. Ed. 2 d 667 (1978).
Questions of double jeopardy in Georgia must be determined under the expanded statutory proscriptions found in O.C.G.A. §§ 16-1-6 through 16-1-8 which place limitations upon multiple prosecutions, convictions, and punishments for the same criminal conduct. Stone v. State, 166 Ga. App. 245 , 304 S.E.2d 94 (1983).
After a defendant engaged in two separate courses of conduct, the attempt to sell marijuana to an undercover police officer and the possession of 12 pounds of marijuana at defendant's home, double jeopardy did not attach to the second prosecution as these acts occurred at different times and locations, with distinct quantities of contraband, even though the defendant might have at some earlier time possessed all the marijuana in defendant's home; thus, the defendant's argument on substantive double jeopardy was rejected. Kinchen v. State, 265 Ga. App. 474 , 594 S.E.2d 686 (2004).
Pretrial intervention program on related charges did not bar prosecution. - Prosecution of the defendants for theft by taking and criminal trespass in Calhoun County, O.C.G.A. §§ 16-7-21(b) and 16-8-2 , was not prohibited by double jeopardy based on their prior entry into a pretrial intervention program under O.C.G.A. § 15-18-80(b) following charges of theft by receiving stolen property, O.C.G.A. § 16-8-7(a) , in Irwin County because there was no prosecution in Irwin County within the meaning of O.C.G.A. §§ 16-1-3(14) and 16-1-8(a)(1)-(2). Palmer v. State, 341 Ga. App. 433 , 801 S.E.2d 300 (2017).
Jeopardy did not attach because there was no adjudication of guilt. - Because the defendant's alleged mistake of fact regarding a charge of possession of a firearm by a convicted felon required consideration of facts extrinsic to the accusation to be decided by a jury, the trial court erred in dismissing the charge, sua sponte; moreover, as such dismissal was not an adjudication of guilt, the state could appeal from the same without violating the defendant's double jeopardy rights. State v. Henderson, 283 Ga. App. 111 , 640 S.E.2d 686 (2006).
Former Code 1933, §§ 26-505 through 26-507 (see now O.C.G.A. §§ 16-1-6 through 16-1-8 ) distinguish between two aspects of double jeopardy: first, limitations upon multiple prosecutions for crimes arising from same conduct (referred to as procedural bar of double jeopardy); and, second, limitations upon multiple convictions or punishments that may be imposed for such crimes (referred to as substantive bar of double jeopardy). Stephens v. Hopper, 241 Ga. 596 , 247 S.E.2d 92 , cert. denied, 439 U.S. 991, 99 S. Ct. 593 , 58 L. Ed. 2 d 667 (1978).
Procedural aspect of double jeopardy rule. - Procedural aspect of the double jeopardy rule prohibits multiple prosecutions arising from the same conduct. Teal v. State, 203 Ga. App. 440 , 417 S.E.2d 666 , cert. denied, 203 Ga. App. 908 , 417 S.E.2d 666 (1992).
Trial court properly granted the defendant's plea in bar and plea of former jeopardy in a burglary prosecution as the state improperly terminated the first trial by dismissing the indictment after jeopardy attached without the defendant's consent, and the second burglary prosecution, although alleging a different date, residence, and accomplice, was based on the same material facts as the first indictment. State v. Jackson, 290 Ga. App. 250 , 659 S.E.2d 679 (2008).
Statute affords protection broader than defense of double jeopardy. - Former Code 1933, § 26-506 gave accused some protection from repeated prosecutions in those situations when the defense of double jeopardy was not available and yet accused should not be worn down by multiple prosecutions arising from the same conduct. Johnson v. State, 130 Ga. App. 134 , 202 S.E.2d 525 (1973).
Abandonment of statutory double jeopardy protections meant constitutional protections only remained. - Defendant raised the state constitutional provision and O.C.G.A. §§ 16-1-7 and 16-1-8 in the defendant's plea of former jeopardy; however, the defendant expressly abandoned the statutory grounds at the hearing. By choosing that procedure, defendant actually relied upon the minimum constitutional protections against double jeopardy and chose to forego the additional protections provided by Georgia statutory law; thus, the trial court erred in applying Georgia statutory law in the instant case. Garrett v. State, 306 Ga. App. 429 , 702 S.E.2d 470 (2010).
Statute superseded by more specific carjacking statute. - O.C.G.A. 16-5-44.1(d) supersedes O.C.G.A. § 16-1-7 in carjacking cases. Campbell v. State, 223 Ga. App. 484 , 477 S.E.2d 905 (1996).
Attachment of jeopardy. - Defendant is placed in jeopardy when, in a court of competent jurisdiction with a sufficient indictment, defendant has been arraigned, has pled, and a jury has been impaneled and sworn. Geckles v. State, 177 Ga. App. 70 , 338 S.E.2d 473 (1985).
O.C.G.A. § 16-1-7(b) presupposes that defendant has been subjected to a previous prosecution and a prosecution encompasses more than mere return of an indictment. State v. Daniels, 206 Ga. App. 443 , 425 S.E.2d 366 (1992).
Trial court erred in holding that jeopardy had not attached on the previous charges filed against the defendant due to a mistrial because the defendant was placed in jeopardy when the jury was sworn in the first trial. Herrington v. State, 315 Ga. App. 101 , 726 S.E.2d 625 (2012).
Pendency of a former indictment for same offense does not provide a ground for a plea of double jeopardy because even if an accused has been arraigned and has entered a plea, the accused is not placed in jeopardy until a jury is impaneled and sworn. Teal v. State, 203 Ga. App. 440 , 417 S.E.2d 666 , cert. denied, 203 Ga. App. 908 , 417 S.E.2d 666 (1992).
Multiple accusations and indictments not barred. - O.C.G.A. § 16-1-7(b) is a bar to multiple prosecutions, and does not forbid multiple accusations or multiple indictments. Cochran v. State, 176 Ga. App. 58 , 335 S.E.2d 165 (1985).
To constitute a "previous prosecution" within the meaning of O.C.G.A. §§ 16-1-7(b) and 16-1-8(b) , the defendant previously must have been "placed in jeopardy" as to at least one of the offenses arising out of the same conduct as the offense for which the state is subsequently attempting to prosecute defendant. State v. Smith, 185 Ga. App. 694 , 365 S.E.2d 846 (1988).
Plea of guilty to an indictment or complaint with its entry on the record and acceptance by the trial judge constitutes jeopardy for purposes of O.C.G.A. §§ 16-1-7(b) and 16-1-8(b) . State v. Smith, 185 Ga. App. 694 , 365 S.E.2d 846 (1988).
Because the crimes alleged in the accusation and indictment involved different victims, locations, and times, and hence did not arise from the same conduct, the trial court did not err in denying the defendant's motion to dismiss the charges in the indictment on double jeopardy grounds based on the defendant's prior plea to the charges in the accusation. Davis v. State, 287 Ga. App. 535 , 652 S.E.2d 177 (2007).
Trial court properly rejected the defendant's argument that the state was collaterally estopped from pursuing the robbery charges as the court found that the alleged armed robbery was completed before the vehicle was taken and the defendant presented no evidence that the robbery charges were known to the prosecuting attorney when the earlier prosecution for theft by receiving the vehicle was brought. Holt v. State, 339 Ga. App. 230 , 793 S.E.2d 516 (2016).
Multiple convictions and punishments for one crime improper. - Because no evidence showed that the information concerning the defendant was known to the proper prosecuting officer in Gwinnett County, and because no basis otherwise existed for a charge of conspiracy to traffic based on what officers recovered in the search of the defendant's home, the appeals court refused to state that the defendant could have been convicted of conspiracy to traffic methamphetamine in Gwinnett County, or that Gwinnett County should have charged the defendant with this crime; hence, under these circumstances, the Dawson County indictment was not barred under O.C.G.A. §§ 16-1-6(b)(1) and 16-1-7(b) . Bradford v. State, 283 Ga. App. 75 , 640 S.E.2d 630 (2006).
Appeals court agreed that because there was only one homicide victim, only one life sentence, and not three, could be imposed, because such improperly subjected the defendant to multiple convictions and punishments for one crime. Turner v. State, 281 Ga. 487 , 640 S.E.2d 25 (2007).
Trial court erred in imposing a life sentence for each of the two indicted counts of felony murder, to be served concurrently, because the defendant could not be sentenced on two felony murder counts when only one person was killed as that improperly subjected the defendant to multiple convictions and punishments for one crime. Tye v. State, 298 Ga. 474 , 782 S.E.2d 10 (2016).
Substantive bar against double jeopardy not waived by guilty plea. - Right to be free of multiple convictions for the same conduct has been referred to as the substantive bar against double jeopardy, and it is not waived either by the defendant's entry of a guilty plea or by defendant's failure to assert it in the trial court. Redding v. State, 188 Ga. App. 805 , 374 S.E.2d 339 (1988).
Waiver of procedural and substantive bar against double jeopardy. - Although the procedural bar against double jeopardy found in O.C.G.A. § 16-1-8 can be waived by failure to assert it in writing prior to trial, the failure to file a written plea of former jeopardy prior to trial will not defeat an accused's right to be free of multiple convictions, under O.C.G.A. § 16-1-7 , for the criminal act. McClure v. State, 179 Ga. App. 245 , 345 S.E.2d 922 (1986).
When the defendant had already pled guilty, been sentenced, and completed sentence for certain crimes, an effort to reindict the defendant based on a violation of a plea agreement that the defendant would not seek public office was properly dismissed on the grounds of double jeopardy; the defendant's agreement to submit to such prosecution by waiving bar to prosecution, regardless of the failure to mention double jeopardy, was ineffectual. State v. Barrett, 215 Ga. App. 401 , 451 S.E.2d 82 (1994), rev'd on other grounds, 265 Ga. 489 , 458 S.E.2d 620 (1995).
Successive municipal and state court prosecutions. - Georgia's double jeopardy statute is inapplicable to successive municipal and state court prosecutions. State v. Burroughs, 244 Ga. 288 , 260 S.E.2d 5 (1979); Parker v. State, 170 Ga. App. 333 , 317 S.E.2d 209 (1984); Dickinson v. State, 191 Ga. App. 467 , 382 S.E.2d 187 (1989); Puckett v. State, 239 Ga. App. 582 , 521 S.E.2d 634 (1999).
O.C.G.A. § 16-1-7(a) does not preclude successive state and municipal prosecutions, only successive prosecutions for state crimes. Fuller v. State, 169 Ga. App. 468 , 313 S.E.2d 745 (1984).
Subsequent prosecution of defendant for robbery after defendant pled guilty in traffic court to fleeing to elude did not violate O.C.G.A. § 16-1-7 since there was no evidence that the traffic court solicitor knew about the robbery indictment when defendant's guilty plea was entered. Blackwell v. State, 230 Ga. App. 611 , 496 S.E.2d 922 (1998).
When a defendant pled guilty to an alcohol possession charge in state court, O.C.G.A. § 16-1-7(b) did not bar a subsequent prosecution in superior court of felony molestation and sexual battery charges allegedly arising out of the same conduct; the defendant did not show that the officer who handled the state court action knew of the other alleged crimes. Barlowe v. State, 286 Ga. App. 133 , 648 S.E.2d 471 (2007).
Subsequent prosecution not barred since municipal prosecutor without knowledge. - Defendant's motion to dismiss on double jeopardy grounds an accusation brought in the superior court alleging separate charges of fleeing or attempting to elude an officer, misdemeanor obstruction of an officer, reckless driving, and speeding was properly denied as the superior court prosecution was not barred because there was no evidence that the municipal court prosecutor had actual knowledge of the criminal conduct taking place outside of the city limits as the prosecutor explained that the only way cases came to the prosecutor was by way of a citation issued by the city; and any state warrants or reports associated with the defendant's case did not and would not have gone to the municipal prosecutor. Millsaps v. State, 341 Ga. App. 337 , 801 S.E.2d 63 (2017).
Plea on local ordinance did not impact state prosecution. - Order barring the defendant's prosecution for aggravated assault and aggravated battery on double jeopardy grounds based on the defendant's prior guilty plea to violating a disorderly conduct ordinance, a charge arising from the same fight, was error because the defendant failed to set forth the elements of the ordinance, and failed to properly plead and prove the ordinance; Georgia courts are not allowed to take judicial notice of local ordinances, but, rather, the ordinances must be alleged and proved by production of the original or of a properly certified copy. Further, because the defendant failed to prove below that the charges could have been brought within the jurisdiction of a single court and that the proper prosecuting attorney knew of the recorder's court proceedings, the trial court was not authorized to grant the plea in bar under O.C.G.A. § 16-1-7(b) . State v. Jeffries, 298 Ga. App. 141 , 679 S.E.2d 368 (2009).
Offenses not arising from same transaction. - When the defendant was convicted of driving under the influence in municipal court and then prosecuted for vehicular homicide and driving under the influence in superior court, the latter prosecution was not barred by principles of double jeopardy since the offenses did not arise from the same transaction and, because the offenses were completed at different times and in different locations, there was no single court with jurisdiction over all the crimes. Lefler v. State, 210 Ga. App. 609 , 436 S.E.2d 777 (1993).
After the defendant was arrested for various traffic-related offenses following an accident and the officer investigating the accident found evidence of controlled substance violations, a separate prosecution of the traffic offenses after prosecution for the controlled substance offenses was not barred by double jeopardy since the offenses involved different acts and occurred on different dates and in different locations. State v. Steien, 214 Ga. App. 345 , 447 S.E.2d 701 (1994).
Prosecution for forgery was not barred by O.C.G.A. § 16-1-7 where the forgery involved different parties, circumstances, locations, and times, and did not arise from the same transaction as other traffic and forgery charges. State v. Hulsey, 216 Ga. App. 670 , 455 S.E.2d 398 (1995).
Following a mistrial in the trial of defendant for theft by taking, double jeopardy did bar defendant's reindictment on the original charge and an additional count of theft by receiving stolen property because the evidence showed the commission of separate crimes by separate individuals. Wilson v. State, 229 Ga. App. 455 , 494 S.E.2d 267 (1997).
Offense of cruelty to children did not arise from the same transaction as the offenses of possession of marijuana or simple battery and, therefore, prosecution for the former offense was not barred because defendant had been charged with the other offenses. State v. Cornette, 229 Ga. App. 487 , 494 S.E.2d 289 (1997).
Appellate court found that the court was compelled to uphold the trial court's denial of the defendant's double jeopardy plea in bar on the basis that the defendant did not affirmatively show the prosecutor actually knew of the other crimes when the prosecutor prosecuted the first offense. Banks v. State, 320 Ga. App. 98 , 739 S.E.2d 414 (2013).
Each and every transaction in which the defendant, the director and a fiduciary of the animal shelter, took money belonging to the animal shelter with the intent of depriving the facility of that money constituted a separate and distinct completed crime; thus, the defendant's convictions for theft by taking did not merge into one count. Kilby v. State, 335 Ga. App. 238 , 780 S.E.2d 411 (2015), cert. denied, No. S16C0653, No. S16C0653, 2016 Ga. LEXIS 437 (Ga. 2016).
Trial court erred by granting the defendant's double jeopardy plea in bar because the crimes charged in the second indictment did not arise from the same conduct alleged in the first indictment as the possession of material depicting a minor engaged in sexual conduct, as alleged in the first indictment, was vastly different conduct from actually transmitting pornography to a child or fondling the child's buttocks as alleged in the second indictment. State v. Davis, 338 Ga. App. 580 , 790 S.E.2d 821 (2016).
Trial court did not err by denying the defendant's plea in bar because the defendant's prior acquittal for an armed robbery of a location across the street from the location involved in the instant action did not preclude prosecution when the robberies, though committed at nearby locations, occurred three weeks apart at different locations, against different victims and, thus, did not constitute a continuing course of conduct. Daniels v. State, 355 Ga. App. 134 , 843 S.E.2d 18 (2020).
Prosecution on state and federal charges of murder and kidnapping held proper. - Since the facts necessary to prove the federal charges of kidnapping and interstate travel with intent to commit murder for extortion are different from the facts necessary to prove the Georgia charges of murder and aggravated assault, there was no violation of either Georgia's statutes barring multiple prosecutions or the constitutional prohibition against double jeopardy, when the defendants were prosecuted in federal and state courts for all of the above offenses. Satterfield v. State, 256 Ga. 593 , 351 S.E.2d 625 (1987).
Multiple underlying felonies in felony murder case. - Appropriate manner for charging felony murder in instances when more than one underlying felony is alleged is to indict for one count of felony murder, and enumerate the multiple underlying felonies. State v. McBride, 261 Ga. 60 , 401 S.E.2d 484 (1991).
If there are multiple underlying felonies, the state is not required to elect between those felonies when charging the defendant with felony murder. State v. McBride, 261 Ga. 60 , 401 S.E.2d 484 (1991).
Malice murder conviction vacates felony murder charge. - By operation of O.C.G.A. § 16-1-7 , the trial court's proper entry of a judgment of conviction upon the jury's finding defendant guilty of malice murder vacated a felony murder charge. Tiller v. State, 267 Ga. 888 , 485 S.E.2d 720 (1997).
When a defendant had been convicted of malice murder, felony murder, armed robbery, and other crimes, the trial court did not err by failing to merge the armed robbery counts into the felony murder count predicated on the underlying felony of armed robbery as the felony murder count was vacated by operation of O.C.G.A. § 16-1-7 , and the defendant could be sentenced for the felony conviction so long as the felony was not included in the murder as a matter of fact or law; here, the armed robbery was not included in the malice murder charge as a matter of fact or law; evidence showing the defendant's intent to rob the victim was not used in proving the murder, and evidence that the defendant shot the victim was not used to prove the armed robbery. Davis v. State, 281 Ga. 871 , 644 S.E.2d 113 (2007).
Felony prosecution not barred by prior plea of guilty to traffic offense. - Defendant's entry of a plea of guilty to a traffic code violation did not bar prosecution for felony charges arising out of defendant's stop for the traffic violation, where it would have been unreasonable to impute the knowledge of one prosecuting officer to another, since two entirely separate prosecuting officers were involved and defense counsel had deliberately set out to exploit the situation by seeking expeditious disposition of the traffic violation. Powe v. State, 181 Ga. App. 429 , 352 S.E.2d 783 (1986).
Defendant's payment of a fine for a seat belt violation without entering a plea was not a "former prosecution" that barred defendant's later prosecution for vehicular homicide and other charges arising out of the same conduct, since the fine was accepted in error and without the permission or knowledge of the prosecutor's office or the court. Brown v. State, 251 Ga. App. 569 , 554 S.E.2d 760 (2001).
Subsequent prosecution on lesser included offense not barred. - Trial court erred by dismissing the indictment against the defendant charging voluntary manslaughter because the acquittal on the greater offense of malice murder did not preclude a retrial on the lesser offense of voluntary manslaughter. State v. Williams, 322 Ga. App. 341 , 744 S.E.2d 883 (2013).
Forfeiture proceedings not a bar to prosecution. - Double jeopardy did not attach to bar prosecution of defendant on state drug charges following federal civil forfeiture proceedings because defendant's failure to contest the forfeiture meant defendant was not placed in jeopardy in those proceedings and, also, Georgia constitutional and statutory provisions did not bar the prosecution because they apply only to criminal proceedings, not civil proceedings. Waye v. State, 219 Ga. App. 22 , 464 S.E.2d 19 (1995).
Civil forfeiture proceeding in a drug case was not a criminal prosecution for purposes of double jeopardy. Murphy v. State, 219 Ga. App. 474 , 465 S.E.2d 497 (1995), aff'd, 267 Ga. 120 , 475 S.E.2d 907 (1996).
Juvenile proceedings. - After a juvenile pled guilty to various traffic offenses and paid the fines, such action barred proceedings on a petition seeking an adjudication of delinquency based on other charges related to the same automobile accident. In re J.B.W., 230 Ga. App. 673 , 497 S.E.2d 1 (1998).
Because of the unique nature of juvenile court proceedings and the fact that a disposition or adjudication order is not a conviction of a crime, the doctrine of merger is inapplicable in juvenile proceedings. In the Interest of I. H., 350 Ga. App. 394 , 829 S.E.2d 437 (2019).
Separate proceedings in separate jurisdictions. - After a Georgia state patrolman began pursuing the defendant in one county after a radar check revealed that the defendant was speeding, the patrolman stated that the defendant's vehicle was observed "weaving" after the vehicle passed into the other county and that the patrolman detected a strong odor of alcohol on the defendant's breath upon stopping the defendant, and the patrolman issued two citations, one for speeding in one county and the other charging the defendant with driving under the influence of alcohol in the other county, a plea of guilty to the speeding charge in one county did not bar a Driving Under the Influence (DUI) prosecution in the other county. Morgan v. State, 195 Ga. App. 587 , 394 S.E.2d 588 (1990).
Defendant's plea in bar and motion to dismiss the Fulton County charges was improperly denied as the defendant negotiated a plea deal in Clayton County; and the prosecution for false imprisonment in Fulton County was not distinct from those crimes to which the defendant pled in Clayton County because, by crossing the county line into Clayton County, a new crime was not committed against the victim, but was a continuation of a crime that had begun in Fulton County. Arnold v. State, 352 Ga. App. 777 , 835 S.E.2d 759 (2019).
Motion to dismiss based upon prior municipal court proceeding. - Trial court did not err by denying the defendant's plea in bar and motion to dismiss the charges in the indictment based on a prior municipal court proceeding based on the same conduct because the defendant did not meet the defendant's burden to show that the city attorney had actual knowledge of all the facts supporting the trial court charges. The attorney, in testifying about the guilty plea the attorney took from the defendant in the first criminal proceeding, testified that the attorney could not say whether the attorney had actual knowledge of any offenses beyond the citations the attorney prosecuted. Massengille v. State, Ga. App. , S.E.2d (Sept. 18, 2020).
Subsequent prosecution not barred since prosecutor had no earlier knowledge. - Denial of defendant's double jeopardy plea in bar was proper because the defendant did not affirmatively show the prosecutor actually knew of the other crimes when prosecuting the traffic offenses arising out of the same incident. Turner v. State, 238 Ga. App. 438 , 518 S.E.2d 923 (1999).
When the facts relating to defendant's theft by taking and malfeasance in office convictions, allegedly arose from the same alleged conduct, but were not known to the state in a prior malpractice in office action and the new offenses involved proof of additional facts, the trial court properly denied the defendant's plea in bar of double jeopardy under O.C.G.A. §§ 16-1-7 and 16-1-8 . Atkinson v. State, 263 Ga. App. 274 , 587 S.E.2d 332 (2003).
Because the defendant failed to affirmatively show that the prosecutor had any actual knowledge regarding the approximately $300,000 worth of jewelry items found in a toolbox located at the defendant's residence upon an eviction, which were the subject of a second theft prosecution involving jewelry the defendant had stolen, the second prosecution regarding those items was not barred on double jeopardy grounds. White v. State, 284 Ga. App. 805 , 644 S.E.2d 903 , cert. denied, No. S07C1243, 2007 Ga. LEXIS 564 (Ga. 2007).
As a prosecutor had no actual knowledge of a prior juvenile traffic citation that was resolved against the defendant, a juvenile, when the prosecutor initiated charges against the juvenile on delinquency traffic citations under O.C.G.A. § 15-11-73, the juvenile court properly denied the juvenile's motion to acquit and plea of double jeopardy under O.C.G.A. § 16-1-7(b) . In re C. E. H., 297 Ga. App. 467 , 677 S.E.2d 318 (2009).
Trial court did not err by denying the defendant's motion to dismiss on double jeopardy grounds because, before the first trial, the witness statements did not demand a finding, as a matter of law, that the prosecutor had actual knowledge that the defendant had committed the crimes of conspiring to distribute marijuana and distributing marijuana; and, with regard to the gang crime, there was evidence that the state knew only that the defendant had joined a gang years before, not that the defendant was currently involved in drug-related gang activity. Randolph v. State, 334 Ga. App. 475 , 780 S.E.2d 19 (2015).
Trial court erred in dismissing the defendant's charge for DUI, O.C.G.A. § 40-6-391(k) , on double jeopardy grounds under O.C.G.A. § 16-1-7(b) based on the prior disposal online of a separate seat belt citation; there was no showing that the solicitor had actual knowledge of the DUI charge at the time the seat belt charge was handled. State v. Garlepp, 338 Ga. App. 788 , 790 S.E.2d 839 (2016).
Joinder and severance when offenses charged are based on same conduct. - Severance is necessary, when same conduct affords basis of joinder, only in the interest of justice. This standard is quite similar to the American Bar Association standard of achieving "a fair determination of the defendant's guilt or innocence." Haisman v. State, 242 Ga. 896 , 252 S.E.2d 397 (1979).
If multiple convictions arising out of single prosecution are barred, successive prosecution is also barred. Keener v. State, 238 Ga. 7 , 230 S.E.2d 846 (1976), cert. denied, 433 U.S. 911, 97 S. Ct. 2980 , 53 L. Ed. 2 d 1096 (1977); Perkins v. State, 143 Ga. App. 124 , 237 S.E.2d 658 (1977); Brock v. State, 146 Ga. App. 78 , 245 S.E.2d 442 (1978).
Merger claims cannot be deemed waived. - Merger claims cannot be waived, even following a guilty plea, because a conviction that merges as a matter of law or fact with another conviction is void, and any resulting sentence is void and illegal, which means that the claims may be challenged in any proper proceeding. Nazario v. State, 293 Ga. 480 , 746 S.E.2d 109 (2013).
Former Code 1933, §§ 26-505 and 26-506 (see now O.C.G.A. §§ 16-1-6 and 16-1-7 ) established alternative rules for determining when one crime was included in another as a matter of fact or as a matter of law. Harmon v. State, 235 Ga. 329 , 219 S.E.2d 441 (1975); Williams v. State, 156 Ga. App. 481 , 274 S.E.2d 826 (1980).
Several crimes arising from the same conduct and within the jurisdiction of a single court must be prosecuted in a single prosecution except where the court, in the interest of justice, orders one or more of the charges to be tried separately. Manning v. State, 162 Ga. App. 494 , 292 S.E.2d 95 (1982).
Same conduct establishes more than one crime. - While O.C.G.A. § 16-1-7(a) prohibits multiple convictions for the same conduct, it also provides that when the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. Lunsford v. State, 260 Ga. App. 818 , 581 S.E.2d 638 (2003).
When prosecutions in different courts of same state viewed as acts of single sovereign. - Prosecutions of same defendant in different courts of same state, one prosecution being for a felony and the other being for a misdemeanor which was included in the felony offense must be viewed as acts of a single sovereign under double jeopardy clause of Fifth Amendment. Brock v. State, 146 Ga. App. 78 , 245 S.E.2d 442 (1978).
Where recorder's court acted without jurisdiction. - When recorder's court lacked jurisdiction to try a defendant for driving without insurance, a violation of former O.C.G.A. § 33-34-12(see now O.C.G.A. § 40-5-70 et seq.), neither O.C.G.A. § 16-1-7(b) nor O.C.G.A. § 16-1-8 precluded later prosecution in superior court for operating a motor vehicle after having been declared an habitual violator and for driving under the influence. Parker v. State, 170 Ga. App. 333 , 317 S.E.2d 209 (1984).
When the proceeding in recorder's court was null and void because the court lacked jurisdiction to try appellant for a state law violation, the defendant's retrial was not a violation of double jeopardy or prior prosecution. Duncan v. State, 185 Ga. App. 854 , 366 S.E.2d 154 (1988), overruled on other grounds, Kolker v. State, 193 Ga. App. 306 , 387 S.E.2d 597 (1989).
Venue in more than one county. - In a kidnapping and murder case, where venue over the murder charge could lie in either of two counties, but venue over the kidnapping was solely in one of the counties, O.C.G.A. § 16-1-7 did not require that prosecution of the "dual venue" criminal charge must occur in the one county where the other criminal charge arising out of the same multi-county crime spree was required to be prosecuted; even though the state sought to prosecute the defendant on the murder charge initially in the county that did not have venue of the kidnapping, there was no procedural bar to the state's prosecuting both charges in the county with venue of both so long as the county comported with the "single prosecution requirement." Griffin v. State, 266 Ga. 115 , 464 S.E.2d 371 (1995).
When bond forfeiture declared final disposition. - When a person is arrested for driving under the influence of alcohol, posts a cash bond, and fails to appear in court, and the judge enters an order forfeiting the bond, declaring the forfeiture to be a final disposition of the case, a subsequent arraignment and trial for driving under the influence of alcohol constitutes double jeopardy, and it is error to deny a plea in bar of trial. Wilson v. State, 167 Ga. App. 421 , 306 S.E.2d 704 (1983).
No issue of fact as to whether one crime included in another. - Court did not err in failing to instruct the jury to decide which one of the offenses charged in the indictment or of the lesser included offense to find defendant guilty of. There was no issue of fact as to whether one crime was included in another and the court was not required to charge on O.C.G.A. § 16-1-7 . Leslie v. State, 211 Ga. App. 871 , 440 S.E.2d 757 (1994).
Application to verdict. - Since O.C.G.A. § 16-1-7(a) provides that one cannot be "convicted" of more than one crime arising from the same conduct, it has no application to the verdict. Sanders v. State, 212 Ga. App. 832 , 442 S.E.2d 923 (1994).
Even though charges of aggravated sodomy and aggravated child molestation arose out of the same act, the jury could find defendant guilty of both offenses, and the trial court was not required to direct a verdict as to one of the offenses. Sartin v. State, 223 Ga. App. 759 , 479 S.E.2d 354 (1996).
Trial court did not err in denying defendant's motion for a directed verdict on the basis that several counts alleged in the indictment merged because the same facts were used to prove them; although O.C.G.A. § 16-1-7 provides that one cannot be "convicted" of more than one crime arising from the same conduct, it has no application to the verdict. Williams v. State, 233 Ga. App. 217 , 504 S.E.2d 53 (1998).
When first jury hung, additional charges may not be brought as penalty. - When first trial results in a hung jury, the defendant is not to be penalized for the state's failure to obtain a conviction by the addition of new charges at the second trial. Curry v. State, 248 Ga. 183 , 281 S.E.2d 604 (1981).
Trial following mistrial on a new indictment charging involuntary manslaughter in two separate counts was not barred simply because the original indictment charged defendant with the same crime in a single count. Casillas v. State, 267 Ga. 541 , 480 S.E.2d 571 (1997).
Re-prosecution for lesser included crimes. - If a defendant is tried and convicted of a crime, and that conviction is reversed due to insufficient evidence, procedural double jeopardy bars re-prosecution for that same crime and any lesser included crime. Prater v. State, 273 Ga. 477 , 541 S.E.2d 351 (2001).
Offenses should have been merged. - Convictions of aggravated assault with intent to commit rape and aggravated assault with a deadly weapon by a husband who demanded sex from his estranged wife, stabbed his wife in the back when she refused, and then partially penetrated her, should have been merged prior to sentencing; therefore, the case was remanded. Lynn v. State, 251 Ga. App. 155 , 553 S.E.2d 836 (2001).
Defendant's convictions for possession of a firearm during the commission of a crime (criminal attempt to commit kidnapping) and possession of a firearm during the commission of a crime (aggravated assault) should have been merged. Carpenter v. State, 343 Ga. App. 355 , 808 S.E.2d 229 (2017), cert. denied, 2018 Ga. LEXIS 312 (Ga. 2018).
Sexual offenses should have merged. - When two counts charged the defendant with touching, in some way, the victim's genitals, and the record showed that it occurred in a single incident, the conduct charged in those counts was a single unit of prosecution, and those counts should have merged for sentencing. Hogg v. State, Ga. App. , 846 S.E.2d 183 (2020).
Parole and probation revocation proceedings. - Permitting defendant to be prosecuted in successive actions for probation revocation based on violations that were part of the same conduct did not violate double jeopardy. Perry v. State, 213 Ga. App. 220 , 444 S.E.2d 150 (1994).
Subsequent prosecution denied since prosecutor had earlier knowledge. - At the time defendant pled guilty to reckless conduct, the prosecutor was aware facts in the arrest report clearly contained evidence of aggravated assault, therefore, knowledge of other crimes was imputed to the prosecutor and subsequent prosecution of defendant under aggravated assault indictments was barred by O.C.G.A. §§ 16-1-7 and 16-1-8 . Billups v. State, 228 Ga. App. 804 , 493 S.E.2d 8 (1997).
Officer's single ambiguous comment to internal affairs describing the officer's sexual assault on woman in the officer's custody was insufficient as a matter of law to affirmatively demonstrate the prosecutor's actual knowledge prior to trial that an act of sodomy had occurred during the alleged assault on the complainant; therefore, the prosecutorial bar under O.C.G.A. § 16-1-7(b) did not apply. State v. Goble, 231 Ga. App. 697 , 500 S.E.2d 35 (1998).
Subsequent prosecution not barred where municipal court lacked jurisdiction. - Since the municipal court lacked jurisdiction to try defendant pursuant to a Uniform Traffic Citation charging him with "simple battery" in violation of "Section 16-5-23 ", prosecution of the offense before such court was void; accordingly, trial of defendant for simple battery in the state court was not barred on the ground of double jeopardy or prior prosecution. Rangel v. State, 217 Ga. App. 152 , 456 S.E.2d 739 (1995).
Indictment on charges previously nolle prossed. - It was not a violation of O.C.G.A. §§ 16-1-7(b) and 16-1-8(b) to indict the defendant on charges that had previously been nolle prossed under a plea agreement; the defendant breached the agreement by withdrawing a guilty plea to one charge, thereby allowing the state to indict the defendant on the charges that were previously nolle prossed. Thomas v. State, 285 Ga. App. 792 , 648 S.E.2d 111 , cert. denied, No. S07C1550, 2007 Ga. LEXIS 628 (Ga. 2007).
Trial court did not err by entering judgment on multiple counts. - Because a conviction on a charge of aggravated assault could be based on the defendant's act of cutting of the victim's throat, while a conviction on a charge of aggravated battery could be based on the serious disfigurement of the victim's arms, the trial court did not err by entering judgment on both counts. Goss v. State, 289 Ga. App. 734 , 658 S.E.2d 168 (2008).
Appellate review. - Because one may not be legally convicted of a crime that is included as a matter of law or fact in another crime for which that person stands convicted, an appellate court must vacate the conviction and sentence for an included crime, even where the issue of merger was not raised in the trial court. Brewster v. State, 261 Ga. App. 795 , 584 S.E.2d 66 (2003).
Cited in Rowland v. State, 124 Ga. App. 494 , 184 S.E.2d 494 (1971); Ansley v. State, 124 Ga. App. 670 , 185 S.E.2d 562 (1971); Ezzard v. State, 229 Ga. 465 , 192 S.E.2d 374 (1972); Callahan v. State, 229 Ga. 737 , 194 S.E.2d 431 (1972); Loftin v. State, 230 Ga. 92 , 195 S.E.2d 402 (1973); Howard v. State, 128 Ga. App. 807 , 198 S.E.2d 334 (1973); Brown v. State, 129 Ga. App. 743 , 201 S.E.2d 14 (1973); Lingerfelt v. State, 231 Ga. 354 , 201 S.E.2d 445 (1973); Estevez v. State, 130 Ga. App. 215 , 202 S.E.2d 686 (1973); Bennett v. State, 130 Ga. App. 510 , 203 S.E.2d 755 (1973); Ansley v. Stynchcombe, 480 F.2d 437 (5th Cir. 1973); Echols v. State, 231 Ga. 633 , 203 S.E.2d 165 (1974); Burden v. State, 131 Ga. App. 522 , 206 S.E.2d 533 (1974); Dyke v. State, 232 Ga. 817 , 209 S.E.2d 166 (1974); Spence v. State, 233 Ga. 527 , 212 S.E.2d 357 (1975); Owens v. State, 233 Ga. 905 , 213 S.E.2d 860 (1975); Harshaw v. State, 134 Ga. App. 581 , 215 S.E.2d 337 (1975); Summerour v. State, 135 Ga. App. 43 , 217 S.E.2d 378 (1975); Lanthrip v. State, 235 Ga. 10 , 218 S.E.2d 771 (1975); Tarpkin v. State, 236 Ga. 67 , 222 S.E.2d 364 (1976); Hardin v. Hopper, 237 Ga. 139 , 227 S.E.2d 43 (1976); Frazier v. State, 138 Ga. App. 640 , 227 S.E.2d 284 (1976); Mena v. State, 138 Ga. App. 722 , 227 S.E.2d 411 (1976); Thomas v. State, 237 Ga. 690 , 229 S.E.2d 458 (1976); Jones v. State, 238 Ga. 51 , 230 S.E.2d 865 (1976); Bonner v. State, 140 Ga. App. 314 , 231 S.E.2d 120 (1976); Neel v. State, 140 Ga. App. 691 , 231 S.E.2d 394 (1976); Williams v. State, 238 Ga. 298 , 232 S.E.2d 535 (1977); Padgett v. State, 142 Ga. App. 139 , 235 S.E.2d 545 (1977); Padgett v. State, 239 Ga. 556 , 238 S.E.2d 92 (1977); Hawes v. State, 239 Ga. 630 , 238 S.E.2d 418 (1977); Hiatt v. State, 144 Ga. App. 298 , 240 S.E.2d 894 (1977); Corson v. State, 144 Ga. App. 559 , 241 S.E.2d 454 (1978); Underwood v. State, 144 Ga. App. 684 , 242 S.E.2d 339 (1978); State v. Bolton, 144 Ga. App. 797 , 242 S.E.2d 378 (1978); Potts v. State, 241 Ga. 67 , 243 S.E.2d 510 (1978); Ramsey v. State, 145 Ga. App. 60 , 243 S.E.2d 555 (1978); State v. Gilder, 145 Ga. App. 731 , 245 S.E.2d 3 (1978); Coaxum v. State, 146 Ga. App. 370 , 246 S.E.2d 403 (1978); State v. Gilder, 242 Ga. 285 , 248 S.E.2d 659 (1978); Carnes v. State, 242 Ga. 286 , 248 S.E.2d 660 (1978); Hizine v. State, 148 Ga. App. 375 , 251 S.E.2d 393 (1978); Dowdy v. State, 148 Ga. App. 498 , 251 S.E.2d 571 (1978); Callahan v. State, 148 Ga. App. 555 , 251 S.E.2d 790 (1978); Godfrey v. State, 243 Ga. 302 , 253 S.E.2d 710 (1979); Boykin v. State, 149 Ga. App. 457 , 254 S.E.2d 457 (1979); Benton v. State, 150 Ga. App. 647 , 258 S.E.2d 298 (1979); Schamber v. State, 152 Ga. App. 196 , 262 S.E.2d 533 (1979); Groves v. State, 152 Ga. App. 606 , 263 S.E.2d 501 (1979); Duke v. State, 153 Ga. App. 204 , 264 S.E.2d 721 (1980); Thomas v. State, 153 Ga. App. 229 , 264 S.E.2d 734 (1980); Askea v. State, 153 Ga. App. 849 , 267 S.E.2d 279 (1980); Park v. State, 154 Ga. App. 348 , 268 S.E.2d 401 (1980); State v. Gilmer, 154 Ga. App. 673 , 270 S.E.2d 25 (1980); State v. Everett, 155 Ga. App. 162 , 270 S.E.2d 345 (1980); Trimble v. State, 156 Ga. App. 9 , 274 S.E.2d 10 (1980); Bailey v. State, 157 Ga. App. 222 , 276 S.E.2d 843 (1981); Bowens v. State, 157 Ga. App. 334 , 277 S.E.2d 326 (1981); Ward v. State, 248 Ga. 60 , 281 S.E.2d 503 (1981); Peavy v. State, 159 Ga. App. 280 , 283 S.E.2d 346 (1981); Godfrey v. State, 248 Ga. 616 , 284 S.E.2d 422 (1981); Jones v. State, 161 Ga. App. 620 , 288 S.E.2d 795 (1982); Rentz v. State, 162 Ga. App. 357 , 291 S.E.2d 434 (1982); Smith v. State, 163 Ga. App. 531 , 295 S.E.2d 208 (1982); Westmoreland v. State, 164 Ga. App. 455 , 297 S.E.2d 357 (1982); Harris v. State, 165 Ga. App. 249 , 299 S.E.2d 924 (1983); Miller v. State, 165 Ga. App. 638 , 302 S.E.2d 394 (1983); Mease v. State, 165 Ga. App. 746 , 302 S.E.2d 429 (1983); Potts v. Zant, 575 F. Supp. 374 (N.D. Ga. 1983); In re T.E.D., 169 Ga. App. 401 , 312 S.E.2d 864 (1984); Bert v. State, 169 Ga. App. 628 , 314 S.E.2d 466 (1984); Felker v. State, 252 Ga. 351 , 314 S.E.2d 621 (1984); Weaver v. State, 169 Ga. App. 890 , 315 S.E.2d 467 (1984); Chitwood v. State, 170 Ga. App. 599 , 317 S.E.2d 589 (1984); Bowens v. State, 171 Ga. App. 364 , 320 S.E.2d 189 (1984); Strozier v. State, 171 Ga. App. 703 , 320 S.E.2d 764 (1984); Caldwell v. State, 171 Ga. App. 680 , 320 S.E.2d 888 (1984); Stone v. State, 253 Ga. 433 , 321 S.E.2d 723 (1984); Pittman v. State, 172 Ga. App. 22 , 320 S.E.2d 71 (1984); Welch v. State, 172 Ga. App. 476 , 323 S.E.2d 622 (1984); Jordan v. State, 172 Ga. App. 496 , 323 S.E.2d 657 (1984); Ingram v. State, 253 Ga. 622 , 323 S.E.2d 801 (1984); State v. Martin, 173 Ga. App. 370 , 326 S.E.2d 558 (1985); Ridgeway v. State, 174 Ga. App. 663 , 330 S.E.2d 916 (1985); Colsson v. State, 177 Ga. App. 840 , 341 S.E.2d 318 (1986); Clarington v. State, 178 Ga. App. 663 , 344 S.E.2d 485 (1986); Few v. State, 179 Ga. App. 166 , 345 S.E.2d 643 (1986); Catchings v. State, 256 Ga. 241 , 347 S.E.2d 572 (1986); Gordon v. State, 181 Ga. App. 391 , 352 S.E.2d 582 (1986); Matthews v. State, 181 Ga. App. 819 , 354 S.E.2d 175 (1987); Hendrick v. State, 257 Ga. 514 , 361 S.E.2d 169 (1987); Johnson v. State, 257 Ga. 731 , 363 S.E.2d 540 (1988); Sparks v. State, 185 Ga. App. 225 , 363 S.E.2d 631 (1987); Hanvey v. State, 186 Ga. App. 690 , 368 S.E.2d 357 (1988); Pruitt v. State, 258 Ga. 583 , 373 S.E.2d 192 (1988); Armfield v. State, 259 Ga. 43 , 376 S.E.2d 369 (1989); State v. Evans, 192 Ga. App. 216 , 384 S.E.2d 404 (1989); State v. Smith, 193 Ga. App. 831 , 389 S.E.2d 547 (1989); Neal v. State, 198 Ga. App. 13 , 400 S.E.2d 375 (1990); Young v. State, 199 Ga. App. 520 , 405 S.E.2d 338 (1991); Loden v. State, 199 Ga. App. 683 , 406 S.E.2d 103 (1991); Timberlake v. State, 200 Ga. App. 64 , 406 S.E.2d 537 (1991); Lewis v. State, 262 Ga. 679 , 424 S.E.2d 626 (1993); Gentry v. State, 206 Ga. App. 490 , 426 S.E.2d 52 (1992); Hill v. State, 207 Ga. App. 65 , 426 S.E.2d 915 (1993); Moore v. State, 207 Ga. App. 673 , 428 S.E.2d 678 (1993); Burtts v. State, 269 Ga. 402 , 499 S.E.2d 326 (1998); Golden v. State, 233 Ga. App. 703 , 505 S.E.2d 242 (1998); Holmes v. State, 272 Ga. 517 , 529 S.E.2d 879 (2000); Allen v. State, 272 Ga. 513 , 530 S.E.2d 186 (2000); Donaldson v. State, 244 Ga. App. 89 , 534 S.E.2d 839 (2000); Beasley v. State, 244 Ga. App. 836 , 536 S.E.2d 825 (2000); Gissendaner v. State, 272 Ga. 704 , 532 S.E.2d 677 (2000); Stone v. State, 245 Ga. App. 728 , 538 S.E.2d 791 (2000); Stowe v. State, 272 Ga. 866 , 536 S.E.2d 506 (2000); Rhode v. State, 274 Ga. 377 , 552 S.E.2d 855 (2001); Ruffin v. State, 252 Ga. App. 289 , 556 S.E.2d 191 (2001); Henderson v. State, 252 Ga. App. 295 , 556 S.E.2d 204 (2001); Tesfaye v. State, 275 Ga. 439 , 569 S.E.2d 849 (2002); Curtis v. State, 275 Ga. 576 , 571 S.E.2d 376 (2002); Glover v. State, 258 Ga. App. 527 , 574 S.E.2d 565 (2002); Wilkerson v. State, 267 Ga. App. 585 , 600 S.E.2d 677 (2004); Cole v. State, 282 Ga. App. 211 , 638 S.E.2d 363 (2006); Sturgis v. State, 282 Ga. 88 , 646 S.E.2d 233 (2007); Leachman v. State, 286 Ga. App. 708 , 649 S.E.2d 886 (2007); Walker v. Hale, 283 Ga. 131 , 657 S.E.2d 227 (2008); Bennett v. State, 292 Ga. App. 382 , 665 S.E.2d 365 (2008); Armstrong v. State, 292 Ga. App. 145 , 664 S.E.2d 242 (2008); Smith v. State, 284 Ga. 304 , 667 S.E.2d 65 (2008); Wells v. State, 294 Ga. App. 277 , 668 S.E.2d 881 (2008); Henley v. State, 285 Ga. 500 , 678 S.E.2d 884 (2009); Strickland v. State, 300 Ga. App. 898 , 686 S.E.2d 486 (2009); State v. Leatherwood, 326 Ga. App. 730 , 757 S.E.2d 434 (2014); Dyal v. State, 297 Ga. 184 , 773 S.E.2d 249 (2015); Spears v. State, 296 Ga. 598 , 769 S.E.2d 337 (2015), overruled on other grounds by Willis v. State, 304 Ga. 686 , 820 S.E.2d 640 (2018); Woods v. State, 342 Ga. App. 301 , 802 S.E.2d 822 (2017); Patterson v. State, 347 Ga. App. 105 , 817 S.E.2d 557 (2018); Vasquez v. State, 306 Ga. 216 , 830 S.E.2d 143 (2019); Cordova v. State, 351 Ga. App. 652 , 832 S.E.2d 465 (2019).
Included Crimes
1. In General
Applicability of test under double jeopardy clause of Fifth Amendment. - When same act or transaction constitutes a violation of two distinct statutory provisions, test to be applied to determine whether there are two offenses or only one for purposes of double jeopardy clause of the Fifth Amendment is whether each provision requires proof of a fact which the other does not. Brock v. State, 146 Ga. App. 78 , 245 S.E.2d 442 (1978).
When crimes charged are same in law or fact. - Former Code 1933, § 26-506(a) provided that although defendant may be prosecuted for all crimes committed, defendant may not be convicted of more than one crime if crimes charged are same in law or fact. Bailey v. State, 146 Ga. App. 774 , 247 S.E.2d 588 (1978).
Although defendant may be prosecuted for all crimes committed, defendant may not be convicted of more than one crime if crimes charged are same in law or fact. Gunter v. State, 155 Ga. App. 176 , 270 S.E.2d 224 (1980).
Required evidence test adopted. - In determining when one crime is included in another under O.C.G.A. §§ 16-1-6(1) and 16-1-7(a) , the actual evidence test has been overruled and replaced with the Blockburger required evidence test, as this is consistent with the statutory framework of O.C.G.A. § 16-1-6(1) , which speaks of required elements. Drinkard v. Walker, 281 Ga. 211 , 636 S.E.2d 530 (2006).
Multiple punishment is barred if crime is same as matter of fact or law as specified in criminal code. State v. Estevez, 232 Ga. 316 , 206 S.E.2d 475 (1974), overruled on other grounds Drinkard v. Walker, 281 Ga. 211 , 636 S.E.2d 530 (2006).
Transactions must be identical both as matter of fact and law. Hiatt v. State, 133 Ga. App. 111 , 210 S.E.2d 22 (1974).
O.C.G.A. § 16-1-6 construed. - Paragraph (1) of former Code 1933, § 26-505 set (see now O.C.G.A. § 16-1-6 ) out rules for determining included crimes as a matter of fact, while paragraph (2) sets out rules for determining included crimes as a matter of law. Stephens v. Hopper, 241 Ga. 596 , 247 S.E.2d 92 , cert. denied, 439 U.S. 991, 99 S. Ct. 593 , 58 L. Ed. 2 d 667 (1978).
Aggravating circumstances. - Inclusion provisions of former Code 1933, §§ 26-505 and 26-506 (see now O.C.G.A. §§ 16-1-6 and 16-1-7 ) did not apply to aggravating circumstances but to crimes. Collier v. State, 244 Ga. 553 , 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346 , 63 L. Ed. 2 d 781, overruled on other grounds, Satterfield v. State, 248 Ga. 538 , 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23 , 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819 , 561 S.E.2d 82 (2002).
Corollary of subsection (a) is that defendant cannot be convicted separately of both crimes. - If defendant can be indicted and tried on one trial for two crimes arising from same conduct, but not convicted of more than one offense if one is lesser included in the other or they differ only in that one prohibits conduct generally and the other specifically, it follows that a defendant can be tried and convicted separately of either one or the other of the two crimes, but not both. State v. O'Neal, 156 Ga. App. 384 , 274 S.E.2d 575 (1980).
Doctrine of merger is still law in this state. Burns v. State, 127 Ga. App. 828 , 195 S.E.2d 189 (1973).
Merger not required when greater offense not charged. - Evidence that the object of a conspiracy to traffic in cocaine is completed does not preclude prosecution for conspiracy to traffic in cocaine rather than the substantive offense of trafficking in cocaine. Stafford v. State, 187 Ga. App. 401 , 370 S.E.2d 646 (1988).
Considering lesser offense upon finding guilt as to greater offense. - Where offense of simple battery was properly charged as lesser included offense of aggravated assault under indictment and evidence and, as such, defendant could not have been convicted of both aggravated assault and simple battery, trial court was justified in instructing jury so as to prevent them from needlessly considering charge of simple battery if they found defendant guilty of aggravated assault. Harper v. State, 157 Ga. App. 480 , 278 S.E.2d 28 (1981).
Request for charge on lesser included offense on retrial. - Upon retrial for a murder charge which had been dismissed after mistrial, the state was not precluded from requesting a charge on the lesser included offense of voluntary manslaughter as was requested at the trial on the original indictment. Rhyne v. State, 209 Ga. App. 548 , 434 S.E.2d 76 (1993), aff'd, 264 Ga. 176 , 442 S.E.2d 742 (1994).
Effect of conviction of lesser crime on retrial after reversal of conviction of greater crime. - When there is a conviction of two crimes in a single prosecution, one of which is included in the other and the defendant obtains reversal of major crime for lack of jurisdiction, remaining conviction of lesser crime does not bar retrial on major crime. In the event the defendant is then convicted on retrial for a major crime, invalidation of the defendant's conviction of a lesser included offenses for the same conduct would be authorized in appropriate proceedings. Keener v. State, 238 Ga. 7 , 230 S.E.2d 846 (1976), cert. denied, 433 U.S. 911, 97 S. Ct. 2980 , 53 L. Ed. 2 d 1096 (1977).
2. Crimes Against the Person
Underlying felony is a lesser included offense of felony murder, and conviction of both offenses is proscribed under the provisions of former Code 1933, § 26-506(a)(1). Woods v. State, 233 Ga. 495 , 212 S.E.2d 322 (1975); Atkins v. Hopper, 234 Ga. 330 , 216 S.E.2d 89 (1975); Moss v. State, 262 Ga. 702 , 425 S.E.2d 289 , overruled on other grounds, Malcolm v. State, 263 Ga. 369 , 434 S.E.2d 479 (1993).
As felony murder is defined under Georgia law, the underlying felony is a lesser included offense of felony murder and thus the same offense for double jeopardy purposes. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575 , 70 L. Ed. 2 d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733 , 77 L. Ed. 2 d 235 (1983).
Serious injury by vehicle and vehicular homicide did not merge. - Five convictions for serious injury by vehicle and a conviction for vehicular homicide did not merge; although the convictions stemmed from one incident of driving under the influence, there were separate victims for each offense. Harris v. State, 272 Ga. App. 366 , 612 S.E.2d 557 (2005).
Serious injury by vehicle prosecution barred as defendant pled guilty to failure to maintain lane. - Under O.C.G.A. §§ 16-1-7(b) and 16-1-8 , double jeopardy protection barred the defendant's prosecution for, inter alia, serious injury by vehicle because the defendant had earlier pled guilty in magistrate's court to failure to maintain a lane arising out of the same accident; both charges could have been tried in the superior court, and it was apparent from the record that the prosecuting officer knew that the defendant had been charged with both offenses. When the defendant appeared in court initially, both charges were pending, and the magistrate court judge bound over the serious injury by vehicle charge. Etienne v. State, 298 Ga. App. 149 , 679 S.E.2d 375 (2009).
Armed robbery as lesser included offense of felony murder. See Berryhill v. Ricketts, 242 Ga. 447 , 249 S.E.2d 197 (1978).
When proof of the armed robbery is essential to the conviction for felony murder, the armed robbery is a lesser included offense in the felony murder. Sanborn v. State, 251 Ga. 169 , 304 S.E.2d 377 (1983); Allen v. State, 262 Ga. 649 , 424 S.E.2d 1 (1993).
Armed robbery as included offense of malice murder. - When the defendant is charged with an armed robbery of a murder victim, proof of the armed robbery is essential to support the defendant's conviction of malice murder and is an included offense. Burke v. State, 234 Ga. 512 , 216 S.E.2d 812 (1975).
Defendant's conviction for armed robbery was properly not merged into a malice murder conviction pursuant to O.C.G.A. § 16-1-7(a)(1), based on the "required evidence" test, as each offense required proof of an element that the other did not. Culpepper v. State, 289 Ga. 736 , 715 S.E.2d 155 (2011).
Armed robbery and kidnapping are clearly not included offenses as a matter of law, nor are they included offenses as a matter of fact where the two offenses are based on separate acts. Emmett v. State, 199 Ga. App. 650 , 405 S.E.2d 707 (1991), cert. denied, 199 Ga. App. 905 , 405 S.E.2d 707 (1991).
Armed robbery and hijacking. - Defendant's separate convictions for armed robbery and hijacking a motor vehicle did not violate the prohibitions against double jeopardy as O.C.G.A. § 16-5-44.1(d) provided that hijacking a motor vehicle was a separate offense and did not merge and it therefore superseded the state statutory double jeopardy provision; further, the Georgia Constitution did not prohibit additional punishment for a separate offense that the Georgia legislature had deemed to warrant a separate sanction; the defendant failed to show how the hijacking statute violated the federal double jeopardy clause. Mullins v. State, 280 Ga. App. 689 , 634 S.E.2d 850 (2006).
Aggravated assault with a deadly weapon and intent to murder. - Defendant's convictions for aggravated assault with a deadly weapon and aggravated assault with intent to murder merged for sentencing because both counts of the indictment alleged that the defendant committed aggravated assault by slashing the victim's neck; although one count alleged that the assault was done with a deadly weapon and the other alleged that it was done with the intent to commit murder, O.C.G.A. § 16-5-21(a)(1) and (a)(2), the counts were clearly based on a single act since the razor or knife used in that assault broke while it was pressed against the victim's neck and, thus, the counts merely charged the same act of aggravated assault being committed in two of the multiple ways set out in O.C.G.A. § 16-3-21 . Thomas v. State, 310 Ga. App. 404 , 714 S.E.2d 37 (2011).
Aggravated assault and burglary convictions properly kept separate from armed robbery. - Trial court did not err by failing to merge for purposes of sentencing a defendant's aggravated assault and/or the burglary conviction with the armed robbery conviction since, with regard to the aggravated assault and armed robbery convictions, the evidence showed that the victim was first threatened with a gun in an attempt to rob, that, separately, the victim was pistol-whipped with a gun and struck with a hard object in an attempt to rob, and that finally, the victim was shot in an attempt to rob, thus, the trial court was authorized to conclude that the physical beating and either incident of gun use were separate completed crimes. Accordingly, the trial court was authorized to convict the defendant for aggravated assault for the physical beating and for armed robbery by use of a gun and, similarly, the burglary occurred when the defendant walked into the victim's home with intent to rob, which event was separated by time from the aggravated assault and armed robbery, therefore, all three crimes were separate completed crimes and merger was not required. Yates v. State, 298 Ga. App. 727 , 681 S.E.2d 190 (2009).
Kidnapping, armed robbery, and aggravated assault. - Trial court's decision not to merge the conviction of kidnapping, in violation of O.C.G.A. § 16-5-40 , with defendant's convictions for aggravated assault and armed robbery, in violation of O.C.G.A. §§ 16-5-21 and 16-8-41 , was proper under O.C.G.A. § 16-1-7(a) , as the facts that supported the kidnapping were not the same as those that supported the convictions for the other offenses; the kidnapping occurred when defendant forced three store employees into an office, the aggravated assaults occurred when defendant pointed a gun at one employee's head and hit another employee with it, and the armed robbery occurred when defendant took money from the store safe. Hill v. State, 279 Ga. App. 666 , 632 S.E.2d 443 (2006).
Kidnapping, aggravated assault, and aggravated battery. - Trial court did not err under O.C.G.A. § 16-1-7 in failing to merge convictions for aggravated assault and aggravated battery with a conviction for kidnapping with bodily injury as each crime required proof of at least one different element, and the state presented independent evidence to prove each individual crime as set out in the indictment. Evidence that the defendant pointed a gun at the victim and fired the gun at the floor near the victim, that the defendant used a wooden stick resembling a baseball bat to repeatedly hit the victim, and that the defendant hit and kicked the victim while the victim was tied up supported the three aggravated assault counts; aggravated battery in Counts 5 and 6 was established by evidence that the defendant broke the victim's nose, wrist, and shoulder and knocked out two teeth and by evidence that the defendant burned the victim's hand and caused the victim to be bitten by fire ants; and kidnapping with bodily injury was proven by evidence of injuries to the victim due to being bound by rope. Rouse v. State, 295 Ga. App. 61 , 670 S.E.2d 869 (2008).
Aggravated battery and aggravated assault. - Defendant's aggravated battery convictions did not merge because the counts of the indictment were predicated on different conduct; in order to prove one count of the indictment, the state had to show that the victim threw bleach in the victim's eyes, and in order to prove another count of the indictment, the state had to prove that the victim's finger was rendered useless because the finger was repeatedly struck with a hammer. Thomas v. State, 310 Ga. App. 404 , 714 S.E.2d 37 (2011).
Separate judgments of conviction and sentences for aggravated assault, O.C.G.A. § 16-5-21(a)(2), and aggravated battery, O.C.G.A. § 16-5-24(a) , were authorized because the evidence authorized a finding that the defendant committed an initial aggravated assault and, after a deliberate interval, committed an aggravated battery in a different location and on a different part of the victim's body; because each offense required proof of a fact that the other offense did not, the crimes did not merge legally or factually. Brockington v. State, 316 Ga. App. 90 , 728 S.E.2d 753 (2012).
In an aggravated assault and aggravated battery case arising out of an incident in which the defendant twice, in quick succession, slashed the throat of the victim, the defendant's girlfriend, the trial court erred by failing to merge the defendant's convictions, and the court of appeals erroneously affirmed that decision because the record sufficiently established that the defendant's actions were part of a continuous criminal act, committed at the same time and place and inspired by the same criminal intent; and the offenses, which were based on the single criminal act of the defendant cutting the victim's throat with a knife, only differed with respect to the seriousness of the injury or risk of injury suffered by the victim. Regent v. State, 299 Ga. 172 , 787 S.E.2d 217 (2016).
After the trial court merged the defendant's aggravated assault conviction into the defendant's armed robbery conviction, and then sentenced the defendant for armed robbery and aggravated battery, even if the trial court should have merged the defendant's aggravated battery and aggravated assault convictions, the end result would have been the same as the defendant would have been sentenced for aggravated battery rather than aggravated assault, given that the aggravated assault constituted the included offense; thus, any error by the trial court in failing to merge the defendant's aggravated battery and aggravated assault convictions was harmless and provided no basis for vacating the defendant's sentence. Epperson v. State, 340 Ga. App. 25 , 796 S.E.2d 1 (2016).
Because the aggravated assault charge was based on the single criminal act of the defendant throwing acid on the victim, and differed from the aggravated battery counts only with respect to the specificity of the injury or risk of injury the victim actually suffered, the aggravated assault was included in the aggravated battery and should have merged. Fordham v. State, 352 Ga. App. 520 , 835 S.E.2d 360 (2019), cert. denied, No. S20C0442, 2020 Ga. LEXIS 392 (Ga. 2020).
Aggravated battery counts merged. - As to the two counts of aggravated battery, both counts were accomplished by the single act of throwing acid on the victim and, therefore, one count should have merged into the other. Fordham v. State, 352 Ga. App. 520 , 835 S.E.2d 360 (2019), cert. denied, No. S20C0442, 2020 Ga. LEXIS 392 (Ga. 2020).
Aggravated battery and felony murder. - After the trial court imposed a life sentence for felony murder predicated on aggravated battery and in addition imposed a 20-year concurrent term for the same aggravated battery, because the aggravated battery merged into the felony murder predicate, the trial court erred in sentencing the defendant on the aggravated battery. Smith v. State, 297 Ga. 667 , 777 S.E.2d 453 (2015).
Because the crime of aggravated battery by shooting the victim with a gun was the underlying felony for the defendant's felony murder conviction, it should have merged with the felony murder conviction for sentencing purposes. Rodriguez v. State, Ga. , S.E.2d (Aug. 10, 2020).
Murder is not included within crime of possession of firearm during commission of felony. Wilson v. Zant, 249 Ga. 373 , 290 S.E.2d 442 , cert. denied, 459 U.S. 1092, 103 S. Ct. 580 , 74 L. Ed. 2 d 940 (1982).
Defendant's conviction for possession of a knife during the commission of a felony did not merge into the defendant's two convictions for malice murder for sentencing purposes. Hooks v. State, 284 Ga. 531 , 668 S.E.2d 718 (2008), overruled on other grounds, Williams v. State, 287 Ga. 192 , 695 S.E.2d 244 (2010).
Theft of numerous articles in one robbery. - After the defendant hailed a taxi, pulled a knife and took the driver's money, placed the driver in the trunk of the taxi, drove the taxi for a short period of time, and stopped the taxi and took the driver's cell phone and wallet after hearing the driver talking, the defendant was guilty of robbery; however, the defendant could not be convicted of multiple robberies. Lewis v. State, 261 Ga. App. 273 , 582 S.E.2d 222 (2003).
False imprisonment does not merge with armed robbery. - Offense of false imprisonment requires proof of at least one additional fact which the offense of armed robbery does not. Consequently, under the "required evidence" test, a defendant's false imprisonment conviction did not merge into the defendant's armed robbery conviction. Simpson v. State, 293 Ga. App. 760 , 668 S.E.2d 451 (2008).
Sequential assaults held to be two offenses, the first a completed crime when the second was perpetrated. Talley v. State, 164 Ga. App. 150 , 296 S.E.2d 173 (1982), aff'd, 251 Ga. 42 , 302 S.E.2d 355 (1983).
Aggravated assault with deadly weapon and with object. - Defendant's convictions for aggravated assault with a deadly weapon and aggravated assault with an object, device, or instrument did not merge because the counts of the indictment requiring the state to prove that the defendant slashed the victim's neck with a sharp-edged instrument, hit the victim with a hammer and wrapped a cord around the victim's neck with the intent to murder were based on different conduct and merger of those convictions was not required. Thomas v. State, 310 Ga. App. 404 , 714 S.E.2d 37 (2011).
Aggravated assault upon one person and malice murder of another not "included." - Aggravated assault alleged in one count of indictment to have been committed on one person and malice murder alleged in another count of same indictment to have been committed upon another person are not included within meaning of O.C.G.A. § 16-1-7(a)(2). Satterfield v. State, 248 Ga. 538 , 285 S.E.2d 3 (1981).
Aggravated assault and malice murder. - When the evidence used to prove that the defendant perpetrated the aggravated assault of the decedent - that the defendant fired a deadly weapon and wounded the victim - was used to establish that the defendant had committed malice murder, convictions for both aggravated assault and murder violated double jeopardy. Montes v. State, 262 Ga. 473 , 421 S.E.2d 710 (1992).
When a prisoner was convicted of malice murder under O.C.G.A. § 16-5-1(a) , a jury did not return a verdict on felony murder counts because O.C.G.A. § 16-1-7 prohibited a conviction for both offenses for the death of a single victim. Further, the defendant's crime of aggravated assault under O.C.G.A. § 16-5-21(a) also merged with the malice murder offense as it was a crime included within the greater offense. Newland v. Hall, 527 F.3d 1162 (11th Cir. 2008), cert. denied, 555 U.S. 1183, 129 S. Ct. 1336 , 173 L. Ed. 2 d 607 (2009).
Convictions against the defendant for both malice murder and aggravated assault were error under O.C.G.A. § 16-1-7(a)(1) as the aggravated assault was included within the malice murder conviction under O.C.G.A. § 16-1-6(1) because the same conduct established the commission of both offenses. Bell v. State, 284 Ga. 790 , 671 S.E.2d 815 (2009).
Codefendant's conviction for aggravated assault had to be vacated because it merged as a matter of fact into the conviction for malice murder since the medical examiner who performed the autopsy of the victim testified that the cause of death was "gunshot wounds," did not identify any injury as the fatal shot, acknowledged the examiner could not testify as to the order in which the bullets entered the victim's body, and stated no single wound would have instantly stopped the victim; in the absence of evidence that one wound was fatal and was preceded by a "deliberate interval" in the series of shots fired and by the infliction of non-fatal wounds, there was no evidence to support the infliction of an aggravated assault separate and apart from the malice murder. Coleman v. State, 286 Ga. 291 , 687 S.E.2d 427 (2009).
Trial court erred in sentencing the defendant on the count of the indictment charging the defendant with making an assault upon the victim with intent to murder in violation of O.C.G.A. § 16-5-21(a) after sentencing the defendant to life in prison for malice murder because the aggravated assault upon the victim and the murder of the victim occurred simultaneously; thus, the evidence used to prove the aggravated assault offense was established by the same, but not all, of the facts required to prove malice murder. Gresham v. State, 289 Ga. 103 , 709 S.E.2d 780 (2011).
Defendant's conviction for aggravated assault should have been merged into a malice murder conviction pursuant to O.C.G.A. § 16-1-7(a)(1), based on the "required evidence" test, as the aggravated assault, as pled, did not require proof of a fact not required to have been proved in the malice murder. Culpepper v. State, 289 Ga. 736 , 715 S.E.2d 155 (2011).
Defendant's conviction for aggravated assault of the victim merged into the conviction for malice murder of the victim because there was no evidence that the victim suffered a non-fatal injury prior to a deliberate interval in the attack and a fatal injury thereafter; the forensic pathologist who conducted the autopsy catalogued the victim's wounds as "chop injuries" that fractured the victim's skull and incapacitated the victim and were likely inflicted with a hatchet, punctures and superficial, deep, and very deep incisions and stab wounds that were inflicted by knives. Alvelo v. State, 290 Ga. 609 , 724 S.E.2d 377 (2012).
Trial court erred when the court failed to merge the defendant's aggravated assault conviction into the defendant's conviction for felony murder because there was no evidence of a deliberate interval separating the infliction of any non-fatal wounds and any fatal wounds; instead, the undisputed evidence was that the wounds were delivered in quick succession. Sears v. State, 292 Ga. 64 , 734 S.E.2d 345 (2012).
Malice murder and cruelty to children. - Although both malice murder and cruelty to children required a malicious intent, O.C.G.A. §§ 16-5-1(a) and 16-5-70(b) , the fact that such intent supported an element in each crime did not warrant merging of the sentences when other mutually exclusive elements of the crimes remained, and the other elements of the two offenses had to be compared; malice murder, but not cruelty to children, required proof that defendant caused the death of another human being, § 16-5-1(a) , and cruelty to children, but not malice murder, required proof that the victim was a child under the age of 18 who was caused cruel or excessive physical or mental pain, § 16-5-70(b) . Each crime required proof of at least one additional element which the other did not and the crimes of malice murder and cruelty to children were not so closely related that multiple convictions were prohibited under other provisions of O.C.G.A. §§ 16-1-6 and 16-1-7 ; accordingly, even if the same conduct established the commission of both malice murder and cruelty to children, the two crimes did not merge. Linson v. State, 287 Ga. 881 , 700 S.E.2d 394 (2010).
Aggravated assault and felony murder. - It was permissible for the state to indict defendant for both aggravated assault and felony murder, although defendant could not be convicted of both because the aggravated assault was an included offense in the felony murder. Campbell v. State, 269 Ga. 186 , 496 S.E.2d 724 (1998).
Trial court erred in sentencing defendant on an aggravated assault conviction; as the aggravated assault was the underlying felony that formed the basis for a felony murder charge against defendant under O.C.G.A. § 16-1-7 , defendant could not be sentenced on both the aggravated assault and felony murder when found guilty of both. Bolston v. State, 282 Ga. 400 , 651 S.E.2d 19 (2007).
Because the crime of aggravated assault by shooting the victim with a gun was the underlying felony for the defendant's felony murder conviction, it should have merged for sentencing purposes; however, the conviction for aggravated assault with intent to rob, O.C.G.A. § 16-5-21(a)(1), did not merge into the felony murder conviction because the felony murder charge required proof that the defendant caused the victim's death and used a deadly weapon, O.C.G.A. §§ 16-5-1(c) and 16-5-21(a)(2). Norris v. State, 302 Ga. 802 , 809 S.E.2d 752 (2018).
Misdemeanor-manslaughter and felony murder. - Since a misdemeanor can be an included crime in a felony, misdemeanor-manslaughter could be an included crime in felony murder. Carter v. State, 269 Ga. 420 , 499 S.E.2d 63 (1998).
Voluntary manslaughter and felony murder. - Because there is only one victim, to convict and sentence defendant for both voluntary manslaughter and felony murder would improperly subject defendant to multiple convictions and punishments for one crime. Smith v. State, 272 Ga. 874 , 536 S.E.2d 514 (2000).
Aggravated assault with deadly weapon and aggravated assault with intent to murder. - Since the facts adduced to prove the offense of aggravated assault with intent to murder were the same facts used to prove the offense of aggravated assault with a deadly weapon, as a matter of fact the latter had to be considered an offense included in the former. Mitchell v. State, 187 Ga. App. 40 , 369 S.E.2d 487 , cert. denied, 187 Ga. App. 908 , 371 S.E.2d 432 (1988).
Aggravated assault conviction merged into a criminal attempt to commit murder conviction, where both counts were based on allegations that defendant had stabbed the victim with a knife. Kelley v. State, 201 Ga. App. 343 , 411 S.E.2d 276 (1991).
Aggravated assault with deadly weapon and aggravated assault with intent to rob. - Under O.C.G.A. § 16-1-7(a) , a trial court erred in convicting and sentencing defendant for both aggravated assault with a deadly weapon and aggravated assault with the intent to rob, as those two offenses merged since the same facts were used to prove both offenses. Adcock v. State, 279 Ga. App. 473 , 631 S.E.2d 494 (2006).
Voluntary manslaughter and aggravated assault. - Convictions for the voluntary manslaughter of one victim and the aggravated assault of another did not merge as a matter of fact because only one shot was fired, striking both victims. Hall v. State, 235 Ga. App. 44 , 508 S.E.2d 703 (1998).
Trial court erred in entering a judgment of conviction against the defendant for aggravated assault, O.C.G.A. § 16-5-21(a)(2), because that conviction should have been merged into the defendant's conviction for voluntary manslaughter, O.C.G.A. § 16-5-2(a) ; the defendant was charged in the indictment with voluntary manslaughter and aggravated assault for the stabbing of the victim, and the undisputed evidence at trial showed that the victim was stabbed one time in the chest, causing the victim's death. Muckle v. State, 307 Ga. App. 634 , 705 S.E.2d 721 (2011).
Aggravated assault and armed robbery. - Armed robbery and aggravated assault with a deadly weapon are separate crimes, and one is not included in the other. Neither prohibits a designated kind of conduct generally while the other prohibits a specific instance of such conduct. Roberts v. State, 228 Ga. 298 , 185 S.E.2d 385 (1971).
Aggravated assault is not an included offense of armed robbery as defined by former Code 1933, § 26-506(a)(1), prohibiting multiple prosecutions for the same conduct. Harvey v. State, 233 Ga. 41 , 209 S.E.2d 587 (1974) (see O.C.G.A. § 16-1-7(a)(1)).
Separate convictions for armed robbery and aggravated assault, although arising from same conduct, are not prohibited except where one crime is included in the other or where crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct. Kramer v. Hopper, 234 Ga. 395 , 216 S.E.2d 119 (1975).
There was no violation of defendant's protection from double jeopardy in defendant having been convicted of and punished for both the aggravated assault and armed robbery of the victim, where the indictment charged armed robbery with the specific intent to commit a theft and the two acts were in fact separate though in close succession. Taylor v. State, 177 Ga. App. 624 , 340 S.E.2d 263 (1986).
Entry of separate convictions for armed robbery and aggravated assault was barred, and conviction for the latter offense would have to be vacated, where the only aggravated assault shown by the evidence was that by which the commission of the armed robbery was effectuated. Young v. State, 177 Ga. App. 756 , 341 S.E.2d 286 (1986).
Defendant's five convictions of aggravated assault merged with defendant's conviction on five counts of attempted armed robbery where defendant's act of pointing a pistol at bank employees when defendant announced intent to rob the bank was the act underlying both the convictions for attempted armed robbery and for aggravated assault. Hambrick v. State, 256 Ga. 148 , 344 S.E.2d 639 (1986).
Aggravated assault was included in armed robbery as matter of fact, where the defendant initially pointed a pistol at the victim, which prompted the victim to open the cash drawer, and subsequently cocked the weapon after the victim told defendant that there was no money and fired virtually at the same moment as the victim was hitting the button to open the drawer. Moreland v. State, 183 Ga. App. 113 , 358 S.E.2d 276 (1987).
Convictions and sentences for both armed robbery and aggravated assault were proper, where each offense charged was clearly supported by its own set of facts. Millines v. State, 188 Ga. App. 655 , 373 S.E.2d 838 (1988).
Offenses of aggravated assault and robbery did not merge as a matter of law where, although the occurrences happened within a short span of time, the robbery had been completed at the time defendant fired the gun, and involved different actions and intents. Phelps v. State, 194 Ga. App. 493 , 390 S.E.2d 899 (1990).
When the defendant's act of pointing a gun at one victim was the act underlying the armed robbery of a second victim, and the robbery was completed before the defendant committed an aggravated assault upon the second victim by pointing a gun at the victim, the crimes of armed robbery and aggravated assault upon the second victim did not merge. Perkins v. State, 216 Ga. App. 118 , 453 S.E.2d 135 (1995).
Conviction for aggravated assault should have been vacated pursuant to the doctrine of merger. The only aggravated assault shown by the evidence was that by which the commission of armed robbery was effectuated. There having been no additional, gratuitous violence employed against the victim, it followed that the evidentiary basis for the aggravated assault conviction was "used up" in proving the armed robbery. Kelly v. State, 188 Ga. App. 362 , 373 S.E.2d 63 (1988); Smith v. State, 193 Ga. App. 208 , 387 S.E.2d 419 (1989); Jordan v. State, 218 Ga. App. 679 , 462 S.E.2d 801 (1995).
Defendant's ineffective assistance of counsel claim based on counsel's failure to ask at sentencing that defendant's convictions for aggravated assault be merged into the armed robbery convictions was rejected as the convictions were merged at the motion for a new trial hearing. Buchanan v. State, 273 Ga. App. 174 , 614 S.E.2d 786 (2005).
Since the defendant was indicted for aggravated assault for pointing a handgun at a victim, which was also a substantial step toward commission of the armed robbery, the trial court properly merged the defendant's aggravated assault conviction with the attempted armed robbery conviction. McKinney v. State, 274 Ga. App. 32 , 619 S.E.2d 299 (2005).
As the armed robberies and aggravated assaults with which the defendant was charged were committed against different victims, the crimes did not merge as a matter of law or fact. Verdree v. State, 299 Ga. App. 673 , 683 S.E.2d 632 (2009).
Because the assault element of a defendant's aggravated assault with intent to rob conviction under O.C.G.A. § 16-5-21(a) was contained within the "use of an offensive weapon" element of armed robbery under O.C.G.A. § 16-8-41 , and both crimes shared the "intent to rob" element, the defendant's aggravated assault conviction merged into the armed robbery conviction. Lucky v. State, 286 Ga. 478 , 689 S.E.2d 825 (2010).
Defendant's sentence for armed robbery, O.C.G.A. § 16-8-41(a) , and aggravated assault, O.C.G.A. § 16-5-21(a)(2), was not void as a result of the trial court's failure to merge the convictions because the convictions did not merge for sentencing purposes since the convictions did not involve the same conduct; the crime of armed robbery was complete when the defendant entered a restaurant and, with the use of a handgun, demanded and took money from a waitress, and, after completion of the armed robbery, the defendant pushed the gun against the waitress's neck and asked whether the waitress wanted to die, which formed the basis of the aggravated assault conviction. McKenzie v. State, 302 Ga. App. 538 , 691 S.E.2d 352 (2010).
Trial court erred in failing to merge aggravated assault, O.C.G.A. § 16-5-21(a)(2), and armed robbery, O.C.G.A. § 16-8-41 , counts because the state relied on the same act of assault to establish defendant's guilt of aggravated assault and armed robbery, and although the state could have been able to indict the defendant for aggravated assault based on conduct separate and distinct from the defendant's act of hitting the victim in the head with a baseball bat, the indictment specifically charged the defendant with the offense of aggravated assault; while armed robbery requires proof of additional facts, like aggravated assault with intent to rob, aggravated assault under § 16-5-21(a)(2) does not require proof of a fact not required to establish armed robbery. Taylor v. State, 304 Ga. App. 395 , 696 S.E.2d 686 (2010).
Because defendant's conviction under O.C.G.A. § 16-8-41(a) for armed robbery could be sustained based upon defendant's conduct with a shotgun, and because defendant's conviction under O.C.G.A. § 16-5-21(a)(2) for aggravated assault could be sustained based upon defendant's conduct with a knife, pursuant to O.C.G.A. § 16-1-7(a) , the two convictions did not merge. Johnson v. State, 305 Ga. App. 838 , 700 S.E.2d 726 (2010).
Defendant's aggravated assault conviction should have merged into defendant's armed robbery conviction for sentencing purposes because the defendant's use of the defendant's handgun against the victim was the same conduct in both offenses, designed to immobilize the victim while the victim was robbed. The aggravated assault was established by proof of the same or less than all the facts required to establish the commission of the armed robbery. Herrera v. State, 306 Ga. App. 432 , 702 S.E.2d 731 (2010).
Defendant's convictions for armed robbery and aggravated assault did not merge because each crime required proof of conduct that the other did not; the armed robbery as charged in the indictment required proof of intent to rob and that the victim's wallet was taken, while the aggravated assaults required proof that the victim's neck was slashed with a sharp weapon. Thomas v. State, 310 Ga. App. 404 , 714 S.E.2d 37 (2011).
Trial court erred in failing to merge the defendant's conviction for aggravated assault with a deadly weapon, O.C.G.A. § 16-5-21(a)(2), into the defendant's conviction for armed robbery conviction, O.C.G.A. § 16-8-41(a) , because the act of using an offensive weapon for the purposes of committing an armed robbery was the legal equivalent of assault for the purposes of committing an aggravated assault; it is not determinative under the merger analysis that the desired object of a defendant's armed robbery was something other than that which he or she actually took, but instead, what dictates merger is the fact that both crimes for which the defendant was convicted were predicated upon the same conduct. Hall v. State, 313 Ga. App. 66 , 720 S.E.2d 181 (2011).
Because the victim was still being pistol whipped while the men asked the victim what the victim had and took the victim's wallet and cell phone, the robbery by use of a handgun was completed at the same place and approximately the same time as the aggravated assault with a handgun; thus, the timing of the offenses of armed robbery and aggravated assault with intent to rob did not preclude their merger. Curtis v. State, 330 Ga. App. 839 , 769 S.E.2d 580 (2015).
Because the "assault" element of aggravated assault with intent to rob is contained within the "use of an offensive weapon" element of armed robbery and both crimes share the "intent to rob" element, there is no element of aggravated assault with intent to rob that is not contained in armed robbery, and the offenses merge. Curtis v. State, 330 Ga. App. 839 , 769 S.E.2d 580 (2015).
Trial court erred in failing to merge the defendant's convictions for attempted armed robbery and aggravated assault because the aggravated assault charge did not require proof of any fact that was not also required to prove the attempted armed robbery as that offense could have been proved under the indictment in the current case; and the conduct involved in the attempted armed robbery count and aggravated assault count arose out of the same act or transaction as both counts alleged that the defendant pointed the gun at the victim, and the victim indicated that the gun was directed at the victim one time. Wilson v. State, 344 Ga. App. 285 , 810 S.E.2d 303 (2018).
Aggravated assault, armed robbery and felony murder as separate crimes. - When one person was the victim of aggravated assault, and another victim was killed, and both crimes occurred during an armed robbery, separate crimes of aggravated assault, armed robbery, and felony murder were committed. Foster v. State, 230 Ga. 666 , 198 S.E.2d 847 (1973).
Aggravated assault and robbery. - Aggravated assault conviction merged with robbery conviction where victim was placed in fear of receiving bodily injury before the victim's money was taken. Luke v. State, 171 Ga. App. 201 , 318 S.E.2d 833 (1984).
Aggravated assault and aggravated battery. - Facts adduced to support the aggravated assault charge were the same facts used to support the aggravated battery charge as the crimes were set forth in the indictment with the additional element being the victim's loss of use of the victim's eyes. Because the defendant could not be convicted for both crimes, the conviction for the included offense, the assault, was vacated. Mills v. State, 187 Ga. App. 79 , 369 S.E.2d 283 (1988).
When the defendant shot the victim twice when the victim first turned to see the defendant, then struggled with the victim and knocked the victim down, and the defendant stood over the victim and shot the victim in the neck, the trial court did not commit error when the court convicted and sentenced the defendant for both offenses since the prosecution could well have proved any aggravated battery without introducing any evidence of the first two shots. White v. Hardegree, 190 Ga. App. 275 , 378 S.E.2d 877 , cert. denied, 190 Ga. App. 899 , 378 S.E.2d 877 (1989).
Trial court erred in failing to merge defendant's aggravated assault with the aggravated battery conviction inasmuch as the same facts were used to support the indictments on both offenses. Davis v. State, 209 Ga. App. 187 , 433 S.E.2d 366 (1993); Riden v. State, 226 Ga. App. 245 , 486 S.E.2d 198 (1997).
When the evidence does not demonstrate that the aggravated assault and the aggravated battery were based on the "same conduct" within the contemplation of O.C.G.A. § 16-1-7 , the separate convictions for these offenses may stand. Knight v. State, 190 Ga. App. 87 , 378 S.E.2d 373 (1989); Malone v. State, 226 Ga. App. 185 , 486 S.E.2d 57 (1997); Wright v. State, 243 Ga. App. 167 , 532 S.E.2d 724 (2000).
Although the evidence that defendant intentionally stabbed a man in the side with a knife, causing a wound that required 100 stitches and that left a scar, was sufficient to support convictions for both aggravated assault under O.C.G.A. § 16-5-21(a)(2) and aggravated battery under O.C.G.A. § 16-5-24(a) , the defendant could not be convicted of both crimes as that conviction was prohibited by O.C.G.A. § 16-1-7(a)(1) since the aggravated assault was included in the aggravated battery and arose out of the same conduct; thus, the aggravated assault conviction was vacated. Townsend v. State, 256 Ga. App. 837 , 570 S.E.2d 47 (2002).
Defendant's aggravated assault and aggravated battery convictions under O.C.G.A. §§ 16-5-21(a) and 16-5-24(a) did not merge under O.C.G.A. § 16-1-7(a) , although both stemmed from the same act. The aggravated assault charge required proof that the defendant attempted to commit a violent injury with the intent to murder using a deadly weapon, while the aggravated battery charge required proof that the defendant maliciously caused bodily harm to the victim by rendering a member of the victim's body useless; thus, the offenses were distinct with each requiring proof of a fact which the other did not. Robbins v. State, 293 Ga. App. 584 , 667 S.E.2d 684 (2008).
Actions of defendant and the codefendant in beating the victim, in breaking the victim's wrist and shoulder, and in causing burns to the victim's hands, although occurring sequentially, constituted separate offenses, as each was established by proof of different facts. Thus, the evidence did not demonstrate that the aggravated assault and the aggravated battery were based on the same conduct within the contemplation of O.C.G.A. § 16-1-7 . Wilkinson v. State, 298 Ga. App. 190 , 679 S.E.2d 766 (2009).
Trial court did not err in refusing to merge the defendant's convictions for aggravated assault and aggravated battery, O.C.G.A. §§ 16-5-21 and 16-5-24 , because the offenses were established by proving different facts; the defendant was found guilty of aggravated assault because there was evidence that the defendant assaulted the victim with a screwdriver, and the defendant was found guilty of aggravated battery because the victim's left lung was nonfunctional for a period of time due to the stab wound. Works v. State, 301 Ga. App. 108 , 686 S.E.2d 863 (2009), cert. denied, No. S10C0458, 2010 Ga. LEXIS 251 (Ga. 2010).
Defendant waived the issue of whether the defendant's convictions for aggravated assault and aggravated battery in slitting the defendant's girlfriend's throat merged by pleading guilty to both offenses; moreover, the offenses did not merge because the assault charge accused the defendant of seriously injuring the victim and the battery charge accused the defendant of disfiguring her. Regent v. State, 306 Ga. App. 616 , 703 S.E.2d 81 (2010).
Defendant's aggravated battery and aggravated assault convictions merged because the counts of the indictment were based on the same conduct of hitting the victim with a hammer, resulting in serious bodily injury to the victim's hand, and one of the victim's fingers being rendered useless when the victim placed the victim's hands up in an attempt to protect the victim's head; the aggravated assault was a lesser included offense of the aggravated battery because the aggravated assault required proof of a less serious injury than the aggravated battery. Thomas v. State, 310 Ga. App. 404 , 714 S.E.2d 37 (2011).
Aggravated assault and family violence battery. - Aggravated assault under O.C.G.A. § 16-5-21 with fists only and family violence battery under O.C.G.A. § 16-5-23.1(f) with fists and a bottle upon the defendant's then live-in girlfriend were not required to be merged under O.C.G.A. § 16-1-7(a) because there were two separate incidents separated by the girlfriend's visit to a store and because the aggravated assault did not require the use of a bottle. Collins v. State, 277 Ga. App. 381 , 626 S.E.2d 513 (2006).
Aggravated assault and mutiny. - When the facts adduced to support an aggravated assault charge were the same facts used to support a mutiny charge, as the crimes were set forth in the indictment, then the aggravated assault charge had to be considered an offense included within the mutiny charge; because O.C.G.A. § 16-1-7 forbids conviction for both crimes, the conviction for the included offense, aggravated assault, was vacated. Green v. State, 170 Ga. App. 594 , 317 S.E.2d 609 (1984).
Crimes of aggravated assault on an officer and obstruction of the same officer were included in each other and defendant could only be convicted of one; the same conduct that proved the aggravated assault proved the obstruction. Priester v. State, 249 Ga. App. 594 , 549 S.E.2d 429 (2001).
Trial court erred in failing to merge the defendant's convictions for four counts of obstruction of a police officer into the convictions for four counts of aggravated assault on a police officer because each count of the crime of obstruction was established by proof of the same or less than all the facts required to establish each count of the crime of aggravated assault; the state conceded that the trial court erred in failing to merge the convictions for obstruction into the convictions for aggravated assault on a police officer. Dobbs v. State, 302 Ga. App. 628 , 691 S.E.2d 387 (2010).
Aggravated battery and robbery. - Defendant could not be sentenced on conviction for aggravated battery since that crime merged with defendant's conviction for robbery where the aggravated battery conviction was based on the identical acts of violence through which the defendant effected the taking of the victim's purse. Kinney v. State, 234 Ga. App. 5 , 505 S.E.2d 553 (1998).
Trial court did not err in failing to merge the defendant's aggravated battery conviction into the defendant's armed robbery conviction because the taking of the victim's property was not a fact required to establish the aggravated battery offense, and depriving the victim of a member of the victim's body was not a fact required to establish the armed robbery offense; and, while the aggravated battery and armed robbery were based on the same criminal transaction, aggravated battery and armed robbery did not simply prohibit different degrees of injury or risk of injury; rather, the two crimes prohibited entirely different categories of injury - depriving the victim of a member of the victim's body versus depriving the victim of property. Epperson v. State, 340 Ga. App. 25 , 796 S.E.2d 1 (2016).
Aggravated battery conviction not bar to rape and robbery charges. - Since defendant's act constituting aggravated battery was also used to prove the element of force essential to charges of rape and robbery, but there was evidence indicating use of force independent of the battery, O.C.G.A. § 16-1-7 did not bar prosecution on all three offenses. McCulligh v. State, 169 Ga. App. 717 , 314 S.E.2d 724 (1984).
Simple battery and rape. - When the same impermissible touching - hitting and slapping which constituted simple battery - also supplied the element of force necessary for conviction of rape, the battery merged into rape, thereby requiring reversal of appellant's simple battery conviction. Johnson v. State, 195 Ga. App. 723 , 394 S.E.2d 586 (1990).
Simple battery and DUI. - Simple battery charge did not "arise from the same conduct" as a driving under the influence (DUI) charge, so as to come within the prohibition of the multiple prosecution bar, where the battery occurred 40 minutes after defendant's arrest for DUI and at a different location, the officer who made the DUI arrest was not the same person allegedly struck by defendant, and the DUI involved defendant's operation of a motor vehicle, but the battery did not. State v. Littler, 201 Ga. App. 527 , 411 S.E.2d 522 (1991).
Rape and assault with intent to rape. - Offense of rape includes the lesser offense of assault with intent to rape. Padgett v. State, 205 Ga. App. 576 , 423 S.E.2d 411 (1992).
Simple assault did not merge with aggravated assault with intent to rape. - There was no merger of offenses as a result of defendant's conviction of simple assault and aggravated assault with the intent to rape, where there was sufficient evidence of two separate assaults, the simple assault having been a sequential reaction to the victim's resistance to the charged sexual assault. Watson v. State, 178 Ga. App. 778 , 344 S.E.2d 667 (1986).
Simple assault did not merge with battery. - Trial court did not err in failing to merge the defendant's convictions for simple assault and battery because the convictions were based upon different conduct as the first cut to the victim's forehead caused reasonable apprehension of immediate violent injury supporting the simple assault conviction, and the victim's remaining injuries caused by the knife wounds that followed supported a finding of visible bodily harm to support the battery conviction and each crime required proof of a fact that the other did not. Watts v. State, 321 Ga. App. 289 , 739 S.E.2d 129 (2013).
Merger of rape and incest. - Contrary to the defendant's argument, the trial court did not err in failing to merge a conviction for incest, O.C.G.A. § 16-6-22 , in one count into a conviction for rape, O.C.G.A. § 16-6-1 , in another count, despite the fact that both counts were based on the same act of sexual intercourse because the defendant's conduct established the commission of more than one crime; to establish the crime of rape, the state proved that the defendant had carnal knowledge of the victim, forcibly and against the victim's will, but to establish incest, it was also necessary to prove that the victim had a certain relation to the defendant. Thus, incest was not established by proof of the same or less than all the facts required to establish proof of rape. Dew v. State, 292 Ga. App. 631 , 665 S.E.2d 715 (2008).
Defendant's rape and incest convictions did not merge because each crime required proof of an additional fact that the other did not because, to establish the crime of rape, the state had to prove that the defendant lacked consent, which was not an element of incest; and, to establish the crime of incest, the state had to prove that the victim was of a certain relation to the defendant, which was not an element of rape; thus, the trial court did not err in sentencing the defendant for both rape and incest. Tinson v. State, 337 Ga. App. 83 , 785 S.E.2d 914 (2016).
Molestation. - State did not err when it charged defendant with four counts of molestation arising out of the same transaction where the indictment alleged four separate immoral or indecent acts committed by defendant with the intent to arouse or satisfy defendant's own sexual desires; while O.C.G.A. § 16-1-7(a) prohibited multiple convictions for the same conduct, it also provided that when the same conduct of an accused could establish the commission of more than one crime, the accused could be prosecuted for each crime. Lunsford v. State, 260 Ga. App. 818 , 581 S.E.2d 638 (2003).
False imprisonment as lesser included offense of kidnapping. - After the defendant had been convicted of kidnapping with bodily injury, subsequent charges of false imprisonment, arising out of the same set of facts, were barred by former jeopardy under the "required evidence test" because false imprisonment was a lesser included offense of kidnapping with bodily injury. Sallie v. State, 216 Ga. App. 502 , 455 S.E.2d 315 (1995).
Rape and kidnapping with bodily injury as included offenses. - When rape was a separate crime arising out of the same transaction under former Code 1933, § 26-506(a), evidence of such rape could not be used as a basis for separate convictions of both rape and kidnapping with bodily injury to the victim. Allen v. State, 233 Ga. 200 , 210 S.E.2d 680 (1974), overruled on other grounds by Drinkard v. Walker, 281 Ga. 211 , 636 S.E.2d 530 (2006).
In a criminal trial, the offenses of kidnapping with bodily harm and rape were not merged where, under the facts, neither offense was included in the other as a matter of fact nor as a matter of law. Turner v. State, 194 Ga. App. 878 , 392 S.E.2d 256 (1990).
Rape and kidnapping with bodily injury. - Double jeopardy attached where the state sought to prosecute defendant for rape and sodomy in one county based upon the same facts and upon the same actual evidence which was used to convict defendant for kidnapping with bodily injury in another county. State v. Sallie, 206 Ga. App. 732 , 427 S.E.2d 11 (1992).
Because the proof establishing the crime of rape did not use up the proof establishing the crime of kidnapping with bodily injury, the crimes did not merge; accordingly, the trial court did not err by refusing to merge two of defendant's kidnapping with bodily injury convictions with two of defendant's rape convictions. Collins v. State, 267 Ga. App. 784 , 600 S.E.2d 802 (2004).
Rape and kidnapping. - Trial court did not err in refusing to merge the kidnapping charge into rape charge, where the evidence authorized the jury to find that defendant, armed with a pistol, forced his way into the victim's car and drove off with the victim to a secluded area where he raped and beat her and moved to another location and again raped and abused the victim, and then drove away with her car and the property in it, leaving the naked victim behind. Clark v. State, 166 Ga. App. 366 , 304 S.E.2d 494 (1983).
When the victim was kidnapped at knifepoint and then raped at another location, the two offenses were separate and did not merge; and since there was also evidence that, subsequent to completing the offense of rape, defendant again threatened the victim with the knife, these two offenses were separate and did not merge as a matter of fact. Edmonson v. State, 212 Ga. App. 449 , 442 S.E.2d 300 (1994).
Kidnapping and aggravated sodomy. - Kidnapping and aggravated sodomy are not included offenses as a matter of law and, even though they may be included as a matter of fact, where the same evidence was not used to prove both crimes, the trial court did not err by refusing to find a merger. Hardy v. State, 210 Ga. App. 811 , 437 S.E.2d 790 (1993).
Kidnapping with bodily injury and malice murder. - Kidnapping with bodily injury is not included in malice murder as a matter of law. Tucker v. State, 244 Ga. 721 , 261 S.E.2d 635 (1979), cert. denied, 445 U.S. 972, 100 S. Ct. 1666 , 64 L. Ed. 2 d 250 (1980).
Malice murder and kidnapping are not same offense for double jeopardy purposes even though they involve same transaction and considerably overlap each other factually. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575 , 70 L. Ed. 2 d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733 , 77 L. Ed. 2 d 235 (1983).
Kidnapping with bodily injury and murder. - Murder and kidnapping with bodily injury are not included crimes as a matter of law. Stephens v. Hopper, 241 Ga. 596 , 247 S.E.2d 92 , cert. denied, 439 U.S. 991, 99 S. Ct. 593 , 58 L. Ed. 2 d 667 (1978).
Murder and kidnapping with bodily injury are not included as a matter of fact under O.C.G.A. § 16-1-6(1) since these crimes have distinct elements. Stephens v. Hopper, 241 Ga. 596 , 247 S.E.2d 92 , cert. denied, 439 U.S. 991, 99 S. Ct. 593 , 58 L. Ed. 2 d 667 (1978).
Merger of battery and kidnapping with bodily injury. - In a prosecution for kidnapping with bodily injury and battery, use of the same evidence to prove that defendant perpetrated battery as proof of the offense of kidnapping with bodily injury required reversal of defendant's conviction and sentence for battery. Holmes v. State, 229 Ga. App. 671 , 494 S.E.2d 560 (1998).
Merger of aggravated assault and kidnapping with bodily injury. - When aggravated assault conviction is included in kidnapping with bodily injury count, the former conviction and sentence will be vacated because there exists a merger of offenses as a matter of fact. Thornton v. State, 144 Ga. App. 595 , 241 S.E.2d 478 (1978).
When one offense is established by the same but less than all of the facts required to establish another offense, the first merges into the second as a matter of fact; aggravated assault is a lesser included offense of, and merges with, the crime of kidnapping with bodily injury, and a trial court erred by failing to merge defendant's aggravated assault conviction into defendant's kidnapping with bodily injury conviction. Bailey v. State, 269 Ga. App. 262 , 603 S.E.2d 786 (2004).
Aggravated stalking and domestic violence orders. - State may not prosecute a defendant for aggravated stalking based upon the same set of facts previously used to prosecute the same defendant for violation of a domestic violence order. Kinney v. State, 223 Ga. App. 418 , 477 S.E.2d 843 (1996).
Hijacking and armed robbery. - O.C.G.A. § 16-5-44.1(d) supersedes the double jeopardy provision contained in O.C.G.A. § 16-1-7(a) . Thus, the trial court did not err in refusing to merge the defendant's armed robbery and hijacking convictions. Boykin v. State, 264 Ga. App. 836 , 592 S.E.2d 426 (2003).
Carjacking and armed robbery. - Defendant's prosecution for a car hijacking was not barred by O.C.G.A. § 16-1-7(b) as the car hijacking and the armed robbery did not arise from the same conduct because the car hijacking incident and the armed robbery incident occurred three days apart, took place at different locations, and involved different victims. Syas v. State, 273 Ga. App. 161 , 614 S.E.2d 803 (2005).
Separate convictions for armed robbery and hijacking a motor vehicle did not violate the state and federal prohibitions against double jeopardy, as the latter constituted a separate offense warranting a separate sanction under Georgia law, thus warranting an additional punishment. Dumas v. State, 283 Ga. App. 279 , 641 S.E.2d 271 (2007).
Defendant's argument that separate convictions for armed robbery and hijacking a motor vehicle violated prohibitions against double jeopardy was properly rejected because O.C.G.A. § 16-5-44.1(d) expressly provided that hijacking a motor vehicle was a separate offense, superseding the statutory double jeopardy provisions of O.C.G.A. § 16-1-7 . Souder v. State, 301 Ga. App. 348 , 687 S.E.2d 594 (2009), cert. denied, No. S10C0536, 2010 Ga. LEXIS 343 (Ga. 2010).
Sequential offenses not inclusive. - Kidnapping with bodily injury and aggravated battery occurred sequentially, and the former was completed when the latter was perpetrated. Robinson v. State, 210 Ga. App. 175 , 435 S.E.2d 466 (1993).
Aggravated stalking. - Prosecution of the defendant in Fulton County for aggravated stalking was not barred by defendant's previous conviction in Cobb County for aggravated stalking of the same victim, notwithstanding that the Cobb County conviction was introduced into evidence in the Fulton County prosecution in order to show a pattern of harassing and intimidating behavior. Daker v. State, 248 Ga. App. 657 , 548 S.E.2d 354 (2001), cert. denied, 535 U.S. 1085, 122 S. Ct. 1977 , 152 L. Ed. 2 d 1035 (2002).
Defendant's convictions for two counts of aggravated stalking based on the defendant's following and contacting the victim did not merge for sentencing purposes because there was sufficient evidence from which the jury could find that the defendant, in violation of a protective order, both followed the victim to a hotel and then contacted the victim; the act of following was complete when the defendant arrived at the premises of the hotel because at that time the defendant violated the protective order by coming within 500 feet of a place where the victim was residing. Louisyr v. State, 307 Ga. App. 724 , 706 S.E.2d 114 (2011).
Aggravated assault and kidnapping. - Trial court did not err in denying defendant's motion to correct an illegal sentence, pursuant to O.C.G.A. §§ 16-1-6 and 16-1-7 , as defendant's convictions for aggravated assault and kidnapping, in violation of O.C.G.A. §§ 16-5-21 and 16-5-40(a) , respectively, did not merge as a matter of law, as only aggravated assault and kidnapping with bodily injury merged as a matter of law; further, the crimes did not merge as a matter of fact, as they were based on separate and distinct facts, and due to the timing of defendant's actions during the incident, the separate convictions were proper. Walker v. State, 275 Ga. App. 862 , 622 S.E.2d 64 (2005).
Trial court did not err in declining to merge kidnapping counts with aggravated assault counts because the aggravated assault involved different conduct from the kidnapping and was completed prior thereto and, thus, the same conduct did not establish the commission of both offenses; even if the kidnapping counts involved the same conduct as the aggravated assault, neither was included in the other after application of the "required evidence" test. Jones v. State, 290 Ga. 670 , 725 S.E.2d 236 (2012).
Simple assault and kidnapping. - Trial court did not err in declining to merge a defendant's convictions for assault and kidnapping with bodily injury because assault under O.C.G.A. § 16-5-20(a)(2) was established by evidence that the victim was placed in reasonable apprehension of immediately receiving a violent injury when defendant told the victim the defendant had a gun, and kidnapping with bodily injury in violation of O.C.G.A. § 16-5-40(a) , on the other hand, was established by evidence that defendant abducted and held the victim against the victim's will in the victim's car, driving from one location to another, during which time the victim received bodily injuries. Walker v. State, 306 Ga. App. 16 , 701 S.E.2d 523 (2010).
Aggravated assault conviction does not merge into robbery by intimidation conviction. - As the offense of aggravated assault, O.C.G.A. § 16-5-21(a)(1), required proof of at least one additional fact which the offense of robbery by intimidation, O.C.G.A. § 16-8-41(a) , did not, under the "required evidence" test of O.C.G.A. § 16-1-7 , a defendant's aggravated assault conviction did not merge into the defendant's robbery by intimidation conviction. Elamin v. State, 293 Ga. App. 591 , 667 S.E.2d 439 (2008).
Prosecution for kidnapping and escape. See Bailey v. State, 146 Ga. App. 774 , 247 S.E.2d 588 (1978).
Prosecution for felony murder and kidnapping. - Once the state tried and convicted petitioner for kidnapping, it would be barred from prosecuting petitioner for felony murder only if underlying felony upon which that prosecution was based were that same kidnapping. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575 , 70 L. Ed. 2 d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733 , 77 L. Ed. 2 d 235 (1983).
Incest and child molestation. - Trial court correctly determined that child molestation did not merge with separate act of incestuous sexual intercourse. King v. State, 209 Ga. App. 529 , 433 S.E.2d 722 (1993).
Aggravated child molestation and rape. - Entering separate convictions and sentences for aggravated child molestation and rape was error where the evidence established that the injuries sustained by the victim as a result of the rape were the same injuries as those alleged as the basis for the charge of aggravated child molestation. Caldwell v. State, 263 Ga. 560 , 436 S.E.2d 488 (1993).
Because defendant's aggravated child molestation and rape convictions were based on separate and distinct sexual acts and different conduct, those convictions could not have been included offenses under O.C.G.A. §§ 16-1-6 and 16-1-7 ; accordingly, defendant's pro se motion to vacate the sentence as void was properly denied. Reed v. State, 297 Ga. App. 850 , 678 S.E.2d 560 (2009).
Child molestation as included offense of rape. - Accused may be prosecuted for both rape and child molestation based upon same conduct, but he may not be convicted of both. Lamar v. State, 243 Ga. 401 , 254 S.E.2d 353 , appeal dismissed, 444 U.S. 803, 100 S. Ct. 23 , 62 L. Ed. 2 d 16 (1979).
Child molestation and statutory rape. - Trial court erred when it convicted defendant of child molestation because facts which were used to prove child molestation were the same facts which proved statutory rape, and the court should have merged the child molestation conviction with the statutory rape conviction. Dorsey v. State, 265 Ga. App. 404 , 593 S.E.2d 945 (2004).
Child molestation and aggravated sodomy. - Because the defendant relentlessly subjected his minor stepdaughter to countless episodes of molestation by performing acts of sodomy, the crimes of aggravated sodomy and child molestation were not merged since there were multiple, separate acts as a basis for each charge. McCollum v. State, 177 Ga. App. 40 , 338 S.E.2d 460 (1985).
Child molestation under O.C.G.A. § 16-6-4(a) was not a lesser included offense of aggravated sodomy under O.C.G.A. § 16-6-2 , where the defendant was charged with two different specific sexual acts at different times on the same day. Hill v. State, 183 Ga. App. 654 , 360 S.E.2d 4 (1987).
Child molestation and aggravated sodomy are legally distinct, and when the indictment for each offense is based on separate and distinct acts, the offenses do not merge. Howard v. State, 200 Ga. App. 188 , 407 S.E.2d 769 , cert. denied, 1991 Ga. LEXIS 542 (Ga. 1991), subsequent appeal, 210 Ga. App. 716 , 437 S.E.2d 483 (1993), habeas corpus denied, 266 Ga. 771 , 470 S.E.2d 678 (1996), recons. denied; overruled on other grounds by State v. Burns, 829 S.E.2d 367 , 2019 Ga. LEXIS 400 (Ga. 2019), cert. denied, 200 Ga. App. 896 , 407 S.E.2d 769 (1991), cert. denied, 1991 Ga. LEXIS 542 (Ga. 1991), subsequent appeal, 210 Ga. App. 716 , 437 S.E.2d 483 (1993), habeas corpus denied, 266 Ga. 771 , 470 S.E.2d 678 (1996), recons. denied; overruled on other grounds by State v. Burns, 829 S.E.2d 367 , 2019 Ga. LEXIS 400 (Ga. 2019).
Aggravated child molestation charge and the aggravated sodomy charge in each of the two indictments at issue were both based upon the same act of sodomy since only two of the three incidents involved an act of sodomy and, in those two incidents, each involved only one act of sodomy. Dobbins v. State, 262 Ga. 161 , 415 S.E.2d 168 (1992).
Convictions for separate acts of aggravated sodomy and aggravated child molestation did not merge for sentencing purposes. Braddy v. State, 205 Ga. App. 424 , 422 S.E.2d 260 (1992).
Child molestation and aggravated sodomy should have been merged for conviction and sentencing where a single act of oral sodomy, used to prove aggravated sodomy, also was the evidentiary basis for the charge of aggravated child molestation. Wyatt v. State, 222 Ga. App. 604 , 475 S.E.2d 651 (1996).
Attempted aggravated child molestation and attempted aggravated sodomy. - In the defendant's trial for charges for going to a meeting place with the purpose of having sex with fictitious brothers, ages 12 and 5, the trial court erred in merging attempted aggravated child molestation into attempted aggravated sodomy convictions because the offenses did not merge in either direction under O.C.G.A. §§ 16-1-6 and 16-1-7 . Each required proof of an element the other did not, and the two crimes were equally serious. Metcalf v. State, 349 Ga. App. 408 , 825 S.E.2d 909 (2019).
Child molestation and aggravated sexual battery. - Defendant's child molestation conviction under O.C.G.A. § 16-6-4(a) did not merge under O.C.G.A. §§ 16-1-6(1) and 16-1-7(a) into the defendant's aggravated sexual battery conviction under O.C.G.A. § 16-6-22.2 as the child molestation charge required proof that the defendant committed an immoral and indecent act with the intent to arouse and satisfy the defendant's sexual desires, whereas the aggravated sexual battery charge did not, and the aggravated sexual battery charge required proof of penetration, whereas the child molestation charge did not. Gaston v. State, 317 Ga. App. 645 , 731 S.E.2d 79 (2012).
Aggravated child molestation conviction merged into the aggravated sodomy conviction as a matter of fact because defendant's single act of anal sodomy was necessary to prove the aggravated sodomy count of the indictment, so that there was no remaining evidence upon which to base defendant's conviction for an additional count of aggravated child molestation. Heidler v. State, 273 Ga. 54 , 537 S.E.2d 44 (2000), cert denied, 532 U.S. 1029, 121 S. Ct. 1979 , 149 L. Ed. 2 d 771 (2001).
Aggravated child molestation and false imprisonment. - Trial court was not required to merge the defendant's false imprisonment and aggravated child molestation convictions since the false imprisonment and aggravated child molestation convictions could be sustained based on different conduct, therefore, separate convictions were appropriate. Specifically, the indictment averred that the defendant committed false imprisonment by unlawfully detaining the victim in violation of the victim's personal liberty and committed aggravated child molestation by forcing the victim to perform oral sex on him and there was evidence that on one occasion, the defendant locked the victim in the home and would not let the victim leave and, as to the aggravated child molestation conviction, there was evidence that the defendant forced the victim to perform oral sex on the defendant on repeated occasions spanning several years. Metts v. State, 297 Ga. App. 330 , 677 S.E.2d 377 (2009).
Child molestation and cruelty to children. - Trial court did not err in failing to merge the defendant's convictions for child molestation, O.C.G.A. § 16-6-4(a) , and cruelty to children, O.C.G.A. § 16-5-70 , because each crime required proof of at least one additional element that the other did not, and thus, even if the same conduct established the commission of both child molestation and cruelty to children, the two crimes did not merge; cruelty to children, but not child molestation, requires proof that the victim was a child under the age of 18 who was caused cruel or excessive physical or mental pain, O.C.G.A. § 16-5-70(b) , and in contrast, child molestation, but not cruelty to children, requires proof that the victim was under 16 years of age and that the defendant performed an immoral or indecent act upon or in the presence of the child for the purpose of arousing or satisfying the defendant's or the child's sexual desires under O.C.G.A. § 16-6-4(a) . Chandler v. State, 309 Ga. App. 611 , 710 S.E.2d 826 (2011).
Multiple conviction for cruelty to children. - Trial court erred in failing to merge Counts 3 and 4, which alleged two counts of cruelty to children in the second degree as to the first child, for sentencing purposes as each of the counts asserted that the defendant's different acts caused a different type of harm, and each required different evidence to prove harm, because Count 3 charged the defendant with causing excessive mental pain by confining the child in a room for months without sufficient mental stimulation and social interaction; and Count 4 charged the defendant with causing cruel and excessive physical pain by failing to provide the child with physical exercise. Wimbush v. State, 345 Ga. App. 54 , 812 S.E.2d 489 (2018).
Cruelty to children and use of fighting words. - Evidence authorized a jury charge on the offense of "fighting words," where defendant schoolteacher was indicted for battery and cruelty to children, and the proof tracked the indictment which set forth words defendant said to a student which would fall within the parameter of those forbidden by the "fighting words" statute. Shuler v. State, 195 Ga. App. 849 , 395 S.E.2d 26 (1990).
No merger of aggravated battery and cruelty to children. - Aggravated battery and cruelty to children each requires proof of at least one additional element which the other does not, and the two crimes are not so closely related that multiple convictions are prohibited under O.C.G.A. §§ 16-1-6 and 16-1-7 ; accordingly, even if the same conduct establishes the commission of both aggravated battery and cruelty to children, the two crimes do not merge, and thus a defendant was properly convicted of both crimes (overruling Jones v. State, 276 Ga. App. 762 ( 624 S.E.2d 291 ) (2005); Etchinson v. State, 245 Ga. App. 449 ( 538 S.E.2d 87 ) (2000); and Harmon v. State, 208 Ga. App. 271 ( 430 S.E.2d 399 ) (1993)). Waits v. State, 282 Ga. 1 , 644 S.E.2d 127 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Merger of child molestation crimes. - After the defendant was convicted of four counts of child molestation, the court of appeals erred in evaluating the defendant's claim that three of the child molestation counts should have been merged together using the "required evidence" test because the defendant was convicted of multiple counts of the same crime, and the court of appeals should have used the applicable unit-of-prosecution analysis to determine whether the three child molestation counts merged. Scott v. State, 306 Ga. 507 , 832 S.E.2d 426 (2019).
Offenses of false imprisonment and aggravated assault did not merge with the offenses of rape and aggravated sodomy where the rape victim was cut with a knife during a break in the numerous sexual assaults committed upon the victim, and where the victim was forced to lie on the floor motionless while the defendant left the room for a period of time. Gilbert v. State, 176 Ga. App. 561 , 336 S.E.2d 828 (1985).
Acquittal on aggravated sodomy charge did not bar conviction for sexual assault under another count of the indictment. The dates alleged for the two charges were different, and the victim recounted two separate incidents when defendant performed oral sex on the victim. In short, the charges did not involve the same conduct, and no substantive or procedural aspects of double jeopardy were violated. Brown v. State, 188 Ga. App. 510 , 373 S.E.2d 293 (1988).
Voluntary manslaughter and burglary are not included offenses within the meaning of former Code 1933, § 26-506(a)(1). Oglesby v. State, 243 Ga. 690 , 256 S.E.2d 371 (1979).
Burglary conviction not bar to rape conviction. - When the defendant was convicted of rape after pleading guilty to burglary, a motion for autrefois convict was denied because the two separate crimes arose from the same series of acts and defendant's guilty plea to burglary did not operate as a conviction of the rape charge so as to bar the prosecution thereof. Jones v. State, 169 Ga. App. 4 , 311 S.E.2d 485 (1983).
Defendant's burglary conviction did not merge with rape and sodomy charges because the burglary was completed when defendant entered the apartment without authority with intent to commit the other crimes charged. Hardegree v. State, 230 Ga. App. 111 , 495 S.E.2d 347 (1998).
Burglary and felony murder with burglary as predicate felony. - While the evidence was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of felony murder, with burglary as the predicate felony, armed robbery, burglary, possession of a firearm during the commission of a crime, and misdemeanor possession of marijuana, the defendant's conviction for burglary could not stand because the burglary conviction served as the predicate felony for the felony murder conviction; thus, it was error to sentence the defendant for both felony murder and burglary. Young v. State, 291 Ga. 627 , 732 S.E.2d 269 (2012).
Murder and concealing a death are separate crimes, requiring separate acts and criminal intent. Durham v. State, 243 Ga. 408 , 254 S.E.2d 359 (1979).
Killing two persons with single stroke. - When one is charged with homicide of different people in different counts and is found guilty on each count, that person may be sentenced separately on each count to run consecutively; killing different persons constitutes separate crimes even though done at the same time with one stroke of the same death-dealing instrument. Rogers v. State, 163 Ga. App. 641 , 295 S.E.2d 140 (1982), overruled on other grounds by Bailey v. State, 2016 Ga. App. LEXIS 433 (Ga. Ct. App. 2016).
Felony murder and malice murder. - In a case involving two homicides, when the evidence supported convictions for malice murder, felony murder convictions merged into the malice murder convictions by operation of law and, thus, judgments of conviction and sentences on the felony murder counts would be vacated. Barker v. State, 263 Ga. 746 , 438 S.E.2d 625 (1994).
Malice murder and felony murder. - Trial court erred by sentencing defendant to concurrent sentences of life imprisonment for malice murder and felony murder because there was only a single victim; thus, the defendant could not be convicted and sentenced for both murder counts. Gamble v. State, 291 Ga. 581 , 731 S.E.2d 758 (2012).
Escape merged with felony murder. - Since the underlying felony charged to the jury for the felony murder charge was escape with a dangerous weapon, defendant's separate conviction for this escape was set aside as having merged with the felony murder. Thomas v. State, 256 Ga. 176 , 345 S.E.2d 350 (1986).
Two aggravated assaults, each against different individuals, are separate crimes. - When two aggravated assault indictments stemming from a single course of conduct differ only in that a different victim was named in each, the difference was crucial as two separate and distinct crimes were thereby charged and former Code 1933, § 26-506 did not apply. Heard v. State, 126 Ga. App. 62 , 189 S.E.2d 895 (1972).
No separation of time in assault and battery. - In defendant's convictions on one count of simple assault and two counts of battery resulting from a fight with a romantic friend, trial court erred by not merging two counts of battery for which defendant was sentenced to two consecutive 12-month terms as the state failed to present evidence that two separate batteries were completed; the state presented no evidence that defendant delivered the blows to the friend in two completed exchanges separated by a meaningful interval of time or with distinct intentions. Thompson v. State, 291 Ga. App. 355 , 662 S.E.2d 135 (2008).
Robbing two victims constitutes two offenses thus no merger. - Two armed robbery convictions under O.C.G.A. § 16-8-41(a) did not merge pursuant to O.C.G.A. § 16-1-7(a)(1) as: (1) a store's money was taken from the immediate presence of two employees, who were both responsible for and had possession of the store's receipts, regardless of which employee may actually have been counting the money when the robbery occurred; (2) each employee who was robbed was a victim, regardless of who owned the money; and (3) as two victims were robbed, defendant could be charged with the robbery of each victim. Green v. State, 265 Ga. App. 126 , 592 S.E.2d 901 (2004).
Crime of terroristic threats not included within crime of aggravated assault with intent to murder. Echols v. State, 134 Ga. App. 216 , 213 S.E.2d 907 (1975).
Carrying concealed weapon not included in aggravated assault with deadly weapon. - Offense of carrying a concealed weapon is not included in offense of aggravated assault with deadly weapon. Howard v. State, 128 Ga. App. 807 , 198 S.E.2d 334 (1973).
Carrying weapon without license is not included in aggravated assault with deadly weapon. Thomas v. State, 128 Ga. App. 538 , 197 S.E.2d 452 (1973).
Multiple felony convictions not related to separate traffic violations. - Felony charges against a defendant, which included armed robbery, hijacking a motor vehicle, kidnapping, and possessing a firearm during the commission of a crime, did not require proof of the same elements involved in the traffic violations for which the defendant was convicted of in a different court; therefore, the felony convictions imposed against the defendant did not violate the defendant's right against double jeopardy. Jaheni v. State, 285 Ga. App. 266 , 645 S.E.2d 735 (2007).
3. Crimes Against Property
Armed robbery and motor vehicle theft as included offenses. - One who takes a motor vehicle belonging to another from that person by use of an offensive weapon would be guilty of both armed robbery and motor vehicle theft but could be punished for only one crime. Holt v. State, 239 Ga. 606 , 238 S.E.2d 399 (1977).
Possession of firearms as lesser included offense of armed robbery. - Where only one firearm is involved in commission of armed robbery, its possession becomes a lesser included offense of armed robbery, and accused may not be convicted of both offenses. Jackson v. State, 143 Ga. App. 406 , 238 S.E.2d 752 (1977).
Possession of a firearm during the commission of a felony did not merge with an attempted armed robbery conviction because the crime of possession of a firearm is considered to be a separate offense under O.C.G.A. § 16-11-106(b) and (e). McKinney v. State, 274 Ga. App. 32 , 619 S.E.2d 299 (2005).
Possession of a firearm by a convicted felon is not "included" in crime of armed robbery even though both offenses arose during one transaction. Coleman v. State, 163 Ga. App. 173 , 293 S.E.2d 395 (1982).
When a convicted felon is in possession of a sawed-off shotgun, two separate and distinct crimes are being committed, because a prohibited person is in possession of a prohibited weapon. One crime is not "included" in the other and they do not merge. Bivins v. State, 166 Ga. App. 580 , 305 S.E.2d 29 (1983).
Theft by deception and theft by taking. - Defendant's rights against double jeopardy are not infringed upon by prosecutions and subsequent convictions for both theft by deception and theft by taking. Stone v. State, 166 Ga. App. 245 , 304 S.E.2d 94 (1983).
Forgery and false writing. - When defendant was convicted of first-degree forgery under O.C.G.A. § 16-9-1 and false writing under O.C.G.A. § 16-10-20 for obtaining expungement order by presenting a Georgia Crimes Information Center certificate that had been altered to state that defendant had no criminal record, counts were not included in each other under O.C.G.A. §§ 16-1-6 and 16-1-7 ; false writing charge did not require proof that the writing purported to be made by authority of one who in fact gave no such authority, and forgery charge did not require proof that the writing was made or used in a matter within jurisdiction of the district attorney's office. Jones v. State, 290 Ga. App. 490 , 659 S.E.2d 875 (2008).
Entering automobile with intent to commit theft and theft. - When entering automobile with intent to commit theft was based on the same entry into the automobile which resulted in the theft of a pocketbook, and the evidence introduced to establish the latter also established the former, the former was included in the latter as a matter of fact and defendant could not be convicted of both offenses. Phillips v. State, 162 Ga. App. 199 , 290 S.E.2d 142 (1982).
Theft of automobile may constitute armed robbery. - While theft of automobile may be committed without committing armed robbery, theft of automobile may constitute armed robbery. Roberts v. State, 228 Ga. 298 , 185 S.E.2d 385 (1971).
Offenses of robbery and armed robbery did not merge as a matter of law, when separate incidents (simple taking of a pistol and then taking the other items at gunpoint) involved different actions, different specific objectives or intents, and different victims. Millines v. State, 188 Ga. App. 655 , 373 S.E.2d 838 (1988).
Armed robbery and motor vehicle theft do not necessarily arise from same conduct, and independent prosecutions for each offense will not necessarily implicate the law's prohibition against placing defendant in double jeopardy or subjecting defendant to "successive" or "multiple" prosecutions. Smith v. State, 173 Ga. App. 728 , 327 S.E.2d 839 (1985).
Kidnapping as incidental to, rather than included in, robbery. - When facts supporting robbery charge included taking property in presence of boys, and defendants' additional conduct of forcing the boys into various rooms and the attic and tying them were incidental to, but not part of, the robbery, that conduct constituted a separate crime, kidnapping, which did not merge with the robbery as a matter of fact. Chambley v. State, 163 Ga. App. 502 , 295 S.E.2d 166 (1982).
Burglary and robbery not lesser included offenses of each other as matter of law. - Statutory definition of burglary and robbery makes it clear that the legislature intended to prohibit two designated kinds of general conduct, and that the two crimes, which were codified in separate chapters, are not established by same proof of all facts; thus, neither crime is a lesser included offense of the other as a matter of law or fact. Moore v. State, 140 Ga. App. 824 , 232 S.E.2d 264 (1976), cert. denied, 462 U.S. 1124, 103 S. Ct. 3097 , 77 L. Ed. 2 d 1356 (1983).
Neither burglary nor robbery is a lesser, or included, offense of the other as a matter of law or fact, for the facts must differ to convict for each offense. Luke v. State, 171 Ga. App. 201 , 318 S.E.2d 833 (1984).
No double jeopardy violation occurred when defendant was convicted of and sentenced for both burglary and robbery. Luke v. State, 171 Ga. App. 201 , 318 S.E.2d 833 (1984).
Burglary, kidnapping, terroristic threats, and possession of a firearm did not merge with attempted armed robbery. - Convictions for burglary, kidnapping, terroristic threats, and possession of a firearm during the commission of a felony did not merge with attempted armed robbery conviction because the attempted armed robbery was complete before the crimes were committed inside the residence; the defendant discussed with the co-worker the idea to dress up as a heating and air technician to perform a robbery, traveled to the residence armed with handguns and a hollow clipboard used to conceal the handgun, and pointed the handgun at a victim before entering the house. McKinney v. State, 274 Ga. App. 32 , 619 S.E.2d 299 (2005).
Burglary and murder as included offenses. - Charges of burglary based on defendant's intent to commit aggravated assault on dwelling's occupant, and murder for death of occupant during burglary, were neither legally incompatible nor lesser included offenses of each other. Williams v. State, 250 Ga. 553 , 300 S.E.2d 301 (1983), overruled on other grounds by Venturino v. State, 830 S.E.2d 110 , 2019 Ga. LEXIS 435 (Ga. 2019).
Theft of numerous articles in one transaction. - If in single transaction more articles than one belonging to same owner are stolen, indictment may charge larceny of the whole in one count. It is but one larceny. Breland v. State, 135 Ga. App. 478 , 218 S.E.2d 153 (1975).
In prosecution for theft, the evidence showed that the tractor and plow were stolen at the same time, from the same place and from the same victim; thus, former Code 1933, § 26-506(a)(1) prohibited multiple conviction, since the theft of the plow was included within the larceny of the tractor. Brogdon v. State, 138 Ga. App. 900 , 228 S.E.2d 5 (1976).
After the defendant was convicted of both burglary and theft by taking, the conviction and sentence for theft by taking was set aside because theft by taking is a lesser included offense to burglary, and an accused may not be convicted of more than one crime if one crime is included in the other. McClinic v. State, 172 Ga. App. 54 , 321 S.E.2d 796 (1984).
Crimes against property. - Defendant was properly convicted of both burglary and financial transaction card theft after gaining entry into the dwelling as each offense had distinct elements. McConnell v. State, 263 Ga. App. 686 , 589 S.E.2d 271 (2003).
Criminal trespass as lesser included offense of burglary. - Defendant could properly be sentenced to serve consecutive terms on defendant's convictions of criminal damage to property in the second degree and criminal trespass, where the latter crime had been charged as the lesser offense of burglary. Williams v. State, 180 Ga. App. 854 , 350 S.E.2d 837 (1986).
State may convict and punish accused for burglary and unlawful possession of firearm by a previously convicted felon, when the firearm was taken in the burglary. The offenses charged were separate and distinct and there was no merger; evidence used to establish the burglary was not again used to establish the later crime of possession of a weapon by a convicted felon. Bogan v. State, 177 Ga. App. 614 , 340 S.E.2d 256 (1986).
Criminal trespass and criminal damage to property. - When the defendant was convicted of criminal damage to property in second degree (a felony) and criminal trespass (a misdemeanor) and when the offenses were committed at different apartments under different tenancies, such convictions did not fall within the purview of former Code 1933, § 26-506(a). Hiatt v. State, 133 Ga. App. 111 , 210 S.E.2d 22 (1974).
Residential mortgage fraud and theft by deception. - Trial court erred in quashing an indictment for counts of residential mortgage fraud, in violation of O.C.G.A. § 16-8-102 , and counts of felony theft by deception, in violation of O.C.G.A. § 16-8-3 , because the indictment was not duplicitous under O.C.G.A. § 16-1-7(a)(2). State v. Corhen, 306 Ga. App. 495 , 700 S.E.2d 912 (2010).
Three vehicle collisions arising out of erratic driving arose from the same conduct. - Pursuant to O.C.G.A. § 16-1-7 , a defendant could not be prosecuted for DUI and other traffic citations by a city after the defendant had already pled guilty to charges issued by the state patrol arising out of the same course of conduct. Although the defendant struck three different cars, there was no break in the action of the defendant's erratic driving. Dean v. State, 309 Ga. App. 459 , 711 S.E.2d 42 (2011).
4. Application to Other Crimes
Possession of cocaine included in trafficking offense. - Offenses of possession of cocaine and possession of cocaine with intent to distribute were lesser included offenses, as a matter of fact, of the trafficking offense since proof of the two possession offenses was established by "the same or less than all the facts" required to establish the distribution offense; thus, it was error to convict defendant of all three offenses. Hancock v. State, 210 Ga. App. 528 , 437 S.E.2d 610 (1993).
Selling cocaine and selling cocaine within 1000 feet of public housing project. - Convictions for selling cocaine (O.C.G.A. § 16-13-30 ) and selling cocaine within 1000 feet of a public housing project (O.C.G.A. § 16-13-32.5 ) did not merge because the latter statute contains a specific non-merger provision and the intent thereof is simply to increase the punishment for violating both statutes. Harper v. State, 213 Ga. App. 611 , 445 S.E.2d 300 (1994).
Drug possession. - Trial court did not err when the court granted the defendant's plea in bar as to the second accusation for possession of Xanax because the state had charged the defendant with the identical crime of possession of an unspecified amount of Xanax on a prior date in two accusations, the second of which was brought after the defendant had pled guilty to the first. State v. Pruiett, 324 Ga. App. 789 , 751 S.E.2d 579 (2013).
Trial court erred by granting the defendant's plea in bar as to the second accusation's charges for possession of methamphetamine, clonazepam, and marijuana because the defendant could not have been convicted of possession of those drugs in a former prosecution, which involved only Xanax. State v. Pruiett, 324 Ga. App. 789 , 751 S.E.2d 579 (2013).
Illegal possession of drugs as lesser included offense of illegal sale. - Illegal sale and distribution of LSD and possession of LSD are included offenses. Wells v. State, 126 Ga. App. 130 , 190 S.E.2d 106 (1972).
When the indictment shows offenses allegedly took place on the same date and evidence conclusively shows defendant's arrest arose out of a single transaction, the defendant's conviction of the offense of illegally selling and distributing heroin necessarily includes the offense of possessing heroin. Sturgis v. State, 128 Ga. App. 85 , 195 S.E.2d 682 (1973).
Offense of sale of marijuana and heroin necessarily included offense of possession of marijuana and heroin, unless evidence showed they were on different occasions. Burns v. State, 127 Ga. App. 828 , 195 S.E.2d 189 (1973).
As a matter of law, crime of illegal possession of heroin is not included in crime of illegal sale of heroin for purposes of double jeopardy and multiple prosecution. Wilson v. Hopper, 234 Ga. 859 , 218 S.E.2d 573 (1975).
When the defendant is convicted of both sale and possession of illegal drugs, and evidence required to convict on illegal sale was the only evidence showing possession, the sentence on a conviction of a lesser included crime (possession) cannot stand. Anthony v. Hopper, 235 Ga. 336 , 219 S.E.2d 413 (1975), overruled on other grounds, State v. Hudson, 293 Ga. 656 , 748 S.E.2d 910 (2013).
Although the accomplice's conduct in fraudulently representing to the pharmacist that the accomplice had a doctor's authority to call in the prescriptions occurred in a single telephone call, the defendant's conduct of acquiring possession of the several different controlled substances was not the same conduct for the purpose of deciding whether the offenses merged because acquiring possession of the first prescription drug was not the same conduct as acquiring possession of the second prescription drug, and neither were the same as acquiring possession of the third prescription drug; thus, those offenses of obtaining a controlled substance by fraud did not merge for sentencing purposes. Hopkins v. State, 328 Ga. App. 844 , 761 S.E.2d 896 (2014).
Possession of drug-related objects conviction merged as a matter of fact into defendant's felony conviction for possession of cocaine. Reddick v. State, 249 Ga. App. 678 , 549 S.E.2d 151 , cert. denied, No. S01C1352, 2001 Ga. LEXIS 802 (Oct. 1, 2001).
Trafficking and possession of methamphetamine. - Because the indictment for a charge of possession of methamphetamine clearly stated that it was based upon methamphetamine "separate from the quantity described" in the separate trafficking charge, the trial court did not err in failing to merge the two offenses. Bellamy v. State, 243 Ga. App. 575 , 530 S.E.2d 243 (2000).
Possession and distribution of methamphetamine. - Possession of methamphetamine and distribution of methamphetamine charges did not merge under O.C.G.A. § 16-1-7 when defendant smoked methamphetamine in the company of a second person who later returned with a fresh supply of the drug with which defendant injected the second person; methamphetamine that defendant possessed while smoking constituted a separate amount of methamphetamine not accounted for in the distribution charge. Crutchfield v. State, 291 Ga. App. 24 , 660 S.E.2d 878 (2008).
Possession of illegal drug is crime separate and distinct from illegal sale of that same substance, where the illegal sales were alleged to have taken place on dates different from the date on which drugs were found in defendant's residence. Morgan v. State, 168 Ga. App. 310 , 308 S.E.2d 583 (1983).
Obtaining controlled substance by theft and theft by taking. - When the defendant's obtaining a controlled substance by theft conviction was reversed, the defendant's plea in bar to the state's subsequent indictment of the defendant for obtaining a controlled substance by theft was improperly denied because, although constitutional jeopardy did not attach to the obtaining a controlled substance by theft count in the former prosecution as that offense was not within the jurisdiction of the trial court as a result of the state's failure to indict it, constitutional jeopardy did attach to the misdemeanor theft by taking count and, thus, double jeopardy prevented a subsequent prosecution of offenses arising from the same transaction, including the obtaining a controlled substance by theft count. Goodwin v. State, 341 Ga. App. 530 , 802 S.E.2d 3 (2017).
Delivery of marijuana and distribution of marijuana are both distinct violations of O.C.G.A. § 16-13-30(b) ; they are not included but each may be committed exclusive of the other. Buford v. State, 162 Ga. App. 498 , 291 S.E.2d 256 (1982).
Possession of drug paraphernalia and violation of the Georgia Controlled Substance Act, O.C.G.A. § 16-13-1 et seq., are not included crimes as a matter of fact or of law. Corbitt v. State, 169 Ga. App. 739 , 315 S.E.2d 25 (1984).
Trial court erred in sentencing defendant for possession of methamphetamine and possession with the intent to distribute methamphetamine where the convictions were based upon the same evidence. Gooch v. State, 249 Ga. App. 643 , 549 S.E.2d 724 (2001).
Possession of marijuana and possession with intent to distribute. - Offense of possession of marijuana was included in the offense of possession of marijuana with intent to distribute, where the possession charge could be established by proof of a less culpable mental state (general criminal intent) than was required to establish the commission of possession with intent to distribute (specific criminal intent to distribute). Talley v. State, 200 Ga. App. 442 , 408 S.E.2d 463 (1991).
Financial transaction card theft not lesser included offense of financial transaction card fraud. - Financial transaction card theft, O.C.G.A. § 16-9-31 , is not a lesser included offense of financial transaction card fraud, O.C.G.A. § 16-9-33 ; thus, defendant's prior conviction for the former offense did not preclude prosecution for the latter. Sword v. State, 232 Ga. App. 497 , 502 S.E.2d 334 (1998).
Offenses of theft by conversion and securities violations did not merge. - Trial court did not err in failing to merge the theft by conversion counts under O.C.G.A. § 16-8-3 , and the securities violation counts under O.C.G.A. § 10-5-12 filed against defendant because the state had to prove separate facts to find defendant guilty of the theft by conversion offenses and the violations of the Georgia Securities Act, O.C.G.A. § 10-5-1 et seq. Furthermore, the securities violation counts were complete before the theft conversion occurred. Lavigne v. State, 299 Ga. App. 712 , 683 S.E.2d 656 (2009).
Gambling. - Gambling is one thing and operating a gambling house is a kindred but entirely different thing; different evidence is required to convict of these separate offenses. No absurdity or repugnancy is created by acquittal of gambling and conviction of operating a gambling house. McGahee v. State, 133 Ga. App. 964 , 213 S.E.2d 91 (1975).
Although arising from same transaction, offenses of possession of gambling devices and equipment, and commercial gambling by operating a gambling place, are separate and distinct. Baxter v. State, 134 Ga. App. 286 , 214 S.E.2d 578 , cert. denied, 423 U.S. 895, 96 S. Ct. 194 , 46 L. Ed. 2 d 127 (1975).
Trial court did not err in sentencing defendant for commercial gambling, communicating gambling information and keeping a gambling place; the latter two offenses are not included in offense of commercial gambling. Romano v. State, 162 Ga. App. 816 , 292 S.E.2d 533 (1982).
Insurance fraud violations. - Defendant was properly sentenced to separate terms for insurance fraud violations committed by several co-conspirators; each fraudulent claim made was a separate offense and did not merge under O.C.G.A. § 16-1-7 . Crowder v. State, 222 Ga. App. 351 , 474 S.E.2d 246 (1996).
Dogfighting was not, as a matter of law or of fact, a lesser included offense of commercial gambling. Hargrove v. State, 253 Ga. 450 , 321 S.E.2d 104 (1984).
Animal cruelty and intimidating court officers erroneously joined. - Trial court erred in joining the animal cruelty charge with that of intimidating court officers because there was no showing that the crimes alleged were based on the same conduct, were part of a single scheme or plan, or were a series of connected acts; thus, joinder was not authorized. Harrell v. State, 297 Ga. 884 , 778 S.E.2d 196 (2015).
Convictions of laying drags, reckless driving and speeding were not violative of O.C.G.A. § 16-1-7 as each offense was established by proof of different facts and evidence shows that the three offenses occurred at separate times and locations during pursuit of appellant's vehicle. Neither offense was included in the other as a matter of fact or law. Phillips v. State, 162 Ga. App. 471 , 291 S.E.2d 776 (1982).
Reckless driving, reckless conduct and speeding merge. - Trial court erred in failing to merge defendant's convictions for reckless driving, speeding, and reckless conduct since defendant's conviction for reckless conduct was proved by less than all of the facts used to prove defendant guilty of reckless driving, and the speeding charge, as alleged, was an element of both reckless driving and reckless conduct. Carrell v. State, 261 Ga. App. 485 , 583 S.E.2d 167 (2003).
Reckless driving and reckless conduct do not merge. - Trial court did not err by failing to merge the crimes of reckless driving, O.C.G.A. § 40-6-390 , and reckless conduct, O.C.G.A. § 16-5-60 , for punishment because the two offenses did not merge for sentencing when §§ 40-6-390 and 16-5-60 each had a provision that required proof of a fact that the other did not, and to establish a violation of § 40-6-390, the state only had to prove that the defendant drove the car in a manner exhibiting reckless disregard for the safety of persons or property; reckless conduct requires proof of harm or an actual threat of harm to the bodily safety of another person and does not require that the crime be committed while driving a motor vehicle, but reckless driving does not require that there be an injured or threatened party and instead merely requires that the state prove a general disregard for the safety of persons or property while driving a motor vehicle. Howard v. State, 301 Ga. App. 230 , 687 S.E.2d 257 (2009).
Reckless conduct conviction no bar to aggressive driving conviction. - Defendant's previous conviction for reckless conduct under O.C.G.A. § 16-5-60 did not bar a later conviction for aggressive driving under O.C.G.A. § 40-6-397 when both convictions arose out of the same incident, and when conviction for aggressive driving did not require proof of the fact that defendant endangered the bodily safety of the other driver and other driver's family, while reckless conduct conviction did not require proof of the fact that defendant drove with the intent to annoy, harass, intimidate, and injure another; thus, each crime required proof of a fact that the other did not, so neither offense was included in the other so as to violate the substantive bar against double jeopardy of O.C.G.A. § 16-1-7 . Winn v. State, 291 Ga. App. 16 , 660 S.E.2d 883 (2008).
Hunting on public road from motor vehicle at night. - After the defendants hunted from a motor vehicle on a public road at night using a light exceeding six volts, it was not in error to convict the defendants of the three separate crimes of hunting at night, hunting on a public road, and hunting from a motor vehicle. Sanford v. State, 169 Ga. App. 769 , 315 S.E.2d 281 (1984).
Driving under the influence was lesser included offense of first degree vehicular homicide, and conviction of both offenses was proscribed. Duncan v. State, 183 Ga. App. 368 , 358 S.E.2d 910 (1987).
Driving under the influence and probationary license violation. - Defendant's convictions for operating a motor vehicle under the influence of alcohol while having a probationary license and driving under the influence of alcohol could not both stand since, under the facts, the latter was a lesser included offense in the violation of the probationary license offense. Williams v. State, 223 Ga. App. 209 , 477 S.E.2d 367 (1996).
Improper lane change, driving without headlights, and driving under the influence of alcohol (DUI) convictions did not merge because the facts alleged in the accusation with regard to the DUI charge were not also sufficient to establish the lesser offenses of improper lane change and driving without headlights. Parker v. State, 249 Ga. App. 530 , 549 S.E.2d 154 (2001).
DUI and criminal trespass separate transactions. - Motion in autrefois convict and plea of former jeopardy was properly denied because the offense of DUI did not arise from the same transaction as the criminal trespass; the defendant was arrested on a warrant for criminal trespass at the residence of a live-in girlfriend, while the defendant was arrested for DUI near, but not at, the residence. Thus, the incidents were separate transactions. Johns v. State, 319 Ga. App. 718 , 738 S.E.2d 304 (2013).
Driving on the wrong side of the road is a lesser included offense of second degree vehicular homicide. Rank v. State, 179 Ga. App. 28 , 345 S.E.2d 75 (1986).
Improper passing and reckless driving are lesser included offenses of vehicular homicide. Nash v. State, 179 Ga. App. 702 , 347 S.E.2d 651 (1986).
Violation of oath and theft by taking not merged. - Charges of violation of oath by a public officer and theft by taking in two indictments do not merge, since the essential elements for each crime are different, even though there may be an overlapping of proof between the two. Freeman v. State, 184 Ga. App. 678 , 362 S.E.2d 413 (1987).
Selling alcohol without license and selling on Sunday. - Although the two crimes alleged share the same essential element of selling alcoholic beverages, each of the crimes has an additional essential element distinct from the other. Proof that defendants sold alcohol without a license would not prove that they sold alcoholic beverages on Sunday, nor would proof of the latter establish the former. Martin v. State, 185 Ga. App. 145 , 363 S.E.2d 765 (1987).
Offenses of furnishing alcohol to minors and maintaining a disorderly house did not merge, because each of the offenses had elements not required by the other and each prohibited a distinct type of criminal conduct. Tate v. State, 198 Ga. App. 276 , 401 S.E.2d 549 (1991).
Predicate offenses for RICO violation. - Convictions on 75 counts of stealing public records could not stand, where the state, by choosing gratuitously to include as predicates for a Racketeer Influenced and Corrupt Organization (RICO) violation all of the instances of the prohibited acts recited in the counts, "used up" the evidence, so that there was none left to form the basis for the separate offenses enumerated in the counts. Martin v. State, 189 Ga. App. 483 , 376 S.E.2d 888 , cert. denied, 189 Ga. App. 911 , 376 S.E.2d 888 (1989).
Failure to strike from a Racketeer Influenced and Corrupt Organizations Act (RICO) indictment, as predicate offenses, three thefts which had been formerly prosecuted was harmless error, where there was no reason to infer that defendant's guilty pleas to other offenses were tainted or otherwise affected by the superfluous addition of predicate offenses which had formerly been prosecuted. Bethune v. State, 198 Ga. App. 490 , 402 S.E.2d 276 , cert. denied, 198 Ga. App. 897 , 402 S.E.2d 276 (1991).
Misuse of a firearm while hunting and failure to report an accidental injury while hunting were both properly prosecuted against defendant without effecting impermissible multiple convictions since the two offenses contain some different elements and require proof of different facts and thus are not included within each other. Lewis v. State, 207 Ga. App. 212 , 427 S.E.2d 578 (1993).
Conspiracy and possession of tools for the commission of a crime. - Even though the crimes of conspiracy and possession of tools for the commission of a crime do not merge as a matter of law, because the form of the indictment required proof of the possession of tools in order to prove the conspiracy, the offenses merged as a matter of fact. Green v. State, 240 Ga. App. 377 , 523 S.E.2d 581 (1999).
Prosecution for violation of O.C.G.A. § 40-6-395(a) and (b)(5)(A) valid. - Defendant could be lawfully prosecuted for both O.C.G.A. § 40-6-395(a) and (b)(5)(A) without offending O.C.G.A. § 16-1-7(a) , although defendant could not be sentenced for both; the court found that because all of the evidence was used up to prove the crime of felony fleeing or attempting to elude, the misdemeanor conviction for fleeing or attempting to elude merged into the greater offense. Buggay v. State, 263 Ga. App. 520 , 588 S.E.2d 244 (2003).
Defendant not entitled to jury charge on misdemeanor offense. - Defense counsel was not ineffective for failing to request a jury charge on the misdemeanor offense of giving a false name to a law enforcement officer under O.C.G.A. § 16-10-25 because the conduct for which a defendant was indicted, falsely telling a GBI special agent that the defendant did not make a 9-1-1 call regarding a fire at another agent's residence when in fact the defendant did make the call, would not constitute a violation of § 16-10-25 ; the defendant failed to show under O.C.G.A. § 16-1-7(a)(1) that the same conduct would result in the violation of the misdemeanor statute. Mahoney v. State, 296 Ga. App. 570 , 675 S.E.2d 285 (2009).
Joint Prosecution of Offenses
1. In General
O.C.G.A. § 16-1-7(b) establishes a prosecutorial bar which is broader than that in the United States and Georgia Constitutions, and than the literal provisions of O.C.G.A. § 16-1-8(b)(1). Cochran v. State, 176 Ga. App. 58 , 335 S.E.2d 165 (1985).
"Same conduct" construed. - The phrase "the same conduct" in O.C.G.A. § 16-1-7(b) has been used interchangeably with the phrase "the same transaction." Harrell v. State, 196 Ga. App. 101 , 395 S.E.2d 598 (1990).
When two or more offenses may be tried together. - Two or more offenses may be tried together if they are of same or similar character, even if not part of a single scheme or plan; or if they are based on same conduct or on a series of acts connected together or constituting parts of a single scheme or plan. Gober v. State, 247 Ga. 652 , 278 S.E.2d 386 (1981).
Offenses may be joined for trial when they are based: (1) on the same conduct; or (2) on a series of acts connected together; or (3) on a series of acts constituting parts of a single scheme or plan. If offenses are joined for any of these three reasons, the defendant does not have an automatic right of severance; instead, the trial judge may grant severance if it is necessary to achieve a fair determination of the defendant's guilt or innocence of each offense. Isbell v. State, 179 Ga. App. 363 , 346 S.E.2d 857 (1986), cert. denied, 479 U.S. 1098, 107 S. Ct. 1319 , 94 L. Ed. 2 d 172 (1987).
Where the evidence showed a continuous scheme or ongoing spree such that evidence of one incident would be admissible in the trial of the similar crimes committed the same night in the other incident, the trial court did not abuse its discretion in granting the state's motion to consolidate the indictments for trial. Moore v. State, 245 Ga. App. 641 , 537 S.E.2d 764 (2000).
Driving under the influence and reckless driving merged into vehicular homicide. - Convictions for driving under the influence of alcohol and reckless driving merged into a vehicular homicide conviction and were vacated. Harris v. State, 272 Ga. App. 366 , 612 S.E.2d 557 (2005).
Offenses arising from same conduct, within jurisdiction of single court, must be prosecuted in single action. Brock v. State, 146 Ga. App. 78 , 245 S.E.2d 442 (1978).
Offenses arising from same conduct, but multiple jurisdictions. - After defendant pled guilty to theft by taking for writing fraudulent checks, defendant could subsequently be prosecuted for forgery for uttering and delivering the checks, without offending the provision of O.C.G.A. § 16-1-7(b) , prohibiting multiple prosecutions for crimes arising from the same conduct, because, as venue for the two prosecutions arose in different counties, the offenses were not known to the proper prosecutor and were not within the jurisdiction of a single court. Furthermore, defendant's subsequent prosecution for forgery for uttering and delivering the checks was not barred under O.C.G.A. § 16-1-6 or O.C.G.A. § 16-1-7(a) , because the two crimes were not lesser included offenses of the other. Cade v. State, 262 Ga. App. 206 , 585 S.E.2d 172 (2003).
Same conduct and same jurisdiction not shown. - Defendant's conviction for driving under the influence (DUI) less safe was affirmed because the defendant's actions in the Fulton County hit and run incident and the defendant's actions in the Gwinnett County DUI less-safe incident were neither the same transaction nor the same conduct as contemplated by O.C.G.A. § 16-1-7(a) . Hassard v. State, 319 Ga. App. 708 , 738 S.E.2d 293 (2013).
Same conduct not shown. - Indictment was not barred by former prosecution since the predicate acts supporting the RICO violation alleged by the indictment in one county were not alleged by the indictment in the other county, and there was otherwise no evidence that the RICO prosecution in one county arose from the same conduct supporting the RICO charges filed against the defendant in the other county. Garrard v. State, 242 Ga. App. 189 , 528 S.E.2d 273 (2000).
Although both indictments against the defendant alleged similar schemes to defraud lending institutions, double jeopardy protections under O.C.G.A. §§ 16-1-7(b) , 16-1-8(b) and Ga. Const. 1983, Art. I, Sec. I, Para. XVIII did not bar the second prosecution; the indictments involved different properties, different coconspirators, different real estate transactions, and, for the most part, different lenders, and the fact that the two separate conspiracies may have overlapped in time and resulted in violations of the same criminal statutes was not determinative. Harrison v. State, 282 Ga. App. 29 , 637 S.E.2d 773 (2006).
Former Code 1933, § 26-506(b) requires one prosecution only if several crimes arise from same conduct. Ealey v. State, 139 Ga. App. 604 , 229 S.E.2d 86 (1976).
When joint prosecution of multiple charges is mandatory. - Prosecution of multiple charges together is mandatory where rules relating to venue permit and crimes are known to proper prosecuting officer. Henderson v. State, 227 Ga. 68 , 179 S.E.2d 76 (1970), sentence vacated, 408 U.S. 938, 92 S. Ct. 2868 , 33 L. Ed. 2 d 758 (1972).
State's option upon dismissal of one of several offenses prosecuted together under O.C.G.A. § 16-1-7(b) . - When more than one offense arises out of same course of action and at same time, upon being faced with dismissal of one offense, state has option of taking appeal from action of trial court while withholding prosecution of other offense or offenses pending outcome of appeal, or alternatively of proceeding with prosecution of remaining offense. Electing to proceed with remaining offense or offenses bars the state from trying dismissed offense by virtue of doctrine of procedural double jeopardy. State v. Brittain, 147 Ga. App. 626 , 249 S.E.2d 679 (1978).
Under former Code 1933, § 26-1801 (see now O.C.G.A. § 17-8-3 ), before the jury was impaneled, a nolle prosequi may be entered at the pleasure of the prosecutor. Singer v. State, 156 Ga. App. 416 , 274 S.E.2d 612 (1980).
Indictment is not invalid merely because it includes two entirely separate and distinct crimes. Quarles v. State, 130 Ga. App. 756 , 204 S.E.2d 467 (1974).
Including multiple counts in indictment based on same type of recurring conduct. - Including multiple counts in indictment does not violate provisions of former Code 1933, § 26-506, even though state does not rely on same conduct to establish commission of offenses, but rather on same type of conduct, reoccurring in a number of instances. Steele v. State, 227 Ga. 653 , 182 S.E.2d 475 (1971).
When modus operandi of perpetrator is so strikingly alike in different counts that totality of facts unerringly demonstrates and designates the defendant as the common perpetrator, the offenses may be joined, subject to the right of the defendant to severance in the interests of justice. Davis v. State, 159 Ga. App. 356 , 283 S.E.2d 286 (1981).
When defendant can be charged with separate, distinct offenses in same indictment. - Defendant cannot be charged with separate and distinct offenses on same indictment unless they are of same nature, class or species, or arise out of or constitute but one transaction involving same conduct of accused. Fair v. State, 129 Ga. App. 565 , 200 S.E.2d 296 (1973).
Impermissible consolidation of indictments is error requiring new trial in each case. Bradford v. State, 126 Ga. App. 688 , 191 S.E.2d 545 (1972), overruled on other grounds, Smith v. State, 199 Ga. App. 410 , 405 S.E.2d 107 (1991).
If defendant charged with multiple offenses arising from "same conduct" pleads guilty to certain of these offenses, the defendant may then raise a plea of bar against subsequent prosecutions arising from the same course of conduct where the state, through decision or default, has failed to prosecute all offenses together, provided that it was practicable to do so. State v. McCrary, 253 Ga. 747 , 325 S.E.2d 151 (1985).
Prosecutor's knowledge of offenses. - When there is no showing that all of the charges against a defendant were known to the proper prosecuting officer at the time a previous prosecution was commenced, a subsequent prosecution for other violations arising from the same occurrence is not barred by O.C.G.A. § 16-1-7(b) or by O.C.G.A. § 16-1-8(b) . Webb v. State, 176 Ga. App. 576 , 336 S.E.2d 838 (1985).
O.C.G.A. § 16-1-7(b) , requiring that crimes arising out of the same conduct be prosecuted in a single prosecution, applies only with regard to such crimes as are actually known to the prosecuting officer actually handling the proceedings. A constructive knowledge standard is not employed. Baker v. State, 257 Ga. 567 , 361 S.E.2d 808 (1987); Dickinson v. State, 191 Ga. App. 467 , 382 S.E.2d 187 (1989); Price v. State, 206 Ga. App. 161 , 424 S.E.2d 841 (1992); Bonner v. State, 249 Ga. App. 358 , 548 S.E.2d 84 (2001).
Defendant may be prosecuted for more than one crime arising from the same conduct if the prosecuting officer actually handling the proceedings does not have actual knowledge of the multiple prosecutions. Farmer v. State, 184 Ga. App. 851 , 363 S.E.2d 62 (1987); Hayles v. State, 188 Ga. App. 281 , 372 S.E.2d 668 (1988); Cates v. State, 206 Ga. App. 694 , 426 S.E.2d 576 (1992).
Knowledge means actual, not constructive, knowledge by the prosecuting officer. Sanders v. State, 188 Ga. App. 774 , 374 S.E.2d 542 , cert. denied, 188 Ga. App. 912 , 371 S.E.2d 878 (1988).
Trial court's denial of defendant's plea of former jeopardy to preclude prosecution for controlled substances act violations was error, where the offense of driving without a license to which defendant pled guilty arose out of the same transaction, and all offenses were known to the prosecutor at the outset. Smith v. State, 190 Ga. App. 246 , 378 S.E.2d 493 , aff'd, 259 Ga. 352 , 381 S.E.2d 37 (1989).
After the defendant pled guilty to giving a false name and address, obstruction of an officer, and driving on a suspended license following dismissal of earlier charges of theft of a motor vehicle, concealing the identity of a motor vehicle, and improper parking, offenses of theft and concealing the identity of a motor vehicle charged in a subsequent indictment did not arise from the same conduct as that of which defendant was convicted, but the offense of improper parking, also charged in the indictment, did arise from the same conduct and should have been dismissed since the prosecuting attorney had actual knowledge of all the crimes. Young v. State, 214 Ga. App. 585 , 448 S.E.2d 477 (1994).
Defendant had the burden of showing that the proper prosecuting officer had actual knowledge of all of the charges against that defendant and since the defendant did not satisfy that fact by evidence, the trial court did not err in finding that the defendant failed to satisfy O.C.G.A. § 16-1-7(b) and denying defendant's motion in autrefois convict and plea in bar. Rowe v. State, 265 Ga. App. 809 , 463 S.E.2d 21 (1995); Blackwell v. State, 232 Ga. App. 884 , 502 S.E.2d 774 (1998).
Defendant was charged with speeding, driving under the influence of drugs, and endangering a child. Defendant pled nolo contendere to, and was sentenced on the speeding charge; therefore, the state was barred from prosecuting defendant for the other two charges which arose from the same conduct and of which the prosecutor had actual knowledge. Weaver v. State, 224 Ga. App. 243 , 480 S.E.2d 286 (1997).
O.C.G.A. § 16-1-7(b) only applies to crimes which are "actually known" to the prosecuting officer; constructive knowledge by the prosecuting officer is not sufficient. Hill v. State, 234 Ga. App. 173 , 507 S.E.2d 3 (1998).
Even if both a misdemeanor charge for theft by receiving and subsequent felony charge for that crime were for separate items seized by the same police officer from the same location at the same time, this alone would not be sufficient to invoke the bar of double jeopardy because defendant had the burden of showing that, when the misdemeanor prosecution was commenced, the solicitor general had actual knowledge of the felony charge. Honea v. State, 238 Ga. App. 135 , 517 S.E.2d 841 (1999).
O.C.G.A. § 16-1-7 does not bar prosecution of other offenses unless the defendant affirmatively shows that the other crimes were actually known to the prosecutor handling the proceedings. Baker v. State, 251 Ga. App. 597 , 554 S.E.2d 797 (2001).
After the defendant conceded that there was no prosecuting attorneys assigned to the DeKalb County Recorder's Court, and the presiding judge or arresting officer was not deemed the proper prosecuting officer, the defendant failed in the defendant's burden of showing that the proper prosecuting officer had actual knowledge of all the charges against the defendant. Simmons v. State, 263 Ga. App. 220 , 587 S.E.2d 312 (2003).
State was prohibited by O.C.G.A. § 16-1-7(b) from adding new charges to the indictment because the charges in the previous two-count indictment were for different offenses than the ones the state added to the re-indictment, and all of the crimes were actually known to the prosecutor when the defendant commenced the first prosecution. Herrington v. State, 315 Ga. App. 101 , 726 S.E.2d 625 (2012).
Defendant's procedural double jeopardy motion was properly denied because the disposition form was legally insufficient to show that the solicitor handling the defendant's guilty plea in state court actually knew that there were felony offenses arising out of the same conduct as the misdemeanor traffic offense as the disposition form simply listed the felony offenses and the date the defendant was initially detained; thus, the state could proceed with the state's prosecution of the defendant in superior court on the felony charges of trafficking in cocaine, possession of cocaine with intent to distribute, abandonment of drugs in a public place, and bribery. Sellers v. State, 332 Ga. App. 14 , 770 S.E.2d 31 (2015), cert. denied, No. S15C1309, 2015 Ga. LEXIS 597 (Ga. 2015).
"Proper prosecuting officer" construed. - Language of subsection (b) of this statute referring to proper prosecuting officer clearly means prosecuting attorney for state; that is, the district attorney or authorized assistants. Singer v. State, 156 Ga. App. 416 , 274 S.E.2d 612 (1980).
District attorney, not the assistant district attorney who is actually responsible for the prosecution of the case, was the "proper prosecuting officer at the time of commencing the prosecution" within the meaning of O.C.G.A. § 16-1-7(b) , since the district attorney's name on the accusation and the indictment was conclusive circumstantial evidence that the district attorney had actual knowledge of all the offenses arising from the same conduct and the pendency of both prosecutions against the accused but chose to proceed separately as to each. State v. Smith, 259 Ga. 352 , 381 S.E.2d 37 (1989).
"Proper prosecuting officer," as that phrase is used in O.C.G.A. § 16-1-7(b) , means the prosecuting attorney for the state, i.e., the district attorney or authorized assistants, including state court solicitors and their assistants, and the phrase was not meant to include the arresting officer. Zater v. State, 197 Ga. App. 648 , 399 S.E.2d 222 (1990); Rowe v. State, 265 Ga. App. 809 , 463 S.E.2d 21 (1995); Dodd v. State, 240 Ga. App. 48 , 522 S.E.2d 538 (1999).
O.C.G.A. § 16-1-7(b) applies only to such crimes which are actually known to the prosecuting officer who is handling the proceedings. The defendant bears the burden of showing that further prosecution is barred by the previous prosecution, including a showing that the proper prosecuting attorney had actual knowledge of all the charges. Anderson v. State, 200 Ga. App. 530 , 408 S.E.2d 829 (1991).
Appearance of the district attorney's name on both an accusation and indictment constitutes circumstantial evidence which conclusively establishes the district attorney's actual knowledge of the pendency of the prosecutions and of the offenses charged in each. Mack v. State, 249 Ga. App. 424 , 547 S.E.2d 697 (2001).
Subsection (b) does not require exclusion of evidence of crimes not subject to prosecution. - Although O.C.G.A. § 16-1-7(b) does require single prosecution of known crimes arising from same conduct, it does not contain exclusionary rule concerning evidence of crimes which are not subject to prosecution. Favors v. State, 149 Ga. App. 563 , 254 S.E.2d 886 (1979).
2. Crimes Against the Person
Failure of prosecuting officials to include underlying felony charge in a murder indictment constitutes a statutory procedural bar to prosecution on the charge of felony murder, where the commission of the felony and the murder arise from the "same conduct." McCrary v. State, 254 Ga. 382 , 329 S.E.2d 473 (1985).
After the defendant committed four distinct offenses (driving under the influence, reckless driving, fleeing to elude arrest, and aggravated assault) during a single continuous course of conduct in a single night, and these offenses were known to the prosecutor at the time of the prosecution in the probate court, at which time the court accepted guilty pleas to the two misdemeanor charges, the successive prosecution in the superior court for the felony charges was barred. McCrary v. State, 171 Ga. App. 585 , 320 S.E.2d 567 (1984), aff'd, 253 Ga. 747 , 325 S.E.2d 151 (1985); Hooker v. State, 240 Ga. App. 141 , 522 S.E.2d 723 (1999).
Separate victims of obstruction of a law enforcement officer. - Upon conviction of defendant of three counts of misdemeanor obstruction of a law enforcement officer, since there were three separate victims, the trial court did not err in treating the counts as discrete offenses for sentencing. Denny v. State, 222 Ga. App. 674 , 475 S.E.2d 698 (1996).
Kidnapping with bodily injury in one county and murder in another county permitted separate prosecution. - After the accused kidnapped the victim and inflicted bodily injury upon the victim in one county, and then abducted the victim to a second county in which the accused killed the victim, the two offenses were not within a single court's jurisdiction and could not be tried together; therefore, there was no procedural bar to subsequent prosecution for murder in the second county. Stephens v. Hopper, 241 Ga. 596 , 247 S.E.2d 92 , cert. denied, 439 U.S. 991, 99 S. Ct. 593 , 58 L. Ed. 2 d 667 (1978).
Offense of hijacking did not merge with defendant's armed robbery conviction for sentencing purposes. Dillard v. State, 223 Ga. App. 405 , 477 S.E.2d 674 (1996).
When death occurs after conviction for aggravated assault. - When criminal offense of murder was not yet complete because the victim had not died at time of aggravated assault conviction, subsequent prosecution for murder was not barred by express terms of former Code 1933, §§ 26-506(b) and 26-507(b) (see now O.C.G.A. §§ 16-1-7(b) and 16-1-8(b) ), because the crime of murder was not consummated when the former trial began. Lowe v. State, 240 Ga. 767 , 242 S.E.2d 582 (1978).
Vehicular homicide prosecution not barred when victim died following traffic violation prosecutions. - Prosecution for vehicular homicide was not barred against a defendant who, at prior proceedings, had been prosecuted for and pled guilty to other offenses arising from the same incident since, at the time of the earlier proceedings, the victim had not yet died. Herrera v. State, 175 Ga. App. 740 , 334 S.E.2d 339 (1985).
Three deaths from one auto accident. - Defendant could be sentenced on three counts of vehicular homicide although all three deaths resulted from one negligent act. Smith v. State, 164 Ga. App. 624 , 298 S.E.2d 587 (1982).
Reckless driving and serious injury by vehicle offenses. - Trial court did not err by failing to merge a reckless-driving charge into a serious-injury-by-vehicle charge because the two crimes were entirely separate and distinct, requiring a showing of different elements and based on the defendant's drunk driving of a four-wheeler ATV with a 10-year-old passenger, who was brain-damaged when the defendant clipped a tractor and flipped the ATV; the state used the evidence of the clipping of the tractor scoop, which caused the rollover and injury to the child, as the elements of the serious-injury-by-vehicle offense, which was separate from and sequential to the reckless-driving offense, which was premised on the defendant's intoxication. Croft v. State, 278 Ga. App. 107 , 628 S.E.2d 144 (2006).
Multiple sex crimes against children. - Trial court did not err in refusing to merge a charge of statutory rape with an incest charge, a charge of child molestation with that of aggravated child molestation, and charges of aggravated sodomy and aggravated child molestation. Those multiple offenses did not merge as a matter of fact or law; under the circumstances of the case, the same conduct was not being punished twice, nor was one act included in the other so as to proscribe the separate conviction and punishment for each act. Williams v. State, 195 Ga. App. 476 , 394 S.E.2d 123 (1990).
Attempt to commit child molestation and enticing a child for indecent purposes. - Trial court did not err in failing to merge the defendant's convictions for criminal attempt to commit child molestation and criminal attempt to entice a child for indecent purposes because to convict the defendant of criminal attempt to commit child molestation, the state had to prove that the defendant took a substantial step towards doing an immoral or indecent act to or with someone believed to be under the age of 16, and for purposes of convicting the defendant of criminal attempt to entice a child for indecent purposes, the state was not required to prove that the defendant was acting with an intent or desire to satisfy sexual desires. Castaneira v. State, 321 Ga. App. 418 , 740 S.E.2d 400 (2013).
Aggravated child molestation and simple sodomy. - As defendant's conduct satisfied the elements of aggravated child molestation, the argument that defendant should have been sentenced for the lesser crime of simple sodomy was unavailing; the state was not required to prosecute only a lesser offense committed, but could prosecute the defendant under any or all of the statutes that fit defendant's conduct. Hunter v. State, 263 Ga. App. 747 , 589 S.E.2d 306 (2003).
Aggravated assault and feticide. - Defendant's convictions for aggravated assault in violation of O.C.G.A. § 16-5-21(a)(2) and feticide in violation of O.C.G.A. § 16-5-80(a) did not merge for sentencing purposes because the victim of the aggravated assault was the defendant's girlfriend, while the victim of the feticide was the girlfriend's unborn child; the merger doctrine does not apply if each of the charged crimes was committed against a different victim. Carmichael v. State, 305 Ga. App. 651 , 700 S.E.2d 650 (2010).
Aggravated assault and murder. - Trial court erred by convicting the defendant of aggravated assault and an associated weapons possession conviction in addition to murder because, with regard to the stabbing death of the victim, there was no evidence of any interval, deliberate or otherwise, separating the infliction of the victim's non-fatal wounds from the infliction of the wounds that killed the victim. Reddings v. State, 292 Ga. 364 , 738 S.E.2d 49 (2013).
Defendant's conviction for aggravated assault against one victim was properly not merged with the conviction for malice murder because aggravated assault was separated by a deliberate interval from malice murder as aggravated assault occurred when the defendant shot several times through the bedroom door, and malice murder occurred only after the victim fled into the bedroom closet, the defendant entered the room, and the victim came out to confront the defendant. Miller v. State, 305 Ga. 276 , 824 S.E.2d 342 (2019).
Aggravated assault accounts should merge. - Trial court erred in failing to merge two aggravated assault counts because there was no element of aggravated assault with a deadly weapon that was not contained in aggravated assault by discharging a weapon from a moving vehicle. Adkins v. State, 301 Ga. 153 , 800 S.E.2d 341 (2017).
Felony murder and vehicular homicide. - Defendant could be indicted for vehicular homicide under O.C.G.A. § 40-6-393 and felony murder during the commission of fleeing and attempting to elude a police officer under O.C.G.A. § 40-6-395 . State v. Tiraboschi, 269 Ga. 812 , 504 S.E.2d 689 (1998).
Multiple felony murder convictions, only one person killed. - Under O.C.G.A. § 16-1-7(a) , it was improper to sentence defendant to two felony murder counts under O.C.G.A. § 16-5-1(c) because there was only one death involved. Rhodes v. State, 279 Ga. 587 , 619 S.E.2d 659 (2005).
Consecutive sentence for crimes involving two victims proper. - As a defendant was charged with the malice murder of two victims in different counts and was found guilty on each count, the defendant was properly sentenced separately on each count to run consecutively because the killing of different persons constituted separate crimes. Hooks v. State, 284 Ga. 531 , 668 S.E.2d 718 (2008), overruled on other grounds, Williams v. State, 287 Ga. 192 , 695 S.E.2d 244 (2010).
Aggravated assault with intent to rob and armed robbery. - Because all of the facts used to prove the offense of aggravated assault with intent to rob were used up in proving the armed robbery, merger was required. Mercer v. State, 289 Ga. App. 606 , 658 S.E.2d 173 (2008).
Defendant's conviction for aggravated assault with intent to rob the victim was vacated because it should have merged with the conviction for armed robbery of the same victim because the offenses were predicated on the same acts of violence and each did not require proof of a fact which the other did not since no additional violence was used against the victim. Colbert v. State, 345 Ga. App. 554 , 813 S.E.2d 777 (2018).
Conviction of aggravated assault and armed robbery. - Because: (1) different facts were used to prove an aggravated assault and an armed robbery, specifically, that the armed robbery was complete after the defendant laid a handgun on the counter in the convenience store, demanded that the victim open the register, and a codefendant took money from the a register; and (2) the separate offense of aggravated assault occurred when the defendant struck the victim in the head with the gun, the offenses did not merge as a matter of fact. Thus, the separate sentences imposed for each offense were upheld, and no double jeopardy violation occurred. Garibay v. State, 290 Ga. App. 385 , 659 S.E.2d 775 (2008).
Joinder of battery and obstruction of officer charges was proper because evidence of defendant's conduct in leaving the scene of the battery was relevant and pertinent to the obstruction charge. McCracken v. State, 224 Ga. App. 356 , 480 S.E.2d 361 (1997).
Felony murder and felony criminal attempt to possess cocaine. - Separate judgment of conviction and sentence for criminal attempt to possess cocaine was vacated because after the jury found the defendant guilty of felony murder while in the commission of the felony of criminal attempt to possess cocaine, and also of the felony of criminal attempt to possess cocaine, the defendant was sentenced on each charge, but the defendant could not be sentenced on both felony murder and the underlying felony when found guilty of both. Sapp v. State, 290 Ga. 247 , 719 S.E.2d 434 (2011).
Joinder of sexual offenses and solicitation for murder. - When the defendant planned to murder a child so that the child could not testify about sexual offenses, it was not error to refuse to sever the sexual charges from a solicitation to commit murder charge; joinder was based upon a connected series of acts, and there was no indication that the jury was unable to apply the law intelligently as to each offense. Borders v. State, 285 Ga. App. 337 , 646 S.E.2d 319 (2007), cert. denied, No. S07C1374, 2007 Ga. LEXIS 640 (Ga. 2007).
Conviction of aggravated assault and rape. - After completing the act of forcible intercourse (rape), defendant drew a gun again, pulled back the hammer, and threatened to shoot both victims if the victim's did not obey the defendant's further commands, this second drawing of the deadly weapon was subsequent to, and separate from, the completed offense of rape against the first victim; thus, the evidence regarding the use of force during the incident was not "used up" in the offense of rape, and the defendant could properly be convicted of aggravated assault. Ellis v. State, 181 Ga. App. 826 , 354 S.E.2d 15 (1987).
Kidnapping, rape, robbery and aggravated sodomy. - Kidnapping charge was not improperly joined with the charges of rape, robbery and aggravated sodomy where the charges were part of a continuing criminal enterprise. Smith v. State, 214 Ga. App. 631 , 448 S.E.2d 906 (1994).
Convictions for aggravated battery, family violence, and family violence battery arising out of same conduct. - Charges under both O.C.G.A. § 16-5-24(a) and (h) (aggravated battery, family violence) and O.C.G.A. § 16-5-23.1(a) , (b), and (f) (family violence battery, substantial physical and visible bodily harm), which were not based on actions at different times or places or different injuries, violated a defendant's double jeopardy rights under O.C.G.A. § 16-1-7 . Pierce v. State, 301 Ga. App. 167 , 687 S.E.2d 185 (2009), cert. denied, No. S10C0549, 2010 Ga. LEXIS 244 (Ga. 2010).
Joinder of theft by taking with making harassing telephone calls and using telephone communication for indecent purposes. - Trial court did not err in refusing to sever offenses for theft by taking and the telephone charges, because the evidence of each crime would be admissible in the trial of either crime if tried separately. Moss v. State, 245 Ga. App. 811 , 538 S.E.2d 876 (2000).
Unrelated assaults. - Defendant's plea to a charge arising from an earlier incident with a carpet cleaner did not preclude a prosecution for a later assault on the defendant's girlfriend because the crimes were separated in time, involved different victims, and did not arise from the same conduct; thus, O.C.G.A. § 16-1-7(b) did not require them to be brought in a single prosecution. Delph v. State, 279 Ga. App. 306 , 630 S.E.2d 891 (2006).
Possession of a firearm by a convicted felon. - Defendant was not entitled to a new jury on a trial of a possession of a firearm by a convicted felon charge as generally all charges arising out of the same conduct had to be tried in a single prosecution; although there were limited exceptions to the rule allowing, under proper circumstances, the bifurcation of a possession of a firearm by a convicted felon charge, the defendant was not entitled to a separate trial before a new jury on that charge. Walker v. State, 281 Ga. 157 , 635 S.E.2d 740 (2006), cert. denied, 552 U.S. 833, 128 S. Ct. 60 , 169 L. Ed. 2 d 50 (2007).
Merger for concealing death. - Appellant's merger claims cannot simply be deemed waived on appeal following the entry of a guilty plea, even if the appellant fails to raise the issue, and four of the appellant's five convictions for concealing the death of the appellant's girlfriend merged since only one violation occurred. Nazario v. State, 293 Ga. 480 , 746 S.E.2d 109 (2013).
Aggravated battery charges did not merge. - When the defendant was charged with two counts of aggravated battery, the aggravated battery counts did not merge because the evidence was sufficient for a jury to determine that the batteries occurred on separate occasions rather than during a single transaction as the expert physician testified that after the blow to the infant's head that fractured the infant's skull and caused the infant's brain to swell, the infant would not have acted normally, and both parents testified that the infant was acting normally until the day they finally took the infant to the emergency room; and the defendant testified that the marks appeared on the infant before the defendant dropped the baby out the front door onto the ground. Busby v. State, 332 Ga. App. 646 , 774 S.E.2d 717 (2015).
3. Crimes Against Property
Hijacking and armed robbery. - Defendant's convictions of hijacking a motor vehicle and armed robbery were properly entered, despite defendant's contention that the state used the same facts to establish both offenses and that defendant should have only been convicted of and sentenced for one of the offenses, as: (1) hijacking a motor vehicle was considered a separate offense and did not merge with any other offense; (2) O.C.G.A. § 16-5-44.1 superseded the double jeopardy provisions of O.C.G.A. § 16-1-7 in motor vehicle hijacking cases; (3) O.C.G.A. § 16-5-44.1 (d) did not violate the prohibition against double jeopardy, since the double jeopardy clause of the Georgia Constitution did not prohibit additional punishment for a separate offense which the legislature deemed to warrant separate sanction; and (4) defendant failed to offer any evidence in support of defendant's allegation that O.C.G.A. § 16-5-44.1(d) otherwise violated defendant's double jeopardy rights. Holman v. State, 272 Ga. App. 890 , 614 S.E.2d 124 (2005).
Arson and cruelty to animals. - Defendant was properly convicted for arson in the second degree and cruelty to animals, where the essential elements of each of the crimes differed, and the state carried its burden of proving the distinct elements of each crime. Motes v. State, 189 Ga. App. 430 , 375 S.E.2d 893 (1988).
Burglary and armed robbery. - There is no prohibition against a defendant's being convicted of both burglary and a completed criminal offense, such as armed robbery, after gaining entry into the dwelling, as each offense has distinct elements. Brown v. State, 199 Ga. App. 773 , 406 S.E.2d 248 (1991).
No merger of armed robbery and aggravated assault charges where defendant threatened victim with knife and took the victim's money and then at knifepoint forced the victim into the bushes, made the victim lie down, straddled the victim and threatened to stab the victim. Rhodes v. State, 221 Ga. App. 792 , 470 S.E.2d 790 (1996).
Merger of aggravated assault count with armed robbery. - Because a defendant's convictions for armed robbery (O.C.G.A. § 16-8-41(a) ) and aggravated assault (O.C.G.A. § 16-5-21(a) ) were based on the same conduct - the defendant's pointing a gun at the victim with the intent to rob the victim - merger was required. Therefore, the sentence for aggravated assault was vacated. Reed v. State, 293 Ga. App. 479 , 668 S.E.2d 1 (2008).
Merger of aggravated assault with felony murder conviction. - Because the crime of aggravated assault by shooting the victim with a gun was the underlying felony for the felony murder conviction, it should have merged with the felony murder conviction for sentencing purposes. Allen v. State, 307 Ga. 707 , 838 S.E.2d 301 (2020).
Two counts of burglary based on one entry should have been merged. - Because the defendant's one entry into the victim's house was committed with a dual intent to commit theft and aggravated assault, the trial court should not have imposed two separate sentences for the two burglary charges based on the two intents, and instead should have merged the burglary counts for sentencing. However, merger of an armed robbery charge was properly rejected. Ward v. State, 339 Ga. App. 621 , 794 S.E.2d 246 (2016).
Merger of theft by taking, conversion, and theft by deception. - After the defendant was convicted on 52 counts related to the defendant's theft of more than $600,000 as the operator of a Ponzi scheme, although the trial court did not err in failing to merge the defendant's convictions for theft by conversion and theft by deception into the defendant's convictions for theft by taking, because theft by taking proscribed certain criminal conduct generally, while theft by conversion and theft by deception were specific crimes, the defendant's convictions for theft by taking merged into the defendant's convictions for theft by conversion and theft by deception; thus, the defendant's sentences for theft by taking were vacated, and the case was remanded to the trial court for resentencing. Mathis v. State, 343 Ga. App. 206 , 807 S.E.2d 4 (2017), cert. dismissed, No. S18C0491, 2018 Ga. LEXIS 316 (Ga. 2018).
Crimes not of same nature, class, or species. - Charges of burglary, criminal attempt to steal motor vehicle and possession of firearm during commission of crime were not of same nature, class, or species under former Code 1933, § 26-506. Fair v. State, 129 Ga. App. 565 , 200 S.E.2d 296 (1973).
Successive prosecution for financial identity fraud. - Trial court correctly rejected the defendant's plea in bar and denied defendant's motion in autrefois convict because the defendant did not show that defendant's prosecution for two counts of financial identity fraud under O.C.G.A. § 16-9-121 was barred as an impermissible successive prosecution for the same conduct in another county by defendant's earlier conviction in that county of 33 counts of financial identity fraud. Summers v. State, 263 Ga. App. 338 , 587 S.E.2d 768 (2003).
Robbery by intimidation and theft by taking. - Defendant's convictions for robbery by intimidation and theft by taking did not violate the defendant's double jeopardy rights because the defendant obtained the money by intimidation when the defendant threatened to stab the victim, whereas the defendant obtained the victim's car without the use of intimidation. Southwell v. State, 320 Ga. App. 763 , 740 S.E.2d 725 (2013).
4. Application to Other Crimes
Possession of firearm during felony. - O.C.G.A. § 16-1-7(a) , the statutory double jeopardy provision, is superseded by the provision in O.C.G.A. § 16-11-106 that offense of possession of a firearm during commission of a felony "shall be considered a separate offense." Miller v. State, 250 Ga. 436 , 298 S.E.2d 509 (1983).
Offense of possession of a firearm during the commission of a felony does not merge into the accompanying felony, i.e., armed robbery, so that the defendant can be convicted of both without statutory or constitutional prohibition. Brown v. State, 199 Ga. App. 773 , 406 S.E.2d 248 (1991).
Charge requiring evidence of prior felony. - It was proper under O.C.G.A. § 16-1-7 and former O.C.G.A. § 24-9-20 (see now O.C.G.A. § 24-5-506 ) to try a firearms possession charge, which requires evidence of a prior felony conviction, together with a marijuana and a burglary charge. State v. Santerfeit, 163 Ga. App. 627 , 295 S.E.2d 756 (1982).
When the defendant, who was arrested for speeding and driving under the influence, sought to dispose of the speeding charge by paying a fine of $99.00 to the clerk of the probate court, the defendant was not subjected to any former "prosecution" within the meaning of O.C.G.A. §§ 16-1-7 and 16-1-8(b) , and the trial court did not err in denying defendant's plea in bar to the charge of driving under the influence. Collins v. State, 177 Ga. App. 758 , 341 S.E.2d 288 (1986).
Trial counsel was not ineffective as the defendant's guilty plea to speeding prior to the driving under the influence (DUI) of alcohol trial did not result in a conviction because the trial judge's oral announcement that the judge would accept the plea and would impose the sentence recommended by the state was not a judgment; and the trial judge did not enter the final written judgment of conviction and sentence on the guilty plea to speeding until after the DUI trial, at the same time and on the same order form as the judgment and sentence entered for the DUI offense; thus, the defendant was not subjected to any former prosecution, and the trial court would not have erred in denying the defendant's plea in bar. Hantz v. State, 337 Ga. App. 675 , 788 S.E.2d 567 (2016).
After defendant charged with traffic violations and disorderly conduct pled guilty to latter, trial court's denial of defendant's plea of former jeopardy to preclude prosecution for the traffic violations was not in error. The offense of disorderly conduct for which defendant was earlier tried did not arise from the same transaction as the five traffic offenses with which defendant was also charged, as they were completed at a different time and at different locations; therefore, prosecution for the traffic offenses did not constitute double jeopardy for defendant. Boyette v. State, 172 Ga. App. 683 , 324 S.E.2d 540 (1984).
DUI offense. - Driving under the influence (DUI) offense did not arise from the same transaction as other offenses of obstructing an officer, interfering with government property, and carrying a concealed weapon, where the conduct giving rise to the other offenses did not occur until after defendant had been arrested for DUI by one officer and placed in the custody of a different officer for transportation to the sheriff's office. Harrell v. State, 196 Ga. App. 101 , 395 S.E.2d 598 (1990).
Given that a charge of DUI served as the predicate act underlying a charge of serious injury by vehicle, thus constituting a lesser included crime of serious injury by vehicle, O.C.G.A. § 16-1-7(a) barred conviction of and punishment for both; hence, in light of this incongruence, defendant's DUI conviction and sentence, as well as the sentence for serious injury by vehicle, were vacated. Hannah v. State, 280 Ga. App. 230 , 633 S.E.2d 800 (2006).
Prosecutions for DUI and possession of cocaine. - After the defendant was first charged with driving under the influence and later charged with possession of cocaine, together with the passenger in the vehicle, as a codefendant, the court would reject the contention that the assistant solicitor who handled the defendant's plea proceeding with regard to the first charge was the prosecuting officer "actually handling the proceedings" and that, since this attorney did not review the file before taking the plea, it could not be said that the "prosecuting officer actually handling the case" had actual knowledge of the alleged drug violation. Hill v. State, 234 Ga. App. 173 , 507 S.E.2d 3 (1998).
Speeding in both city and county as one transaction. - When a city policeman began chasing defendant's speeding vehicle within the city limits, and a county police officer joined in the chase after the defendant left the incorporated area and entered the county, all of the offenses charged by both officers arose out of one course of conduct, i.e., there was only one transaction. Anderson v. State, 200 Ga. App. 530 , 408 S.E.2d 829 (1991).
Offenses under uniform traffic citation. - Because a uniform traffic citation was deliberately withheld from filing, and the state did not authorize or participate in the prosecution of the case, the probate court lacked authority to accept defendant's plea to the proposed charge and impose a fine, making its resulting judgment void; hence, the trial court did not err in denying defendant's plea in bar based on double jeopardy, since the probate court's void judgment could not serve as the basis for barring the subsequent indictment and prosecution of defendant in the superior court. Roberts v. State, 280 Ga. App. 672 , 634 S.E.2d 790 (2006).
Denial of plea of former jeopardy held error. - After the defendant was charged with driving with a suspended license and three counts of violation of the controlled substances act, the trial court's denial of the defendant's plea of former jeopardy to preclude prosecution for controlled substances act violations was in error since the offense of driving without a license to which the defendant pled guilty arose out of the same transaction and all offenses were known to the prosecutor at the outset. Smith v. State, 190 Ga. App. 246 , 378 S.E.2d 493 , aff'd, 259 Ga. 352 , 381 S.E.2d 37 (1989).
Rape and child molestation. - An accused may be prosecuted for both rape and child molestation based on the same conduct, but he may not be convicted of both. Mackey v. State, 235 Ga. App. 209 , 509 S.E.2d 68 (1998).
Statutory rape and child molestation. - Trial court properly denied the defendant's motion to dismiss charges alleging statutory rape and child molestation on jeopardy grounds as double jeopardy did not preclude the state from prosecuting defendant for both offenses, although the same conduct formed the basis for both charges. Moreover, because no corroboration was required for child molestation, the jury logically could have found, and in fact did find, the defendant guilty of molesting the victim by having sex with that victim, despite the jury's not guilty verdict on statutory rape. Maynard v. State, 290 Ga. App. 403 , 659 S.E.2d 831 (2008).
Possession with intent to distribute and sale of cocaine. - When the defendant was found guilty of possession with intent to distribute cocaine and, in a second trial, convicted of the sale of cocaine, the second trial violated procedural double jeopardy since the defendant was under continuous observation from the time of defendant's sale of cocaine through defendant's journey to a convenience store since the defendant was arrested and found to be in possession of more of the same type of drugs. Morgan v. State, 220 Ga. App. 198 , 469 S.E.2d 340 (1996).
Charges of conspiracy to import marijuana and trafficking in marijuana could be joined for trial, over objection, since the charges arose from the same conduct. Bridges v. State, 195 Ga. App. 851 , 395 S.E.2d 30 (1990).
False swearing and malicious prosecution. - Defendant's convictions for false swearing under O.C.G.A. § 16-10-71 , proven by evidence that defendant made false statements in an affidavit seeking an involuntary commitment order for the victim, and malicious confinement under O.C.G.A. § 16-5-43 , supported by proof apart from the execution of the false affidavit, did not merge as a matter of fact. Washington v. State, 271 Ga. App. 764 , 610 S.E.2d 692 (2005).
Unauthorized offers to sell. - Because defendant's argument on appeal was a challenge to defendant's convictions for making 91 unauthorized offers to sell recorded material under O.C.G.A. § 16-8-60(b) , and because an O.C.G.A. § 16-1-7(a) motion to correct or modify an illegal sentence was not an appropriate remedy to attack a conviction in a criminal case, the defendant did not properly challenge the convictions; defendant's only recourse was through habeas corpus proceedings. Rogers v. State, 314 Ga. App. 398 , 724 S.E.2d 417 (2012).
Drug related offenses. - Trial court did not err in failing to merge the counts for attempt to manufacture methamphetamine and possession of ephedrine and pseudoephedrine because the jury could have found different conduct to support each offense; the jury could have found that the defendant assembled methamphetamine ingredients with intent to manufacture and that the defendant possessed some part of those ingredients after altering the ingredients. Taylor v. State, 320 Ga. App. 596 , 740 S.E.2d 327 (2013).
Because the defendant's convictions for attempt to sell oxycodone and possession with intent to distribute each required proof of a fact which the other did not, the trial court did not err in not merging the offenses and in sentencing the defendant on both. Crankshaw v. State, 336 Ga. App. 700 , 786 S.E.2d 245 (2016).
Misdemeanor and felony offenses not arising from same conduct. - Trial court properly denied the defendant's plea in bar based on double jeopardy as the misdemeanor offenses of criminal trespass, open container, and concealed weapon charges and the felony-related offenses of rape, aggravated sodomy, and making a false statement during the sexual assault investigation did not arise from the same conduct because, although the offenses occurred on the same date and close in time, the offenses took place in different locations as the rape and aggravated sodomy occurred inside the victim's apartment and the misdemeanor offenses occurred outside a separate building in the apartment complex and the state could establish each set of offenses without proving the other. Jackson v. State, 336 Ga. App. 140 , 784 S.E.2d 7 (2016).
Severance
1. In General
Criteria for severance apply in capital cases. - Criteria for severance of offenses are the same in cases in which the death penalty is sought as in other cases. Terry v. State, 259 Ga. 165 , 377 S.E.2d 837 (1989).
When joinder is based on similarity of offenses, defendant is entitled to severance. - Whenever two or more offenses have been joined for trial solely on the ground that the offenses are of the same or similar character, the defendant shall have the right under O.C.G.A. § 16-1-7(c) to severance of the offenses. Gober v. State, 247 Ga. 652 , 278 S.E.2d 386 (1981); Davis v. State, 159 Ga. App. 356 , 283 S.E.2d 286 (1981); Cooper v. State, 253 Ga. 736 , 325 S.E.2d 137 (1985).
When severance is discretionary. - Severance of charges of several crimes arising from same conduct under former Code 1933, § 26-506(c) lies within sound discretion of trial judge since facts in each case are likely to be unique. Dingler v. State, 233 Ga. 462 , 211 S.E.2d 752 (1975).
When the offenses are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance lies within the discretion of the trial court since the facts in each case are likely to be unique. Bailey v. State, 157 Ga. App. 222 , 276 S.E.2d 843 (1981).
When the offenses are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, the court in interests of justice may order that one or more of such charges be tried separately. Gober v. State, 247 Ga. 652 , 278 S.E.2d 386 (1981).
When there is a valid reason for joinder other than similarity of the offense, severance becomes discretionary with the trial court. Davis v. State, 159 Ga. App. 356 , 283 S.E.2d 286 (1981).
When the joinder is based upon the same conduct or on a series of acts connected together, severance lies within the sound discretion of the trial judge. Fluker v. State, 174 Ga. App. 890 , 332 S.E.2d 34 (1985).
When the joinder is based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance lies within the discretion of the trial judge. Smith v. State, 199 Ga. App. 410 , 405 S.E.2d 107 (1991).
Complexity of evidence as affecting severance. - When each offense charged is connected to other crimes as part of a larger scheme and evidence presented is not of such complexity as to hinder the jury from applying the law intelligently to each offense, severance is a matter of discretion with the court. Guthrie v. State, 147 Ga. App. 351 , 248 S.E.2d 714 (1978).
When all three alleged offenses are part of the same conduct within the meaning of that term as used in O.C.G.A. § 16-1-7 and evidence is not of such complexity as to hinder the jury from being able to apply the law of the case intelligently to each alleged offense, the trial court does not abuse the court's discretion in denying defendant's motion to sever. Gober v. State, 247 Ga. 652 , 278 S.E.2d 386 (1981).
Ability to distinguish evidence as factor. - When the crimes joined are not of a similar kind, on a motion to sever one charge the court should consider whether, in light of the number of offenses charged and the complexity of the evidence, the fact-trier will be able to distinguish the evidence and apply the law intelligently to each offense. Smith v. State, 186 Ga. App. 303 , 367 S.E.2d 573 (1988).
Balancing interests of accused with those of state. - Former Code 1933, § 26-506(c) showed that on question of severance trial court should have discretion and that interests of accused are to be balanced with interests of state. Jarrell v. State, 234 Ga. 410 , 216 S.E.2d 258 (1975).
Severance made in interest of justice involves balancing of interests of accused with interests of state. Fowler v. State, 155 Ga. App. 76 , 270 S.E.2d 297 (1980).
Interests of justice to be considered. - Only test under former Code 1933, § 26-506(c) was whether the interests of justice will be served by separate trials. The judge may order charges tried separately but the judge was not required to do so, if in the judge's opinion, the interests of justice will not be served thereby. Henderson v. State, 227 Ga. 68 , 179 S.E.2d 76 (1970), sentence vacated, 408 U.S. 938, 92 S. Ct. 2868 , 33 L. Ed. 2 d 758 (1972); Slocum v. State, 230 Ga. 762 , 199 S.E.2d 202 (1973); Mathis v. State, 231 Ga. 401 , 202 S.E.2d 73 (1973).
Where same conduct of accused can establish more than one crime, judge may order charges tried separately but the judge is not required to do so if, in the judge's opinion, the interests of justice will not be served thereby. Pass v. State, 227 Ga. 730 , 182 S.E.2d 779 (1971).
"Interest of justice" criterion is discretionary with trial judge. Jarrell v. State, 234 Ga. 410 , 216 S.E.2d 258 (1975).
It is merely permissive for court to order separate trials in interest of justice. Henderson v. State, 227 Ga. 68 , 179 S.E.2d 76 (1970), sentence vacated, 408 U.S. 938, 92 S. Ct. 2868 , 33 L. Ed. 2 d 758 (1972).
Prejudice to defendant as factor. - Underlying consideration under former Code 1933, § 26-506(c) concerned the degree of prejudice which might result from joint disposition. Wilson v. State, 245 Ga. 49 , 262 S.E.2d 810 (1980).
Former Code 1933, § 26-506 did not require that motions to sever be in writing. Wigley v. State, 140 Ga. App. 145 , 230 S.E.2d 108 (1976).
2. Application
Facts justifying refusal of motion for severance. - Judge may refuse motion for severance of trial of multiple charges where crimes alleged were part of a continuous transaction conducted over a relatively short time, and from the nature of the entire transaction, it would be almost impossible to present to jury evidence of one of the crimes without also permitting evidence of the other. Stewart v. State, 239 Ga. 588 , 238 S.E.2d 540 (1977).
When all the offenses formed a series of acts closely connected in time, involving common witnesses and evidence, refusal to sever the offenses was not an abuse of discretion. Lane v. State, 210 Ga. App. 738 , 437 S.E.2d 479 (1993).
What constitutes single scheme or plan. - When separate crimes are committed in order to accomplish a single criminal purpose, the crimes are said to constitute parts of a single scheme or plan, even if the crimes are somewhat removed from one another in terms of time and place. Bailey v. State, 157 Ga. App. 222 , 276 S.E.2d 843 (1981).
Escape may, under certain circumstances, be one of a series of acts connected together and joined in a multi-count indictment. Carter v. State, 155 Ga. App. 840 , 273 S.E.2d 417 (1980).
Scheme encompassing burglary, motor vehicle theft and armed robbery. - When scheme and purpose to obtain narcotics which encompassed burglary, motor vehicle theft and armed robbery within span of a few hours is clearly shown by evidence, interests of justice would not be served by ordering separate trials. Goughf v. State, 232 Ga. 178 , 205 S.E.2d 844 (1974).
Robbery by force and robbery by sudden snatching. - Trial court did not err in denying defendant's motion to sever charges for robbery by force and robbery by sudden snatching. Smith v. State, 225 Ga. App. 738 , 484 S.E.2d 773 (1997).
When overruling of motion to sever is abuse of discretion. - When separate crimes do not arise out of same conduct, do not involve same victims or witnesses, and evidence of one would not be admissible on trial of the other, judgment of trial court overruling motion to sever is error constituting an abuse of discretion. Booker v. State, 231 Ga. 598 , 203 S.E.2d 194 (1974).
Trial court did not abuse discretion in denying motion to sever count alleging possession of a firearm by a convicted felon from counts alleging murder and aggravated assault. Pope v. State, 168 Ga. App. 846 , 310 S.E.2d 575 (1983).
When the defendant and others robbed and fatally shot the first victim, who was making a night deposit, then robbed a bartender at gunpoint a month later, it was not error to deny the defendant's motion for severance of the crimes; the crimes involved the same core group of participants committing armed robberies with similar characteristics over a short period of time. Simmons v. State, 282 Ga. 183 , 646 S.E.2d 55 (2007).
Severance of one count in indictment not allowed. - When codefendants A and B were charged with aggravated assault, armed robbery, and criminal damage to property and B was also charged with aggravated assault on B's spouse in the same indictment, a motion by A to sever the latter charge against B from the rest of the charges in the indictment was properly denied; A's rights in regard to that count were limited to a motion to sever A's trial under O.C.G.A. § 17-8-4 . Durden v. State, 219 Ga. App. 732 , 466 S.E.2d 641 (1995).
Failure to sever count not error. Boyd v. State, 168 Ga. App. 246 , 308 S.E.2d 626 (1983).
Trial court did not err in denying defendant's motion for severance of the counts alleging operation a motor vehicle after revocation of defendant's driver's license as an habitual violator and leaving the scene of an accident. Spradlin v. State, 174 Ga. App. 658 , 331 S.E.2d 50 (1985).
When the purpose of joinder was not to bolster any witness' credibility, but there was a rational connection shown by the evidence between the battery, terroristic threats, and damage to property on the one hand, and defendant's possession of marijuana on the other, the denial of the severance motion as to the marijuana charge was not an abuse of discretion. Smith v. State, 186 Ga. App. 303 , 367 S.E.2d 573 (1988).
Trial court properly denied a defendant's motion to sever two armed robbery charges; in both incidents, which occurred only three days apart, the defendant began a conversation with the victim at a public facility, took the victim's truck keys and held the keys until the victim gave the defendant money, and canvassed the victim's truck for other items to steal. Davis v. State, 287 Ga. App. 410 , 651 S.E.2d 518 (2007).
Failure of the trial court to exercise discretion on the issue of severance of charges of possession of a firearm during commission of a crime and the subject drug charge, and the absence of any waiver by defendant of double jeopardy violated defendant's procedural double jeopardy protections. Asberry v. State, 221 Ga. App. 809 , 472 S.E.2d 562 (1996).
3. Sentencing
Sentences for offenses not considered. - Statutes pertaining to lesser included offenses and multiple prosecutions for the same conduct do not purport to make any offense a greater offense, either as a matter of law or fact, solely because violation thereof mandates or otherwise results in the imposition of a greater sentence, or to make any offense a lesser included offense merely because a lesser sentence was statutorily authorized for its violation. Hancock v. State, 210 Ga. App. 528 , 437 S.E.2d 610 (1993).
Suspension of a driver's license at an administrative hearing is not punishment, nor is the hearing a prosecution, for the purposes of double jeopardy. Martinez v. State, 221 Ga. App. 483 , 471 S.E.2d 551 (1996).
Defendant's obligation to object to sentencing. - It is incumbent upon a defendant to make an objection at sentencing or to make a proper motion at sentencing if sentenced in violation of O.C.G.A. § 16-1-7 . Jackson v. State, 254 Ga. App. 562 , 562 S.E.2d 847 (2002).
Sentences for both aggravated assault and rape did not violate the defendant's protection against double jeopardy, where even if defendant had departed from the victim's apartment prior to the forcible sexual penetration of her, he still would have been guilty of the aggravated assault, because he had pointed a pistol at the victim through the window and held it while he led her from room to room before the rape. Taylor v. State, 177 Ga. App. 624 , 340 S.E.2d 263 (1986).
No merger of underlying felony into vacated conviction. - Underlying felony does not merge as a matter of law into vacated felony murder conviction so that the trial court did not err given the extant malice murder conviction, in imposing separate sentences for aggravated assault and possession of a firearm. Malcolm v. State, 263 Ga. 369 , 434 S.E.2d 479 (1993).
When defendant was convicted of felony murder and vehicular homicide with the underlying offense of driving under the influence, and vehicular homicide was vacated as a matter of law, the underlying traffic offense did not merge into the felony murder, and defendant was properly sentenced for driving under the influence. Diamond v. State, 267 Ga. 249 , 477 S.E.2d 562 (1996).
Convictions merged for sentencing. - Georgia statutory law prohibited multiple sentences upon multiple convictions for the same conduct; thus, defendant's convictions for aggravated assault with intent to rob and possession of a firearm during the commission of that aggravated assault merged into the armed robbery conviction for sentencing purposes. Cutkelvin v. State, 258 Ga. App. 691 , 574 S.E.2d 883 (2002).
Harmless error in failure to merge. - Defendant's convictions for aggravated assault and aggravated battery should have been merged but the error was harmless because the defendant would still have been sentenced for aggravated battery. Lonon v. State, 348 Ga. App. 527 , 823 S.E.2d 842 (2019).
Sentencing on two lesser offenses without specifying which served as foundation. - Trial court erred in sentencing the defendant on the lesser offenses of reckless driving and driving under the influence, and also sentencing defendant on the greater offense of homicide by vehicle in the first degree, which included the lesser offenses. Had the jury revealed which of the lesser offenses served as the foundation for the homicide verdict, a sentence on the remaining lesser offense might have been appropriate, but as such information did not appear in the record, the defendant could not be sentenced for either of the lesser included offenses of violation of O.C.G.A. §§ 40-6-390 and 40-6-391 . McNabb v. State, 180 Ga. App. 723 , 350 S.E.2d 314 (1986).
Felony murder and aggravated assault sentence. - Defendant charged with two counts of felony murder consisting of underlying felonies involving aggravated assault and being a first offender probationer in possession of a firearm could not be sentenced on both felony murder convictions, as the act of killing a single victim meant that defendant could be sentenced on either count of felony murder but not both. Harris v. State, 274 Ga. 835 , 561 S.E.2d 73 (2002).
Felony murder and malice murder. - Defendant could not be sentenced for both malice and felony murder under O.C.G.A. § 16-1-7 ; accordingly, the separate judgment of conviction and sentence for felony murder had to be vacated. Nix v. State, 280 Ga. 141 , 625 S.E.2d 746 (2006).
Armed robbery and aggravated assault. - O.C.G.A. § 17-10-7(d) did not require the imposition of concurrent sentences for a defendant's convictions of armed robbery and aggravated assault. O.C.G.A. § 16-1-7 authorized separate sentences for the two crimes charged in the same prosecution because the crimes were not included offenses. Redden v. State, 294 Ga. App. 879 , 670 S.E.2d 552 (2008).
Separate sentences for drug trafficking offenses. - Trial court did not err under O.C.G.A. §§ 16-1-6(2) and 16-1-7(a)(1) by sentencing the defendant separately for trafficking in methamphetamine, in violation of O.C.G.A. § 16-13-31 , and trafficking in ecstasy, in violation of O.C.G.A. § 16-13-31 .1, when the substance which was found in the defendant's vehicle tested positive for both methamphetamine and ecstasy as there was no evidence that chemical compounds or elements were shared between the drugs. Ahmad v. State, 312 Ga. App. 703 , 719 S.E.2d 563 (2011).
Merger of offenses for sentencing proper. - Defendant was not improperly convicted of more than one offense arising from the same conduct when, at sentencing, those offenses were merged into one offense. Haugland v. State, 253 Ga. App. 423 , 560 S.E.2d 50 (2002).
Although the state used up its evidence to prove defendant's guilt on one count to prove another, causing the offenses to merge as a matter of fact, any error in sentencing was harmless, because defendant received no separate sentence. Mitchell v. State, 255 Ga. App. 585 , 565 S.E.2d 889 (2002).
Only one sentence when only one victim. - Trial court erred in sentencing the defendant to separate terms of life imprisonment for malice murder and felony murder since there was only one victim. Ward v. State, 292 Ga. 637 , 740 S.E.2d 112 (2013).
Although the prescriptions that the defendant picked up on one occasion were purportedly for two different patients, the defendant's single act of going to the pharmacy to pick up the prescriptions on that date was the same conduct for the purpose of deciding whether the offenses merged; thus, Counts 1 and 2 of obtaining a controlled substance by fraud merged, and the trial court erred in imposing separate sentences as to those counts. Hopkins v. State, 328 Ga. App. 844 , 761 S.E.2d 896 (2014).
State required to make election when charging defendant with multiple counts of same crime. - Trial court erred in sentencing the defendant on two additional counts of incest because the acts alleged in Counts 5 and 6 were the same and both counts averred the exact dates of the offenses; thus, the state was required to make an election when the state charged the defendant with multiple counts of the same crime. Jones v. State, 333 Ga. App. 796 , 777 S.E.2d 480 (2015).
OPINIONS OF THE ATTORNEY GENERAL
Separate prosecutions for municipal and state law prosecutions. - An accused arrested for separate non-included offenses arising out of a single transaction, which violate municipal ordinances and state law respectively, may be prosecuted first in the recorder's court for the municipal ordinance violations, and then transferred to the superior court to be prosecuted for the separate state violations, without violating statutory or constitutional double jeopardy prohibitions. 1986 Op. Att'y Gen. No. U86-32.
RESEARCH REFERENCES
Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, § 269 et seq.
C.J.S. - 22 C.J.S., Criminal Law: Substantive Principles, § 12 et seq. 22A C.J.S. Criminal Procedure and Rights of the Accused, 656 et seq., 666 et seq.
ALR. - Conviction or acquittal of larceny as bar to prosecution for burglary, 19 A.L.R. 626 .
Pendency in one county of charge of larceny as bar to subsequent charge in another county of offense which involves both felonious breaking and felonious taking of same property, 19 A.L.R. 636 .
Conviction or acquittal upon charge of murder of, or assault upon, one person as bar to prosecution for like offense against another person at the same time, 20 A.L.R. 341 ; 113 A.L.R. 222 .
Forgery of names of several individuals to the same instrument as more than one offense, 33 A.L.R. 562 .
Acquittal or conviction of one offense in connection with operation of automobile as bar to prosecution for another, 44 A.L.R. 564 ; 172 A.L.R. 1053 .
Continuous transaction constituting a complete offense in each county or district as constituting more than one offense, 73 A.L.R. 1511 .
Acquittal or conviction of assault and battery as bar to prosecution for rape, or assault with intent to commit rape, based on same transaction, 78 A.L.R. 1213 .
Prosecution for robbery of one person as bar to subsequent prosecution for robbery of another person committed at the same time, 51 A.L.R.3d 693.
Single act affecting multiple victims as constituting multiple assaults or homicides, 8 A.L.R.4th 960.
Double jeopardy: various acts of weapons violations as separate or continuing offense, 80 A.L.R.4th 631.
Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts - Modern view, 97 A.L.R.5th 201.
What constitutes accused's consent to court's discharge of jury or to grant of motion for mistrial which will constitute waiver of former jeopardy plea - silence or failure to object or protest, 103 A.L.R.6th 137.
16-1-8. When prosecution barred by former prosecution.
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A prosecution is barred if the accused was formerly prosecuted for the same crime based upon the same material facts, if such former prosecution:
- Resulted in either a conviction or an acquittal; or
- Was terminated improperly after the jury was impaneled and sworn or, in a trial before a court without a jury, after the first witness was sworn but before findings were rendered by the trier of facts or after a plea of guilty was accepted by the court.
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A prosecution is barred if the accused was formerly prosecuted for a different crime or for the same crime based upon different facts, if such former prosecution:
- Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime of which the accused could have been convicted on the former prosecution, is for a crime with which the accused should have been charged on the former prosecution (unless the court ordered a separate trial of such charge), or is for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required on the other prosecution or unless the crime was not consummated when the former trial began; or
- Was terminated improperly and the subsequent prosecution is for a crime of which the accused could have been convicted if the former prosecution had not been terminated improperly.
- A prosecution is barred if the accused was formerly prosecuted in a district court of the United States for a crime which is within the concurrent jurisdiction of this state if such former prosecution resulted in either a conviction or an acquittal and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution or unless the crime was not consummated when the former trial began.
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A prosecution is not barred within the meaning of this Code section if:
- The former prosecution was before a court which lacked jurisdiction over the accused or the crime; or
- Subsequent proceedings resulted in the invalidation, setting aside, reversal, or vacating of the conviction, unless the accused was thereby adjudged not guilty or unless there was a finding that the evidence did not authorize the verdict.
-
Termination under any of the following circumstances is not improper:
- The accused consents to the termination or waives by motion to dismiss or other affirmative action his right to object to the termination; or
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The trial court finds that the termination is necessary because:
- It is physically impossible to proceed with the trial;
- Prejudicial conduct in or out of the courtroom makes it impossible to proceed with the trial without injustice to the defendant;
- The jury is unable to agree upon a verdict; or
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False statements of a juror on voir dire prevent a fair trial.
(Code 1933, § 26-507, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1982, p. 3, § 16.)
Cross references. - Multiple jeopardy, U.S. Const., amend. 5 and Ga. Const. 1983, Art. I, Sec. I, Para. XVIII.
Law reviews. - For survey article on criminal law and procedure for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 117 (2003). For comment, "Grady v. Corbin: An Unsuccessful Effort to Define Same Offense," see 25 Ga. L. Rev. 143 (1990).
JUDICIAL DECISIONS
ANALYSIS
- General Consideration
- Offenses Arising from Same Conduct
- Motion to dismiss.
- Reversal of Conviction for Insufficient Evidence
- Retrial
- Jurisdictional Issues
- Application Generally
General Consideration
Constitutionality of subsection (c). - Statutes such as former Code 1933, § 26-507(c) (see now O.C.G.A. § 16-1-8(c) ) can be enacted by the General Assembly without contravening Ga. Const. 1976, Art. VI, Sec. IV, Para. I (see now Ga. Const. 1983, Art. VI, Sec. IV, Para. I), which endowed the superior courts with exclusive jurisdiction over trial of capital felonies. Dorsey v. State, 237 Ga. 876 , 230 S.E.2d 307 (1976).
History of section. - See Marchman v. State, 132 Ga. App. 677 , 209 S.E.2d 88 (1974).
Rationale behind bar to successive prosecutions is to prevent harassment of accused. State v. White, 145 Ga. App. 730 , 244 S.E.2d 579 (1978).
First policy underlying double jeopardy bar is to prevent harassment of accused by successive prosecutions or threat of successive prosecutions. State v. Estevez, 232 Ga. 316 , 206 S.E.2d 475 (1974), overruled on other grounds Drinkard v. Walker, 281 Ga. 211 , 636 S.E.2d 530 (2006); Marchman v. State, 234 Ga. 40 , 215 S.E.2d 467 (1975).
Former Code 1933, § 26-507 prevents accused from being unduly harassed or threatened by successive criminal prosecutions. Dorsey v. State, 237 Ga. 876 , 230 S.E.2d 307 (1976).
Construed with federal and state constitutions. - Former Code 1933, § 26-507 comports with dimensions of double jeopardy clause of federal and state Constitutions. Jones v. State, 232 Ga. 324 , 206 S.E.2d 481 (1974).
Former 1968 Criminal Code extended double jeopardy proscription beyond those contained in the United States and Georgia Constitutions. Marchman v. State, 234 Ga. 40 , 215 S.E.2d 467 (1974).
Double jeopardy questions are controlled by O.C.G.A. §§ 16-1-6 , 16-1-7 , and 16-1-8 . - Former 1968 Criminal Code (see now O.C.G.A. T. 16) extended proscription of double jeopardy beyond that provided for in the United States and Georgia Constitutions. Therefore, questions of double jeopardy in Georgia must now be determined under proscriptions combined in former Code 1933, §§ 26-505 through 26-507 (see now O.C.G.A. §§ 16-1-6 through 16-1-8 ). State v. Warren, 133 Ga. App. 793 , 213 S.E.2d 53 (1975).
Former Code 1933, §§ 26-505 through 26-507 (see now O.C.G.A. §§ 16-1-6 through 16-1-8 ) provided an expanded statutory test for determining double jeopardy questions, thereby rendering inapplicable previous Georgia decisions applying only minimum constitutional standards of double jeopardy. Stephens v. Hopper, 241 Ga. 596 , 247 S.E.2d 92 , cert. denied, 439 U.S. 991, 99 S. Ct. 593 , 58 L. Ed. 2 d 667 (1978).
Questions of double jeopardy in Georgia must be determined under the expanded statutory proscriptions found in O.C.G.A. §§ 16-1-6 , 16-1-7 , and 16-1-8 , which place limitations upon multiple prosecutions, convictions, and punishments for the same criminal conduct. Stone v. State, 166 Ga. App. 245 , 304 S.E.2d 94 (1983).
Jeopardy did not attach because there was no adjudication of guilt. - Because the defendant's alleged mistake of fact regarding a charge of possession of a firearm by a convicted felon required consideration of facts extrinsic to the accusation to be decided by a jury, the trial court erred in dismissing the charge, sua sponte; moreover, as such dismissal was not an adjudication of guilt, the state could appeal from the same without violating the defendant's double jeopardy rights. State v. Henderson, 283 Ga. App. 111 , 640 S.E.2d 686 (2006).
Former Code 1933, §§ 26-505 through 26-507 (see now O.C.G.A. §§ 16-1-6 through 16-1-8 ) distinguish between two aspects of double jeopardy: first, limitations upon multiple prosecutions for crimes arising from same conduct, referred to as procedural bar of double jeopardy; and, second, limitations upon multiple convictions or punishments that may be imposed for such crimes, referred to as substantive bar of double jeopardy. Stephens v. Hopper, 241 Ga. 596 , 247 S.E.2d 92 , cert. denied, 439 U.S. 991, 99 S. Ct. 593 , 58 L. Ed. 2 d 667 (1978).
Former Code 1933, § 26-507 was a procedural statute as distinguished from a jurisdictional statute. Dorsey v. State, 237 Ga. 876 , 230 S.E.2d 307 (1976).
"Previous prosecution" construed. - To constitute a "previous prosecution" within the meaning of O.C.G.A. §§ 16-1-7(b) and 16-1-8(b) , the defendant previously must have been "placed in jeopardy" as to at least one of the offenses arising out of the same conduct as the offense for which the state is subsequently attempting to prosecute the defendant. State v. Smith, 185 Ga. App. 694 , 365 S.E.2d 846 (1988).
When defendant is placed in jeopardy. - Defendant is placed in jeopardy when, in a court of competent jurisdiction with a sufficient indictment, defendant has been arraigned, has pled and a jury has been impaneled and sworn. Turner v. State, 152 Ga. App. 354 , 262 S.E.2d 618 (1979).
Plea of guilty on an indictment or complaint with the plea's entry on the record and acceptance by the trial judge constitutes jeopardy for purposes of O.C.G.A. §§ 16-1-7(b) and 16-1-8(b) . State v. Smith, 185 Ga. App. 694 , 365 S.E.2d 846 (1988).
Double jeopardy was violated when the trial court improperly terminated defendant's first trial after the first witness was sworn and by resetting the trial before a different judge. Puplampu v. State, 257 Ga. App. 5 , 570 S.E.2d 83 (2002).
No jeopardy if trial had not commenced. - When the transcript in superior court on the plaintiff's plea in bar indicated that the probate judge who presided over the initial proceeding was hearing motions when the witnesses were sworn, rather than commencing trial, the superior court did not err in finding that the trial never commenced, and jeopardy had not attached. Henderson v. State, 236 Ga. App. 72 , 510 S.E.2d 879 (1999).
Based on testimony provided by a court reporter that a jury was never sworn prior to the day the defendant's trial started, jeopardy never attached. Hall v. State, 282 Ga. App. 562 , 639 S.E.2d 341 (2006).
Because jury was never administered oath, the jury's verdict acquitting the defendant of malice murder but convicting him of other charges was a nullity and defendant's double jeopardy plea on the malice murder charge was properly denied. Spencer v. State, 281 Ga. 533 , 640 S.E.2d 267 , cert. denied, 551 U.S. 1103, 127 S. Ct. 2914 , 168 L. Ed. 2 d 243 (2007).
"Postponement" construed. - Postponement, like a continuance, is not a "termination" of the proceedings within the meaning of O.C.G.A. § 16-1-8(a) if the trial is resumed before the same jury. Knight v. State, 197 Ga. App. 250 , 398 S.E.2d 202 (1990).
Procedural double jeopardy prevents successive prosecutions for the same offense; it does not prevent prosecutions for offenses which are separate and similar to a prior prosecuted offense. Loden v. State, 199 Ga. App. 683 , 406 S.E.2d 103 (1991).
Procedural aspect of the double jeopardy rule prohibits multiple prosecutions arising from the same conduct. Teal v. State, 203 Ga. App. 440 , 417 S.E.2d 666 , cert. denied, 203 Ga. App. 908 , 417 S.E.2d 666 (1992).
Defendant's federal prosecution was not a bar to defendant's state prosecution since the defendant's federal convictions required proof that the defendant had counterfeited currency, but that proof was not required in the state charges of trafficking in cocaine and possession of cocaine with intent to distribute. McAlister v. State, 236 Ga. App. 609 , 512 S.E.2d 53 (1999).
Prosecution permitted after guilty plea in federal action. - Georgia's statutory law governing successive prosecutions for crimes that violate both state and federal law did not prohibit the State of Georgia from prosecuting the defendant for trafficking in methamphetamine after the defendant, who was also indicted in federal court on crimes stemming from the same set of facts, reached a plea agreement in federal court pursuant to which the defendant pled guilty to a weapons charge in exchange for the dismissal of the pending drug charges. State v. Adams, Ga. App. , 846 S.E.2d 148 (2020).
No double jeopardy if federal offenses required proof of fact state offenses did not. - Because the federal offense of theft of medical services required proof of a fact not required by the four state offenses, malice murder, felony murder, practicing medicine without a license and aggravated battery, and the four state offenses each required proof of a fact that the federal offense did not, the state's prosecution of the defendant for the state offenses for which the defendant was indicted was not barred. Roberts v. State, Ga. , S.E.2d (Aug. 24, 2020).
Each ground for bar sufficient. - O.C.G.A. § 16-1-8(b)(1) provides three distinct grounds for barring a subsequent prosecution where the former prosecution resulted in a conviction or acquittal, and any of the three is sufficient to establish the bar. McCannon v. State, 252 Ga. 515 , 315 S.E.2d 413 (1984).
Multiple accusations and indictments not barred. - Trial court properly rejected the defendant's argument that the state was collaterally estopped from pursuing the robbery charges as the court found that the alleged armed robbery was completed before the vehicle was taken and the defendant presented no evidence that the robbery charges were known to the prosecuting attorney when the earlier prosecution for theft by receiving the vehicle was brought. Holt v. State, 339 Ga. App. 230 , 793 S.E.2d 516 (2016).
Trial on subsequent indictment not barred by earlier indictments without trial. - Since the jury was never impaneled and sworn to hear the trial of defendant on the original accusation, defendant was never placed in jeopardy as to that accusation, and the defendant did not face a repeated prosecution simply because the defendant was to be tried on a subsequent indictment. Cochran v. State, 176 Ga. App. 58 , 335 S.E.2d 165 (1985).
Pendency of a prior indictment for the same offense based on the same facts for which the defendant was arraigned on and entered a plea did not place the defendant in jeopardy, and the defendant did not face a repeated prosecution simply because of being tried on a subsequent indictment. Hubbard v. State, 225 Ga. App. 154 , 483 S.E.2d 115 (1997).
Jeopardy did not attach to court proceedings which occurred before a proper accusation was filed. Roberts v. State, 171 Ga. App. 131 , 319 S.E.2d 42 (1984).
Suspension of a driver's license at an administrative hearing was not punishment, nor was the hearing a prosecution for the purposes of double jeopardy, thus, a subsequent criminal prosecution for driving under the influence was not barred. Nolen v. State, 218 Ga. App. 819 , 463 S.E.2d 504 (1995), cert. denied, 518 U.S. 1018, 116 S. Ct. 2550 , 135 L. Ed. 2 d 1070 (1996); Martinez v. State, 221 Ga. App. 483 , 471 S.E.2d 551 (1996).
Payment of the fee required for reinstatement of a driver's license after it was suspended following an arrest for driving under the influence was not punishment and did not bar a subsequent prosecution for driving under the influence. Thompson v. State, 229 Ga. App. 526 , 494 S.E.2d 306 (1997); Morgan v. State, 229 Ga. App. 861 , 495 S.E.2d 138 (1998).
Violation of plea agreement. - Defendant relinquished defendant's double jeopardy rights when defendant failed to testify truthfully at the trial of defendant's codefendant per the negotiated plea agreement. A defendant can not use the double jeopardy clause to shield defendant from the consequences of failure to live up to an agreement with the prosecutor. Brown v. State, 261 Ga. App. 115 , 582 S.E.2d 13 (2003).
Waiver of double jeopardy defense. - Although the procedural bar against double jeopardy can be waived by failure to assert it in writing prior to trial, the failure to file a written plea of former jeopardy prior to trial will not defeat an accused's right to be free of multiple convictions for the criminal act. McClure v. State, 179 Ga. App. 245 , 345 S.E.2d 922 (1986).
Waiver of right to plead former jeopardy. - When the defendant failed to assert a plea of former jeopardy before the defendant's case was called for retrial, the defendant waived the right to such plea based on any abuse of discretion in declaring a mistrial at the first trial. Ramirez v. State, 217 Ga. App. 120 , 456 S.E.2d 657 (1995).
Abandonment of statutory double jeopardy protections meant constitutional protections only remained. - Defendant raised the state constitutional provision and O.C.G.A. §§ 16-1-7 and 16-1-8 in the defendant's plea of former jeopardy; however, the defendant expressly abandoned the statutory grounds at the hearing. By choosing that procedure, defendant actually relied upon the minimum constitutional protections against double jeopardy and chose to forego the additional protections provided by Georgia statutory law; thus, the trial court erred in applying Georgia statutory law in the instant case. Garrett v. State, 306 Ga. App. 429 , 702 S.E.2d 470 (2010).
When the first jury hung, additional charges may not be brought as penalty. - When the first trial results in a hung jury, the defendant is not to be penalized for the state's failure to obtain a conviction by the addition of new charges at the second trial. Curry v. State, 248 Ga. 183 , 281 S.E.2d 604 (1981).
Juvenile proceedings. - While the constitutional protections against double jeopardy apply to juvenile proceedings, the additional and expanded statutory protections afforded by O.C.G.A. § 16-1-8(a)(2) do not rise to the level of "those common law jurisprudential principles which experience and reason have shown are necessary to give the accused the essence of a fair trial." In re S.L.H., 205 Ga. App. 278 , 422 S.E.2d 43 , cert. denied, 205 Ga. App. 900 , 422 S.E.2d 43 (1992).
Effect of failure to prosecute. - While O.C.G.A. § 16-1-7(b) requires prosecution of a crime and that crime is not prosecuted, subsequent prosecution is barred because that crime is one "with which the accused should have been charged on the former prosecution" under O.C.G.A. § 16-1-8(1)(b) . McCannon v. State, 252 Ga. 515 , 315 S.E.2d 413 (1984).
Superseding indictment. - When a defendant was originally indicted under O.C.G.A. § 16-8-60(a) , but was later indicted under § 16-8-60(b) instead, the superseding indictment did not subject the defendant to double jeopardy; no jeopardy ever attached to the first indictment on which the trial court entered an order of nolle prosequi. Hayward-El v. State, 284 Ga. App. 125 , 643 S.E.2d 242 (2007).
Refiling appropriate where action was dismissed without prejudice. - When the trial court's dismissal for "want of prosecution" was without prejudice, the state's refiling of the accusation was appropriate. State v. Roca, 203 Ga. App. 267 , 416 S.E.2d 836 (1992).
Forfeiture proceedings not a bar to prosecution. - Double jeopardy did not attach to bar prosecution of defendant on state drug charges following federal civil forfeiture proceedings because defendant's failure to contest the forfeiture meant defendant was not placed in jeopardy in those proceedings and, also, Georgia's constitutional and statutory provisions did not bar the prosecution because they apply only to criminal proceedings, not civil proceedings. Waye v. State, 219 Ga. App. 22 , 464 S.E.2d 19 (1995).
Civil forfeiture proceeding in a drug case was not a criminal prosecution for purposes of double jeopardy. Murphy v. State, 219 Ga. App. 474 , 465 S.E.2d 497 (1995), aff'd, 267 Ga. 120 , 475 S.E.2d 907 (1996).
Civil federal forfeiture action was neither punishment nor criminal for purposes of the double jeopardy clause. Battista v. State, 223 Ga. App. 369 , 477 S.E.2d 665 (1996).
Motion to suppress heard after jury is impaneled and sworn. - In defendant's motion to suppress, which defendant insisted on raising at trial and failed to ask for a hearing before trial, although the state would have been wise not to suggest impaneling and swearing the jury beforehand, defendant readily consented to this arrangement, thus defendant's contention that the state had no right to this appeal because the motion to suppress was heard after the jury was impaneled and sworn is incorrect. State v. Smalls, 203 Ga. App. 283 , 416 S.E.2d 531 (1992).
Effect of trial court's lack of jurisdiction after jury has begun deliberations. - In a prosecution for shoplifting and while the jury was deliberating, the state court trial judge was informed that defendant had three prior convictions for shoplifting and dismissed the case for lack of jurisdiction; thus, the trial was a nullity and double jeopardy would not prevent a retrial. State v. Sterling, 244 Ga. App. 328 , 535 S.E.2d 329 (2000).
Double jeopardy plea denied where defendant impliedly consented to grant of mistrial. - Although defense counsel had an opportunity to raise an objection after the court announced its intention to excuse the jurors and before the jurors were returned to the courtroom, counsel failed to do so; therefore, the trial court was authorized to find that defendant, through counsel, impliedly consented to the grant of a mistrial and the judge's plea of double jeopardy made during trial was properly denied. Howell v. State, 266 Ga. App. 480 , 597 S.E.2d 546 (2004).
Denial of the defendant's plea in bar on double jeopardy grounds was directly appealable. Etienne v. State, 298 Ga. App. 149 , 679 S.E.2d 375 (2009).
Trial court's refusal to permit the defendant to cross-examine the prosecutor at a hearing on the defendant's plea of double jeopardy amounted to legal error, as such not only amounted to a violation of the defendant's right to confrontation, but also foreclosed the opportunity for the defendant to prove whether the prosecutor intended to goad the defendant into moving for a mistrial. Wright v. State, 284 Ga. App. 169 , 643 S.E.2d 538 (2007).
Appealability. - Denial of the defendant's statutory double jeopardy claim against successive prosecution was directly appealable under the collateral order doctrine. Roberts v. State, Ga. , S.E.2d (Aug. 24, 2020).
Cited in Rowland v. State, 124 Ga. App. 494 , 184 S.E.2d 494 (1971); Jones v. Anderson, 404 F. Supp. 182 (S.D. Ga. 1974); Bennett v. State, 136 Ga. App. 806 , 222 S.E.2d 207 (1975); Parham v. State, 137 Ga. App. 498 , 224 S.E.2d 485 (1976); Daughtrey v. State, 138 Ga. App. 504 , 226 S.E.2d 773 (1976); Banks v. State, 237 Ga. 325 , 227 S.E.2d 380 (1976); Barner v. State, 139 Ga. App. 50 , 227 S.E.2d 874 (1976); Shaw v. State, 239 Ga. 690 , 238 S.E.2d 434 (1977); State v. Bolton, 144 Ga. App. 797 , 242 S.E.2d 378 (1978); State v. Gilder, 145 Ga. App. 731 , 245 S.E.2d 3 (1978); Barber v. State, 146 Ga. App. 523 , 246 S.E.2d 510 (1978); Ricketts v. Williams, 242 Ga. 303 , 248 S.E.2d 673 (1978); Morrow v. State, 147 Ga. App. 395 , 249 S.E.2d 110 (1978); Dowdy v. State, 148 Ga. App. 498 , 251 S.E.2d 571 (1978); State v. Gilmer, 154 Ga. App. 673 , 270 S.E.2d 25 (1980); Chatham v. State, 155 Ga. App. 154 , 270 S.E.2d 274 (1980); Horne v. State, 155 Ga. App. 851 , 273 S.E.2d 193 (1980); Pate v. State, 158 Ga. App. 395 , 280 S.E.2d 414 (1981); Godfrey v. State, 248 Ga. 616 , 284 S.E.2d 422 (1981); Waddell v. State, 160 Ga. App. 743 , 288 S.E.2d 90 (1981); State v. Abdi, 162 Ga. App. 20 , 288 S.E.2d 772 (1982); Buford v. State, 162 Ga. App. 498 , 291 S.E.2d 256 (1982); Bryant v. State, 163 Ga. App. 872 , 296 S.E.2d 168 (1982); Benford v. State, 164 Ga. App. 733 , 298 S.E.2d 39 (1982); Potts v. Zant, 575 F. Supp. 374 (N.D. Ga. 1983); Blount v. State, 169 Ga. App. 215 , 312 S.E.2d 197 (1983); Zolun v. State, 169 Ga. App. 707 , 314 S.E.2d 672 (1984); Welch v. State, 172 Ga. App. 476 , 323 S.E.2d 622 (1984); B.J.L. v. State, 173 Ga. App. 317 , 326 S.E.2d 519 (1985); Howard v. State, 173 Ga. App. 346 , 326 S.E.2d 546 (1985); State v. Martin, 173 Ga. App. 370 , 326 S.E.2d 558 (1985); McCrary v. State, 254 Ga. 282 , 329 S.E.2d 473 (1985); Waters v. State, 177 Ga. App. 374 , 339 S.E.2d 608 (1985); Lemon v. State, 177 Ga. App. 744 , 341 S.E.2d 236 (1986); Hogan v. State, 178 Ga. App. 534 , 343 S.E.2d 770 (1986); Clarington v. State, 178 Ga. App. 663 , 344 S.E.2d 485 (1986); State v. Whitlock, 179 Ga. App. 460 , 346 S.E.2d 896 (1986); Thomas v. State, 185 Ga. App. 500 , 364 S.E.2d 630 (1988); Williams v. State, 258 Ga. 305 , 369 S.E.2d 232 (1988); Price v. State, 187 Ga. App. 239 , 370 S.E.2d 6 (1988); Armfield v. State, 259 Ga. 43 , 376 S.E.2d 369 (1989); Alexander v. State, 192 Ga. App. 211 , 384 S.E.2d 436 (1989); Paquin v. Town of Tyrone, 261 Ga. 418 , 405 S.E.2d 497 (1991); Wilson v. State, 199 Ga. App. 900 , 406 S.E.2d 293 (1991); Moss v. State, 200 Ga. App. 253 , 407 S.E.2d 477 (1991); Merrill v. State, 201 Ga. App. 671 , 411 S.E.2d 750 (1991); Duncan v. State, 206 Ga. App. 407 , 425 S.E.2d 307 (1992); Moore v. State, 207 Ga. App. 673 , 428 S.E.2d 678 (1993); Jackett v. State, 209 Ga. App. 112 , 432 S.E.2d 586 (1993); Andrew v. State, 216 Ga. App. 819 , 456 S.E.2d 227 (1995); State v. Lane, 218 Ga. App. 126 , 460 S.E.2d 550 (1995); Bair v. State, 250 Ga. App. 226 , 551 S.E.2d 84 (2001); Lackes v. State, 274 Ga. 297 , 553 S.E.2d 582 (2001); State v. Heggs, 252 Ga. App. 865 , 558 S.E.2d 41 (2001); Tremelling v. State, 263 Ga. App. 418 , 587 S.E.2d 785 (2003); Usher v. State, 290 Ga. App. 710 , 659 S.E.2d 920 (2008); Evans v. State, 293 Ga. App. 371 , 667 S.E.2d 183 (2008); Strickland v. State, 300 Ga. App. 898 , 686 S.E.2d 486 (2009); Gibson v. State, 319 Ga. App. 627 , 737 S.E.2d 728 (2013); State v. Leatherwood, 326 Ga. App. 730 , 757 S.E.2d 434 (2014).
Offenses Arising from Same Conduct
Effect of guilty plea to some, but not all, of multiple offenses. - If defendant charged with multiple offenses arising from "same conduct" pleads guilty to certain of these offenses, the defendant may then raise a plea of bar against subsequent prosecutions arising from the same course of conduct where the state, through decision or default, has failed to prosecute all offenses together, provided that it was practicable to do so. State v. McCrary, 253 Ga. 747 , 325 S.E.2d 151 (1985).
Defendant was charged with speeding, driving under the influence of drugs, and endangering a child. Defendant pled nolo contendere to, and was sentenced on the speeding charge; therefore, the state was barred from prosecuting defendant for the other two charges which arose from the same conduct and of which the prosecutor had actual knowledge. Weaver v. State, 224 Ga. App. 243 , 480 S.E.2d 286 (1997).
Trial court erred in granting the defendant's plea in bar on the ground of procedural double jeopardy because the defendant failed to demonstrate actual knowledge of all the pending charges on the part of the proper prosecuting officer as the defendant did not establish the identity of the prosecuting officer, if any, at the defendant's guilty plea in recorder's court; the trial court's deputy clerk testified that no prosecutor was assigned to the traffic docket on which the defendant's expired tag charge was mistakenly entered; and the defendant did not establish that any prosecuting officer in the recorder's court was aware of all the pending charges. State v. Hill, 333 Ga. App. 785 , 777 S.E.2d 265 (2015).
Prior plea agreement with defendant barred reindictment. - Although the trial court correctly found that the defendant's subsequent prosecution for kidnapping in Fulton County was not barred on statutory double jeopardy grounds because there had been no conviction or acquittal in the former prosecution of that charge in Clayton County, the state was barred from reindicting the defendant based on the state's prior plea agreement with the defendant; thus, the defendant's plea in bar and motion to dismiss the Fulton County charges was improperly denied. Arnold v. State, 352 Ga. App. 777 , 835 S.E.2d 759 (2019).
Separate prosecutions for greater and included offenses. - O.C.G.A. § 16-1-8(b) governs cases in which the state brought separate prosecutions for a greater and included offense in violation of O.C.G.A. § 16-1-7(b) . State v. LeMay, 186 Ga. App. 146 , 367 S.E.2d 61 (1988).
Legal effect of severance. - Severance not equivalent to finding that crimes did not arise out of same transaction or occurrence. Lindsey v. State, 234 Ga. 874 , 218 S.E.2d 585 (1975).
Determining number of offenses when same act violates two statutes. - When same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one for purposes of the double jeopardy clause of the Fifth Amendment is whether each provision requires proof of a fact which the other does not. Brock v. State, 146 Ga. App. 78 , 245 S.E.2d 442 (1978).
State's option upon dismissal of one of several offenses arising from same course of action. - When more than one offense arises out of same course of action and at same time, upon being faced with dismissal of one offense, the state has the option of taking the appeal from action of the trial court while withholding prosecution of other offense or offenses pending outcome of appeal, or alternatively of proceeding with prosecution of remaining offense. Electing to proceed with remaining offense or offenses bars state from trying dismissed offense by virtue of doctrine of procedural double jeopardy. State v. Brittain, 147 Ga. App. 626 , 249 S.E.2d 679 (1978).
Bifurcated trial. - Defendant's double jeopardy rights were not barred by holding a bifurcated trial as requested and trying defendant first on a malice murder charge, and then in a separate, second phase on a felony murder charge, as the malice murder proceeding did not involve a former prosecution as required for attachment of double jeopardy principles; rather, the bifurcation of the trial meant the malice murder and felony murder charges were tried at separate phases of the same proceeding. Jones v. State, 276 Ga. 663 , 581 S.E.2d 546 (2003).
Multiple accusations and indictments. - Even assuming arguendo that the defendant's position that O.C.G.A. § 40-6-395 set out two distinct offenses, wilful failure to stop and fleeing and eluding a police officer, the defendant was tried, first in a bench trial and again on remand after an appeal, on an accusation charging the defendant with fleeing and eluding an officer and was found guilty and sentenced both times for fleeing and eluding; hence, because the defendant was not tried on the offense of wilful failure to stop, the defendant's contention that double jeopardy considerations prohibited a jury trial on that charge, was moot. Harbuck v. State, 280 Ga. 775 , 631 S.E.2d 351 (2006).
Although both indictments against the defendant alleged similar schemes to defraud lending institutions, double jeopardy protections under O.C.G.A. §§ 16-1-7(b) , 16-1-8(b) and Ga. Const. 1983, Art. I, Sec. I, Para. XVIII did not bar the second prosecution; the indictments involved different properties, different coconspirators, different real estate transactions, and, for the most part, different lenders, and the fact that the two separate conspiracies may have overlapped in time and resulted in violations of the same criminal statutes was not determinative. Harrison v. State, 282 Ga. App. 29 , 637 S.E.2d 773 (2006).
Because no evidence showed that the information concerning the defendant was known to the proper prosecuting officer in Gwinnett County, and because no basis otherwise existed for a charge of conspiracy to traffic based on what officers recovered in the search of the defendant's home, the appeals court refused to state that the defendant could have been convicted of conspiracy to traffic methamphetamine in Gwinnett County, or that Gwinnett County should have charged the defendant with this crime; hence, under these circumstances, the Dawson County indictment was not barred under O.C.G.A. §§ 16-1-6(b)(1) and 16-1-7(b) . Bradford v. State, 283 Ga. App. 75 , 640 S.E.2d 630 (2006).
Drug possession. - Trial court did not err when the court granted the defendant's plea in bar as to the second accusation for possession of Xanax because the state had charged the defendant with the identical crime of possession of an unspecified amount of Xanax on a prior date in two accusations, the second of which was brought after the defendant had pled guilty to the first. State v. Pruiett, 324 Ga. App. 789 , 751 S.E.2d 579 (2013).
Trial court erred by granting the defendant's plea in bar as to the second accusation's charges for possession of methamphetamine, clonazepam, and marijuana because the defendant could not have been convicted of possession of those drugs in a former prosecution, which involved only Xanax. State v. Pruiett, 324 Ga. App. 789 , 751 S.E.2d 579 (2013).
Possession of illegal drug is crime separate and distinct from illegal sale of that same substance. Morgan v. State, 168 Ga. App. 310 , 308 S.E.2d 583 (1983).
Conspiracy to import cocaine not lesser included offense of possession of cocaine. - When the crime charged in Florida was the conspiracy to import cocaine into a customs district of the United States, and the substantive crime charged in Georgia was the actual and knowing possession of more than 400 grams of cocaine, the conspiracy charge and conviction in Florida was not a lesser included offense to the crime charged in Georgia. Brown v. State, 181 Ga. App. 795 , 354 S.E.2d 3 (1987).
Felony murder charge predicated on manufacturing meth barred by federal charge. - Defendant's federal charge of attempt to manufacture meth did not require proof of facts additional to those required in the state case of felony murder predicated on manufacturing meth, meeting the elements of O.C.G.A. § 16-1-8(c) (statutory double jeopardy); the state's charges of manufacturing meth and felony murder were barred. Calloway v. State, 303 Ga. 48 , 810 S.E.2d 105 (2018).
Requirement of concurrent jurisdiction met. - Threshold requirement of concurrent jurisdiction was met in the defendant's state prosecution because the Georgia crimes of manufacturing, delivering, or selling a controlled substance and attempt, O.C.G.A. §§ 16-13-30(a) and 16-13-33 , were counterparts to the defendant's federal convictions under 21 U.S.C. §§ 841(b)(1)(C) and 846. Calloway v. State, 303 Ga. 48 , 810 S.E.2d 105 (2018).
Underlying felony is same offense as felony murder for double jeopardy purposes. - As felony murder is defined under Georgia law, underlying felony is a lesser included offense of felony murder and thus the same offense for double jeopardy purposes. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575 , 70 L. Ed. 2 d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733 , 77 L. Ed. 2 d 235 (1983).
Once state tried and convicted petitioner for kidnapping, it was barred from prosecuting petitioner for felony murder only if the underlying felony upon which that prosecution was based was that same kidnapping. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575 , 70 L. Ed. 2 d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733 , 77 L. Ed. 2 d 235 (1983).
Malice murder and kidnapping not same offense for double jeopardy purposes even though involving same transaction and considerably overlapping each other factually. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575 , 70 L. Ed. 2 d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733 , 77 L. Ed. 2 d 235 (1983).
Dual federal and state prosecutions not barred. - Federal prosecution for carjacking was not a former jeopardy bar to state prosecutions for carjacking, felony murder, armed robbery, and kidnapping with bodily injury, since the facts necessary to prove the federal charge were different from those necessary to prove the state charges. Torres v. State, 270 Ga. 79 , 508 S.E.2d 171 (1998).
Circumstances established the exception to O.C.G.A. § 16-1-8(c) bar to state prosecution after a federal conviction based on the same conduct, because defendant's conviction for conspiracy in federal court required proof of defendant's knowing and voluntary participation in an unlawful agreement to possess and distribute methamphetamine, whereas the Georgia crimes required proof of the possession alleged in the indictments, and, in the case of trafficking methamphetamine, proof of possession of 28 grams or more. Moser v. State, 246 Ga. App. 268 , 538 S.E.2d 904 (2000).
State prosecution of a drug offense arising out of the same conduct prosecuted in federal court and pled upon by defendant was not barred under O.C.G.A. § 16-1-8(c) , as the federal case was dismissed after the state action was filed, and thus a final judgment was never entered. Thorpe v. State, 251 Ga. App. 334 , 553 S.E.2d 171 (2001).
Trial court did not err in denying defendant's motion to dismiss the state charge of possession of a firearm during the commission of a felony based on a double jeopardy argument made pursuant to O.C.G.A. § 16-1-8(c) , as the state's prosecution was not barred due to defendant's acquittal in federal district court on a related charge, and since the state's later prosecution of defendant required proof of an element not required in the federal prosecution. Scott v. State, 250 Ga. App. 870 , 553 S.E.2d 276 (2001).
Trial court did not err in denying the defendant's motion in autrefois convict/plea in bar because the federal and state prosecutions required proof of a fact that the other did not as the defendant's federal conviction for conspiracy to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance required the agreement of two or more persons to commit a criminal act, and the state trafficking charge did not require proof of an agreement between two or more people to commit a criminal act, and required proof of the possession of the cocaine. Stembridge v. State, 331 Ga. App. 199 , 770 S.E.2d 285 (2015).
Prosecution on state and federal charges of murder and kidnapping. - Since the facts necessary to prove the federal charges of kidnapping and interstate travel with intent to commit murder for extortion are different from the facts necessary to prove the Georgia charges of murder and aggravated assault, there was no violation of Georgia's statutes barring multiple prosecutions, O.C.G.A. §§ 16-1-7 and 16-1-8 , nor the constitutional prohibition against double jeopardy, when the defendants were prosecuted in federal and state courts for all of the above offenses. Satterfield v. State, 256 Ga. 593 , 351 S.E.2d 625 (1987).
Motion to dismiss.
Motion to dismiss based upon prior municipal court proceeding. - Trial court did not err by denying the defendant's plea in bar and motion to dismiss the charges in the indictment based on a prior municipal court proceeding based on the same conduct because the defendant did not meet the defendant's burden to show that the city attorney had actual knowledge of all the facts supporting the trial court charges. The attorney, in testifying about the guilty plea the attorney took from the defendant in the first criminal proceeding, testified that the attorney could not say whether the attorney had actual knowledge of any offenses beyond the citations the attorney prosecuted. Massengille v. State, Ga. App. , S.E.2d (Sept. 18, 2020).
Reindictment and reprosecution under O.C.G.A. § 16-9-1 barred by prior prosecution under O.C.G.A. § 16-13-43 . - If O.C.G.A. § 16-13-43 was the exclusive statute to be applied in a given case, O.C.G.A. § 16-9-1 still generally proscribes part of the same conduct, and any attempt to reindict and reprosecute would be barred by a plea of former jeopardy under O.C.G.A. § 16-1-8 . State v. O'Neal, 156 Ga. App. 384 , 274 S.E.2d 575 (1980).
Reindictment proper when judgment of conviction vacated. - Trial court did not adjudge the defendant not guilty, but vacated a judgment of conviction because the offense of enticing a child for indecent purposes was not a lesser-included offense of child molestation. Thus, O.C.G.A. § 16-1-8(d) did not prevent the state from reindicting the defendant for child molestation. Phillips v. State, 298 Ga. App. 520 , 680 S.E.2d 424 (2009).
When victim dies after aggravated assault conviction, subsequent prosecution for murder not barred. - When criminal offense of murder was not yet complete because the victim had not died at the time of the aggravated assault conviction, the subsequent prosecution for murder was not barred by express terms of former Code 1933, § 26-506(b) or § 26-507(b) (see now O.C.G.A. § 16-1-7(b) or O.C.G.A. § 16-1-8(b) ), because the crime of murder was not consummated when the former trial began. Lowe v. State, 240 Ga. 767 , 242 S.E.2d 582 (1978).
Conviction of lesser crime does not bar retrial upon reversal of conviction of greater crime. - When there is a conviction of two crimes in a single prosecution, one of which is included in the other and defendant obtains reversal of the major crime for lack of jurisdiction remaining conviction of the lesser crime does not bar retrial on major crime. In the event that the defendant is then convicted on retrial for major crime, invalidation of defendant's conviction of the lesser included offenses for the same conduct would be authorized in appropriate proceedings. Keener v. State, 238 Ga. 7 , 230 S.E.2d 846 (1976), cert. denied, 433 U.S. 911, 97 S. Ct. 2980 , 53 L. Ed. 2 d 1096 (1977).
Felony prosecution not barred by prior plea of guilty to traffic offense. - Defendant's entry of a plea of guilty to a traffic code violation did not bar prosecution for felony charges arising out of defendant's stop for the traffic violation, where it would have been unreasonable to impute the knowledge of one prosecuting officer to another, since two entirely separate prosecuting officers were involved and defense counsel had deliberately set out to exploit the situation by seeking expeditious disposition of the traffic violation. Powe v. State, 181 Ga. App. 429 , 352 S.E.2d 783 (1986).
Subsequent prosecution of defendant for robbery after defendant pled guilty in traffic court to fleeing to elude did not violate O.C.G.A. § 16-1-8 since the offenses involved wholly different elements and facts and defendant could not have been prosecuted in traffic court for the felony charge of robbery. Blackwell v. State, 230 Ga. App. 611 , 496 S.E.2d 922 (1998).
Defendant's procedural double jeopardy motion was properly denied because the disposition form was legally insufficient to show that the solicitor handling the defendant's guilty plea in state court actually knew that there were felony offenses arising out of the same conduct as the misdemeanor traffic offense as the disposition form simply listed the felony offenses and the date the defendant was initially detained; thus, the state could proceed with the state's prosecution of the defendant in superior court on the felony charges of trafficking in cocaine, possession of cocaine with intent to distribute, abandonment of drugs in a public place, and bribery. Sellers v. State, 332 Ga. App. 14 , 770 S.E.2d 31 (2015), cert. denied, No. S15C1309, 2015 Ga. LEXIS 597 (Ga. 2015).
Statutory rape and child molestation. - Trial court properly denied the defendant's motion to dismiss charges alleging statutory rape and child molestation on jeopardy grounds, as double jeopardy did not preclude the state from prosecuting defendant for both offenses, although the same conduct formed the basis for both charges. Moreover, because no corroboration was required for child molestation, the jury logically could have found, and in fact did find, the defendant guilty of molesting the victim by having sex with that victim, despite the jury's not guilty verdict on statutory rape. Maynard v. State, 290 Ga. App. 403 , 659 S.E.2d 831 (2008).
Independent prosecutions of armed robbery and motor vehicle theft. - Offense of armed robbery and that of theft of a motor vehicle do not necessarily arise from the same conduct, and independent prosecutions for each offense will not necessarily implicate the law's prohibition against placing defendant in double jeopardy or subjecting defendant to "successive" or "multiple" prosecutions. Smith v. State, 173 Ga. App. 728 , 327 S.E.2d 839 (1985).
Assault and criminal damage to property not barred by original traffic offenses. - Since the defendant could not have been convicted for aggravated assault and criminal damage to property under prior traffic offenses and each prosecution required proof of facts not required on the other, the prosecution for assault and criminal damage was not barred. Cates v. State, 206 Ga. App. 694 , 426 S.E.2d 576 (1992).
When the defendant committed four distinct offenses (driving under the influence, reckless driving, fleeing to elude arrest, and aggravated assault) during a single continuous course of conduct in a single night, and these offenses were known to the prosecutor at the time of the prosecution in the probate court, at which time the court accepted guilty pleas to the two misdemeanor charges, the successive prosecution in the superior court for the felony charges was barred. McCrary v. State, 171 Ga. App. 585 , 320 S.E.2d 567 (1984), aff'd, 253 Ga. 747 , 325 S.E.2d 151 (1985); Hooker v. State, 240 Ga. App. 141 , 522 S.E.2d 723 (1999).
When defendant, who was arrested for speeding and driving under the influence, sought to dispose of the speeding charge by paying a fine of $99.00 to the clerk of the probate court, defendant was not subjected to any former "prosecution" within the meaning of O.C.G.A. §§ 16-1-7(b) and 16-1-8(b) and the trial court did not err in denying defendant's plea in bar to the charge of driving under the influence. Collins v. State, 177 Ga. App. 758 , 341 S.E.2d 288 (1986).
Trial counsel was not ineffective as the defendant's guilty plea to speeding prior to the driving under the influence (DUI) of alcohol trial did not result in a conviction because the trial judge's oral announcement that the judge would accept the plea and would impose the sentence recommended by the state was not a judgment; and the trial judge did not enter the final written judgment of conviction and sentence on the guilty plea to speeding until after the DUI trial, at the same time and on the same order form as the judgment and sentence entered for the DUI offense; thus, the defendant was not subjected to any former prosecution, and the trial court would not have erred in denying the defendant's plea in bar. Hantz v. State, 337 Ga. App. 675 , 788 S.E.2d 567 (2016).
Separate proceedings on traffic-related offenses and controlled substances offenses. - When defendant was arrested for various traffic-related offenses following an accident and the officer investigating the accident found evidence of controlled substance violations, a separate prosecution of the traffic offenses after prosecution for the controlled substance offenses was not barred by double jeopardy since the offenses involved different acts and occurred on different dates and in different locations. State v. Steien, 214 Ga. App. 345 , 447 S.E.2d 701 (1994).
Subsequent prosecution for driving under the influence not barred. - When the defendant was charged with two occurrences on different dates of driving while intoxicated, the fact that the second charge was pending when the defendant pled to the first does not prohibit prosecution for the second charge. Grogan v. State, 179 Ga. App. 300 , 346 S.E.2d 378 (1986).
Convictions for various traffic offenses did not bar subsequent prosecution for theft by receiving stolen property, i.e., a motorcycle, where the only connection between the theft charge and the traffic offenses was the fact that defendant committed the traffic offenses with the stolen vehicle. Grant v. State, 180 Ga. App. 742 , 350 S.E.2d 582 (1986), cert. denied, 481 U.S. 1006, 107 S. Ct. 1630 , 95 L. Ed. 2 d 203 (1987).
Multiple felony convictions not related to separate traffic violations. - Felony charges against a defendant, which included armed robbery, hijacking a motor vehicle, kidnapping, and possessing a firearm during the commission of a crime, did not require proof of the same elements involved in the traffic violations for which the defendant was convicted of in a different court, therefore, the felony convictions imposed against the defendant did not violate the defendant's right against double jeopardy. Jaheni v. State, 285 Ga. App. 266 , 645 S.E.2d 735 (2007).
Serious injury by vehicle prosecution barred as defendant pled guilty to failure to maintain lane. - Under O.C.G.A. §§ 16-1-7(b) and 16-1-8 , double jeopardy protection barred the defendant's prosecution for, inter alia, serious injury by vehicle because the defendant had earlier pled guilty in magistrate's court to failure to maintain a lane arising out of the same accident; both charges could have been tried in the superior court, and it was apparent from the record that the prosecuting officer knew that the defendant had been charged with both offenses. When the defendant appeared in court initially, both charges were pending, and the magistrate court judge bound over the serious injury by vehicle charge. Etienne v. State, 298 Ga. App. 149 , 679 S.E.2d 375 (2009).
Theft by deception prosecution barred. - Prosecution of theft by deception was barred as either was based on the same conduct which formed the basis of defendant's earlier prosecution for theft by deception or based on conduct stemming from the same transaction which formed the basis of defendant's earlier prosecution. Gentry v. State, 206 Ga. App. 490 , 426 S.E.2d 52 (1992).
Forgery prosecution not barred if forgery had not been committed. - After defendant pled guilty to theft by taking for writing fraudulent checks, defendant's subsequent prosecution for forgery for uttering and delivering the checks was not barred under O.C.G.A. § 16-1-8(b)(1), because, when defendant pled guilty to theft by taking, the forgery offenses had not been completed, so defendant could not have been prosecuted for the latter offenses when defendant pled guilty to the former. Furthermore, because the two prosecutions each required proof of facts not required by the other, as proof of forgery did not require proof that defendant unlawfully took property and proof of theft by taking did not require proof that defendant uttered and delivered checks, the subsequent prosecution was not barred. Cade v. State, 262 Ga. App. 206 , 585 S.E.2d 172 (2003).
Successive prosecution for financial identity fraud. - Trial court correctly rejected the defendant's plea in bar and denied defendant's motion in autrefois convict because the defendant did not show that defendant's prosecution for two counts of financial identity fraud under O.C.G.A. § 16-9-121 was barred as an impermissible successive prosecution for the same conduct in another county by defendant's earlier conviction in that county of 33 counts of financial identity fraud. Summers v. State, 263 Ga. App. 338 , 587 S.E.2d 768 (2003).
Prosecutor had no prior knowledge, thus prosecution allowed. - When the facts relating to the defendant's theft by taking and malfeasance in office convictions allegedly arose from the same alleged conduct, but were not known to the state in a prior malpractice in office action and the new offenses involved proof of additional facts, the trial court properly denied the defendant's plea in bar of double jeopardy under O.C.G.A. §§ 16-1-7 and 16-1-8 . Atkinson v. State, 263 Ga. App. 274 , 587 S.E.2d 332 (2003).
Subsequent prosecution denied since prosecutor had earlier knowledge. - At the time defendant pled guilty to reckless conduct, the prosecutor was aware of facts in the arrest report that clearly contained evidence of aggravated assault, therefore, knowledge of other crimes was imputed to the prosecutor and subsequent prosecution of defendant under aggravated assault indictments was barred by O.C.G.A. §§ 16-1-7 and 16-1-8 . Billups v. State, 228 Ga. App. 804 , 493 S.E.2d 8 (1997).
Term "same conduct" means activities relating to the "same transaction," or earlier crime, not "the same type of conduct," thus, drug sales on March 12 and 25 were not the "same conduct" as a sale made in April, a separate and distinct transaction, and prosecution under two indictments was not barred. State v. Gillespie, 206 Ga. App. 427 , 425 S.E.2d 418 (1992).
Conviction for violating county ordinance did not bar conviction under code. - Defendant's pit bull mauled a child. The defendant's conviction in recorder's court of violating a county ordinance by failing to exercise ordinary care in controlling the defendant's pet for the protection of others was sufficiently separate from a misdemeanor reckless conduct charge under O.C.G.A. § 16-5-60(b) , which required proof of a gross deviation from the standard of care, that a successive prosecution for violating § 16-5-60(b) did not violate the double jeopardy ban. State v. Stepp, 295 Ga. App. 813 , 673 S.E.2d 257 (2009).
Felony prosecutions not barred by pleas of guilty to misdemeanor offenses. - Trial court properly denied the defendant's plea in bar based on double jeopardy as the misdemeanor offenses of criminal trespass, open container, and concealed weapon charges and the felony-related offenses of rape, aggravated sodomy, and making a false statement during the sexual assault investigation did not arise from the same conduct because, although the offenses occurred on the same date and close in time, the offenses took place in different locations as the rape and aggravated sodomy occurred inside the victim's apartment and the misdemeanor offenses occurred outside a separate building in the apartment complex, and the state could establish each set of offenses without proving the other. Jackson v. State, 336 Ga. App. 140 , 784 S.E.2d 7 (2016).
Pretrial intervention program on related charges did not bar prosecution. - Prosecution of the defendants for theft by taking and criminal trespass in Calhoun County, O.C.G.A. §§ 16-7-21(b) and 16-8-2 , was not prohibited by double jeopardy based on their prior entry into a pretrial intervention program under O.C.G.A. § 15-18-80(b) following charges of theft by receiving stolen property, O.C.G.A. § 16-8-7(a) , in Irwin County because there was no prosecution in Irwin County within the meaning of O.C.G.A. §§ 16-1-3(14) and 16-1-8(a)(1)-(2). Palmer v. State, 341 Ga. App. 433 , 801 S.E.2d 300 (2017).
Reversal of Conviction for Insufficient Evidence
Second prosecution barred. - Unless evidence at first trial is sufficient to authorize verdict of guilty, second prosecution is barred. Bethay v. State, 235 Ga. 371 , 219 S.E.2d 743 (1975); Holcomb v. Peachtree, 187 Ga. App. 258 , 370 S.E.2d 23 (1988).
Trial court erroneously admitted an officer's testimony regarding a statement made by one of the victims who died of natural causes prior to trial as the admission violated the defendant's right to confrontation; moreover, because there was no other evidence to support the armed robbery count, the defendant could not be retried for it. Gifford v. State, 287 Ga. App. 725 , 652 S.E.2d 610 (2007).
Verdict not authorized by evidence is same as directed verdict of acquittal. - Under O.C.G.A. § 16-1-8 , result of finding that evidence does not authorize verdict is same as directed verdict of acquittal (no retrial in either event); thus, in reviewing overruling of motion for directed verdict of acquittal, Supreme Court will utilize standard used in reviewing overruling of motion for new trial on ground that verdict is contrary to evidence; i.e., the "any evidence" test. Bethay v. State, 235 Ga. 371 , 219 S.E.2d 743 (1975).
Reversal of conviction due to insufficient evidence bars subsequent prosecution for same crime. - When one is prosecuted and convicted, a subsequent prosecution is barred if subsequent proceedings (e.g., motion for new trial on general grounds, or appeal) resulted in finding that evidence did not authorize the verdict. Bethay v. State, 235 Ga. 371 , 219 S.E.2d 743 (1975).
Reversal barred retrial for lesser-included offense. - Reversal of the defendants' convictions for felony murder based upon armed robbery due to insufficient evidence not only raised a procedural double jeopardy bar for that particular crime, it also raised a procedural double jeopardy bar for the lesser-included offense of criminal attempt to commit armed robbery. Prater v. State, 273 Ga. 477 , 541 S.E.2d 351 (2001).
Reversal of conviction due to insufficient evidence. - After the court of appeals reversed the defendant's first conviction because the evidence did not authorize the verdict, prosecution for a different crime which should have been included in the first trial was barred by former Code 1933, § 26-507(b). Marchman v. State, 234 Ga. 40 , 215 S.E.2d 467 (1975).
Retrial
O.C.G.A. § 16-1-8(d)(2) specifically permits retrial where a conviction is set aside on appeal for reasons other than the sufficiency of the evidence. Samuel v. State, 190 Ga. App. 539 , 379 S.E.2d 571 , cert. denied, 190 Ga. App. 899 , 379 S.E.2d 571 (1989).
No double jeopardy. - Double jeopardy claim properly denied where the grant of defendant's motion for a new trial set aside defendant's conviction without adjudging the defendant not guilty or finding that the evidence did not authorize the verdict. Garrard v. State, 242 Ga. App. 189 , 528 S.E.2d 273 (2000).
Trial court did not err in denying defendant's plea in bar of former jeopardy where there was no intent on the part of the state to create the circumstances leading to a mistrial, because the case was properly terminated under O.C.G.A. § 16-1-8(e)(2)(B); a finding that the requirements of § 16-1-8(e)(1) had not been met did not automatically lead to the conclusion that the former prosecution terminated improperly. Seymour v. State, 262 Ga. App. 823 , 586 S.E.2d 713 (2003).
Evidence at defendant's first trial was sufficient to sustain convictions for aggravated sodomy pursuant to O.C.G.A. § 16-6-2(a) , sexual battery pursuant to O.C.G.A. § 16-6-22.1 , and aggravated sexual battery pursuant to O.C.G.A. § 16-6-22.2(b) ; thus, double jeopardy did not prohibit a retrial granted on the ground that defendant received ineffective assistance of counsel. Weldon v. State, 270 Ga. App. 574 , 607 S.E.2d 175 (2004).
To the extent that defendant argued that a retrial on charges of burglary and false imprisonment was barred by the extended protection of procedural double jeopardy embodied in O.C.G.A. § 16-1-8 , when the state redacted the charge of burglary in the first trial before the jury was impaneled and sworn, the first trial on the charge of false imprisonment ended in a mistrial, and the state tried and defendant was convicted in a second trial on both the burglary and false imprisonment charges, defendant's failure to file a written plea in bar prior to the second trial waived any right to subsequently raise a challenge on procedural double jeopardy grounds. Alexander v. State, 279 Ga. 683 , 620 S.E.2d 792 (2005).
Trial court properly denied the defendant's plea in bar based on double jeopardy under U.S. Const., amend. 5 and Ga. Const. 1983, Art. I, Sec. I, Para. XVIII, seeking to prevent a retrial of criminal charges against defendant after the motion for a mistrial under O.C.G.A. § 16-1-8(e)(1) was granted in the first trial upon the jury's advisement to the trial court judge that they were hopelessly deadlocked due to the refusal by two jurors to consider the direct evidence; the mistrial was properly declared and there was no improper conduct shown by the trial court or the state but rather, the defendant's counsel admitted that defendant hoped that another jury would be more sympathetic to the defendant upon a retrial, as the first jury was deadlocked 10-2 in favor of conviction. Jackson v. State, 282 Ga. App. 476 , 638 S.E.2d 865 (2006).
Retrial after not guilty finding returned by an unsworn jury was not barred by the double jeopardy principles under both the U.S. and Georgia Constitutions as the jury lacked any authority to pass upon any of the issues at trial, and hence, could not make any determinations whatsoever as to the defendant's guilt or innocence. Spencer v. State, 281 Ga. 533 , 640 S.E.2d 267 , cert. denied, 551 U.S. 1103, 127 S. Ct. 2914 , 168 L. Ed. 2 d 243 (2007).
Because a plea of double jeopardy was found to be frivolous, the defendant's filing of a notice of appeal from the denial of an earlier double jeopardy plea did not divest the trial court of jurisdiction over the case, and hence the filing of a notice of appeal merely deprived the trial court of the court's power to execute the sentence; thus, because the sentence was not imposed against the defendant until after the remittitur was filed below, that sentence was upheld. DeSouza v. State, 285 Ga. App. 201 , 645 S.E.2d 684 , cert. denied, No. S07C1347, 2007 Ga. LEXIS 539 (Ga. 2007).
Retrial of a charge of possession of a firearm by a convicted felon would not itself violate double jeopardy or any other constitutional right since the right not to be prosecuted on a count which was quashed for the second time was purely statutory pursuant to O.C.G.A. § 17-7-53.1 . Langlands v. State, 282 Ga. 103 , 646 S.E.2d 253 (2007).
Trial court erred in granting the defendant's plea in bar because double jeopardy did not bar a second trial on the same charges since the retrial was granted due to an erroneous evidentiary ruling; the order granting a new trial did not find the evidence was legally insufficient to sustain the verdict, but instead, the second trial judge granted the new trial based on the original trial court's error in admitting an exhibit to prove that the defendant had a prior felony conviction after the defendant had offered to stipulate that the defendant was a convicted felon. State v. Caffee, 291 Ga. 31 , 728 S.E.2d 171 (2012).
Since the reversal of a defendant's convictions amounted to neither an adjudication of not guilty nor a finding that the evidence did not authorize the verdict, the defendant's re-indictment and retrial were not barred. Dryden v. State, 316 Ga. App. 70 , 728 S.E.2d 245 (2012).
Trial court did not err by declaring a mistrial after the first trial and retrying the defendant because the defendant did not show that the defendant raised the doctrine of procedural double jeopardy prior to the second trial. Riddick v. State, 320 Ga. App. 500 , 740 S.E.2d 244 (2013).
Since the record established that the order authorizing the withdrawal of the defendant's guilty pleas was vacated on the defendant's own motion, thereby reinstating the defendant's original guilty pleas and convictions, there was not a second prosecution and the trial court did not err by denying the defendant's motion for plea in bar. Pierce v. State, 294 Ga. 842 , 755 S.E.2d 732 (2014).
Allen charge. - After a jury indicated that it was deadlocked and then requested a second Allen charge, the trial court did not abuse its discretion in declaring a mistrial; consequently, defendant's plea in bar for double jeopardy lacked merit. DeSouza v. State, 270 Ga. App. 849 , 608 S.E.2d 313 (2004).
Retrial and sentencing after conviction set aside. - State generally may retry defendant who succeeds in having first conviction set aside and, as a corollary of that power, to impose whatever sentence may be authorized, whether or not it is greater than sentence imposed after first conviction. McClure v. Hopper, 234 Ga. 45 , 214 S.E.2d 503 (1975).
Although defendant's conviction was reversed because the state did not meet its burden of production as to defendant's motion challenging the sufficiency of a search warrant affidavit, the defendant could be retried since defendant's conviction was set aside on procedural grounds. Watts v. State, 261 Ga. App. 230 , 582 S.E.2d 186 (2003).
In the context of a granted motion for mistrial, governmental misconduct will support a plea in bar based on double jeopardy if the prosecutor or trial judge intended to goad the defendant into moving for a mistrial. In the context of a reversal or grant of a motion for new trial, on the other hand, double jeopardy may bar a retrial where the prosecutor intended to prevent an acquittal, or the trial judge accused of misconduct, believed at the time was likely to occur in the absence of the judge's misconduct. Paul v. State, 266 Ga. App. 126 , 596 S.E.2d 670 (2004).
Imposition of greater sentence upon retrial. - Imposition of higher sentence on defendant being retried for crime does not violate due process or constitute double jeopardy so long as jury is not informed of prior sentence and second sentence is not otherwise shown to be a product of vindictiveness. McClure v. Hopper, 234 Ga. 45 , 214 S.E.2d 503 (1975).
When the state seeks to prosecute a defendant for two offenses, one of which is included in the other, and the defendant receives a mistrial on the greater offense, the remaining conviction of the lesser offense does not bar retrial of the greater offense. Rower v. State, 267 Ga. 46 , 472 S.E.2d 297 (1996).
Effect of reversal for error at trial. - Because the reversal of defendant's conviction was based on trial error, double jeopardy did not prevent retrial. Daniels v. State, 165 Ga. App. 397 , 299 S.E.2d 746 (1983).
Double jeopardy protection did not bar a second trial on the same charges because the defendant's motion for new trial was granted due to an erroneous evidentiary ruling. State v. Caffee, 291 Ga. 31 , 728 S.E.2d 171 (2012).
Retrial was not barred when reversal based on inadmissible evidence. - When the conviction was reversed on the basis that the testimony of certain witnesses was inadmissible hearsay, and since it was clear from the court's opinion that the majority neither intended to nor actually did pass upon the sufficiency of the evidence, the defendant's plea of double jeopardy was properly denied; the question remained whether the evidence did indeed support the verdict, and the trial transcript revealed circumstantial evidence from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Glisson v. State, 192 Ga. App. 409 , 385 S.E.2d 4 , cert. denied, 192 Ga. App. 901 , 385 S.E.2d 4 (1989).
When the actions of a prosecutor cause a mistrial, a second trial does not constitute double jeopardy in violation of the defendant's constitutional rights. Japhet v. State, 176 Ga. App. 189 , 335 S.E.2d 425 (1985).
Trial court did not err in denying the defendant's plea of former jeopardy because the court's finding that the prosecution's question on cross-examination was an unintentional reference to the defendant's right to remain silent was not clearly erroneous; the record contained evidence to support the trial court's finding that the prosecutor's question was not intended to goad the defense into seeking a mistrial. Demory v. State, 313 Ga. App. 265 , 721 S.E.2d 93 (2011).
Prosecutor's actions resulting in mistrial and creating double jeopardy. - Because a prosecutor's conduct violated one of the most basic rules of prosecutorial procedure, specifically, producing documents in discovery showing that the defendant refused to speak with police and requested a lawyer after being advised of Miranda, and hence intentionally goading the defendant into moving for a mistrial, the trial court erred in denying the defendant's motion for a plea in bar on double jeopardy grounds. Anderson v. State, 285 Ga. App. 166 , 645 S.E.2d 647 (2007).
Nature of prosecutor's misconduct. - When it was not shown that the prosecutor's misconduct was for the purpose of aborting the trial and securing an opportunity to retry the case, the trial court properly concluded that double jeopardy did not bar defendant's retrial. Dinning v. State, 267 Ga. 879 , 485 S.E.2d 464 (1997).
Governmental misconduct. - After the trial court previously granted the defendant's motion for a mistrial and, although it was not specified why the motion was granted, it was assumed that it was granted due to the state's intentional misconduct during that first trial, because there was no indication in the trial court record of any specific intent by the state to subvert defendant's double jeopardy rights by provoking the defendant into seeking the mistrial, the trial court erred in granting the defendant's motion for discharge and acquittal of a retrial on double jeopardy grounds. State v. Brown, 278 Ga. App. 827 , 630 S.E.2d 62 (2006).
Retrial after mistrial due to jury's failure to reach verdict did not constitute double jeopardy under former Code 1933, § 26-507(e)(2)(C) (see now O.C.G.A. § 16-1-8(e)(2)(C)). Phillips v. State, 238 Ga. 632 , 235 S.E.2d 12 (1977).
Retrial for lack of sufficient venue evidence. - Absent sufficient proof establishing venue, the defendant's aggravated sexual battery and aggravated sodomy convictions were reversed; but, given that sufficient evidence otherwise existed to support the former charge, retrial on the same would not violate the defendant's double jeopardy rights. Melton v. State, 282 Ga. App. 685 , 639 S.E.2d 411 (2006).
Because the state failed to prove the element of venue beyond a reasonable doubt, and there was no indication in the record that the juvenile waived venue or that the court took judicial notice of venue as an element of the offenses charged, the juvenile's adjudications of delinquency had to be reversed. However, although the delinquency adjudications had to be reversed, the state was permitted to retry the juvenile without violating the double jeopardy clause, because there was otherwise sufficient evidence at trial to support the adjudications entered. In the Interest of J.B., 289 Ga. App. 617 , 658 S.E.2d 194 (2008).
Purposes of discharge of jury for failure to agree. - Possibility of retrial after discharge of jury for failure to agree serves to discourage putting excessive pressure on juries to agree, and reduces risk that verdict will not be a genuine jury decision freely arrived at. In addition, it serves to prevent a single juror from unreasonably holding out for acquittal, causing a mistrial, and thereby invoking bar of double jeopardy singlehandedly. Orvis v. State, 237 Ga. 6 , 226 S.E.2d 570 (1976).
Retrial allowed following mistrial based on juror's disqualification. - Removal of a juror who had mistakenly misadvised the trial court as to the juror's qualifications upon voir dire, thereby depriving the jury of the statutory minimum number, constituted "manifest necessity" for a mistrial, and retrial following such mistrial was not barred by a plea of double jeopardy. Bishop v. State, 179 Ga. App. 606 , 347 S.E.2d 350 (1986).
Retrial not necessarily barred by fact that alternative to mistrial existed. - Mere existence of some alternative will not compel conclusion that declaration of mistrial by trial judge was sufficiently precipitate to bar retrial. Jones v. State, 232 Ga. 324 , 206 S.E.2d 481 (1974).
When a mistrial was granted at the request of the defendant, retrial was not prohibited since it was not established that the state intended to goad the defendant into moving for a mistrial. Williams v. State, 268 Ga. 488 , 491 S.E.2d 377 (1997).
After the trial court duly weighed the respective rights of the defendant and the state before electing sua sponte to declare a mistrial in a trial where no evidence had been presented and the defense's case still remained unknown to the state, and since the court had considered other lesser alternatives, including the granting of a continuance, the trial court did not err in denying the defendant's motion to dismiss or acquit by reason of former jeopardy. Terrell v. State, 236 Ga. App. 163 , 511 S.E.2d 555 (1999).
While more options other than a mistrial are available to a trial court faced with a deadlocked jury, the trial court is not required to exercise those options under all circumstances; instead, an appellate court considers the trial court's decision in this regard to be discretionary and it will reverse only if the trial court abuses that discretion. Leonard v. State, 275 Ga. App. 667 , 621 S.E.2d 599 (2005).
Retrial is permissible only if a manifest necessity existed for declaration of mistrial lest otherwise the end of public justice be defeated. Jones v. State, 232 Ga. 324 , 206 S.E.2d 481 (1974).
"Manifest necessity" for a mistrial shown. - In a bench trial, the judge's inability to disregard evidence the judge ruled inadmissible constituted a manifest necessity for a mistrial and the defendant's double jeopardy rights would not be violated by a retrial to a jury. Bailey v. State, 219 Ga. App. 258 , 465 S.E.2d 284 (1995).
After a news story about the case appeared in a local newspaper the morning after the trial court had decreed a recess to consider a question regarding the admissibility of certain evidence objected to by the defense, it was within the court's discretion to declare a mistrial based on "manifest necessity." Putnam v. State, 245 Ga. App. 95 , 537 S.E.2d 384 (2000).
In the defendant's trial for malice murder and felony murder arising out of the shooting death of a drug dealer, the trial court did not abuse the court's discretion in declaring a mistrial over the defendant's objection out of manifest necessity given that a juror had consulted with outside sources and shared legally inaccurate information with the jury. The mistrial did not bar the defendant's retrial on the charges. Blake v. State, 304 Ga. 747 , 822 S.E.2d 207 (2018).
"Manifest necessity" for a mistrial not shown. - Failure to hold a Jackson-Denno hearing over defendant's allegation that a custodial statement had been coerced and introduction of testimony of the defendant related thereto did not create "manifest necessity" for a mistrial. Smith v. State, 263 Ga. 782 , 439 S.E.2d 483 (1994).
Cross examination of an accomplice who has negotiated a plea and is testifying against a defendant, in order to bring out bias inherent in the witness's testimony, is proper and constitutionally protected, therefore granting a mistrial over defendant's objection was error and manifest necessity did not exist. Hernandez v. State, 244 Ga. App. 874 , 537 S.E.2d 149 (2000).
Retrial was barred where the trial court improperly terminated a trial because defendant was not timely notified of additional charges; the court failed to consider alternative remedies which would have preserved defendant's right to proceed with the trial. Jefferson v. State, 224 Ga. App. 8 , 479 S.E.2d 406 (1996).
Because the trial court's grant of a new trial stemmed from trial error, the defendant could not be retried on an offense of per se DUI, given that the defendant was adjudged not guilty of that charge based upon the insufficiency of the evidence; thus, the trial court erred in denying the plea in bar. Shah v. State, 288 Ga. App. 788 , 655 S.E.2d 347 (2007).
Denial of the plea in bar, which asserted double jeopardy grounds after the first trial of the defendant ended with the trial judge's sua sponte declaration of a mistrial due to a violation of the sequestration rule, was erroneous as there was no manifest necessity for a mistrial because there was no evidence that the rule was violated; even if two defense witnesses could have heard testimony from the witness stand, there was no evidence of prejudice from any presumed overhearing of testimony as there was no evidence showing that either of the witnesses would have changed their testimony to match that of other witnesses; and the mere absence of an objection to the mistrial, without more, did not constitute consent to the mistrial. Brown v. State, 354 Ga. App. 493 , 841 S.E.2d 125 (2020).
If the possibility of prosecutorial abuse exists, examination of the alternatives to mistrial is more stringent. Jones v. State, 232 Ga. 324 , 206 S.E.2d 481 (1974).
Defense could not prevent retrial by withholding consent to mistrial, since even if the trial court had erred in terminating the homicide trial, and even if the defense could not be blamed for misunderstanding the trial court's ruling on whether the court would permit argument and admit evidence concerning the prosecutor's political ambitions, nevertheless it was the defense who injected the matter that resulted in the mistrial. McGarvey v. State, 186 Ga. App. 562 , 368 S.E.2d 127 , cert. denied, 186 Ga. App. 918 , 368 S.E.2d 127 (1988).
When a defendant faced two separate charges for driving under the influence, occurring on two different dates, defendant's acquittal on the first charge of driving under the influence did not bar a subsequent prosecution for driving under the influence on the later date, where neither of the accusations stated that the date of the alleged offenses was a material averment and the state could prove their commission at any time within the two-year statute of limitations. Sandner v. State, 193 Ga. App. 62 , 387 S.E.2d 27 (1989).
Defendant's abuse of rape shield statute justified retrial. - Defendant's introduction of evidence that was prohibited by the rape shield statute gave the court grounds to find manifest necessity for a mistrial; therefore, state and federal double jeopardy provisions did not bar reprosecution. Banks v. State, 230 Ga. App. 258 , 495 S.E.2d 877 (1998).
Jurisdictional Issues
Acquittal before court having no jurisdiction is void, and therefore is not a bar to subsequent indictment and trial in a court which has jurisdiction of the offense. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575 , 70 L. Ed. 2 d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733 , 77 L. Ed. 2 d 235 (1983).
Failure to prove venue in first trial is not prohibition to new trial. - Retrial of defendants was not barred by O.C.G.A. § 16-1-8 because a subsequent prosecution was not barred if the former prosecution was before a court which lacked jurisdiction over the accused or the crime, and the trial court in the first trial lacked jurisdiction over the crime because the state failed to prove venue, and therefore O.C.G.A. § 16-1-8 (d)(1) applied. Grier v. State, 275 Ga. 430 , 569 S.E.2d 837 (2002).
After a defendant was granted a directed verdict on the basis that the state failed to prove venue in a criminal prosecution for driving under the influence per se, retrial was not barred under U.S. Const., amend. 5 and O.C.G.A. § 16-1-8 because, while venue had to be laid in the county in which the crime was allegedly committed under Ga. Const. 1983, Art. VI, Sec. II, Para. VI and O.C.G.A. § 17-2-2 and venue was a jurisdictional fact, failure to prove venue was a procedural error that implied nothing as to defendant's guilt or innocence. Hudson v. State, 296 Ga. App. 758 , 675 S.E.2d 603 , cert. denied, No. S09C1163, 2009 Ga. LEXIS 413 (Ga. 2009), cert. denied, 558 U.S. 1076, 130 S. Ct. 799 , 175 L. Ed. 2 d 559 (2009).
No former jeopardy bar from prior accusation. - As defendant was initially charged by accusation with terroristic threats and aggravated stalking, which were not properly prosecuted without an indictment or a written waiver thereof pursuant to O.C.G.A. §§ 17-7-70(a) and 17-7-70.1 , the dismissal of the accusation after the jury was sworn and the indictment of the same charges was proper and there was no former jeopardy bar under O.C.G.A. § 16-1-8(d)(1), as the former prosecution under the indictment was void and of no effect. Armstrong v. State, 281 Ga. App. 297 , 635 S.E.2d 880 (2006).
Effect of proceedings in municipal court which lacks jurisdiction. - Fact that charges were initially brought against the criminal defendant in municipal court under former Code 1933, § 79A-9917 (see now O.C.G.A. § 16-13-2 ) did not bar subsequent proceedings against defendant in state court on double jeopardy grounds, where municipal court lacks jurisdiction of such case. State v. Millwood, 242 Ga. 244 , 248 S.E.2d 643 (1978).
Since the recorder's court lacked jurisdiction to try a defendant for driving without insurance, a violation of state law, neither O.C.G.A. § 16-1-7(b) nor § 16-1-8(b) precluded later prosecution in superior court for operating a motor vehicle after having been declared an habitual violator and for driving under the influence. Parker v. State, 170 Ga. App. 333 , 317 S.E.2d 209 (1984).
Proceeding in recorder's court was null and void because the court lacked jurisdiction to try the defendant for a state law violation; thus, the defendant's retrial did not constitute double jeopardy or prior prosecution. Duncan v. State, 185 Ga. App. 854 , 366 S.E.2d 154 (1988), overruled on other grounds, Kolker v. State, 193 Ga. App. 306 , 387 S.E.2d 597 (1989).
Since the municipal court lacked jurisdiction to try defendant pursuant to a Uniform Traffic Citation charging defendant with "simple battery" in violation of "Section 16-5-23 ", prosecution of the offense before such court was void; accordingly, trial of defendant for simple battery in the state court was not barred on the ground of double jeopardy or prior prosecution. Rangel v. State, 217 Ga. App. 152 , 456 S.E.2d 739 (1995).
Jurisdictional effect of election to try misdemeanor included within felony. - Even though evidence in case indicates a felony was committed, prosecuting authorities may very well elect to try defendant in state court for misdemeanor included within that felony, and fact that they have so proceeded will not deprive state court of jurisdiction. Perkins v. State, 143 Ga. App. 124 , 237 S.E.2d 658 (1977).
Kidnapping with bodily injury in one county and murder in another. - When the accused kidnapped the victim and inflicted bodily injury upon the victim in one county, and then abducted the victim to a second county and killed the victim there, the two offenses are not within a single court's jurisdiction and cannot be tried together; therefore, there is no procedural bar to the accused's subsequent prosecution for murder in the second county. Stephens v. Hopper, 241 Ga. 596 , 247 S.E.2d 92 , cert. denied, 439 U.S. 991, 99 S. Ct. 593 , 58 L. Ed. 2 d 667 (1978).
Jurisdiction not barred where defects in charge amendable. - Probate court did not lack jurisdiction over defendant even though a proper accusation was not filed since the defects cited by the defendant in demurrers were amendable. Dean v. State, 214 Ga. App. 768 , 449 S.E.2d 158 (1994).
Concurrent jurisdiction required. - Because the state could not indict defendant for unlawfully using or causing another to use a telephone to arrange the commission of the victim's murder, no concurrent jurisdiction existed; therefore, O.C.G.A. § 16-1-8(c) did not bar the state from prosecuting defendant for malice murder, felony murder, aggravated assault, and burglary. Sullivan v. State, 279 Ga. 893 , 622 S.E.2d 823 (2005).
Application Generally
Application of subsection (a). - O.C.G.A. § 16-1-8(a) governs when an accused is being prosecuted for a crime, the first trial of which was terminated for any reason listed in O.C.G.A. § 16-1-8(e) , since it is a situation in which the accused was formerly prosecuted for the same crime based upon the same material facts. If a case fits within the parameters of subsection (a), that becomes the exclusive means for determining whether double jeopardy bars a retrial. State v. LeMay, 186 Ga. App. 146 , 367 S.E.2d 61 (1988).
When a defendant consented to the entry of nolle prosequi after the jury had been impaneled and sworn, and the defendant was thereafter charged with the same offense, the original prosecution was neither an acquittal nor an improperly terminated prosecution for the purposes of O.C.G.A. § 16-1-8 . Burks v. State, 194 Ga. App. 809 , 392 S.E.2d 300 (1990).
In a criminal matter wherein the state brought charges against defendant, a bench trial was commenced, witnesses were sworn in and testified, and the state thereafter terminated that case when it nolle prossed the charges over defendant's objection, jeopardy attached under Ga. Const. 1983, Art. I, Sec. 1, Para. XVIII, and under O.C.G.A. § 16-1-8(a)(2), the state could not thereafter retry defendant on the same charges; although the state's reason for nolle prossing the first set of charges was due to the state's inability to introduce DNA evidence as to defendant's identity, as the state failed to include that information in the indictment in order to avoid a limitations issue, the reason was inconsequential because jeopardy had attached. State v. Aycock, 283 Ga. App. 876 , 643 S.E.2d 249 (2007).
Trial court properly granted the defendant's plea in bar and plea of former jeopardy in a burglary prosecution as the state improperly terminated the first trial by dismissing the indictment after jeopardy attached without the defendant's consent, and the second burglary prosecution, although alleging a different date, residence, and accomplice, was based on the same material facts as the first indictment. State v. Jackson, 290 Ga. App. 250 , 659 S.E.2d 679 (2008).
Application of subsection (b). - Prosecution for forgery was not barred by O.C.G.A. § 16-1-8(b)(1) because defendant could not have been convicted of forgery in the state court due to the court's lack of jurisdiction and because there was no evidence that the district attorney handling the former prosecution case knew of all the crimes. State v. Hulsey, 216 Ga. App. 670 , 455 S.E.2d 398 (1995).
Both multiple convictions and successive prosecutions barred. - If multiple convictions arising out of single prosecution are barred, successive prosecution is likewise barred. Brock v. State, 146 Ga. App. 78 , 245 S.E.2d 442 (1978).
Multiple accusations and indictments not barred. - Because the crimes alleged in the accusation and indictment involved different victims, locations, and times, and hence did not arise from the same conduct, the trial court did not err in denying the defendant's motion to dismiss the charges in the indictment on double jeopardy grounds based on the defendant's prior plea to the charges in the accusation. Davis v. State, 287 Ga. App. 535 , 652 S.E.2d 177 (2007).
No reprosecution for armed robbery. - Reversal of defendant's convictions for felony murder based on the felony of armed robbery due to insufficient evidence raises a procedural double jeopardy bar to any reprosecution for armed robbery. Prater v. State, 273 Ga. 477 , 541 S.E.2d 351 (2001).
Carjacking and armed robbery. - Defendant's prosecution for a car hijacking was not barred by O.C.G.A. § 16-1-8(b)(1) as the car hijacking and the armed robbery did not arise from the same conduct because the car hijacking incident and the armed robbery incident occurred three days apart, took place at different locations, and involved different victims. Syas v. State, 273 Ga. App. 161 , 614 S.E.2d 803 (2005).
Effect of erroneously labeling dismissal for failure to prosecute as acquittal. - Trial judge cannot terminate state's right to prosecute by erroneously labeling ruling an acquittal. Accordingly, the state is not barred from appealing such void acquittals, since the issue has not been joined in criminal cases and the defendant has not been placed in jeopardy on those charges. State v. Cooperman, 147 Ga. App. 556 , 249 S.E.2d 358 (1978).
Effect of improper revocation of bond. - Incarceration of defendant resulting from the improper revocation of defendant's bond was not a bar to prosecution for vehicular homicide and related offenses. Shaw v. State, 225 Ga. App. 193 , 483 S.E.2d 646 (1997).
Continuation of a trial for two months before the same jury, absent exceptional circumstances or consent of the parties, was improper; however, the continuance did not constitute a "termination" within the meaning of O.C.G.A. § 16-1-8 and later proceedings were not barred by double jeopardy; overruling Paquin v. Town of Tyrone, 261 Ga. 418 , 405 S.E.2d 497 (1991). Morris v. State, 264 Ga. 823 , 452 S.E.2d 100 (1995).
Effect on subsequent prosecution of nolle prosequi before jury impaneled. - When in superior court, before a jury is impaneled and sworn, the state enters a nolle prosequi of the indictment, and one of the charges is transferred to the county solicitor's office where it subsequently is included in an accusation before the state court, this does not result in an improper termination or constitute the basis for prosecutorial misconduct, and the prosecution is not barred because of double jeopardy. Newman v. State, 166 Ga. App. 609 , 305 S.E.2d 123 (1983).
Motion to dismiss waives right to object to termination of trial and no former jeopardy arises. Daughtrey v. State, 138 Ga. App. 504 , 226 S.E.2d 773 (1976).
Defendant was named as unindicted coconspirator in entirely different proceeding which in no way operated to place defendant in double jeopardy. Caldwell v. State, 171 Ga. App. 680 , 320 S.E.2d 888 (1984).
Record must affirmatively demonstrate that issue in second trial was previously determined. - Unless record of prior proceeding affirmatively demonstrates that issue involved in second trial was definitely determined in former trial, possibility that it may have been does not prevent relitigation of that issue. State v. Tate, 136 Ga. App. 181 , 220 S.E.2d 741 (1975).
Effect of trial court's findings of juror impartiality. - Although question of juror impartiality is a mixed question of law and fact, trial court's findings of impartiality will be set aside only where manifest prejudice to defendant has been shown. Jones v. State, 247 Ga. 268 , 275 S.E.2d 67 , cert. denied, 454 U.S. 817, 102 S. Ct. 94 , 70 L. Ed. 2 d 86 (1981).
Vehicular homicide prosecution not barred when victim died following traffic violation prosecutions. - Prosecution for vehicular homicide was not barred against a defendant who at prior proceedings had been prosecuted for and pled guilty to other offenses arising from the same incident since, at the time of the earlier proceedings, the victim had not yet died. Herrera v. State, 175 Ga. App. 740 , 334 S.E.2d 339 (1985).
Effect of prior hearing under Uniform Code of Military Justice. - Recommended dismissal, arising from Article 32 hearing under Uniform Code of Military Justice (10 U.S.C. § 832), is not acquittal or an equivalent resolution of factual issues in defendant's favor. Coalter v. State, 183 Ga. App. 335 , 358 S.E.2d 894 (1987).
Federal firearm conviction did not bar prosecution for felony murder. - Fact that the defendant had been convicted in federal court of possession of a firearm under 18 U.S.C. § 922 did not bar a felony murder prosecution in state court on double jeopardy grounds as the state had to prove facts in the felony murder case that were not required to be proved in the federal case. Moreover, the federal offense, which required that a firearm be possessed in and affecting interstate commerce, was not within the concurrent jurisdiction of Georgia and under O.C.G.A. § 16-1-8(c) did not bar a subsequent prosecution for felony murder predicated on the underlying firearm possession charge. Marshall v. State, 286 Ga. 446 , 689 S.E.2d 283 (2010).
Trial in Georgia appropriate despite trial in another state. - As the defendant's theft by taking an automobile occurred in both Georgia and Kentucky, the fact that the defendant was prosecuted in Kentucky did not bar Georgia from also prosecuting the defendant under the dual sovereignty doctrine of the double jeopardy clause; further, O.C.G.A. § 16-1-8(c) was inapplicable because there was not a federal prosecution for the same crime. Jackson v. State, 284 Ga. 826 , 672 S.E.2d 640 (2009).
Acquittal on aggravated sodomy charge did not bar conviction for sexual assault under another count of the indictment. The dates alleged for the two charges were different, and the victim recounted two separate incidents when defendant performed oral sex on the victim. In short, the charges did not involve the same conduct, and no substantive or procedural aspects of double jeopardy were violated. Brown v. State, 188 Ga. App. 510 , 373 S.E.2d 293 (1988).
Indictment on charges previously nolle prossed. - It was not a violation of O.C.G.A. §§ 16-1-7(b) and 16-1-8(b) to indict the defendant on charges that had previously been nolle prossed under a plea agreement; the defendant breached the agreement by withdrawing a guilty plea to one charge, thereby allowing the state to indict the defendant on the charges that were previously nolle prossed. Thomas v. State, 285 Ga. App. 792 , 648 S.E.2d 111 , cert. denied, No. S07C1550, 2007 Ga. LEXIS 628 (Ga. 2007).
Indictment returned while jeopardy ongoing. - Second indictment, which was apparently filed to address the eventuality that the defendants' motion to withdraw a guilty plea would be granted, was returned while the defendant's jeopardy was ongoing, and, as such, the indictment did not violate U.S. Const., amend. 5; Ga. Const. 1983, Art. I, Sec. I, Para. XVIII; or O.C.G.A. § 16-1-8 . Phillips v. State, 298 Ga. App. 520 , 680 S.E.2d 424 (2009).
Second indictment did not violate double jeopardy under O.C.G.A. § 16-1-8(a) as entry of nolle prosequi as to earlier counts did not give rise to a viable double jeopardy challenge to reindictment on the same offenses. Phillips v. State, 298 Ga. App. 520 , 680 S.E.2d 424 (2009).
Independent offenses. - Defendant's plea of guilty to receipt of the victim's automobile did not bar prosecution for burglary of the victim's home prior to taking the vehicle. Maxey v. State, 239 Ga. App. 638 , 521 S.E.2d 673 (1999).
Defendant not placed in jeopardy. - Trial court erred by granting defendant's plea in bar and by granting defendant's request for acquittal and discharge of aggravated battery and aggravated assault counts based on procedural double jeopardy protections as defendant was never placed in jeopardy as to those charges, which were brought in a new indictment against defendant, and defendant's speedy trial request did not apply to the new indictment since the case had been transferred to the superior court. State v. Jones, 290 Ga. App. 879 , 661 S.E.2d 573 (2008).
State permitted to prove case against defendant. - Because the defendant's brother was prosecuted in federal court for possession of a cocaine mixture in an apartment, the state was permitted to prove the state's case against the defendant by proof of joint constructive possession; the state did not prosecute the brother for the brother's joint constructive possession of the cocaine mixture in the apartment, but the United States did prosecute the brother in federal court. Holiman v. State, 313 Ga. App. 76 , 720 S.E.2d 363 (2011).
Firearm conviction not precluded by collateral estoppel. - Defendant's conviction of possession of a firearm by a convicted felon was not precluded by collateral estoppel where defendant was acquitted of two other charges (aggravated assault and possession of a firearm during commission of a crime against a person) arising out of the same incident; the jury could have concluded that defendant had the gun but did not assault or attempt to rob the victim with it. Clark v. State, 194 Ga. App. 280 , 390 S.E.2d 425 (1990).
Disorderly conduct and DUI. - State was not barred from prosecuting defendant for the charges of violation of probationary license and DUI even though defendant had already been prosecuted for a disorderly conduct charge which arose out of a disturbance at a restaurant shortly before defendant drove off and was then stopped and charged with DUI. Selvey v. State, 201 Ga. App. 848 , 412 S.E.2d 611 (1991).
Double jeopardy issues with vehicular offenses. - Because a uniform traffic citation was deliberately withheld from filing, and the state did not authorize or participate in the prosecution of the case, the probate court lacked authority to accept defendant's plea to the proposed charge and impose a fine, making its resulting judgment void; hence, the trial court did not err in denying defendant's plea in bar based on double jeopardy, since the probate court's void judgment could not serve as the basis for barring the subsequent indictment and prosecution of defendant in the superior court. Roberts v. State, 280 Ga. App. 672 , 634 S.E.2d 790 (2006).
Premature termination of trial. - Termination of defendant's trial after the first witness was sworn, but before findings were rendered by the trier of facts, was improper, where there was nothing in the record to indicate that defendant consented to the premature termination of trial, nor any evidence that defendant waived the right to object to the termination. Phillips v. State, 197 Ga. App. 491 , 399 S.E.2d 234 (1990).
Superior court erred in overruling defendant's plea of former jeopardy to a prosecution for driving under the influence, where a recorder's court judge had improperly terminated defendant's trial on the same charge in referring the case to the superior court. Phillips v. State, 197 Ga. App. 491 , 399 S.E.2d 234 (1990).
Defendant was placed in double jeopardy where the probate court terminated the trial after the first witness was sworn and before findings of fact were rendered by the trier of fact and the court, sua sponte, bound over the case to the superior court without consent of the defendant to the bind-over. Dean v. State, 214 Ga. App. 768 , 449 S.E.2d 158 (1994).
Defendant waived the right to object to termination of probate court proceedings by requesting the probate court judge to bind the case over to the superior court. Bramlett v. State, 222 Ga. App. 687 , 475 S.E.2d 704 (1996).
Predicate offenses for RICO violation. - Failure to strike from a Racketeer Influenced and Corrupt Organizations Act (RICO) indictment, as predicate offenses, three thefts which had been formerly prosecuted was harmless error, where there was no reason to infer that defendant's guilty pleas to other offenses were tainted or otherwise affected by the superfluous addition of predicate offenses which had formerly been prosecuted. Bethune v. State, 198 Ga. App. 490 , 402 S.E.2d 276 , cert. denied, 198 Ga. App. 897 , 402 S.E.2d 276 (1991).
Sale and possession or drug offenses. - When defendant engaged in two separate courses of conduct, the attempt to sell marijuana to an undercover police officer and the possession of 12 pounds of marijuana at defendant's home, double jeopardy did not attach to the second prosecution, as these acts occurred at different times and locations, with distinct quantities of contraband, even though defendant might have at some earlier time possessed all the marijuana in defendant's home; thus, defendant's argument on substantive double jeopardy was rejected. Kinchen v. State, 265 Ga. App. 474 , 594 S.E.2d 686 (2004).
Felony murder prosecution not precluded by double jeopardy claim. - In a case arising out of a robbery and shooting death, where, in the original trial, a mistrial was entered on the felony murder count, and defendant was found not guilty of aggravated assault with intent to rob, the state's subsequent prosecution of defendant for felony murder based on the separate underlying felony of aggravated assault with a deadly weapon was not barred by collateral estoppel as a violation of defendant's double jeopardy rights because evidence adduced at the first trial revealed that defendant jury could have concluded that defendant assaulted the victim with a deadly weapon but did not do so with the intent to rob. Phillips v. State, 272 Ga. 840 , 537 S.E.2d 63 (2000).
State's motion for mistrial based on lack of disclosure did not prohibit retrial. - Trial court did not abuse its discretion in granting the state's motion for a mistrial and ordering that defendant disclose additional alibi witnesses that defense counsel did not disclose after the state demanded such disclosure, but whom defense counsel mentioned in opening statement to the jury in defendant's death penalty case, as the trial court's decision to grant that sanction was entitled to great deference and the failure to disclose the additional alibi witnesses violated the state's right to a fair trial and the state was not precluded from retrying defendant after it obtained such disclosure. Tubbs v. State, 276 Ga. 751 , 583 S.E.2d 853 (2003).
Subsequent prosecution not barred since prosecutor had no earlier knowledge. - Because the defendant failed to affirmatively show that the prosecutor had any actual knowledge regarding approximately $300,000 worth of jewelry items found in a toolbox located at the defendant's residence upon an eviction, which were the subject of a second theft prosecution involving jewelry the defendant had stolen, the second prosecution regarding those items was not barred on double jeopardy grounds. White v. State, 284 Ga. App. 805 , 644 S.E.2d 903 , cert. denied, No. S07C1243, 2007 Ga. LEXIS 564 (Ga. 2007).
Trial court did not err by denying the defendant's motion to dismiss on double jeopardy grounds because, before the first trial, the witness statements did not demand a finding, as a matter of law, that the prosecutor had actual knowledge that the defendant had committed the crimes of conspiring to distribute marijuana and distributing marijuana; and, with regard to the gang crime, there was evidence that the state knew only that the defendant had joined a gang years before, not that the defendant was currently involved in drug-related gang activity. Randolph v. State, 334 Ga. App. 475 , 780 S.E.2d 19 (2015).
Sentence vacated and resentencing ordered when the trial court erred by increasing a juvenile defendant's voluntary manslaughter sentence after defendant had already begun serving the sentence, because the original sentence was final at the time it was imposed, and defendant had no reason to believe otherwise; hence, the trial court's increased sentence constituted double jeopardy and could not stand. Williams v. State, 273 Ga. App. 42 , 614 S.E.2d 146 (2005).
OPINIONS OF THE ATTORNEY GENERAL
Separate prosecutions for municipal and state law prosecutions. - An accused arrested for separate non-included offenses arising out of a single transaction, which violate municipal ordinances and state law respectively, may be prosecuted first in the recorder's court for the municipal ordinance violations, and then transferred to the superior court to be prosecuted for the separate state violations, without violating statutory or constitutional double jeopardy prohibitions. 1986 Op. Att'y Gen. No. U86-32.
RESEARCH REFERENCES
Am. Jur. 2d. - 16B Am. Jur. 2d, Constitutional Law, § 643 et seq. 21 Am. Jur. 2d, Criminal Law, §§ 269 et seq., 315 et seq., 323 et seq. 75B Am. Jur. 2d, Trials, § 1407 et seq.
C.J.S. - 22 C.J.S., Criminal Procedure and Rights of the Accused, § 212. 22A C.J.S. Criminal Procedure and Rights of the Accused, § 605 et seq.
ALR. - Conviction or acquittal of larceny as bar to prosecution for burglary, 19 A.L.R. 626 .
Pendency in one county of charge of larceny as bar to subsequent charge in another county of offense which involves both felonious breaking and felonious taking of same property, 19 A.L.R. 636 .
Conviction or acquittal upon charge of murder of, or assault upon, one person as bar to prosecution for like offense against another person at the same time, 20 A.L.R. 341 ; 113 A.L.R. 222 .
Acquittal or conviction of one offense in connection with operation of automobile as bar to prosecution for another, 44 A.L.R. 564 ; 172 A.L.R. 1053 .
Illness or death of member of juror's family as justification for declaring mistrial and discharging jury in criminal case, 53 A.L.R. 1062 .
Award of venire de novo or new trial after verdict of guilty as to one or more counts and acquittal as to another as permitting retrial or conviction on latter count, 80 A.L.R. 1106 .
Discharge on habeas corpus after conviction as affecting claim or plea of former jeopardy, 97 A.L.R. 160 .
Impersonation or false statement by juror as to his identity as ground for new trial, 127 A.L.R. 717 .
Conviction or acquittal in criminal prosecution as bar to action for statutory damages or penalty, 42 A.L.R.2d 634.
Conviction of lesser offense as bar to prosecution for greater on new trial, 61 A.L.R.2d 1141.
Conviction from which appeal is pending as bar to another prosecution for same offense, 61 A.L.R.2d 1224.
Propriety, and effect as double jeopardy, of court's grant of new trial on own motion in criminal case, 85 A.L.R.2d 486.
Prejudicial effect of prosecuting attorney's argument to jury that people of city, county, or community want or expect a conviction, 85 A.L.R.2d 1132.
Prosecution for robbery of one person as bar to subsequent prosecution for robbery of another person committed at the same time, 51 A.L.R.3d 693.
Former jeopardy: Propriety of trial court's declaration of mistrial or discharge of jury, without accused's consent, on ground of prosecution's disclosure of prejudicial matter to, or making prejudicial remarks in presence of, jury, 77 A.L.R.3d 1143.
Propriety and prejudicial effect of informing jury that accused has taken polygraph test, where results of test would be inadmissible in evidence, 88 A.L.R.3d 227.
Propriety and prejudicial effect of prosecutor's argument to jury indicating his belief or knowledge as to guilt of accused - modern state cases, 88 A.L.R.3d 449.
Acquittal of criminal charges other than contempt as precluding contempt proceedings relating to same transaction, 88 A.L.R.3d 1089.
Acquittal as bar to prosecution of accused for perjury committed at trial, 89 A.L.R.3d 1098.
Propriety and prejudicial effect of prosecutor's argument to jury indicating that he has additional evidence of defendant's guilt which he did not deem necessary to present, 90 A.L.R.3d 646.
Propriety and prejudicial effect of prosecutor's argument giving jury impression that judge believes defendant guilty, 90 A.L.R.3d 822.
Instructions urging dissenting jurors in state criminal case to give due consideration to opinion of majority (Allen charge) - modern cases, 97 A.L.R.3d 96.
Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts - modern view, 18 A.L.R.4th 802.
Effect of juror's false or erroneous answer on voir dire in personal injury or death action as to previous claims or actions for damages by himself or his family, 38 A.L.R.4th 267.
Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts - modern view, 97 A.L.R.5th 201.
16-1-9. Application of title to crimes committed prior to enactment.
This title shall govern the construction and punishment of any crime defined in this title committed on and after July 1, 1969, as well as the construction and application of any defense. This title does not apply to or govern the construction or punishment of any crime committed prior to July 1, 1969, or the construction or application of any defense. Such a crime must be construed and punished according to the law existing at the time of the commission thereof in the same manner as if this title had not been enacted.
(Laws 1833, Cobb's 1851 Digest, p. 838; Code 1863, § 4550; Code 1868, § 4570; Code 1873, § 4664; Code 1882, § 4664; Penal Code 1895, § 18; Penal Code 1910, § 18; Code 1933, § 26-103; Code 1933, § 26-103, enacted by Ga. L. 1968, p. 1249, § 1.)
JUDICIAL DECISIONS
Cited in Ponder v. State, 121 Ga. App. 788 , 175 S.E.2d 55 (1970); Nestor v. State, 122 Ga. App. 290 , 176 S.E.2d 637 (1970); Blankenship v. State, 123 Ga. App. 496 , 181 S.E.2d 544 (1971); Gunn v. State, 227 Ga. 786 , 183 S.E.2d 389 (1971); Sadler v. State, 124 Ga. App. 266 , 183 S.E.2d 501 (1971); Price v. State, 124 Ga. App. 850 , 186 S.E.2d 360 (1971); Papp v. State, 129 Ga. App. 718 , 201 S.E.2d 157 (1973); State v. Hasty, 158 Ga. App. 464 , 280 S.E.2d 873 (1981); State v. Williams, 172 Ga. App. 708 , 324 S.E.2d 557 (1984); Moton v. State, 242 Ga. App. 397 , 530 S.E.2d 31 (2000).
16-1-10. Punishment for crimes for which punishment not otherwise provided.
Any conduct that is made criminal by this title or by another statute of this state and for which punishment is not otherwise provided, shall be punished as for a misdemeanor.
(Orig. Code 1863, § 4395; Ga. L. 1865-66, p. 233, § 2; Code 1868, § 4436; Code 1873, § 4509; Code 1882, § 4509; Penal Code 1895, § 334; Penal Code 1910, § 339; Code 1933, § 26-5001; Code 1933, § 26-104, enacted by Ga. L. 1968, p. 1249, § 1.)
Cross references. - Punishment for misdemeanors generally, § 17-10-3 .
JUDICIAL DECISIONS
Cited in MacDougald v. State, 124 Ga. App. 619 , 184 S.E.2d 687 (1971); Blair v. State, 127 Ga. App. 111 , 192 S.E.2d 542 (1972); Cook v. State, 256 Ga. 808 , 353 S.E.2d 333 (1987); English v. State, 282 Ga. App. 552 , 639 S.E.2d 551 (2006).
RESEARCH REFERENCES
Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, § 1.
ALR. - Civil and criminal liability of soldiers, sailors, and militiamen, 143 A.L.R. 1530 .
16-1-11. Effect of repeal or amendment of criminal law on prosecution of prior violations.
The repeal, repeal and reenactment, or amendment of any law of this state which prohibits any act or omission to act and which provides for any criminal penalty therefor, whether misdemeanor, misdemeanor of a high and aggravated nature, or felony, shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment unless the General Assembly expressly declares otherwise in the Act repealing, repealing and reenacting, or amending such law.
(Code 1981, § 16-1-11 , enacted by Ga. L. 1987, p. 260, § 1.)
Editor's notes. - The title of Ga. L. 1987, p. 260, declares the purpose of the Act which enacted this Code section is "to supersede and abolish the rule of common law stated by the Supreme Court of Georgia in the case of Robinson v. State, 256 Ga. 564 , 350 S.E.2d 464 (1986)."
OPINIONS OF THE ATTORNEY GENERAL
Prosecution of persons designated habitual violators before January 1, 1991. - Holding of the Court of Appeals in Galletta v. Hardison, 168 Ga. App. 36 (1983) is applicable solely to appeals from driver's license revocations by the Georgia Department of Public Safety and individuals designated as habitual violators prior to January 1, 1991, based upon one or more convictions for driving with a suspended license who drive prior to obtaining reinstatement of their driving privileges by the Department of Public Safety. These groups are subject to felony prosecution pursuant to O.C.G.A. § 40-5-58(c) notwithstanding the 1990 amendment to that Code Section. 1992 Op. Att'y Gen. No. U92-5.
16-1-12. Restrictions on contingency fee compensation of attorney appointed to represent state in forfeiture action.
- In any forfeiture action brought pursuant to this title, an attorney appointed by the Attorney General or district attorney as a special assistant attorney general, special assistant district attorney, or other attorney appointed to represent this state in such forfeiture action shall not be compensated on a contingent basis by a percentage of assets which arise or are realized from such forfeiture action. Such attorneys shall also not be compensated on a contingent basis by an hourly, fixed fee, or other arrangement which is contingent on a successful prosecution of such forfeiture action.
- Nothing in this Code section shall be construed as prohibiting or otherwise restricting the Attorney General or a district attorney from appointing special assistants or other attorneys to assist in the prosecution of any action brought pursuant to this title. (Code 1981, § 16-1-12 , enacted by Ga. L. 2012, p. 1035, § 2/SB 181.)
Editor's notes. - Ga. L. 2012, p. 1035, § 3/SB 181, approved by the Governor May 2, 2012, provided that the effective date of this Code section is July 1, 2011. See Op. Att'y Gen. No. 76-76 for construction of effective date provisions that precede the date of approval by the Governor.
CHAPTER 2 CRIMINAL LIABILITY
Culpability.
Parties to Crimes.
ARTICLE 1 CULPABILITY
16-2-1. "Crime" defined.
- A "crime" is a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence.
-
Criminal negligence is an act or failure to act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured thereby.
(Laws 1833, Cobb's 1851 Digest, p. 779; Code 1863, § 4188; Code 1868, § 4227; Code 1873, § 4292; Code 1882, § 4292; Penal Code 1895, § 31; Penal Code 1910, § 31; Code 1933, § 26-201; Code 1933, § 26-601, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 2004, p. 57, § 2.)
Editor's notes. - Ga. L. 2004, p. 57, § 6, not codified by the General Assembly, provides that the amendment by that Act shall apply to all crimes which occur on or after July 1, 2004.
Law reviews. - For article on 2004 amendment of this Code section, see 21 Ga. St. U. L. Rev. 45 (2004). For note, "I Tolled You I Had More Time!: The Future of Tolling Looks Bright for Crime Victims, as the Georgia Court of Appeals Establishes New Meaning of O.C.G.A. § 9-3-99 ," see 68 Mercer L. Rev. 557 (2017).
JUDICIAL DECISIONS
ANALYSIS
General Consideration
Only violations of public laws are recognized as criminal offenses. Jenkins v. State, 14 Ga. App. 276 , 80 S.E. 688 (1914).
An act specially authorized by public law cannot be a crime. Vason v. South Carolina R.R., 42 Ga. 631 (1871).
New felonies become subject to existing rules of procedure. - When statute is passed defining a new felony, it becomes incorporated in the body of the criminal law, subject to all rules of procedure applicable to other crimes of like grade. Bishop v. State, 118 Ga. 799 , 45 S.E. 614 (1903).
Infractions of local laws and ordinances have no place in the Penal Code. Pearson v. Wimbish, 124 Ga. 701 , 52 S.E. 751 , 4 Ann. Cas. 501 (1906).
Penalty is not an ingredient of a crime, only a consequence of its commission. Jenkins v. State, 14 Ga. App. 276 , 80 S.E. 688 (1914).
Absent intention or criminal negligence, there is no crime, notwithstanding fact that criminal act has been committed. Cargile v. State, 194 Ga. 20 , 20 S.E.2d 416 , answer conformed to, 67 Ga. App. 610 , 21 S.E.2d 326 (1942).
Every crime consists in union or joint operation of act and intention. Mallette v. State, 119 Ga. App. 24 , 165 S.E.2d 870 (1969).
Statutory reference in indictment not required. - Indictment need not specify statute drawn under since offense charged shall be determined by allegations. Turner v. State, 233 Ga. 538 , 212 S.E.2d 370 (1975).
In order to charge statutory offenses, indictments are not constitutionally required to cite or name statute. Turner v. State, 233 Ga. 538 , 212 S.E.2d 370 (1975).
Failure to charge jury in exact language of section is not error when the court fully instructs on essential elements of the crime charged including the requisite intent. Coleman v. State, 137 Ga. App. 689 , 224 S.E.2d 878 (1976); Redd v. State, 141 Ga. App. 888 , 234 S.E.2d 812 (1977); Ward v. State, 271 Ga. 648 , 520 S.E.2d 205 (1999).
Failure to include instruction on intent. - It was not error to omit, without request, a statement in the charge with regard to defendant's intent to commit the act, where the charge did include instructions on the statutory requirements of the offense in question. Nestor v. State, 122 Ga. App. 290 , 176 S.E.2d 637 (1970).
Absent request, court need not specifically charge exact language of section. - Failure to specifically charge exact language of former Code 1933, §§ 26-601 and 26-605 (see O.C.G.A. §§ 16-2-1 and 16-2-6 ) was not reversible error absent request therefore and when subject of intent was fully charged. Smith v. State, 139 Ga. App. 660 , 229 S.E.2d 74 (1976).
Inclusion in charge where omission or negligence are not part of crime charged. - When an unchallenged charge to the jury included language mirroring O.C.G.A. § 16-2-1 in charging that a crime could consist of an omission to act or criminal negligence, two elements not involved in the defendant's case, but the charge as a whole properly instructed on the burden of proof and the elements of the crimes and omitted the language at issue on a recharge, there was no substantial or reversible error. Ramey v. State, 235 Ga. App. 690 , 510 S.E.2d 358 (1998).
Violations of municipal ordinances and administrative regulations are not crimes. - Purpose of former Code 1933, § 26-201 was to make clear that only violations of state statutes, and not of municipal ordinances and administrative regulations, were crimes. Turner v. State, 233 Ga. 538 , 212 S.E.2d 370 (1975); Horace Mann Ins. Co. v. Drury, 213 Ga. App. 321 , 445 S.E.2d 272 (1994).
Former Code 1933, § 26-201 refered only to violations of statutes of this state, thereby excluding municipal ordinances and administrative regulations. State v. Burroughs, 244 Ga. 288 , 260 S.E.2d 5 (1979).
Cited in Steele v. State, 227 Ga. 653 , 182 S.E.2d 475 (1971); Gunn v. State, 227 Ga. 786 , 183 S.E.2d 389 (1971); Teasley v. State, 228 Ga. 107 , 184 S.E.2d 179 (1971); Robertson v. State, 127 Ga. App. 6 , 192 S.E.2d 502 (1972); K.M.S. v. State, 129 Ga. App. 683 , 200 S.E.2d 916 (1973); Gentry v. State, 129 Ga. App. 819 , 201 S.E.2d 679 (1973); Golson v. State, 130 Ga. App. 577 , 203 S.E.2d 917 (1974); Bentley v. State, 131 Ga. App. 425 , 205 S.E.2d 904 (1974); Tift v. State, 133 Ga. App. 455 , 211 S.E.2d 409 (1974); Snell v. McCoy, 135 Ga. App. 832 , 219 S.E.2d 482 (1975); Johnson v. State, 235 Ga. 486 , 220 S.E.2d 448 (1975); Proctor v. State, 235 Ga. 720 , 221 S.E.2d 556 (1975); Bradley v. State, 137 Ga. App. 670 , 224 S.E.2d 778 (1976); Wiggins v. State, 139 Ga. App. 98 , 227 S.E.2d 895 (1976); Dodson v. State, 237 Ga. 607 , 229 S.E.2d 364 (1976); Brooks v. State, 144 Ga. App. 97 , 240 S.E.2d 593 (1977); Stone v. State, 145 Ga. App. 816 , 245 S.E.2d 62 (1978); Barrett v. State, 146 Ga. App. 207 , 245 S.E.2d 890 (1978); Clary v. State, 151 Ga. App. 301 , 259 S.E.2d 697 (1979); Puritan/Churchill Chem. Co. v. Eubank, 245 Ga. 334 , 265 S.E.2d 16 (1980); Hardeman v. State, 154 Ga. App. 364 , 268 S.E.2d 415 (1980); Jones v. State, 154 Ga. App. 806 , 270 S.E.2d 201 (1980); Morrow v. State, 155 Ga. App. 574 , 271 S.E.2d 707 (1980); Craft v. State, 158 Ga. App. 745 , 282 S.E.2d 203 (1981); Williams v. State, 159 Ga. App. 865 , 285 S.E.2d 597 (1981); Mitchell v. State, 162 Ga. App. 780 , 293 S.E.2d 48 (1982); Brinson v. State, 163 Ga. App. 567 , 295 S.E.2d 536 (1982); Coker v. State, 163 Ga. App. 799 , 295 S.E.2d 538 (1982); Fambro v. State, 164 Ga. App. 359 , 297 S.E.2d 111 (1982); Johnson v. State, 170 Ga. App. 433 , 317 S.E.2d 213 (1984); Cherry v. State, 174 Ga. App. 145 , 329 S.E.2d 580 (1985); Whitley v. State, 176 Ga. App. 364 , 336 S.E.2d 301 (1985); Lewis v. State, 180 Ga. App. 369 , 349 S.E.2d 257 (1986); Daughtry v. State, 180 Ga. App. 711 , 350 S.E.2d 53 (1986); Abernathy v. State, 191 Ga. App. 350 , 381 S.E.2d 537 (1989); Howard v. State, 192 Ga. App. 813 , 386 S.E.2d 667 (1989); Frost v. State, 200 Ga. App. 267 , 407 S.E.2d 765 (1991); Bohannon v. State, 230 Ga. App. 829 , 498 S.E.2d 316 (1998); Mitchell v. State, 233 Ga. App. 92 , 503 S.E.2d 293 (1998); Stokes v. State, 232 Ga. App. 232 , 501 S.E.2d 599 (1998); Barnes v. Greater Ga. Life Ins. Co., 243 Ga. App. 149 , 530 S.E.2d 748 (2000); Maynor v. State, 257 Ga. App. 151 , 570 S.E.2d 428 (2002); State v. Ogilvie, 292 Ga. 6 , 734 S.E.2d 50 (2012); State v. Ashley, 299 Ga. 450 , 788 S.E.2d 796 (2016); Wimbush v. State, 345 Ga. App. 54 , 812 S.E.2d 489 (2018); Nordahl v. State, 306 Ga. 15 , 829 S.E.2d 99 (2019).
Intent
Crimes require act which violates the law, and intent to do the act done. Owens v. State, 120 Ga. 296 , 48 S.E. 21 (1904); Mitchell v. State, 20 Ga. App. 778 , 93 S.E. 709 (1917); James v. State, 153 Ga. 556 , 112 S.E. 899 (1922).
General intent is essential element of all state crimes except those involving criminal negligence. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019 , 69 L. Ed. 2 d 398 (1981).
General intent refers to proposition that one intends consequences of one's voluntary physical actions. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019 , 69 L. Ed. 2 d 398 (1981).
Word "intention" means an intention to commit the act statutorily prohibited, not an intention to violate a penal statute. Schwerdtfeger v. State, 167 Ga. App. 19 , 305 S.E.2d 834 (1983).
Criminal intent is simply intention to do act which legislature has prohibited. Herbert v. State, 45 Ga. App. 340 , 164 S.E. 452 (1932).
Criminal intent is an essential element in every crime where criminal negligence is not involved. Bacon v. State, 209 Ga. 261 , 71 S.E.2d 615 (1952).
Intention is manifested by circumstances surrounding perpetration of offense. - Sometimes intention can be proved, sometimes it can only be inferred or presumed, and general rule is that intention will be manifested by circumstances connected with perpetration of offense. Mallette v. State, 119 Ga. App. 24 , 165 S.E.2d 870 (1969).
Term "maliciously" includes intent. Maltbie v. State, 139 Ga. App. 342 , 228 S.E.2d 368 (1976).
Intent with which act is done is peculiarly a question of fact for determination by jury and although finding that accused had intent to commit crime charged may be supported by evidence which is exceedingly weak and unsatisfactory, verdict will not be set aside on that ground. Mallette v. State, 119 Ga. App. 24 , 165 S.E.2d 870 (1969).
One mentally incapable of having intent cannot commit a crime. - One too young, too feeble-minded, or otherwise mentally incapable of having an intent, cannot commit a crime. Miley v. State, 118 Ga. 274 , 45 S.E. 245 (1903).
Statute does not make guilty knowledge indispensable to conviction of crime. - There are certain cases, especially those which relate to public safety, in which commission of prohibited act, whether knowingly or not, makes actor guilty. General Oil Co. v. Crowe, 54 Ga. App. 139 , 187 S.E. 221 (1936).
Scienter is not an indisputable element of the intent referred to in this statute; it is sufficient if the act intended and committed constitutes a violation of the law. Ware v. State, 6 Ga. App. 578 , 65 S.E. 333 (1909); Mitchell v. State, 20 Ga. App. 778 , 93 S.E. 709 (1917); Nelson v. State, 27 Ga. App. 50 , 107 S.E. 400 (1921).
If scienter is made part of offense by statute, it must be established as a necessary element of the crime. One's belief in the lawfulness of the act done, coupled with exercise of reasonable diligence to ascertain the truth, may negative scienter. Robinson v. State, 6 Ga. App. 696 , 65 S.E. 792 (1907).
Intent need not be alleged specifically if, from language employed, it must necessarily be inferred that a criminal intent existed. Cason v. State, 16 Ga. App. 820 , 86 S.E. 644 (1914).
Intent may be inferred from circumstances. Steadman v. State, 18 Ga. 736 , 8 S.E. 420 (1888).
Intent may be ascertained by acts and conduct. Lawrence v. State, 68 Ga. 289 (1881).
Intent may be presumed when it is the natural and necessary consequence of act done. Marshall v. State, 59 Ga. 154 (1877); Freeman v. State, 70 Ga. 736 (1883); Lee v. State, 102 Ga. 221 , 29 S.E. 264 (1897).
Culpable neglect may take the place of positive intent in constituting an act a crime; and even where an act is committed by misfortune or accident, in order to free it from the imputation of crime, it must be made satisfactorily to appear that it did not result from evil design, intention, or culpable neglect. Loeb v. State, 75 Ga. 258 (1885).
When the defendant denies committing crime, charge as to intent not required. - Judge is not required to charge as to intent when it is not in issue because defendant never contended to have committed the acts unintentionally, but rather denied having committed the act at all. Redd v. State, 141 Ga. App. 888 , 234 S.E.2d 812 (1977).
When the defendant acknowledged intent, erroneous charge as to intent was harmless. - Error, if any, in jury charge on presumed intent in trial for malice murder was harmless since the petitioner pled self-defense at trial and acknowledged that the homicide was intentional. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019 , 69 L. Ed. 2 d 398 (1981).
Intent in aggravated sodomy case. - Trial judge was authorized to find beyond a reasonable doubt that defendant acted with the criminal intent to commit the prohibited act of aggravated sodomy by placing defendant's sexual organ in the victim's mouth with force and against the victim's will. Since there was no evidence that the trial court did not make the requisite finding regarding criminal intent, the appellate court found no error. Sims v. State, 267 Ga. App. 572 , 600 S.E.2d 613 (2004).
Offenses of murder, voluntary manslaughter, and aggravated assault do not require that the necessary element of intent to kill or injure, as the case may be, must have been directed toward the person who was killed or injured. Cook v. State, 255 Ga. 565 , 340 S.E.2d 843 , cert. denied, 479 U.S. 871, 107 S. Ct. 241 , 93 L. Ed. 2 d 166 (1986).
Intent element of aggravated assault. - Defendant's argument that the indictment against defendant charging defendant with aggravated assault was flawed because no intent was alleged was without merit. Aggravated assault with a deadly weapon did not require a specific criminal intent; rather, it only required a general intent to injure, and that general intent did not have to be expressly alleged. Bishop v. State, 266 Ga. App. 129 , 596 S.E.2d 674 (2004).
Allegation that defendant "unlawfully" possessed cocaine was sufficient to encompass both the intent to commit the proscribed act and the knowledge necessary to form that intent. Dye v. State, 177 Ga. App. 813 , 341 S.E.2d 469 (1986), overruled on other grounds, Eason v. State, 260 Ga. 445 , 396 S.E.2d 492 (1990), overruled on other grounds, State v. Lucious, 271 Ga. 361 , 518 S.E.2d 677 (1999).
Taking money from vehicle held separate offense from taking vehicle. - Although money was in a van at the time the van was stolen, the jury was authorized to find that defendant was not then aware of its presence, and defendant's act of physically taking the money from its hiding place, coupled with the then present intent to steal it, was a second criminal act against the property of the victim, separate and distinct from the earlier theft of the van. Accordingly, the trial court did not err in failing to grant defendant's motion for a directed verdict of acquittal as to one of the counts of theft by taking. Cook v. State, 180 Ga. App. 139 , 348 S.E.2d 687 (1986).
Intent in DUI case. - Trial court erred in the court's charge to the jury because the charge had the effect of eliminating the jury's consideration of defendant's defense that defendant was not driving or in actual physical control of the car. Defendant claimed that the car's movement was "an accident" caused by defendant's falling headfirst onto the floorboard. Virgil v. State, 227 Ga. App. 96 , 488 S.E.2d 694 (1997).
Verdict of "intent" insufficient for conviction for "attempt." - When the jury's verdict found the defendant "guilty" of only the "intent" to traffic in narcotics, a rewritten verdict for "attempt" was a mere nullity under the double jeopardy provision of the bill of rights since the original verdict amounted to an acquittal. Douglas v. State, 206 Ga. App. 740 , 426 S.E.2d 628 (1992).
Age of victim impacts ability to consent. - When the 14-year-old victim allegedly consented to having sex with the defendant, the sexual molestation conviction under O.C.G.A. § 16-6-4(a) was supported by sufficient evidence; under O.C.G.A. § 16-2-1 , consent by the victim was irrelevant due to the inability of the victim to legally consent to intercourse, and it was for the jury to determine, in accordance with the testimony of at least a single witness pursuant to former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8 ), whether the defendant's conduct was immoral or indecent under O.C.G.A. § 16-6-4(a) . Slack v. State, 265 Ga. App. 306 , 593 S.E.2d 664 (2004).
Criminal Negligence
Words "criminal negligence" were properly included in jury charge. - Words "criminal negligence" were an integral part of the definition of a crime, and were properly included in a jury charge on former Code 1933, § 26-601. Smith v. State, 238 Ga. 146 , 231 S.E.2d 757 (1977); Owen v. State, 266 Ga. 312 , 467 S.E.2d 325 (1996).
Instruction on definition of "crime." - Although "criminal negligence" was not an issue in a murder trial, the trial court did not err by employing the entirety of the language of O.C.G.A. § 16-2-1 in its charge to the jury on the general definition of "crime." Harper v. State, 182 Ga. App. 760 , 357 S.E.2d 117 (1987).
Pattern jury instruction on "definition of crime," which referenced criminal negligence, was not improper because the instruction was an accurate statement of the law; and, although the instruction made a passing reference to criminal negligence, there was no further mention of the term in the jury charge, and the jury was otherwise properly instructed on the general law of intent, as well as the intent required to prove malice murder. Walker v. State, 308 Ga. 33 , 838 S.E.2d 792 (2020).
Criminal negligence defined. - Criminal negligence is the reckless disregard of consequences, or a heedless indifference to rights and safety of others and a reasonable foresight that injury would probably result. Collins v. State, 66 Ga. App. 325 , 18 S.E.2d 24 (1941).
Criminal negligence means not merely such negligence as might be foundation of a damage suit, but reckless and wanton negligence and of such character as to show utter disregard for safety of others who might reasonably be expected to be injured thereby. Keye v. State, 136 Ga. App. 707 , 222 S.E.2d 172 (1975).
Criminal negligence is something more than ordinary negligence which would authorize recovery in civil action. Collins v. State, 66 Ga. App. 325 , 18 S.E.2d 24 (1941).
Term "heedless disregard" includes criminal negligence. Maltbie v. State, 139 Ga. App. 342 , 228 S.E.2d 368 (1976).
Denial of necessary and appropriate medical care for child. - Sufficient evidence supported the defendant's cruelty to children convictions based on being criminally negligent in failing to seek medical care for a defendant's child after the child was bitten by a dog and a human and suffered excessive vomiting, and the defendant knew for several days but did not seek medical attention for the child. Morast v. State, 323 Ga. App. 808 , 748 S.E.2d 287 (2013).
Defendant's guilty plea to second degree cruelty to children in violation of O.C.G.A. § 16-5-70(c) was not knowing and voluntary because the defendant was not adequately informed that the defendant's failure to seek medical care for the defendant's child after a boyfriend broke the child's leg was required to rise to a level of willful, wanton, or reckless disregard for the child's safety under O.C.G.A. § 16-2-1(b) . Kennedy v. Primack, 299 Ga. 698 , 791 S.E.2d 819 (2016).
Charge on criminal negligence warranted. - In light of the extensive jury instructions that emphasized the requirement for finding that the defendant knew of the prostitution activities at the employee's business before the jury could convict the defendant of keeping a place of prostitution, there was no error in giving the O.C.G.A. § 16-2-1 charge on the definition of a crime that referenced criminal negligence. Ahn v. State, 279 Ga. App. 501 , 631 S.E.2d 711 (2006).
Court erred by denying the defendant's petition for habeas relief from an aggravated assault conviction because appellate counsel's failure to raise the issue that the trial court erred by failing to charge the jury on negligence was not subjectively a strategic decision but was based upon counsel's lack of familiarity with the relevant law and was deficient. Sullivan v. Kemp, 293 Ga. 770 , 749 S.E.2d 721 (2013).
Instruction on criminal negligence unwarranted. - When the rightful owner of the parcel on which the defendant resided hired a tow truck company to enter the property to remove old vehicles parked on the parcel, and the defendant shot and killed one of the tow truck company employees, the trial court did not plainly err in refusing to give the defendant's requested charges on criminal negligence and on involuntary manslaughter as a lesser included offense of murder because, by finding the defendant guilty of malice murder, the jury found beyond a reasonable doubt that the defendant shot at the victim with malice aforethought; and the defendant did not show that the failure of the trial court to give the charges at issue likely affected the outcome of the trial. Reed v. State, 304 Ga. 400 , 819 S.E.2d 44 (2018).
Defendant acted with requisite criminal negligence. - Evidence was sufficient to support the defendant's conviction for cruelty to children in the second degree, O.C.G.A. § 16-5-70(c) , because the evidence authorized a finding that the defendant acted with the requisite criminal negligence under O.C.G.A. §§ 16-2-1(b) and 16-5-70(c) in causing the victim to sustain severe, painful burns to the victim's body; the state's expert testified that the victim's burns were inconsistent with the defendant's claim that the incident leading to the victim's injuries was merely accidental. Wells v. State, 309 Ga. App. 661 , 710 S.E.2d 860 (2011).
Evidence was sufficient to convict the mother of two counts of cruelty to children in the second degree as to the first child because the child felt lonely and isolated from the child's siblings while the child was locked in a basement closet for about two years, with only one or two daily visits from a parent; the window in the room was covered; the child's treating pediatrician testified that the child suffered from osteopenia in the wrists, knees, and legs, a rare condition that was likely caused by the child's confinement to a small room, which prohibited the child from playing, running, and exercising; and the child had significantly low levels of Vitamin D in the child's body, which could have caused the child's weakness and fatigue. Wimbush v. State, 345 Ga. App. 54 , 812 S.E.2d 489 (2018).
Requisite criminal negligence in leaving young child on couch. - Evidence was sufficient to convict the defendant of second-degree cruelty to children because the defendant's failure to secure the very young victim before leaving the victim on a couch for 15 minutes while the defendant used the bathroom exposed the victim to an obvious risk of injury of being smothered by couch cushions; and the defendant's actions showed the defendant's reckless disregard for the victim's safety. Scott v. State, 307 Ga. 37 , 834 S.E.2d 88 (2019).
Criminal negligence not found in 45 minute phone call. - Evidence was insufficient to convict the defendant because the state did not show that the defendant's conduct while the two children were under the defendant's supervision constituted criminal negligence supporting the defendant's convictions for second degree cruelty to children and for reckless conduct related to the drowning deaths of the two children as it could not be said that taking a 45-minute phone call in itself constituted a failure to reasonably supervise the children; the defendant confirmed that the children were in an upstairs room playing when the defendant initiated the phone call; and the defendant had told the children they could not go swimming and there was no showing that the children had a propensity to disobey the defendant. Corvi v. State, 296 Ga. 557 , 769 S.E.2d 388 (2015).
RESEARCH REFERENCES
Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, § 1 et seq.
C.J.S. - 22 C.J.S., Criminal Law: Substantive Principles, §§ 28, 35, 41.
16-2-2. Effect of misfortune or accident on guilt.
A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.
(Laws 1833, Cobb's 1851 Digest, p. 779; Code 1863, § 4198; Code 1868, § 4237; Code 1873, § 4302; Code 1882, § 4302; Penal Code 1895, § 40; Penal Code 1910, § 40; Code 1933, § 26-404; Code 1933, § 26-602, enacted by Ga. L. 1968, p. 1249, § 1.)
JUDICIAL DECISIONS
ANALYSIS
General Consideration
Logic of O.C.G.A. § 16-2-2 is questionable as in almost every circumstance an event that transpires by reason of "misfortune or accident" lacks the essential element of "any crime," which is the existence of a "criminal scheme or undertaking intention, or criminal negligence." Thus, it is difficult to comprehend how "any crime" can be "committed by misfortune or accident." Hamilton v. State, 260 Ga. 3 , 389 S.E.2d 225 (1990).
Every person is presumed to intend natural and probable consequences of own conduct, particularly if that conduct be unlawful and dangerous to safety or lives of others. Keye v. State, 136 Ga. App. 707 , 222 S.E.2d 172 (1975).
There are wanton or reckless states of mind, sometimes equivalent of specific intention to kill, and which may and should be treated by jury as amounting to such intention, when productive of violence likely to result in destruction of life. Keye v. State, 136 Ga. App. 707 , 222 S.E.2d 172 (1975).
Crimes are not committed by accident. - Jury instruction that crimes are not committed by accident was not erroneous, as such an instruction is an authorized reference to O.C.G.A. § 16-2-2 . Stone v. State, 257 Ga. App. 306 , 570 S.E.2d 715 (2002).
Defendant's request to charge the jury on accident was properly denied as the state's evidence indicated that defendant was the aggressor in the attack and that defendant intentionally threw a cup of liquid containing bleach into the victim's face; further, defendant admitted that defendant intentionally knocked the cup of bleach out of the victim's hand. Payne v. State, 273 Ga. App. 483 , 615 S.E.2d 564 (2005).
Offense of murder may be committed when there is no actual intent to kill. Keye v. State, 136 Ga. App. 707 , 222 S.E.2d 172 (1975).
Strict criminal liability. - In a prosecution for driving an unsafe motor vehicle with defective equipment, the defense of accident did not apply. The fact that there was no criminal scheme, undertaking, or criminal negligence was not a defense to a strict liability criminal statute. Coates v. State, 216 Ga. App. 93 , 453 S.E.2d 35 (1994).
After the defendant was charged with disobeying a traffic control device, rejection of an instruction under O.C.G.A. § 16-2-2 was proper because the charge was a strict liability offense. Arnold v. State, 228 Ga. App. 470 , 491 S.E.2d 819 (1997).
Accidental death not attributable to conduct of defendant. - Homicide by accident as defined in former Code 1933, § 26-602 does not include death from accidental means not attributable to any conduct, culpable or otherwise, on part of defendant. Johnson v. State, 239 Ga. 324 , 236 S.E.2d 661 (1977).
Defendant's testimony suggesting that the victim died from a drug overdose and denying that defendant took any action to cause the victim's death by manual strangulation did not involve homicide by accident, but only death from accidental means not attributable to any conduct on the part of defendant; thus, this testimony did not raise the issue of accident or misfortune, but related solely to causation, and defendant was not entitled to a charge on the law of accident. Wilson v. State, 279 Ga. 104 , 610 S.E.2d 66 (2005).
Decision to pursue accident defense not ineffective assistance. - Defense counsel's decision to pursue an accident defense was an informed strategic choice and was not ineffective assistance of counsel as the decision was not due to a misunderstanding of the law or the facts of the case; rather, counsel consulted with the defendant and learned that the defendant contended that the gun accidentally discharged. There was no evidence that the defendant pointed the gun at the victim before the shooting occurred and there was no dispute as to how the fatal injury was inflicted. Mayberry v. State, 281 Ga. 144 , 635 S.E.2d 736 (2006).
Consideration of section in connection with involuntary manslaughter section. - When the court attempts to apply involuntary manslaughter section, the court must consider in connection therewith former Code 1933, § 26-404 (see now O.C.G.A. § 16-2-2 ), the ordinary care sections, former Code 1933, §§ 105-201 and 105-401 (see now O.C.G.A. §§ 51-1-2 and 51-3-1 ), together with the section which specifies indispensable ingredients of crime. Geele v. State, 203 Ga. 369 , 47 S.E.2d 283 (1948).
Failure to charge accident in child molestation trial. - When there was evidence that defendant may have unintentionally touched the victim while sleeping in the same bed with the victim, and the record reflected that the accident was the entire thrust of defendant's defense, the trial court was required to give appropriate instructions on this principle to call the defense to the jury's attention. Metts v. State, 210 Ga. App. 197 , 435 S.E.2d 525 (1993).
In a child molestation case, the defendant was not entitled to an accident defense jury instruction under O.C.G.A. § 16-2-2 ; the defense relied upon by the defendant at trial was not that the illegal conduct occurred by accident but that the illegal conduct never happened at all. Haynes v. State, 281 Ga. App. 81 , 635 S.E.2d 370 (2006).
In a child molestation case, the trial court did not plainly err in failing to sua sponte charge the jury on the defense of accident because accident was not the defendant's sole defense to the charge that the defendant molested the victim by touching the victim's vaginal area with the defendant's hand as the state presented evidence that the defendant molested the victim in that manner on several occasions, and the defendant's accident defense addressed only one of those instances; further, the defendant did not show that the trial court's failure to charge the jury on accident likely affected the outcome of the proceedings. Pinkston v. State, 353 Ga. App. 88 , 834 S.E.2d 571 (2019).
DUI offense. - Trial court erred in the court's charge to the jury because the charge had the effect of eliminating the jury's consideration of the defendant's defense that the defendant was not driving or in actual physical control of the car. Defendant claimed that the car's movement was "an accident" caused by the defendant's falling headfirst onto the floorboard. Virgil v. State, 227 Ga. App. 96 , 488 S.E.2d 694 (1997).
Driving under the influence and failure to maintain lane convictions were affirmed because defendant was not entitled to a jury charge on the law of accident as the charges related not to the accident but to defendant's condition while driving. Moreover, the defendant did not admit to driving under the influence or failure to maintain a lane, and, as a result, defendant had no right to a charge of accident with regard to these crimes. Stefanell v. State, 263 Ga. App. 412 , 587 S.E.2d 868 (2003).
In a prosecution for driving under the influence and making an improper lane change, because the defendant did not request instructions on accident and justification, the trial court did not err in failing to give them; moreover, because the jury was charged on involuntary intoxication, the failure to charge on accident was not harmful as a matter of law. Walker v. State, 280 Ga. App. 393 , 634 S.E.2d 177 (2006).
Relevant evidence to defendant's defense of accident. - In connection with defendant's conviction for reckless driving, causing serious bodily injury due to reckless driving, and other crimes, the trial court abused the court's discretion in granting the state's motion in limine to exclude defendant's evidence of the design of the intersection as such evidence was relevant to defendant's defense of accident. Dunagan v. State, 283 Ga. 501 , 661 S.E.2d 525 (2008).
Malfunction of light showing green lights in both directions is not accident defense. - When the case arose from an intersection collision between a car which the defendant drove and another car, because the trial court correctly and repeatedly charged that the defendant could be convicted only if the state proved beyond a reasonable doubt that the stop light facing the defendant was red, any defense based upon the light being green when the defendant went through it was not an accident defense; logically, one cannot be convicted of running a red light if the light was, in fact, green; accordingly, the defendant's contention that there was a malfunction of the light showing green lights in both directions did not give rise to the defense of accident. Hoffer v. State, 192 Ga. App. 378 , 384 S.E.2d 902 , cert. denied, 192 Ga. App. 902 , 385 S.E.2d 307 (1989).
Charge on homicide by accident does not conflict with charge on law of reasonable doubt. Jones v. State, 140 Ga. 478 , 79 S.E. 114 (1913).
Charging O.C.G.A. § 16-2-2 does not cure omission to charge law of voluntary manslaughter. - Instruction charging this section does not cure failure to charge law of manslaughter when required. Freeman v. State, 158 Ga. 369 , 123 S.E. 126 (1924).
Instruction which embraces law embodied in this section does not cure omission of court to charge law of involuntary manslaughter, when latter grade of homicide is involved in case. Jackson v. State, 43 Ga. App. 468 , 159 S.E. 293 (1931).
Charge on accident using words "any neglect" rather than "culpable neglect" is error. - Charge that "No one can be convicted for an accident unmixed with any neglect" was error in that court used words "any neglect" instead of words "culpable neglect," and "any neglect" is patently a broader expression than "culpable neglect." Dunahoo v. State, 46 Ga. App. 310 , 167 S.E. 614 (1933).
When essential elements of crime are charged, statute need not be charged absent request. - Charge of O.C.G.A. § 16-2-2 is not required in absence of timely written request when the court charges on essential elements of the crime with which the defendant is charged, including necessity of intent, with which the crime is committed. Whigham v. State, 131 Ga. App. 261 , 205 S.E.2d 467 (1974), overruled on other grounds, Harris v. State, 145 Ga. App. 675 , 244 S.E.2d 620 (1978); Henderson v. State, 141 Ga. App. 430 , 233 S.E.2d 505 (1977).
Charge not required where defendant did nothing by accident or mistake. - Although there may be evidence that the defendant's sister accidentally left the diazepam in defendant's possession, where there is nothing to indicate that the defendant personally did anything by accident or mistake, a charge on accident or misfortune is not required, particularly in the absence of a request for one. Sampson v. State, 165 Ga. App. 833 , 303 S.E.2d 77 (1983).
Although defendant may not have initially acted aggressively toward the victim, by defendant's own admission the victim was attempting to run from defendant at the time defendant intentionally struck the victim again with a gun and the gun discharged. Thus, notwithstanding defendant's contention that accident constituted defendant's sole defense, the trial court was not required to give a charge thereon since it was not authorized by the evidence. Gaston v. State, 209 Ga. App. 477 , 433 S.E.2d 306 (1993).
Trial court was not obligated to instruct the jury as to an accident defense since the defendant tried to remain locked in defendant's prison cell and injured a corrections officer when the officer tried to get defendant out of the cell after the officer threatened to place the defendant in a padded cell if the defendant did not quit yelling. Grant v. State, 257 Ga. App. 678 , 572 S.E.2d 38 (2002).
Trial court did not err by failing to instruct the jury on the defenses of accident and justification as the defendant denied shaking the baby and, given the undisputed evidence regarding the number and severity of the child's injuries, the amount of force required to inflict the injuries, and that such injuries could not have been inflicted by accident, it was unlikely the jury would have found in the defendant's favor on either defense. Noel v. State, 297 Ga. 698 , 777 S.E.2d 449 (2015).
Harmless error found. - Any error in the failure to charge accident in a situation in which the gun going off and hitting the first officer as well as the police vehicle could be deemed an "accident" if defendant did not intend those results was harmless as the first officer was not shot and defendant was acquitted of the charges related to the shooting of the second officer and the police vehicle. Mills v. State, 273 Ga. App. 699 , 615 S.E.2d 824 (2005).
Failure to instruct on accident harmless error in wrong way driving case. - Trial court's error in failing to instruct the jury on accident was harmless because evidence that the defendant initially drove up the off-ramp accidentally had no bearing on why the defendant continued driving for about three miles at between 75 and 80 miles per hour, passing multiple warning signs, at least five places on the road where the defendant could have safely pulled the defendant's car onto the side of the road, and four motorists who had to swerve from their lanes to avoid a head-on collision with the defendant's vehicle. Sullivan v. State, 308 Ga. 772 , 843 S.E.2d 411 (2020).
Since the vehicular homicide and the reckless driving charges at issue were merged into the first degree vehicular homicide charge for purposes of sentencing, any error in failing to give the accident jury charge was harmless and was not shown to have contributed to the outcome at trial. Mitchell v. State, 355 Ga. App. 7 , 842 S.E.2d 322 (2020).
Charge not required where participation in crime denied. - Defendant's denial of participation in any manner in the crime, accidentally, mistakenly, or otherwise was inconsistent with the defendant's request to charge that one is not guilty of a crime if the act is committed by misfortune or accident. Gann v. State, 190 Ga. App. 82 , 378 S.E.2d 369 (1989).
With regard to a defendant's convictions for felony murder, with the underlying felony being rape, among other crimes, the trial court did not err by refusing the defendant's request to instruct the jury that the defendant could not be found guilty if the victim's death was the result of an accident as such a defense was not available to the defendant since the defendant did not admit to the victim's killing but, instead, denied any involvement in the victim's death. Mangrum v. State, 285 Ga. 676 , 681 S.E.2d 130 (2009).
Trial court did not err by refusing to give the defendant's requested charge on misfortune or accident because the defendant, who was charged with driving under the influence, reckless driving, and failure to maintain lane, was not entitled to a charge that the accident was unavoidable; because the defendant did not admit to committing any act that constituted the offenses with which the defendant was charged, the defendant was not entitled to an instruction on accident. Davis v. State, 301 Ga. App. 484 , 687 S.E.2d 854 (2009), cert. dismissed, No. S10C0633, 2010 Ga. LEXIS 339 (Ga. 2010).
Trial court did not err in refusing to give the defendant's requested charge on accident under O.C.G.A. § 16-2-2 because the defendant repeatedly denied striking any vehicle in a parking lot. Sevostiyanova v. State, 313 Ga. App. 729 , 722 S.E.2d 333 , cert. denied, No. S12C0968, 2012 Ga. LEXIS 612 (Ga. 2012).
Trial court did not err by refusing to give the defendant's requested charge on the sole defense of accident because the defendant testified at trial and denied driving recklessly or with any disregard for the safety of other persons or property and the defense is only available when the defendant admits the doing of the act charged but seeks to justify, excuse, or mitigate it. Lauderback v. State, 320 Ga. App. 649 , 740 S.E.2d 377 (2013).
Collision during police chase not accident. - In a prosecution for reckless conduct and battery arising from collisions occurring during a police chase, defendant was not entitled to a charge based on the defense that the collisions were accidents. Helton v. State, 216 Ga. App. 748 , 455 S.E.2d 848 (1995).
Court must charge jury on accident when issue raised by defendant's testimony. - When the defendant's testimony is sufficient to raise a jury question as to whether physical encounter is an accident or an aggravated assault with a deadly weapon, it is harmful error for the court to fail to give any charge to the jury on an accident. Dotson v. State, 144 Ga. App. 113 , 240 S.E.2d 238 (1977).
Failure to charge O.C.G.A. § 16-2-2 as a defense when such defense was supported by evidence and defendant's counsel had made a timely written request for the instruction was reversible error. Taylor v. State, 164 Ga. App. 660 , 297 S.E.2d 755 (1982).
When accident is a main theory of defense, law relative thereto must be charged. - When misadventure and accident was one of the main theories of the defense, and was involved by the evidence, it was error to omit to charge the law relative thereto, with or without a request. Patterson v. State, 181 Ga. 698 , 184 S.E. 309 (1936).
Charge required when sole defense is accident. - Even without request, when the defendant's sole defense is accident, the trial court must give appropriate instructions on this principle to call the defense to the jury's attention, and enable the jury to intelligently consider it. Metts v. State, 210 Ga. App. 197 , 435 S.E.2d 525 (1993).
Evidence of criminal design. - Homicide by misadventure, where the law absolves the slayer and holds the slayer guiltless of the crime, must not only exclude any evil design or intention on the slayer's part, but must also show an absence of culpable neglect, whether the evidence adduced to show an accidental killing may warrant an instruction upon manslaughter is a different question. Allen v. State, 134 Ga. 380 , 67 S.E. 1038 (1910).
Evidence insufficient to establish accident. - Sufficient evidence negated the defense of accident, O.C.G.A. § 16-2-2 , where the victim who was shot by defendant while hunting waved to signal defendant before the gun was fired and where defendant was hunting while on medication that could have caused mental and physical impairment; the jury also could have considered defendant's actions after the shooting in removing the victim's orange vest, hiding two guns, failing to aid the victim, and failing to alert paramedics of the victim's location. Wilson v. State, 279 Ga. App. 136 , 630 S.E.2d 640 (2006).
Evidence was sufficient to reject the defendant's accident defense and to convict the defendant of malice murder and other crimes in connection with the shooting death of the victim because the defendant's 21-year-old neighbor gave the 15-year-old defendant a loaded .38-caliber revolver; when the victim met the defendant the next afternoon, the defendant led the victim to where the defendant was keeping the gun and shot the victim; and, although the defendant's firearms expert testified that an accidental discharge was much more likely if the gun was cocked before being fired, the expert conceded on cross-examination that if somebody pulled the hammer back, that person was about to shoot. Kosturi v. State, 296 Ga. 512 , 769 S.E.2d 294 (2015).
Evidence was sufficient to reject the defense of accident and convict the defendant of malice murder because the defendant had a history of violence toward the victim, and the couple was arguing just before the shooting; two witnesses heard the gunshot and saw a man wearing clothes like those worn by the defendant standing outside of the victim's car as the victim fell; the revolver, which had the defendant's DNA on the grip, had not been cocked and required more than 10 pounds of pressure on the trigger to fire; and the defendant told the police that another man shot the victim, but the defendant later changed the defendant's account to admit to being the shooter while claiming that the defendant did not mean to shoot. Jones v. State, 304 Ga. 320 , 818 S.E.2d 499 (2018).
Failure to charge the jury on the affirmative defense of accident was reversible error, where defendant's testimony was sufficient to raise a jury question as to whether any obstruction by defendant of a sheriff and sheriff's men was deliberate or accidental, i.e., caused by defendant's misfortune in being stricken ill while being confronted by the sheriff. Sapp v. State, 179 Ga. App. 614 , 347 S.E.2d 354 (1986).
Trial court did not commit error by not charging the jury on accident and misfortune, as defendant did not submit a written request to charge on accident and misfortune and absent a written request it is not error for the trial court to fail to give an instruction. Colbert v. State, 263 Ga. App. 193 , 587 S.E.2d 300 (2003).
Defendant's convictions for voluntary manslaughter, aggravated assault, and possession of a knife during the commission of a felony were reversed because the trial court erred in failing to charge the jury on the defense of accident as requested when that defense was raised by the evidence, and the Court of Appeals could not find that it was highly probable that the failure to give the requested charge did not contribute to the verdict; at least slight evidence supported the theory that the defendant armed oneself with a knife in order to fend off the victim's attack with a pipe wrench and that although the defendant was prepared to intentionally stab the victim in self-defense, the defendant did not do so, but the victim lunged at the defendant and was impaled on the knife. Hill v. State, 300 Ga. App. 210 , 684 S.E.2d 356 (2009).
Trial court did not err in rejecting the defendant's request to instruct the jury on the affirmative defense of accident, O.C.G.A. § 16-2-2 , since although the defendant said that the defendant did not fire a gun intentionally, the defendant also testified that the defendant climbed into bed with the victim holding a loaded handgun with the defendant's finger on the trigger because the defendant wanted the victim to understand the seriousness of the defendant's concerns about infidelity; while the defendant initially denied pointing the gun at the victim and said the defendant kept the gun by the defendant's side, the defendant later admitted that the defendant did point the gun at the victim's head and that the gun went off when the victim smacked the gun away, and misuse of a firearm in the manner described by the defendant showed a degree of culpability that constituted criminal negligence. Mills v. State, 287 Ga. 828 , 700 S.E.2d 544 (2010).
In a vehicular homicide case, any error in the trial court's failure to charge the jury on the law of accident under O.C.G.A. § 16-2-2 was waived because the proposed charge was not in the record, and there was no evidence that it was the pattern charge, and the defendant failed to object after the charge was given as required by O.C.G.A. § 17-8-58(a) . Rouen v. State, 312 Ga. App. 8 , 717 S.E.2d 519 (2011).
Even if the evidence supported an instruction on accident, the trial court's refusal to give the instruction did not affect the outcome of the trial since the jury's conclusion that the defendant acted with malice necessarily meant that the jury would have rejected any accident defense. Thomas v. State, 297 Ga. 750 , 778 S.E.2d 168 (2015).
Trial court's failure to give the defendant's requested charge on the principle of accident and misfortune to the jury constituted harmless error as there was no reasonable probability that the verdict would have been different because, to accept the defendant's theory of accident, the jury would have had to believe the defendant's account of the shooting - that the defendant's wife accidentally pulled the trigger and was shot while the defendant was trying to wrestle the gun away from the wife; and, when the jury found the defendant guilty of malice murder, the jury necessarily had to have discredited the defendant's account of the shooting. McClain v. State, 303 Ga. 6 , 810 S.E.2d 77 (2018).
After the defendant was convicted of murder and related offenses arising out of the beating death of an 18-month-old child, the trial court did not err when the court failed to give the defendant's requested instructions on accident because evidence that the child might have fallen from the bed while sleeping and been injured did not involve homicide by accident but only death from accidental means not attributable to any conduct, culpable or otherwise, on the part of the defendant; and the defendant's admission that, in the days leading up to the child's death, the defendant had tripped over a board and fallen on top of the child did not account for the extent of the child's injuries and was not a basis for an accident instruction. Wade v. State, 304 Ga. 5 , 815 S.E.2d 875 (2018).
Trial court did not err when the court failed to give the defendant's requested accident charge because the evidence, including the defendant's own testimony, showed that the defendant intended to shoot the gun at the victim and there was no evidence supporting the defendant's argument that the jury could have found the shooting to be the result of an accident or misfortune. Stepp-McCommons v. State, Ga. , 845 S.E.2d 643 (2020).
Charge on accident held proper. - There was no reason to reverse the defendant's convictions because the trial court properly instructed the jury on the defense of accident, and as such: (1) followed the language of O.C.G.A. § 16-2-2 ; (2) tracked the Suggested Pattern Jury Instructions; and (3) did not diminish the state's burden of proving all elements of the crimes charged beyond a reasonable doubt. Watkins v. State, 290 Ga. App. 41 , 658 S.E.2d 812 (2008).
In a defendant's homicide prosecution, the trial court did not err in failing to give the complete charge on accident requested by the defendant as the court instructed the jury on accident as defined under O.C.G.A. § 16-2-2 . Hamilton v. State, 297 Ga. App. 47 , 676 S.E.2d 773 (2009).
Instruction on accident. - Appellate court erred in reversing the defendant's conviction for vehicular homicide based on the appellant's failure to stop for a pedestrian in a crosswalk because those charges were strict liability offenses to which the accident defense did not apply since it was undisputed the appellant voluntarily drove into the crosswalk and struck the child. State v. Ogilvie, 292 Ga. 6 , 734 S.E.2d 50 (2012).
When the defendant was convicted of malice murder and cruelty to children arising out of the death of the 17-month-old victim, the evidence presented did not authorize a charge on accident because the only evidence presented was that the victim's death was caused by tremendous blunt force trauma that could not have been the result of the victim falling off the bed or a self-inflicted injury; according to the medical examiner, the extensive internal injuries found in the victim's abdomen could not have been inflicted accidentally; and the defendant did not admit to others that the defendant struck the victim with tremendous force or even that the victim had fallen off the bed or onto any other object with such force. Kellam v. State, 298 Ga. 520 , 783 S.E.2d 117 (2016).
Cited in Coggins v. State, 227 Ga. 426 , 181 S.E.2d 47 (1971); Teasley v. State, 228 Ga. 107 , 184 S.E.2d 179 (1971); Towns v. State, 127 Ga. App. 751 , 195 S.E.2d 235 (1972); Spencer v. State, 231 Ga. 705 , 203 S.E.2d 856 (1974); Ford v. State, 232 Ga. 511 , 207 S.E.2d 494 (1974); Beckman v. State, 134 Ga. App. 118 , 213 S.E.2d 527 (1975); D.C.A. v. State, 135 Ga. App. 234 , 217 S.E.2d 470 (1975); Davis v. State, 138 Ga. App. 317 , 226 S.E.2d 101 (1976); Smith v. State, 238 Ga. 146 , 231 S.E.2d 757 (1977); Harris v. State, 145 Ga. App. 675 , 244 S.E.2d 620 (1978); Kimbrell v. State, 148 Ga. App. 302 , 250 S.E.2d 883 (1978); Smith v. State, 148 Ga. App. 634 , 252 S.E.2d 62 (1979); Boling v. State, 244 Ga. 825 , 262 S.E.2d 123 (1979); Johnson v. State, 151 Ga. App. 887 , 262 S.E.2d 201 (1979); Davis v. State, 153 Ga. App. 847 , 267 S.E.2d 263 (1980); Phillips v. State, 247 Ga. 13 , 273 S.E.2d 606 (1981); Taylor v. State, 157 Ga. App. 212 , 276 S.E.2d 691 (1981); Holt v. State, 247 Ga. 648 , 278 S.E.2d 390 (1981); Pennamon v. State, 248 Ga. 611 , 284 S.E.2d 403 (1981); Jones v. State, 161 Ga. App. 610 , 288 S.E.2d 788 (1982); Mansfield v. State, 161 Ga. App. 875 , 289 S.E.2d 814 (1982); Williams v. State, 249 Ga. 822 , 295 S.E.2d 293 (1982); Stovall v. State, 169 Ga. App. 691 , 314 S.E.2d 707 (1984); Kennedy v. State, 172 Ga. App. 336 , 323 S.E.2d 169 (1984); Stewart v. State, 254 Ga. 233 , 326 S.E.2d 763 (1985); Miller v. State, 174 Ga. App. 703 , 331 S.E.2d 616 (1985); Laymac v. State, 181 Ga. App. 737 , 353 S.E.2d 559 (1987); Flanders v. State, 188 Ga. App. 98 , 371 S.E.2d 918 (1988); Fowler v. State, 188 Ga. App. 873 , 374 S.E.2d 805 (1988); Stewart v. State, 261 Ga. 654 , 409 S.E.2d 663 (1991); Polley v. State, 203 Ga. App. 825 , 418 S.E.2d 107 (1992); Kirkland v. State, 206 Ga. App. 27 , 424 S.E.2d 638 (1992); Moore v. State, 220 Ga. App. 434 , 469 S.E.2d 211 (1996); Johnson v. State, 223 Ga. App. 294 , 477 S.E.2d 439 (1996); Smith v. State, 237 Ga. App. 852 , 521 S.E.2d 7 (1999); Bolick v. State, 244 Ga. App. 567 , 536 S.E.2d 242 (2000); Sledge v. State, 245 Ga. App. 488 , 537 S.E.2d 753 (2000); Atkins v. State, 274 Ga. 103 , 549 S.E.2d 356 (2001); Dukes v. State, 285 Ga. App. 172 , 645 S.E.2d 664 (2007); Sears v. State, 290 Ga. 1 , 717 S.E.2d 453 (2011); Hughes v. State, 323 Ga. App. 4 , 746 S.E.2d 648 (2013).
Self-Defense
Statute is inapplicable to a homicide committed in self-defense. Curry v. State, 148 Ga. 559 , 97 S.E. 529 (1918).
Self-defense not shown. - When person, acting in self-defense, intentionally shoots at another, defense of accidental killing is not involved. Dobbs v. State, 132 Ga. App. 368 , 208 S.E.2d 178 (1974).
When one claims to be acting in self-defense, defense of accidental killing is not involved. Todd v. State, 149 Ga. App. 574 , 254 S.E.2d 894 (1979).
Defendant's testimony that defendant fired a weapon to defend self from codefendant and to scare the codefendant off did not invoke the legal defense of accident. Berry v. State, 267 Ga. 476 , 480 S.E.2d 32 (1997).
Lack of intent to kill. - Voluntary manslaughter conviction upheld after evidence failed to show accident, despite claims that defendant lacked the intent to kill; defendant's act of choking the victim and not letting go, even though defendant had the chance to do so, placed the victim in a reasonable apprehension of bodily harm. Blackford v. State, 251 Ga. App. 324 , 554 S.E.2d 290 (2001).
No error in failing to instruct on self-defense. - Trial court did not err in failing to instruct the jury on the affirmative defense of accident because there was no evidence to support the conclusion that defendant's act of striking the victim was an accident; rather, defendant testified that defendant struck the victim in self-defense. As the jury believed defendant to be guilty of malice murder, it could not have believed the victim's death to be the result of an act committed in the absence of criminal intent. Hannah v. State, 278 Ga. 195 , 599 S.E.2d 177 (2004).
Defenses of self-defense and accident inconsistent. - Defenses of self-defense and justification do not deny the intent to inflict injury, but claim authority for the act under the legal excuse of reasonable fear of immediate serious harm to oneself or another. Since an accident defense involves the lack of intent to do the act at all, the two defenses are inconsistent. Fields v. State, 167 Ga. App. 816 , 307 S.E.2d 712 (1983).
Defenses of self-defense and accident are inconsistent. Wilkerson v. State, 183 Ga. App. 26 , 357 S.E.2d 814 (1987).
Trial court correctly ruled that defendant's requested charge setting forth the affirmative defense of accident was inconsistent with defendant's claim that defendant stabbed the victim in self-defense. Ray v. State, 191 Ga. App. 881 , 383 S.E.2d 364 (1989).
Instructions on accident and justification authorized. - When there is evidence of both justification and accident, and timely requests for instructions on both topics have been made, the trial court should instruct the jury as to both. Koritta v. State, 263 Ga. 703 , 438 S.E.2d 68 (1994).
Instruction on self-defense and accident authorized. - In a murder case, the trial court did not err in charging the jury on both self-defense and accident because the evidence supported both charges. The defendant testified that the victim was threatening the defendant and that the defendant used a knife to force the victim to get back; the defendant also testified that the defendant did not mean to stab the victim and that the defendant did not understand how the knife became lodged in the victim's chest. Hudson v. State, 284 Ga. 595 , 669 S.E.2d 94 (2008).
Culpable Neglect or Unlawful Act
Criminal negligence defined. - Criminal negligence means not merely such negligence as might be foundation of damage suit, but reckless and wanton negligence and of such character as to show utter disregard for safety of others who might reasonably be expected to be injured thereby. Keye v. State, 136 Ga. App. 707 , 222 S.E.2d 172 (1975).
When homicide results from culpable neglect or unlawful act, defense of accident is not involved. Keye v. State, 136 Ga. App. 707 , 222 S.E.2d 172 (1975).
Charge on accident not authorized when act was criminally negligent. - When the defendant's act of shooting close to the victim in order to scare the victim was criminally negligent, a charge on accident was not authorized. Moody v. State, 244 Ga. 247 , 260 S.E.2d 11 (1979).
Cocking and aiming a gun, which tends to fire at the slightest touch, at someone's face is an act in utter disregard for the safety of that person and constitutes criminal negligence. Therefore, the defense of accident is inapplicable. New v. State, 260 Ga. 441 , 396 S.E.2d 486 (1990); Campbell v. State, 263 Ga. 824 , 440 S.E.2d 5 (1994).
When the defendant hit patrol cars while making a U-turn and appeared to be in full control of the vehicle just prior to impact and when there was no evidence authorizing a finding that the collisions occurred absent criminal negligence, the court's refusal to give an instruction on accident was proper. Black v. State, 222 Ga. App. 80 , 473 S.E.2d 186 (1996).
Defendant approached the victim's car with a pistol, demanded money, and reached inside and shot the victim when the victim attempted to drive away. Even if the defendant did not intentionally fire the pistol, defendant's acts constituted criminal negligence rendering the defense of accident inapplicable. Griffeth v. State, 224 Ga. App. 462 , 480 S.E.2d 889 (1997).
An instruction on the law of accident is not warranted when a knife is used to place someone in reasonable apprehension of bodily injury and the victim is unintentionally injured with the knife, since the intentional use of the knife constituted, at the least, criminal negligence. Davis v. State, 269 Ga. 276 , 496 S.E.2d 699 (1998).
After the defendant admitted in open court that the defendant armed with a revolver which was loaded because the defendant thought the defendant's significant other would see the gun and leave, and did not testify to believing to be in imminent danger of death or serious bodily injury, defendant showed utter disregard for the victim's safety as well as criminal negligence which precluded a charge to the jury on accident. Johnson v. State, 236 Ga. App. 61 , 510 S.E.2d 918 (1999), overruled on other grounds by Schofield v. Holsey, 281 Ga. 809 , 642 S.E.2d 56 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Defendant was not entitled to a charge on accident because even if the defendant did not intentionally fire a shotgun, which injured the victim, the defendant's admitted acts in threatening the victim and another person and pointing a shotgun at the victim constituted criminal negligence. Arnold v. State, 303 Ga. App. 825 , 695 S.E.2d 299 (2010).
Defendant admitted that the defendant pulled back the hammer of the gun and pointed the gun at the victim to scare the victim, but did not intend for the gun to go off; this testimony established criminal negligence, and the defendant was not entitled to an instruction on accident and misfortune under O.C.G.A. § 16-2-2 . Browner v. State, 296 Ga. 138 , 765 S.E.2d 348 (2014).
Homicide occurring during aggravated assault not accident. - Evidence that defendant had cocked a gun and pointed it at her husband's head in order to scare him, and that the gun discharged when the victim struck it with his arm, was sufficient to authorize a conviction for felony-murder and the defense of "accident" was inapplicable. Stiles v. State, 264 Ga. App. 446 , 448 S.E.2d 172 (1994).
Theory of accident not supported. - Evidence presented at trial did not support a theory of accident since the defendant pulled the hammer back on the pistol and pointed the pistol at the rape victim in order to get the victim to stop screaming, and in so doing the pistol discharged and the victim died. Brooks v. State, 262 Ga. 187 , 415 S.E.2d 903 (1992).
In a prosecution for cruelty to children, where defendant's defense as to some of the injuries was that the child fell off a bunk bed, and where defendant had no knowledge of the origin of other injuries, the trial court did not err in failing to give a charge on the law of accident. Mansfield v. State, 214 Ga. App. 520 , 448 S.E.2d 490 (1994).
No reasonable probability existed that the outcome of the defendant's murder trial would have been different even had trial counsel presented an expert's testimony as to the defendant's borderline intellectual functioning and organic brain damage in the guilt/innocence phase of the original trial because the defendant's own testimony acknowledged that the defendant shot the vehicle occupant purposefully, as opposed to accidentally, in attempting to obtain a vehicle to escape, and even if the defendant had been convicted of only malice murder, instead of felony murder, the defendant would have still remained eligible for the death penalty. Humphrey v. Nance, 293 Ga. 189 , 744 S.E.2d 706 (2013).
Failure to charge misfortune or accident is not error when crime resulted from unlawful act. Herrington v. State, 31 Ga. App. 167 , 120 S.E. 554 (1923).
Homicide occurring by discharge of gun held by accused during attempted robbery. - When it is shown by the evidence, and admitted in the defendant's statement, that the homicide occurred by the discharge of a gun held by the accused and used in an attempt to rob the deceased, even if the discharge of the gun was unintentional, the offense is murder; and in no view of such facts does it involve homicide by accident, or involuntary manslaughter. Accordingly, the court properly declined to give the requested charges on accidental homicide and involuntary manslaughter. Ford v. State, 202 Ga. 599 , 44 S.E.2d 263 (1947).
Victim's struggling with armed robber did not entitle robber to accident defense. - Defendant was not entitled to jury instructions on accident, self-defense, or mutual combat, although the victims struggled with the defendant and the defendant's gun arguably discharged accidentally, given that the defendant was the aggressor with a gun in the middle of an armed robbery. Wainwright v. State, 305 Ga. 63 , 823 S.E.2d 749 (2019).
Charge of aggravated assault for deliberately firing gun in direction of person. - Deliberately firing gun in direction of human being in order to distract that person raises no issue of accident or misfortune when charge is aggravated assault. DeBerry v. State, 241 Ga. 204 , 243 S.E.2d 864 (1978).
Swinging knife blade among group of persons as criminal negligence. - Fact that criminal scheme or undertaking, or intention may not have been directed toward decedent, would not absolve defendant of consequences of act, inasmuch as act of swinging knife blade among a group of persons in close proximity can be found to be criminal negligence or culpable neglect, especially where defendant had opportunity to leave scene and avoid further confrontation, but chose not to do so. Keye v. State, 136 Ga. App. 707 , 222 S.E.2d 172 (1975).
In prosecution for manslaughter resulting from battery, evidence of deceased's fall related to causation, not accident. - When evidence adduced at trial of defendant charged with manslaughter resulting from battery to deceased showed that victim, prior to demise, fell down several steps, and further, that such fall could possibly result in a ruptured spleen and eventually, death, this evidence did not raise issue of accident or misfortune within meaning of statute; rather, it related solely to issue of causation. Newsome v. State, 149 Ga. App. 415 , 254 S.E.2d 381 (1979).
Evidence did not raise issue of accident or misfortune. - See Mills v. State, 187 Ga. App. 79 , 369 S.E.2d 283 (1988).
Evidence that defendant drove tractor-trailer truck at a high rate of speed through an area that had signs and indications that slow-moving traffic was nearby was sufficient to show that the victim's death, which resulted from defendant's truck slamming into the back of the vehicle that the victim was in, was caused by culpable neglect or an unlawful act and was not the result of mere misfortune. Wilkes v. State, 254 Ga. App. 447 , 562 S.E.2d 519 (2002).
Trial court did not err in refusing an instruction on the affirmative defense of accident because the defendant admitted going to the service station with the intent to rob the victim, admitted pointing a loaded gun at the victim, and acted with criminal negligence, rendering the defense of accident inadmissible. Brockman v. State, 292 Ga. 707 , 739 S.E.2d 332 (2013).
Failure to charge section not reversible error. - Charge of accident or misfortune in the case of a defendant who voluntarily consumed alcohol after defendant may have accidentally inhaled alcohol fumes from paint was perhaps authorized since defendant was charged with driving under the influence of alcohol, but failure to give the charge was not reversible error. Taylor v. State, 190 Ga. App. 79 , 378 S.E.2d 335 , cert. denied, 190 Ga. App. 899 , 378 S.E.2d 335 (1989).
Instruction properly refused. - Trial court properly refused to give a requested jury instruction on the defense of accident or misfortune, where defendant's own testimony showed that defendant was engaged in an attempt to commit an aggravated assault upon the victim when the pistol discharged and the victim was struck by a bullet. Grude v. State, 189 Ga. App. 901 , 377 S.E.2d 731 (1989).
During a fight, the victim was burned when the defendant applied a hot iron to her neck and shoulder area, and the defendant denied knowing that the iron was hot, the trial court did not err in refusing to give as a jury instruction the defendant's incomplete statement of the law set forth in O.C.G.A. § 16-2-2 . Collier v. State, 195 Ga. App. 380 , 393 S.E.2d 509 (1990).
In a prosecution for aggravated assault with a deadly weapon, defendant was not entitled to an instruction on accident where defendant obtained a gun with intent to use it for intimidation, bravado or protection; if defendant used the gun for intimidation or bravado, the shooting was not an accident since defendant had the opportunity to leave the scene; if defendant shot the victim in self-defense, defendant was not entitled to the instruction because the defenses of self-defense and accident are inconsistent. Sumner v. State, 210 Ga. App. 856 , 437 S.E.2d 855 (1993).
Because the defendant was charged with trafficking in methamphetamine in violation of O.C.G.A. § 16-13-31(e) , the claim that defendant thought that the defendant was delivering marijuana to an informant's girlfriend rather than methamphetamine, based on prior marijuana deliveries made by the defendant for a drug dealer, did not warrant a jury instruction on accident pursuant to O.C.G.A. § 16-2-2 ; the accident defense was unavailable to the defendant, who still thought that the defendant was committing a criminal act. Dimas v. State, 276 Ga. App. 245 , 622 S.E.2d 914 (2005).
Defendant was not entitled to a jury charge on accident since the accident occurred as the defendant was driving recklessly. Dryden v. State, 316 Ga. App. 70 , 728 S.E.2d 245 (2012).
Charge not authorized when defendant deliberately fired through window. - When in a murder trial the defendant testified to deliberately firing through a glass window pane at a large figure, a charge on accident was not authorized. Duke v. State, 256 Ga. 671 , 352 S.E.2d 561 (1987).
Charges on accident and criminal negligence proper. - Trial court did not err in charging the jury on the definition of criminal negligence in addition to including the bracketed "criminal negligence" language in the pattern instruction on accident as the jury was not confused by the charge and was not led to believe that it could substitute criminal negligence for malice; the trial court gave a complete charge on criminal intent and properly charged the jury on murder and malice. Yeager v. State, 281 Ga. 1 , 635 S.E.2d 704 (2006).
Jury authorized to convict defendant. - Evidence supported a defendant's conviction for involuntary manslaughter as there was ample evidence that the state disproved the defendant's accident defense since: (1) the defendant was hurt by the fact that the defendant's significant other had begun a relationship with the victim; (2) the defendant threatened to blow the victim's and the significant other's heads off a few weeks before the shooting; (3) defendant testified that the victim was standing in the defendant's way, that the defendant was searching for a cell phone, and that the defendant pulled out several items, including a gun; (4) a door hit the defendant in the back, causing the gun to discharge into the victim's chest; (5) the defendant testified that the defendant was careless with the gun; and (6) a detective testified that after the detective Mirandized the defendant, the defendant stated that "(the defendant) put a shell in every chamber" and that "(the defendant) fired every shell, every round." Noble v. State, 282 Ga. App. 311 , 638 S.E.2d 444 (2006).
RESEARCH REFERENCES
Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, § 4.
ALR. - Criminal responsibility of druggist for death or injury in consequence of mistake, 55 A.L.R.2d 714.
Homicide predicated on improper treatment of disease or injury, 45 A.L.R.3d 114.
Homicide: burden of proof on defense that killing was accidental, 63 A.L.R.3d 936.
16-2-3. Presumption of sound mind and discretion.
Every person is presumed to be of sound mind and discretion but the presumption may be rebutted.
(Code 1933, § 26-606, enacted by Ga. L. 1968, p. 1249, § 1.)
Law reviews. - For article discussing the theory of insanity in criminal law, see 15 Mercer L. Rev. 399 (1964).
JUDICIAL DECISIONS
Mental abnormality, unless it amounts to insanity, is not a defense to a crime. Hudson v. State, 171 Ga. App. 181 , 319 S.E.2d 28 (1984).
Absent prior adjudication of insanity, presumption existing at time of trial is of sanity. Howard v. State, 150 Ga. App. 356 , 258 S.E.2d 39 (1979).
Presumption of sanity returns upon discharge. - Presumption of sanity prevails after release of accused previously committed to mental institution. Jackson v. State, 149 Ga. App. 253 , 253 S.E.2d 874 (1979).
Although person may have been previously committed, presumption of sanity returns when person is discharged from institutional confinement. Fulghum v. State, 246 Ga. 184 , 269 S.E.2d 455 (1980).
Even when an accused has initially been found incompetent to stand trial, upon the accused being administratively released for trial, the rebuttable presumption of sanity applies. Johncox v. State, 189 Ga. App. 188 , 375 S.E.2d 139 (1988).
Defendant has burden once criminal intent has been shown, of illustrating defendant's insanity before state is required to rebut that showing beyond a reasonable doubt. Moses v. State, 245 Ga. 180 , 263 S.E.2d 916 , cert. denied, 449 U.S. 849, 101 S. Ct. 138 , 66 L. Ed. 2 d 60 (1980), overruled on other grounds, Nagel v. State, 262 Ga. 888 , 427 S.E.2d 490 (1993).
Evidence was sufficient to conclude that the defendant failed to prove that the defendant was incompetent to stand trial because the state's expert witness found that, based on the defendant's exchanges during a police interview, the felony murder concept was explained to the defendant numerous times and the defendant's responses indicated that the defendant understood; the fact that the defendant did not think that the defendant should be held responsible for the victim's death, did not mean that the defendant should not be held responsible or that it rendered the defendant incapable of understanding the situation; and there was no medical support for the conclusion that the defendant was not competent to stand trial in 2008. Tye v. State, 298 Ga. 474 , 782 S.E.2d 10 (2016).
No evidence of incompetency. - Children's challenges to changes in life insurance beneficiaries made by their parent just before the parent's death on mental competency grounds failed, as the children did not present sufficient evidence to create a question of fact as to the decedent's mental competency at the time the parent executed the change of beneficiary forms; the children pointed the court to no evidence that they were present at the time the changes were made nor that they specifically observed the decedent's in an altered or confused state at or near the time the forms were executed. State Farm Life Ins. Co. v. Carlyle, F. Supp. 2d (N.D. Ga. Sept. 12, 2006).
Burden is on defendant to prove insanity by preponderance of evidence. - To overcome presumption of sanity, a defendant must show by a preponderance of the evidence that defendant was not criminally responsible at the time of commission of act. Longshore v. State, 242 Ga. 689 , 251 S.E.2d 280 (1978).
When defendant in criminal case files general plea of insanity, i.e., argues that one is not guilty of crime by reason of being insane at time of the crime's commission, burden is on defendant to establish by a preponderance of the evidence that the defendant was insane. Clark v. State, 245 Ga. 629 , 266 S.E.2d 466 (1980).
Insanity is an affirmative defense which the defendant must prove by a preponderance of the evidence. Strozier v. State, 254 Ga. 712 , 334 S.E.2d 181 (1985); Harris v. State, 256 Ga. 350 , 349 S.E.2d 374 (1986).
Pretrial notice requirement has no effect on burden of proof. - Procedural requirement of pretrial notice to the state of a defense which would generally require expert opinion to rebut has no effect on the burden of proof. The state must still prove criminal intent, but the notice does not add a new burden, that the state must prove sanity without the aid of the "presumption" of sanity in the state's case-in-chief. The state is merely entitled to prior notice that the state will have to present evidence in rebuttal to overcome the defendant's evidence of insanity. Johncox v. State, 189 Ga. App. 188 , 375 S.E.2d 139 (1988).
Presentation of evidence of insanity does not automatically dissipate presumption of sanity which exists by law. Jackson v. State, 149 Ga. App. 253 , 253 S.E.2d 874 (1979); Moses v. State, 245 Ga. 180 , 263 S.E.2d 916 , cert. denied, 449 U.S. 849, 101 S. Ct. 138 , 66 L. Ed. 2 d 60 (1980), overruled on other grounds, Nagel v. State, 262 Ga. 888 , 427 S.E.2d 490 (1993); Fulghum v. State, 246 Ga. 184 , 269 S.E.2d 455 (1980); Dennis v. State, 170 Ga. App. 630 , 317 S.E.2d 874 (1984); Loumakis v. State, 179 Ga. App. 294 , 346 S.E.2d 373 (1986).
Jurors are not bound by the opinions of expert witnesses regarding a defendant's sanity; instead, they may rely on the presumption of sanity in O.C.G.A. § 16-2-3 unless the proof of insanity is overwhelming. Vanderpool v. State, 244 Ga. App. 804 , 536 S.E.2d 821 (2000), cert denied, 532 U.S. 996, 121 S. Ct. 1658 , 149 L. Ed. 2 d 640 (2001).
Overwhelming proof of insanity. - When the proof of insanity is overwhelming, juries may no longer rely solely on the presumption of sanity. Stevens v. State, 256 Ga. 440 , 350 S.E.2d 21 (1986).
When proof of insanity is overwhelming, juries may not rely solely on the rebuttable presumption of sanity. It is a jury's function to determine the credibility of witnesses and the probative value of testimony, to weigh the evidence and not arbitrarily ignore it. Proof of insanity may be so clear and so overwhelming that a finding of sanity cannot be upheld. Wilson v. State, 257 Ga. 444 , 359 S.E.2d 891 (1987).
Evidence of insanity not overwhelming. - Court was authorized to rely on the presumption of sanity in O.C.G.A. § 16-2-3 because the evidence of insanity was not overwhelming. Stanley v. State, 242 Ga. App. 597 , 530 S.E.2d 506 (2000).
Jury can view surrounding facts and circumstances in making determination regarding appellant's sanity and in determining whether defendant could in fact distinguish right from wrong. Moses v. State, 245 Ga. 180 , 263 S.E.2d 916 , cert. denied, 449 U.S. 849, 101 S. Ct. 138 , 66 L. Ed. 2 d 60 (1980), overruled on other grounds, Nagel v. State, 262 Ga. 888 , 427 S.E.2d 490 (1993).
Rebutting presumption imposed by statute in civil matters. - Plaintiffs' stated cognizable claims against a bishop arising out of a breach of fiduciary duty as evidence was presented that the bishop abused the bishop's position of spiritual authority to coerce or seduce the married plaintiff female into consenting to a prolonged sexual relationship with the bishop. Plaintiffs also put forward evidence of the bishop's charismatic nature and the bishop's ability to control and coerce using the bishop's spiritual authority, all of which is evidence in rebuttal of the presumptions of "sound mind and discretion" relied upon by the trial court. Brewer v. Paulk, 296 Ga. App. 26 , 673 S.E.2d 545 (2009).
Sanity of defendant is presumed. - Defendant's proffered testimony that defendant had a blackout during defendant's act of DUI was properly rejected. Crossley v. State, 261 Ga. App. 250 , 582 S.E.2d 204 (2003).
Instruction concerning presumption not unconstitutional. - Trial court's charge to the jury that every person is presumed to be of sound mind and discretion, but that this presumption may be rebutted, was not unconstitutionally burden-shifting. Thompson v. State, 178 Ga. App. 723 , 344 S.E.2d 696 (1986).
Absent request, failure to charge burden of proof regarding sanity is not error. - When charge of court includes instruction as to insanity but places burden of proof as to each essential element of crime, including intent, upon state beyond a reasonable doubt, it is not error for court not to instruct jury specifically, absent request, as to any burden of proof regarding sanity. Howard v. State, 150 Ga. App. 356 , 258 S.E.2d 39 (1979).
Charge on intent in murder trial did not unconstitutionally shift the burden of proof. Parker v. State, 256 Ga. 363 , 349 S.E.2d 379 (1986).
Instruction reciting pattern charge upheld on appeal. - Because the trial court's charge on presumption that "every person is presumed to be of sound mind and discretion, but the presumption may be rebutted" recited the pattern charge on presumption word for word, it was upheld on appeal. May v. State, 287 Ga. App. 407 , 651 S.E.2d 510 (2007).
"Guilty but mentally ill" and "not guilty by reason of insanity" distinguished. - In a trial for murder of defendant's parents it was held that, construing the evidence in a light most favorable to the guilty verdict, a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence that defendant was insane at the time of the crime. This led to the conclusion that, also construing the evidence in a light most favorable to the verdict, a rational trier of fact could have found defendant guilty but mentally ill beyond a reasonable doubt. Harris v. State, 256 Ga. 350 , 349 S.E.2d 374 (1986).
Guilty, but mentally ill and not insane. - Evidence of defendant's calm behavior after the crime, of the fact that defendant displayed no psychotic behavior, was not under medication during hospitalization after the crime, and that defendant denied hearing voices or having any special connection to God, supported the jury's decision that defendant was guilty but mentally ill, rather than insane at the time of the offense. Barge v. State, 256 Ga. App. 560 , 568 S.E.2d 841 (2002).
Evidence sufficient to support jury's finding defendant sane at time of crime. - See Murray v. State, 253 Ga. 90 , 317 S.E.2d 193 (1984).
Defendant failed to prove by a preponderance of the evidence that defendant was insane at the time of the crimes as the evidence showed that defendant wore a hat and gloves to the scene; defendant had change ready for the victim's use at pay telephones; defendant was aware of the time the victim arrived at work; and defendant even devised a plan to make the victim forget about the events that transpired; therefore, a rational trier of fact was authorized to rely on the presumption of defendant's sanity. Guillen v. State, 258 Ga. App. 465 , 574 S.E.2d 598 (2002).
Evidence insufficient for involuntary intoxication. - Although the police officers who arrested a defendant provided some evidence that corroborated the defendant's affirmative defense of involuntary intoxication, testimony from the victim of a false imprisonment and aggravated assault that the victim had not injected the defendant with any drugs on the night of the assault was sufficient to support the jury's finding that the defendant was of sound mind and discretion when the defendant held the victim captive. Stewart v. State, 291 Ga. App. 846 , 663 S.E.2d 278 (2008).
Directed verdict in competency trial. - Trial court did not err in denying the defendant's motion for a directed verdict under O.C.G.A. § 9-11-50 in the defendant's competency trial because the evidence on competency was in conflict; even though the defendant's expert witness opined that the defendant was not competent to stand trial, the state's expert testified that the defendant was competent to do so. Smith v. State, 312 Ga. App. 174 , 718 S.E.2d 43 (2011).
Competency established. - While the defendant presented expert testimony, based on the defendant's performance on various cognitive tests, that the defendant was not competent to stand trial, the finding of competency to stand trial was supported by the testimony of the state's expert, who opined that the defendant understood the nature and object of the proceedings, had a basic comprehension of the defendant's own condition in reference to the proceedings, and had the ability to assist counsel in a defense. Tiegreen v. State, 314 Ga. App. 860 , 726 S.E.2d 468 (2012).
Cited in Gilbert v. State, 235 Ga. 501 , 220 S.E.2d 262 (1975); Thomas v. State, 136 Ga. App. 165 , 220 S.E.2d 736 (1975); Durham v. State, 239 Ga. 697 , 238 S.E.2d 334 (1977); Bowen v. State, 241 Ga. 492 , 246 S.E.2d 322 (1978); C.H. v. State, 148 Ga. App. 609 , 252 S.E.2d 22 (1979); Bowers v. State, 153 Ga. App. 894 , 267 S.E.2d 309 (1980); Banks v. State, 246 Ga. 178 , 269 S.E.2d 450 (1980); Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980); Slaughter v. State, 162 Ga. App. 136 , 290 S.E.2d 338 (1982); Rauschenberg v. State, 161 Ga. App. 331 , 291 S.E.2d 58 (1982); Brown v. State, 250 Ga. 66 , 295 S.E.2d 727 (1982); Peek v. State, 250 Ga. 50 , 295 S.E.2d 834 (1982); Dollar v. State, 168 Ga. App. 726 , 310 S.E.2d 236 (1983); Davenport v. State, 170 Ga. App. 667 , 317 S.E.2d 895 (1984); Adams v. State, 254 Ga. 481 , 330 S.E.2d 869 (1985); Davis v. State, 178 Ga. App. 357 , 343 S.E.2d 140 (1986); Nelson v. State Farm Life Ins. Co., 178 Ga. App. 670 , 344 S.E.2d 492 (1986); Jackson v. State, 180 Ga. App. 774 , 350 S.E.2d 484 (1986); Heidler v. State, 273 Ga. 54 , 537 S.E.2d 44 (2000).
RESEARCH REFERENCES
Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, §§ 63, 98, 110.
Defendant's Competency to Stand Trial, 40 POF2d 171.
C.J.S. - 23 C.J.S., Criminal Procedure and Rights of the Accused, §§ 984, 985.
ALR. - Presumption of continuing insanity as applied to accused in criminal case, 27 A.L.R.2d 121.
Counsel's right, in consulting with accused as client, to be accompanied by psychiatrist, psychologist, hypnotist, or similar practitioner, 72 A.L.R.2d 1120.
Modern status of rules as to burden and sufficiency of proof of mental irresponsibility in criminal case, 17 A.L.R.3d 146.
Posttraumatic stress disorder (PTSD) as defense to murder, assault, or other violent crime, 4 A.L.R.7th 5.
16-2-4. Presumption that acts of sound person willful.
The acts of a person of sound mind and discretion are presumed to be the product of the person's will but the presumption may be rebutted.
(Code 1933, § 26-603, enacted by Ga. L. 1968, p. 1249, § 1.)
JUDICIAL DECISIONS
Jury instruction quoting section held unconstitutional. - Because a jury instruction which quoted O.C.G.A. § 16-2-4 in its entirety could have been understood by a reasonable juror as creating a mandatory presumption that shifted to the defendant the burden of persuasion on the element of intent, and because the charge as a whole did not explain or cure the error, the jury charge violated the Due Process Clause requirement that the state prove every element of a criminal offense beyond a reasonable doubt. Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965 , 85 L. Ed. 2 d 344 (1985).
It is not necessary that charge to jury be in exact language of Code. Parks v. State, 234 Ga. 579 , 216 S.E.2d 804 (1975).
Cited in Spencer v. State, 231 Ga. 705 , 203 S.E.2d 856 (1974); Bentley v. State, 131 Ga. App. 425 , 205 S.E.2d 904 (1974); Nunnally v. State, 235 Ga. 693 , 221 S.E.2d 547 (1975); Bradley v. State, 137 Ga. App. 670 , 224 S.E.2d 778 (1976); Gatlin v. State, 236 Ga. 707 , 225 S.E.2d 224 (1976); Scott v. State, 239 Ga. 46 , 235 S.E.2d 522 (1977); Lunsford v. State, 145 Ga. App. 446 , 243 S.E.2d 655 (1978); Harris v. State, 145 Ga. App. 675 , 244 S.E.2d 620 (1978); Tucker v. State, 245 Ga. 68 , 263 S.E.2d 109 (1980); Moses v. State, 245 Ga. 180 , 263 S.E.2d 916 (1980); Thrift-Mart, Inc. v. Commercial Union Assurance Cos., 154 Ga. App. 344 , 268 S.E.2d 397 (1980); Jackson v. State, 157 Ga. App. 580 , 278 S.E.2d 152 (1981); Slaughter v. State, 162 Ga. App. 136 , 290 S.E.2d 338 (1982); Whitsell v. State, 179 Ga. App. 358 , 346 S.E.2d 130 (1986).
RESEARCH REFERENCES
ALR. - Flight as evidence of guilt, 25 A.L.R. 886 .
Homicide: burden of proof on defense that killing was accidental, 63 A.L.R.3d 936.
Coercion, compulsion, or duress as defense to charge of robbery, larceny, or related crime, 1 A.L.R.4th 481.
Challenges to pre- and post-conviction forfeitures and to post-conviction restitution under animal cruelty statutes, 70 A.L.R.6th 329.
16-2-5. Presumption that sound person intends natural and probable consequences of acts.
A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted.
(Code 1933, § 26-604, enacted by Ga. L. 1968, p. 1249, § 1.)
JUDICIAL DECISIONS
Editor's notes. - In light of the similarity of the statutory provisions, decisions decided under former Code 1933, § 26-202, as it read prior to revision of the title by Ga. L. 1968, p. 1249, are included in the annotations for this Code section.
Intent manifested by circumstances connected with perpetration of offense. - Every crime consists in union or joint operation of act and intention. Sometimes intention can be proved, sometimes it can only be inferred or presumed; and general rule is that intention will be manifested by circumstances connected with perpetration of offense. Marzetta v. Steinman, 117 Ga. App. 471 , 160 S.E.2d 590 (1968) (decided under former Code 1933, § 26-202).
Jury instruction quoting section held unconstitutional. - Because a jury instruction which quoted O.C.G.A. § 16-2-5 in its entirety could have been understood by a reasonable juror as creating a mandatory presumption that shifted to the defendant the burden of persuasion on the element of intent, and because the charge as a whole did not explain or cure the error, the jury charge violates the Due Process Clause's requirement that the state prove every element of a criminal offense beyond a reasonable doubt. Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965 , 85 L. Ed. 2 d 344 (1985).
Inaccuracies in charge which do not mislead or obscure meaning do not require new trial. Williams v. State, 159 Ga. App. 865 , 285 S.E.2d 597 (1981).
It is not necessary that charge to jury be in exact language of Code. Parks v. State, 234 Ga. 579 , 216 S.E.2d 804 (1975).
Charge in accordance with statute does not impermissibly shift burden of persuasion. Huffman v. State, 153 Ga. App. 203 , 265 S.E.2d 603 (1980).
Charge in language of statute is not burden shifting. Simpson v. State, 159 Ga. App. 235 , 283 S.E.2d 91 (1981).
No conclusive presumption of intent is charged when the jury is also adequately instructed that the presumption may be rebutted. Godfrey v. Francis, 251 Ga. 652 , 308 S.E.2d 806 (1983).
Failure to charge in homicide case that presumption is rebuttable. - In charging the jury in a homicide case under statute, it is reversible error not to tell jury that presumption created may be rebutted. Lane v. State, 153 Ga. App. 101 , 264 S.E.2d 569 (1980).
Failure to include statutory language that presumption may be rebutted is not error. Wilson v. State, 233 Ga. 479 , 211 S.E.2d 757 (1975). But see Lane v. State, 153 Ga. App. 101 , 264 S.E.2d 569 (1980).
Combining former Code 1933, §§ 26-604 and 26-605 (see now O.C.G.A. §§ 16-2-5 and 16-2-6 ) in charge creates permissive presumption. - Permissive presumption such as created by combining former Code 1933, §§ 26-604 and 26-605 (see now O.C.G.A. §§ 16-2-5 and 16-2-6 ) in charge allowed, put did not require, trier of fact to infer elemental fact from proof by prosecutor of basic one and that placed no burden of any kind on the defendant. Skrine v. State, 244 Ga. 520 , 260 S.E.2d 900 (1979).
Permissive presumptions were not inherently unconstitutional, but were to be tested by the rational connection test under which the court asks if ultimate fact to be presumed was more likely than not to flow from the proved fact; and when former Code 1933, §§ 26-604 and 26-605 (see now O.C.G.A. §§ 16-2-5 and 16-2-6 ) were combined in charge to create such presumption, the presumption was rational, as obviously it was more likely than not that a normal defendant intended the natural and probable consequences of acts. Skrine v. State, 244 Ga. 520 , 260 S.E.2d 900 (1979).
Instruction that recent possession of stolen property may establish criminal intent. - In prosecution for receiving stolen property, judge's instruction to jury "that recent possession of stolen property without satisfactory explanation is sufficient to establish criminal intent" was error, despite proper instruction on burden of proving criminal intent, and required reversal. Williams v. State, 159 Ga. App. 865 , 285 S.E.2d 597 (1981).
Finding of specific intent to cause harm may not be based on the rebuttable presumption that a person of sound mind and discretion is presumed to intend the natural and probable consequences of acts. Wal-Mart Stores, Inc. v. Johnson, 249 Ga. App. 84 , 547 S.E.2d 320 (2001), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326 , 672 S.E.2d 7 (2008).
Rebutting presumption imposed by statute in civil matters. - Plaintiffs' stated cognizable claims against a bishop arising out of a breach of fiduciary duty as evidence was presented that the bishop abused the bishop's position of spiritual authority to coerce or seduce the married plaintiff female into consenting to a prolonged sexual relationship with the bishop. Plaintiffs also put forward evidence of the bishop's charismatic nature and the bishop's ability to control and coerce using the bishop's spiritual authority, all of which is evidence in rebuttal of the presumptions of "sound mind and discretion" relied upon by the trial court. Brewer v. Paulk, 296 Ga. App. 26 , 673 S.E.2d 545 (2009).
Cited in Bloodworth v. State, 128 Ga. App. 657 , 197 S.E.2d 423 (1973); West v. State, 129 Ga. App. 271 , 199 S.E.2d 354 (1973); Kramer v. State, 230 Ga. 855 , 199 S.E.2d 805 (1973); Spencer v. State, 231 Ga. 705 , 203 S.E.2d 856 (1974); Bentley v. State, 131 Ga. App. 425 , 205 S.E.2d 904 (1974); Ford v. State, 232 Ga. 511 , 207 S.E.2d 494 (1974); Nunnally v. State, 235 Ga. 693 , 221 S.E.2d 547 (1975); Smith v. State, 137 Ga. App. 576 , 224 S.E.2d 534 (1976); Bradley v. State, 137 Ga. App. 670 , 224 S.E.2d 778 (1976); Gatlin v. State, 236 Ga. 707 , 225 S.E.2d 224 (1976); Williamson v. State, 138 Ga. App. 306 , 226 S.E.2d 102 (1976); Scott v. State, 239 Ga. 46 , 235 S.E.2d 522 (1977); Washington v. State, 142 Ga. App. 651 , 236 S.E.2d 837 (1977); Lunsford v. State, 145 Ga. App. 446 , 243 S.E.2d 655 (1978); Harris v. State, 145 Ga. App. 675 , 244 S.E.2d 620 (1978); Borgh v. State, 146 Ga. App. 649 , 247 S.E.2d 137 (1978); Tucker v. State, 245 Ga. 68 , 263 S.E.2d 109 (1980); Russell v. State, 152 Ga. App. 693 , 263 S.E.2d 689 (1979); Moses v. State, 245 Ga. 180 , 263 S.E.2d 916 (1980); Peacock v. State, 154 Ga. App. 201 , 267 S.E.2d 807 (1980); Thrift-Mart, Inc. v. Commercial Union Assurance Cos., 154 Ga. App. 344 , 268 S.E.2d 397 (1980); Jackson v. State, 157 Ga. App. 580 , 278 S.E.2d 152 (1981); Whitsell v. State, 179 Ga. App. 358 , 346 S.E.2d 130 (1986); Adams v. State, 293 Ga. App. 377 , 667 S.E.2d 186 (2008).
RESEARCH REFERENCES
Am. Jur. 2d. - 29 Am. Jur. 2d, Evidence, § 281.
C.J.S. - 22 C.J.S., Criminal Law: Substantive Principles, § 39.
ALR. - Homicide: burden of proof on defense that killing was accidental, 63 A.L.R.3d 936.
16-2-6. Intention a question of fact.
A person will not be presumed to act with criminal intention but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.
(Laws 1833, Cobb's 1851 Digest, p. 779; Code 1863, § 4189; Code 1868, § 4228; Code 1873, § 4298; Code 1882, § 4293; Penal Code 1895, § 32; Penal Code 1910, § 32; Code 1933, § 26-202; Code 1933, § 26-605, enacted by Ga. L. 1968, p. 1249, § 1.)
JUDICIAL DECISIONS
ANALYSIS
General Consideration
Willful failure to discover truth on notice does not negate intent. Rivers v. State, 118 Ga. 42 , 44 S.E. 859 (1903).
When otherwise relevant, state of mind can be proved as an independent fact. Royce & Co. v. Gazan, 76 Ga. 79 (1885); Baxley v. Baxley, 117 Ga. 60 , 43 S.E. 436 (1903); Alexander v. State, 118 Ga. 26 , 44 S.E. 851 (1903).
Intention with which an act is done is peculiarly a question of fact for determination by the jury, and although a finding that the accused had the intent to commit the crime charged may be supported by evidence that is weak and unsatisfactory, the verdict will not be set aside on that ground. Mallette v. State, 119 Ga. App. 24 , 165 S.E.2d 870 (1969).
Intent manifested by circumstances connected with perpetration of offense. - Every crime consists in union or joint operation of act and intention. Sometimes intention can be proved, sometimes it can only be inferred or presumed; and general rule is that intention will be manifested by circumstances connected with perpetration of offense. Marzetta v. Steinman, 117 Ga. App. 471 , 160 S.E.2d 590 (1968); Mallette v. State, 119 Ga. App. 24 , 165 S.E.2d 870 (1969).
State proved that defendant, while intoxicated, purposely drove repeatedly over the road's center line and defendant's proffered defense that defendant "blacked out" was properly rejected. Crossley v. State, 261 Ga. App. 250 , 582 S.E.2d 204 (2003).
Defendant's ignorance of violating the law would not relieve defendant of criminal intent if defendant intended to do the act which the legislature prohibited. Wilson v. State, 57 Ga. App. 839 , 197 S.E. 48 (1938).
Knowledge, like intent, is a question of fact which is seldom capable of proof by direct evidence. Johnson v. State, 158 Ga. App. 183 , 279 S.E.2d 483 (1981).
Whether requisite intent is manifested by circumstances is question for trier of fact, and, on review, appellate court will not disturb factual determination unless it is contrary to evidence and clearly erroneous. Riddle v. State, 145 Ga. App. 328 , 243 S.E.2d 607 (1978), overruled on other grounds, Adsitt v. State, 248 Ga. 237 , 282 S.E.2d 305 (1981); Burden v. State, 187 Ga. App. 778 , 371 S.E.2d 410 , cert. denied, 187 Ga. App. 778 , 371 S.E.2d 410 (1988).
Intent with which act is done is a question of fact for determination by jury. Mallette v. State, 119 Ga. App. 24 , 165 S.E.2d 870 (1969); M.J.W. v. State, 133 Ga. App. 350 , 210 S.E.2d 842 (1974).
One is presumed to intend necessary and legitimate consequences of that which one knowingly does. M.J.W. v. State, 133 Ga. App. 350 , 210 S.E.2d 842 (1974).
Presence, companionship and conduct before and after offense as relevant to intent. - While mere presence at scene of commission of crime is not sufficient evidence to convict one of being party thereto, presence, companionship, and conduct before and after offense are circumstances from which one's participation in criminal intent may be inferred. Kimbro v. State, 152 Ga. App. 893 , 264 S.E.2d 327 (1980); Parham v. State, 166 Ga. App. 855 , 305 S.E.2d 599 (1983); Norris v. State, 220 Ga. App. 87 , 469 S.E.2d 214 (1996).
There was sufficient evidence of defendant's intent to participate in the robbery of a delivery man where the evidence showed that defendant was privy to the robbery plan, participated in the robbery, and convened with the codefendants after the robbery. In the Interest of C.L.B., 267 Ga. App. 456 , 600 S.E.2d 407 (2004).
Inferences and deductions which flow naturally from facts proved may be considered in determining intent. Fears v. State, 152 Ga. App. 817 , 264 S.E.2d 284 (1979).
Motive. - Motive is only one of several things that may be considered in finding intent. Ward v. State, 239 Ga. 205 , 236 S.E.2d 365 (1977).
Evidence of knowledge. - Evidence was sufficient to support the jury's verdict that a defendant knowingly possessed the methamphetamine concealed in the defendant's vehicle because the evidence established that the methamphetamine was located in an unmarked pill bottle within arm's reach on an open shelf behind the passenger's seat, in the console of the vehicle along with the defendant's personal possessions, and in the bedding area of the vehicle behind a panel having a missing screw, and there were no other passengers in the vehicle. Davis v. State, 287 Ga. App. 478 , 651 S.E.2d 750 (2007), cert. denied, No. S08C0176, 2008 Ga. LEXIS 179 (Ga. 2008).
Evidence of criminal intent. - Defendant's conduct and demeanor evinced criminal intent authorizing the jury's verdict finding the defendant guilty of malice murder in connection with the shooting death of a police officer because the defendant and the defendant's friends were overheard discussing beating up the officer; when the officer attempted to arrest one of the friends with the defendant, the defendant drew the defendant's pistol and fired five shots into the officer's back; and the jury received expert testimony that the defendant did not have Post-Traumatic Stress Disorder at the time of the incident. Bowman v. State, 306 Ga. 97 , 829 S.E.2d 139 (2019).
Permissive presumption was created by combining former Code 1933, §§ 26-604 and 26-605 (see now O.C.G.A. §§ 16-2-5 and 16-2-6 ) in charge. - Permissive presumption such as created by combining former Code 1933, §§ 26-604 and 26-605 (see now O.C.G.A. §§ 16-2-5 and 16-2-6 ) in charge allowed, but did not require, trier of fact to infer elemental fact from proof by prosecutor of basic one and that places no burden of any kind on the defendant. Skrine v. State, 244 Ga. 520 , 260 S.E.2d 900 (1979).
Permissive presumptions are not inherently unconstitutional, but are to be tested by the rational connection test under which the court asks if ultimate fact to be presumed is more likely than not to flow from proved fact; and where former Code 1933, §§ 26-604 and 26-605 (see now O.C.G.A. §§ 16-2-5 and 16-2-6 ) are combined in charge to create such presumption, the presumption is rational as obviously it is more likely than not that a normal defendant intends the natural and probable consequences of defendant's acts. Skrine v. State, 244 Ga. 520 , 260 S.E.2d 900 (1979).
Statute need not be charged, absent request, where essential elements of crime are charged. - Trial court is not required to charge intention as defined by statute in absence of a timely written request if the court has charged essential elements of crime with which defendant is charged, including necessity of intent to commit crime. Whigham v. State, 131 Ga. App. 261 , 205 S.E.2d 467 (1974); Carter v. State, 137 Ga. App. 824 , 225 S.E.2d 73 (1976).
It is not necessary that charge to jury be in exact language of Code. Parks v. State, 234 Ga. 579 , 216 S.E.2d 804 (1975).
Failure to charge exact language of former Code 1933, §§ 26-604 and 26-605 (see now O.C.G.A. §§ 16-2-5 and 16-2-6 ) was not reversible error absent request therefor when subject of intent was fully charged. Smith v. State, 139 Ga. App. 660 , 229 S.E.2d 74 (1976).
Detailed definition of intent not necessary. - Upright and intelligent jurors would have no difficulty in understanding meaning of a simple word like "intent," and no detailed definition need be given. Powell v. State, 130 Ga. App. 588 , 203 S.E.2d 893 (1974).
Charge that law presumes unlawful action is criminally intended until contrary shown is error, as it is contrary to the express language of the statute. Williams v. State, 126 Ga. App. 454 , 191 S.E.2d 100 (1972).
Charging substance of section not burdenshifting. - Trial court's charge to the jury stating the substance of O.C.G.A. § 16-2-6 was not improper or burdenshifting in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450 , 61 L. Ed. 2 d 39 (1979). Quick v. State, 198 Ga. App. 353 , 401 S.E.2d 758 (1991).
Sufficiency of evidence. - Jury's finding with respect to intent is not set aside because evidence supporting it is exceedingly weak. Mallette v. State, 119 Ga. App. 24 , 165 S.E.2d 870 (1969).
Evidence supported a conviction for child molestation where: (1) the victim testified that the defendant touched the victim's genitals from the outside of the victim's clothing while the victim sat in front of the defendant on a four-wheeler; (2) another witness testified that the defendant touched the witness the same day; and (3), the jury did not believe the defendant's explanation that if the touching occurred, it was accidental. Collins v. State, 276 Ga. App. 358 , 623 S.E.2d 192 (2005).
When a deputy testified that the defendant resisted the deputy's efforts to break up a prison fight, then turned on the deputy, punched the deputy, and swung at the deputy repeatedly, injuring the deputy, there was sufficient evidence of mutiny in a penal institution and felony obstruction of an officer; the trial court was authorized under O.C.G.A. § 16-2-6 to infer from the circumstances that the defendant both knowingly and willfully obstructed the deputy by the use of violence and intended to cause the deputy serious bodily injury by striking the deputy with a fist, and under former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8 ), it could rely solely on the deputy's account of the events. Butler v. State, 284 Ga. App. 802 , 644 S.E.2d 898 (2007).
Trial court did not err in finding that the defendant was a party to the crime because there was ample evidence, based upon the defendant's actions and the defendant's presence, companionship, conduct, and demeanor before, during, and after the commission of the crime, to conclude that the defendant was more than "merely present" during the commission of the crimes; while in a car with the victim and companions, the front-seat passenger pulled out a gun and shot the victim, and during the incident, the defendant did not say or do anything to intervene. Cook v. State, 314 Ga. App. 289 , 723 S.E.2d 709 (2012).
Cited in Rowland v. State, 124 Ga. App. 495 , 184 S.E.2d 495 (1971); Shields v. State, 126 Ga. App. 544 , 191 S.E.2d 448 (1972); Taylor v. State, 127 Ga. App. 692 , 194 S.E.2d 627 (1972); Daniels v. State, 230 Ga. 126 , 195 S.E.2d 900 (1973); Bloodworth v. State, 128 Ga. App. 657 , 197 S.E.2d 423 (1973); Phillips v. State, 230 Ga. 444 , 197 S.E.2d 720 (1973); Pittman v. State, 230 Ga. 448 , 197 S.E.2d 722 (1973); Bloodworth v. State, 129 Ga. App. 40 , 198 S.E.2d 341 (1973); Murphy v. State, 129 Ga. App. 28 , 198 S.E.2d 344 (1973); West v. State, 129 Ga. App. 271 , 199 S.E.2d 354 (1973); Kramer v. State, 230 Ga. 855 , 199 S.E.2d 805 (1973); James v. State, 232 Ga. 834 , 209 S.E.2d 176 (1974); Bentley v. State, 131 Ga. App. 425 , 205 S.E.2d 904 (1974); Wilson v. State, 233 Ga. 479 , 211 S.E.2d 757 (1975); Franklin v. State, 136 Ga. App. 47 , 220 S.E.2d 60 (1975); J.A.T. v. State, 136 Ga. App. 540 , 221 S.E.2d 702 (1975); Littleton v. State, 139 Ga. App. 511 , 229 S.E.2d 20 (1976); Ealey v. State, 139 Ga. App. 604 , 229 S.E.2d 86 (1976); Dodson v. State, 237 Ga. 607 , 229 S.E.2d 364 (1976); Bass v. State, 237 Ga. 710 , 229 S.E.2d 448 (1976); Coleman v. State, 137 Ga. App. 689 , 224 S.E.2d 878 (1976); Dodd v. State, 236 Ga. 572 , 224 S.E.2d 408 (1976); Wiggins v. State, 139 Ga. App. 98 , 227 S.E.2d 895 (1976); Robertson v. State, 140 Ga. App. 506 , 231 S.E.2d 367 (1976); Harrison v. State, 140 Ga. App. 296 , 231 S.E.2d 809 (1976); Jones v. State, 141 Ga. App. 17 , 232 S.E.2d 365 (1977); Washington v. State, 142 Ga. App. 651 , 236 S.E.2d 837 (1977); Baker v. State, 143 Ga. App. 302 , 238 S.E.2d 241 (1977); Wells v. State, 144 Ga. App. 841 , 242 S.E.2d 752 (1978); Jones v. State, 145 Ga. App. 356 , 243 S.E.2d 747 (1978); Harris v. State, 145 Ga. App. 675 , 244 S.E.2d 620 (1978); Dougherty v. State, 145 Ga. App. 718 , 244 S.E.2d 638 (1978); Sheffield v. State, 241 Ga. 245 , 244 S.E.2d 869 (1978); Spivey v. State, 241 Ga. 477 , 246 S.E.2d 288 (1978); Hitchcock v. State, 146 Ga. App. 470 , 246 S.E.2d 477 (1978); McCane v. State, 147 Ga. App. 730 , 250 S.E.2d 181 (1978); Clary v. State, 151 Ga. App. 301 , 259 S.E.2d 697 (1979); Jackson v. State, 151 Ga. App. 296 , 260 S.E.2d 565 (1979); J.E.T. v. State, 151 Ga. App. 836 , 261 S.E.2d 752 (1979); Johnson v. State, 152 Ga. App. 6 , 262 S.E.2d 214 (1979); Whisenhunt v. State, 152 Ga. App. 829 , 264 S.E.2d 271 (1979); Tucker v. State, 245 Ga. 68 , 263 S.E.2d 109 (1980); Bissell v. State, 153 Ga. App. 564 , 266 S.E.2d 238 (1980); Green v. State, 155 Ga. App. 795 , 272 S.E.2d 761 (1980); O'Bear v. State, 156 Ga. App. 100 , 274 S.E.2d 54 (1980); Brewer v. State, 156 Ga. App. 468 , 274 S.E.2d 817 (1980); Craft v. State, 158 Ga. App. 745 , 282 S.E.2d 203 (1981); Simpson v. State, 159 Ga. App. 235 , 283 S.E.2d 91 (1981); Ely v. State, 159 Ga. App. 693 , 285 S.E.2d 66 (1981); Hardy v. State, 159 Ga. App. 854 , 285 S.E.2d 547 (1981); Butler v. State, 161 Ga. App. 251 , 288 S.E.2d 306 (1982); Billings v. State, 161 Ga. App. 500 , 288 S.E.2d 622 (1982); Monteford v. State, 162 Ga. App. 491 , 292 S.E.2d 93 (1982); McCormick v. State, 162 Ga. App. 267 , 293 S.E.2d 35 (1982); Hall v. State, 162 Ga. App. 713 , 293 S.E.2d 862 (1982), overruled in part by Worthen v. State, 2019 Ga. LEXIS 22 (Ga. 2019); Gray v. State, 163 Ga. App. 720 , 294 S.E.2d 697 (1982); Coker v. State, 163 Ga. App. 799 , 295 S.E.2d 538 (1982); Talley v. State, 164 Ga. App. 150 , 296 S.E.2d 173 (1982); Blalock v. State, 165 Ga. App. 257 , 299 S.E.2d 919 (1983); Wilson v. Jones, 251 Ga. 23 , 302 S.E.2d 546 (1983); McGahee v. State, 170 Ga. App. 227 , 316 S.E.2d 832 (1984); Brown v. State, 173 Ga. App. 264 , 326 S.E.2d 2 (1985); Smith v. State, 174 Ga. App. 744 , 331 S.E.2d 91 (1985); Browning v. State, 174 Ga. App. 759 , 331 S.E.2d 625 (1985); Lunz v. State, 174 Ga. App. 893 , 332 S.E.2d 37 (1985); Colsson v. State, 177 Ga. App. 840 , 341 S.E.2d 318 (1986); Daniel v. State, 179 Ga. App. 54 , 345 S.E.2d 143 (1986); In re R.K.J., 179 Ga. App. 112 , 345 S.E.2d 658 (1986); Worth v. State, 179 Ga. App. 207 , 346 S.E.2d 82 (1986); Tucker v. State, 182 Ga. App. 625 , 356 S.E.2d 559 (1987); Caldwell v. State, 183 Ga. App. 110 , 357 S.E.2d 845 (1987); Carruth v. State, 183 Ga. App. 203 , 358 S.E.2d 610 (1987); In re J.B., 183 Ga. App. 229 , 358 S.E.2d 620 (1987); Smith v. State, 188 Ga. App. 415 , 373 S.E.2d 97 (1988); Fowler v. State, 188 Ga. App. 873 , 374 S.E.2d 805 (1988); Villa v. State, 190 Ga. App. 530 , 379 S.E.2d 417 (1989); Cline v. State, 199 Ga. App. 532 , 405 S.E.2d 524 (1991); Loden v. State, 199 Ga. App. 683 , 406 S.E.2d 103 (1991); Cole v. State, 200 Ga. App. 318 , 408 S.E.2d 438 (1991); Griggs v. State, 208 Ga. App. 768 , 432 S.E.2d 591 (1993); Andrew v. State, 216 Ga. App. 427 , 454 S.E.2d 542 (1995); Massalene v. State, 224 Ga. App. 321 , 480 S.E.2d 616 (1997); Wells v. State, 226 Ga. App. 172 , 486 S.E.2d 390 (1997); Adams v. State, 239 Ga. App. 42 , 520 S.E.2d 746 (1999); In the Interest of N.T.S., 242 Ga. App. 109 , 528 S.E.2d 876 (2000); Brown v. State, 242 Ga. App. 858 , 531 S.E.2d 409 (2000); In the Interest of G.J., 251 Ga. App. 299 , 554 S.E.2d 269 (2001); Maynor v. State, 257 Ga. App. 151 , 570 S.E.2d 428 (2002); Spickler v. State, 276 Ga. 164 , 575 S.E.2d 482 (2003); Dupree v. State, 267 Ga. App. 561 , 600 S.E.2d 654 (2004); Gant v. State, 291 Ga. App. 823 , 662 S.E.2d 895 (2008); Port v. State, 295 Ga. App. 109 , 671 S.E.2d 200 (2008); Hickman v. State, 311 Ga. App. 544 , 716 S.E.2d 597 (2011); Fairwell v. State, 311 Ga. App. 834 , 717 S.E.2d 332 (2011); Freeman v. State, 329 Ga. App. 429 , 765 S.E.2d 631 (2014).
Application
Unexplained possession of recently stolen goods can be used in conjunction with other evidence to infer guilty knowledge, but standing alone it will not support the inference or authorize a conviction. Storey v. State, 162 Ga. App. 763 , 292 S.E.2d 483 (1982).
Instruction that recent possession of stolen property may establish criminal intent. - In prosecution for receiving stolen property, judge's instruction to jury "that recent possession of stolen property without satisfactory explanation is sufficient to establish criminal intent" was error, despite proper instruction on burden of proving criminal intent, and required reversal. Williams v. State, 159 Ga. App. 865 , 285 S.E.2d 597 (1981).
Effect of testimony contradicting denial of intent. - When defendant's posture is one of admitting presence and cooperation for one criminal purpose (stealing money from the cash register), but denying the intent of participating in an armed robbery, the matter thus essentially involves the credibility of the defendant; and if the defendant's explanation of the incident is contradicted by the testimony of the police officers, the hotel employee, and the victims, the jury is authorized to reject the explanation. Parham v. State, 166 Ga. App. 855 , 305 S.E.2d 599 (1983).
Flight as indication of sense of guilt. - Act which constituted possession - flight from police with contraband - itself furnishes evidence of defendant's guilt and defendant's criminal intention to conceal incriminating evidence, just as evidence has been attempted to be concealed by such means as throwing it out of car windows. Haire v. State, 133 Ga. App. 12 , 209 S.E.2d 681 (1974).
Flight upon seeing one whom accused has reason to believe may accuse him of specific crime may be shown as indication of sense of guilt. Jarmello v. State, 152 Ga. App. 741 , 264 S.E.2d 34 (1979).
Defendant's attempts to interfere with the execution of search warrants, to flee, and to evade the police by hiding in a closet constituted evidence of defendant's consciousness of guilt and intention to exercise control over contraband. Moody v. State, 232 Ga. App. 499 , 502 S.E.2d 323 (1998).
Intent to arouse or satisfy sexual desires. - In a prosecution for child molestation, where the evidence established that defendant exposed the defendant's genitals to a child under the age of 14, although defendant argued that the defendant had a different intention in exposing the defendant's genitals, it could be inferred from the act of exposure that the defendant did so with intent to arouse or satisfy the defendant's sexual desires. Hathcock v. State, 214 Ga. App. 188 , 447 S.E.2d 104 (1994).
Intent, which is a mental attitude, is commonly detectable only inferentially, and the law accommodates this; the defendant's manual stimulation of the child victim's genitals allowed the jury to infer that the defendant acted with an improper intent, and the defendant's conviction for child molestation was affirmed. Holloway v. State, 268 Ga. App. 300 , 601 S.E.2d 753 (2004).
Jury was presented with sufficient evidence to find the defendant guilty of child molestation in violation of O.C.G.A. § 16-6-4(a)(1) because the testimony of the defendant's former wife regarding what she observed on the night in question, i.e., that the defendant and the victim were asleep together with their underwear pulled down and that she saw what appeared to be fecal matter smeared on the victim's buttocks and the bed sheets, was sufficient for the jury to conclude that the victim's and the defendant's otherwise inexplicable mutual exposure was for the purpose of satisfying the defendant's own sexual desires. DeLong v. State, 310 Ga. App. 518 , 714 S.E.2d 98 (2011).
Evidence that a defendant became highly intoxicated while having visitation with his seven-year-old daughter, that he licked her vagina, kissed her with his tongue in her mouth, and made her rub her hand on his penis was sufficient to support convictions for aggravated child molestation in violation of O.C.G.A. § 16-6-4(c) . A jury could infer from the evidence that the defendant's intent was to arouse and satisfy his sexual desires, pursuant to O.C.G.A. § 16-2-6 . Obeginski v. State, 313 Ga. App. 567 , 722 S.E.2d 162 (2012), cert. denied, No. S12C0908, 2012 Ga. LEXIS 1013 (Ga. 2012).
Evidence authorized the jury to infer that the defendant touched the victim child's vagina over clothing and that the defendant intended to arouse the defendant's sexual desires or those of the victim as there was evidence that the defendant specifically called the victim to the defendant, sat the victim on the defendant's lap, placed a hand on the victim's vagina over the victim's clothes, and held a hand there for up to a minute. Latta v. State, 341 Ga. App. 696 , 802 S.E.2d 264 (2017), cert. denied, 2017 Ga. LEXIS 1021 (Ga. 2017), cert. denied, 138 S. Ct. 1582 , 2018 U.S. LEXIS 2291, 200 L. Ed. 2 d 768 (U.S. 2018).
Prior act of driving under the influence is relevant to prove bent of mind or course of conduct. Tam v. State, 231 Ga. App. 15 , 501 S.E.2d 51 (1998).
In a driving under the influence (DUI) per se case, the defendant's prior DUI conviction was improperly admitted to show intent as the probative value of the evidence was substantially outweighed by the danger of unfair prejudice because the jury could infer intent from the defendant's act of driving after admittedly consuming alcohol without considering the prior DUI, and there was a danger of interjecting unfair prejudice at trial; however, admission of that evidence was harmless as the direct evidence of the defendant's guilt for the DUI-per se charge was overwhelming as the defendant admitted to consuming alcohol, and the breath tests showed the defendant's blood alcohol content was substantially in excess of 0.08 grams. Jones v. State, 301 Ga. 544 , 802 S.E.2d 234 (2017).
Prior offenses of same sort, by themselves, fail to prove intent. - If no modus operandi or other logical connection between prior offenses committed by defendant and case on trial is shown, mere fact that other offenses were of same sort as one for which defendant is on trial is not sufficient to prove intent. Kent v. State, 128 Ga. App. 132 , 195 S.E.2d 770 (1973).
Driving car into police officer. - Evidence that defendant drove a car through a roadblock toward a uniformed officer who was clearly visible was sufficient to find the requisite intent for aggravated assault. Thrasher v. State, 225 Ga. App. 717 , 484 S.E.2d 755 (1997).
Evidence sufficient for shoplifting conviction. - Evidence concerning defendant's conduct, evidencing intent to participate in theft, was sufficient for conviction of shoplifting. Carter v. State, 188 Ga. App. 464 , 373 S.E.2d 277 (1988); Watson v. State, 214 Ga. App. 645 , 448 S.E.2d 752 (1994).
Jury was authorized to find that the defendant acted with guilty knowledge and intent to commit credit card theft in violation of O.C.G.A. § 16-9-31(a)(1) because the evidence established that the defendant obtained unauthorized possession of the victim's credit card and there was circumstantial evidence from which an inference could be drawn that the defendant had knowledge that the defendant was accepting the credit card without authority and as part of an unlawful scheme; when the defendant was confronted by police officers, the defendant fled, and the defendant maintained unauthorized possession of a different credit card, along with additional items that could be used to engage in fraudulent credit transactions. Amaechi v. State, 306 Ga. App. 333 , 702 S.E.2d 680 (2010).
Intent in aggravated sodomy case. - Trial judge was authorized to find beyond a reasonable doubt that the defendant acted with the criminal intent to commit the prohibited act of aggravated sodomy by placing the defendant's genitals in the victim's mouth with force and against the victim's will. Since there was no evidence that the trial court did not make the requisite finding regarding criminal intent, the appellate court found no error. Sims v. State, 267 Ga. App. 572 , 600 S.E.2d 613 (2004).
Circumstances showing knowledge in possession of cocaine case. - Evidence was sufficient to show that defendants knowingly possessed cocaine, as was required to support their convictions under O.C.G.A. § 16-13-31(a)(1)(C) for trafficking in cocaine; their criminal intention was shown by the fact that when stopped by a police officer for a traffic offense and a seat belt violation, their stories contradicted each other, their car smelled of air freshener, they could not explain who owned the car nor produce a vehicle registration for the vehicle that they were traveling in, and related circumstances from which a jury could infer that they knew about the large quantity of cocaine that was hidden in a secret compartment in their car, despite their claims that they did not know about the cocaine. Fernandez v. State, 275 Ga. App. 151 , 619 S.E.2d 821 (2005).
Circumstances showing trafficking in cocaine. - Defendant's intent to be a party to the crime of trafficking in cocaine was established by evidence that the defendant was aware that an alleged drug dealer kept cocaine in the house where the defendant was arrested, that the dealer doled cocaine out to the defendant and others so that they could sell the cocaine, that the defendant had sold cocaine for the dealer in the past and had stated the intent to do so on the day the defendant was arrested, that cocaine found in defendant's possession had the same packaging as cocaine found in the basement of the house, and that when the police arrived to execute a search warrant, the defendant attempted to destroy the cocaine the defendant had in the defendant's physical possession. Riley v. State, 292 Ga. App. 202 , 663 S.E.2d 835 (2008).
Intention regarding drug trafficking. - Evidence supported a jury's verdict that the defendants had access, power, and intention to exercise control or dominion over drugs found in a home the defendants did not rent or own, including evidence that defendants' belongings were in the home, that the defendants both had keys to the home, and that one of the defendant's vehicle had been parked outside the home through several days of surveillance. Lott v. State, 303 Ga. App. 775 , 694 S.E.2d 698 (2010).
Evidence sufficient for possession of dangerous drugs conviction. - Jury was authorized to conclude that the defendant intended to possess a dangerous drug in violation of the Dangerous Drug Act, O.C.G.A. § 16-13-70 et seq., even if the defendant was subjectively unaware of the precise chemical compound in the bottle and its regulated nature because there was evidence supporting an inference that the defendant used a dangerous drug to sedate the defendant's sexual battery victim, and that conduct demonstrated the defendant's knowledge of the harmful effect of the compound; the term "dangerous drug" was defined to include alkyl nitrite, which was the compound the defendant possessed. Serna v. State, 308 Ga. App. 518 , 707 S.E.2d 904 (2011).
Intent to assist in possession and sale of marijuana. - There was sufficient evidence of knowledge and intent to assist with or participate in the crime of possession of marijuana with intent to distribute when a defendant drove the defendant's roommate to a location in another county and the roommate brought along a sealed, insulated bag, which the defendant placed in the back compartment of the car. Able v. State, 312 Ga. App. 252 , 718 S.E.2d 96 (2011).
Sufficient evidence of malicious intent. - While a person was not presumed to act with criminal intent, the jury was entitled to conclude that defendant acted with malicious intent in wounding the victim since defendant admitted to wanting to confront the victim, defendant began verbal and physical altercations with the victim, defendant's demeanor and conduct were very hostile and violent during the confrontation, and defendant swung defendant's own hand at the victim's head several times, resulting in multiple cuts to the victim's head which required 30 staples to close. Campbell v. State, 258 Ga. App. 863 , 575 S.E.2d 748 (2002).
Existence of general criminal intent necessary to support convictions for aggravated assault could be inferred from the defendant's acts in leaving the scene of the altercation the defendant had with the defendant's sibling, returning with a gun, and firing into a truck cab where the person who had broken up the altercation and the defendant's spouse were sitting as they prepared to leave the scene. Bishop v. State, 266 Ga. App. 129 , 596 S.E.2d 674 (2004).
Sufficient evidence of participation in robbery. - Defendant's aggravated assault and robbery convictions were upheld on appeal as evidence including the defendant's admission and flight from the scene authorized the jury to conclude that the defendant went to an apartment complex intending to participate in the robbery, and in fact participated in the robbery by acting as a lookout and an additional show of force; hence, the jury was authorized to infer criminal intent from the defendant's conduct before, during, and after the commission of the crime. Millender v. State, 286 Ga. App. 331 , 648 S.E.2d 777 (2007), cert. denied, No. S07C1717, 2008 Ga. LEXIS 80 (Ga. 2008).
Intent in aggravated assault case. - In a prosecution for aggravated assault, O.C.G.A. § 16-5-21(a)(2), the defendant argued that the evidence showed that the defendant did not intend to shoot the victim but acted in self-defense. This claim failed because under O.C.G.A. § 16-2-6 whether the defendant committed the act with criminal intent was a question of fact for the jury. Gordon v. State, 294 Ga. App. 908 , 670 S.E.2d 533 (2008).
Evidence of intent on charge of theft by conversion. - Defendant's conviction of theft by conversion, O.C.G.A. § 16-8-4(a) , was supported by sufficient evidence; evidence of defendant's failure to return a rented wood chipper, admitted lies regarding defendant's address and phone number, and defendant's flight after charges were filed was sufficient under O.C.G.A. § 16-2-6 for the jury to conclude that defendant fraudulently converted the chipper to defendant's own use. Terrell v. State, 275 Ga. App. 501 , 621 S.E.2d 515 (2005).
Sufficient evidence of intent to rob. - Trial court did not err in denying the defendant's motion for directed verdict of acquittal on the defendant's aggravated assault with intent to rob convictions because the jury was authorized to conclude that the defendant fired a gun at the victims to further a robbery and the indictment did not charge the defendant with a specific intent to rob the victims but only with a general intent to rob; the defendant approached the victims, pointed a gun toward the head of one of the victims, and demanded money, and after robbing that victim, the defendant fled and fired several shots at the porch where the victims had been standing and at the victims once the victims began chasing the defendant. Johnson v. State, 304 Ga. App. 371 , 696 S.E.2d 396 (2010).
Intent to make terroristic threats. - Defendant was properly convicted of terroristic threats in violation of O.C.G.A. § 16-11-37(a) because the jury was presented with sufficient evidence by which to find that the defendant intended to terrorize officers by communicating a threat to blow up the defendant's home using propane; although there was testimony that the defendant suffered from a history of mental illness, the defendant did not plead the affirmative defense of insanity, and the issue of the defendant's criminal intent was a question of fact for the jury, which was presented with sufficient evidence to establish the requisite criminal intent. Layne v. State, 313 Ga. App. 608 , 722 S.E.2d 351 (2012).
Evidence was sufficient for the jury to find that the defendant intended to terrorize the victims based on the defendant yelling at an officer trying to restrain the defendant that the defendant was going to kill the officer and the officer's family. Harper v. State, 337 Ga. App. 57 , 785 S.E.2d 691 (2016).
Sufficient intent to kidnap. - Jury was authorized to find that the defendant had the requisite criminal intent from the fact that the defendant approached the victim who the defendant did not know and offered the victim money. Upon approaching the victim, the defendant grabbed the victim, lifted the victim up, and carried the victim away against the victim's will. Thomas v. State, 320 Ga. App. 101 , 739 S.E.2d 417 (2013).
Victims entered bedroom on own volition. - Evidence was sufficient to support the defendant's aggravated assault convictions but insufficient to support false imprisonment convictions because at no time did the defendant arrest, confine, or detain either victim in the bedroom but the defendant knew one victim was in the bedroom when the defendant knowingly assaulted that victim with a deadly weapon by shooting through the bedroom door. Miller v. State, 305 Ga. 276 , 824 S.E.2d 342 (2019).
RESEARCH REFERENCES
Am. Jur. 2d. - 29 Am. Jur. 2d, Evidence, §§ 281, 439 et seq. 75 Am. Jur. 2d, Trial, §§ 324, 325, 326.
C.J.S. - 22 C.J.S., Criminal Law: Substantive Principles, § 34 et seq.
ALR. - Criminal responsibility of one who acts as decoy to detect commission of crime, 120 A.L.R. 1506 .
Series of takings over a period of time as involving single or separate larcenies, 53 A.L.R.3d 398.
Homicide: burden of proof on defense that killing was accidental, 63 A.L.R.3d 936.
Remoteness in time of other similar offenses committed by accused as affecting admissibility of evidence thereof in prosecution for sex offense, 88 A.L.R.3d 8.
Robbery, attempted robbery, or assault to commit robbery, as affected by intent to collect or secure debt or claim, 88 A.L.R.3d 1309.
ARTICLE 2 PARTIES TO CRIMES
Law reviews. - For article, "Disruptive Innovation in Criminal Defense: Demanding Corporate Criminal Trials," see 69 Mercer L. Rev. 825 (2018).
JUDICIAL DECISIONS
Allegations in accusation. - Although the state must prove the applicable provisions of O.C.G.A. T. 16, Ch. 2, Art. 2 at trial against a criminal defendant, it is not necessary that the state allege these provisions in the accusation. State v. Military Circle Pet Ctr. No. 94, Inc., 257 Ga. 388 , 360 S.E.2d 248 (1987).
RESEARCH REFERENCES
ALR. - Criminal responsibility of one who acts as decoy to detect commission of crime, 120 A.L.R. 1506 .
Mental or emotional condition as diminishing responsibility for crime, 22 A.L.R.3d 1228.
16-2-20. When a person is a party to a crime.
- Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.
-
A person is concerned in the commission of a crime only if he:
- Directly commits the crime;
- Intentionally causes some other person to commit the crime under such circumstances that the other person is not guilty of any crime either in fact or because of legal incapacity;
- Intentionally aids or abets in the commission of the crime; or
-
Intentionally advises, encourages, hires, counsels, or procures another to commit the crime.
(Code 1933, § 26-801, enacted by Ga. L. 1968, p. 1249, § 1.)
Law reviews. - For article, "State v. Jackson and the Explosion of Liability for Felony Murder," see 62 Mercer L. Rev. 1335 (2011). For article, "Individual Accountability for Corporate Crime," see 34 Ga. St. U. L. Rev. 335 (2018). For note discussing organized crime in Georgia with respect to the application of state gambling laws, and suggesting proposals for combatting organized crime, see 7 Ga. St. B. J. 124 (1970). For note discussing the felony murder rule, and proposing legislation to place limitations on Georgia's felony murder statute, see 9 Ga. St. B. J. 462 (1973).
JUDICIAL DECISIONS
ANALYSIS
General Consideration
Editor's notes. - In light of the similarity of the statutory provisions, decisions decided under former Penal Code 1910, § 45 and former Code 1933, §§ 26-402, 26-601, as they read prior to revision of the title by Ga. L. 1968, p. 1249 are included in the annotations for this Code section.
Statute is not unconstitutionally vague, indefinite, and overbroad. Wanzer v. State, 232 Ga. 523 , 207 S.E.2d 466 (1974).
Evidence supported the defendant's conviction for armed robbery as an aider and abetter under O.C.G.A. § 16-2-20(b)(3) and (4) as a codefendant testified that the defendant had provided the gun used in the crime, which was corroborated by the defendant's admission that the defendant provided the shooter with the gun and that the defendant knew that the persons intended to use the gun to rob a place on the interstate. Terrell v. State, 268 Ga. App. 173 , 601 S.E.2d 500 (2004).
Law regarding accessories before the fact is to be treated as rider on other penal statutes, describing possible relationship or status, and not creating separate offense. Chambers v. State, 194 Ga. 773 , 22 S.E.2d 487 , answer conformed to, 68 Ga. App. 338 , 23 S.E.2d 545 (1942) (decided under former Code 1933, § 26-601).
Person providing encouragement and promising to buy fruits of larceny (now theft) as party. - One who counsels and encourages commission of misdemeanor by promising to buy fruits of larceny is guilty as a principal, although the person did not act as actual perpetrator of crime. Grant v. State, 47 Ga. App. 234 , 170 S.E. 394 (1933) (decided under former Penal Code 1910, § 45).
Participants need not be actual perpetrators. - Participants to a crime may be convicted of a crime even though they are not the actual perpetrators. It matters not whether it was defendant or defendant's accomplice who actually fired the gun during the robbery which resulted in the death of the victim. Lobdell v. State, 256 Ga. 769 , 353 S.E.2d 799 (1987); Heath v. State, 186 Ga. App. 655 , 368 S.E.2d 346 (1988) (cocaine trafficking); Cunningham v. State, 240 Ga. App. 92 , 522 S.E.2d 684 (1999);(child molestation).
When the defendant, an attorney, knew that the client had received approximately $15,000 at closing, but told the client's insurer that the client had not been paid for the sale of the property because the indictment specifically charged the defendant with violating the insurance fraud statute; and the indictment further indicated, tracking the statute's own language, that the fraudulent misrepresentation was the statement of the client that the client had suffered a loss of $117,849.82, the indictment was sufficient to withstand a general demurrer. Sallee v. State, 329 Ga. App. 612 , 765 S.E.2d 758 (2014), cert. denied, 136 S. Ct. 199 , 193 L. Ed. 2 d 128 (U.S. 2015).
Merely driving vehicle sufficient. - There was sufficient evidence to support the defendant's convictions of felony murder and aggravated assault resulting from an incident when shots were fired from a van at the victims, who were riding in a car that had formerly belonged to a drug dealer; the defendant had argued with the drug dealer the day of the shooting, the defendant's wrecked car was found in the same place as the van, the surviving victim identified the defendant as the driver of the van, the van had been traded to the defendant's brother, and even if the defendant did not actually fire the shots, being the driver would authorize the defendant's conviction under O.C.G.A. § 16-2-20(a) . Yancey v. State, 281 Ga. 664 , 641 S.E.2d 524 (2007).
Common criminal intent. - Elements of proof that one is party or accomplice to a crime require proof of common criminal intent. Jones v. State, 250 Ga. 11 , 295 S.E.2d 71 (1982), cert. denied, 459 U.S. 1176, 103 S. Ct. 827 , 74 L. Ed. 2 d 1022 (1983).
It is appropriate to consider all circumstances surrounding incident in determining whether defendant is a party. Moran v. State, 139 Ga. App. 274 , 228 S.E.2d 216 (1976).
Presence, companionship, and conduct before and after offense inferring participation. - While mere presence at scene of commission of crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after offense are circumstances from which one's participation in criminal intent may be inferred. Kimbro v. State, 152 Ga. App. 893 , 264 S.E.2d 327 (1980); Parham v. State, 166 Ga. App. 855 , 305 S.E.2d 599 (1983); Lunz v. State, 174 Ga. App. 893 , 332 S.E.2d 37 (1985); Stoe v. State, 187 Ga. App. 171 , 369 S.E.2d 793 (1988); Simpson v. State, 265 Ga. 665 , 461 S.E.2d 210 (1995); James v. State, 227 Ga. App. 907 , 490 S.E.2d 556 (1997).
Intent may be proved by conduct, demeanor, and other circumstances connected with act for which defendant is being prosecuted. Brooks v. State, 151 Ga. App. 384 , 259 S.E.2d 743 (1979); Parham v. State, 166 Ga. App. 855 , 305 S.E.2d 599 (1983); Todd v. State, 189 Ga. App. 538 , 376 S.E.2d 917 (1988).
Presence and assistance in commission of crime. - While an individual's mere presence when a crime is committed is not sufficient to warrant conviction, if the individual is present and assists in the commission of the crime, the individual may be convicted as a party thereto. Hicks v. State, 211 Ga. App. 370 , 439 S.E.2d 56 (1993).
Evidence was sufficient to sustain a defendant's conviction of two counts of aggravated assault and two counts of possession of a firearm during the commission of a crime in violation of O.C.G.A. §§ 16-5-21 and 16-11-106 because the defendant's admission that defendant was holding a rifle throughout the crimes' commission, along with evidence of the defendant's flight, authorized the jury to conclude that the defendant participated in the crimes by acting as a lookout. Gant v. State, 291 Ga. App. 823 , 662 S.E.2d 895 (2008).
Evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt of aggravated assault because, although it was unclear who fired first, the defendant admittedly fired the defendant's weapon; the jury could find that even if the victims were not hit by the defendant's bullets, the victims were struck when rap group members and supporters fired during a gun battle. Emmanuel v. State, 300 Ga. App. 378 , 685 S.E.2d 361 (2009), cert. denied, No. S10C0301, 2010 Ga. LEXIS 301 (Ga. 2010).
Pursuant to O.C.G.A. § 16-2-20 , because the defendant was not only present when a robbery was committed, but also actively aided and abetted the robbery's commission and received a portion of the money taken from the victim, the evidence was sufficient to find the defendant guilty of robbery by force beyond a reasonable doubt under O.C.G.A. § 16-8-40(a)(1). Brown v. State, 314 Ga. App. 375 , 724 S.E.2d 410 (2012).
Presence at scene of crime. - Mere presence at scene of crime or where criminal acts are committed, even when coupled with flight, is insufficient to authorize conviction. Bogan v. State, 158 Ga. App. 1 , 279 S.E.2d 229 (1981).
Presence at scene of crime is not sufficient to show that defendant is party to crime. Brown v. State, 250 Ga. 862 , 302 S.E.2d 347 (1983), overruled on other grounds Venturino v. State, 306 Ga. 391 , 830 S.E.2d 110 (2019).
Presence at the scene of a crime, even when coupled with knowledge and approval not amounting to encouragement, is not sufficient to show that the defendant is a party. Smith v. State, 188 Ga. App. 415 , 373 S.E.2d 97 (1988).
Neither presence nor approval sufficient for participation. - Presence at the scene of a crime was not sufficient to show that a defendant was a party to the crime under O.C.G.A. § 16-2-20 , and even approval of the act, if not amounting to encouragement, would not suffice. This was so because of the restrictions of former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6 ) as to a conviction on circumstantial evidence. Ridgeway v. State, 187 Ga. App. 381 , 370 S.E.2d 216 (1988).
Sufficiency of indictments. - In two actions charging the defendant with being a party to the crime of aggravated assault allegedly committed with a codefendant, given that the first of two indictments failed to set out the elements of aggravated assault, and the state offered to nolle pros the same, the indictment was properly dismissed; however, a second and superseding indictment survived demurrer, as the elements of aggravated assault were sufficiently set out therein, and the disjunctive way that the offense was charged was not fatally defective as to the defendant, but simply limited the state's option of proving at trial the manner in which the aggravated assault was committed. State v. Daniels, 281 Ga. App. 224 , 635 S.E.2d 835 (2006).
When the defendant, an attorney, knew that the client had received approximately $15,000 at closing, but told the client's insurer that the client had not been paid for the sale of the property, the indictment was sufficient to withstand a special demurrer because the indictment specifically identified the fraudulent statement as the client's December 8, 2008 proof of loss statement; the indictment apprised the defendant of the charges against the defendant so that the defendant could prepare a defense; and the indictment protected the defendant against subsequent prosecutions for the same offense. Sallee v. State, 329 Ga. App. 612 , 765 S.E.2d 758 (2014), cert. denied, 136 S. Ct. 199 , 193 L. Ed. 2 d 128 (U.S. 2015).
Indictment did not have to allege defendant's status as party to charged crimes. - Although the state was required to prove that the defendant was a party to the charged crimes under O.C.G.A. § 16-2-20 , the state was not required to allege these provisions in the indictment. Thus, the presentation to the jury of the theories of parties to the crime and conspiracy was not a constructive amendment to the indictment. Elamin v. State, 293 Ga. App. 591 , 667 S.E.2d 439 (2008).
Venue. - After the crime is completed, a defendant may be convicted of the crime based on defendant's activities as a conspirator, even though conspiracy is not alleged in the indictment, and venue in such a case is properly laid in the county in which the substantive offense is committed, even though the defendant may never have entered that county. Hernandez v. State, 182 Ga. App. 797 , 357 S.E.2d 131 (1987).
Approval, not amounting to encouragement. - Even if the defendant's statement could be construed as constituting approval of the codefendant's offense of selling marijuana, such approval, not amounting to encouragement, does not render the defendant party to the offense charged. Parker v. State, 155 Ga. App. 617 , 271 S.E.2d 871 (1980).
Approval of the act, not amounting to encouragement, will not suffice to show that a defendant is a party to the crime. Moore v. State, 255 Ga. 519 , 340 S.E.2d 888 (1986).
Former definition of principal in second degree carries over to paragraph (b)(3) of section. - Although terminology of parties to crime as principals in first and second degree has been abolished, the concept, as relating to criminal responsibility, remains constant. "Aid or abet" should be given the same meaning as in defining principal in second degree as one "who is present, aiding, and abetting the act to be done." Hannah v. State, 125 Ga. App. 596 , 188 S.E.2d 401 (1972) (see O.C.G.A. § 16-2-20(b)(3)).
Where numerous persons are concerned in crime, language of section may be charged. - By virtue of former Code 1933, §§ 26-801 and 26-802 (see now O.C.G.A. §§ 16-2-20 and 16-2-21 ), if evidence in criminal case shows that two or more persons were concerned in commission of alleged crime, it is not harmful error for trial court to charge in the language of these provisions or to charge jury on law of conspiracy. Battle v. State, 231 Ga. 501 , 202 S.E.2d 449 (1973).
Charge under statute erroneous only when theory not supported by evidence. - Charge under statute is error only if there is insufficient evidence, circumstantial or otherwise, to support theory. Evans v. State, 138 Ga. App. 460 , 226 S.E.2d 303 (1976).
Person need not be indicted under O.C.G.A. § 16-2-20 before state may prove that person's culpability for crime. as a party to that crime. Wright v. State, 165 Ga. App. 790 , 302 S.E.2d 706 (1983).
State's use of "party to a crime" theory to convict defendant when defendant was indicted for having directly committed the crimes was not in error; even though state was required to prove defendant was party to the crimes under O.C.G.A. § 16-2-20 , it was not required to allege those provisions in the indictment. Trumpler v. State, 261 Ga. App. 499 , 583 S.E.2d 184 (2003).
Acquittal of one party does not bar separate, distinct prosecution and conviction of another party. Eades v. State, 232 Ga. 735 , 208 S.E.2d 791 (1974).
Instruction cured reading of wrong indictment. - Because state presented sufficient evidence showing defendant's involvement in sale of cocaine and the sale of cocaine within 1,000 feet of a public housing project as a party to the crimes, and because the judge's instruction and explanation after reading the wrong indictment to the jury at trial cured any error, defendant's convictions were upheld on appeal, and mistrial based on the latter was properly denied; moreover, defendant was properly denied a new trial. Walker v. State, 290 Ga. App. 749 , 660 S.E.2d 844 (2008), cert. dismissed, No. S08C1701, 2008 Ga. LEXIS 776 (Ga. 2008).
Trier of fact determines level of involvement. - With regard to a defendant's convictions for burglary, armed robbery, and aggravated assault, there was sufficient evidence to support the convictions based on the victim's testimony identifying defendant as one of the three perpetrators and the admissions by the defendant to aiding and abetting. Although the defendant claimed that the defendant's involvement was limited to trying to rescue a co-hort, there was evidence that the defendant was personally involved in the entire episode, and it was up to the trier of fact to determine what happened. Yates v. State, 298 Ga. App. 727 , 681 S.E.2d 190 (2009).
Acquittal of principal is relevant evidence on the issue of the guilt or innocence of one charged as a party to the crime under O.C.G.A. § 16-2-20(a) , (b)(3) and (b)(4). White v. State, 257 Ga. 236 , 356 S.E.2d 875 (1987).
Cited in Henderson v. State, 227 Ga. 68 , 179 S.E.2d 76 (1970); Green v. State, 124 Ga. App. 469 , 184 S.E.2d 194 (1971); Dutton v. State, 228 Ga. 850 , 188 S.E.2d 794 (1972); Brooks v. State, 125 Ga. App. 867 , 189 S.E.2d 448 (1972); Grey v. State, 126 Ga. App. 357 , 190 S.E.2d 557 (1972); Bradford v. State, 126 Ga. App. 688 , 191 S.E.2d 545 (1972); Yeomans v. State, 229 Ga. 488 , 192 S.E.2d 362 (1972); Montgomery v. State, 128 Ga. App. 116 , 195 S.E.2d 784 (1973); Swarn v. State, 230 Ga. 552 , 198 S.E.2d 177 (1973); Holiday v. State, 128 Ga. App. 817 , 198 S.E.2d 364 (1973); Moye v. State, 129 Ga. App. 52 , 198 S.E.2d 514 (1973); Simmons v. State, 129 Ga. App. 107 , 198 S.E.2d 718 (1973); Jones v. State, 129 Ga. App. 54 , 198 S.E.2d 884 (1973); Overton v. State, 230 Ga. 830 , 199 S.E.2d 205 (1973); Singleton v. State, 129 Ga. App. 644 , 200 S.E.2d 507 (1973); Gentry v. State, 129 Ga. App. 819 , 201 S.E.2d 679 (1973); Lundy v. State, 130 Ga. App. 171 , 202 S.E.2d 536 (1973); Perkins v. State, 231 Ga. 680 , 203 S.E.2d 854 (1974); Freeman v. State, 130 Ga. App. 718 , 204 S.E.2d 445 (1974); Strong v. State, 232 Ga. 294 , 206 S.E.2d 461 (1974); Ford v. State, 232 Ga. 511 , 207 S.E.2d 494 (1974); Hess v. State, 132 Ga. App. 26 , 207 S.E.2d 580 (1974); Dyke v. State, 232 Ga. 817 , 209 S.E.2d 166 (1974); Harvey v. State, 233 Ga. 41 , 209 S.E.2d 587 (1974); Zinn v. State, 134 Ga. App. 51 , 213 S.E.2d 156 (1975); Gaither v. State, 234 Ga. 465 , 216 S.E.2d 324 (1975); Daniels v. State, 234 Ga. 523 , 216 S.E.2d 819 (1975); Murray v. State, 135 Ga. App. 264 , 217 S.E.2d 293 (1975); Payne v. State, 135 Ga. App. 245 , 217 S.E.2d 476 (1975); Cunningham v. State, 235 Ga. 126 , 218 S.E.2d 854 (1975); Rucker v. State, 135 Ga. App. 468 , 218 S.E.2d 146 (1975); Welch v. State, 235 Ga. 243 , 219 S.E.2d 151 (1975); Snell v. McCoy, 135 Ga. App. 832 , 219 S.E.2d 482 (1975); Garland v. State, 235 Ga. 522 , 221 S.E.2d 198 (1975); McNeese v. State, 236 Ga. 26 , 222 S.E.2d 318 (1976); Clanton v. State, 137 Ga. App. 376 , 224 S.E.2d 58 (1976); Coleman v. State, 137 Ga. App. 689 , 224 S.E.2d 878 (1976); Carter v. State, 137 Ga. App. 824 , 225 S.E.2d 73 (1976); Ballew v. State, 138 Ga. App. 530 , 227 S.E.2d 65 (1976); Hickox v. State, 138 Ga. App. 882 , 227 S.E.2d 829 (1976); Evans v. State, 139 Ga. App. 607 , 229 S.E.2d 88 (1976); Loder v. State, 140 Ga. App. 166 , 230 S.E.2d 124 (1976); Waldrop v. State, 141 Ga. App. 58 , 232 S.E.2d 395 (1977); Lane v. State, 238 Ga. 407 , 233 S.E.2d 375 (1977); First Nat'l Bank & Trust Co. v. State, 141 Ga. App. 471 , 233 S.E.2d 861 (1977); Phillips v. State, 238 Ga. 632 , 235 S.E.2d 12 (1977); Bostic v. State, 239 Ga. 32 , 235 S.E.2d 530 (1977); Fuqua v. State, 142 Ga. App. 632 , 236 S.E.2d 685 (1977); Nance v. State, 239 Ga. 381 , 236 S.E.2d 752 (1977); Hendrix v. State, 239 Ga. 507 , 238 S.E.2d 56 (1977); Jackson v. State, 143 Ga. App. 406 , 238 S.E.2d 752 (1977); Sullens v. State, 239 Ga. 766 , 238 S.E.2d 864 (1977); Freedman v. United States, 437 F. Supp. 1252 (N.D. Ga. 1977); Allen v. State, 145 Ga. App. 426 , 243 S.E.2d 626 (1978); Peters v. State, 241 Ga. 152 , 243 S.E.2d 883 (1978); Miller v. State, 145 Ga. App. 653 , 244 S.E.2d 608 (1978); Hitchcock v. State, 146 Ga. App. 470 , 246 S.E.2d 477 (1978); Key v. State, 146 Ga. App. 536 , 246 S.E.2d 723 (1978); Mathis v. State, 242 Ga. 761 , 251 S.E.2d 305 (1978); Dixon v. State, 243 Ga. 46 , 252 S.E.2d 431 (1979); Davis v. State, 242 Ga. 901 , 252 S.E.2d 443 (1979); Garrett v. State, 243 Ga. 322 , 253 S.E.2d 741 (1979); Barraza v. State, 149 Ga. App. 738 , 256 S.E.2d 48 (1979); Hughes v. State, 150 Ga. App. 90 , 256 S.E.2d 634 (1979); Cantrell v. State, 150 Ga. App. 259 , 257 S.E.2d 351 (1979); Crass v. State, 150 Ga. App. 374 , 257 S.E.2d 909 (1979); Crosby v. State, 150 Ga. App. 804 , 258 S.E.2d 593 (1979); Harrison v. State, 151 Ga. App. 758 , 261 S.E.2d 482 (1979); Womack v. State, 152 Ga. App. 325 , 262 S.E.2d 598 (1979); Pittman v. State, 245 Ga. 453 , 265 S.E.2d 592 (1980); Jones v. State, 245 Ga. 592 , 266 S.E.2d 201 (1980); Smith v. State, 154 Ga. App. 258 , 267 S.E.2d 863 (1980); Whitaker v. State, 246 Ga. 163 , 269 S.E.2d 436 (1980); McAllister v. State, 246 Ga. 246 , 271 S.E.2d 159 (1980); Morrow v. State, 155 Ga. App. 574 , 271 S.E.2d 707 (1980); Highfield v. State, 246 Ga. 478 , 272 S.E.2d 62 (1980); Thomas v. State, 246 Ga. 484 , 272 S.E.2d 68 (1980); Harper v. State, 155 Ga. App. 764 , 272 S.E.2d 736 (1980); Murphy v. State, 246 Ga. 626 , 273 S.E.2d 2 (1980); Smith v. State, 156 Ga. App. 563 , 275 S.E.2d 140 (1980); Webb v. State, 156 Ga. App. 623 , 275 S.E.2d 707 (1980); Walker v. State, 247 Ga. 746 , 280 S.E.2d 333 (1981); Royal v. State, 158 Ga. App. 405 , 280 S.E.2d 427 (1981); Stevens v. State, 158 Ga. App. 656 , 281 S.E.2d 629 (1981); Koza v. State, 158 Ga. App. 709 , 282 S.E.2d 131 (1981); Tisdol v. State, 158 Ga. App. 852 , 282 S.E.2d 411 (1981); Jenkins v. State, 159 Ga. App. 183 , 283 S.E.2d 49 (1981); Smith v. State, 159 Ga. App. 468 , 284 S.E.2d 21 (1981); Jackson v. State, 248 Ga. 480 , 284 S.E.2d 267 (1981); Price v. State, 159 Ga. App. 662 , 284 S.E.2d 676 (1981); Weathers v. State, 160 Ga. App. 581 , 287 S.E.2d 565 (1981); Parrish v. State, 160 Ga. App. 601 , 287 S.E.2d 603 (1981); Dawson v. State, 161 Ga. App. 121 , 288 S.E.2d 247 (1982); Morgan v. State, 161 Ga. App. 67 , 288 S.E.2d 836 (1982); Fleming v. State, 162 Ga. App. 112 , 290 S.E.2d 214 (1982); Osborn v. State, 161 Ga. App. 132 , 291 S.E.2d 22 (1982); Harper v. State, 249 Ga. 519 , 292 S.E.2d 389 (1982); Welch v. State, 163 Ga. App. 383 , 294 S.E.2d 596 (1982); Fox v. State, 163 Ga. App. 601 , 295 S.E.2d 563 (1982); Goins v. State, 164 Ga. App. 37 , 296 S.E.2d 229 (1982); Ellis v. State, 164 Ga. App. 366 , 296 S.E.2d 726 (1982); Johnson v. State, 165 Ga. App. 132 , 299 S.E.2d 416 (1983); Moore v. State, 165 Ga. App. 207 , 300 S.E.2d 543 (1983); Brooks v. State, 250 Ga. 739 , 300 S.E.2d 810 (1983); Jackson v. State, 165 Ga. App. 444 , 301 S.E.2d 661 (1983); Lucas v. State, 165 Ga. App. 468 , 302 S.E.2d 121 (1983); Jackson v. State, 165 Ga. App. 737 , 302 S.E.2d 611 (1983); Tolliver v. State, 167 Ga. App. 696 , 307 S.E.2d 269 (1983); Thompson v. State, 168 Ga. App. 734 , 310 S.E.2d 725 (1983); Barnes v. State, 168 Ga. App. 925 , 310 S.E.2d 777 (1983); Campbell v. State, 169 Ga. App. 112 , 312 S.E.2d 136 (1983); Whittington v. State, 252 Ga. 168 , 313 S.E.2d 73 (1984); Brooks v. State, 169 Ga. App. 543 , 314 S.E.2d 115 (1984); Graham v. State, 171 Ga. App. 242 , 319 S.E.2d 484 (1984); Jones v. State, 174 Ga. App. 783 , 331 S.E.2d 633 (1985); George v. State, 175 Ga. App. 229 , 333 S.E.2d 141 (1985); Robinson v. State, 175 Ga. App. 769 , 334 S.E.2d 358 (1985); Norris v. State, 176 Ga. App. 164 , 335 S.E.2d 611 (1985); Wilcox v. State, 177 Ga. App. 596 , 340 S.E.2d 243 (1986); Davis v. State, 255 Ga. 598 , 340 S.E.2d 869 (1986); Bagby v. State, 178 Ga. App. 282 , 342 S.E.2d 731 (1986); Barnett v. State, 178 Ga. App. 383 , 343 S.E.2d 155 (1986); Wallace v. State, 178 Ga. App. 876 , 344 S.E.2d 770 (1986); Lobdell v. State, 256 Ga. 769 , 353 S.E.2d 799 (1987); Beck v. State, 181 Ga. App. 681 , 353 S.E.2d 610 (1987); Sablon v. State, 182 Ga. App. 128 , 355 S.E.2d 88 (1987); Wilcox v. Ford, 813 F.2d 1140 (11th Cir. 1987); In re C.D.L., 184 Ga. App. 412 , 361 S.E.2d 527 (1987); Davis v. Kemp, 829 F.2d 1522 (11th Cir. 1987); Bostic v. State, 184 Ga. App. 509 , 361 S.E.2d 872 (1987); Eaton v. State, 184 Ga. App. 652 , 362 S.E.2d 455 (1987); Martin v. State, 185 Ga. App. 145 , 363 S.E.2d 765 (1987); Jones v. State, 258 Ga. 25 , 365 S.E.2d 263 (1988); King v. State, 185 Ga. App. 698 , 365 S.E.2d 852 (1988); Scott v. State, 185 Ga. App. 887 , 366 S.E.2d 196 (1988); Raines v. State, 186 Ga. App. 239 , 366 S.E.2d 841 (1988); Dukes v. State, 186 Ga. App. 815 , 369 S.E.2d 259 (1988); Lonchar v. State, 258 Ga. 447 , 369 S.E.2d 749 (1988); Davis v. Williams, 258 Ga. 552 , 372 S.E.2d 228 (1988); Van Huynh v. State, 258 Ga. 663 , 373 S.E.2d 502 (1988); Willis v. State, 191 Ga. App. 251 , 381 S.E.2d 416 (1989); Cordova v. State, 191 Ga. App. 297 , 381 S.E.2d 436 (1989)
Olsen v. State, 191 Ga. App. 763 , 382 S.E.2d 715 (1989); Owens v. State, 192 Ga. App. 335 , 384 S.E.2d 920 (1989); Howard v. State, 192 Ga. App. 813 , 386 S.E.2d 667 (1989); Glover v. State, 192 Ga. App. 798 , 386 S.E.2d 699 (1989); McMonagle v. State, 196 Ga. App. 300 , 395 S.E.2d 821 (1990); Graham v. State, 197 Ga. App. 102 , 397 S.E.2d 600 (1990); Fair v. State, 198 Ga. App. 437 , 401 S.E.2d 626 (1991); Brown v. State, 198 Ga. App. 590 , 402 S.E.2d 341 (1991); Haynes v. State, 199 Ga. App. 288 , 404 S.E.2d 585 (1991); Williams v. State, 200 Ga. App. 84 , 406 S.E.2d 498 (1991); Austin v. State, 261 Ga. 550 , 408 S.E.2d 105 (1991); Sands v. State, 262 Ga. 367 , 418 S.E.2d 55 (1992); Smith v. State, 205 Ga. App. 810 , 424 S.E.2d 56 (1992); Bedford v. State, 263 Ga. 121 , 429 S.E.2d 87 (1993); Ellis v. State, 211 Ga. App. 605 , 440 S.E.2d 235 (1994); Griffin v. State, 214 Ga. App. 813 , 449 S.E.2d 341 (1994); Lawton v. State, 218 Ga. App. 309 , 460 S.E.2d 878 (1995); Gaskin v. State, 221 Ga. App. 142 , 470 S.E.2d 531 (1996); Cody v. State, 222 Ga. App. 468 , 474 S.E.2d 669 (1996); Bishop v. State, 223 Ga. App. 422 , 477 S.E.2d 422 (1996); Johnson v. State, 223 Ga. App. 668 , 478 S.E.2d 404 (1996); Leigh v. State, 223 Ga. App. 726 , 478 S.E.2d 905 (1996); Taylor v. State, 226 Ga. App. 339 , 486 S.E.2d 601 (1997); Dasher v. State, 229 Ga. App. 41 , 494 S.E.2d 192 (1997); Tanner v. State, 230 Ga. App. 77 , 495 S.E.2d 315 (1998); Johnson v. State, 269 Ga. 632 , 501 S.E.2d 815 (1998); London v. State, 235 Ga. App. 30 , 508 S.E.2d 247 (1998); Haney v. State, 234 Ga. App. 214 , 507 S.E.2d 18 (1998); Smith v. State, 234 Ga. App. 586 , 506 S.E.2d 406 (1998); Scott v. State, 238 Ga. App. 258 , 518 S.E.2d 468 (1999); Evans v. State, 240 Ga. App. 297 , 523 S.E.2d 103 (1999); York v. State, 242 Ga. App. 281 , 528 S.E.2d 823 (2000); Jordan v. State, 242 Ga. App. 547 , 528 S.E.2d 858 (2000); Spivey v. State, 243 Ga. App. 785 , 534 S.E.2d 498 (2000); In the Interest of E.G.W., 244 Ga. App. 119 , 534 S.E.2d 869 (2000); Granados v. State, 244 Ga. App. 153 , 34 S.E.2d 886 (2000); Chambers v. State, 244 Ga. App. 138 , 534 S.E.2d 879 (2000); Carter v. State, 249 Ga. App. 354 , 548 S.E.2d 102 (2001); Darns v. State, (Apr. 17, 2001); Ricarte v. State, 249 Ga. App. 50 , 547 S.E.2d 703 (2001); Vaughns v. State, 274 Ga. 13 , 549 S.E.2d 86 (2001); Scott v. State, 251 Ga. App. 510 , 554 S.E.2d 513 (2001); Tesfaye v. State, 275 Ga. 439 , 569 S.E.2d 849 (2002); Coggins v. State, 275 Ga. 479 , 569 S.E.2d 505 (2002); Bennett v. State, 266 Ga. App. 502 , 597 S.E.2d 565 (2004); Petty v. Smith, 279 Ga. 273 , 612 S.E.2d 276 (2005); Morris v. State, 276 Ga. App. 775 , 624 S.E.2d 281 (2005); Kelley v. State, 279 Ga. App. 187 , 630 S.E.2d 783 (2006); Oree v. State, 280 Ga. 588 , 630 S.E.2d 390 (2006); Duggan v. State, 285 Ga. App. 273 , 645 S.E.2d 733 (2007); Williams v. State, 287 Ga. App. 361 , 651 S.E.2d 768 (2007); Dean v. State, 292 Ga. App. 695 , 665 S.E.2d 406 (2008); Powell v. State, 293 Ga. App. 442 , 667 S.E.2d 213 (2008); Burton v. State, 293 Ga. App. 822 , 668 S.E.2d 306 (2008); Stinson v. State, 294 Ga. App. 184 , 668 S.E.2d 840 (2008); Driscoll v. State, 295 Ga. App. 5 , 670 S.E.2d 824 (2008); Rayshad v. State, 295 Ga. App. 29 , 670 S.E.2d 849 (2008); State v. Corhen, 306 Ga. App. 495 , 700 S.E.2d 912 (2010); Herbert v. State, 288 Ga. 843 , 708 S.E.2d 260 (2011); Bryson v. State, 316 Ga. App. 512 , 729 S.E.2d 631 (2012); Williams v. State, 316 Ga. App. 821 , 730 S.E.2d 541 (2012); Williams v. State, 291 Ga. 501 , 732 S.E.2d 47 (2012); Simmons v. State, 292 Ga. 265 , 736 S.E.2d 402 (2013); Jackson v. State, 322 Ga. App. 196 , 744 S.E.2d 380 (2013); Kirchner v. State, 322 Ga. App. 275 , 744 S.E.2d 802 (2013); Hassel v. State, 294 Ga. 834 , 755 S.E.2d 134 (2014); Chambers v. State, 327 Ga. App. 663 , 760 S.E.2d 664 (2014); Cisneros v. State, 334 Ga. App. 659 , 780 S.E.2d 360 (2015), aff'd, 792 S.E.2d 326 (Ga. 2016); Finley v. State, 298 Ga. 451 , 782 S.E.2d 651 (2016); Williams v. State, 300 Ga. 161 , 794 S.E.2d 127 (2016); Allen v. State, 300 Ga. 500 , 796 S.E.2d 708 (2017); Scott v. State, 342 Ga. App. 442 , 803 S.E.2d 600 (2017); Jones v. State, 302 Ga. 892 , 810 S.E.2d 140 (2018); Calloway v. State, 303 Ga. 48 , 810 S.E.2d 105 (2018); Esprit v. State, 305 Ga. 429 , 826 S.E.2d 7 (2019); State v. Tedder, 305 Ga. 577 , 826 S.E.2d 30 (2019); State v. Spratlin, 305 Ga. 585 , 826 S.E.2d 36 (2019); Davis v. State, 307 Ga. 746 , 838 S.E.2d 263 (2020).
Conspiracy
Statute does not alter principle that conspirators are responsible for probable consequences of execution of their design. Burke v. State, 234 Ga. 512 , 216 S.E.2d 812 (1975).
While statute does not use word "conspiracy," it embodies that theory insofar as it renders one not directly involved in commission of crime responsible as a party thereto. Scott v. State, 229 Ga. 541 , 192 S.E.2d 367 (1972); McGinty v. State, 134 Ga. App. 399 , 214 S.E.2d 678 (1975); Davis v. State, 134 Ga. App. 750 , 216 S.E.2d 348 (1975); Burke v. State, 234 Ga. 512 , 216 S.E.2d 812 (1975); Jerdine v. State, 137 Ga. App. 811 , 224 S.E.2d 803 (1976); Townsend v. State, 141 Ga. App. 743 , 234 S.E.2d 368 (1977); Hoerner v. State, 246 Ga. 374 , 271 S.E.2d 458 (1980); Hamby v. State, 158 Ga. App. 265 , 279 S.E.2d 715 (1981); Grant v. State, 198 Ga. App. 357 , 401 S.E.2d 761 (1991).
Conspiracy may be proved, although not alleged in indictment or accusation. Hamby v. State, 158 Ga. App. 265 , 279 S.E.2d 715 (1981).
Where conspiracy is shown, act of one becomes the act of all and each is as fully responsible for acts of the other in carrying out common purpose as if that person, personally, had committed the act. Painter v. State, 237 Ga. 30 , 226 S.E.2d 578 (1976); Smith v. State, 142 Ga. App. 810 , 237 S.E.2d 216 (1977).
It is well settled that when individuals associate themselves in an unlawful enterprise, any act done in pursuance of the conspiracy by one of the conspirators is the act of all, subject to the qualification that each is responsible for the acts of the others only so far as such acts are naturally or necessarily done pursuant to or in furtherance of the conspiracy. Shehee v. State, 167 Ga. App. 542 , 307 S.E.2d 54 (1983).
Since the evidence was undisputed that the conspirators to a scheme to rob for drugs came into possession of drugs, if the jury found that the defendant was a member of that conspiracy, then the defendant was also guilty of the completed crime pursuant to O.C.G.A. § 16-2-20 , and the trial court's omission to charge on conspiracy was proper. Garcia v. State, 279 Ga. App. 75 , 630 S.E.2d 596 (2006).
Because Georgia abolished the inconsistent verdict rule, and despite the fact that the jury found that the defendant did not commit armed robbery, this did not preclude the trial judge from finding the defendant guilty of possessing a firearm while a convicted felon, given evidence that: (1) the defendant's status as a convicted felon was not contested; and (2) the defendant was in constructive possession of the firearm used by another to commit the crimes charged and conspired to possess the firearm as a party to the crime. Davis v. State, 287 Ga. App. 783 , 653 S.E.2d 107 (2007).
Evidence was sufficient to support codefendant's conviction on 12 counts of identity fraud, in violation of O.C.G.A. § 16-9-121(a)(1), based on the codefendant's admission that the codefendant provided the identifying information of several current and former tenants of the apartment complex the codefendant worked at to a third party and, even though the codefendant did not know the identity of the other persons involved in the scheme nor the details of the operation, the codefendant was concerned in the commission of the crime and intentionally aided or abetted in the commission of the crime by providing the information. Manhertz v. State, 317 Ga. App. 856 , 734 S.E.2d 406 (2012).
Trial court did not abuse the court's discretion by denying the defendant's motion for new trial on general grounds because several codefendants testified that the defendant was a coconspirator and a participant in the victim's robbery, there was evidence that the defendant placed the telephone call to summon the victim, that the defendant was the first to confront the victim, and that the robbery was the defendant's idea. Smith v. State, 350 Ga. App. 336 , 829 S.E.2d 408 (2019).
If crime has in fact been committed, coconspirators are guilty as parties to commission of crime. Gunter v. State, 243 Ga. 651 , 256 S.E.2d 341 (1979); Byram v. State, 189 Ga. App. 627 , 376 S.E.2d 909 (1988); Day v. State, 197 Ga. App. 875 , 399 S.E.2d 741 (1990).
Conspirator must have been accessory before the fact. - To be guilty as a conspirator to a crime pursuant to O.C.G.A. § 16-2-20 one must be an accessory before the fact. Grant v. State, 227 Ga. App. 243 , 488 S.E.2d 763 (1997).
Error in charge to jury harmless. - Where the state proceeded against defendant as a party to the crime of murder with the defendant's co-indictee, any possible error by the trial court in charging conspiracy was harmless since there was sufficient evidence to support a charge on parties to a crime, and the state did not attempt to use statements of the co-indictee against defendant under the conspiracy hearsay exception. Drane v. State, 265 Ga. 255 , 455 S.E.2d 27 (1995).
Charge on conspiracy appropriate. - Evidence of defendant's gang membership showed motive, was outside the experience of the average juror, and authorized the trial court's charge on conspiracy. Edge v. State, 275 Ga. 311 , 567 S.E.2d 1 (2002).
Aiding and Abetting
Meaning of "aid or abet." - "Aid or abet" as used in O.C.G.A. § 16-2-20(b)(3) should be given the same meaning as in former Code 1933, § 26-501 defining a principal in the second degree as one "who is present, aiding and abetting the act to be done". Thus, to be guilty as a party to a crime as an aider or abettor, a defendant must be an accessory before the fact. Grant v. State, 227 Ga. App. 243 , 488 S.E.2d 763 (1997).
Actions as aider and abettor support conviction despite lack of alleged personal involvement. - Although the indictment specifically alleged the personal involvement of the defendant and there was no evidence of such involvement at trial, the defendant's actions as an aider and abettor in the commission of the crime allow defendant to be convicted of the crime. Carter v. State, 168 Ga. App. 177 , 308 S.E.2d 438 (1983).
When the defendant initiated the contact with the victim and her brother, forced her to give the defendant her earrings, fondled her, held the gun on her brother while the codefendants brutally sodomized her, and counted the money the victim surrendered, such evidence authorized the rejection of any claim that the defendant was a victim. Ramey v. State, 235 Ga. App. 690 , 510 S.E.2d 358 (1998).
Circumstantial evidence supported the defendant's convictions for aggravated assault, burglary, armed robbery, cruelty to children, theft by receiving stolen property, and possession of a firearm as: (1) the defendant was driving a stolen car that the defendant knew was not the defendant's own; (2) the defendant returned to the victims' house, which the defendant had left only a short time before, slowly circling the victims' residence, pointing at the house; (3) the defendant appeared to let the codefendants out of the car for a specific purpose, since the defendant saw them enter the victims' home and waited for them, demonstrating that the defendant knew they would return shortly; (4) when the codefendants ran back to the car and jumped in, the defendant drove off in response to their rapid return; and (5) shortly thereafter, the defendant abandoned the stolen car. Parnell v. State, 260 Ga. App. 213 , 581 S.E.2d 263 (2003).
Evidence was sufficient to adjudicate a juvenile a delinquent for aggravated assault with intent to murder when: (1) the juvenile was willingly present when the victim was beaten and stabbed; (2) the juvenile was part of a group carrying bricks, sticks, and bats on a mission of revenge; and (3) the juvenile fled the crime scene and gave police false information moments after the incident, because, under O.C.G.A. § 16-2-20 , whether the juvenile actually stabbed the victim was not controlling, as the juvenile was an accomplice of those who did, and it could be inferred from the juvenile's conduct before and after the crime that the juvenile shared the perpetrators' criminal intent. In the Interest of N.L.G., 267 Ga. App. 428 , 600 S.E.2d 401 (2004).
When the defendant sat in a stolen would-be getaway car while an accomplice murdered a victim, and then the defendant and the accomplice abandoned that car and fled the scene, a jury could find, under O.C.G.A. § 16-2-20(a) , that the defendant participated in the accomplice's crimes and could be held criminally liable therefor. Jackson v. State, 274 Ga. App. 279 , 617 S.E.2d 249 (2005).
Fact that a codefendant did not personally use a bat to beat an assault victim did not absolve the codefendant of criminal liability because the codefendant was a party to and guilty of the crime by intentionally aiding the commission of the assault. Roberson v. State, 277 Ga. App. 557 , 627 S.E.2d 161 (2006).
In light of the juvenile's companionship and conduct before, during, and after the alleged crimes of kidnapping, impersonating an officer, robbery, terroristic threats, and simple battery, the juvenile's overt participation in the overall attack on the three victims sufficed to sustain an adjudication of delinquency based on that conduct as a party to the crimes involving all three victims. In the Interest of B.M., 289 Ga. App. 214 , 656 S.E.2d 855 (2008).
Evidence sufficient as to aiding and abetting armed robbery. - Evidence was amply sufficient to authorize a reasonable trier of fact to rationally find therefrom proof of guilt beyond a reasonable doubt, both as to the direct commission of the crime of armed robbery by defendant and as to the intentional aiding and abetting of it under O.C.G.A. § 16-2-20 . Graves v. State, 180 Ga. App. 446 , 349 S.E.2d 519 (1986).
Since there was ample evidence to show that the defendant aided, abetted, encouraged, advised, and counseled another participant in a robbery and shooting, it made no difference that the other man fired the gun that injured a victim because all that the state had to prove was that the defendant and others were acting in concert. Culberson v. State, 236 Ga. App. 482 , 512 S.E.2d 367 (1999).
Person who intentionally aids or abets the commission of the crime, or intentionally advises, encourages, hires, counsels, or procures another to commit the crime, may be convicted of the crime as a party to the crime. Even if there was no direct evidence that the defendant actively participated in robbing the victim at gunpoint, there was ample evidence to support the defendant's guilt as a party to the crime of armed robbery because the defendant participated in a discussion concerning retaliation against the victim, and when a witness saw the defendant pointing a gun at the victim. Drake v. State, 266 Ga. App. 463 , 597 S.E.2d 543 (2004).
Even had the first defendant not waived the issue of the trial court's not severing the defendant's trial from that of the second defendant, the first defendant's conviction for armed robbery was proper, as the first defendant had confessed to involvement in the robbery at a minimum as the getaway driver; since the defendant was a party to the crime, defendant could not show that the defendant was prejudiced regarding the severance ruling. Bennett v. State, 266 Ga. App. 502 , 597 S.E.2d 565 (2004).
Evidence was sufficient to find that the defendant was at least a party to the crime of burglary and guilty of burglary beyond a reasonable doubt, in violation of O.C.G.A. § 16-7-1 , as the defendant's own statements established that the codefendant intended to commit an underlying offense of armed robbery when telling the defendant that they should go rob someone in order to get drinking money, and that the codefendant had a handgun; the evidence supported a finding that the defendant was present and assisted in the commission of the crime, such that the defendant was liable as an aider and abettor under a party to the crime theory pursuant to O.C.G.A. § 16-2-20 . Moyer v. State, 275 Ga. App. 366 , 620 S.E.2d 837 (2005), overruled on other grounds, Vergara v. State, 283 Ga. 175 , 657 S.E.2d 863 (2008).
Defendant's conviction for armed robbery, in violation of O.C.G.A. § 16-8-41(a) , was supported by sufficient evidence, as the defendant and two other persons, with their faces covered and while wielding a gun and a box cutter, entered a convenience store, made the two employees sit on the floor, and took their jewelry as well as other property and cash; although the defendant claimed that the defendant participated under duress and was threatened at gunpoint, it was up to the jury to determine the believability of that claim, and the defendant was found to have participated in the crime as an aider and abettor under O.C.G.A. § 16-2-20(b)(3). Spradley v. State, 276 Ga. App. 842 , 625 S.E.2d 106 (2005).
Sufficient evidence supported convictions arising from the defendant's participation in a robbery which resulted in the death of a store clerk where, knowing that the cousin was going to commit a robbery, the defendant voluntarily went with the cousin, saw that the cousin had a gun, agreed to "stand over" the scene, and joined the cousin in using the victim's credit cards afterwards; contrary to the defendant's assertions, testimony showed that the defendant was not intimidated by the cousin. Scott v. State, 280 Ga. 466 , 629 S.E.2d 211 (2006).
Testimony of a defendant's accomplice implicating the defendant in several armed robberies was sufficiently corroborated based on the defendant's admission, eyewitnesses confirming that two persons participated, and the defendant's use of the victims' bank cards after the robberies. Thus, the defendant's participation as an accessory was sufficiently corroborated by evidence other than from the accomplice. Epps v. State, 296 Ga. App. 92 , 673 S.E.2d 608 (2009).
Evidence was sufficient to enable the jury to find the defendant guilty beyond a reasonable doubt of armed robbery in violation of O.C.G.A. § 16-8-41(a) because although the defendant did not actually use a weapon, defendant's accomplice's use of a weapon could be attributed to the defendant because under O.C.G.A. § 16-2-20 , one who intentionally aided or abetted the commission of a crime by another was a party to the crime and equally guilty with the principal; the defendant aided and abetted the accomplice by telling the accomplice to pull into an apartment complex after they saw the potential victims, giving the accomplice the defendant's gun, and then taking the victims' wallets from the victims while the accomplice pointed the gun at the victims. Barber v. State, 304 Ga. App. 453 , 696 S.E.2d 433 (2010).
Defendant's conviction of attempt to commit armed robbery was affirmed because the defendant discussed the attempted armed robbery beforehand with the codefendants, provided part of the disguise for the defendant's sibling, drove the codefendants to the crime scene, was present near the scene of the attempted robbery, and fled the scene after the attempted robbery. Skipper v. State, 314 Ga. App. 870 , 726 S.E.2d 127 (2012).
While there was no evidence that the defendant fired any of the weapons used in the shooting, there was evidence that the defendant supplied one of the weapons with the knowledge that the weapon was to be used to commit armed robbery, was present during the commission of the crimes, fled the scene, and accompanied several of the accomplices to dispose of two of the weapons used in the crimes; thus, there was ample evidence to inculpate the defendant as a party to the crimes. Oliphant v. State, 295 Ga. 597 , 759 S.E.2d 821 (2014).
Evidence was sufficient to support the defendant's conviction for armed robbery despite no testimony showing that the defendant possessed the knife during the course of the robbery as case law has established that a defendant does not need to possess the weapon to be convicted as a party to the crime of armed robbery when the defendant's accomplice carried the weapon during the robbery. Boccia v. State, 335 Ga. App. 687 , 782 S.E.2d 792 (2016).
Co-defendant's testimony constituted direct evidence that the defendant intentionally aided and abetted the codefendants in committing the crimes of armed robbery and aggravated assault and intentionally advised, encouraged, and counseled them to commit the crimes, and there was sufficient corroboration of the co-defendant's testimony, including a recorded telephone call between the defendant and a second co-defendant, the defendant's own testimony at trial, and the defendant's statements to law enforcement. Stallings v. State, 343 Ga. App. 135 , 806 S.E.2d 613 (2017).
Coercion defense to armed robbery rejected. - There was sufficient evidence to support a defendant's conviction for armed robbery and the trial court properly denied the defendant's motion for a new trial since the state disproved the defendant's coercion defense that the defendant was forced to participate in the robbery of a restaurant because the defendant's cohorts had threatened to take the defendant's children away as the defendant never drove away from the scene of the crime while waiting outside of the restaurant, the defendant actually entered the restaurant during the crime, and the defendant never indicated a need for protection for the children once apprehended. Engrisch v. State, 293 Ga. App. 810 , 668 S.E.2d 319 (2008).
By holding the victim while defendant's brother beat the victim, the defendant was clearly an aider and abettor in the beating. As an aider and abettor, the act of one party was the act of the other person in the commission of the assault. When this fist fight turned into a knife fight, both parties became guilty of aggravated assault. Johnson v. State, 188 Ga. App. 411 , 373 S.E.2d 93 (1988).
Aid in assault by engaging in fistfight. - Person who engages another in a fistfight while the other is simultaneously being beaten with an object by the person's confederate necessarily "aids and abets" the confederate in the assault upon the other, and is therefore a party to the crime committed by the confederate. Moore v. State, 216 Ga. App. 450 , 454 S.E.2d 638 (1995).
Mother's participation in daughter's rape. - Sufficient evidence existed to convict mother of aiding and abetting the statutory rape and child molestation of her daughter by two men when the evidence showed that mother encouraged the men to have sexual intercourse with her daughter and that mother ordered daughter to have sexual intercourse. Hixon v. State, 251 Ga. App. 27 , 553 S.E.2d 333 (2001).
There was sufficient evidence to support the finding that a defendant parent aided and abetted, pursuant to O.C.G.A. § 16-2-20(b) , the other parent's rape of their child in violation of O.C.G.A. § 16-6-1(a)(1); defendant told the child to take the child's clothes off and was present when the other parent had sex with the child. Zepp v. State, 276 Ga. App. 466 , 623 S.E.2d 569 (2005), overruled on other grounds, Schofield v. Holsey, 281 Ga. 809 , 642 S.E.2d 56 (2007), overruled on other grounds by State v. Lane, 308 Ga. 10 , 838 S.E.2d 808 (2020).
Criminal responsibility for all injuries. - When the evidence showed that the defendant participated in the group attack on the victim, the defendant was criminally responsible for the injuries inflicted by all parties to the crime, even if the defendant personally delivered only one blow. Cox v. State, 242 Ga. App. 334 , 528 S.E.2d 871 (2000).
Evidence that defendant was get-away driver was sufficient for conviction. - In a case involving the malice murder of the deceased victim, the aggravated assaults of the deceased victim and four other victims, the false imprisonment and armed robbery of another victim, and possession of a firearm during the commission of a crime, the evidence was sufficient to convict the defendant as a party because the eyewitness stated that the driver of the car, the defendant, shouted to the first accomplice before the accomplice shot the deceased victim, then gestured to the first and second accomplice to get into the car, which the defendant then drove away; and the defendant acted as the driver of the getaway vehicle after both the shooting of the deceased victim and the robbery of another victim. Wright v. State, 296 Ga. 276 , 766 S.E.2d 439 (2014).
Evidence sufficient for conviction. - Because the defendant, the parent of the codefendant who had shot into a house in retaliation for an incident in which the parent was called a name by someone inside the house, had an angry attitude about the name-calling, had encouraged the codefendant and another to shoot at the house, went with the shooters to the scene of the shooting, and later bragged about the shooting, the evidence was sufficient to convict the defendant of murder and aggravated assault of the shooting victims in the house. Bolden v. State, 278 Ga. 459 , 604 S.E.2d 133 (2004).
Sufficient evidence was introduced to support the defendant's convictions for felony murder and burglary despite the defendant's claims that the defendant was not sufficiently involved in the crimes to be convicted on those charges. Joyner v. State, 280 Ga. 37 , 622 S.E.2d 319 (2005).
Because the defendant promised, - orally and in writing, - to use the victims' money to acquire tire hauling containers, but instead used it for other purposes, the jury was entitled to infer criminal intent and to find the defendant guilty of theft by taking under O.C.G.A. § 16-8-2 or as a party to the crime of theft by taking under O.C.G.A. § 16-2-20 . Matthiessen v. State, 277 Ga. App. 54 , 625 S.E.2d 422 (2005).
Because the defendant acted as lookout and immediately alerted an unidentified driver to the presence of a police officer, resulting in the unidentified driver's escaping, the evidence was sufficient to convict the defendant of aiding or abetting the unidentified driver in the crime of theft by receiving, in violation of O.C.G.A. §§ 16-2-20 , 16-8-7(a) . Dixon v. State, 277 Ga. App. 656 , 627 S.E.2d 406 (2006).
Evidence was sufficient to authorize a trial court to find defendant delinquent for being a party to a homicide, pursuant to O.C.G.A. § 16-2-20(b)(3), and thus, defendant's motion for a directed verdict of acquittal was properly denied; defendant's intent could be inferred easily from the fact that the defendant stood and watched while a friend beat the victim and defecated on the victim, never leaving to call for help. In the Interest of K.B.T., 279 Ga. App. 350 , 631 S.E.2d 412 (2006).
Delinquency finding for acts constituting party to the crimes of aggravated assault and batter was supported by sufficient evidence showing that the appellant was one of a group of youths who punched, kicked, and struck one victim with a shotgun, and participated in the attack; the appellant also knocked another victim to the ground and hit that victim during the fracas. In the Interest of E.R., 279 Ga. App. 423 , 631 S.E.2d 458 (2006).
Sufficient evidence supported the defendant's conviction of aggravated assault under O.C.G.A. § 16-5-21(a)(2) after the defendant's companions used metal knuckles, a metal pipe, and a gun to beat the victim; the defendant was a party to the offense under O.C.G.A. § 16-2-20(a) , as the victim, whose testimony was sufficient to establish a fact under former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8 ), testified that, during the incident, the defendant summoned the companions to help beat the victim, and the defendant and the companions repeatedly warned the victim not to testify in court in the defendant's criminal case. Souder v. State, 281 Ga. App. 339 , 636 S.E.2d 68 (2006), cert. denied, No. S07C0113, 2007 Ga. LEXIS 97 (Ga. 2007); overruled on other grounds by Willis v. State, 304 Ga. 686 , 820 S.E.2d 640 (2018).
Defendant's malice murder conviction, as a party to the crime, was upheld on appeal as sufficient evidence was adduced at trial of the defendant's participation in the crime, including eyewitness testimony that the defendant encouraged the shooter to shoot the victim, that the defendant had recently threatened to shoot the victim in the head, and testimony that the defendant joined the shooter and the codefendant in the confrontation and fled with them after the shooting. Sims v. State, 281 Ga. 541 , 640 S.E.2d 260 (2007).
Because evidence existed that the defendant was present when the crimes charged were committed, and the jury could infer a shared criminal intent with that of the actual perpetrator from the defendant's conduct before and after the crimes were committed, the evidence was sufficient to authorize the defendant's convictions as a party to those crimes. Hill v. State, 281 Ga. 795 , 642 S.E.2d 64 (2007).
Given sufficient evidence of the defendant's involvement in the common objective of fighting with a rival gang member as a party to the crimes, the defendant's convictions on three counts of aggravated assault were upheld on appeal. Garcia v. State, 290 Ga. App. 164 , 658 S.E.2d 904 (2008).
There was sufficient evidence supporting a conviction for theft by deception under O.C.G.A. § 16-8-3 . The defendant drove an accomplice to a store, got a slipcover, obtained the sticker necessary to return the slipcover for a refund, and transferred the slipcover to the accomplice, directing the accomplice to present it for a refund; therefore, the defendant directly committed acts in furtherance of the crime and aided in the crime's commission under O.C.G.A. § 16-2-20 . Bruster v. State, 291 Ga. App. 490 , 662 S.E.2d 265 (2008).
That a defendant aided and abetted in the commission of kidnapping, rape, armed robbery, and the use of a firearm in the commission of a crime was supported by evidence that defendant and the armed accomplice were willing companions; that they stopped to pick up the victim; that they intended to rob the victim; that defendant assisted the accomplice by driving the car while the accomplice was raping the victim; and that the defendant then swapped places with the accomplice so defendant could have sexual intercourse with the victim. Davis v. State, 292 Ga. App. 782 , 666 S.E.2d 56 (2008).
Evidence of the defendant's shooting a victim, striking the victim's companion with a motorcycle helmet, the defendant's sibling's pointing a gun at the companion, and the sibling's pointing a gun at the victim and pulling the trigger was sufficient to convict the defendant of four counts of aggravated assault, O.C.G.A. § 16-5-21(a)(2), as the defendant was responsible for the sibling's acts as an aider and abetter under O.C.G.A. § 16-2-20(b)(3). Serchion v. State, 293 Ga. App. 629 , 667 S.E.2d 624 (2008).
Juvenile court properly denied a juvenile's motion for a new trial with regard to the juvenile's delinquency adjudication finding the juvenile guilty for aggravated assault, criminal property damage, cruelty to children, and reckless conduct arising from the shooting of a BB gun at a passing car. The juvenile was the only Caucasian identified in the group of youth; the juvenile admitted to hiding the BB gun; the juvenile did not dispute that the juvenile encouraged another youth to shoot the gun; and the judge was the final arbiter of the credibility and witness issues and had the province to reject the testimony of the juvenile and a parent that the juvenile did not shoot the gun. In the Interest of A.A., 293 Ga. App. 827 , 668 S.E.2d 323 (2008).
A participant to a crime may be convicted although he is not the person who directly commits the crime. It was undisputed that the defendant's sibling committed the acts in question, and the evidence showed that the defendant drove with the sibling to the place the sibling planned to rob, waited for the sibling at the sibling's instructions until the sibling returned with the fruits of the crime and the weapon, and then tried to drive away. McGordon v. State, 298 Ga. App. 161 , 679 S.E.2d 743 (2009).
Evidence was sufficient to support the defendant's conviction for interference with government property because the defendant was a party to the act of damaging the locks to the water meter for the rental home in which the defendant was staying since the testimony of the rental company's principal and the meter reader established that the locks were damaged and removed by someone living in the house for the purpose of accessing the water meter, and according to an eyewitness, the defendant was in the yard while another person who also lived in the house was "messing with the meter"; since there was evidence that the defendant was present when the crime was committed, and the jury could infer from the defendant's conduct before, during, and after the crime that the defendant shared the criminal intent of the actual perpetrators, the evidence was sufficient to authorize the defendant's conviction as a party to the crime. Jackson v. State, 301 Ga. App. 406 , 687 S.E.2d 666 (2009).
Although the uncorroborated testimony of a codefendant was insufficient to convict the defendant under former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8 ), there was other evidence, including the defendant's statements to police that the defendant urged the codefendant to kill the victim, to show that the defendant aided and abetted and counseled another to commit the crimes under O.C.G.A. § 16-2-20(b)(3) and (b)(4). Lucky v. State, 286 Ga. 478 , 689 S.E.2d 825 (2010).
Evidence was sufficient to support the defendant's convictions of aiding and abetting, under O.C.G.A. § 16-2-20 , defendant's spouse in enticing a minor child for indecent purposes in violation of O.C.G.A. § 16-6-5(a) and of child molestation. Evidence was presented that the defendant had prior knowledge of the intended crimes, shared in the intent of the spouse to entice the minor victim to the defendants' home, and was present for the crimes of child molestation. Dockery v. State, 309 Ga. App. 584 , 711 S.E.2d 100 (2011).
Because the victim's testimony was legally sufficient under former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8 ) to establish that the defendants assaulted the victim with intent to rob, the issue of which the defendant actually held the weapon was immaterial; therefore, pursuant to O.C.G.A. § 16-2-20(a) , the evidence was sufficient to find both defendants guilty of aggravated assault with intent to rob and of possession of a firearm during the commission of a felony under O.C.G.A. §§ 16-5-21(a)(1) and 16-11-106 . Clark v. State, 311 Ga. App. 58 , 714 S.E.2d 736 (2011).
Defendant was properly convicted of financial identity fraud in violation of O.C.G.A. § 16-9-120 because the circumstantial evidence was sufficient to authorize a jury to find that the defendant, either directly or as a party to a crime under O.C.G.A. § 16-2-20 , committed financial identity fraud by accessing the resources of the victims through the use of identifying information without the authorization or permission of the victims, with the intent to unlawfully appropriate the victim's resources to the defendant's own use; the federal tax identification number of either victim was required as part of the credit card application to obtain temporary charge passes, which the defendant used to purchase thousands of dollars worth of merchandise in a short period of time. Zachery v. State, 312 Ga. App. 418 , 718 S.E.2d 332 (2011).
Because the driver of a delivery truck was forced at gunpoint by the defendant's accomplice to drive a substantial distance to a secluded dirt road, and because the defendant followed the truck in another vehicle, pursuant to O.C.G.A. §§ 16-2-20 and 16-5-40 , the crimes of kidnapping and possession of a firearm during the commission of a felony were upheld. Sipplen v. State, 312 Ga. App. 342 , 718 S.E.2d 571 (2011).
Sufficient circumstantial evidence supported the defendant's armed robbery conviction because the evidence showed the defendant actively aided and abetted the defendant's codefendant by: (1) driving the codefendant to a crime scene; (2) waiting during the crimes with an intent to use the defendant's car as a getaway car; (3) fleeing the scene with the codefendant; (4) waiting while the codefendant broke into a house; (5) fleeing the house with the codefendant; and (6) having a gunshot wound. Jones v. State, 315 Ga. App. 427 , 727 S.E.2d 216 (2012).
Evidence that the defendant drove the shooter to the location of the crime, that the shooter fired shots with recklessness sufficient to imply malice, and that the defendant encouraged the shooter to fire was sufficient to support the defendant's convictions for malice murder, felony murder, aggravated assault, and unlawful possession of a firearm during the commission of a felony. Downey v. State, 298 Ga. 568 , 783 S.E.2d 622 (2016).
Jury was authorized to find that the defendant was a party to the crimes of attempted murder and first degree arson based on evidence that the defendant and an accomplice intended to rob the victim and then kill the victim to avoid detection and hitting the victim with a machete and setting fire to the victim's residence were done in execution of that purpose. Lonon v. State, 348 Ga. App. 527 , 823 S.E.2d 842 (2019).
Evidence was sufficient to support the defendant's convictions for financial transaction card fraud and possession of tools for the commission of a crime as the defendant was not merely present during the criminal activity as the two financial transaction card forgery counts pertained to the credit cards with embossed numbers were found in the driver's door pocket of the defendant's car, which the defendant was driving at the time of the stop. Riley v. State, 356 Ga. App. 290 , 846 S.E.2d 617 (2020).
Nexus between robbery and furthering gang interest. - Two defendants were convicted of malice murder and other crimes in violation of O.C.G.A. § 16-15-4(a) in connection with the shooting death of a drug dealer in the defendants' gang territory; the evidence established a nexus between the robbery of the drug dealer and an intent to further the interests of the gang based on expert testimony that the gang made most of the gang's money through armed robberies. Stripling v. State, 304 Ga. 131 , 816 S.E.2d 663 (2018).
Participant in armed robbery as aiding and abetting assault during robbery. - When appellant was a participant in armed robbery, and aggravated assault occurred during course of robbery, appellant's actions could be construed as aiding and abetting in the crime. Jackson v. State, 163 Ga. App. 526 , 295 S.E.2d 206 (1982).
Trial court did not err by charging the jury on accomplice liability because while there was conflicting evidence regarding precisely who did what, there was ample evidence to implicate the defendant either as a principal or as a party to the crime of armed robbery. Cooper v. State, 342 Ga. App. 351 , 801 S.E.2d 589 (2017), cert. denied, No. S17C2017, 2018 Ga. LEXIS 7 (Ga. 2018), cert. dismissed, No. S17C2022, 2018 Ga. LEXIS 10 (Ga. 2018), cert. denied, 138 S. Ct. 2039 , 2018 U.S. LEXIS 3176, 201 L. Ed. 2 d 288 (U.S. 2018).
Party to armed robbery by furnishing gun. - By helping another plan a kidnapping and providing that person with a gun for that purpose, one is a party to the crime of armed robbery. However, a jury's verdict of guilty of armed robbery is not inconsistent with its verdict of not guilty of other charges, e.g., burglary, assault, kidnapping. The jury could very well believe that the gun was used only in commission of the armed robbery, and where the defendant's only criminal act as an aider and abettor was to furnish the gun, defendant was only guilty of the offense in which the gun was actually used. Shehee v. State, 167 Ga. App. 542 , 307 S.E.2d 54 (1983).
Party to armed robbery by retrieving loot. - Defendant's testimony that defendant stood by as third party robbed victim at gunpoint and that defendant picked up victim's discarded cash upon instruction by the third party was sufficient for conviction of armed robbery as an aider and abettor. Dowdy v. State, 209 Ga. App. 95 , 432 S.E.2d 827 (1993).
Evidence that defendant witnessed the victim with a roll of money and then later accompanied the victim and the codefendant in the victim's car, after the codefendant showed defendant that the codefendant had a handgun in the codefendant's possession, and then took the victim's money after the codefendant shot the victim was sufficient to show that defendant was a party to and an active participant in the armed robbery of the victim. Drummer v. State, 264 Ga. App. 617 , 591 S.E.2d 481 (2003).
Planning robbery and driving getaway car were sufficient to sustain defendant's conviction of armed robbery, even though defendant did not enter the victim's home and participate in the actual robbery. Pryor v. State, 179 Ga. App. 293 , 346 S.E.2d 104 (1986).
Trial court had sufficient evidence to convict a defendant of armed robbery and possession of a firearm during the commission of a crime as a party to those crimes by aiding and abetting, pursuant to O.C.G.A. § 16-2-20 , given evidence that the defendant helped plan the robberies of two game rooms, drove the getaway vehicle, and participated in the division of the proceeds. Norman v. State, 311 Ga. App. 721 , 716 S.E.2d 805 (2011).
Officer guilty of aiding and abetting robbery. - Evidence was sufficient to convict defendant of several crimes, including crimes arising out of the robbery of a business even though defendant did not directly participate in that crime, as the evidence showed that defendant aided and abetted in the commission of the crime; defendant, a police officer, was aware that the crime was going to occur before it happened and did not report the crime, defendant made calls to the people involved in the robbery, defendant met with the people who committed the crime afterwards and advised and counseled them, and defendant asked if defendant could receive money from the robbery even if defendant did not participate in it. Greene v. State, 257 Ga. App. 837 , 572 S.E.2d 382 (2002).
One acting as look-out during burglary is as guilty as active participants. - One who acts as look-out during commission of burglary is participating in commission of that crime within meaning of O.C.G.A. § 16-2-20 and is as guilty as active participants. DeLoach v. State, 142 Ga. App. 666 , 236 S.E.2d 904 (1977).
Felony murder conviction based on participation in aggravated assault. - Evidence that defendant was seen making notes at the crime scene the day of the shooting, that the defendant accompanied the coconspirator knowing that the coconspirator intended to rob a cab driver, and that the defendant drove the coconspirator away after the shooting of the cab driver authorized the jury to find the defendant was a party to the crime of aggravated assault committed with a deadly weapon, and hence to felony murder. Brown v. State, 278 Ga. 724 , 609 S.E.2d 312 (2004).
Evidence was sufficient to convict the defendant as a party to felony murder based on aggravated assault because the state's witness testified that the defendant approached the victim's truck with the co-defendant, that the witness and the victim were ordered out of the truck at gunpoint, that the defendant helped to control the witness while the co-defendant shot the victim, and that the defendant helped clean up the crime scene; the witness's testimony was corroborated by other evidence; and, even if the jury found that the defendant did not have a gun or shoot the victim, it did not follow that the defendant could not properly be found guilty as a party to the felony murder based on the aggravated assault that the co-defendant committed. Herrington v. State, 300 Ga. 149 , 794 S.E.2d 145 (2016).
Intermediary in drug sale. - Even if defendant was not treated as the actual seller but merely the conduit or intermediary by which the sale took place, defendant was guilty of selling cocaine, because defendant aided and abetted the sale as a party to the crime. Lawrence v. State, 227 Ga. App. 70 , 487 S.E.2d 608 (1997).
While mere presence at the scene of a crime or even approval of another's criminal conduct was not sufficient to authorize a conviction, defendant's actions went far beyond mere presence and authorized the jury to find that defendant actively facilitated the drug sale as defendant aided and abetted the seller in the sale by informing the undercover drug agent about where to obtain the cocaine, by taking the agent to that location, and by intentionally procuring the seller to sell the cocaine; that evidence was sufficient to enable a rational trier of fact to find defendant guilty beyond a reasonable doubt of being a party to the sale of cocaine. Jackson v. State, 259 Ga. App. 108 , 576 S.E.2d 85 (2003).
Evidence was sufficient to convict the defendant because the defendant aided and abetted the sale of cocaine to the undercover officer pursuant to O.C.G.A. § 16-2-20 ; the defendant approached an undercover officer, the defendant took money from the officer and went into a hotel room, and the defendant later returned and gave the officer cocaine. Ware v. State, 308 Ga. App. 24 , 707 S.E.2d 111 (2011).
Defendant was properly convicted for trafficking in marijuana since the defendant owned the farm used by defendant's son to grow marijuana, the defendant helped to construct the building used to grow marijuana, and the defendant helped acquire necessary support devices to put the building into operation; this evidence authorized the jury to find that defendant's son had actual possession of the marijuana and that defendant had constructive possession by aiding and abetting the son's possession. Lang v. State, 171 Ga. 368 , 320 S.E.2d 185 (1984).
Defendant's conviction for trafficking in marijuana was authorized because the defendant, a roommate, and an accomplice were willing participants in the drug offenses, and the defendant had agreed to accept delivery of the package of marijuana at the defendant's residence in exchange for $200 and an ounce of marijuana for the defendant's personal consumption; whether the defendant had physical possession of the cocaine, the defendant aided and abetted the marijuana's actual physical possession and was guilty of the offense of trafficking under O.C.G.A. § 16-13-31(c) and under O.C.G.A. § 16-2-20 as a party to the crime because the defendant admitted that the defendant was aiding the accomplice's efforts to commit the trafficking offense by giving the accomplice a safe haven and a means to avoid law enforcement detection. Park v. State, 308 Ga. App. 648 , 708 S.E.2d 614 (2011).
When defendant who had been hired to pick up marijuana from plane had, at time of arrest, succeeded in opening only the upper portion of the door to the plane, defendant's conviction for possession of marijuana could be supported on theory of defendant being an aider and abettor of drug conspirators who were in constructive possession. State v. Lewis, 249 Ga. 565 , 292 S.E.2d 667 (1982).
Aiding another in escape from confinement. - O.C.G.A. § 16-10-53(a) (knowingly aiding another in escaping from any place of lawful confinement) preempts O.C.G.A. § 16-2-20(b)(3) (aiding and abetting the commission of an offense), insofar as escape from confinement is concerned. Harden v. State, 184 Ga. App. 371 , 361 S.E.2d 696 (1987); Roberts v. State, 257 Ga. 180 , 356 S.E.2d 871 (1987).
Arranging for victim to be present, and filming crime. - Evidence that defendant had arranged for the victim to be present at a party and that defendant actively engaged in videotaping an act of sodomy between the roommate and the victim authorized a finding that defendant was guilty of the offense of sodomy as an aider and abettor and was guilty of the offense of exploitation of children as either a principal or as an aider and abettor. Parker v. State, 190 Ga. App. 126 , 378 S.E.2d 503 (1989).
Accessory to theft by taking. - To be guilty as a party to a crime as an aider or abettor pursuant to O.C.G.A. § 16-2-20(b)(3), a defendant must be an accessory before the fact, and where no evidence was presented that defendant was an accessory to the commission of the crime of theft by taking of school district funds, conviction for stealing these monies was not warranted. Purvis v. State, 208 Ga. App. 653 , 433 S.E.2d 58 (1993).
Evidence sufficient as to aiding and abetting felony shoplifting. - There was sufficient evidence to support the jury's verdict, finding defendant guilty of aiding and abetting in felony shoplifting, in violation of O.C.G.A. §§ 16-8-14(a)(1) and 16-2-20(b)(3), because employees in a store were alerted to a shoplifting in progress, and they followed the alleged shoplifter out to a car, which defendant got into and drove away; defendant was positively identified by an employee who was on the driver's side of the car, the owner of that car had loaned the car to defendant and defendant never returned it, and defendant simply contended that the car had been stolen and did not report the theft because defendant intended to get the car back. Patterson v. State, 272 Ga. App. 675 , 613 S.E.2d 200 (2005).
When defendants were charged in accusation with directly committing specific acts of shoplifting, but neither was specifically accused of being a party to the other's commission of the offense, there was no error in charging the jury under the language of both O.C.G.A. § 16-2-20(b)(1) (direct commission of crime) and O.C.G.A. § 16-2-20(b)(3) (intentionally aiding or abetting in commission of crime). Jenkins v. State, 172 Ga. App. 715 , 324 S.E.2d 491 (1984).
Even though defendant was not charged as anything other than a direct perpetrator in a prosecution for aggravated assault, an instruction that defendant could be convicted under a theory of indirect concern was proper since defendant had notice of the testimony of a defense witness authorizing the jury to find that defendant was an aider and abettor. Upshaw v. State, 221 Ga. App. 655 , 472 S.E.2d 484 (1996).
Instigating gang attack supported aiding and abetting conviction. - There was sufficient evidence to convict one defendant of malice murder under O.C.G.A. § 16-5-1 based upon defendant's actions of instigating the gang attack on the victim and participating in the attack by knocking down the victim and shooting a gun; even though that defendant did not actually fire the shot that killed the victim, defendant was criminally responsible under O.C.G.A. § 16-2-20 for the shot that killed the victim. Ros v. State, 279 Ga. 604 , 619 S.E.2d 644 (2005).
Evidence sufficient to show party to gang activity. - Evidence was sufficient to show the defendant's participation in gang activity as a party to the crime under O.C.G.A. § 16-2-20(a) and (b)(4): the defendant and other gang members drove cars into a neighborhood, exited the cars, and began fighting with the residents; the defendant shouted "bust that sh*t," and another gang member fired a gun, killing the victim. Parks v. State, 304 Ga. 313 , 818 S.E.2d 502 (2018).
Evidence sufficient for conviction of financial transaction card fraud. - Because the evidence showed the defendant's family participated in a scheme whereby they obtained credit cards in the names of non-existent businesses and used the cards to buy goods for their own use with no intention of repayment, even though the defendant did not personally sign for these purchases, a jury could conclude that the defendant aided and abetted the fraudulent use of the card in light of evidence showing the defendant agreed to the step-child's offer to obtain one of the fictitious business credit cards for the defendant's use, that the defendant was aware of a scheme to commit fraud through the use of credit cards, and that the defendant was seen often in the store where the fraudulent purchases occurred. Stuart v. State, 267 Ga. App. 463 , 600 S.E.2d 629 (2004).
Jury instructions. - In a prosecution for robbery, a charge to the jury was not confusing or prejudicial which, in part, authorized finding that defendant was a party to the crime if the defendant "had knowledge of the commission of the offense and after the act drove the car in a precipitous manner," and the charge did not invade the province of the jury. Carter v. State, 224 Ga. App. 445 , 481 S.E.2d 238 (1997).
Regarding the principle of parties to a crime, the trial court's substitution of "helps" for "aids or abets" in its charge was not improper since aiding and abetting encompasses the concept of helping in the commission of a crime. Sharpe v. State, 272 Ga. 684 , 531 S.E.2d 84 , cert. denied, 531 U.S. 948, 121 S. Ct. 350 , 148 L. Ed. 2 d 282 (2000).
Jury instruction about "parties to a crime" that stated defendant could be charged as a party, or aider or abettor, to the offense of possession of a firearm during the commission of a crime properly stated the law, and the charge was adjusted to the evidence. Wade v. State, 261 Ga. App. 587 , 583 S.E.2d 251 (2003).
Defendant's claim that the court erred by charging O.C.G.A. § 16-2-20 , on parties to a crime, in its entirety is without merit. When the entire Code section is charged even though a portion may be inapplicable under the facts in evidence, it is usually not cause for a new trial. Maness v. State, 265 Ga. App. 239 , 593 S.E.2d 698 (2004).
Jury was properly instructed on conspiracy and parties, even though the defendant's indictment alleged that the defendant directly committed the offenses and did not specify that the defendant was only a party to or coconspirator in the criminal acts. Michael v. State, 281 Ga. App. 289 , 635 S.E.2d 790 (2006), overruled on other grounds by Gibbs v. State, 304 Ga. App. 723 , 798 S.E.2d 308 (2017).
Because the trial court properly instructed the jury on both the crimes of armed robbery and theft by taking, and expressly stated that in the event that the jury did not believe that the defendant was guilty of armed robbery beyond a reasonable doubt, the jury could convict on the lesser offense of theft by taking, given that the evidence was sufficient to authorize a finding of guilt on the armed robbery charge, the jury was authorized to reject the defendant's claim that the victim knowingly assisted in the planning and perpetration of the crime. Hester v. State, 287 Ga. App. 434 , 651 S.E.2d 538 (2007).
There was slight evidence to justify a charge as to parties to the crime as two or more persons could have been involved; it was possible that the defendant acted with an accomplice who fled the scene in a yellow car, while the defendant fled the scene in a green car, because several witnesses claimed to have seen the robber leave in a yellow car, and other witnesses said the perpetrator got into a green car. Williams v. State, 312 Ga. App. 22 , 717 S.E.2d 532 (2011).
Failure to give circumstantial evidence charge was error. - Circumstantial evidence against a defendant in a cocaine trafficking case under O.C.G.A. § 16-13-31(a)(1) was sufficient to convict the defendant as a party to the crime: defendant drove the defendant's sibling, who arranged the drug sale, to the designated place for the transaction and patrolled the parking lot, and, when the defendant saw a police officer, fled the scene. Martinez v. State, 303 Ga. App. 71 , 692 S.E.2d 737 (2010).
Instruction on corroboration of accomplice testimony. - Because the defendant pointed to no evidence that the witness knew that the defendant was planning on assaulting the victim, and the defendant failed to cite precedent requiring an accomplice-corroboration instruction under circumstances similar to those presented, the appellate court concluded that the trial court did not commit obvious error in failing to instruct the jury on the need for corroboration of accomplice testimony. Wilson v. State, 351 Ga. App. 794 , 833 S.E.2d 175 (2019).
Evidence insufficient. - There was insufficient evidence to convict the defendants, both of whom had been passengers in a vehicle they knew had been stolen, of theft by receiving stolen property in violation of O.C.G.A. § 16-8-7(a) ; there was no evidence that the defendants did anything other than allow themselves to be transported in the vehicle or that they intentionally aided or abetted the commission of a crime under O.C.G.A. § 16-2-20(b) . Cooper v. State, 281 Ga. App. 882 , 637 S.E.2d 480 (2006).
Evidence was insufficient to show that the defendant intentionally aided, abetted, or encouraged the commission of aggravated battery, O.C.G.A. § 16-5-24 , aggravated assault, O.C.G.A. § 16-5-21 , and possession of a firearm during the commission of a felony, O.C.G.A. § 16-11-106 ; the defendant had a fight earlier in the afternoon at a different location with several of the people who were at the scene of the shooting, and the evidence showed that the defendant had motive and intent to do harm, that the defendant was upset, that the defendant drove by the scene of the shooting before the shooting occurred, and that the defendant's brother gave the defendant a gun at least three days before the crime occurred, but the state failed to adduce evidence that the defendant intentionally aided, abetted, or encouraged the commission of the crimes of which the defendant was convicted. Thus, what the evidence produced by the state did not show were the essential links between the defendant's proven behavior and the crimes charged. Gresham v. State, 298 Ga. App. 136 , 679 S.E.2d 344 (2009).
Except as to one incident, the evidence was insufficient to show that a mother aided and abetted her husband's sexual abuse of their twin daughters when they were between four and eight years old, because the record showed that the mother had no knowledge of seven of the eight incidents until she took the children to therapy, and the prosecution's circumstantial evidence - including the fact of the family's nudist lifestyle, the existence of pornographic movies in the home, and the fact that, during therapy, the mother advised the girls to not talk about their father - was insufficient to prove aiding and abetting beyond a reasonable doubt. Naylor v. State, 300 Ga. App. 401 , 685 S.E.2d 383 (2009).
Evidence was insufficient to support the defendant's conviction of trafficking in methamphetamine because the evidence showed nothing more than the defendant's mere presence in the owner's house at a time when methamphetamine was not being actively manufactured. Denson v. State, 353 Ga. App. 450 , 838 S.E.2d 117 (2020).
Convictions as aider and abettor proper despite lack of personal involvement. - Despite the defendant's contention that the crimes against a stabbing victim were solely committed by the codefendant, pursuant to O.C.G.A. § 16-2-20(a) , there was ample evidence to conclude that the defendant either committed the crimes or was a party to the crimes, including that both the defendant and the codefendant drove to the stabbing victim's home, that the victim was stabbed to death, and that the victim's wallet and checkbook were stolen so that both defendants could have money to buy more drugs. Odom v. State, 279 Ga. 599 , 619 S.E.2d 636 (2005).
Evidence sufficient on one count of aiding and abetting, but insufficient on another. - With regard to a juvenile's adjudication as delinquent on two counts for acts, which if committed by an adult, would constitute the crimes of criminal attempt to hijack a motor vehicle, insufficient evidence existed to find that the juvenile was a party to the criminal attempt to hijack on one count because the charge showed only that the juvenile was standing by the side of the road with the two other persons who were parties to the action and remained on the side of the road when another approached the victims' motor vehicle with a handgun and attempted to take the car by force and intimidation; mere presence, association, or suspicion, without any evidence to show further participation in the commission of the crime was insufficient to authorize a conviction. However, with regard to criminal attempt to hijack a motor vehicle, sufficient evidence existed to establish that the juvenile had knowledge of what was going to take place based on the prior attempt to hijack since: (1) the juvenile stood directly in front of the victim's vehicle; (2) the juvenile assisted one of the cohorts after that person fell; and (3) an investigating officer testified to the juvenile's own admission that the juvenile fled the scene in an attempt to elude the police, which authorized the juvenile court to infer that the juvenile was a participant and not merely a bystander in the second attempted hijacking. In the Interest of C.L., 289 Ga. App. 377 , 657 S.E.2d 301 (2008).
Application
1. In General
Corporate officer not shielded from criminal responsibility for acts in corporation's behalf. - Officer or agent of corporation cannot assert that criminal acts, in form corporate acts, were not the officer's acts merely because carried out by the officer through instrumentality of the corporation which the officer controlled and dominated in all respects and which the officer employed for that purpose. Williams v. State, 158 Ga. App. 384 , 280 S.E.2d 365 (1981).
One hindering apprehension or punishment of criminal. - One guilty of violating former Code 1933, § 26-2503 (see now O.C.G.A. § 16-10-50 ) would be classified as an accomplice after the fact at common law, and such an offender was not considered an accomplice within the meaning of former Code 1933, § 38-171 (see now O.C.G.A. § 24-14-8 ), or a party to the crime under former Code 1933, § 26-801 (see now O.C.G.A. § 16-2-20 ). Moore v. State, 240 Ga. 210 , 240 S.E.2d 68 (1977).
Since one may not be convicted of murder as a party to that crime and also be convicted of not being a party to the crime, but only as an accessory after the fact, defendant's conviction for hindering the apprehension of a criminal was set aside.
Conviction as a party to the crime was reversed where the appellate court concluded that the evidence was insufficient to establish that defendant intentionally aided, abetted, advised, encouraged, counseled, hired, or procured others to commit the crimes; the evidence, at most, established that defendant found out about the crimes after they were committed and did everything defendant could to help the others avoid prosecution. James v. State, 260 Ga. App. 350 , 579 S.E.2d 750 (2003).
An accessory after the fact is not considered an accomplice to the underlying crime itself, but is guilty of a separate, substantive offense in nature of obstruction of justice. Moore v. State, 240 Ga. 210 , 240 S.E.2d 68 (1977).
Presence and observation of crime may establish one as party. - Jury question was presented where evidence showed that plaintiff was in presence of, and talking with, other party who removed hat from counter, tore out price tag, and placed it on plaintiff's head. Dixon v. S.S. Kresge, Inc., 119 Ga. App. 776 , 169 S.E.2d 189 (1969).
Fact that defendant lived with person who committed offense. - Fact that defendant lived with person who committed offense did not support guilty verdict of defendant, since mere presence in and of itself will not justify conviction. Parker v. State, 155 Ga. App. 617 , 271 S.E.2d 871 (1980).
Mere presence at scene and flight from authority are insufficient to support a criminal conviction. Estep v. State, 154 Ga. App. 1 , 267 S.E.2d 314 (1980).
When a party possessed a firearm during the commission of a felony, an accomplice who is concerned in the commission of the crime under O.C.G.A. § 16-2-20 is likewise guilty of both offenses. Anderson v. State, 237 Ga. App. 595 , 516 S.E.2d 315 (1999).
Although the trial court might not have been presented with evidence that the defendant was in physical possession of a firearm during the hijacking of the victim's car, because the evidence that was presented authorized a finding that the defendant was a party to that crime, and that all those involved were joint conspirators, the trial court did not err in denying the defendant a new trial on grounds that the indictment charging possession of a firearm during the commission of a felony was at fatal variance with the proof presented at trial. Davis v. State, 287 Ga. App. 786 , 653 S.E.2d 104 (2007).
When ownership not shown, equal access proves all defendants guilty of possession of drugs. - When the state did not show the indicia giving rise to a presumption of ownership or exclusive control of a vehicle, no presumption arose and, therefore, there was no triggering of the equal access defense, but by showing circumstantially that each of the defendants had equal access to the drugs, the state was able to support its theory that all of the defendants were parties to the crime and thus guilty of joint constructive possession of the drugs. Castillo v. State, 166 Ga. App. 817 , 305 S.E.2d 629 (1983).
Collusion among relatives established by slight circumstances. - When transactions involving relatives are under review, slight circumstances are often sufficient to induce belief that there was collusion among parties. Heard v. State, 142 Ga. App. 703 , 236 S.E.2d 911 (1977).
Effect of contradictory testimony on defendant's denial of intent to participate. - Where defendant's posture is one of admitting presence and cooperation for one criminal purpose (stealing money from the cash register), but denying the intent of participating in an armed robbery, the matter thus essentially involves the credibility of the defendant; and if the defendant's explanation of the incident is contradicted by the testimony of the police officers, the hotel employee, and the victims, the jury is authorized to reject the explanation. Parham v. State, 166 Ga. App. 855 , 305 S.E.2d 599 (1983).
Even though codefendants' testimony conflicted, their testimony with regard to defendant's aid to them was sufficiently corroborative to establish that defendant was a party to the burglary. Allen v. State, 224 Ga. App. 324 , 480 S.E.2d 328 (1997).
Codefendant's trial should have been severed. - Trial court erred in denying a codefendant's motion to sever the trial from the defendant's trial because the codefendant was not allowed to introduce the exculpatory portions of the statements that explained the excerpted admissions introduced by the state, which supported the codefendant's antagonistic defense that the codefendant was present at the robberies due to coercion by the defendant. To avoid potential Bruton issues, the state introduced only those portions of the codefendant's 9-1-1 calls or custodial statements made establishing that the codefendant was at the scene of two robberies, that the codefendant's vehicles were used, and that the codefendant sent police to a motel room to investigate the robberies, but refused the additional portions of the statements that tended to support the codefendant's defense that the codefendant was coerced into participating in the crimes. Bowe v. State, 288 Ga. App. 376 , 654 S.E.2d 196 (2007), cert. dismissed, sub. nom., State v. Baker, No. S08C0548, 2008 Ga. LEXIS 318 (Ga. 2008).
Medicaid fraud. - Even assuming defendant could not be considered a "provider," the wide range of activities performed by defendant, combined with defendant's supervisory role in the medical office, made the defendant a party to the crime of Medicaid fraud. Bullard v. State, 242 Ga. App. 843 , 530 S.E.2d 265 (2000).
Evidence sufficient to support residential mortgage fraud conviction. - Evidence that the defendant, a loan officer who handled the closing on a codefendant's home, was a party to a scheme whereby the defendant gave the codefendant money for the downpayment before closing, the codefendant falsely stated in the loan application that the codefendant had not borrowed the down payment, and later defaulted on the loan was sufficient to convict the defendant of residential mortgage fraud as a party to that crime. Gilford v. State, 295 Ga. App. 651 , 673 S.E.2d 40 (2009), cert. denied, No. S09C0827, 2009 Ga. LEXIS 258 (Ga. 2009), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Inference that defendant tampered with evidence. - When the defense to a tampering with evidence charge was that no one saw defendant pull up and destroy marijuana plants, but the police officers saw the defendant on the property with the plants, advised the defendant not to remove the plants, returned in two hours to find the plants missing, and saw no one else around the premises at either time, the jury could reasonably infer that the defendant at the very least participated in the destruction and that in itself would justify conviction. Parrish v. State, 182 Ga. App. 247 , 355 S.E.2d 682 (1987).
Possession of firearm during commission of crime. - Evidence which was sufficient to authorize a conviction of defendant's codefendant of possession of a firearm during the commission of a crime combined with evidence which was sufficient to authorize defendant's conviction of the crime during the commission of which the gun was possessed was also sufficient to sustain defendant's guilt of the possession of a firearm during the commission of a crime. Roberts v. State, 167 Ga. App. 38 , 306 S.E.2d 43 (1983).
Defendant may properly be convicted of possession of a firearm during the commission of a crime on the ground that defendant was a party or aider or abettor to the offense. Perkins v. State, 194 Ga. App. 189 , 390 S.E.2d 273 (1990).
In a prosecution for armed robbery and burglary, where evidence showed that a gun was used, that defendant at one point had possession of the gun, and that defendant disposed of the gun, defendant was guilty of armed robbery, and the court did not err in failing to instruct on lesser included offenses of robbery and theft by taking. Hopkins v. State, 227 Ga. App. 567 , 489 S.E.2d 368 (1997).
Jury's verdict of acquittal on an aggravated assault charge and guilty on the charge of possession of a firearm during the commission of a crime was not necessarily inconsistent because the jury was free to reject the defendant's testimony that the defendant did not know the defendant's passenger had a gun and accept the defendant's testimony that the defendant was unaware of the intended robbery. Morrell v. State, 313 Ga. App. 443 , 721 S.E.2d 643 (2011), cert. denied, No. S12C0800, 2012 Ga. LEXIS 484 (Ga. 2012).
Juvenile delinquency and weapons charges. - Adjudication of delinquency for giving a false name to a law enforcement officer, carrying a concealed weapon, and possession of a pistol by a person under the age of 18 was proper when juvenile defendant who was driving a relative's vehicle had free run of the relative's property while the relative was deployed overseas; also, defendant was in the vehicle the morning of and night before a traffic stop, defendant directed the other juvenile where to drive, neither gun was registered to the relative, defendant seemed to know about the guns' existence, and defendant gave a deputy false information about the defendant's identity. In the Interest of C.M., 290 Ga. App. 788 , 661 S.E.2d 598 (2008).
Evidence sufficient to support finding of participation. - Evidence of actor's conduct before, during, and after offenses sufficient to support finding that the actor was participant. In re J.S.S., 168 Ga. App. 340 , 308 S.E.2d 855 (1983); In re K.B., 223 Ga. App. 105 , 476 S.E.2d 875 (1996).
When the defendant was identified as the person who demanded an admission fee from everyone who entered a cock fighting area and, when captured, still had $256 in cash in defendant's pants pocket, defendant was a direct participant in the criminal enterprise, and thus chargeable with both cruelty to animals and commercial gambling under O.C.G.A. § 16-2-20 . Morgan v. State, 195 Ga. App. 52 , 392 S.E.2d 715 (1990).
Evidence was sufficient to authorize the defendant's convictions for hijacking a motor vehicle, in violation of O.C.G.A. § 16-5-44.1(b) , armed robbery, in violation of O.C.G.A. § 16-8-41 , aggravated assault, in violation of O.C.G.A. § 16-5-21(a)(2), and possession of a knife during the commission of a crime, in violation of O.C.G.A. § 16-11-106(b) , based on the defendant's involvement as a party to the crimes, or as a coconspirator under O.C.G.A. § 16-2-20(b) . The evidence presented was that: (1) when two people walked past the victim's parked vehicle, one of the people held a knife to the victim's stomach and ordered the victim to give the person the victim's wallet and keys; (2) the victim complied; (3) the person with the knife got into the driver's seat and the defendant, who had stood nearby during the incident, got into the passenger seat; (3) the victim identified the defendant as the person who got into the passenger seat; (4) the people drove away, but were apprehended; (5) the victim's wallet was recovered, on the ground to the rear of the vehicle, on the passenger side; and (6) the defendant wanted to leave the area because there was a warrant for the defendant's arrest. Harrelson v. State, 312 Ga. App. 710 , 719 S.E.2d 569 (2011).
Trial court did not err in finding that the defendant was a party to the crime because there was ample evidence, based upon the defendant's actions and the defendant's presence, companionship, conduct, and demeanor before, during, and after the commission of the crime, to conclude that the defendant was more than "merely present" during the commission of the crimes; while in a car with the victim and companions, the front-seat passenger pulled out a gun and shot the victim, and during the incident, the defendant did not say or do anything to intervene. Cook v. State, 314 Ga. App. 289 , 723 S.E.2d 709 (2012).
Based on the evidence that the defendant drove and deliberately followed the victims and pulled in behind the victims' vehicle, intentionally encouraged the shooter by telling the shooter "you better not let these guys get away, go ahead and handle your business, do what you got to do," and fled with the shooter after the shooting, the jury was authorized to conclude that the defendant was a party to the crimes of aggravated assault and possession of a firearm during the commission of a crime. Talifero v. State, 319 Ga. App. 65 , 734 S.E.2d 61 (2012).
Evidence sufficient for participation in crime of possessing weapon by felon. - Convicted felon's conviction for possession of a shotgun was authorized, even though the shotgun was not in the felon's immediate possession, since the evidence supported a finding that the felon was a party to the crime of burglary and the felon and the felon's codefendant were coconspirators. Coursey v. State, 196 Ga. App. 135 , 395 S.E.2d 574 (1990).
Nature of fear and threats which will relieve one aiding commission of crime from liability. - One who aids and assists in commission of a crime, or in measures taken to conceal it, is not relieved from criminality as an accomplice on account of fear excited by threats or menaces, unless the danger be to life or member, or unless that danger be present and immediate, touching fear under the influence of which perjury is committed. Whitus v. State, 216 Ga. 284 , 116 S.E.2d 205 (1960), cert. denied, 365 U.S. 831, 81 S. Ct. 718 , 5 L. Ed. 2 d 708 (1961) (decided under former Code 1933, § 26-402).
Severance properly denied when defendants acted in concert. - Trial court did not err in denying the defendant's motion to sever because it was not required under the applicable law on party to a crime to show that any specific co-defendant physically possessed a weapon for that defendant to be convicted of felony murder or of the predicate offense of aggravated assault as a party to a crime; and the fact that the evidence as to one of the co-defendants was stronger did not demand a finding that the denial of a severance motion was an abuse of discretion since there was evidence showing that the defendants acted in concert. Smith v. State, 308 Ga. 81 , 839 S.E.2d 630 (2020).
Jury instruction properly given. - Trial court properly instructed jury on the issue of conviction as a party to a crime, as evidence showed defendants acted jointly to rob and kidnap the victim and fled together after the shooting. The fact that first defendant did not actually fire the gun did not affect his convictions. Flournoy v. State, 294 Ga. 741 , 755 S.E.2d 777 (2014).
When the defendant was convicted of murder, armed robbery, and related crimes in connection with the death of the victim, the defendant's counsel was not ineffective for failing to object to the trial court's jury instruction on parties to a crime, insofar as the indictment did not specifically charge the defendant as a party, because it was well-settled that the indictment need not specifically charge a criminal defendant as a party to the crime in order to permit a jury instruction on accomplice liability and authorize a conviction based thereon. Babbage v. State, 296 Ga. 364 , 768 S.E.2d 461 (2015).
2. Child Abuse and Neglect
Evidence sufficient for conviction of child abuse. - See Porter v. State, 243 Ga. App. 498 , 532 S.E.2d 407 (2000).
Child cruelty. - Jury was authorized to conclude that the defendant participated in a pattern of child cruelty over the course of several months, and aided and abetted in the malicious acts that caused the death of the child victim where, among other things, the defendant, the parent of the child, regularly beat the child with a belt, the defendant was aware that the child had experienced seizures before the night in question, the defendant observed the child in extreme distress that night but offered no assistance, and the defendant realized that the child's condition had worsened during the night but still took no action to procure medical care until the next morning. Delacruz v. State, 280 Ga. 392 , 627 S.E.2d 579 (2006).
Jury was authorized to find that the defendant was a party to the codefendant's crime of cruelty to children in the first degree in violation of O.C.G.A. §§ 16-2-20 and 16-5-70(b) because the victim's testimony showed that the defendant was present during the codefendant's beating of the victim yet did nothing to stop the codefendant or otherwise help the victim; there was also evidence that the defendant was not only aware of prior abuse that the victim sustained via a belt but had also participated in such prior abuse. Tabb v. State, 313 Ga. App. 852 , 723 S.E.2d 295 (2012).
Aided and abetted in child sexual abuse. - Evidence was sufficient to show that a mother aided and abetted her husband's sexual abuse of their twin daughters when they were between four and eight years old, but only as to one charged incident, because one daughter told a therapist that she told her mother about this incident, and the record showed that the mother knew about and saw this offense and that she also lent her approval to her husband's conduct. Naylor v. State, 300 Ga. App. 401 , 685 S.E.2d 383 (2009).
Evidence sufficient to show defendant was party to acts of aggravated child molestation. - See Wyatt v. State, 243 Ga. App. 882 , 534 S.E.2d 431 (2000).
Because sufficient evidence as to venue and of the remaining elements of the crime was presented by the child victim, via both recorded and trial testimony, the child molestation convictions entered against both the defendants under both O.C.G.A. §§ 16-2-20 and 16-6-4 were upheld. Newman v. State, 286 Ga. App. 353 , 649 S.E.2d 349 (2007).
Trial court properly denied a defendant's motion under O.C.G.A. § 17-9-1(a) for an acquittal in the defendant's trial for aiding and abetting a housemate in committing acts of aggravated child molestation against the defendant's children because there was ample evidence that the defendant acquiesced in and encouraged the acts of child molestation by forcing the children to sleep in the same room with the housemate, although the children objected. Valentine v. State, 301 Ga. App. 630 , 689 S.E.2d 76 (2009).
Evidence was sufficient to convict the defendant of being at least a party to the offenses of malice murder and first-degree cruelty to children because the defendant admitted that the defendant was present on the night of the victim's death while the co-indictee hit the victim, the defendant's three-year-old daughter, with a belt continually and repeatedly on the victim's body as the victim yelled and twisted trying to avoid the blows; the victim had internal bruising on both lungs, which caused massive internal blood loss into the victim's chest; and the medical examiner concluded that the victim's cause of death was blunt force trauma of the torso and head, with the contributing condition of soft tissue hemorrhage. Battle v. State, 305 Ga. 268 , 824 S.E.2d 335 (2019).
Rule of lenity did not apply to multiple convictions involving children. - In a criminal trial on charges that the defendant allowed the repeated rapes of the defendant's 11-year-old child, the rule of lenity did not require that the defendant's felony convictions for being a party to rape and cruelty to children should be subsumed by the misdemeanor conviction for contributing to the deprivation of children because different facts were necessary to prove the offenses; the rape conviction required proof under O.C.G.A. §§ 16-2-20 and 16-6-1(a)(1) that the defendant took affirmative steps to aid the rapist, the cruelty to children conviction required proof under O.C.G.A. § 16-5-70(b) that the defendant caused excessive mental pain to the child, and the conviction for contributing to the deprivation of a minor required proof under O.C.G.A. §§ 15-11-2(8)(A) and 16-12-1(b)(3) that the defendant failed to provide the child with proper care necessary for the child's health, which the state proved by showing that the defendant failed to seek prenatal care for the child even though the defendant knew that the child was pregnant. Johnson v. State, 283 Ga. App. 99 , 640 S.E.2d 644 (2006).
3. Drug Related Offenses
Employer guilty where employees sold controlled substances at employer's direction. - Evidence was sufficient to support defendant's convictions of selling and delivering controlled substances where, even though defendant, who operated a limousine service, was not physically present when any of the transactions took place, the deliveries in question were made by two of defendant's employees, and those employees testified that they had been acting at defendant's direction at the time. Walker v. State, 196 Ga. App. 741 , 397 S.E.2d 28 (1990).
Trafficking in cocaine. - When the evidence authorized the conclusion that defendant "fronted" the cocaine to another (via a third person) with the expectation that the other would sell the cocaine and pay defendant the proceeds, the evidence was sufficient to enable a rational trier of fact to find defendant guilty beyond a reasonable doubt of the offense of trafficking in cocaine in the county. Hernandez v. State, 182 Ga. App. 797 , 357 S.E.2d 131 (1987).
Evidence held insufficient as matter of law to sustain defendant's conviction for trafficking in cocaine. Crenshaw v. State, 183 Ga. App. 527 , 359 S.E.2d 419 (1987).
Whether defendant had physical possession of the cocaine, the defendant aided and abetted its actual physical possession and was guilty of the offense of trafficking under O.C.G.A. § 16-13-31 and under O.C.G.A. § 16-2-20 , as a party to the crime. Barrett v. State, 183 Ga. App. 729 , 360 S.E.2d 400 (1987), overruled on other grounds, Gonzalez v. Abbott, 262 Ga. 671 , 425 S.E.2d 272 (1993).
Evidence sufficient for conviction of trafficking in cocaine as "party thereto." Williams v. State, 199 Ga. App. 566 , 405 S.E.2d 716 (1991); Brown v. State, 245 Ga. App. 706 , 538 S.E.2d 788 (2000).
Defendant's quick trip to a known drug supply area, and defendant's participation in a false report about who was driving the car in which cocaine was found, was sufficient evidence to convince a rational trier of fact that defendant was a party to the enterprise of trafficking in cocaine. Banks v. State, 200 Ga. App. 378 , 408 S.E.2d 484 (1991); Woods v. State, 210 Ga. App. 172 , 435 S.E.2d 464 (1993).
Evidence was sufficient to find defendant constructively possessed more than 28 grams of cocaine and was guilty as a party to the crime of trafficking in cocaine. Stevens v. State, 245 Ga. App. 237 , 537 S.E.2d 688 (2000).
Evidence that defendant's companion showed a bag of cocaine to an undercover officer while defendant stood nearby in a manner the officer described as a "show of force," and that the companion's car contained another 16 ounces of cocaine, was sufficient for a jury to find that defendant was guilty beyond a reasonable doubt of trafficking in cocaine as either a principal in the transaction or as a party to the crime. Martinez v. State, 259 Ga. App. 402 , 577 S.E.2d 82 (2003).
Trial court properly denied a defendant's motion for a directed verdict as there was sufficient evidence to support the defendant's conviction for trafficking in cocaine based on the observations of the police watching the defendant and codefendants engaging in suspicious behavior in a high-crime area; the contents of the backpack, which contained 377.45 grams of 50.7 percent pure cocaine heavily wrapped in saran wrap, with a street value between $8,000 and $10,000 in powder form or as much as $15,000 if cut with an agent and compressed into rocks of crack cocaine; the drugs found in the trunk of the defendant's rental vehicle; and the rental of a motel room by the defendant. Mosley v. State, 296 Ga. App. 746 , 675 S.E.2d 607 (2009), cert. denied, No. S09C1188, 2009 Ga. LEXIS 322 (Ga. 2009).
Trial court did not err in convicting the defendant of trafficking in cocaine in violation of O.C.G.A. § 16-13-31(a)(1) because the jury was authorized to find that the defendant was in joint constructive possession of the cocaine and was a party to the crime pursuant to O.C.G.A. § 16-2-20(a) and (b)(3); the evidence showed that the defendant participated and intentionally aided in the commission of the drug trafficking offense by driving the codefendants and the cocaine to the pre-arranged location for the transaction, warning the codefendants that the principal agent was a police officer, and taking possession of the funds used for the transaction. Valdez v. State, 310 Ga. App. 274 , 712 S.E.2d 656 (2011).
Defendant's conviction for trafficking in cocaine, in violation of O.C.G.A. § 16-13-31(a)(1), was supported by sufficient evidence under O.C.G.A. §§ 16-2-20(b)(3) and former 24-4-8 (see now O.C.G.A. § 24-14-8 ) since the defendant and the codefendant had both made statements regarding the defendant's involvement in the criminal activity, and the police observed the defendant's actions; there was evidence that the defendant was an active participant and a party to the trafficking offense. Martinez v. State, 314 Ga. App. 551 , 724 S.E.2d 851 (2012).
Evidence was sufficient to support the defendant's conviction for trafficking in cocaine, in violation of O.C.G.A. § 16-13-31(a)(1), based on the defendant's participation in a sale of a sufficient amount and purity of cocaine to an undercover agent; although a codefendant conducted the sale directly, the defendant was a party to the sale under O.C.G.A. § 16-2-20(b)(3) since the defendant was in a nearby vehicle that the codefendant went to during the transaction. McGee v. State, 316 Ga. App. 661 , 730 S.E.2d 131 (2012).
Evidence was sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of trafficking in cocaine in violation of O.C.G.A. § 16-13-31(a)(1) because the state presented evidence that even if the defendant did not bring the bag of cocaine to an owner's residence, the defendant possessed the cocaine and was a party to the crime of trafficking in cocaine under O.C.G.A. § 16-2-20 . Kegler v. State, 317 Ga. App. 427 , 731 S.E.2d 111 (2012).
Regardless of whether the defendant passenger had physical possession of the cocaine, the evidence was sufficient to find that the defendant passenger actively participated in, and was a party to, the trafficking of the three kilos of 70-percent pure cocaine because a sergeant set up an undercover surveillance at an apartment complex; after the defendants exited the building, the defendants were talking back and forth and the defendant driver was carrying a black and grey duffle bag, which the defendant driver did not have upon entering the building; and, during an open-air sniff, a canine alerted to the rear passenger side of the vehicle where the detective saw the black and grey duffle bag that contained the cocaine. Williams v. State, 336 Ga. App. 64 , 783 S.E.2d 666 (2016), overruled on other grounds by Quiller v. State, 338 Ga. App. 206 , 789 S.E.2d 391 (Ga. Ct. App. 2016).
Evidence sufficient to sustain conviction of possession of cocaine and marijuana with intent to distribute. - There was sufficient evidence to support a defendant's conviction of being a party to the crimes of possession of marijuana and cocaine with intent to distribute in violation of O.C.G.A. §§ 16-2-20(b)(3) and 16-13-30 , because the defendant was holding large quantities of drugs for an accomplice in a running car outside a hotel with knowledge that the accomplice was at the hotel to make a sale. Haywood v. State, 301 Ga. App. 717 , 689 S.E.2d 82 (2009).
Evidence sufficient to show possession of cocaine. - See Green v. State, 187 Ga. App. 373 , 370 S.E.2d 348 , cert. denied, 187 Ga. App. 907 , 370 S.E.2d 348 (1988); McGee v. State, 191 Ga. App. 172 , 381 S.E.2d 80 (1989).
Although the defendant never had physical possession of cocaine and marijuana in the cab from which the cocaine was delivered, defendant aided and abetted its actual physical possession and is guilty of trafficking under O.C.G.A. §§ 16-2-20 and 16-13-31 , as a party to the crime. The "actual possession" required by § 16-13-31 to authorize a conviction for trafficking refers not merely to physical custody but to actual active participation in the possession of such substances so as to be a party to the crime of trafficking. Holder v. State, 194 Ga. App. 790 , 391 S.E.2d 808 (1990).
Evidence sufficient to sustain conviction for selling cocaine. - See Stevens v. State, 210 Ga. App. 355 , 436 S.E.2d 82 (1993); Height v. State, 221 Ga. App. 647 , 472 S.E.2d 485 (1996); Douglas v. State, 228 Ga. App. 368 , 491 S.E.2d 821 (1997); Jones v. State, 229 Ga. App. 63 , 493 S.E.2d 224 (1997); Davis v. State, 244 Ga. App. 33 , 535 S.E.2d 10 (2000).
Defendant who told undercover officer of ability to procure crack cocaine, took officer's money, and attempted to procure the cocaine could be reasonably found to have been a party to the sale. Little v. State, 230 Ga. App. 803 , 498 S.E.2d 284 (1998).
Delivery and distribution of marijuana. - Prior inconsistent statement by marijuana dealer charged with selling marijuana in violation of O.C.G.A. § 16-13-30(j)(1) that defendants were involved in selling marijuana, and evidence that defendants were in close proximity to seized marijuana did not establish that defendants were party to crime of violating O.C.G.A. § 16-13-30(j)(1). Oldwine v. State, 184 Ga. App. 173 , 360 S.E.2d 915 (1987).
Evidence that a defendant participated in a plan for the delivery of a package containing 12 pounds of marijuana to a residence, along with digital scales, a marijuana grinder, and plastic baggies at the residence, and the defendant's admission that the marijuana was the defendant's, was sufficient to convict the defendant as a party to possession of marijuana with intent to distribute, trafficking in marijuana, and possession of marijuana, pursuant to O.C.G.A. § 16-2-20 . Salinas v. State, 313 Ga. App. 720 , 722 S.E.2d 432 (2012).
Trafficking in methamphetamine shown. - Evidence that the defendant helped direct a witness to a police informant's home in order to buy a pound of methamphetamine, combined with the defendant's previous contact with the informant, showed more than mere presence, and, at a minimum, showed that the defendant was guilty as a party to the offense of trafficking in methamphetamine. Lopez v. State, 281 Ga. App. 623 , 636 S.E.2d 770 (2006).
Sufficient corroboration existed to support a defendant's conviction for trafficking in methamphetamine when a police informant testified that the defendant appeared to be involved in the deal and the state also offered testimony that a person would not simply tag along to a drug transaction involving over 400 grams of methamphetamine. Casanova v. State, 285 Ga. App. 554 , 646 S.E.2d 754 (2007).
Evidence authorized a finding that defendant was guilty as a party to trafficking methamphetamine and was not merely a passenger in the codefendant's truck since the codefendant testified that defendant obtained methamphetamine from a third party and was the supplier for the deal, defendant admitted that defendant had previously purchased methamphetamine from the third party and knew what was going on when defendant and codefendant met with the third party, and defendant remained in the truck when the codefendant took the methamphetamine and got into an agent's vehicle to make the sale. Russell v. State, 289 Ga. App. 789 , 658 S.E.2d 400 (2008).
Trial court properly denied a defendant's motion for a directed verdict of acquittal and the defendant's motion for a new trial with regard to the defendant's conviction for trafficking in methamphetamine as the defendant failed to rebut the presumption that finding the defendant in possession of such a large amount of drugs was sufficient to establish trafficking. Even absent the presumption of possession, the evidence was sufficient to convict the defendant as a party to the crime of trafficking in methamphetamine since the evidence established that the defendant was one of two persons expected to engage in the undercover transaction and methamphetamine was found on the defendant's person. Navarro v. State, 293 Ga. App. 329 , 667 S.E.2d 125 (2008).
Evidence insufficient for trafficking in methamphetamine. - Trial court erred in convicting the defendant of trafficking in methamphetamine in violation of O.C.G.A. § 16-13-31(e)(3) because although the evidence raised grave suspicions of the defendant's guilt, the state failed to establish that the defendant had both the power and the intention at the time of the defendant's arrest to exercise dominion or control over the drugs and failed to show that other people did not have equal access to the house and the items within the house; all of the evidence was circumstantial with regard to the defendant's constructive possession of the contraband, there was nothing in the case linking the defendant to the drugs or manufacturing equipment in the house, and several other people with access to the house were unaccounted for and were not charged. Aquino v. State, 308 Ga. App. 163 , 706 S.E.2d 746 (2011).
Codefendant's conviction for trafficking in methamphetamine in violation of O.C.G.A. § 16-13-31(e) could not be upheld on the ground that the codefendant was a party to the crime of trafficking in methamphetamine because the state failed to adduce evidence that the codefendant intentionally caused another to commit the crime, aided or abetted in the commission of the crime, or advised or encouraged another to commit the crime; thus, the state's evidence did not show essential links between the codefendant's proven behavior and the drug trafficking charge. Flores v. State, 308 Ga. App. 368 , 707 S.E.2d 578 (2011), cert. denied, No. S11C1072, 2011 Ga. LEXIS 527 (Ga. 2011).
Evidence sufficient for conviction of sale of marijuana. - See Wimberly v. State, 205 Ga. App. 818 , 423 S.E.2d 728 (1992); Madge v. State, 245 Ga. App. 848 , 538 S.E.2d 907 (2000).
Evidence sufficient for conviction of constructive possession of marijuana. - When there was more evidence to connect defendant to the marijuana than that of mere spatial proximity or presence as the marijuana was hidden during the transport in the patrol vehicle to the station by one of the three codefendants, defendant admitted to knowing the owner of the marijuana, although defendant refused to identify such person and there was evidence that marijuana had been used in defendant's vehicle and that defendant had recently used marijuana; under these circumstances, there was sufficient evidence to find defendant guilty of joint constructive possession, or at least as a party to the crime. Harvey v. State, 212 Ga. App. 632 , 442 S.E.2d 478 (1994).
Evidence supported a defendant's conviction of bringing stolen property to Georgia, eluding an officer, and possessing marijuana as a party, if not as a conspirator, since: (1) the defendant discussed with the defendant's love interest what would happen if they were apprehended by the police; (2) the love interest gave the defendant a handgun after the love interest stole a new gun and the defendant packed two guns with the defendant's personal items and the ski masks; (3) the defendant suspected that the truck was stolen, refused to ask about its origin, saw the stolen gun on the seat of the truck, observed two gas drive-offs, ate stolen food, smoked shared marijuana repeatedly, and sat next to the glove compartment where the marijuana lay; and (4) the defendant was silent during the police pursuits, saw the defendant's love interest retrieve a stolen handgun just prior to an assault of a police officer, did not hinder the love interest or warn the police, lied to the police to cover up the matter, and referred to the entire affair as having "fun for a minute." Michael v. State, 281 Ga. App. 289 , 635 S.E.2d 790 (2006), overruled on other grounds by Gibbs v. State, 304 Ga. App. 723 , 798 S.E.2d 308 (2017).
Common design evidenced by alcohol provided to minor. - Evidence that defendant gave the minor, a 14-year-old, alcohol and keys to defendant's car and stood by silently as the minor got behind the wheel was sufficient to allow a jury to have reasonably concluded that defendant and the minor had a common design to allow the minor to drive after drinking alcohol. Guzman v. State, 262 Ga. App. 564 , 586 S.E.2d 59 (2003).
Evidence sufficient for participation in drug offenses. - Evidence that defendant approached a police officer, asked what the officer wanted, and then introduced the officer to the man who actually passed the contraband and collected the money is sufficient proof of guilt under O.C.G.A. § 16-2-20 . Gay v. State, 221 Ga. App. 263 , 471 S.E.2d 49 (1996).
Evidence sufficient for participation in drug trafficking. - Evidence was sufficient to support a conviction of attempted trafficking in marijuana. A codefendant's testimony at the codefendant's trial and the codefendant's statement to the police were admissible as prior inconsistent statements and constituted substantive evidence of the defendant's participation in the attempted drug trafficking; furthermore, the codefendant's statements were sufficiently corroborated underformer O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8 ) by the testimony of a case agent that a loaded pistol was found at the defendant's feet and that a bag containing the currency used in the drug transaction was found within arm's reach of the defendant. Green v. State, 298 Ga. App. 17 , 679 S.E.2d 348 (2009).
There was sufficient evidence to support a defendant's conviction for possession of methamphetamine with the intent to distribute with regard to the police finding the contraband in the defendant's vehicle, despite the defendant's contention that the state failed to show that the defendant was in possession of the drug and failed to show an intention to distribute, based on the defendant's intentional use of the vehicle. Further, there was testimony from a witness that the witness had recently ingested methamphetamine that was procured from the defendant and the codefendants and that the defendant provided the transportation that facilitated the procurement of the methamphetamine that was ingested. Armstrong v. State, 298 Ga. App. 855 , 681 S.E.2d 662 (2009).
Evidence sufficient to show defendant was party to sale of controlled substance. - Combined evidence established that the defendant actively participated in and was a party to the three separate sales of a controlled substance based on the defendant freely and voluntarily admitting that during the last controlled drug buy, the defendant supplied an informant with 500-600 pills, the pills tested positive for trifluoromethylphenyl piperazine, and that the defendant acted the same during all of the controlled purchases. Walker v. State, 323 Ga. App. 685 , 747 S.E.2d 691 (2013).
Informant's information reliable and admissible. - In defendant's drug case, a court erred by granting a motion to suppress where an informant's information was allegedly unreliable because, by admitting the informant's presence during the making of methamphetamine, the informant was making statements against the informant's own penal interest. State v. Graddy, 262 Ga. App. 98 , 585 S.E.2d 147 (2003), aff'd, 277 Ga. 765 , 596 S.E.2d 109 (2004).
Witness was not accomplice in drug transaction. - Defendant's convictions were not based on insufficient evidence when a witness gave uncorroborated testimony because the witness was not the defendant's accomplice as: (1) the defendant only asked the witness how to make a fake brick of cocaine; and (2) nothing showed the witness advised, encouraged, or counseled the defendant to commit a crime, under O.C.G.A. § 16-2-20(b)(4), or that the witness intended to participate in a crime. Williams v. State, 289 Ga. 672 , 715 S.E.2d 76 (2011).
Jury instructions misstated law of party to a crime for marijuana possession. - Trial court's instructions on "mere association" and "mere presence" with regard to charging a defendant as a party to a crime under O.C.G.A. § 16-2-20(a) were misstatements of the law and also directly conflicted with other closely related instructions, and were harmful error requiring reversal of the defendant's convictions for possession of marijuana with intent to distribute in violation of O.C.G.A. § 16-13-30(j)(1). Able v. State, 312 Ga. App. 252 , 718 S.E.2d 96 (2011).
4. Murder or Manslaughter
Party to malice murder. - Where both brothers planned the armed robbery and carried it out, even if the defendant did not know that the brother intended to kill any potential witnesses, the evidence supports the verdicts against defendant for the malice murder of the victims because as a party to the crime, defendant could be convicted of the crime even though defendant was not the actual perpetrator. Cargill v. State, 256 Ga. 252 , 347 S.E.2d 559 (1986).
Where a party has committed armed robbery and possession of a firearm during commission of a felony, an accomplice who is concerned in the commission of those crimes is likewise guilty of both offenses, notwithstanding the fact that the accomplice did not have actual possession of the firearm. Howze v. State, 201 Ga. App. 96 , 410 S.E.2d 323 (1991).
Since defendant's conduct before, during, and after the fatal shooting supported the finding that even if defendant was not the trigger man, defendant intentionally aided and abetted the victim's murder. Whether a person is a party to a crime may be inferred from that person's presence, companionship, and conduct before, during, and after the crime. Hewitt v. State, 277 Ga. 327 , 588 S.E.2d 722 (2003).
Evidence was sufficient to convict the defendant of malice murder where the defendant drove the defendant's sibling to a rendezvous with the victim, then drove while the sibling shot the victim to death in the defendant's car; thus, the defendant's life sentence was affirmed. Brown v. State, 277 Ga. 623 , 593 S.E.2d 343 (2004).
Evidence that two defendants who were tried together chased a victim after an argument and that the victim died after one defendant shot the victim five times was sufficient to sustain both defendants' convictions for malice murder and other crimes. Jackson v. State, 278 Ga. 235 , 599 S.E.2d 129 (2004).
There was sufficient evidence to show that a defendant was a party under O.C.G.A. § 16-2-20(b)(3) to malice murders where: there was testimony that the defendant had previously acted violently toward the victims and had expressed the desire that the first victim die; that the defendant participated in at least one conversation planning the murders; that the defendant was present at the murder scene; that the defendant washed brown stains off the defendant's shirt after the murders; and that the defendant told two people of the murders before the bodies were discovered. Conway v. State, 281 Ga. 685 , 642 S.E.2d 673 (2007).
The evidence was sufficient to support a malice murder conviction as a party under O.C.G.A. § 16-2-20 . The defendant confessed that the defendant was in a car when the car's occupants targeted the victim, that the defendant accompanied the shooter to the victim's vehicle, and that the defendant was present when the shooter killed the victim, and the defendant's story was consistent with an eyewitness's, who did not identify the individuals involved but noted that the distinctive tire rims on the car in which the defendant was riding matched those on the getaway car. Boseman v. State, 283 Ga. 355 , 659 S.E.2d 364 (2008).
In a malice murder case, there was no merit to a defendant's argument that the evidence established only the defendant's mere presence at the scene; at the very least, the defendant was a party to the crime under O.C.G.A. § 16-2-20(a) . While it was not established that the defendant actually committed the physical act of stabbing the victim, the state presented evidence that the defendant took part in another murder the night before the victim was killed, that the victim threatened to disclose the earlier murder to police, that the victim was killed to silence the victim, and that the defendant assisted the codefendants in removing the victim from the trunk of a car and dragging the body into the woods. Metz v. State, 284 Ga. 614 , 669 S.E.2d 121 (2008), overruled on other grounds, State v. Kelly, 290 Ga. 29 , 718 S.E.2d 232 (2011).
Evidence was sufficient to support the defendant's conviction for malice murder as a party to the crime under O.C.G.A. § 16-2-20(b)(3) as the defendant accompanied the defendant's son on two occasions to the victim's apartment, the defendant lied to gain entry into the victim's apartment, the defendant was present when the victim was fatally shot, and the defendant fled after the incident. Ashe v. State, 285 Ga. 359 , 676 S.E.2d 194 (2009).
Evidence that a defendant, who was in an antagonistic relationship with a murder victim, assisted the victim's shooter (the defendant's best friend) by purchasing a handgun that was registered to the shooter and keeping the handgun following the shooting, was sufficient to convict the defendant of aiding and abetting the murder under O.C.G.A. § 16-2-20 . Johnson v. State, 287 Ga. 767 , 700 S.E.2d 346 (2010).
Evidence was sufficient to support the defendant's malice murder conviction because there was evidence apart from the accomplice's testimony from which the jury could have inferred that the defendant was a participant, including eyewitness testimony that an accomplice pointed a gun at the victim when the group attempted to rob the victim, a witness testified that the defendant did not abandon the group at this point but proceeded with the others in the victim's direction, the defendant remained for the attempted robbery of the victim, the defendant did not seek aid for the victim after the victim was shot, and the defendant fled the scene. Daniels v. State, 306 Ga. 559 , 832 S.E.2d 372 (2019).
Evidence was sufficient to convict the defendant of malice murder, armed robbery, and concealing the death of another as a party to the crimes, and the defendant's voluntary intoxication provided no defense because the defendant admitted that the defendant was not coerced into participating in the crimes; the defendant admitted that the defendant took money from the victim's pockets as an accomplice bludgeoned the victim with a baseball bat; the defendant admitted participating in removing the victim's body from the apartment; and the defendant presented no evidence at trial that the defendant's brain function had been permanently altered. Perez v. State, Ga. , S.E.2d (Sept. 8, 2020).
Impossible to determine who fired fatal shot. - While it was not possible to determine whether the fatal shot was fired from the defendant's pistol or the codefendant's pistol, the evidence was sufficient to support the conviction for malice murder because the jury was properly instructed on the law of parties to a crime, under which, even if the fatal shot was in fact fired by the codefendant, the defendant could be held liable. Coe v. State, 293 Ga. 233 , 748 S.E.2d 824 (2013).
Evidence presented at trial was sufficient to authorize a rational jury to find appellant guilty beyond a reasonable doubt of the crimes of felony murder, malice murder, and possession of a firearm during the commission of a crime based on the testimony of a codefendant, who detailed how the appellant wanted money and robbed and shot an individual with the codefendants to obtain money. Ryans v. State, 293 Ga. 238 , 744 S.E.2d 759 (2013).
Evidence was sufficient to convict the defendant of malice murder, possession of a firearm during the commission of a felony, and all of the other crimes of which the defendant was convicted because the defendant was a party to the crimes as the defendant was not merely present at the scene when the victim was murdered with a pistol; and, even crediting the defendant's own version of events, the defendant agreed with an accomplice to rob the victim, and when the accomplice struck the victim with a pistol, the defendant helped silence the victim and arrange the departure from the scene, even though the defendant heard the accomplice fire a gunshot. Dixon v. State, 294 Ga. 40 , 751 S.E.2d 69 (2013).
Defendant's convictions for malice murder and possession of a firearm by a convicted felon were supported by sufficient evidence since the evidence permitted an inference that the defendant was present when the victim was shot, fled the murder scene with an accomplice, and subsequently lied about key facts when questioned by police. Rush v. State, 294 Ga. 388 , 754 S.E.2d 63 (2014).
Directing partner to shoot victim. - Evidence was sufficient to enable a rational trier of fact to find defendant guilty of malice murder as a party to the crime and all of the crimes of which defendant was convicted beyond a reasonable doubt based on the evidence showing that defendant directed a drug selling partner to shoot another person and the pair went together and found the victim and the partner shot the victim to death. Folston v. State, 294 Ga. 778 , 755 S.E.2d 803 (2014).
Evidence was sufficient to convict the defendant of malice murder and possession of a firearm during the commission of a crime as a party because the defendant was carrying a pistol, told an accomplice that the defendant wanted the gold chain before the defendant approached the victim, and pointed a gun at the victim and demanded the chain; after the victim and the defendant began fighting, the accomplice and the two women in the car heard a gunshot; the accomplice then got out of the car with the accomplice's gun drawn, walked over to where the defendant and the victim were fighting, and fired the fatal shot into the victim's head; and the defendant then went through the victim's pockets and left with the accomplice. Williams v. State, 302 Ga. 404 , 807 S.E.2d 418 (2017).
Every person concerned in commission of crime guilty. - Evidence was sufficient to convict the defendant of malice murder as a party because, even though the victim was shot by another person, every person concerned in the commission of the crime could be convicted of the crime; witnesses saw four men together in the apartment; one witness saw the defendant shooting the defendant's weapon and saw an unidentified man shooting a shotgun out the window of a truck; that witness saw the defendant, the co-defendant, and another individual fleeing on foot in the direction taken by the truck; and the medical examiner testified that the wounds from the handgun bullets, by themselves, could have produced death from bleeding, but the immediate cause of death was the wound caused by the shotgun slug. Jackson v. State, 303 Ga. 487 , 813 S.E.2d 372 (2018).
Evidence was sufficient to convict the defendants of, inter alia, malice murder as the evidence showed that one of the defendants shot and killed the victim and that the other defendant was a party to the crime because the defendants and a third person traveled together with a rifle to the scene of the shooting; the second defendant had a motive to kill the victim as the victim and the second defendant's estranged wife were romantically involved; the victim was first attacked by the first defendant and the third man and then shot repeatedly by the second defendant; both the defendants were found attempting to hide from the police; and the victim said that the second defendant shot the victim. Johnson v. State, 302 Ga. 774 , 809 S.E.2d 769 (2018).
Evidence was sufficient to convict the defendant of malice murder as a party because the first co-defendant repeatedly drove by the victim's home; the victim came outside with a big gun and kept the gun at the victim's side; the defendant and the first co-defendant drove up to the victim's apartment, got out holding guns, and approached the victim, while the second co-defendant was leaning against the hood of a car; the defendant and the first co-defendant then began punching the victim in the face; as the defendant and the first co-defendant began to walk off, the second co-defendant walked up to the victim and shot the victim in the face; and the victim died shortly thereafter. Green v. State, 302 Ga. 816 , 809 S.E.2d 738 (2018).
Evidence was sufficient to convict the defendant of malice murder under O.C.G.A. § 16-2-20 (parties to a crime) based on testimony from two of the five conspirators that they planned to rob and then to kill the three victims, the discovery of the murder weapon with the defendant, and statements by the spouse of one conspirator. Lord v. State, 304 Ga. 532 , 820 S.E.2d 16 (2018).
Accomplice testimony about the appellant's participation in the victim's murder was adequately corroborated by independent evidence based on the appellant's admissions, the testimony of the appellant's girlfriend, and cell phone records, which placed the appellant in the same area at the time of the murder and showed communications with the victim and the individual who held the murder weapon after the killing. McCammon v. State, 306 Ga. 516 , 832 S.E.2d 396 (2019).
Murder and armed robbery. - Although defendant was not the person who pulled the trigger, where there was evidence which authorized findings that defendant was present with the person who pulled the trigger for over two hours prior to the murder; that defendant drove the person who pulled the trigger to the victim's house; that defendant was present in the room when the victim was shot; that the victim was shot with a gun of the same model and caliber that defendant owned; and that defendant destroyed evidence, assisted in the disposal of the decedent's body, fled from the jurisdiction where the crimes were committed, reaped benefits from the armed robbery, and at no time made any attempt to disassociate from the criminal enterprise, a rational trier of fact could have found the defendant guilty of the crimes of murder and armed robbery beyond a reasonable doubt. Tho Van Huynh v. State, 257 Ga. 375 , 359 S.E.2d 667 (1987).
Murder, aggravated assault, aggravated battery and armed robbery. - Defendant was concerned in the commission of murder, aggravated assault, aggravated battery and armed robbery where the evidence indicated that defendant remained outside at the door of the robbed store during the commission of the criminal acts; had communicated with one of defendant's companions who employed violence inside the store moments prior to the commission of the criminal acts; and had been found the following morning walking with one of these companions along a dirt road near the abandoned get-away vehicle with a significant amount of assorted loose currency. Grace v. State, 262 Ga. 746 , 425 S.E.2d 865 (1993).
Party to felony murder. - Evidence was sufficient to convict the defendant of felony murder in connection with the shooting death of the defendant's accomplice in an attempted armed robbery because the defendant told the accomplice's brother that the defendant, the accomplice, and another individual went to an apartment complex with the intent to rob the putative armed robbery victim, that the defendant knew the accomplice was armed, and that the accomplice was shot during the confrontation with the putative victim; the defendant admitted to being a party to the attempted armed robbery; and there was evidence corroborating the defendant's confession, including participation with the accomplice in renting the car found at the crime scene. Muckle v. State, 302 Ga. 675 , 808 S.E.2d 713 (2017).
Evidence was sufficient to convict the defendant of, inter alia, felony murder and to overcome the defense of coercion because the defendant kicked in the door of a trailer and entered; after the victim threw some tools at the defendant, the first co-defendant shot and killed the victim; and both accomplices testified that the first accomplice never threatened the defendant and never pointed a pistol at the defendant to get the defendant to participate in the crimes. Brooks v. State, 305 Ga. 600 , 826 S.E.2d 45 (2019).
Defendant's conviction for felony murder was supported by evidence that the defendant agreed to sell methamphetamine and possessed a handgun, which the defendant gave to the defendant's cohort on the way to the drug sale; the two then robbed the two victims and shot at both victims, killing one; the two left the scene together, telephoned a senior gang member, and traveled to a gang safe house in Atlanta together. Boyd v. State, 306 Ga. 204 , 830 S.E.2d 160 (2019).
Rational jury could have inferred from the defendant's conduct on the day of the shooting that the defendant intentionally advised, encouraged, and counseled an accomplice, who was a member of the same gang as the defendant, to shoot the victim after the defendant had been in an argument with the victim prior to the shooting about a fight involving the defendant's brother the day before and, thus, that the defendant was guilty as an accomplice of felony murder predicated on aggravated assault. Worthen v. State, 306 Ga. 600 , 832 S.E.2d 335 (2019).
Evidence was sufficient to convict the defendant of felony murder because the co-defendants testified that the defendants were part of the card-game robbery scheme with the defendant, and that the defendant was the masked individual who entered the first victim's home with a handgun, forced patrons to turn over the patrons' cash at gunpoint, and shot the first victim to death when the first victim attempted to thwart the robbery; and the jury did not need to know whether the defendant was the shooter in order to find the defendant guilty of being a party to the murder. Rich v. State, 307 Ga. 757 , 838 S.E.2d 255 (2020).
Evidence was sufficient to convict the defendant as a party to the crimes of felony murder and possession of a firearm during the commission of a felony in connection with the shooting death of one of the accomplices to an attempted armed robbery because the defendant was not just an innocent bystander as the defendant admitted that the defendant was with the accomplices before the shooting; the jury could have reasonably inferred that the defendant was the person whom two witnesses overheard in the background of a call encouraging the armed robbery; and the defendant admitted that the defendant accompanied the accomplices knowing that the buyer and the group the defendant was with planned to rob each other during a purported drug deal. Frazier v. State, 308 Ga. 450 , 841 S.E.2d 692 (2020).
Evidence was sufficient to convict the defendant of felony murder predicated on burglary and armed robbery because the defendant, the codefendant, and a third person drove to the victim's house pursuant to a plan to steal money from within the victim's house and that the defendant and the codefendant entered the house without authority; and the codefendant shot the victim, who died of a gunshot wound to the chest, and then left carrying several firearms that the codefendant had taken from inside the house. Satterfield v. State, Ga. , S.E.2d (Sept. 28, 2020).
Party to murder. - Where the evidence is sufficient to show that the defendant was a part of the conspiracy to murder a specific individual and in fact the murder did occur according to the plan of the coconspirators, the evidence supports a finding of guilt for being a party to the crime. Owens v. State, 251 Ga. 313 , 305 S.E.2d 102 (1983).
Even though there was sufficient direct evidence that the defendant was guilty of concealing the death of another, there was neither direct evidence nor sufficient circumstantial evidence that defendant was a party to murder. Therefore, the evidence was insufficient as a matter of law to convict defendant as a party to the crime of murder. Bullard v. State, 263 Ga. 681 , 436 S.E.2d 647 (1993).
When the evidence revealed that the defendant and others returned to a parking lot with the specific intent of ambushing a group of people who had earlier told the defendant not to speed and had thrown a beer bottle at the defendant's car, and when the defendant was found to be an accomplice of one who possessed a gun and fatally shot someone, there was sufficient evidence pursuant to the "party to a crime" law under O.C.G.A. § 16-2-20 to convict the defendant of felony murder in violation of O.C.G.A. § 16-5-1 and simple battery in violation of O.C.G.A. § 16-5-23.1 . Smith v. State, 277 Ga. 95 , 586 S.E.2d 629 (2003).
Sufficient evidence supported a defendant's convictions for felony murder and possession of a firearm during the commission of a crime because, although another person actually attempted to rob the victim and delivered the fatal gunshot, the defendant gave the shooter cocaine to rob the victim and the handgun used in the crime. The defendant was therefore a party to the crime under O.C.G.A. § 16-2-20 . Nelson v. State, 285 Ga. 838 , 684 S.E.2d 613 (2009).
State proved that the defendant possessed the intent required to commit the predicate aggravated assault and conspiracy felonies for the felony murder conviction because evidence was sufficient to authorize a rational jury to conclude that the defendant, with a coparty and coconspirator, intended to rob the victim using a deadly weapon, that the victim was reasonably apprehensive of receiving a violent injury as a result of their intentional acts, and that the defendant was guilty beyond a reasonable doubt as a party to the crimes for which the defendant was convicted pursuant to O.C.G.A. § 16-2-2 . Johnson v. State, 289 Ga. 498 , 713 S.E.2d 376 (2011).
Trial court erred in granting the defendant's motion for new trial as the evidence was sufficient to find the defendant intentionally helped in the commission of the murder and related crimes and was a party to the offenses because the defendant brought the gun used to kill the victim; the defendant stood over the victim after the accomplice shot the victim at close range and made a statement indicating the defendant's approval of the shooting; and the defendant fled from the scene with the accomplice, leaving the victim for dead. State v. Jackson, 294 Ga. 9 , 748 S.E.2d 902 (2013).
Fact that the defendant was merely the driver and did not actually fire the gun did not undermine the legal sufficiency of the evidence since it showed that the defendant threatened the victim before the shooting, drove to the victim's apartment complex, approached the victim during the altercation with the co-defendant, and drove the co-defendant away; thus, one reasonably might infer that both men shared a criminal intent and there was sufficient evidence to find the defendant was a party to the crimes. Bryant v. State, 296 Ga. 456 , 769 S.E.2d 57 (2015).
Defendant's murder conviction as a party to a crime was supported by evidence permitting the jury to infer that the defendant was aware of the pistol the accomplice had and knew that the accomplice was going to use the gun to shoot the victims, including that the defendant agreed to drive the car while the accomplice sat in back with a pistol, the defendant stopped the car directly in front of the victims, and the defendant drove the accomplice from the scene and left the car to be picked up. McGruder v. State, 303 Ga. 588 , 814 S.E.2d 293 (2018).
Defendant's murder conviction was supported by evidence that the defendant was a party to the crime, O.C.G.A. § 16-2-20 , although the defendant's friend was the actual shooter, because the defendant drove the vehicle, confronted the victim, then drove the car away and then ran away with the shooter after crashing the car. Williams v. State, 307 Ga. 689 , 838 S.E.2d 314 (2020).
Party to voluntary manslaughter. - Evidence that the defendant supplied a car stocked with ammunition, accompanied others to the apartment in another car, remained parked outside while maintaining phone contact with the others after they went inside, and served as the getaway driver for a wounded individual was sufficient for a jury to find the defendant guilty beyond a reasonable doubt as a party to the crime of voluntary manslaughter. Platt v. State, 335 Ga. App. 49 , 778 S.E.2d 416 (2015).
Masterminding sufficient for murder conviction. - Evidence was sufficient to convict the defendant of murder, burglary, and related offenses in connection with the death of the victim, the defendant's daughter-in-law, as a party because, although the defendant correctly pointed out that there was no physical evidence linking the defendant to the murder, there was unequivocal testimony from two witnesses identifying the defendant as the mastermind of the victim's murder; and the victim's aunt, grandmother, and sister all testified at trial as to various statements the victim had made to them regarding the defendant's disapproval of the victim due to racial and cultural differences. Rai v. State, 297 Ga. 472 , 775 S.E.2d 129 (2015).
Death a foreseeable consequence of felony. - Evidence was sufficient to convict the defendant of felony murder and the other offenses, either directly or as a party to the accomplice's criminal conduct, because the defendant and the accomplice entered an apartment and took the victims' valuables; the accomplice told the defendant that they were going to have sex with two of the female victims and that they were then going to kill all the victims; a former United States Marine who was in the apartment shot at the defendant and the accomplice; the accomplice later died of the injuries the accomplice sustained; and the defendant could be convicted of felony murder as the death of the accomplice was a reasonably foreseeable result of their commission of a felony. Hill v. State, 297 Ga. 675 , 777 S.E.2d 460 (2015).
Evidence of co-perpetrator's acquittal not admissible. - Murder defendant was not entitled to a retrial at which evidence of the defendant's co-perpetrator's separate acquittal of the murder could be introduced; the defendant was not charged with aiding or abetting the acquitted co-perpetrator, but with the murder, and the state could make the state's case that the defendant was a party to that crime in any way, under O.C.G.A. § 16-2-20 . Davis v. State, 296 Ga. 126 , 765 S.E.2d 336 (2014).
Person was not an accomplice to murder since the person did not know who the intended victim was or when the attempt on the victim's life was to be made, and the person did not in any way participate in or encourage the murder. Kilgore v. State, 251 Ga. 291 , 305 S.E.2d 82 (1983).
Providing weapon sufficient. - Participation in mutual combat by providing a weapon to one of the other parties is sufficient to support a conviction for voluntary manslaughter as a party to the crime. Steele v. State, 216 Ga. App. 276 , 454 S.E.2d 590 (1995) (but see Kennebrew v. State, 1996 Ga. Lexis 917 (1996) and Davis v. State, 235 App. 256, 510 S.E.2D 537 (1998)).
Providing ammunition sufficient. - Providing ammunition for a weapon to a combatant, thereby enhancing the weapon's lethal capacity, was sufficient to support a voluntary manslaughter conviction. Mitchell v. State, 225 Ga. App. 26 , 482 S.E.2d 419 (1997).
Charge regarding O.C.G.A. § 16-2-20 warranted. - In a murder prosecution, the court did not err in charging the substance of O.C.G.A. § 16-2-20 where the evidence supported a finding that a codefendant fired the fatal shot, and that the defendant aided or abetted in the commission of the crime, or intentionally advised, encouraged, hired, counseled, or procured another to commit the crime. Rogers v. State, 251 Ga. 408 , 306 S.E.2d 652 (1983).
Evidence in case authorized court's charge concerning "parties to a crime." Ellis v. State, 168 Ga. App. 31 , 308 S.E.2d 45 (1983); Holland v. State, 205 Ga. App. 695 , 423 S.E.2d 694 (1992); Crumpton v. State, 213 Ga. App. 358 , 444 S.E.2d 847 (1994).
Evidence sufficient to authorize charge utilizing language of O.C.G.A. § 16-2-20 . King v. State, 168 Ga. App. 123 , 308 S.E.2d 240 (1983); Hildebrand v. State, 209 Ga. App. 507 , 433 S.E.2d 443 (1993).
Evidence sufficient for conviction of malice murder, unlawful possession of firearm during commission of crime, and criminal solicitation. - Evidence was sufficient to convict the defendant of malice murder, unlawful possession of a firearm during the commission of a crime, and criminal solicitation, either directly or as a party, because the victim was a drug dealer in the same area in which the defendant was also selling drugs; in late February 2006, the victim and the defendant were involved in an altercation that culminated in the victim slapping the defendant in the face; over the next few days, the defendant plotted against the victim and offered to pay several people to hurt the victim; around 2:30 on the morning of February 22, the defendant and an accomplice approached the victim; and the accomplice shot the victim in front of several witnesses. Gray v. State, 298 Ga. 885 , 785 S.E.2d 517 (2016), overruled on other grounds by Willis v. State, 304 Ga. 686 , 820 S.E.2d 640 (2018).
Evidence sufficient for participation in murder. - Defendant was guilty of murder and assault, as a participant to the crimes, when, after hearing at least five shots, defendant grabbed the black bag that usually held money, fumbled to unlock the door, left with the shooter, and there was evidence that defendant knew the shooter. Williams v. State, 262 Ga. 677 , 424 S.E.2d 624 (1993).
Evidence established more than the mere presence of the defendant during the commission of the offense of aggravated assault and felony murder predicated on aggravated assault: (1) the defendant assaulted the victim during the drive to the murder scene; (2) the defendant participated in a plot to burn the victim's body and stood lookout while the body was buried; (3) the defendant did not attempt to report the crime; and (4) the defendant watched as another person stabbed the victim before attempting to intervene. Navarrete v. State, 283 Ga. 156 , 656 S.E.2d 814 (2008), cert. denied, 129 S. Ct. 104 , 172 L. Ed. 2 d 33 (2008).
Based on the evidence, a juror could infer from the conduct of the defendant before and at the time of the shooting that the defendant advised, encouraged, and counseled the shooter to fire the fatal shot. The evidence was sufficient to authorize a juror to find beyond a reasonable doubt that the defendant was a party to the crimes of which the defendant was convicted. Brown v. State, 291 Ga. 887 , 734 S.E.2d 41 (2012).
Evidence was sufficient to convict the defendant of felony murder and other crimes involving the shooting and killing of the first victim and the shooting and injuring of the second and third victims as a party because the defendant and the shooter entered the second victim's home; the shooter started demanding money from those present; the defendant handed the shooter a revolver; the first victim struggled with the shooter for the gun, but the defendant pushed that victim down and the shooter shot and killed that victim; the shooter shot the second victim in the neck, severely wounding that victim; and the shooter shot the third victim grazing the side of that victim's head. Glover v. State, 296 Ga. 13 , 764 S.E.2d 826 (2014).
Celebrating with gang after shooting. - Jury could reasonably infer from the evidence that the defendant called the defendant's gang members to retrieve the defendant from an apartment where someone was threatening the defendant, as well as the defendant's celebrating with the gang that evening after the shooting, that the defendant was a party to the crime under O.C.G.A. § 16-2-20(b)(4) by advising, encouraging, counseling, or procuring others to commit the crime. Slaton v. State, 296 Ga. 122 , 765 S.E.2d 332 (2014).
Evidence sufficient to sustain conviction for felony-murder. - See Jones v. State, 253 Ga. 640 , 322 S.E.2d 877 (1984); Roberts v. State, 257 Ga. 180 , 356 S.E.2d 871 (1987); Lark v. State, 263 Ga. 573 , 436 S.E.2d 1 (1993); Royal v. State, 266 Ga. 165 , 465 S.E.2d 662 (1996).
In a prosecution for armed robbery, defendant was not entitled to a jury charge on lesser included offenses of theft by taking or robbery by intimidation where robberies were perpetrated by the use of a weapon in the possession of defendant's accomplice. Jones v. State, 233 Ga. App. 362 , 504 S.E.2d 259 (1998); Woods v. State, 232 Ga. App. 367 , 501 S.E.2d 832 (1998).
Sufficient evidence supported a felony murder conviction because ample evidence, including the defendant's admission, showed more than a mere presence at the crime scene, and that the defendant participated in the felony murder of the victim as a party to the crime while in the commission of an armed robbery. Moreover, the defendant did not have to fire the fatal shot in order to be guilty as a principal because the offense of felony murder was accomplished when a defendant caused the death of another human being while in the commission of the underlying felony. Curinton v. State, 283 Ga. 226 , 657 S.E.2d 824 (2008).
Sufficient evidence supported a felony murder conviction because ample evidence, including defendant's admission, showed more than a mere presence at the crime scene, and that the defendant participated in the felony murder of the victim as a party to the crime while in the commission of an armed robbery. Moreover, defendant did not have to fire the fatal shot in order to be guilty as a principal because the offense of felony murder was accomplished when a defendant caused the death of another human being while in the commission of the underlying felony. Curinton v. State, 283 Ga. 226 , 657 S.E.2d 824 (2008).
Defendants' convictions were supported by sufficient evidence because the jury was properly instructed on the law regarding parties to a crime and the eyewitness testimony and other evidence presented at trial was sufficient to authorize a rational jury to find both defendants guilty. Bighams v. State, 296 Ga. 267 , 765 S.E.2d 917 (2014).
Evidence was sufficient to convict the defendant as a party to two felony murders because the defendant admitted that the defendant thought there would be a fight between the first victim and the shooter, had driven the shooter to a residence where the shooter retrieved a sawed-off shotgun on the evening before the killings, and used a ruse to make the first victim come to the scene of the first victim's eventual death; and, even though the second victim was not an intended victim, as the intended victim was the shooter's wife, the evidence was sufficient for the jury to find beyond a reasonable doubt that the defendant was a party to the aggravated assault of the second victim under the doctrine of transferred intent. Cash v. State, 297 Ga. 859 , 778 S.E.2d 785 (2015), cert. denied, 137 S. Ct. 137 , 196 L. Ed. 2 d 106 (U.S. 2016).
Evidence was sufficient to convict the defendant as a party to felony murder while in the commission of armed robbery because the accomplice testified that the defendant approached the accomplice with a plan to rob the victim; the defendant went to New York, but remained in contact with the accomplice; during the robbery, the accomplice shot the victim three times in the back; the defendant told the accomplice not to contact the defendant after the robbery; and two inmates who were incarcerated with the defendant testified that the defendant told them the defendant planned the robbery and enlisted the accomplice to help the defendant. Harper v. State, 298 Ga. 158 , 780 S.E.2d 308 (2015).
Evidence was sufficient to convict the defendant of felony murder predicated on aggravated assault, attempted armed robbery, and the unlawful possession of a firearm during the commission of a felony as a party because the defendant devised a plan to rob the victim, enlisted the help of the codefendants, and the three men approached the victim with guns, but one of the codefendants shot the victim in the head, killing the victim, before the robbery could take place. Smith v. State, 298 Ga. 357 , 782 S.E.2d 26 (2016).
Sufficient evidence supported the defendant's convictions for felony murder and two aggravated assaults because, despite no eyewitness able to say who fired the shot that fatally wounded the victim, the defendant was among a group that fired at least three handguns, one of which fatally wounded the victim, and the state was not required to prove that the defendant personally fired the fatal shot so long as the state proved that the defendant was a party to the fatal shooting. Pyatt v. State, 298 Ga. 742 , 784 S.E.2d 759 (2016).
Sufficient evidence supported the defendant's convictions for felony murder because eyewitnesses placed the defendant at the scene of a confrontation as an armed member of a group which menaced the victim and fired at the victim; the defendant could therefore be convicted as a party to a crime under O.C.G.A. § 16-2-20(a) . Grant v. State, 298 Ga. 835 , 785 S.E.2d 285 (2016).
Felony murder during home invasion. - Evidence was sufficient to convict the defendant, as a party, of felony murder and related crimes in connection with a home invasion as the defendant was an active participant in the home invasion because the defendant, the first co-indictee, and the second co-indictee, all armed with firearms, approached the victim's home, kicked in the door, and confronted the victim, who fired a gun, hitting the first co-indictee in the side; the victim was fatally shot in the shootout that followed; in the ensuing investigation, the first and third co-indictees each gave recorded statements to law enforcement officers implicating the defendant in the crimes; and both the first and third co-indictees testified at trial as part of respective plea deals. Marshall v. State, 299 Ga. 825 , 792 S.E.2d 350 (2016).
Evidence was sufficient to convict the defendant as a party to felony murder and conspiracy to commit armed robbery because the defendant admitted at trial that the defendant was aware of the plan to rob the victim; and other evidence at trial showed that the defendant was with the co-indictees just before and shortly after the victim was killed, that the defendant and one of the co-indictees both expressed their intention to rob someone, and contacted the victim to arrange a purported drug deal, and that the defendant admitted that evening that the defendant and the co-indictees had planned and executed the attempted robbery that resulted in the victim's death. Cushenberry v. State, 300 Ga. 190 , 794 S.E.2d 165 (2016).
Defendant's conviction for felony murder in an armed robbery of a seller of hair (for hair weaves), although the defendant did not personally obtain or use a gun, was supported by evidence that the defendant planned the robbery and encouraged the others to assist the defendant; the defendant was therefore responsible, as a party to the crime and as a coconspirator, for the acts of the defendant's accomplices. Menzies v. State, 304 Ga. 156 , 816 S.E.2d 638 (2018).
Evidence sufficient for conviction of felony-murder, aggravated assault, and possession of a firearm during the commission of a crime. - See Burks v. State, 268 Ga. 504 , 491 S.E.2d 368 (1997).
Evidence sufficient for conviction of felony murder, aggravated assault, and burglary. - See Parks v. State, 272 Ga. 353 , 529 S.E.2d 127 (2000).
Evidence sufficient for conviction of felony murder, aggravated assault, false imprisonment, and theft by taking. - See Perkinson v. State, 273 Ga. 814 , 546 S.E.2d 501 (2001).
Evidence sufficient for conviction of malice murder, armed robbery, and hijacking. - See Eckman v. State, 274 Ga. 63 , 548 S.E.2d 310 (2001).
Evidence sufficient to sustain verdict of malice murder. - Proof of defendant's presence at shooting of victim, the use of defendant's gun, and defendant's fleeing were enough to sustain the guilty verdict of malice murder. Amerson v. State, 259 Ga. 484 , 384 S.E.2d 392 (1989).
Coconspirator's testimony concerning the defendant's involvement in the murder of the defendant's spouse, corroborated by the testimony of witnesses who overheard defendant's desire to have the defendant's spouse killed and by the tape-recorded statements of defendant was sufficient evidence of defendant's participation in the crime to permit a rational trier of fact to find the defendant guilty beyond a reasonable doubt of the malice murder of the defendant's spouse. Gambrel v. State, 260 Ga. 197 , 391 S.E.2d 406 (1990); Chapman v. State, 263 Ga. 393 , 435 S.E.2d 202 (1993).
Even assuming defendant did not fire any shots, there was sufficient evidence that defendant intentionally aided or abetted the commission of murder, or that defendant intentionally advised, encouraged, or procured another to commit murder. Mize v. State, 269 Ga. 646 , 501 S.E.2d 219 (1998), cert. denied, 525 U.S. 1078, 119 S. Ct. 817 , 142 L. Ed. 2 d 676 (1999).
Evidence was sufficient to convict the defendant of malice murder because the co-defendant was in the driver's seat of the vehicle and the defendant was in the passenger's seat; shots were fired from inside the car through the lowered passenger window; a witness saw the defendant holding a handgun out of the passenger window; the driver's side window was closed; the victim was fatally shot; the bullet removed from the victim was consistent with the .25 caliber shell casings found in the vehicle; and, even if the jury concluded that the co-defendant fired the handgun, there was ample evidence that the defendant was concerned in the commission of the murder and, thus, the defendant was legally culpable for the murder. Williams v. State, 296 Ga. 573 , 769 S.E.2d 318 (2015).
Evidence was sufficient to convict the defendant as a party to the crimes of malice murder, voluntary manslaughter, and aggravated assault, among other things, because the evidence showed that, during a drug deal and the subsequent shootings, the defendant was in the apartment and the defendant's blood was later found there; witnesses saw two men matching the defendant's and the codefendant's descriptions leaving quickly; ammunition of the type used to kill the victim was found in a car that was owned by the codefendant, with whom the defendant was living; and the defendant denied knowing any of the other defendants and fabricated a story that the defendant had been shot in a confrontation at a gas station. Dixon v. State, 298 Ga. 200 , 779 S.E.2d 290 (2015).
Evidence was sufficient to convict the defendant of malice murder and the unlawful possession of a firearm during the commission of a crime as a party because the defendant admitted to driving on the street when the shooter, one of the passengers, produced a gun and started shooting; the only evidence that any of the shots came from somewhere other than the defendant's vehicle was the defendant's own statement about the first shot, and the jury was free not to believe that claim; and the evidence showed that the defendant drove the shooter slowly past the crime scene, circled back, returned to the scene a second time, stopped before the shooting, and rapidly drove the shooter and another passenger away from the scene after the shooting. White v. State, 298 Ga. 416 , 782 S.E.2d 280 (2016).
Evidence was sufficient for the jury to conclude that the defendant committed malice murder either as the shooter or as a party to the crime because the evidence showed that the defendant came back to the first victim's home after visiting the first victim that day, pulled a gun on the victim and told the first victim to "give it up" after the first victim refused to sell the defendant drugs, restrained the first victim when the first victim attempted to run for the door, and left the first victim to die after the first victim was shot; and the defendant fled the country immediately after the crimes occurred. Coates v. State, Ga. , S.E.2d (Oct. 5, 2020).
Evidence sufficient for conviction of felony murder, armed robbery, kidnapping, and aggravated assault. - Following evidence was sufficient to support the defendant's convictions as a party or perpetrator of felony murder, armed robbery, kidnapping, and aggravated assault: (1) the defendant and two codefendants robbed four occupants of a duplex at gunpoint; (2) a codefendant hit a victim in the head with a gun; (3) the defendant and codefendants moved the victims into another room; and (4) a codefendant fatally shot a delivery person who entered the duplex. Henderson v. State, 285 Ga. 240 , 675 S.E.2d 28 (2009).
Evidence sufficient for felony murder, attempted armed robbery, and possession of firearm convictions. - Evidence was sufficient to convict the defendant as a party to felony murder, attempted armed robbery, and two counts of possession of a firearm during the commission of a crime because the defendant told the officer that the defendant and the co-indictee had planned to rob a cab driver; the defendant admitted to calling the cab company, dropping the co-indictee off at the location to which the cab had been summoned, and picking the co-indictee up at a nearby park after the robbery attempt; the defendant admitted knowing that the co-indictee was armed with a nine-millimeter gun; and shell casings recovered from the victim's cab were later determined by a firearms expert to have been fired from a gun found in the co-indictee's home. Drake v. State, 296 Ga. 286 , 766 S.E.2d 447 (2014).
Evidence insufficient to sustain conviction for felony murder. - In a felony murder case, the evidence was insufficient to support the defendant's conviction as a party to the crimes for which the defendant was found guilty because the state failed to elicit any evidence showing that the defendant was participating in the criminal scheme either before or during the actual commission of the crimes; there was no competent evidence that the defendant was present or otherwise involved in the planning or execution of the underlying drug transaction or subsequent shootings; and, at best, the evidence showed that the defendant was an accessory after the fact, which was a separate, substantive offense in the nature of obstruction of justice, and not a party to the crimes. Higuera-Guiterrez v. State, 298 Ga. 41 , 779 S.E.2d 288 (2015).
Instruction on simple assault as lesser included offense of felony murder. - Trial court erred in failing to instruct the jury on simple assault as a lesser-included offense of felony murder as the evidence authorized the jury to consider whether the defendant attempted to commit a violent injury on the victim or placed the victim in reasonable apprehension of immediately receiving a violent injury. Allaben v. State, 299 Ga. 253 , 787 S.E.2d 711 (2016).
Jury instruction on party to crime. - Trial court did not err by charging the jury on a party to a crime because, after the victim was shot and killed, the defendant and the accomplice fled the scene together, disposed of evidence together, hid together in an abandoned house; and both parties accused the other of shooting the victim. Coley v. State, 305 Ga. 658 , 827 S.E.2d 241 (2019).
Failure to give aiding and abetting instruction. - Appellant's claim of plain error based on an omission of a jury instruction failed, as did the related claim of ineffective assistance of counsel, because the appellant did not show that the jury likely would have reached a different verdict if the jury had been instructed that the jury could also find the appellant guilty if, for example, the appellant merely intentionally aided or encouraged another in the shooting. Jackson v. State, 306 Ga. 69 , 829 S.E.2d 142 (2019).
5. Other Crimes Against the Person
Evidence sufficient to support conviction for being party to crime of simple battery. Waddell v. State, 224 Ga. App. 172 , 480 S.E.2d 224 (1996).
In a prosecution for kidnapping with bodily injury, it was not necessary to prove that defendant actually touched the victim if the defendant aided and abetted the commission of the crime by acting as a lookout. Brown v. State, 224 Ga. App. 241 , 480 S.E.2d 276 (1997).
Evidence sufficient for conviction of armed robbery, kidnapping, false imprisonment, burglary, and aggravated assault with a deadly weapon. - Evidence was sufficient to sustain the defendant's convictions as a party to the offenses of armed robbery, kidnapping, false imprisonment, burglary, and aggravated assault with a deadly weapon, in violation of O.C.G.A. §§ 16-5-21 , 16-5-40 , 16-5-41 , 16-7-1 , and 16-8-41 , because: (1) the defendant received information from the defendant's love interest, about the victims' house, the location of safes, where money was located, and about the alarm system; (2) the day after the home invasion the defendant's love interest saw the defendant and the defendant showed the defendant's love interest a stack of cash, and said it might be the victim's money; and (3) an FBI informant met with the defendant and the defendant told the informant that the defendant had been shorted money from the robbery, and that the defendant got the layout of the house from the defendant's love interest. Pope v. State, 266 Ga. App. 658 , 598 S.E.2d 48 (2004).
Evidence sufficient to support conviction of murder, aggravated assault, and kidnapping. - Jury reasonably could have concluded from the evidence that the defendant was aware of the first victim's presence and of the victim's being threatened by the coconspirators at least by the time the trio arrived at their destination and there was ample evidence that the defendant conspired with the others to commit the felony of armed robbery and, thus, to support the defendant's convictions for murder, aggravated assault, and kidnapping as to the first victim. McLeod v. State, 297 Ga. 99 , 772 S.E.2d 641 (2015).
Evidence insufficient as party to armed robbery and aggravated assault. - First defendant's conviction and sentence for armed robbery of the first victim was reversed and the guilty verdicts for the aggravated assaults of the first victim were set aside as there was insufficient evidence proving the first defendant was a party to those crimes because, although the first defendant's cell phone was used to place a delivery order, the co-defendant placed the order and had the first defendant's phone when the first victim arrived at the abandoned residence; and, although the first victim identified the second defendant and the co-defendant from photographic line-ups as two of the perpetrators involved in the assault, the first victim was unable to identify the first defendant either during the investigation or at trial. Thomas v. State, 300 Ga. 433 , 796 S.E.2d 242 (2017).
Aggravated assault. - After defendant-A hijacked a victim's car at gunpoint, defendant-B's actions in punching the victim in the face while defendant-A waited in the car constituted aggravated assault, in violation of O.C.G.A. § 16-5-21(a)(1), as defendant-B aided and abetted the commission of the carjacking pursuant to O.C.G.A. § 16-2-20(b)(3) for purposes of the aggravated nature of the assault conviction. Johnson v. State, 279 Ga. App. 182 , 630 S.E.2d 778 (2006).
Aggravated assault convictions were upheld on appeal based on the defendant's act of deliberately firing a gun in the direction of another; moreover, the fact that one of the defendant's cohorts also fired a weapon in the direction of the shooting victims was sufficient for the defendant to be guilty as a party to said criminal acts. Thompson v. State, 281 Ga. App. 627 , 636 S.E.2d 779 (2006).
Evidence supported a conviction of aggravated assault with a knife when two codefendants repeatedly struck the victim, the defendant struck the victim and threatened the victim's life, the defendant and the first codefendant entered a pharmacy to buy duct tape, and while alone with the victim, the second codefendant held a knife on the victim where the second codefendant could reach the knife and where the victim could see the knife; this authorized the conclusion that the second codefendant committed aggravated assault and that the defendant was a party. Rhines v. State, 288 Ga. App. 128 , 653 S.E.2d 500 (2007).
Trial court properly convicted defendant for aggravated assault of a witness through the use of a knife as the evidence established that the defendant gave the codefendant a knife, which was used to search the witness for weapons and for money that the witness had and defendant then shared the spoils of the crimes with the codefendant. The evidence of events occurring before, during, and after the crime was sufficient to show that defendant was a party to the crime of aggravated assault. Duncan v. State, 283 Ga. 584 , 662 S.E.2d 122 (2008).
Evidence was sufficient to convict a defendant as a party to the crime of aggravated assault as the defendant did not have to possess the gun that was used and inferences gathered from the defendant's action in removing personal items from the trunk of the car before the victim was forced inside the trunk was sufficient to establish that the defendant was a party to the crime. Cornette v. State, 295 Ga. App. 877 , 673 S.E.2d 531 (2009).
Evidence was sufficient to support a defendant's convictions for aggravated assault because the defendant was involved with other members of a rap group in settling a previous altercation with a rival rap group, the defendant and others drove into an assigned park where the meeting was to be held, the defendant admitted to firing gunshots, and although others also had guns and fired shots, the defendant was liable under O.C.G.A. § 16-2-20 for injuries and a death to bystanders; the defendant could not assert self-defense under O.C.G.A. § 16-3-21(b)(3) because the defendant was the aggressor. Taylor v. State, 296 Ga. App. 212 , 674 S.E.2d 81 (2009).
Evidence that the defendant entered the victim's vehicle with the co-defendant for the purpose of purchasing marijuana, struggled with the victim over the bag of marijuana while the co-defendant hit the victim with the gun, took the victim's cell phone and threatened that the co-defendant would bust the victim, and then fled with the co-defendant, was sufficient for the jury to find that the defendant was a party to the crime of aggravated assault of the victim. Pride v. State, Ga. App. , S.E.2d (Oct. 1, 2020).
Party to false imprisonment and aggravated assault. - In the defendant's aggravated assault and false imprisonment trial arising out of the defendant's and the defendant's brother's beating of a marijuana dealer with a handgun, whether the defendant knew that the defendant's brother was going to steal the marijuana was not relevant; regardless of whether the defendant knew that the defendant's brother was going to steal the marijuana, the defendant actively participated in the false imprisonment and beating of the victim and was responsible as a party. Gonzalez v. State, 350 Ga. App. 297 , 829 S.E.2d 385 (2019).
Conviction based upon transferred intent. - Evidence was sufficient for a rational trier of fact to find that the defendant was a party to the crime of aggravated assault under the doctrine of transferred intent as, even though another individual shot the victim, the defendant participated in the gun fight that wounded the unintended victim. Jones v. State, 292 Ga. 656 , 740 S.E.2d 590 (2013).
Evidence was sufficient to convict the defendant as a party to the crime of the aggravated assaults of the two victims because the jury could have concluded that the defendant accompanied the others to a house with the intent to invade a rival gang's neighborhood and that the defendant brought a gun in a black bag for that purpose; the co-defendants and other witnesses testified that the defendant had a gun at the time of the shooting, supporting an inference that the defendant displayed the gun, even if the defendant did not shoot the gun; and, after the shooting, the defendant came into the house, wiping off a gun. Taylor v. State, 331 Ga. App. 577 , 771 S.E.2d 224 (2015).
Evidence sufficient as party to armed robbery and aggravated assault. - Evidence was sufficient to convict the defendant of armed robbery and aggravated assault with a deadly weapon as a party to the crimes because a codefendant pointed a gun at the victim's side and demanded money; the codefendant told the defendant that they were going to kill the victim; the codefendant took the victim's cell phone, ordered the victim to disrobe, and raped the victim in the front seat of the car; during the rape, the victim could not escape from the car as the defendant was standing in front of the driver's door; and, after the victim transferred the victim's number to a new cell phone, the victim received calls for the defendant. Carter v. State, 339 Ga. App. 140 , 793 S.E.2d 459 (2016).
Party to kidnapping. - Based on the evidence provided by a codefendant that: (1) the defendant and others severely beat the victim over a drug debt; (2) the victim wanted a ride back to a bar, but the codefendants would not allow it; (3) the defendant's former love interest testified that the defendant admitted to killing the victim; and (4) the State introduced similar transaction evidence that the defendant stood by while a codefendant savagely beat another person, the defendant's kidnapping conviction was upheld on appeal and the jury was authorized to find that the victim was involuntarily held, and that the defendant was a party to that crime. Reagan v. State, 281 Ga. App. 708 , 637 S.E.2d 113 (2006).
Party to rape. - Rape conviction is proper even though a defendant does not have sexual intercourse with the victim if the evidence shows that the defendant held down the victim while defendant's companions raped the victim. Ceaser v. State, 184 Ga. App. 599 , 362 S.E.2d 156 (1987).
Jury could find the defendant guilty of rape as a party because the defendant did not object when the codefendant had carnal knowledge of the victim in defendant's presence. Cole v. State, 279 Ga. App. 219 , 630 S.E.2d 817 (2006).
Defendant was properly convicted of being a party to rape under O.C.G.A. §§ 16-2-20 and 16-6-1(a)(1), because evidence that the defendant knew that the defendant's 11-year-old child was being raped, told the child to lie to investigators, failed to prevent the rapist from having contact with the child, helped the rapist get out of jail, and allowed the rapist to move in with the defendant and the child showed that the defendant affirmatively encouraged and was a party to the rapes. Johnson v. State, 283 Ga. App. 99 , 640 S.E.2d 644 (2006).
In the defendants' joint trial for rape, murder, and other crimes against three separate victims, the evidence supported the felony murder verdict against one defendant because witnesses placed the defendants together prior to the murder, text messages on the defendant's phone discussed robbing the victim, and the defendant fled the state after the murder; but the evidence as to the rape merely placed the defendant at the scene, requiring reversal. Thomas v. State, 300 Ga. 433 , 796 S.E.2d 242 (2017).
Motion for directed verdict on aggravated sodomy charge properly denied. - Denial of a motion for a directed verdict on a charge of aggravated sodomy was proper because the defendant and the codefendant sexually assaulted three victims during an armed robbery, including one instance in which the defendant and the codefendant took turns raping one victim, and the aggravated sodomy was committed during the sexual assaults; the jury could reasonably find that the defendant and the codefendant had a common criminal intent to commit the sexual assaults and the defendant could be found guilty of the act performed by the codefendant. Coley v. State, 272 Ga. App. 446 , 612 S.E.2d 608 (2005).
Charge not warranted. - There was no evidence to support a charge on O.C.G.A. § 16-2-20(b)(2), (4), and contrary to the defendant's contention, the failure to charge the jury on these subsections was proper, where the victim of an aggravated assault had seen only the defendant prior to the moment when the victim was shot, but had seen a second individual at the scene and had not actually seen the defendant with the gun, but only heard it cock. Waddell v. State, 277 Ga. App. 772 , 627 S.E.2d 840 , cert. denied, 127 S. Ct. 731 , 549 U.S. 1081, 166 L. Ed. 2 d 567 (2006).
In a prosecution for aggravated assault, the trial court did not err in denying the defendant's requested jury instruction on a "parties to a crime" issue, as the overall jury charge the trial court gave, which included the applicable portions of the pattern instruction on parties to a crime, and generally tracked the statutory language of O.C.G.A. § 16-2-20 , as well as the entire pattern instruction on "mere presence," substantially covered the principles necessary. Morales v. State, 281 Ga. App. 18 , 635 S.E.2d 325 (2006).
Evidence sufficient for participation in false imprisonment. - Jury was authorized to find that the defendant was a party to the crime of false imprisonment, and the conviction was affirmed, since the evidence demonstrated that the defendant, along with two other codefendants, took an active role in confining and/or detaining the victims; the victims testified that the defendant was positioned at the foot of their bed, participated in tying the victims up, and, despite the defendant's claim that the defendant was a reluctant participant acting out of fear, that the defendant never seemed afraid or intimidated. Adcock v. State, 269 Ga. App. 9 , 603 S.E.2d 340 (2004).
Evidence sufficient for participation in sexual assault. - Evidence was sufficient to support a juvenile court's finding that a minor had committed aggravated assault under O.C.G.A. § 16-5-21 because the evidence showed that the minor blocked the victim's flight, assisted the friend in pushing the victim into the bedroom, and committed sexual battery, all while the friend remained armed with the gun that the friend had pointed at the victim's head; the defendant could be convicted under O.C.G.A. § 16-2-20 . In the Interest of A.J., 273 Ga. App. 51 , 614 S.E.2d 159 (2005).
Evidence was sufficient to authorize the jury to find the appellant guilty of sexual battery as a party to the crime because the evidence showed that the appellant, together with several co-indictees, planned and executed the armed robbery and burglary, that the appellant acted as a driver and lookout while the others directly participated in those crimes, and that one co-conspirator committed a sexual battery while in the victims' home. Cisneros v. State, 299 Ga. 841 , 792 S.E.2d 326 (2016).
Evidence sufficient for participation in aggravated assault. - In a case involving a defendant's cohort shooting a man at a gas station, the evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt as a party to the crime of aggravated assault with a deadly weapon and possession of a firearm during the commission of a felony since the evidence showed that the defendant willingly drove the cohort to the gas station, waited in a stolen truck while armed with an assault rifle as the cohort pulled the victim out of the victim's car and then shot the victim, and then rescued the injured cohort and fled the police; the defendant's criminal intent was properly inferred from the defendant's conduct before, during, and after the commission of the crime. McClendon v. State, 287 Ga. App. 238 , 651 S.E.2d 165 (2007).
Sufficient evidence existed to support the defendant's convictions for armed robbery and aggravated assault based on the victims' testimony that guns were used in the commission of the crimes, the testimony of the defendant's girlfriend and the presence of a cell phone found near the scene of the crimes, and the victims identifying the defendant's accent was sufficient for the jury to infer that the defendant was an armed participant in the crimes. Jordan v. State, 320 Ga. App. 265 , 739 S.E.2d 743 (2013).
Evidence was sufficient to convict the defendant of aggravated assault and a violation of the Georgia Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-1 et seq., because various gang members including the defendant's brother and their associate were on the dance floor flashing gang hand signs and dancing roughly, purposefully bumping into other club patrons, and an altercation ensued; the defendant's brother struck the victim in the back of the victim's head with a beer bottle; the defendant's associate and several others struck the victim and punched the victim in the head; when the victim walked toward the exit door, the defendant hit the victim across the face with a bottle; and the victim was taken by ambulance to a hospital. Dowdell v. State, 325 Ga. App. 593 , 754 S.E.2d 383 (2014).
Robbery and aggravated assault did not merge. - Because an attempted armed robbery began when the defendant kicked down the victim's door, entered the victim's home with a firearm, and demanded that the victim give it up, and continued as the victim and a co-defendant struggled outside; after the victim was able to run away, the co-defendant shot the victim twice; the robbery and aggravated assault were separate offenses and did not merge. Cuyler v. State, 344 Ga. App. 532 , 811 S.E.2d 42 (2018), cert. denied, No. S18C0874, 2018 Ga. LEXIS 482 (Ga. 2018).
Evidence sufficient for participation in battery, aggravated assault, kidnapping, and other offenses. - Defendant's convictions for simple battery, aggravated assault, aggravated battery, and kidnapping with a bodily injury were supported by sufficient evidence as the evidence showed that the defendant helped the codefendant tie up the victim, kicked the victim, and helped the codefendant zip the victim into a sleeping bag and load the victim into the back of the codefendant's pickup truck. Thus, the defendant was criminally responsible under O.C.G.A. § 16-2-20(a) as a party to the crimes. Wilkinson v. State, 298 Ga. App. 190 , 679 S.E.2d 766 (2009).
Evidence insufficient to support finding of participation in false imprisonment and robbery. - With regard to a jail escape wherein the night jailer was overtaken by at least two inmates, the defendants' convictions for false imprisonment and robbery were reversed on appeal as the state failed to present evidence that either intentionally advised, encouraged, hired, counseled, or procured anyone to commit the crimes since the state presented evidence that only two inmates attacked the night jailer, none of which included the defendants. Under the circumstances presented, the state failed to present evidence which excluded every other reasonable hypothesis save that of the defendants' guilt. Shearin v. State, 293 Ga. App. 794 , 668 S.E.2d 300 (2008).
Evidence insufficient to support finding of participation in aggravated assault case. - Evidence that the defendant drove a codefendant away from the crime scene in a subdivision after the codefendant shot the victim and that a box of bullets was found in the defendant's car when the defendant was later arrested did not support the defendant's convictions of aggravated assault and of possession of a firearm during the commission of a felony. Defendant's possession of a box of bullets of the same caliber as those used in the murder weapon in no way proved the defendant's possession of the weapon during the commission of the assault; driving the codefendant away with knowledge that the codefendant had committed the crime did not, in and of itself, render the defendant guilty as a party to the crime under O.C.G.A. § 16-2-20 ; and to the extent that the evidence that the defendant's car had been parked at some point with the car's front end facing in the direction going out of the subdivision constituted circumstantial evidence of guilt, the evidence did not exclude every other reasonable hypothesis, as required by former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6 ). Ratana v. State, 297 Ga. App. 747 , 678 S.E.2d 193 (2009).
Evidence was insufficient to convict the defendant of aggravated assault as a party because there was no evidence in the record to show that the defendant knew that the grandfather was likely to respond to the defendant's initial cries for help by firing a shot, or that the defendant's cries intentionally encouraged the grandfather to discharge the single shot actually fired; and, although the defendant's exclamation after the single shot was fired could be interpreted as an expression of encouragement or incitement, it was made after the grandfather's already completed act of firing a revolver near the officers, which was the act that formed the basis of the indictment against both the defendant and the grandfather. Hoglen v. State, 336 Ga. App. 471 , 784 S.E.2d 832 (2016).
Evidence sufficient to support conviction of kidnapping and hijacking. - There was ample evidence from which the jury could have concluded that the defendant was more than "merely present" when defendant's cohorts committed the offenses of kidnapping and hijacking a motor vehicle since: (1) the defendant made no attempt to distance self from the hijacking while it was occurring and did not offer the victim any help whatsoever after a coperpetrator pulled a gun on the victim; and (2) there was evidence that the defendant drove the stolen vehicle for a full month before defendant was finally arrested, remained with an associate for some time after the hijacking, made a concerted effort to hide the vehicle's true identity and lied to an officer about the vehicle's ownership. Williams v. State, 236 Ga. App. 790 , 513 S.E.2d 757 (1999).
Evidence sufficient for conviction of aggravated assault. - See Glore v. State, 241 Ga. App. 646 , 526 S.E.2d 630 (1999), overruled on other grounds, Miller v. State, 285 Ga. 285 , 676 S.E.2d 173 (2009); Johnson v. State, 276 Ga. 368 , 578 S.E.2d 885 (2003).
Evidence supported defendant's conviction for aggravated assault under O.C.G.A. § 16-2-20 as: (1) defendant and the codefendant tried to convince a victim to participate in a fake armed robbery; (2) defendant told the victim that they would take the bullets out of the gun if it would make the victim feel better; (3) defendant watched over the victim while the codefendant retrieved the gun; (4) defendant informed the victim that the victim would not get hurt if the victim cooperated with codefendant; and (5) defendant left in the car with codefendant. Broome v. State, 273 Ga. App. 273 , 614 S.E.2d 807 (2005).
Defendant's conviction as a party for aggravated assault and aggravated battery was affirmed as: (1) the defendant drove a car knowing a gun was inside; (2) the defendant extinguished the headlights and drove slowly past a crowded corner as a passenger opened fire; (3) the defendant stopped the car next to a prone victim while the passenger continued shooting; and (4) the defendant told the police that the defendant did not care who had been shot. Ford v. State, 280 Ga. App. 580 , 634 S.E.2d 522 (2006).
Jury was entitled to find the defendant guilty of aggravated assault, charged in the indictment "with the intent to rob," based on the corroboration of the defendant's admission to going on a "lick," which meant to go find someone to rob, and that the defendant knew what a passenger was going to do when that passenger reached out of the car window in an attempt to snatch the elderly victim's purse, resulting in the victim being struck by the car and falling to the ground; hence, the trial court did not err in denying the defendant's amended motion for a new trial. Jackson v. State, 281 Ga. App. 506 , 636 S.E.2d 694 (2006).
In a late-evening robbery of a pizzeria, the evidence was sufficient to convict the defendants of one count of aggravated assault when the second defendant struck one of the employees with brass knuckles because the jury was authorized to find that brass knuckles qualified, at a minimum, as an object, device, or instrumentality that was likely to cause serious bodily injury; and the first defendant was party to the second defendant's use of the brass knuckles against the employee. Hughes v. State, 345 Ga. App. 107 , 812 S.E.2d 363 (2018).
In a late-evening robbery of a pizzeria, the evidence was sufficient to convict the defendants of two counts of aggravated assault when the first defendant pointed a firearm at two store employees as a jury could thus infer that the defendants' acts placed both employees in reasonable apprehension of receiving a violent injury because the first employee testified that the act of pointing the gun at the first employee, along with the verbal threats made by the assailants, caused the first employee to fear that the first employee would be injured or killed; the second employee noted that the first defendant asked about no one wanting to die; and the second defendant aided and abetted the first defendant in committing the offenses. Hughes v. State, 345 Ga. App. 107 , 812 S.E.2d 363 (2018).
Evidence was sufficient to convict the defendant of aggravated assault because the aggravated assault statute, O.C.G.A. § 16-5-21 , did not require that the defendant point a deadly weapon directly at the second victim to be guilty of aggravated assault against the victim, but merely that the defendant used the deadly weapon in such manner as to place another in reasonable apprehension of immediately receiving a violent injury; the second victim was in reasonable apprehension of immediately receiving a violent injury when the defendant pulled a gun on the first victim; and the jury was authorized to find the defendant guilty of aggravated assault of the second victim as a party to the crime. Coates v. State, Ga. , S.E.2d (Oct. 5, 2020).
Evidence sufficient as party to armed robbery. - Sufficient evidence supported the defendant's conviction for armed robbery based on the victim identifying the defendant as the person who hit the victim on the head, an accomplice's testimony, the victim's car keys were found in a bag that the defendant had been holding when stopped by an officer, and the defendant fled from the officers when the officers attempted to arrest the defendant. Brooks v. State, 323 Ga. App. 681 , 747 S.E.2d 688 (2013).
Sufficient evidence supported defendant's convictions as a party to the crimes of armed robbery, aggravated assault against the manager and cashier, and possession of a firearm during the commission of the armed robbery because the law allowed defendant to be charged with and convicted of the same offenses as co-defendant since the evidence showed that defendant drove co-defendant to the fast food restaurant that was robbed and waited as the getaway driver. Broyard v. State, 325 Ga. App. 794 , 755 S.E.2d 36 (2014).
There was sufficient evidence to support the defendant's conviction for armed robbery as a party to a crime given evidence that the defendant drove the vehicle with three other occupants to the site of the robbery, that there were four black masks for the four men, that the defendant hid a shotgun and showed police where to find the shotgun, and that the defendant was found one street over from the robbery site and was the only person in the area. Clemente v. State, 331 Ga. App. 84 , 769 S.E.2d 790 (2015).
Evidence was sufficient to convict the defendant of the four armed robberies as a party as the accomplice testified that the robberies were executed pursuant to a plan orchestrated and aided by the defendant; the accomplice never pointed the weapon at the defendant, nor demanded the defendant's property; and, although the defendant had successfully fled the property, the defendant circled back to the residence - while the accomplice was still there - and attempted to steal electronic equipment. Styles v. State, 329 Ga. App. 143 , 764 S.E.2d 166 (2014).
Defendant's argument that the evidence was insufficient to support the defendant's armed robbery and felony murder convictions because only the codefendant used a gun was rejected because the defendant was a party to the crime under O.C.G.A. § 16-2-20 , and the defendant also pretended that the defendant's cellphone was a gun, satisfying O.C.G.A. § 16-8-41(a) 's language of "device having the appearance of such weapon." Butts v. State, 297 Ga. 766 , 778 S.E.2d 205 (2015).
When the defendant was convicted of armed robbery and possession of a firearm during the commission of a felony, the evidence was sufficient to convict the defendant as a party to the crimes as the state showed that the defendant was quickly found by police while driving a car containing the possessions of the victim who had been robbed by two armed men. Demps v. State, 337 Ga. App. 657 , 788 S.E.2d 525 (2016).
Evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that the appellants were at least parties to the crimes of which the appellants were convicted because the evidence showed that the appellants were present in Room 160 for the discussion with three other defendants about robbing the drug dealer in Room 161; thus, the jury could reasonably infer that all the appellants acted with a shared criminal intent to rob the victims at gunpoint. Stewart v. State, 299 Ga. 622 , 791 S.E.2d 61 (2016).
Defendants were properly convicted of being parties to the crime of attempted armed robbery of one of the victims and the aggravated assault of another victim because a drug dealer had lured the victim/buyers to an isolated area to rob them of the drug money, and the defendants, armed, stood by the car and shot into the car at the dealer's command. Menefee v. State, 301 Ga. 505 , 801 S.E.2d 782 (2017).
Evidence was sufficient to convict the defendants of two counts of armed robbery because the first defendant was in possession of a firearm when the first defendant entered the pizzeria; and the first defendant used that weapon to demand cash from one employee and the cell phone of a second employee, both of which were then taken; and because the second defendant was a party to those offenses as the second defendant directed the getaway driver to purchase the Halloween mask that was used during the robbery; the second defendant participated in demanding money from the employees and took the cell phone of one of the employees; and the second defendant admitted to the driver moments later that the defendants had robbed the pizzeria. Hughes v. State, 345 Ga. App. 107 , 812 S.E.2d 363 (2018).
Evidence was sufficient to convict the defendant of armed robbery as a party to the offense and to find that the defendant did not abandon the defendant's effort to commit the crime prior to the crime's completion because, although the defendant told police that the defendant begged off from the robbery at the last moment, the defendant helped plan the robbery of the bank, provided the guns used in the robbery, dropped the accomplices off near the bank so that the accomplices could rob the bank, waited at the gas station knowing the robbery was taking place, and then followed the accomplices as the accomplices fled after taking the money. Birdsong v. State, 353 Ga. App. 316 , 836 S.E.2d 232 (2019).
Evidence was sufficient to support the defendant's conviction of attempted armed robbery as a party to the crime because there was evidence apart from the accomplice's testimony from which the jury could have inferred that the defendant was a participant, including evidence that multiple witnesses identified the defendant as part of the group that approached the second victim with the accomplice pointing a gun at the second victim, the second victim testified that the defendant directed an associate to check the second victim's pockets or socks, and after the group was unable to obtain anything from the second victim, they went in the direction of the first victim. Daniels v. State, 306 Ga. 559 , 832 S.E.2d 372 (2019).
Evidence sufficient for aggravated assault on a police officer. - Fact that the defendant did not fire a gun used by another defendant to shoot a police officer did not preclude the defendant's conviction for aggravated assault on a peace officer; the defendant was with the other defendant in a truck when the officer was shot and drove the truck from the scene of the crime. Grace v. State, 210 Ga. App. 718 , 437 S.E.2d 485 (1993); Shorter v. State, 239 Ga. App. 625 , 521 S.E.2d 684 (1999).
Evidence sufficient to convict for hijacking. - Victim's testimony as to defendant's hijacking of the victim's car with the aid of defendant's accomplice, the arresting officer's testimony as to how the officer spotted defendant and the stolen vehicle minutes after hearing a police dispatch report, and the testimony of the detective who interrogated the accomplice all sufficiently corroborated the testimony of the accomplice at trial. Boykin v. State, 264 Ga. App. 836 , 592 S.E.2d 426 (2003).
6. Property Offenses
Evidence was sufficient to convict the defendant of insurance fraud as the defendant, an attorney, aided the client in making a false or fraudulent written statement for the purpose of procuring or attempting to procure the payment of a false claim because, even though the defendant knew that the client's loan on the property had been paid off on August 4, 2006, at the closing, the defendant nonetheless filed the client's signed proof of loss statement with the client's insurer on December 8, 2008, in which the client falsely claimed a loss of approximately $118,000 under the insurance policy. Sallee v. State, 329 Ga. App. 612 , 765 S.E.2d 758 (2014), cert. denied, 136 S. Ct. 199 , 193 L. Ed. 2 d 128 (U.S. 2015).
Evidence sufficient for conviction of shoplifting. - See Carter v. State, 188 Ga. App. 464 , 373 S.E.2d 277 (1988); Watson v. State, 214 Ga. App. 645 , 448 S.E.2d 752 (1994); Brown v. State, 228 Ga. App. 281 , 491 S.E.2d 488 (1997); Butler v. State, 240 Ga. App. 559 , 524 S.E.2d 251 (1999); Stewart v. State, 243 Ga. App. 860 , 534 S.E.2d 544 (2000).
Evidence was sufficient to support the appellant's conviction as a party to the crime of violating O.C.G.A. § 40-6-395(a) for fleeing and eluding because the appellant testified and admitted shoplifting, admitted to having a prior record of shoplifting, had only recently been released from prison, and that getting caught on the day of the events would be a parole violation that would send the appellant back to prison. McNeely v. State, 296 Ga. 422 , 768 S.E.2d 751 (2015).
Accepting stolen goods and harboring robbers. - Evidence that the defendant, who was convicted of armed robbery but who did not "directly commit" the offense and was not present at the crime, accepted stolen coins and attempted to hide the robbery participants was constitutionally insufficient to support a conviction. Tenner v. Wallace, 615 F. Supp. 40 (S.D. Ga. 1985).
Evidence sufficient to support robbery conviction. - Even if the defendant did not ever have physical possession of the money bag, there was sufficient evidence to support a robbery conviction under O.C.G.A. § 16-2-20 as: (1) after a struggle, the victim's money bag was taken by an assailant wearing a sweatshirt; (2) the victim identified the truck used in the robbery, the money bag, and the sweatshirt worn by the assailant; (3) the truck fled from police and then the suspects fled on foot; (4) defendant and codefendant were apprehended after a foot chase; and (5) the money bag was found in a nearby bush. Robertson v. State, 277 Ga. App. 231 , 626 S.E.2d 206 (2006).
Appeals court rejected a contention that the defendant lacked any prior knowledge that the defendant's vehicle was being used to commit armed robberies, and that at most, the evidence could only characterize defendant as an accessory after the fact and not a party to the crime, given that the state's evidence tended to show that the codefendant informed the defendant for the first time that the codefendant had just committed an armed robbery using the car and convinced the defendant to call the police and lie about the car being stolen, all within three minutes after said robbery occurred; further, an additional robbery was committed using the car after the defendant reported it stolen. Lee v. State, 281 Ga. App. 479 , 636 S.E.2d 547 (2006).
Evidence was sufficient to convict defendant of aiding and abetting a burglary because, knowing that her husband and another person were removing portable items from the home of an unknown person, she asked her husband to take specific items from the victim's home. Green v. State, 301 Ga. App. 866 , 689 S.E.2d 132 (2010).
Rational trier of fact was authorized to find the defendant guilty beyond a reasonable doubt of being a party to the crime of robbery in violation of O.C.G.A. §§ 16-2-20 and 16-8-40 because the defendant's admission that the defendant was present at the scene of the robbery, in conjunction with the defendant's possession of the recently stolen item, which the jury could find was unsatisfactorily explained by defendant, was sufficient to support the defendant's robbery conviction; the jury was entitled to reject the defendant's version of events because although the defendant contended that defendant's videotaped police interview and defendant's trial testimony created a reasonable hypothesis of innocence, defendant's interview and trial testimony were not consistent with one another in all material respects, and defendant's statements also were inconsistent with the testimony of the pursuing patrol officers. Boggs v. State, 304 Ga. App. 698 , 697 S.E.2d 843 (2010).
Evidence was sufficient to allow the jury to find all defendants guilty of armed robbery beyond a reasonable doubt because the victim testified that one of the defendants had a knife during the attack and that all three defendants struck and kicked the victim while taking the victim's necklaces and money. Cruz v. State, 305 Ga. App. 805 , 700 S.E.2d 631 (2010).
Trial court did not err in finding that similar transaction evidence was relevant and admissible because the evidence showed that the defendant was involved in the planning and/or execution of each of the similar transactions pursuant to O.C.G.A. § 16-2-20 , even if the defendant was not the actual perpetrator of the crime; given that the defendant was identified as an active participant in individual crimes that were part of this continuing criminal enterprise, and that the defendant's possession of a ring stolen from a car salesperson further demonstrated the involvement in the crime spree, the jury was authorized to find that the defendant committed the independent offenses or acts as either an actual perpetrator or as a party to the crimes. Walker v. State, 310 Ga. App. 223 , 713 S.E.2d 413 (2011).
Party to armed robbery. - The defendant was a party to armed robbery, at a minimum, even though defendant was unarmed, where defendant's participation with codefendants in a violent argument with the victim resulted in the victim being shot and killed by a codefendant, after which the defendant left the scene with the codefendants in the victim's car. Hudson v. State, 234 Ga. App. 895 , 508 S.E.2d 682 (1998).
Evidence was sufficient to support defendant's conviction for armed robbery under O.C.G.A. §§ 16-8-41(a) , 16-2-20(a) , and 16-2-20(b)(3) because defendant: (1) flagged the victims down; (2) was present during the crime; (3) fled with an accomplice; and (4) was apprehended while in the company of the accomplice. Furthermore, defendant could not argue on appeal that defendant was a mere bystander, surprised by the crime when defendant testified at trial that a crime never occurred. Lowery v. State, 264 Ga. App. 655 , 592 S.E.2d 102 (2003).
Evidence supported defendant's conviction for robbery as a party under O.C.G.A. § 16-2-20(a) as it was defendant's idea to rob a store; the statements of defendant's three accomplices corroborated each other and there was additional evidence to corroborate those statements, including defendant's admissions that the defendant entered the store to see how many people were inside and reported it to the others and that the defendant divided the proceeds and kept a portion personally. Moore v. State, 274 Ga. App. 432 , 618 S.E.2d 122 (2005).
Because: (1) the testimony of the defendant's two accomplices adequately described the defendant's involvement in an armed robbery of a restaurant; (2) the defendant later told one cohort not to speak if caught; (3) the same handgun that the defendant used in the prior and subsequent robberies was used to rob the restaurant; and (4) all three robberies were performed in the same manner and on the same day, sufficient evidence was presented to support the defendant's armed robbery conviction as a party to the crime. Boone v. State, 282 Ga. App. 67 , 637 S.E.2d 795 (2006).
Evidence overwhelmingly established that a defendant was a party to an armed robbery; the defendant made inculpatory admissions at trial, the defendant met the physical description given by witnesses, and the gun and proceeds from the armed robbery were on the defendant's person when the defendant was arrested. Hawkins v. State, 292 Ga. App. 76 , 663 S.E.2d 406 (2008).
While a defendant was assaulting and raping a victim at gunpoint, the defendant's accomplice was robbing the residence. As the defendant was legally responsible for the acts of the accomplice under O.C.G.A. § 16-2-20 , the evidence was sufficient to convict the defendant of armed robbery. Williams v. State, 295 Ga. App. 9 , 670 S.E.2d 828 (2008).
In an armed robbery case, as the victim identified the defendant as the driver of a car and the codefendant as the passenger who robbed the victim at gunpoint, and the pistol used in the robbery was found in the car's locked glove compartment, to which only the defendant had the key, the evidence was sufficient to establish that the defendant aided and abetted the codefendant in the robbery under O.C.G.A. § 16-2-20 and sufficiently corroborated the codefendant's accomplice testimony under former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8 ). Bailey v. State, 295 Ga. App. 480 , 672 S.E.2d 450 (2009).
Evidence that a defendant discussed robbing a store, drove two robbers there, drove the getaway car evasively while being chased by police, fled after crashing the car, and took a share of the stolen money was sufficient to convict the defendant of armed robbery as a party under O.C.G.A. § 16-2-20(a) . Dorsey v. State, 297 Ga. App. 268 , 676 S.E.2d 890 (2009).
Evidence was sufficient to support the defendant's conviction for armed robbery because an accomplice testified to committing a series of armed robberies and that the defendant had participated by selecting the stores to rob, supplying the gun, acting as the getaway driver, and receiving part of the stolen money; law enforcement officers testified that the accomplice implicated the defendant during an interrogation, and officers found items of clothing matching those worn by the armed robber in the defendant's hotel room. Williams v. State, 314 Ga. App. 840 , 726 S.E.2d 66 (2012).
Evidence sufficient for conviction of theft by receiving and possessing firearm during crime. - While an assailant pointed a handgun to the victim's neck, the defendant and another assailant held and searched the victim and took the victim's cell phone and cash; the armed assailant, who had stolen the handgun, displayed the handgun to the others before the crimes were committed. Under O.C.G.A. § 16-2-20 , the evidence was sufficient to convict defendant as an accomplice of theft by receiving and possession of a firearm during the commission of a crime. Simpson v. State, 293 Ga. App. 760 , 668 S.E.2d 451 (2008).
Possession of burglary tools by one conspirator is possession by all. - When two or more persons enter into a conspiracy to commit burglary, and in attempting to carry out such felonious design either of the people have possession of burglary tools, such possession is the possession of all, and each is guilty of a violation of O.C.G.A. § 16-7-20 , prohibiting and punishing the possession of such tools. Solomon v. State, 180 Ga. App. 636 , 350 S.E.2d 35 (1986).
Merger of multiple counts of possession of firearm during commission of crime. - Trial court properly refused to merge the two arms possession counts for sentencing purposes because those charges were based on the defendants' possession of two guns during the burglary; the acts were separate crimes involving multiple defendants, separate crimes for which each defendant bore individual responsibility as either a principal or an accessory. Dunbar v. State, 273 Ga. App. 29 , 614 S.E.2d 472 (2005).
Variance in indictment and proof at trial was not fatal. - Defendant's convictions were upheld on appeal because a variance in the indictment and the proof at trial was not fatal: (1) the names subject to the alleged variance in fact referred to the same person; and (2) the testimony of a codefendant, when combined with the defendant's post-arrest admissions, sufficiently proved the defendant's commission of an armed robbery and possession of a firearm during the commission of a crime as a party to the crimes. Brown v. State, 289 Ga. App. 421 , 657 S.E.2d 322 (2008).
Evidence sufficient for participation in robbery. - Jury was authorized to infer from defendant's physical position during the robbery, defendant's flight with the robbers immediately afterward, and defendant's attempt to hide from the police that defendant was a participant in the crime and not merely a bystander. Cummings v. State, 227 Ga. App. 564 , 489 S.E.2d 370 (1997).
Finding that defendant aided and abetted in the crimes of aggravated assault, kidnapping, and armed robbery was shown by evidence that defendant supplied the suggested target, the weapon, and transportation, and by defendant's admission to discussing the robbery with an accomplice. Howard v. State, 230 Ga. App. 437 , 496 S.E.2d 532 (1998).
Defendant's participation in armed robbery was shown by evidence that defendant was present during discussion of the robbery, called to confirm that victim was home, and benefited from the proceeds. Brown v. State, 233 Ga. App. 195 , 504 S.E.2d 35 (1998).
Evidence supported the defendant's convictions as a party to robbery by intimidation and false imprisonment as the defendant lured the victim to the defendant's apartment where the codefendant struck the victim in the back of the head and robbed the victim at gunpoint. Smith v. State, 269 Ga. App. 133 , 603 S.E.2d 445 (2004).
Despite the defendant's claim of innocence, convictions for armed robbery and two counts of aggravated assault were upheld on appeal, given sufficient evidence showing that the defendant waited at the scene of the robbery and then assisted the codefendants in an attempted escape; hence, the defendant was not entitled to a directed verdict of acquittal and the state was not required to exclude every reasonable hypothesis except guilt, as required by former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6 ). Jordan v. State, 281 Ga. App. 419 , 636 S.E.2d 151 (2006).
As the evidence provided by the state at defendants' criminal trial demonstrated that based on information from defendant-B regarding a large quantity of marijuana possessed by a victim, defendant-A and another man forcibly entered the victim's residence while defendant-A was armed, pushed the victim to the ground, demanded to know where the marijuana was, and a physical struggle resulted, the evidence supported defendants' convictions for burglary, armed robbery, and aggravated assault; defendant-B was convicted as a party to the crimes under O.C.G.A. § 16-2-20(4). Garland v. State, 283 Ga. App. 622 , 642 S.E.2d 320 (2007), rev'd on other grounds, 282 Ga. 201 , 657 S.E.2d 842 (2008).
In a case where four persons riding in a stolen car robbed a cab driver at gunpoint, the evidence was sufficient to sustain the defendant's convictions as a party to the crimes of armed robbery and possession of a weapon during the commission of a crime; the defendant led a detective to the gun the defendant possessed and admitted being in the stolen vehicle on the date in question, and a witness testified that the witness saw the defendant holding a gun and approaching the cab driver. Jones v. State, 285 Ga. App. 866 , 648 S.E.2d 183 (2007).
Evidence sufficient for participation in burglary. - Evidence was sufficient to show that defendant was actively involved in a common scheme with others to secure money with which to buy illegal drugs; that defendant knew or should have known that the criminal acts were being committed; that defendant actively participated in the burglary; that defendant failed to prevent or to render aid after the remaining crimes; and that defendant enthusiastically shared in the proceeds resulting from the criminal acts. Peppers v. State, 242 Ga. App. 416 , 530 S.E.2d 34 (2000).
Evidence that the defendant had driven the defendant's son to a home that was burglarized, was waiting by the side of the road for the defendant's son to return, and received numerous calls from the defendant's son while an officer stopped to talk to the defendant, was sufficient to convict the defendant for being a party to the crime of burglary under O.C.G.A. §§ 16-2-20 and 16-7-1(b) . Wise v. State, 325 Ga. App. 377 , 752 S.E.2d 628 (2013).
Evidence sufficient for participation in armed robbery. - There was sufficient evidence to show that defendant aided, abetted, advised, and counseled the codefendants in the commission of the crimes against the victim. It made no difference that defendant was not the one who shot the victim as the state only needed to prove that defendant was acting in concert with the others. Arrington v. State, 244 Ga. App. 529 , 536 S.E.2d 212 (2000).
Evidence that defendant devised a plan for another person to rob a store, advised and encouraged that other person, provided the other person with a weapon, and aided the other person in the commission of the crimes was sufficient to support defendant's conviction of aggravated assault and criminal attempt to commit armed robbery. Davis v. State, 249 Ga. App. 579 , 548 S.E.2d 678 (2001).
Evidence sufficient for participation in armed robbery and kidnapping. - Because the defendant participated in a carjacking, drove the victim's car from the scene of a murder, asked the defendant's love interest to lie about the defendant's whereabouts, and lied repeatedly to the police about what happened, a jury was free to conclude that the defendant participated in an armed robbery and kidnapping as an accomplice under O.C.G.A. §§ 16-2-20 , 16-5-40(a) , and 16-8-41(a) ; thus, the trial court did not err in denying a directed verdict. Owens v. State, 263 Ga. App. 478 , 588 S.E.2d 265 (2003).
Evidence sufficient for participation in robbery by snatching. - Sufficient evidence supported the defendant's conviction for robbery by snatching under O.C.G.A. § 16-8-40(a) as: (1) the evidence was sufficient to convict the codefendant of the same crime, so it was sufficient to convict defendant as a party to that crime, under O.C.G.A. § 16-2-20(b)(3); and (2) the claim that no one saw the defendant with the victim's wallet or with the codefendant was inapposite as the victim saw the two of them in the same vicinity simultaneously. Barker v. State, 275 Ga. App. 213 , 620 S.E.2d 457 (2005).
Evidence that the defendant intentionally struck the victim with a stick and that either the defendant or one of the other parties to the assault intentionally struck the victim with their fists and a concrete block supported an aggravated assault conviction; further, although the victim was the only person who testified about having been hit with a concrete block, and was not sure which of the attackers struck that blow, this testimony was sufficient to establish that the victim was hit with a concrete block because it made no difference whether an accomplice, and not the defendant, assaulted the victim in the manner alleged in the indictment. Oliver v. State, 278 Ga. App. 425 , 629 S.E.2d 63 (2006).
Defendant's motion for a new trial on the defendant's aggravated assault and possession of a firearm during the aggravated assault charges was properly denied as the defendant's actions before, during, and after a friend's aggravated assault and firearm possession crimes at a home showed not only that the defendant was a party to those crimes, but that the defendant was a fellow conspirator in the assault against the victim as the defendant: (1) forced the victim at gunpoint to drive to the home; (2) stayed in the nearby living room while the friend shot a gun and threatened the victim (and defendant looked into the bedroom after the gun was fired); (3) accompanied the friend and the handcuffed the victim in the vehicle following the incident while the friend searched for the victim's love interest's residence; (4) encouraged the friend to kill the victim; and (5) did not protest any of the friend's actions throughout the evening. Sapp v. State, 280 Ga. App. 592 , 634 S.E.2d 523 (2006).
Evidence sufficient for participation in armed robbery, aggravated assault, and other offenses. - There was sufficient evidence to support a defendant's convictions of armed robbery, aggravated assault, burglary, false imprisonment, and possession of a firearm during the commission of a felony when the state showed that the defendant intentionally aided and abetted a home invasion in which the home was burglarized and the homeowner's teenage child was detained and robbed by use of a handgun. Even in the absence of evidence sufficient to show that the defendant directly committed the charged offenses, there was sufficient evidence that the defendant was a party to the offenses in that the defendant and a person armed with a gun loaded a truck with property stolen from the home during the two-hour home invasion, the defendant was present speaking with the armed person during the home invasion, and the defendant confirmed that the child was home alone. Whitley v. State, 293 Ga. App. 605 , 667 S.E.2d 447 (2008).
Evidence sufficient for participation in home invasion robbery. - Although a defendant's accomplice in a home invasion robbery was the one who beat and choked the victim, left the victim for dead, and set the house on fire to conceal the evidence, causing the unconscious victim to die of smoke inhalation, the defendant helped plan the robbery, was aware that the accomplice was choking the victim, took the victim's wallet and disposed of the wallet, and returned to see the burning house. Accordingly, the defendant was a party to the crimes under O.C.G.A. § 16-2-20 . Cooper v. State, 286 Ga. 66 , 685 S.E.2d 285 (2009).
Evidence insufficient to support finding of participation in receiving stolen property. - Defendant's adjudication as delinquent for committing theft by receiving stolen property, a motor vehicle, was reversed on appeal since there was no evidence that the defendant ever possessed or controlled the car under O.C.G.A. § 16-8-7(a) or affirmatively acted as a party to the crime under O.C.G.A. § 16-2-20 . The defendant's mere presence as a passenger in the vehicle and the presence of a gasoline tank in the back seat where the defendant was observed sitting was insufficient to support any finding of guilt. In the Interest of J.Q.W., 288 Ga. App. 444 , 654 S.E.2d 424 (2007).
Evidence sufficient for conviction of arson. - See Moak v. State, 222 Ga. App. 36 , 473 S.E.2d 576 (1996).
Evidence sufficient to sustain conviction for burglary. - See Stokes v. State, 232 Ga. App. 232 , 501 S.E.2d 599 (1998); Dunn v. State, 245 Ga. App. 847 , 539 S.E.2d 198 (2000).
Because defendant's statement was sufficiently corroborated by evidence that a bullet from the 9 mm handgun in the defendant's possession killed the victim, and by defendant's admission to both being involved in the commission and planning of the robbery of the victim, sufficient evidence existed to find the defendant guilty as a party to the crime of burglary beyond a reasonable doubt. Valentine v. State, 289 Ga. App. 60 , 656 S.E.2d 208 (2007).
Evidence was sufficient to convict the defendant of burglary as a party because, pursuant to a plan the defendant designed, the defendant gained entry into the residence, then assisted the accomplice's unauthorized entry by returning to the door, peering outside where the accomplice was staged with a gun and mask, then leaving that door ajar for the accomplice's unauthorized entry, and, seconds later, the accomplice abruptly entered through that door, taking money and property from the other individuals present by use of a gun. Styles v. State, 329 Ga. App. 143 , 764 S.E.2d 166 (2014).
Evidence sufficient to sustain conviction for attempted burglary. - While mere presence at the scene of a crime is not sufficient evidence to convict one of being a party to a crime, criminal intent may be inferred from presence, companionship, and conduct before, during and after the offense; thus, the evidence was sufficient to show that the defendant, who was convicted of attempted burglary under O.C.G.A. §§ 16-4-1 and 16-7-1 , had the intent to rob the sawmill in question. The defendant and others set out early on a Saturday and entered the property in an unusual way; and the defendant drove the getaway truck, lied to police, and failed to produce a flashlight when asked to empty the defendant's pockets. Armour v. State, 292 Ga. App. 111 , 663 S.E.2d 367 (2008).
With regard to the defendant's conviction for attempted burglary, sufficient evidence supported the conviction because the jury evaluated the nature of the circumstances of the morning's events, as well as the daughter's eyewitness testimony identifying the defendant and, although the defendant explained that it was mistakenly the wrong house, the jury was authorized to come to a different and reasonable conclusion based on the state's case. White v. State, 323 Ga. App. 660 , 744 S.E.2d 857 (2013).
Evidence was insufficient to support burglary convictions because the state failed to show that defendant participated in an on-going burglary and presented no witnesses connecting the defendant to any conspiracy existing when the burglaries occurred. Crumpton v. State, 240 Ga. App. 422 , 523 S.E.2d 624 (1999).
False statements and writings. - Dismissal of an indictment for the use of false certificates was not required on the basis that defendant did not submit the certificates personally but only provided them to others who submitted them to a state department. State v. Johnson, 269 Ga. 370 , 499 S.E.2d 56 (1998).
Presenter of check not an accomplice. - Uttering element was established by sufficient evidence that the defendant's friend presented the check to a bank for cashing at the defendant's behest; trial court properly charged the jury on the corroboration requirement for accomplice testimony even though the jury determined that the friend was not an accomplice. King v. State, 277 Ga. App. 190 , 626 S.E.2d 161 (2006).
Evidence sufficient to support conviction of forgery. - See Hunt v. State, 244 Ga. App. 578 , 536 S.E.2d 251 (2000).
Evidence sufficient for conviction of theft by conversion. - When the defendant routinely purchased property under his wife's name, the jury was authorized to conclude that the conversion which defendant was instrumental in performing was for his use. Furthermore, the evidence of defendant's conduct before, during, and after the conversion was sufficient to enable the jury to find beyond a reasonable doubt that he was a party to the codefendant's conversion of the victims' funds. Cochran v. State, 204 Ga. App. 602 , 420 S.E.2d 32 , cert. denied, 204 Ga. App. 921 , 420 S.E.2d 32 (1992).
Evidence sufficient to show defendant's involvement in armed robbery. - Evidence was sufficient since the evidence established that the defendant was involved in the initial plan to commit armed robbery at the victim's residence, the defendant furnished the defendant's weapon, mask, and gloves to one of the coperpetrators, remained at the car awaiting the return of the perpetrators and the anticipated fruits of the armed robbery, and thereafter, did not reveal the commission of the offenses to law enforcement. Dunn v. State, 248 Ga. App. 223 , 546 S.E.2d 27 (2001).
Evidence sufficient to sustain conviction for armed robbery. - See Scott v. State, 166 Ga. App. 240 , 304 S.E.2d 89 (1983); Smith v. State, 255 Ga. 654 , 341 S.E.2d 5 (1986); Stowers v. State, 205 Ga. App. 518 , 422 S.E.2d 870 (1992), cert. denied, 205 Ga. App. 901 , 422 S.E.2d 870 (1992); Ridings v. State, 226 Ga. App. 155 , 486 S.E.2d 378 (1997); Collins v. State, 229 Ga. App. 210 , 493 S.E.2d 592 (1997); Cantrell v. State, 230 Ga. App. 693 , 498 S.E.2d 90 (1998); Tucker v. State, 231 Ga. App. 210 , 498 S.E.2d 774 (1998); Nealy v. State, 239 Ga. App. 651 , 522 S.E.2d 34 (1999); Hemphill v. State, 242 Ga. App. 751 , 531 S.E.2d 150 (2000).
Although the evidence was circumstantial, a rational trier of fact could have found proof of defendant's guilt beyond a reasonable doubt where the defendant's explanation of new found wealth was that after having discussed robbing UPS and failing to report to work, defendant woke up at UPS in the codefendant's car with a large sum of money. Bailey v. State, 203 Ga. App. 133 , 416 S.E.2d 151 (1992).
Defendant was properly convicted for armed robbery, where, though defendant might not have had knowledge that defendant's accomplices intended to use a weapon to perpetrate the offense, defendant had nonetheless masterminded the plan while leaving to the accomplices the manner in which they would extract money from the victim. Crawford v. State, 210 Ga. App. 36 , 435 S.E.2d 64 (1993).
Evidence was sufficient to show that defendant either directly committed or was a party to the crime of armed robbery. McGhee v. State, 229 Ga. App. 10 , 492 S.E.2d 904 (1997).
By helping a coconspirator plan an armed robbery, providing the coconspirator with a gun for that purpose, and sharing in the proceeds of the robbery, the defendant was a party to the crime of armed robbery and the evidence therefore was sufficient to support a conviction of that offense. Short v. State, 234 Ga. App. 633 , 507 S.E.2d 514 (1998).
Identification of defendant by the victim and the store clerk, and the documents defendant left in the store during escape, clearly supported a finding that defendant was in recent possession of the money orders stolen at gunpoint and was sufficient for an armed robbery conviction. Thomas v. State, 256 Ga. App. 712 , 569 S.E.2d 620 (2002).
Evidence sufficient for conviction of armed robbery and possession of a firearm during the commission of a felony. - See Green v. State, 233 Ga. App. 87 , 503 S.E.2d 339 (1998).
Two intruders entered a house through a window, threatened the occupants with handguns, and stole items from the house. As circumstantial evidence established that the defendant drove the get-away vehicle, the defendant was properly convicted as a party to armed robbery, burglary, and possession of a firearm during the commission of a burglary. Olds v. State, 293 Ga. App. 884 , 668 S.E.2d 485 (2008).
Evidence sufficient for conviction as party to armed robbery. - Testimony from the defendant's former cellmate that the defendant admitted identifying the victim as a robbery target, rode to the victim's house in a stolen vehicle, called the others involved during the robbery and met them after they fled, and later burned the vehicle with the others, and cell phone records showing the defendant's locations at the time of the offenses was sufficient to support the defendant's convictions as a party to the charged offenses. Heard v. State, Ga. , 844 S.E.2d 791 (2020).
Various offenses chargeable from participation in armed robbery. - Defendant was concerned in the commission of armed robbery, aggravated assault, false imprisonment and possession of a firearm during the commission of a crime, where the evidence showed the victim saw the defendant after being shot for the third time, was lethally threatened by the defendant and victim pled with the defendant throughout the course of the ordeal. Vincent v. State, 210 Ga. App. 6 , 435 S.E.2d 222 (1993), aff'd, 264 Ga. 234 , 442 S.E.2d 748 (1994).
Evidence sufficient to support finding that defendant was party to automobile theft. - See Golden v. State, 176 Ga. App. 412 , 336 S.E.2d 332 (1985).
Defendant's own custodial statement, in which defendant admitted to driving the follow-up vehicle away from the scene of the robbery, emptying and sorting out the contents of the victim's purse, and knowing about the replacement of the stolen vehicle's tag served both to corroborate the custodial statement of codefendant and to connect the appellant with the crime. Marlow v. State, 207 Ga. App. 269 , 427 S.E.2d 600 (1993).
Party to the crime of entering an automobile with intent to commit theft. - Evidence was sufficient to convict a defendant of theft in violation of O.C.G.A. § 16-8-18 as a party to the crime under O.C.G.A. § 16-2-20 , given that the defendant drove the defendant's truck to a pharmacy, waited with the truck idling while the defendant's friend got out, smashed a car window, and stole a purse, then drove away with the friend and hid the friend at the defendant's apartment when the police came. Rinks v. State, 313 Ga. App. 37 , 718 S.E.2d 359 (2011).
Evidence insufficient to support conviction of theft by taking. - Because the evidence presented at trial did not exclude the reasonable hypothesis that the driver had stolen the truck without defendant's knowledge or participation prior to the time defendant started riding around in the truck, defendant's conviction for theft by taking the truck was insupportable as a matter of law. Grant v. State, 227 Ga. App. 243 , 488 S.E.2d 763 (1997).
Evidence insufficient for theft by taking by housekeeper. - Jury was authorized to find from the evidence that the defendant was guilty beyond a reasonable doubt of theft by taking, O.C.G.A. § 16-8-2 , as a party to the crime under O.C.G.A. § 16-2-20 because evidence that another house cleaner could have taken the money would not necessarily have precluded a finding of the defendant's guilt. Cookston v. State, 309 Ga. App. 708 , 710 S.E.2d 900 (2011).
Evidence sufficient to show defendant was party to theft of services. - Because sufficient evidence supported the defendant's theft of services conviction, as such permitted the jury to infer that: (1) by paying a store clerk $50 to access another credit application in order to provide the defendant with a cell phone, the defendant encouraged, hired, or procured the store clerk to engage in deception; and (2) the defendant did not intend to pay for the communications services received as a result. Jones v. State, 285 Ga. App. 822 , 648 S.E.2d 133 (2007).
Evidence insufficient to support conviction for receiving stolen property. - When all evidence indicated that the defendant was simply along for the ride in a stolen van, and evidence was lacking that the defendant ever possessed or controlled the van or affirmatively acted as a party to the crime, adjudication of delinquency for theft by receiving stolen property was erroneous. In re C.W., 226 Ga. App. 30 , 485 S.E.2d 561 (1997); Harris v. State, 247 Ga. App. 41 , 543 S.E.2d 75 (2000).
Defendant's adjudication as delinquent for committing theft by receiving stolen property, a motor vehicle, was reversed on appeal since there was no evidence that the defendant ever possessed or controlled the car under O.C.G.A. § 16-8-7(a) or affirmatively acted as a party to the crime under O.C.G.A. § 16-2-20 . The defendant's mere presence as a passenger in the vehicle and the presence of a gasoline tank in the back seat where the defendant was observed sitting was insufficient to support any finding of guilt. In the Interest of J.Q.W., 288 Ga. App. 444 , 654 S.E.2d 424 (2007).
Defendant's conviction for theft by receiving stolen property was reversed as there was no evidence that the defendant ever possessed or controlled the stolen car, or affirmatively acted as a party to the crime, since the state only presented the police officers' general statements that based on conversations with the suspects, the officers believed they were linked to the vehicle, that the defendant had given the officers a false name, and that the suspects were wearing wet clothing, which might have indicated that they attempted to hide from the officers; there was no evidence that the steering column was damaged, that the car was driven without keys, that the defendant had stolen property in defendant's possession, or that the defendant admitted doubts as to the car's ownership. Morgan v. State, 280 Ga. App. 646 , 634 S.E.2d 818 (2006).
Evidence sufficient as party to attempted robbery. - Evidence that the defendant stated a desire and intention to procure money for one of the defendant's children, drove an accomplice to the area of the robbery, drove the getaway car, fled erratically, failed to tell police the defendant's accomplice had been shot and was in the truck, and misled police about the defendant's relationship with the accomplice was sufficient for the jury to find the defendant guilty as a party to the crime of attempted robbery. Robinson v. State, 298 Ga. 455 , 782 S.E.2d 657 (2016).
OPINIONS OF THE ATTORNEY GENERAL
Corporate agent who aids or abets principal in commission of crime is a party. - Where corporate agent has either committed offense in all its elements and particulars or has intentionally aided or abetted the corporate principal in commission of crime in all its particulars and elements, the corporate agent is a party to the offense and punishable as such. 1970 Op. Att'y Gen. No. 70-155.
RESEARCH REFERENCES
Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, § 176 et seq.
C.J.S. - 22 C.J.S., Criminal Law: Substantive Principles, § 166.
ALR. - Criminal responsibility of one cooperating in offense which he is incapable of committing personally, 5 A.L.R. 782 ; 74 A.L.R. 1110 ; 131 A.L.R. 1322 .
Individual criminal responsibility of officer or employee for larceny or embezzlement, through corporate act, of property of third person, 33 A.L.R. 787 .
Penal or criminal liability as affected by defendant's employment of an independent contractor, 55 A.L.R. 642 .
Criminal responsibility of one who furnishes instrumentality of a kind ordinarily used for legitimate purposes, with knowledge that it is to be used by another for criminal purposes, 108 A.L.R. 331 .
Homicide by companion of defendant while attempting to escape from scene of crime as murder in first degree, 108 A.L.R. 847 .
Who other than actor is liable for manslaughter, 95 A.L.R.2d 175.
Offense of aiding and abetting illegal possession of drugs or narcotics, 47 A.L.R.3d 1239.
Acquittal of principal, or his conviction of lesser degree of offense, as affecting prosecution of accessory, or aider and abettor, 9 A.L.R.4th 972.
Sufficiency of evidence to establish criminal participation by individual involved in gang fight or assault, 24 A.L.R.4th 243.
Criminal liability for death of another as result of accused's attempt to kill self or assist another's suicide, 40 A.L.R.4th 702.
Prosecution of female as principal for rape, 67 A.L.R.4th 1127.
Criminality of act of directing to, or recommending, source from which illicit drugs may be purchased, 34 A.L.R.5th 125.
16-2-21. Prosecution of parties who did not directly commit the crime.
Any party to a crime who did not directly commit the crime may be indicted, tried, convicted, and punished for commission of the crime upon proof that the crime was committed and that he was a party thereto, although the person claimed to have directly committed the crime has not been prosecuted or convicted, has been convicted of a different crime or degree of crime, or is not amenable to justice or has been acquitted.
(Code 1933, § 26-802, enacted by Ga. L. 1968, p. 1249, § 1.)
Law reviews. - For note discussing organized crime in Georgia with respect to the application of state gambling laws, and suggesting proposals for combatting organized crime, see 7 Ga. St. B. J. 124 (1970).
JUDICIAL DECISIONS
Identity of all participants not prerequisite to conviction of one participant. - One may be found guilty of a crime committed by more than one person even though identity of other participants is known Sabel v. State, 248 Ga. 10 , 282 S.E.2d 61 , cert. denied, 454 U.S. 973, 102 S. Ct. 524 , 70 L. Ed. 2 d 393 (1981), overruled on other grounds, Pruitt v. Keenan, 264 Ga. 279 , 443 S.E.2d 842 (1994).
Indictment not required to allege party status. - Indictment's failure to allege that a defendant was a party to aggravated assault, aggravated battery, and first-degree child cruelty under O.C.G.A. §§ 16-5-21(a) , 16-5-24(a) , and 16-5-70(b) did not require a showing that the defendant was the principal perpetrator under O.C.G.A. § 16-2-21 ; the defendant's status as a party to the crimes was not an essential element used to increase the sentences for the crimes, and the trial court did not err in instructing the jury that the defendant could be convicted either as the principal perpetrator of the crimes or as a party thereto. Hill v. State, 282 Ga. App. 743 , 639 S.E.2d 637 (2006).
Contrary to a defendant's argument, the state was not required to indicate in the defendant's armed robbery indictment that the defendant was being charged as a party to that crime; O.C.G.A. § 16-2-21 required only that the defendant be indicted, convicted, and punished for the armed robbery upon proof that the defendant was in fact a party to the crime. Byrum v. State, 282 Ga. 608 , 652 S.E.2d 557 (2007).
Sufficiency of indictment. - Trial court erred in quashing an indictment for counts of residential mortgage fraud, in violation of O.C.G.A. § 16-8-102 , and counts of felony theft by deception, in violation of O.C.G.A. § 16-8-3 , because each count was sufficient to charge each of the named defendants as either the actual perpetrator or as a party to the crime pursuant to O.C.G.A. §§ 16-2-20(a) and 16-2-21 . State v. Corhen, 306 Ga. App. 495 , 700 S.E.2d 912 (2010).
Acquittal of one party does not bar separate, distinct prosecution and conviction of another party. Eades v. State, 232 Ga. 735 , 208 S.E.2d 791 (1974).
Acquittal of defendant's wife on the same charges does not affect the validity of the defendant's convictions for armed robbery and possession of a firearm during commission of a felony. Worthy v. State, 180 Ga. App. 506 , 349 S.E.2d 529 (1986).
While the acquittal of the principals could be introduced as some evidence that the defendant did not aid, abet, or encourage any crime of child molestation or cruelty to children, it did not preclude defendant from being indicted, tried, convicted or punished for commission of the crime. State v. Roberts, 234 Ga. App. 522 , 507 S.E.2d 194 (1998).
Conspiracy need not be alleged in the indictment. Brooks v. State, 169 Ga. App. 543 , 314 S.E.2d 115 (1984).
Accessory after the fact is not a party to the crime under O.C.G.A. § 16-2-21 , but the act constitutes the separate offense of obstruction of justice under O.C.G.A. § 16-10-24 . Martinez v. State, 222 Ga. App. 497 , 474 S.E.2d 708 (1996); Crumpton v. State, 240 Ga. App. 422 , 523 S.E.2d 624 (1999); Stewart v. State, 243 Ga. App. 860 , 534 S.E.2d 544 (2000).
Effect of equal access to drugs, where ownership not shown. - When the state did not show the indicia giving rise to a presumption of ownership or exclusive control of a vehicle, no presumption arose and, therefore, there was no triggering of the equal access defense, but by showing circumstantially that each of the defendants had equal access to the drugs, the state was able to support the state's theory that all of the defendants were parties to the crime and thus guilty of joint constructive possession of the drugs. Castillo v. State, 166 Ga. App. 817 , 305 S.E.2d 629 (1983).
When codefendant pleads to lesser offense. - Court did not err in failing to quash indictments for murder on the grounds that a codefendant is permitted to plead to the lesser offense of conspiracy. Owens v. State, 251 Ga. 313 , 305 S.E.2d 102 (1983).
When numerous people are concerned in crime, language of section may be charged. - By virtue of former Code 1933, §§ 26-801 and 26-802 (see O.C.G.A. §§ 16-2-20 and 16-2-21 ), when evidence in a criminal case shows that two or more persons were concerned in the commission of an alleged crime, it is not harmful error for the trial court to charge in the language of these provisions or to charge the jury on the law of conspiracy. Battle v. State, 231 Ga. 501 , 202 S.E.2d 449 (1973); Holland v. State, 205 Ga. App. 695 , 423 S.E.2d 694 (1992).
Convicted felon in possession of a firearm who furnishes it to another for the purpose of shooting a third person may be found guilty of felony murder even though the trigger-man is found guilty of malice murder. Whitehead v. State, 255 Ga. 526 , 340 S.E.2d 885 (1986).
Evidence showing acquittal of codefendant held admissible. - Defendant could introduce in trial as an alleged aider and abettor a certified copy of the indictment, plea, and verdict showing that the codefendant, the alleged principal, had been acquitted. White v. State, 257 Ga. 236 , 356 S.E.2d 875 (1987).
When the defendants were charged in accusation with directly committing specific acts of shoplifting, but neither was specifically accused of being a party to the other's commission of the offense, there was no error in charging the jury under O.C.G.A. § 16-2-21 . Jenkins v. State, 172 Ga. App. 715 , 324 S.E.2d 491 (1984).
Inference that defendant participated in tampering with evidence. - When the defense to a tampering with evidence charge was that no one saw the defendant pull up and destroy marijuana plants, but police officers saw the defendant on the property with the plants, advised the defendant not to remove the plants, returned in two hours to find the plants missing, and saw no one else around the premises at either time, the jury could reasonably infer that the defendant at the very least participated in the destruction and that in itself would justify conviction. Parrish v. State, 182 Ga. App. 247 , 355 S.E.2d 682 (1987).
Defendant who admitted being party to armed robbery entitled to instruction on defense of coercion. - Defendant who had admitted the elements of armed robbery as a party to the crime, O.C.G.A. § 16-2-21 , and who testified that defendant committed such acts because a codefendant pointed a gun at the defendant and threatened to shoot the defendant or defendant's family was entitled to a jury charge on coercion under O.C.G.A. § 16-3-26 , and the trial court erred in failing to so instruct the jury even in the absence of a request by the defendant. Mathis v. State, 299 Ga. App. 831 , 684 S.E.2d 6 (2009).
Requested jury instruction not warranted. - Because the defendant was neither indicted nor tried for felony obstruction of justice, the court did not err in refusing to give the requested charge that an accomplice was one who was present at the commission of a crime, aiding and abetting the perpetrator, or an accessory before the fact; moreover, the court's own charge, which included pattern charges on parties to a crime, knowledge, mere presence at the scene of a crime, and mere association with others committing a crime, substantially covered the same legal principles as the requested charge. Buruca v. State, 278 Ga. App. 650 , 629 S.E.2d 438 (2006).
Trial court did not err by refusing to charge the jury on the affirmative defense of self-defense with regard to defendant's trial for aggravated assault and criminal trespass as the evidence did not support such a charge as the record established that the victim was sitting in a vehicle when defendant struck the victim in the head with a pipe, causing serious injury, and defendant had to leave defendant's home to do the act, which was leaving a place of safety. Burnette v. State, 291 Ga. App. 504 , 662 S.E.2d 272 (2008), overruled on other grounds by McClure v. State, 306 Ga. 856 , 834 S.E.2d 96 (2019).
Trial court properly denied a requested instruction on "accessory after the fact." The defendant was not charged with being an accessory, and the trial court fully charged the jury on parties to a crime, mere presence, mere association, intent, and knowledge. Daugherty v. State, 291 Ga. App. 541 , 662 S.E.2d 318 (2008), cert. denied, No. S08C1587, 2008 Ga. LEXIS 792 (Ga. 2008).
Trial court did not err by failing to give the defendant's requested charges on mere presence and party to the crime because the trial court substantially covered all of the relevant legal principles relating to mere presence, mere association, and parties to a crime. Allen v. State, 288 Ga. 263 , 702 S.E.2d 869 (2010).
Jury instruction on accessory after fact not warranted. - In an armed robbery prosecution, defense counsel was not deficient in not requesting jury charges on the law of abandonment and accessory after-the-fact as there was no evidence that the defendant abandoned the crime before an overt act occurred, or that the defendant was an accessory after the fact rather than a party to the robbery. Bihlear v. State, 295 Ga. App. 486 , 672 S.E.2d 459 (2009).
Jury instruction supported by evidence. - Trial court did not err in giving the jury a "party to the crime" instruction even though the defendant was not specifically indicted as a party to the shoplifting because O.C.G.A. § 16-2-21 allowed the defendant to be convicted as a party to a crime if the evidence supported a finding in that regard; evidence that defendant and an accomplice took a cart with merchandise into a restricted area, lied about their purpose of being in the area, surveyed various emergency exits from a store, abandoned the merchandise at a jammed exit, and lacked any means of paying for the merchandise supported the trial court's giving of the instruction. Alford v. State, 292 Ga. App. 514 , 664 S.E.2d 870 (2008).
There was slight evidence to justify a charge as to parties to the crime as two or more persons could have been involved; it was possible that the defendant acted with an accomplice who fled the scene in a yellow car, while the defendant fled the scene in a green car, because several witnesses claimed to have seen the robber leave in a yellow car, and other witnesses said the perpetrator got into a green car. Williams v. State, 312 Ga. App. 22 , 717 S.E.2d 532 (2011).
Evidence sufficient to support conviction. - Convicted felon's conviction for possession of a shotgun was authorized, even though the shotgun was not in the felon's immediate possession, where the evidence supported a finding that the felon was a party to the crime of burglary and the felon and a codefendant were coconspirators. Coursey v. State, 196 Ga. App. 135 , 395 S.E.2d 574 (1990).
When the defendant assisted the defendant's spouse in committing burglaries by not only driving with the spouse to the scene of the crimes, but by serving as the getaway driver, the defendant was a party to the defendant's spouse's crimes. Head v. State, 261 Ga. App. 185 , 582 S.E.2d 164 (2003).
Evidence was sufficient to show that defendant was trafficking in cocaine. Carter v. State, 261 Ga. App. 204 , 583 S.E.2d 126 (2003).
Trial court's denial of a motion for a directed verdict of acquittal pursuant to O.C.G.A. § 17-9-1 was proper, as the evidence was sufficient to support a conviction of trafficking in methamphetamine, in violation of O.C.G.A. § 16-13-31(e) ; there was clearly evidence that the sale of the drug involved more than 28 grams of methamphetamine, that defendant either possessed or sold the methamphetamine through the defendant's presence when the drug was being cut, weighed, packaged, and sold, and that the defendant was liable as an aider and abettor under O.C.G.A. § 16-2-21 even if there was no evidence that the defendant either arranged the sale or received any money in connection therewith. Blackwood v. State, 277 Ga. App. 870 , 627 S.E.2d 907 (2006).
Evidence that the defendant intentionally struck the victim with a stick and that either the defendant or one of the other parties to the assault intentionally struck the victim with their fists and a concrete block supported an aggravated assault conviction; further, although the victim was the only person who testified about having been hit with a concrete block, and was not sure which of the attackers struck that blow, this testimony was sufficient to establish that the victim was hit with a concrete block because it made no difference whether an accomplice, and not the defendant, assaulted the victim in the manner alleged in the indictment. Oliver v. State, 278 Ga. App. 425 , 629 S.E.2d 63 (2006).
Despite the defendant's claim of innocence, convictions for armed robbery and two counts of aggravated assault were upheld on appeal, given sufficient evidence showing that the defendant waited at the scene of the robbery and then assisted the codefendants in an attempted escape; hence, the defendant was not entitled to a directed verdict of acquittal and the state was not required to exclude every reasonable hypothesis except guilt, as required by former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6 ). Jordan v. State, 281 Ga. App. 419 , 636 S.E.2d 151 (2006).
Defendant's aggravated assault and robbery convictions were upheld as evidence including the defendant's admission and flight from the scene authorized the jury to conclude that the defendant went to an apartment complex intending to participate in the robbery, and in fact participated in the robbery by acting as a lookout and an additional show of force; hence, the jury was authorized to infer criminal intent from the defendant's conduct before, during, and after the commission of the crime. Millender v. State, 286 Ga. App. 331 , 648 S.E.2d 777 (2007), cert. denied, No. S07C1717, 2008 Ga. LEXIS 80 (Ga. 2008).
Because sufficient evidence was presented that a juvenile was a party to the crime of entering an automobile with the intent to commit a theft or felony, and the evidence was corroborated by a police officer who questioned the juvenile's cohort, an adjudication based on the juvenile's commission of the act was upheld on appeal; thus, the juvenile's motion for a directed verdict was properly denied. In the Interest of B.D., 287 Ga. App. 185 , 651 S.E.2d 129 (2007).
Evidence supported a conviction of aggravated assault with a knife when two codefendants repeatedly struck the victim, the defendant struck the victim and threatened the victim's life, the defendant and the first codefendant entered a pharmacy to buy duct tape, and while alone with the victim, the second codefendant held a knife on the victim where the second codefendant could reach it and where the victim could see it; this authorized the conclusion that the second codefendant committed aggravated assault and that the defendant was a party. Rhines v. State, 288 Ga. App. 128 , 653 S.E.2d 500 (2007).
Although no evidence was presented as to the ownership of a Nissan Pathfinder parked at the scene of the crime, the defendant was not entitled to a judgment of acquittal, as sufficient evidence was presented to not only link the defendant with the vehicle where the trafficking amount of drugs was found, but also to support a finding of guilt as a party to the crime; moreover, the jury could conclude that as a party to the crimes charged, the defendant was actively involved in a criminal enterprise to possess the methamphetamine stashed inside the vehicle. Sherrer v. State, 289 Ga. App. 156 , 656 S.E.2d 258 , cert. denied, No. S08C0875, 2008 Ga. LEXIS 391 (Ga. 2008).
Evidence was sufficient to sustain a defendant's convictions of two counts of aggravated assault and two counts of possession of a firearm during the commission of a crime in violation of O.C.G.A. §§ 16-5-21 and 16-11-106 because the defendant's admission that defendant was holding a rifle throughout the crimes' commission, along with evidence of the defendant's flight, authorized the jury to conclude that the defendant participated in the crimes by acting as a lookout. Gant v. State, 291 Ga. App. 823 , 662 S.E.2d 895 (2008).
Trial court did not err by denying defendant's motion for directed verdict and convicting the defendant of armed robbery as the evidence established that defendant's presence and actions at the scene of the crime, when coupled with defendant's behavior afterwards, were sufficient to support the jury's verdict against defendant as a party to the crime of armed robbery. While the jury could have concluded from the evidence that even if defendant had not planned the robbery with the codefendant in advance, defendant chose to participate in the crime after the crime was begun. Cox v. State, 293 Ga. App. 98 , 666 S.E.2d 379 (2008).
There was sufficient evidence to support a defendant's convictions of armed robbery, aggravated assault, burglary, false imprisonment, and possession of a firearm during the commission of a felony when the state showed that the defendant intentionally aided and abetted a home invasion in which the home was burglarized and the homeowner's teenage child was detained and robbed by use of a handgun. Even in the absence of evidence sufficient to show that the defendant directly committed the charged offenses, there was sufficient evidence that the defendant was a party to the offenses in that the defendant and a person armed with a gun loaded a truck with property stolen from the home during the two-hour home invasion, the defendant was present speaking with the armed person during the home invasion, and the defendant confirmed that the child was home alone. Whitley v. State, 293 Ga. App. 605 , 667 S.E.2d 447 (2008).
Following evidence was sufficient to support the defendant's convictions, as a party or perpetrator, of felony murder, armed robbery, kidnapping, and aggravated assault: (1) the defendant and two codefendants robbed four occupants of a duplex at gunpoint; (2) a codefendant hit a victim in the head with a gun; (3) the defendant and codefendants moved the victims into another room; and (4) a codefendant fatally shot a delivery person who entered the duplex. Henderson v. State, 285 Ga. 240 , 675 S.E.2d 28 (2009).
Evidence was sufficient to support a defendant's convictions under O.C.G.A. § 16-13-30.1 for possessing with intent to distribute a substance represented to be cocaine and possessing with intent to distribute a substance represented to be methamphetamine because, although the defendant argued that the defendant was merely a backseat passenger in a vehicle involved in the underlying transaction who was not shown to be in either actual or constructive possession of the substance at issue, evidence established that the defendant negotiated to sell to an agent a substance expressly represented to be cocaine and a substance expressly represented to be methamphetamine; this material was in the car with the defendant, who handed it to a third person who was to deliver the substance to the agent, and, the claim that the defendant acted innocently was refuted by the third person's testimony that the third person and the defendant knew what was going on and that the third person called the defendant to ask about drugs in connection with this transaction. Any rational trier of fact could have concluded beyond a reasonable doubt that the defendant was a party to the crimes. Diaz v. State, 296 Ga. App. 589 , 676 S.E.2d 252 (2009).
Evidence was sufficient to show that a mother aided and abetted her husband's sexual abuse of their twin daughters when they were between four and eight years old, but only as to one charged incident, because one daughter told a therapist that she told her mother about this incident, and the record showed that the mother knew about and saw this offense and that she also lent her approval to her husband's conduct. Naylor v. State, 300 Ga. App. 401 , 685 S.E.2d 383 (2009).
Evidence was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of murder and aggravated assault because the defendant's conduct before, during, and after the crimes supported the finding that the defendant was a party thereto, notwithstanding the jury's acquittal of the defendant on three weapons charges. Allen v. State, 288 Ga. 263 , 702 S.E.2d 869 (2010).
Trial court did not err in finding that the defendant was a party to the crime because there was ample evidence, based upon the defendant's actions and the defendant's presence, companionship, conduct, and demeanor before, during, and after the commission of the crime, to conclude that the defendant was more than "merely present" during the commission of the crimes; while in a car with the victim and companions, the front-seat passenger pulled out a gun and shot the victim, and during the incident, the defendant did not say or do anything to intervene. Cook v. State, 314 Ga. App. 289 , 723 S.E.2d 709 (2012).
Jury was authorized to find that the defendant was a party to the codefendant's crime of cruelty to children in the first degree in violation of O.C.G.A. §§ 16-2-20 and 16-5-70(b) because the victim's testimony showed that the defendant was present during the codefendant's beating of the victim yet did nothing to stop the codefendant or otherwise help the victim; there was also evidence that the defendant was not only aware of prior abuse that the victim sustained via a belt but had also participated in such prior abuse. Tabb v. State, 313 Ga. App. 852 , 723 S.E.2d 295 (2012).
Evidence that the defendant drove the car and remained there while the defendant's boyfriend took the victim's backpack at gunpoint was sufficient for the jury to find that the defendant aided and abetted the boyfriend. Teele v. State, Ga. App. , 733 S.E.2d 395 (2012).
Sufficient evidence existed to support the defendant's conviction for armed robbery based on the fact that while the defendant may not have had a gun, the defendant drove the car and remained in the vehicle while the codefendant took the victim's backpack at gunpoint and, after the armed robbery had occurred, the defendant appeared to wait for the codefendant to return to the vehicle before driving away; whether the defendant was a party to the crime and aided and abetted the codefendant was a jury question, and the jury rejected the defendant's argument that the defendant had no knowledge of the robbery and was merely driving the car. Teele v. State, 319 Ga. App. 448 , 738 S.E.2d 277 (2012).
Sufficient evidence supported the defendant's armed robbery, false imprisonment, aggravated assault, and possession of a firearm during a felony conviction, despite the defendant's claim that the defendant took nothing from the victim and did not point a weapon at the victim, because: (1) it was undisputed that the crime occurred; and, (2) whether the defendant or the defendant's accomplice pointed the gun and took the property, the defendant could be convicted through the defendant's role as a party, under O.C.G.A. § 16-2-21 . Bush v. State, 317 Ga. App. 439 , 731 S.E.2d 121 (2012).
Trial court erred in granting the defendant's motion for new trial as the evidence was sufficient to find the defendant intentionally helped in the commission of the murder and related crimes and was a party to the offenses because the defendant brought the gun used to kill the victim; the defendant stood over the victim after the accomplice shot the victim at close range and made a statement indicating the defendant's approval of the shooting; and the defendant fled from the scene with the accomplice, leaving the victim for dead. State v. Jackson, 294 Ga. 9 , 748 S.E.2d 902 (2013).
Evidence was sufficient to convict the defendant of felony theft by deception, instead of misdemeanor theft, as a party because the defendant unlawfully obtained $1,500 from 25 listed individuals by creating a false impression that the animal shelter was a no-kill shelter and that payment of funds would ensure that the listed individual's animal would not be euthanized; and all sponsorship money, whether in the form of cash or other payment, was directed to and controlled by the defendant, who retained sole discretion to determine the money's direction and use. Kilby v. State, 335 Ga. App. 238 , 780 S.E.2d 411 (2015), cert. denied, No. S16C0653, No. S16C0653, 2016 Ga. LEXIS 437 (Ga. 2016).
Evidence insufficient to support conviction. - Because the evidence presented at trial did not exclude the reasonable hypothesis that the driver had stolen the truck without defendant's knowledge or participation prior to the time defendant started riding around in the truck, defendant's conviction for theft by taking the truck was insupportable as a matter of law. Grant v. State, 227 Ga. App. 243 , 488 S.E.2d 763 (1997).
Except as to one incident, the evidence was insufficient to show that a mother aided and abetted her husband's sexual abuse of their twin daughters when they were between four and eight years old, because the record showed that the mother had no knowledge of seven of the eight incidents until she took the children to therapy, and the prosecution's circumstantial evidence - including the fact of the family's nudist lifestyle, the existence of pornographic movies in the home, and the fact that, during therapy, the mother advised the girls to not talk about their father - was insufficient to prove aiding and abetting beyond a reasonable doubt. Naylor v. State, 300 Ga. App. 401 , 685 S.E.2d 383 (2009).
Evidence was insufficient to support the defendant's conviction of trafficking in methamphetamine because the evidence showed nothing more than defendant's mere presence in the owner's house at a time when methamphetamine was not being actively manufactured. Denson v. State, 353 Ga. App. 450 , 838 S.E.2d 117 (2020).
Rape sentence within statutory range. - Fairness of a defendant's sentence of life imprisonment for being a party to rape was not examined because, contrary to the defendant's claims, the plain terms of O.C.G.A. § 17-10-6.1(a)(5) did not prohibit the defendant from applying for scrutiny of the sentence by the Georgia Sentence Review Panel; as the defendant conceded, the sentence fell within the statutory limits under O.C.G.A. §§ 16-2-21 and 16-6-1 , and as a rule, sentences that fell within such limits were not reviewed for legal error. Johnson v. State, 283 Ga. App. 99 , 640 S.E.2d 644 (2006).
Cited in Henderson v. State, 227 Ga. 68 , 179 S.E.2d 76 (1970); Hannah v. State, 125 Ga. App. 596 , 188 S.E.2d 401 (1972); Wells v. State, 127 Ga. App. 109 , 192 S.E.2d 567 (1972); Pippin v. State, 128 Ga. App. 355 , 196 S.E.2d 664 (1973); McKenzie v. State, 231 Ga. 513 , 202 S.E.2d 417 (1973); Walker v. Caldwell, 476 F.2d 213 (5th Cir. 1973); Freeman v. State, 130 Ga. App. 718 , 204 S.E.2d 445 (1974); McRoy v. State, 131 Ga. App. 307 , 205 S.E.2d 445 (1974); Strong v. State, 232 Ga. 294 , 206 S.E.2d 461 (1974); Griffin v. State, 133 Ga. App. 508 , 211 S.E.2d 382 (1974); Payne v. State, 135 Ga. App. 245 , 217 S.E.2d 476 (1975); Rucker v. State, 135 Ga. App. 468 , 218 S.E.2d 146 (1975); Garland v. State, 235 Ga. 522 , 221 S.E.2d 198 (1975); Phillips v. State, 238 Ga. 632 , 235 S.E.2d 12 (1977); Sullens v. State, 239 Ga. 766 , 238 S.E.2d 864 (1977); Lunsford v. State, 145 Ga. App. 446 , 243 S.E.2d 655 (1978); Hubbard v. State, 145 Ga. App. 714 , 244 S.E.2d 639 (1978); Garrett v. State, 147 Ga. App. 666 , 250 S.E.2d 1 (1978); Davis v. State, 242 Ga. 901 , 252 S.E.2d 443 (1979); Stephens v. Balkcom, 245 Ga. 492 , 265 S.E.2d 596 (1980); Jones v. State, 245 Ga. 592 , 266 S.E.2d 201 (1980); Whitaker v. State, 246 Ga. 163 , 269 S.E.2d 436 (1980); Koza v. State, 158 Ga. App. 709 , 282 S.E.2d 131 (1981); Martin v. State, 159 Ga. App. 31 , 282 S.E.2d 656 (1981); Ellis v. State, 164 Ga. App. 366 , 296 S.E.2d 726 (1982); Barnes v. State, 168 Ga. App. 925 , 310 S.E.2d 777 (1983); Widdowson v. State, 171 Ga. App. 134 , 318 S.E.2d 820 (1984); McCleskey v. Zant, 580 F. Supp. 338 (N.D. Ga. 1984); Harrell v. State, 253 Ga. 474 , 321 S.E.2d 739 (1984); Roberts v. State, 257 Ga. 180 , 356 S.E.2d 871 (1987); Jones v. State, 258 Ga. 25 , 365 S.E.2d 263 (1988); Cordova v. State, 191 Ga. App. 297 , 381 S.E.2d 436 (1989); Brinson v. State, 261 Ga. 884 , 413 S.E.2d 443 (1992); Lark v. State, 263 Ga. 573 , 436 S.E.2d 1 (1993); Bishop v. State, 223 Ga. App. 422 , 477 S.E.2d 422 (1996); Johnson v. State, 223 Ga. App. 668 , 478 S.E.2d 404 (1996); State v. Johnson, 269 Ga. 370 , 499 S.E.2d 56 (1998); Johnson v. State, 269 Ga. 632 , 501 S.E.2d 815 (1998); Hudson v. State, 234 Ga. App. 895 , 508 S.E.2d 682 (1998); Haney v. State, 234 Ga. App. 214 , 507 S.E.2d 18 (1998); Eason v. State, 234 Ga. App. 595 , 507 S.E.2d 175 (1998); Nealy v. State, 239 Ga. App. 651 , 522 S.E.2d 34 (1999); Davis v. State, 271 Ga. 527 , 520 S.E.2d 218 (1999); Granados v. State, 244 Ga. App. 153 , 34 S.E.2d 886 (2000); Grimes v. State, 245 Ga. App. 277 , 537 S.E.2d 720 (2000); Nanthabouthdy v. State, 245 Ga. App. 456 , 538 S.E.2d 101 (2000); Jett v. State, 246 Ga. App. 429 , 540 S.E.2d 209 (2000); Carter v. State, 249 Ga. App. 354 , 548 S.E.2d 102 (2001); Rayshad v. State, 295 Ga. App. 29 , 670 S.E.2d 849 (2008); Jordan v. State, 320 Ga. App. 265 , 739 S.E.2d 743 (2013); Benton v. State, 301 Ga. 100 , 799 S.E.2d 743 (2017).
RESEARCH REFERENCES
Am. Jur. 2d. - 16 Am. Jur. 2d, Conspiracy, § 20. 21 Am. Jur. 2d, Criminal Law, § 166 et seq.
C.J.S. - 22 C.J.S., Criminal Law: Substantive Principles, § 185 et seq.
ALR. - Criminal responsibility of one cooperating in offense which he is incapable of committing personally, 5 A.L.R. 782 ; 74 A.L.R. 1110 ; 131 A.L.R. 1322 .
Individual criminal responsibility of officer or employee for larceny or embezzlement, through corporate act, of property of third person, 33 A.L.R. 787 .
Who other than actor is liable for manslaughter, 95 A.L.R.2d 175.
Acquittal of principal, or his conviction of lesser degree of offense, as affecting prosecution of accessory, or aider and abettor, 9 A.L.R.4th 972.
16-2-22. Criminal responsibility of corporations.
-
A corporation may be prosecuted for the act or omission constituting a crime only if:
- The crime is defined by a statute which clearly indicates a legislative purpose to impose liability on a corporation, and an agent of the corporation performs the conduct which is an element of the crime while acting within the scope of his office or employment and in behalf of the corporation; or
- The commission of the crime is authorized, requested, commanded, performed, or recklessly tolerated by the board of directors or by a managerial official who is acting within the scope of his employment in behalf of the corporation.
-
For the purposes of this Code section, the term:
- "Agent" means any director, officer, servant, employee, or other person who is authorized to act in behalf of the corporation.
-
"Managerial official" means an officer of the corporation or any other agent who has a position of comparable authority for the formulation of corporate policy or the supervision of subordinate employees.
(Code 1933, § 26-803, enacted by Ga. L. 1968, p. 1249, § 1.)
Cross references. - Service of notice of filing of indictment, special presentment, or accusation against corporation, § 17-7-92 .
Law reviews. - For survey article on business associations, see 34 Mercer L. Rev. 13 (1982). For annual survey of cases concerning business associations, see 39 Mercer L. Rev. 53 (1987). For article, "Individual Accountability for Corporate Crime," see 34 Ga. St. U. L. Rev. 335 (2018).
JUDICIAL DECISIONS
Only "top" management is intended to be covered by O.C.G.A. § 16-2-22 ; not every corporate agent is a "managerial official". Military Circle Pet Ctr. No. 94, Inc. v. State, 181 Ga. App. 657 , 353 S.E.2d 555 , rev'd on other grounds, 257 Ga. 388 , 360 S.E.2d 248 (1987).
Deceptive business practices. - Although O.C.G.A. § 16-9-50 , defining the crime of deceptive business practices, does not contain in the statutory definition any indication of a legislative purpose to impose liability on a corporation, the state is not required to allege the provisions of O.C.G.A. § 16-2-22 in accusations under § 16-9-50 , but only to prove that defendant corporation or managerial agent authorized deceptive practices. State v. Military Circle Pet Ctr. No. 94, Inc., 257 Ga. 388 , 360 S.E.2d 248 (1987).
While a corporation may not be imprisoned, it may be fined, and the fine enforced by levy on its property. State v. Shepherd Constr. Co., 248 Ga. 1 , 281 S.E.2d 151 , cert. denied, 454 U.S. 1055, 102 S. Ct. 601 , 70 L. Ed. 2 d 591, appeal dismissed, 454 U.S. 1074, 102 S. Ct. 626 , 70 L. Ed. 2 d 609 (1981).
Court may give suspended sentence to and impose fine upon corporation. - Pursuant to O.C.G.A. § 16-2-22(a) , a corporation can be prosecuted for violating the law, and a court may sentence a corporation to serve a term for years (even though such sentence is incapable of enforcement) and may suspend that sentence and impose a fine. State v. Shepherd Constr. Co., 248 Ga. 1 , 281 S.E.2d 151 , cert. denied, 454 U.S. 1055, 102 S. Ct. 601 , 70 L. Ed. 2 d 591, appeal dismissed, 454 U.S. 1074, 102 S. Ct. 626 , 70 L. Ed. 2 d 609 (1981).
Corporation's liability under RICO for acts of employees. - A corporation could be held liable in a civil action for RICO predicate acts performed by its employees within the scope of their employment. Cobb County v. Jones Group, 218 Ga. App. 149 , 460 S.E.2d 516 (1995).
In an action in which an interexchange carrier asserted that it was not obligated to pay fees to a local carrier for misrepresented toll-free cell calls, an amendment to add claims alleging violations of under the Georgia RICO Act, O.C.G.A. § 16-14-1 et seq., was granted as corporate officers had actively presented the plan for payments not allowed under the tariff and there was substantial evidence that the local carrier misrepresented the origination of calls for which it charged. ITC Deltacom Communs. v. US LEC Corp., F. Supp. 2d (N.D. Ga. Mar. 15, 2004).
On remand from the U.S. Supreme Court, a federal appeals court held that legal workers employed by a Georgia rug manufacturer were entitled to sue their employer for state RICO violations because the corporation was a "person" for purposes of O.C.G.A. § 16-14-4 ; the court relied on the Supreme Court of Georgia's decision that O.C.G.A. § 16-2-22 , which placed limits on corporate criminal liability, did not pertain to civil suits brought under the Georgia civil RICO Act. Williams v. Mohawk Indus., 465 F.3d 1277 (11th Cir. 2006), cert. denied, mot. denied, 549 U.S. 1260, 127 S. Ct. 1381 , 167 L. Ed. 2 d 174 (2007).
Liability for theft. - Corporation could only be criminally liable for theft in Georgia pursuant to O.C.G.A. § 16-2-22(a)(2) for crimes by an officer or official who was acting within the scope of the office's employment on behalf of the corporation as the applicable theft statutes did not contain language that clearly indicated a legislative purpose to impose liability on a corporation. Schroerlucke v. United States, 100 Fed. Cl. 584 (Fed. Cl. 2011).
Theft by taking. - Evidence was sufficient to support defendant corporation's conviction for theft by taking based upon the conduct of its principals while acting on behalf of the corporation. Davis v. State, 225 Ga. App. 564 , 484 S.E.2d 284 (1997).
Cited in First Nat'l Bank & Trust Co. v. State, 141 Ga. App. 471 , 233 S.E.2d 861 (1977); Classic Art Corp. v. State, 245 Ga. 448 , 265 S.E.2d 577 (1980).
OPINIONS OF THE ATTORNEY GENERAL
When corporations are criminally responsible for violations of Surface Mining Act. - Corporations will be criminally responsible for acts or omissions constituting violations of the Surface Mining Act (see now O.C.G.A. § 12-4-70 et seq.) if, but only if, activities constituting crime were authorized, requested, commanded, performed, or recklessly tolerated by either the board of directors or by an officer or other agent of comparable authority acting within scope of that person's authority in behalf of corporation. 1970 Op. Att'y Gen. No. 70-155.
RESEARCH REFERENCES
Am. Jur. 2d. - 16 Am. Jur. 2d, Conspiracy, § 17. 18B Am. Jur. 2d, Corporations, §§ 1620 et seq., 1820 et seq. 40A Am. Jur. 2d, Homicide, § 4.
ALR. - Individual criminal responsibility of officer or employee for larceny or embezzlement, through corporate act, of property of third person, 33 A.L.R. 787 .
Criminal liability of corporation for extortion, false pretenses, or similar offenses, 49 A.L.R.3d 820.
Acquittal of principal, or his conviction of lesser degree of offense, as affecting prosecution of accessory, or aider and abettor, 9 A.L.R.4th 972.
CHAPTER 3 DEFENSES TO CRIMINAL PROSECUTIONS
Responsibility.
Justification and Excuse.
Alibi.
Cross references. - Further provisions regarding defenses to criminal actions, §§ 16-4-4 , 16-4-5 , 16-4-9 , 16-5-25 , 16-8-10 , 16-8-16(c) .
Law reviews. - For article, "Automatism and the Theory of Action," see 39 Emory L.J. 1191 (1990).
RESEARCH REFERENCES
Withdrawal by Aggressor Reviving Right of Self-Defense, 3 POF2d 705.
Defense to Charge of Driving Under the Influence of Alcohol, 17 POF2d 1.
Defense to Charges of Sex Offense, 24 POF2d 515.
Criminal Law - The Battered Woman Defense, 34 POF2d 1.
Defenses, generally, 7 Am. Jur. Trials 555, § 83 et seq.
Self-Defense in Homicide Cases, 42 Am. Jur. Trials 151.
ALR. - Subsequent marriage as bar to prosecution for rape, 9 A.L.R. 339 .
Illegal or fraudulent intent of prosecuting witness or person defrauded as defense in prosecution based on false representations, 128 A.L.R. 1520 .
Recantation as defense in perjury prosecution, 64 A.L.R.2d 276.
Consent as defense in prosecution for sodomy, 58 A.L.R.3d 636.
Consent as defense to charge of criminal assault and battery, 58 A.L.R.3d 662.
Automatism or unconsciousness as defense to criminal charge, 27 A.L.R.4th 1067.
Criminal law: "official statement" mistake of law defense, 89 A.L.R.4th 1026.
ARTICLE 1 RESPONSIBILITY
16-3-1. Minimum age.
A person shall not be considered or found guilty of a crime unless he has attained the age of 13 years at the time of the act, omission, or negligence constituting the crime.
(Code 1933, § 26-701, enacted by Ga. L. 1968, p. 1249, § 1.)
Law reviews. - For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B. J. 189 (1969). For article suggesting upward adjustment to age 15 of the age of criminal responsibility and creation of a rebuttable presumption of adult accountability for youths aged 15 to 18, see 23 Mercer L. Rev. 341 (1972). For survey article on constitutional law, see 34 Mercer L. Rev. 53 (1982). For article, "Annual Survey of Georgia Law: June 1, 2015 - May 31, 2016: Special Contribution: Georgia's Safe Harbor Ruling for Affirmative Defenses in Criminal Cases Should Be Revisited," see 68 Mercer L. Rev. 35 (2016). For comment criticizing Hatch v. O'Neill, 231 Ga. 446 , 202 S.E.2d 44 (1973), holding individual under age of criminal responsibility not civilly liable for willful torts, see 26 Mercer L. Rev. 367 (1974).
JUDICIAL DECISIONS
Section raises defense for purpose of protecting children from consequences of criminal guilt. - Statute did not provide that a person under 13 years of age was incapable of performing an act which was designated a crime under the laws of this state; it simply raised a defense for such a person because of social desirability of protecting those no more than 12 years of age from consequences of criminal guilt. K.M.S. v. State, 129 Ga. App. 683 , 200 S.E.2d 916 (1973).
Child not guilty of contributory negligence for violation of laws. - In a personal injury action by a 10-year-old child, since the child could not be found guilty of violating the criminal law, the trial court erred by charging that the child could be guilty of contributory negligence per se for violating certain traffic laws. Sorrells v. Miller, 218 Ga. App. 641 , 462 S.E.2d 793 (1995).
Legislative intent. - Trial court did not unfairly enhance defendant's sentence for armed robbery based on a previous aggravated child molestation conviction, committed when defendant was 13 years old, as: (1) under O.C.G.A. § 16-3-1 , the legislature made the age of 13 the age of criminal responsibility in Georgia; (2) the legislature did not elect to carve out an exception that would exempt youthful offenders from the sentencing provisions of O.C.G.A. § 17-10-7(b)(2); and (3) the Georgia Supreme Court had upheld the constitutionality of the "two violent felonies" statute, O.C.G.A. § 17-10-7(b)(2). Lee v. State, 267 Ga. App. 834 , 600 S.E.2d 825 (2004).
Self-incrimination. - If witness is exempt from criminal prosecution because of age, protection against self-incrimination is unnecessary. Jones v. State, 128 Ga. App. 885 , 198 S.E.2d 336 (1973).
Age referred to in O.C.G.A. § 16-3-1 is biological age, not "mental age." Couch v. State, 253 Ga. 764 , 325 S.E.2d 366 (1985).
Application in a tort action. - Summary judgment was properly denied on a parent's claim of intentional infliction of emotional distress, false arrest, false imprisonment, and invasion of privacy arising out of an accusation by store employees that the parent's nine-year-old child stole from the store because the child was below the age of 13, the age of criminal responsibility under O.C.G.A. § 16-3-1 , and was legally incapable of giving consent to their actions under O.C.G.A. §§ 51-11-2 and 51-11-6 . Todd v. Byrd, 283 Ga. App. 37 , 640 S.E.2d 652 (2006), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326 , 672 S.E.2d. 7 (2008).
Cited in Carter v. State, 122 Ga. App. 21 , 176 S.E.2d 238 (1970); Brady v. Lewless, 124 Ga. App. 858 , 186 S.E.2d 310 (1971); Hatch v. O'Neill, 231 Ga. 446 , 202 S.E.2d 44 (1973); M.S.K. v. State, 131 Ga. App. 1 , 205 S.E.2d 59 (1974); Soles v. Beasley, 137 Ga. App. 280 , 223 S.E.2d 477 (1976); Carrindine v. Ricketts, 236 Ga. 283 , 223 S.E.2d 627 (1976); Lockett v. State, 143 Ga. App. 629 , 239 S.E.2d 238 (1977); Morris v. State, 150 Ga. App. 310 , 257 S.E.2d 378 (1979); Barrett v. Carter, 248 Ga. 389 , 283 S.E.2d 609 (1981); Beldonza v. State, 160 Ga. App. 647 , 288 S.E.2d 37 (1981); Green v. Gaydon, 174 Ga. App. 796 , 331 S.E.2d 106 (1985); Spivey v. Sellers, 185 Ga. App. 241 , 363 S.E.2d 856 (1987); Waugh v. State, 263 Ga. 691 , 437 S.E.2d 297 (1993); Luke v. State, 222 Ga. App. 203 , 474 S.E.2d 49 (1996); Arbegast v. State, 332 Ga. App. 414 , 773 S.E.2d 283 (2015); McClure v. State, 306 Ga. 856 , 834 S.E.2d 96 (2019).
RESEARCH REFERENCES
Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, § 34.
C.J.S. - 43 C.J.S., Infants, § 378.
16-3-2. Mental capacity; insanity.
A person shall not be found guilty of a crime if, at the time of the act, omission, or negligence constituting the crime, the person did not have mental capacity to distinguish between right and wrong in relation to such act, omission, or negligence.
(Code 1933, § 26-702, enacted by Ga. L. 1968, p. 1249, § 1.)
Cross references. - Mental capacity to stand trial; release of competency evaluation to prosecuting attorney, § 17-7-129 .
Mental capacity as it relates to competency to stand trial and as it relates to culpability for criminal acts, § 17-7-130 .
Proceedings upon plea of insanity or mental incompetency, § 17-7-131 .
Law reviews. - For article, "The Georgia Law of Insanity," see 3 Ga. B.J. 28 (1941). For article discussing the theory of insanity in criminal law, see 15 Mercer L. Rev. 399 (1964). For annual survey on criminal law, see 65 Mercer L. Rev. 79 (2013). For article, "Annual Survey of Georgia Law: June 1, 2015 - May 31, 2016: Special Contribution: Georgia's Safe Harbor Ruling for Affirmative Defenses in Criminal Cases Should Be Revisited," see 68 Mercer L. Rev. 35 (2016). For article, "An Empirical Assessment of Georgia's Beyond a Reasonable Doubt Standard to Determine Intellectual Disability in Capital Cases," see 33 Ga. St. U. L. Rev. 553 (2017). For note discussing criminal responsibility and mental illness as a defense in Georgia, see 23 Ga. B. J. 538 (1961). For note comparing the M'Naghten Rule and the irresistible impulse test for legal tests of insanity, see 14 Mercer L. Rev. 418 (1963). For comment on Nelson v. State, 151 N.W.2d 694 (Wis. 1967), as to constitutionality of appointment of general practitioner as an expert witness on issue of defendant's sanity, see 19 Mercer L. Rev. 263 (1968). For comment, "Saving the Deific Decree Exception to the Insanity Defense in Illinois: How a Broad Interpretation of 'Religious Command' May Cure Establishment Clause Concerns," see 46 J. Marshall L. Rev. 56 (2013).
JUDICIAL DECISIONS
ANALYSIS
General Consideration
Editor's notes. - In light of the similarity of the statutory provisions, decisions decided prior to the codification of this principle by Ga. L. 1968, p. 1249, § 1 are included in the annotations for this Code section.
Constitutionality. - Georgia's insanity laws are not unconstitutional even though they fail to provide for an impulse-control-disorder insanity defense. Hicks v. State, 256 Ga. 715 , 352 S.E.2d 762 , cert. denied, 482 U.S. 931, 107 S. Ct. 3220 , 96 L. Ed. 2 d 706 (1987).
That O.C.G.A. § 16-3-2 is defined in terms of an accused's mental capacity to distinguish between right and wrong at the time of the crime did not render the statute unconstitutionally vague. Brantley v. State, 262 Ga. 786 , 427 S.E.2d 758 (1993).
First codified insanity defense law consistent with present law. - First codified "insanity defense" law of Georgia, that "[a] lunatic or person insane, without lucid intervals, shall not be found guilty of any crime or misdemeanor with which he may be charged, provided the act so charged as criminal was committed in the condition of such lunacy or insanity; but if a lunatic has lucid intervals of understanding, he shall answer for what he does in those intervals as if he had no deficiency," is essentially consistent with O.C.G.A. §§ 16-3-2 and 16-3-3 , and is still the law of Georgia. Kirkland v. State, 166 Ga. App. 478 , 304 S.E.2d 561 (1983).
Construction with O.C.G.A. § 16-3-4 in cases involving intoxication. - Law of intoxication contained in O.C.G.A. § 16-3-4 must be read in light of O.C.G.A. § 16-3-2 . Section 16-3-4 limits the reach of § 16-3-2 so that the inability to distinguish between right and wrong is not a defense if the inability is a consequence of voluntary intoxication (but remains a defense if the inability is a consequence of involuntary intoxication). Foster v. State, 258 Ga. 736 , 374 S.E.2d 188 (1988), cert. denied, 490 U.S. 1085, 109 S. Ct. 2110 , 104 L. Ed. 2 d 671 (1989).
Section not limited by § 17-7-130.1 . - O.C.G.A. §§ 16-3-2 and 16-3-3 provide the authority for any defendant to assert an insanity defense, and there is nothing in O.C.G.A. § 17-7-130.1 which limits that authority. Motes v. State, 256 Ga. 831 , 353 S.E.2d 348 (1987).
Distinction between insanity defense and special plea of insanity. - Tests under former Code 1933, §§ 26-702 and 26-703 (see now O.C.G.A. §§ 16-3-2 and 16-3-3 ) concern mental responsibility of defendant for crime at time alleged offense was committed, whereas, a special plea of insanity relates only to mental competency of defendant to participate in trial at time of trial; thus, the so-called special plea of insanity does not relate to mental responsibility, but to mental competency. Echols v. State, 149 Ga. App. 620 , 255 S.E.2d 92 (1979).
Issue raised by special plea of insanity at time of trial is not whether defendant can distinguish between right and wrong, but is whether defendant is capable at time of trial of understanding the nature and object of the proceedings going on against the defendant and rightly comprehends defendant's own condition in reference to such proceedings, and is capable of rendering defense attorneys such assistance as a proper defense to indictment preferred against the defendant demands. Spain v. State, 243 Ga. 15 , 252 S.E.2d 436 (1979); Echols v. State, 149 Ga. App. 620 , 255 S.E.2d 92 (1979).
General insanity is not a defense to a crime; the only defenses recognized in Georgia are found in O.C.G.A. § 16-3-2 (no capacity to distinguish right from wrong at the time of the act, omission, or negligence) and O.C.G.A. § 16-3-3 (delusional compulsion at the time of the act, omission, or negligence constituting the crime). Gould v. State, 168 Ga. App. 605 , 309 S.E.2d 888 (1983).
Legal insanity concerns ability to distinguish right from wrong, and delusional compulsions which overmaster one's will. Echols v. State, 149 Ga. App. 620 , 255 S.E.2d 92 (1979); Green v. State, 197 Ga. App. 16 , 397 S.E.2d 590 (1990).
Temporary insanity is a recognized defense in Georgia. Jackson v. State, 149 Ga. App. 253 , 253 S.E.2d 874 (1979).
Whether insanity at time of offense was temporary or permanent is immaterial. - Insanity may be, and very frequently is, only a temporary malady and, if accused, at time of act the commission of which the accused is charged, did not have reason sufficient to distinguish between right and wrong with reference to that act, the accused would not be criminally responsible, and it makes no difference, insofar as the law is concerned, whether the accused's condition of insanity at time of commission of the act was of a temporary nature or permanent in character, the test of criminal responsibility being the condition of the accused's mind at the time of commission of the act. Drewry v. State, 208 Ga. 239 , 65 S.E.2d 916 (1951).
Defendant could not simultaneously be insane and not insane. - Verdicts of not guilty by reason of insanity on a malice murder charge and guilty but mentally ill on a felony murder charge were vacated because the convictions required affirmative findings of different mental states that could not exist at the same time; the defendant could not be insane and not insane during a single criminal episode against a single victim. McElrath v. State, 308 Ga. 104 , 839 S.E.2d 573 (2020).
Mental abnormality is not a defense to a crime unless it amounts to insanity. Dennis v. State, 170 Ga. App. 630 , 317 S.E.2d 874 (1984).
Weakmindedness alone is no defense to crime. Bonner v. State, 118 Ga. App. 530 , 164 S.E.2d 453 (1968).
Evidence that defendant had mentality of child does not relieve defendant from responsibility for crime. Reece v. State, 212 Ga. 609 , 94 S.E.2d 723 (1956).
Mere showing of a medical psychosis, such as schizophrenia, does not establish legal insanity. Dennis v. State, 170 Ga. App. 630 , 317 S.E.2d 874 (1984).
Schizophrenia is a psychosis, but a psychosis is not the equivalent of insanity. Merely showing that a person suffers from schizophrenia or some other psychosis does not establish legal insanity. Rogers v. State, 195 Ga. App. 446 , 394 S.E.2d 116 (1990).
Multiple personalities. - In every circumstance, including the existence of multiple personalities, the law is justified in finding accountability where at the time of the criminal act the person had the mental capacity to distinguish between right and wrong in relation to such act and was not acting because of a delusional compulsion as to such act which overmastered the person's will to resist committing the crime, which delusion would, if true, have justified the act. If these elements are found to be present the law will not inquire whether the individual possesses other personalities, fugues, or even moods in which the person would not have performed the act or perhaps did not even know the act was being performed. Kirkland v. State, 166 Ga. App. 478 , 304 S.E.2d 561 (1983).
Fact that defendant suffered from a multiple personality disorder did not absolve defendant of criminal responsibility, since it was undisputed that the defendant was conscious and acting under the defendant's own volition, and the defendant was able to recognize right from wrong and was not suffering from delusional compulsions. Kirby v. State, 201 Ga. App. 116 , 410 S.E.2d 333 (1991).
Confusional migraines. - Defendant did not receive effective assistance of counsel when the defendant provided counsel with medical records showing that the defendant suffered from "confusional migraines," which could render the defendant unable to form the requisite criminal intent, but counsel did not investigate the condition, nor was evidence of it, which was the only defense offered, presented; furthermore, the defendant was prejudiced because other evidence showed the defendant was suffering from this condition at the time of the defendant's alleged crime. Guzman v. State, 260 Ga. App. 689 , 580 S.E.2d 654 (2003).
Lack of intent not implicated. - Persons are not excused from criminal liability under O.C.G.A. § 16-3-2 because they are incapable of forming criminal intent. Lack of intent is a defense, but it is not implicated by that Code section. Foster v. State, 258 Ga. 736 , 374 S.E.2d 188 (1988), cert. denied, 490 U.S. 1085, 109 S. Ct. 2110 , 104 L. Ed. 2 d 671 (1989).
Finding of insanity necessarily negates essential element of criminal intent. Avery v. State, 138 Ga. App. 65 , 225 S.E.2d 454 , rev'd on other grounds, 237 Ga. 865 , 230 S.E.2d 301 (1976).
Georgia law presumes sanity, and insanity is an affirmative defense. Parker v. State, 256 Ga. 363 , 349 S.E.2d 379 (1986).
Insanity is an affirmative defense that accused must prove by preponderance of evidence. and suffers from no constitutional infirmity. Grace v. Hopper, 566 F.2d 507 (5th Cir.), cert. denied, 439 U.S. 844, 99 S. Ct. 139 , 58 L. Ed. 2 d 144 (1978); Adams v. State, 254 Ga. 481 , 330 S.E.2d 869 (1985).
Presumption of sanity may be overcome by preponderance of evidence. - In every case there is a presumption that accused is sane, but this presumption may be overcome by a preponderance of evidence. Handspike v. State, 203 Ga. 115 , 45 S.E.2d 662 (1947).
Responsibility for establishing defense of insanity is on defense. Revill v. State, 235 Ga. 71 , 218 S.E.2d 816 (1975).
When one has been adjudged insane, presumption is that such insanity continues until contrary adjudication. Orange v. State, 77 Ga. App. 36 , 47 S.E.2d 756 (1948).
Presumption of insanity cancelled by administrative release from hospital. - Defendant's administrative release from hospitalization for mental illness cancelled any previously existing presumption of insanity, leaving a rebuttable presumption of sanity. Salter v. State, 257 Ga. 88 , 356 S.E.2d 196 (1987).
Presumption of sanity may be rebutted by evidence of the mental condition of the accused at the time of the offense, or before and after the offense, which tends to show the accused's condition at the time of the offense. Chancellor v. State, 165 Ga. App. 365 , 301 S.E.2d 294 (1983).
That the state must prove sanity beyond a reasonable doubt is not antagonistic to the notion that the defendant has the burden to establish insanity by a preponderance of the evidence. Kirk v. State, 168 Ga. App. 226 , 308 S.E.2d 592 (1983).
Rule regarding burden of proof suffers from no constitutional infirmity. Grace v. Hopper, 566 F.2d 507 (5th Cir.), cert denied, 439 U.S. 844, 99 S. Ct. 139 , 58 L. Ed. 2 d 144 (1978).
Specifically charging burden of proof. - When charge of court includes instruction as to insanity but places burden of proof as to each essential element of crime, including intent, upon state beyond reasonable doubt, it is not error for the court not to instruct the jury specifically, absent request, as to any burden of proof regarding sanity. Howard v. State, 150 Ga. App. 356 , 258 S.E.2d 39 (1979).
Insanity is a question of fact, and not of law, and it is the exclusive province of the jury to determine all questions of fact; but this does not mean that juries can arbitrarily disregard clearest and most convincing proof, and accept, as truth in evidence, that which, from every standpoint of reason and human experience, is not entitled to any evidentiary weight or value; and, if they do so the ends of justice demand that their verdict should be disregarded. Handspike v. State, 203 Ga. 115 , 45 S.E.2d 662 (1947) (decided under prior law).
Mental condition before and after offense tend to show condition at time of offense. - To show insanity of accused at time of commission of offense it is relevant to introduce testimony showing mental condition of accused at time of offense, and defendant's mental condition before and after offense may be proved as tending to show defendant's condition at time of offense. Handspike v. State, 203 Ga. 115 , 45 S.E.2d 662 (1947).
Sanity or insanity is proper subject for opinion evidence, and if the question under examination, and to be decided by the jury, shall be one of opinion, any witness may swear to an opinion or belief, giving reasons therefor. Chancellor v. State, 165 Ga. App. 365 , 301 S.E.2d 294 (1983).
Lay witness' testimony as to post-homicide observations. - Lay witnesses should be permitted to use incidents from post-homicide period for basis of opinions as to defendant's sanity. Chancellor v. State, 165 Ga. App. 365 , 301 S.E.2d 294 (1983).
Exclusion of testimony of witnesses' lay opinions as to defendant's mental state based on post-homicide observations is not harmful error where there is no evidence that defendant did not know the difference between right and wrong. Chancellor v. State, 165 Ga. App. 365 , 301 S.E.2d 294 (1983).
Exclusion of lay person's testimony as to defendant's sanity not warranting new trial. - While a lay witness may testify regarding the witness's opinion or belief as to a defendant's sanity, giving reasons therefor, the exclusion of such testimony does not warrant a new trial when there was no evidence that the defendant did not know the difference between right and wrong. Smith v. State, 180 Ga. App. 278 , 349 S.E.2d 26 (1986).
There is no constitutional right to mental examination, absent reasonable showing of need therefor, as there is a basic presumption of sanity. Roach v. Mauldin, 277 F. Supp. 54 (N.D. Ga. 1967), aff'd, 391 F.2d 907 (5th Cir. 1968), cert. denied, 393 U.S. 1095, 89 S. Ct. 884 , 21 L. Ed. 2 d 786 (1969).
Court is under no duty to grant psychiatric examination in absence of special plea of insanity. McNeil v. State, 165 Ga. App. 537 , 301 S.E.2d 895 (1983).
Defense must make preliminary showing. - Appointment of a psychiatrist is not always necessary, even when the defense makes a motion for appointment of one as that does not constitute the required preliminary showing that sanity at the time of the offense is likely to be a significant factor at trial. LaCount v. State, 265 Ga. App. 352 , 593 S.E.2d 885 (2004).
Counsel not ineffective for not raising issue. - Defendant failed to show that counsel was ineffective in violation of U.S. Const., amend. 6 for a failure to pursue a request for a psychological examination, an insanity defense under O.C.G.A. § 16-3-2 , and a failure to assert that the defendant was not competent to stand trial under O.C.G.A. § 17-7-130 in a criminal trial arising from multiple offenses, including murder, as there was nothing in the defendant's psychological history or in counsels' interactions with the defendant which suggested that there was a problem with the defendant's sanity or competency. Redwine v. State, 280 Ga. 58 , 623 S.E.2d 485 (2005).
Failure to obtain psychological evaluation of defendant was not ineffective assistance. - Defendant failed to show ineffective assistance of defense counsel for failure to pursue a psychological examination of the defendant to determine whether the defendant could assert the defense of mental incapacity by insanity because counsel testified that, upon counsel's dealings with the defendant, counsel did not believe that any such examination was necessary. Further, regardless of whether trial counsel had any obligation to seek a psychological evaluation of the defendant under the facts, the defendant failed to show what the result of any such examination would be and thus failed to establish prejudice by showing that the result of the trial would have been different if a psychological examination was pursued. Taylor v. State, 282 Ga. 693 , 653 S.E.2d 477 (2007).
Second insanity test. - Defendant received an evaluation of the defendant's mental competence at the time of the offenses and the defendant's competency to stand trial for the charges. Nothing in the record indicated the defendant's inability to distinguish (as opposed to do) right from wrong, so the trial court did not abuse its discretion in not ordering another evaluation. LaCount v. State, 265 Ga. App. 352 , 593 S.E.2d 885 (2004).
Cited in Teasley v. State, 228 Ga. 107 , 184 S.E.2d 179 (1971); Freeman v. State, 132 Ga. App. 742 , 209 S.E.2d 127 (1974); Graham v. State, 236 Ga. 378 , 223 S.E.2d 803 (1976); Biddy v. State, 138 Ga. App. 4 , 225 S.E.2d 448 (1976); Barner v. State, 139 Ga. App. 50 , 227 S.E.2d 874 (1976); Printup v. State, 142 Ga. App. 42 , 234 S.E.2d 840 (1977); Moore v. State, 142 Ga. App. 145 , 235 S.E.2d 577 (1977); Lewis v. State, 239 Ga. 732 , 238 S.E.2d 892 (1977); Hill v. State, 144 Ga. App. 259 , 241 S.E.2d 44 (1977); Bennett v. State, 146 Ga. App. 407 , 246 S.E.2d 425 (1978); Longshore v. State, 242 Ga. 689 , 251 S.E.2d 280 (1978); Shirley v. State, 149 Ga. App. 194 , 253 S.E.2d 787 (1979); Howard v. State, 150 Ga. App. 356 , 258 S.E.2d 39 (1979); Moody v. State, 244 Ga. 247 , 260 S.E.2d 11 (1979); Smith v. State, 245 Ga. 44 , 262 S.E.2d 806 (1980); Clark v. State, 245 Ga. 629 , 266 S.E.2d 466 (1980); Bowers v. State, 153 Ga. App. 894 , 267 S.E.2d 309 (1980); Murphy v. State, 246 Ga. 626 , 273 S.E.2d 2 (1980); Bailey v. State, 249 Ga. 535 , 291 S.E.2d 704 (1982); Brown v. State, 250 Ga. 66 , 295 S.E.2d 727 (1982); Corn v. Zant, 708 F.2d 549 (11th Cir. 1983); Spivey v. State, 253 Ga. 187 , 319 S.E.2d 420 (1984); O'Neal v. State, 254 Ga. 1 , 325 S.E.2d 759 (1985); Caldwell v. State, 257 Ga. 10 , 354 S.E.2d 124 (1987); Holloway v. State, 257 Ga. 620 , 361 S.E.2d 794 (1987); Dick v. Kemp, 833 F.2d 1448 (11th Cir. 1987); Godfrey v. Kemp, 836 F.2d 1557 (11th Cir. 1988); Sciarrone v. Brownlee, 83 Bankr. 836 (Bankr. N.D. Ga. 1988); Lawrence v. State, 265 Ga. 310 , 454 S.E.2d 446 (1995); Vanderpool v. State, 244 Ga. App. 804 , 536 S.E.2d 821 (2000), cert denied, 532 U.S. 996, 121 S. Ct. 1658 , 149 L. Ed. 2 d 640 (2001); Hicks v. Head, 333 F.3d 1280 (11th Cir. 2003); Radford v. State, 281 Ga. 303 , 637 S.E.2d 712 (2006); McClure v. State, 306 Ga. 856 , 834 S.E.2d 96 (2019); Sullivan v. State, 308 Ga. 508 , 842 S.E.2d 5 (2020).
Application
Deficiency of will, conscience, or controlling mental power. - Under former Code 1933, §§ 26-702 and 26-703 (see now O.C.G.A. §§ 16-3-2 and 16-3-3 ), if one's reason and mental powers are either so deficient that one has no will, conscience, or controlling mental power, or if through overwhelming power of mental disease, one's intellectual power is for the time obliterated, one is not a responsible moral agent, and is not punishable for criminal acts. Mendenhall v. Hopper, 453 F. Supp. 977 (S.D. Ga. 1978), aff'd, 591 F.2d 1342 (5th Cir. 1979).
Evidence of actions following killing. - When, in arguing that the defendant did not meet the burden of proof, the state points to actions taken by the defendant after the murder, including wiping blood from the windows and placing the blood-covered shirt and tee-shirt in the rear of the car, as well as asking about the death penalty in Georgia, these facts might be relevant to the defendant's argument under O.C.G.A. § 16-3-2 that at the time of the crime the defendant lacked the capacity to distinguish between right and wrong, but the facts asserted by the state do not detract from the overwhelming evidence in support of the defendant's defense under O.C.G.A. § 16-3-2 , that at the time of the homicide the defendant was acting under a delusional compulsion which overmastered the defendant's will to resist committing the crime. Stevens v. State, 256 Ga. 440 , 350 S.E.2d 21 (1986).
Delusion of spouse's infidelity insufficient to prove insanity. - Evidence that the defendant knew right from wrong but believed the defendant's actions to have been justified by the delusion of the defendant's spouse's infidelity did not meet the test of insanity which would require a verdict of not guilty by reason of insanity at the defendant's trial for the murder of the defendant's neighbor. Salter v. State, 257 Ga. 88 , 356 S.E.2d 196 (1987).
Epilepsy can be defense to crime. Murphy v. State, 132 Ga. App. 654 , 209 S.E.2d 101 (1974).
Epileptics are responsible for their acts unless reason is dethroned because of seizure of epilepsy at time of such conduct. Starr v. State, 134 Ga. App. 149 , 213 S.E.2d 531 (1975).
Act resulting from narcotic withdrawal symptoms. - Evidence that defendant became addicted to narcotics in prison and that the burglary of medical pharmacy was result of overwhelming passion for narcotics brought on by withdrawal symptoms does not demand conclusion either that defendant lacked mental capacity to distinguish between right and wrong, or that because of mental disease defendant acted under a delusional compulsion which overmastered defendant's will to resist committing the crime. Brand v. State, 123 Ga. App. 273 , 180 S.E.2d 579 (1971).
Some evidence that defendants were intoxicated, by itself, does not require charge under former Code 1933, § 26-702. Treadwell v. State, 129 Ga. App. 573 , 200 S.E.2d 323 (1973).
Instruction on insanity not required by defendant's testimony of lack of memory. - If only evidence of insanity is defendant's testimony that defendant cannot remember events surrounding episode which was the result of intoxication, this would not require instruction on insanity. Jackson v. State, 149 Ga. App. 253 , 253 S.E.2d 874 (1979).
Defendant's testimony of lack of memory following blow to head. - When there was no plea of insanity and no evidence of insanity save the defendant's assertion that after being struck on the head by the deceased, the defendant did not remember what happened, a charge on insanity was not required. Garrett v. State, 126 Ga. App. 83 , 189 S.E.2d 860 (1972).
Testimony that lay witness thought defendant was crazy did not require insanity instruction. - When the only testimony relating to the defendant's mental condition was from his former wife, who testified that on observing defendant just prior to the assault, she told her mother, "Maybe he's going crazy," and on cross-examination she responded: "If you want my opinion, I'll say he's crazy," such testimony, without any clarification or foundation, does not raise issue of insanity sufficiently to require charge thereon in absence of request to so charge. McClendon v. State, 157 Ga. App. 435 , 278 S.E.2d 96 (1981).
Verdict of guilty but mentally ill proper. - Testimony from the defendant's expert that the defendant suffered from a major depressive disorder, Asperger's disorder, and schizoid personality disorder, had a diminished capacity for distinguishing right and wrong and was delusional, and from the court-appointed expert that the defendant knew right from wrong and was not suffering from any delusional compulsion, authorized a trier of fact to find the defendant guilty but mentally ill of the crimes for which the defendant was convicted. Norred v. State, 297 Ga. 234 , 773 S.E.2d 234 (2015).
Evidence insufficient to require charge on insanity. - See Duck v. State, 250 Ga. 592 , 300 S.E.2d 121 (1983).
Defendant's requested charge regarding the defense of insanity was properly denied as the defendant conceded that the defendant was not acting under a delusional compulsion, and the defendant provided no evidence to show that the defendant lacked the mental capacity to distinguish between right and wrong when the defendant was stabbing the victim because the defendant knowingly intended to confront the victim as the defendant believed that the victim had stolen the defendant's Social Security check; and the defendant testified that the defendant knew exactly what the defendant was doing, the defendant knew the reason that the defendant was doing it, and the defendant believed that the defendant was justified in doing so. Jackson v. State, 301 Ga. 878 , 804 S.E.2d 357 (2017).
Trial court did not err by declining to give a jury instruction on insanity because, while the jury heard testimony that the defendant was "acting crazy" at the time of the alleged offense and urinated in a trash can at the police station, there was no evidence that the defendant was legally insane or operating under a delusion. Hudson v. State, 308 Ga. 443 , 841 S.E.2d 696 (2020).
Post-traumatic stress disorder evidence properly excluded. - Trial court did not err in excluding the defendant's expert testimony regarding the defendant's Post-Traumatic Stress Disorder because Georgia courts have consistently upheld the exclusion of evidence of a defendant's diminished mental condition when offered to support other defenses or to negate the intent element of a crime. Brower v. State, 334 Ga. App. 262 , 779 S.E.2d 32 (2015).
Jury charges correctly stating law. - In light of the statutory definition of insanity, a trial court's jury charge that being upset or distraught, or suffering from mental stress, was not a defense if the defendant was able to distinguish right from wrong was a correct statement of the law and was not a judicial comment on the evidence. Chancellor v. State, 165 Ga. App. 365 , 301 S.E.2d 294 (1983).
When the trial court instructed the jury that the reasonable man standard governs a person's act, and when an act violates that standard and a penal statute, the conduct is criminal unless excused by insanity, the charge does not direct a verdict against the defendant; the jury instruction states valid principles of law. Chancellor v. State, 165 Ga. App. 365 , 301 S.E.2d 294 (1983).
Trial court correctly charged the jury that the defendant's inability to evaluate the quality and consequences of defendant's acts to the same degree as a normal or average person would not excuse the defendant if the defendant was able to distinguish between right and wrong. Adams v. State, 254 Ga. 481 , 330 S.E.2d 869 (1985).
Instruction on self-defense did not result in reversible error because the trial court fully and adequately charged and recharged on the issue of self-defense, including the statutory language "reasonably believes" in O.C.G.A. § 16-3-21(a) , and on the state's burden to prove beyond a reasonable doubt that the defendant was not justified. Hill v. State, 290 Ga. 493 , 722 S.E.2d 708 (2012).
Burden of proof. - State does not have burden of proving sanity of accused beyond reasonable doubt, so it is not error to refuse to give such an instruction to the jury. Chancellor v. State, 165 Ga. App. 365 , 301 S.E.2d 294 (1983).
It is not error to charge that defendant has burden of proving mental incapacity by preponderance of evidence. Such a charge does not impermissibly shift the burden of proof to the defendant. Chancellor v. State, 165 Ga. App. 365 , 301 S.E.2d 294 (1983).
Charging that mental abnormality or mere weakness of mind is no excuse did not constitute error, unless the abnormality or weakness amounts to imbecility or idiocy which deprives the offender of the ability to distinguish between right and wrong in relation to the particular act about to be committed. Howard v. State, 166 Ga. App. 224 , 303 S.E.2d 763 (1983).
Mental abnormality or weakness of mind does not excuse criminal actions unless the abnormality or weakness is tantamount to imbecility or idiocy which deprives the actor of the ability to distinguish right from wrong. Kirk v. State, 168 Ga. App. 226 , 308 S.E.2d 592 (1983), aff'd, 252 Ga. 133 , 311 S.E.2d 821 (1984).
Conflicting evidence. - When the evidence on insanity was conflicting, the jury was authorized to find that a defendant failed to prove insanity by a preponderance of the evidence. Foster v. State, 283 Ga. 47 , 656 S.E.2d 838 (2008).
Conflicting opinion evidence. - Although the defendant's experts opined that the defendant was insane when the defendant stabbed two people after consuming alcohol and cocaine with the defendant's victims, the Georgia Supreme Court affirmed the jury's verdict that the defendant was not insane because testimony from the state's expert that the defendant knew the difference between right and wrong when the defendant committed the crimes and testimony from a police officer that the defendant was calm and cooperative when the officer talked to the defendant shortly after the defendant committed the crimes supported the jury's verdict. Whitner v. State, 276 Ga. 742 , 584 S.E.2d 247 (2003), overruled on other grounds, Ledford v. State, 289 Ga. 70 , 709 S.E.2d 239 (2011).
Because there was competing expert testimony concerning the defendant's sanity, and the jury was not required to accept the opinion of the defense experts, the jury was authorized to conclude that the defendant failed to show that the defendant was not guilty by reason of insanity. Bowman v. State, 306 Ga. 97 , 829 S.E.2d 139 (2019).
Jury may reject expert testimony as to sanity and rely on presumption of insanity. - Jury is free to reject testimony of expert witnesses as to insanity of accused and rely instead on presumption of sanity and can find that defendant is sane even though there is no positive testimony to that effect. Fields v. State, 221 Ga. 307 , 144 S.E.2d 339 (1965) (decided under prior law).
There is no error in court's refusal to charge that jury cannot arbitrarily disregard defense established by positive, uncontradicted, unimpeached testimony, even assuming testimony of defendant's good character and insanity was positive, uncontradicted, and unimpeached. Chancellor v. State, 165 Ga. App. 365 , 301 S.E.2d 294 (1983).
Charge must cover general insanity and delusional insanity where both are applicable. - When both defense of general insanity and defense of delusional insanity are involved, it is not only the right but the duty of the judge to give to the defendant by the judge's charge the benefit of both defenses. Reeves v. State, 196 Ga. 604 , 27 S.E.2d 375 (1943) (decided under prior law).
Charge on delusional compulsion is not authorized when the delusion allegedly suffered by defendant (the adulterous affair between her husband and the victim) does not justify homicide. Chancellor v. State, 165 Ga. App. 365 , 301 S.E.2d 294 (1983).
Instruction effectively removed any possible problem of an impermissibly burden-shifting charge. - See Chancellor v. State, 165 Ga. App. 365 , 301 S.E.2d 294 (1983).
Attributing intent to rape to thoughts instilled by divine power. - When the appellant admitted an intention to rape the victim, but said that "God or Jesus, Savior, put all this stuff in my head and messed me up," evidence supported the jury's finding that the appellant was not insane so as to excuse the appellant's criminal act. Dupree v. State, 163 Ga. App. 502 , 295 S.E.2d 332 (1982).
Instructing as to difference between not guilty by reason of insanity and guilty but mentally ill. - When the trial court charges the jury on the defense of insanity at the time of the crime, O.C.G.A. § 16-3-2 , and on guilty but mentally ill at the time of the crime, O.C.G.A. § 17-7-131 , the trial court must make clear to the jury in its charge that if they find the defendant did not have the mental capacity to distinguish between right and wrong (or acted because of delusional compulsion), they must find the defendant not guilty by reason of insanity and must not find the defendant guilty but mentally ill. Keener v. State, 254 Ga. 699 , 334 S.E.2d 175 (1985); Price v. State, 179 Ga. App. 598 , 347 S.E.2d 608 (1986).
Verdict of guilty but mentally ill proper when multiple personalities shown. - Since the trial judge accepted that defendant suffers from a multiple personality disorder, but ruled that the personality (be she Phyllis or Sharon, or both) who robbed the banks did so with rational, purposeful criminal intent and with knowledge that it was wrong, there is no error in the judge finding that defendant was guilty but mentally ill. Kirkland v. State, 166 Ga. App. 478 , 304 S.E.2d 561 (1983).
Verdict of guilty but mentally ill proper where defendant schizophrenic. - Where a clinical psychologist testified that the defendant was a responsible and competent person at the time of the killing and did not kill the victim as a result of schizophrenia, a rational trier of fact could have found that the defendant did not show by a preponderance of the evidence that defendant was legally insane at the time of the crime. Stephens v. State, 258 Ga. 320 , 368 S.E.2d 754 (1988).
When the defendant's counsel acquiesced in presenting the guilty-but-mentally-ill verdict option to the jury, the defendant was estopped from contending on appeal that the option infringed on defendant's defense of insanity. Milam v. State, 255 Ga. 560 , 341 S.E.2d 216 (1986).
Guilty but mentally ill verdict under O.C.G.A. § 17-7-131 allowed for accommodation to the mental health needs of the appellant who was found guilty, but was laboring under a mental illness which fell short of the legal defense of insanity and delusional compulsion promulgated in O.C.G.A. §§ 16-3-2 and 16-3-3 . Dimauro v. State, 185 Ga. App. 524 , 364 S.E.2d 900 (1988).
Defendant failed to prove insanity at the time of the crime. - See Tarver v. State, 186 Ga. App. 905 , 368 S.E.2d 828 (1988); Mitchell v. State, 187 Ga. App. 40 , 369 S.E.2d 487 , cert. denied, 187 Ga. App. 908 , 369 S.E.2d 487 (1988); Levin v. State, 222 Ga. App. 123 , 473 S.E.2d 582 (1996).
There was evidence from which a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence that the defendant was insane at the time of the crime because the state presented the testimony of a forensic psychologist that the defendant's efforts to clean up the blood and hide the body indicated that the defendant knew the wrongfulness of the defendant's actions, that the defendant's statement to police that the defendant acted in self-defense was a rational motive for the defendant's escalating fight with the victim, and that there was no evidence that the defendant was delusional at the time of the crimes. Alvelo v. State, 290 Ga. 609 , 724 S.E.2d 377 (2012).
Because the defendant failed to present any evidence from which a jury could conclude that the defendant did not know right from wrong when the defendant committed the criminal acts, the trial court did not err in declining to charge the jury pursuant to O.C.G.A. § 17-7- 131(b)(1)(C) that the defendant could be found not guilty by reason of insanity under O.C.G.A. § 16-3-2 ; the defendant introduced no evidence of insanity, only lay witness testimony about generalized problems. McBride v. State, 314 Ga. App. 725 , 725 S.E.2d 844 (2012).
Prejudice not shown by trial counsel's failure to call expert. - Even if trial counsel were ineffective in not calling a psychologist to testify for the defense that the defendant was incompetent to stand trial and that the defendant was insane at the time of the crime under O.C.G.A. §§ 16-3-2 and 16-3-3 , the defense expert's testimony would not have changed the outcome; the defense expert's opinion was contradicted by a second expert, whose opinion was based on an evaluation over an extended period of time as opposed to the defense expert's evaluation of less than one day, and by testimony of the defendant and trial counsel that the defendant understood the basis of the charges and the nature of the proceedings and assisted in preparing the defense. Wallin v. State, 285 Ga. App. 377 , 646 S.E.2d 484 (2007).
There is no constitutional right to mental examination, absent reasonable showing of need therefor, as there is a basic presumption of sanity. Roach v. Mauldin, 277 F. Supp. 54 (N.D. Ga. 1967).
Failure to plead insanity defense. - Defendant was properly convicted of terroristic threats in violation of O.C.G.A. § 16-11-37(a) because the jury was presented with sufficient evidence by which to find that the defendant intended to terrorize officers by communicating a threat to blow up the defendant's home using propane; although there was testimony that the defendant suffered from a history of mental illness, the defendant did not plead the affirmative defense of insanity, and the issue of the defendant's criminal intent was a question of fact for the jury, which was presented with sufficient evidence to establish the requisite criminal intent. Layne v. State, 313 Ga. App. 608 , 722 S.E.2d 351 (2012).
OPINIONS OF THE ATTORNEY GENERAL
Definitions of insanity are inapplicable to instructions to physician. - In view of fact that former Code 1933, § 27-2602 (see now O.C.G.A. § 17-10-61 ) specifically requires that inquiry into whether person convicted of capital felony offense has become insane be directed to alleged insanity occurring subsequent to conviction, definitions of insanity as stated in former Code 1933, §§ 26-702 and 26-703 (see now O.C.G.A. §§ 16-3-2 and 16-3-3 ) are inapplicable and should not be given in written instructions to physicians appointed pursuant to former Code 1933, § 27-2602 (see now O.C.G.A. § 17-10-61 ); since basic issue is the individual's sanity at a time subsequent to conviction, or in effect, the person's present sanity, the appropriate test should be that as employed upon a special plea of insanity. 1976 Op. Att'y Gen. No. 76-123.
RESEARCH REFERENCES
Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, § 50 et seq. 29 Am. Jur. 2d, Evidence, § 437. 29A Am. Jur. 2d, Evidence, § 871 et seq. 75 Am. Jur. 2d, Trial, § 275. 75A Am. Jur. 2d, Trial, § 600.
Defendant's Competency to Stand Trial, 40 POF2d 171.
C.J.S. - 22 C.J.S., Criminal Law: Substantive Principles, § 127.
ALR. - Test of present insanity which will prevent trial for crime or punishment after conviction, 3 A.L.R. 94 .
Remedy of one convicted of crime while insane, 10 A.L.R. 213 ; 121 A.L.R. 267 .
Subnormal mentality as defense to crime, 44 A.L.R. 584 .
Constitutionality of statute relating to insanity as defense to crime, 74 A.L.R. 265 .
Irresistible impulse as excuse for crime, 173 A.L.R. 391 .
Presumption of continuing insanity as applied to accused in criminal case, 27 A.L.R.2d 121.
Prejudicial effect of argument or comment that accused, if acquitted on ground of insanity, would be released from institution to which committed, 44 A.L.R.2d 978.
Effect of voluntary drug intoxication upon criminal responsibility, 73 A.L.R.2d 12.
Modern status of rules as to burden and sufficiency of proof of mental irresponsibility in criminal case, 17 A.L.R.3d 146.
Mental or emotional condition as diminishing responsibility for crime, 22 A.L.R.3d 1228.
XYY syndrome as affecting criminal responsibility, 42 A.L.R.3d 1414.
Drug addiction or related mental state as defense to criminal charge, 73 A.L.R.3d 16.
Necessity or propriety of bifurcated criminal trial on issue of insanity defense, 1 A.L.R.4th 884.
Modern status of test of criminal responsibility - state cases, 9 A.L.R.4th 526.
Propriety of transferring patient found not guilty by reason of insanity to less restrictive confinement, 43 A.L.R.5th 777.
Adequacy of defense counsel's representation of criminal client - pretrial conduct or conduct at unspecified time regarding issues of insanity, 72 A.L.R.5th 109.
Qualification of nonmedical psychologist to testify as to mental condition or competency, 72 A.L.R.5th 529.
Adequacy of defense counsel's representation of criminal client - conduct occurring at time of trial regarding issues of diminished capacity, intoxication, and unconsciousness, 78 A.L.R.5th 197.
Adequacy of defense counsel's representation of criminal client - pretrial conduct or conduct at unspecified time regarding issues of diminished capacity, intoxication, and unconsciousness, 79 A.L.R.5th 419.
Amnesia as affecting defendant's competency to stand trial, 100 A.L.R.6th 535.
Posttraumatic stress disorder (PTSD) as defense to murder, assault, or other violent crime, 4 A.L.R.7th 5.
16-3-3. Delusional compulsion.
A person shall not be found guilty of a crime when, at the time of the act, omission, or negligence constituting the crime, the person, because of mental disease, injury, or congenital deficiency, acted as he did because of a delusional compulsion as to such act which overmastered his will to resist committing the crime.
(Code 1933, § 26-703, enacted by Ga. L. 1968, p. 1249, § 1.)
Cross references. - Mental capacity as it relates to competency to stand trial and as it relates to culpability for criminal acts, §§ 17-7-129 , 17-7-130 , 17-7-131 .
Law reviews. - For article discussing the theory of insanity in criminal law, see 15 Mercer L. Rev. 399 (1964). For annual survey on criminal law, see 65 Mercer L. Rev. 79 (2013). For article, "An Empirical Assessment of Georgia's Beyond a Reasonable Doubt Standard to Determine Intellectual Disability in Capital Cases," see 33 Ga. St. U. L. Rev. 553 (2017). For note comparing the M'Naghten Rule and the irresistible impulse test for legal tests of insanity, see 14 Mercer L. Rev. 418 (1963). For comment, "Saving the Deific Decree Exception to the Insanity Defense in Illinois: How a Broad Interpretation of 'Religious Command' May Cure Establishment Clause Concerns," see 46 J. Marshall L. Rev. 56 (2013).
JUDICIAL DECISIONS
ANALYSIS
General Consideration
Editor's notes. - In light of the similarity of the statutory provisions, decisions decided prior to the codification of this principle by Ga. L. 1968, p. 1249, § 1 are included in the annotations for this Code section.
Constitutionality. - Georgia's insanity laws are not unconstitutional even though they fail to provide for an impulse-control-disorder insanity defense. Hicks v. State, 256 Ga. 715 , 352 S.E.2d 762 , cert. denied, 482 U.S. 931, 107 S. Ct. 3220 , 96 L. Ed. 2 d 706 (1987).
First codified insanity defense law consistent with present law. - First codified "insanity defense" law of Georgia, that "[a] lunatic or person insane, without lucid intervals, shall not be found guilty of any crime or misdemeanor with which he may be charged, provided the act so charged as criminal was committed in the condition of such lunacy or insanity; but if a lunatic has lucid intervals of understanding, he shall answer for what he does in those intervals as if he had no deficiency," is essentially consistent with O.C.G.A. §§ 16-3-2 and 16-3-3 and is still the law of Georgia. Kirkland v. State, 166 Ga. App. 478 , 304 S.E.2d 561 (1983).
Section not limited by § 17-7-130.1 . - O.C.G.A. §§ 16-3-2 and 16-3-3 provide the authority for any defendant to assert an insanity defense, and there is nothing in O.C.G.A. § 17-7-130.1 which limits that authority. Motes v. State, 256 Ga. 831 , 353 S.E.2d 348 (1987).
Defendant could not simultaneously be insane and not insane. - Verdicts of not guilty by reason of insanity on a malice murder charge and guilty but mentally ill on a felony murder charge were vacated because the verdicts required affirmative findings of different mental states that could not exist at the same time; the defendant could not be insane and not insane during a single criminal episode against a single victim. McElrath v. State, 308 Ga. 104 , 839 S.E.2d 573 (2020).
Distinction between insanity defense and special plea of insanity. - Tests under former Code 1933, §§ 26-702 and 26-703 (see now O.C.G.A. §§ 16-3-2 and 16-3-3 ) concern mental responsibility of defendant for crime at time alleged offense was committed; whereas, a special plea of insanity relates only to mental competency of defendant to participate in trial at time of trial; thus, the so-called special plea of insanity does not relate to mental responsibility, but to mental competency. Echols v. State, 149 Ga. App. 620 , 255 S.E.2d 92 (1979).
Issue raised by special plea of insanity at time of trial is not whether defendant can distinguish between right and wrong, but is whether defendant is capable at the time of trial of understanding the nature and object of the proceedings going on against the defendant and rightly comprehends defendant's own condition in reference to such proceedings, and is capable of rendering defense attorneys such assistance as a proper defense to indictment preferred against the defendant demands. Echols v. State, 149 Ga. App. 620 , 255 S.E.2d 92 (1979).
General insanity is not a defense to a crime; the only defenses recognized in Georgia are found in O.C.G.A. § 16-3-2 (no capacity to distinguish right from wrong at the time of the act, omission, or negligence) and O.C.G.A. § 16-3-3 (delusional compulsion at the time of the act, omission, or negligence constituting the crime). Gould v. State, 168 Ga. App. 605 , 309 S.E.2d 888 (1983).
Psychosis as establishing legal insanity. - Schizophrenia is a psychosis, but a psychosis is not the equivalent of insanity. The mere showing that a person suffers from schizophrenia or some other psychosis does not establish legal insanity. Rogers v. State, 195 Ga. App. 446 , 394 S.E.2d 116 (1990).
Legal insanity concerns ability to distinguish right from wrong, and delusional compulsions which overmaster one's will. Echols v. State, 149 Ga. App. 620 , 255 S.E.2d 92 (1979); Green v. State, 197 Ga. App. 16 , 397 S.E.2d 590 (1990).
Delusion may be defined as an absurd and unfounded belief. McKinnon v. State, 51 Ga. App. 549 , 181 S.E. 91 (1935).
Elements of defense of delusional compulsion. - To rely on delusional compulsion alone, one must show both that the act was the result of delusion and also that the delusion was as to a fact which, if true, would justify the act. Freeman v. State, 132 Ga. App. 742 , 209 S.E.2d 127 (1974).
In order for defense of delusional compulsion to be available in trial for murder there must be evidence that defendant was laboring under a delusion, that the act itself was connected with the delusion and furthermore that the delusion would, if true, justify the act. Graham v. State, 236 Ga. 378 , 223 S.E.2d 803 (1976).
Delusional insanity may be found when, in consequence of a delusion brought about by mental disease, the will is so overmastered that there is no criminal intent in reference to the act, and it must appear not only that defendant was actually laboring under a delusion operating as a causative factor, but that the delusion was such that it, if true, would justify the act. Biddy v. State, 138 Ga. App. 4 , 225 S.E.2d 448 (1976).
In order for defense of delusional compulsion to be available in trial for murder, there must be evidence that defendant was laboring under a delusion. Wells v. State, 247 Ga. 792 , 279 S.E.2d 213 (1981).
To support a finding that a defendant is not guilty of a criminal act under O.C.G.A. § 16-2-3 , it must appear: (1) that the defendant was laboring under a delusion; (2) that the criminal act was connected with the delusion under which the defendant was laboring; and (3) that the delusion was as to a fact which, if true, would have justified the act. Stevens v. State, 256 Ga. 440 , 350 S.E.2d 21 (1986); Fulghum v. Ford, 850 F.2d 1529 (11th Cir. 1988), cert. denied, 488 U.S. 1013, 109 S. Ct. 802 , 102 L. Ed. 2 d 793 (1989); Martin v. State, 196 Ga. App. 869 , 397 S.E.2d 301 (1990); Rogers v. State, 199 Ga. App. 545 , 405 S.E.2d 541 (1991).
In order for a delusional compulsion to constitute a defense to a criminal charge, it must be as to a fact which, if true, would justify the act. State Auto. Mut. Ins. Co. v. Gross, 188 Ga. App. 542 , 373 S.E.2d 789 , cert. denied, 188 Ga. App. 912 , 373 S.E.2d 789 (1988).
Self-defense applicable to delusional compulsion defense. - General law of self-defense was properly applied to determine whether the defendant had met the justification criteria for delusional compulsion defense. Dutton v. State, 225 Ga. App. 67 , 483 S.E.2d 305 (1997).
Criminal act must stem from delusions. - That defendant be impressed with delusions or hallucinations is not enough; the defendant's criminal act must stem from such mental disorder, or else the defendant's accountability for the criminal act is measured by the general test of whether defendant could, at time of crime's commission, distinguish between right and wrong. Mullins v. State, 216 Ga. 183 , 115 S.E.2d 547 (1960).
Delusion as to fact which would not excuse does not authorize acquittal. McKinnon v. State, 51 Ga. App. 549 , 181 S.E. 91 (1935).
Proof of multiple personalities. - In every circumstance, including the existence of multiple personalities, the law is justified in finding accountability where at the time of the criminal act the person had mental capacity to distinguish between right and wrong in relation to such act and was not acting because of a delusional compulsion as to such act which overmastered the person's will to resist committing the crime, which delusion would, if true, have justified the act. If these elements are found to be present the law will not inquire whether the individual possesses other personalities, fugues, or even moods in which the person would not have performed the act or perhaps did not even know the act was being performed. Kirkland v. State, 166 Ga. App. 478 , 304 S.E.2d 561 (1983).
Fact that the defendant suffered from a multiple personality disorder did not absolve the defendant of criminal responsibility, since it was undisputed that the defendant was conscious and acting under the defendant's own volition, and defendant was able to recognize right from wrong and was not suffering from delusional compulsions. Kirby v. State, 201 Ga. App. 116 , 410 S.E.2d 333 (1991).
Delusional compulsion must justify action in question. Brannen v. State, 235 Ga. 505 , 220 S.E.2d 264 (1975).
Conflicting opinion evidence on sanity. - Because there was competing expert testimony concerning the defendant's sanity, and the jury was not required to accept the opinion of the defense experts, the jury was authorized to conclude that the defendant failed to show that the defendant was not guilty by reason of insanity. Bowman v. State, 306 Ga. 97 , 829 S.E.2d 139 (2019).
Burden of proof. - Insanity is an affirmative defense that accused must prove by preponderance of evidence. Grace v. Hopper, 566 F.2d 507 (5th Cir.), cert. denied, 439 U.S. 844, 99 S. Ct. 139 , 58 L. Ed. 2 d 144 (1978).
Insanity is an affirmative defense that the accused must prove by a preponderance of the evidence and this burden of proof suffers from no constitutional infirmity. Grace v. Hopper, 566 F.2d 507 (5th Cir.), cert. denied, 439 U.S. 844, 99 S. Ct. 139 , 58 L. Ed. 2 d 144 (1978).
There is no constitutional right to mental examination, absent reasonable showing of need therefor, as there is a basic presumption of sanity. Roach v. Mauldin, 277 F. Supp. 54 (N.D. Ga. 1967), aff'd, 391 F.2d 907 (5th Cir. 1968), cert. denied, 393 U.S. 1095, 89 S. Ct. 884 , 21 L. Ed. 2 d 786 (1969).
Charge must cover general insanity and delusional insanity where both are applicable. - When both defense of general insanity and defense of delusional insanity are involved, it is not only the right but the duty of the judge to give to defendant by the judge's charge the benefit of both defenses. Reeves v. State, 196 Ga. 604 , 27 S.E.2d 375 (1943).
Failure to instruct on delusional compulsion was not error because the defendant never requested such a charge, the evidence did not support it, and the defense never suggested that the defendant was acting under a delusional compulsion when the crimes were committed. Heidler v. State, 273 Ga. 54 , 537 S.E.2d 44 (2000), cert denied, 532 U.S. 1029, 121 S. Ct. 1979 , 149 L. Ed. 2 d 771 (2001).
Cited in Teasley v. State, 228 Ga. 107 , 184 S.E.2d 179 (1971); Revill v. State, 235 Ga. 71 , 218 S.E.2d 816 (1975); Roberts v. State, 137 Ga. App. 215 , 223 S.E.2d 256 (1976); Moore v. State, 142 Ga. App. 145 , 235 S.E.2d 577 (1977); Hill v. State, 144 Ga. App. 259 , 241 S.E.2d 44 (1977); Bennett v. State, 146 Ga. App. 407 , 246 S.E.2d 425 (1978); Shirley v. State, 149 Ga. App. 194 , 253 S.E.2d 787 (1979); Boykin v. State, 149 Ga. App. 457 , 254 S.E.2d 457 (1979); Smith v. State, 245 Ga. 44 , 262 S.E.2d 806 (1980); Clark v. State, 245 Ga. 629 , 266 S.E.2d 466 (1980); Bailey v. State, 249 Ga. 535 , 291 S.E.2d 704 (1982); Bentley v. State, 162 Ga. App. 755 , 293 S.E.2d 36 (1982); Brown v. State, 250 Ga. 66 , 295 S.E.2d 727 (1982); Benham v. Edwards, 678 F.2d 511 (5th Cir. 1982); Corn v. Zant, 708 F.2d 549 (11th Cir. 1983); Spivey v. State, 253 Ga. 187 , 319 S.E.2d 420 (1984); O'Neal v. State, 254 Ga. 1 , 325 S.E.2d 759 (1985); Eason v. State, 256 Ga. 701 , 353 S.E.2d 188 (1987); Caldwell v. State, 257 Ga. 10 , 354 S.E.2d 124 (1987); Dick v. Kemp, 833 F.2d 1448 (11th Cir. 1987); Sciarrone v. Brownlee, 83 Bankr. 836 (Bankr. N.D. Ga. 1988); Green v. State, 208 Ga. App. 1 , 429 S.E.2d 694 (1993); Lawrence v. State, 265 Ga. 310 , 454 S.E.2d 446 (1995); Trammel v. Bradberry, 256 Ga. App. 412 , 568 S.E.2d 715 (2002); Hicks v. Head, 333 F.3d 1280 (11th Cir. 2003); Radford v. State, 281 Ga. 303 , 637 S.E.2d 712 (2006); McClure v. State, 306 Ga. 856 , 834 S.E.2d 96 (2019); Sullivan v. State, 308 Ga. 508 , 842 S.E.2d 5 (2020).
Application
Delusional compulsion no defense to civil action. - It is clearly error to give an exculpatory insanity or delusional compulsion charge as a defense to a civil action for assault or battery seeking compensatory damages. Continental Cas. Co. v. Parker, 167 Ga. App. 859 , 307 S.E.2d 744 (1983).
One having no will, conscience, or controlling mental power is not punishable for criminal acts. - Under former Code 1933, §§ 26-702 and 26-703 (see now O.C.G.A. §§ 16-3-2 and 16-3-3 ), if one's reason and mental powers are either so deficient that one has no will, conscience, or controlling mental power, or if through overwhelming power of mental disease, one's intellectual power is for the time obliterated, one is not a responsible moral agent, and one not punishable for criminal acts. Mendenhall v. Hopper, 453 F. Supp. 977 (S.D. Ga. 1978), aff'd, 591 F.2d 1342 (5th Cir. 1979).
Delusions must exist during offense to warrant instruction. - When the court did not instruct the jury on delusional compulsion, it was not in error if defendant, who has a history of delusions, was not experiencing delusions at the time of the offense. Dowdy v. State, 169 Ga. App. 14 , 311 S.E.2d 184 (1983).
Evidence sufficient to prove delusion. - Since the evidence was overwhelming that at the time the defendant killed his wife he was operating under the delusion that she was possessed by Satan and that he, the defendant, was defending himself against Satan's physical attacks and attempts to trap and destroy him, as well as putting an end to the evil and destruction in the world caused by Satan, this evidence demanded a finding that the defendant met the justification criterion for a defense of delusional compulsion. Stevens v. State, 256 Ga. 440 , 350 S.E.2d 21 (1986).
Evidence insufficient to prove delusion. - Evidence that defendant had acted in response to inner voices which were telling him to kill himself, to kill someone else, or to "go rob something" did not establish a delusion "as to a fact which, if true, would justify the act." McMachren v. State, 187 Ga. App. 793 , 371 S.E.2d 445 (1988).
Delusion from which the perpetrator was purportedly suffering at the time the perpetrator shot the decedent - i.e., that the decedent was having an affair with his wife - obviously was not as to a fact which, if true, would have justified the killing, nor would such a delusion have deprived the perpetrator of the capacity to intend the consequences of the shooting. State Auto. Mut. Ins. Co. v. Gross, 188 Ga. App. 542 , 373 S.E.2d 789 , cert. denied, 188 Ga. App. 912 , 373 S.E.2d 789 (1988).
Expert testimony describing defendant as alert, well-oriented, calm, stable, and a very good conversationalist with no signs or history of mental illness, and stating that defendant never indicated that gang members from whom defendant was fleeing were armed and so close as to threaten defendant with imminent bodily harm supported finding that defendant's delusion, even if true, did not justify defendant's decision to aim a gun at a neighbor or fire in the direction of a police officer. Appling v. State, 222 Ga. App. 327 , 474 S.E.2d 237 (1996).
Defendant could not articulate the particulars of any delusion from which the defendant was suffering that would have justified the defendant's actions so as to establish insanity. Buford v. State, 300 Ga. 121 , 793 S.E.2d 91 (2016).
Expert testimony failed to establish that the criteria for an insanity defense under O.C.G.A. § 16-3-3 was satisfied. Rodriquez v. State, 271 Ga. 40 , 518 S.E.2d 131 (1999).
Defendant failed to prove that a finding of not guilty by reason of insanity should have been reached for aggravated assault and aggravated battery for shooting and injuring defendant's neighbors; although there was evidence that defendant suffered from paranoia and delusions, the experts agreed that defendant knew that the shooting was wrong, and there was testimony that defendant appeared rational after the crime. Jackson v. State, 251 Ga. App. 448 , 554 S.E.2d 592 (2001).
Justification element not proved. - Defendant failed to prove the justification element of the defendant's delusional compulsion defense since the defendant was found guilty of aggravated assault but mentally ill, because the defendant's delusions that the mother might eventually kill the defendant and that the defendant's mother was using thoughts to shout obscenities at the defendant were not facts that, if true, amounted to a delusion of an immediate physical threat from the mother that justified the knife attack on the defendant's mother. VanVoorhis v. State, 234 Ga. App. 749 , 507 S.E.2d 555 (1998).
Defendant's mental illness did not prove legal insanity on a bus hijacking charge because the defendant told a psychologist that the defendant grabbed the steering wheel of a moving bus because the driver was in difficulty; the trier of fact could conclude that if the defendant was motivated by a delusion that others were planning to harm the defendant, the delusion did not justify forcibly exercising control over the bus because the defendant did not tell the psychologist that the defendant took over steering the bus because of a fear of being harmed. Robinson v. State, 272 Ga. App. 87 , 611 S.E.2d 759 (2005).
Failure to instruct on justification as necessary component. - Trial court erred in failing to instruct the jury on justification as a necessary component of the delusional compulsion defense. Woods v. State, 291 Ga. 804 , 733 S.E.2d 730 (2012).
Evidence of actions following killing. - When, in arguing that the defendant did not meet the defendant's burden of proof, the state points to actions taken by the defendant after the murder, including wiping blood from the windows and placing the blood-covered shirt and tee-shirt in the rear of the car, as well as asking about the death penalty in Georgia, these facts might be relevant to the defendant's argument under O.C.G.A. § 16-3-2 that at the time of the crime defendant lacked the capacity to distinguish between right and wrong, but the facts asserted by the state do not detract from the overwhelming evidence in support of the defendant's defense under O.C.G.A. § 16-3-3 , that at the time of the homicide defendant was acting under a delusional compulsion which overmastered the defendant's will to resist committing the crime. Stevens v. State, 256 Ga. 440 , 350 S.E.2d 21 (1986).
Epilepsy can be defense to crime. - Murphy v. State, 132 Ga. App. 654 , 209 S.E.2d 101 (1974).
Epileptics are responsible for their acts unless reason is dethroned because of seizure of epilepsy at time of such conduct. Starr v. State, 134 Ga. App. 149 , 213 S.E.2d 531 (1975).
Crime committed while voluntarily intoxicated is not excused. - Though it is the general rule that insanity is ordinarily an excuse, there is an exception to this rule, and that is, when crime is committed by one in a fit of intoxication; a voluntary contracted madness is not excuse for crime. Wells v. State, 247 Ga. 792 , 279 S.E.2d 213 (1981).
Act resulting from narcotic withdrawal symptoms. - Evidence that defendant became addicted to narcotics in prison and that burglary of medical pharmacy was result of overwhelming passion for narcotics brought on by withdrawal symptoms does not demand conclusion either that the defendant lacked mental capacity to distinguish between right and wrong, or that because of mental disease defendant acted under a delusional compulsion which overmastered defendant's will to resist committing the crime. Brand v. State, 123 Ga. App. 273 , 180 S.E.2d 579 (1971).
Psychotic feature of mental illness altered by drug usage. - Defendant was not entitled to a directed verdict on the basis of an insanity defense because, although the evidence showed that the defendant suffered from mental illness, the jury was permitted to believe the state's expert, who opined that, even if there was a psychotic feature, it was masked by the fact that the defendant voluntarily altered the defendant's state of mind by smoking marijuana. Simon v. State, 321 Ga. App. 1 , 740 S.E.2d 819 (2013).
Post-traumatic stress disorder evidence properly excluded. - Trial court did not err in excluding the defendant's expert testimony regarding the defendant's Post-Traumatic Stress Disorder because Georgia courts have consistently upheld the exclusion of evidence of a defendant's diminished mental condition when offered to support other defenses or to negate the intent element of a crime. Brower v. State, 334 Ga. App. 262 , 779 S.E.2d 32 (2015).
Applicability of defense to crimes other than homicide. - Delusional compulsion insanity defense is not available only in cases of homicide and, consequently, the elements necessary to prove that defense are in no way dependent upon the death of the victim. Byrd v. State, 182 Ga. App. 737 , 356 S.E.2d 708 (1987).
Guilty but mentally ill verdict under O.C.G.A. § 17-7-131 allowed for accommodation to the mental health needs of the appellant who was found guilty, but was laboring under a mental illness which fell short of the legal defense of insanity and delusional compulsion promulgated O.C.G.A. §§ 16-3-2 and 16-3-3 . Dimauro v. State, 185 Ga. App. 524 , 364 S.E.2d 900 (1988).
Verdict of guilty but mentally ill proper where multiple personalities shown. - Where the trial judge accepted that defendant suffers from a multiple personality disorder, but ruled that the personality (be she Phyllis or Sharon, or both) who robbed the banks did so with rational, purposeful criminal intent and with knowledge that it was wrong, there is no error in the judge's finding that defendant was guilty but mentally ill. Kirkland v. State, 166 Ga. App. 478 , 304 S.E.2d 561 (1983).
When the defendant's counsel acquiesced in presenting the guilty-but-mentally-ill verdict option to the jury, the defendant was estopped from contending on appeal that the option infringed on the defendant's defense of insanity. Milam v. State, 255 Ga. 560 , 341 S.E.2d 216 (1986).
Prejudice not shown by trial counsel's failure to call expert. - Even if trial counsel were ineffective in not calling a psychologist to testify for the defense that the defendant was incompetent to stand trial and that the defendant was insane at the time of the crime under O.C.G.A. §§ 16-3-2 and 16-3-3 , the defense expert's testimony would not have changed the outcome; the defense expert's opinion was contradicted by a second expert, whose opinion was based on an evaluation over an extended period of time as opposed to the defense expert's evaluation of less than one day, and by testimony of the defendant and trial counsel that the defendant understood the basis of the charges and the nature of the proceedings and assisted in preparing the defense. Wallin v. State, 285 Ga. App. 377 , 646 S.E.2d 484 (2007).
Failure to establish ineffective assistance of counsel. - Trial counsel was not deficient in presenting the meritless defense of ineffective assistance of counsel, and the defendant failed to show prejudice because for a defendant to prevail on an insanity defense based on a delusional compulsion, the defendant must show that the defendant was laboring under that compulsion of the criminal act; thus, for purposes of the defendant's particular ineffective-assistance claim, the defendant's mental state at the time of trial was irrelevant. Serdula v. State, 356 Ga. App. 94 , 845 S.E.2d 362 (2020).
Defendant failed to prove insanity at the time of the crime. - See Mitchell v. State, 187 Ga. App. 40 , 369 S.E.2d 487 , cert. denied, 187 Ga. App. 908 , 369 S.E.2d 487 (1988).
There was evidence from which a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence that the defendant was insane at the time of the crime because the state presented the testimony of a forensic psychologist that the defendant's efforts to clean up the blood and hide the body indicated that the defendant knew the wrongfulness of the defendant's actions, that the defendant's statement to police that the defendant acted in self-defense was a rational motive for the defendant's escalating fight with the victim, and that there was no evidence that the defendant was delusional at the time of the crimes. Alvelo v. State, 290 Ga. 609 , 724 S.E.2d 377 (2012).
Jury charge on defense of insanity rejected. - Defendant's requested charge regarding the defense of insanity was properly denied as the defendant conceded that the defendant was not acting under a delusional compulsion, and the defendant provided no evidence to show that the defendant lacked the mental capacity to distinguish between right and wrong when the defendant was stabbing the victim because the defendant knowingly intended to confront the victim as the defendant believed that the victim had stolen the defendant's Social Security check; and the defendant testified that the defendant knew exactly what the defendant was doing, the defendant knew the reason that the defendant was doing it, and the defendant believed that the defendant was justified in doing so. Jackson v. State, 301 Ga. 878 , 804 S.E.2d 357 (2017).
OPINIONS OF THE ATTORNEY GENERAL
Definitions of insanity are inapplicable to instructions to physician. - In view of fact that former Code 1933, § 27-2602 (see now O.C.G.A. § 17-10-61 ) specifically requires that inquiry into whether person convicted of capital felony offense has become insane be directed to alleged insanity occurring subsequent to conviction, definitions of insanity as stated in former Code 1933, §§ 26-702 and 26-703 (see now O.C.G.A. §§ 16-3-2 and 16-3-3 ) are inapplicable and should not be given in written instructions to physicians appointed pursuant to Georgia law; since basic issue is the individual's sanity at the time subsequent to conviction, or in effect, the individual's present sanity, the appropriate test should be that as employed upon a special plea of insanity. 1976 Op. Att'y Gen. No. 76-123.
RESEARCH REFERENCES
Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, § 47 et seq.
ALR. - Remedy of one convicted of crime while insane, 10 A.L.R. 213 ; 121 A.L.R. 267 .
Irresistible impulse as an excuse for crime, 70 A.L.R. 659 ; 173 A.L.R. 391 .
Effect of voluntary drug intoxication upon criminal responsibility, 73 A.L.R.2d 12.
Modern status of rules as to burden and sufficiency of proof of mental irresponsibility in criminal case, 17 A.L.R.3d 146.
Amnesia as affecting capacity to commit crime or stand trial, 46 A.L.R.3d 544.
Drug addiction or related mental state as defense to criminal charge, 73 A.L.R.3d 16.
Admissibility and prejudicial effect of evidence, in criminal prosecution, of defendant's involvement with witchcraft, satanism, or the like, 18 A.L.R.5th 804.
Qualification of nonmedical psychologist to testify as to mental condition or competency, 72 A.L.R.5th 529.
Posttraumatic stress disorder (PTSD) as defense to murder, assault, or other violent crime, 4 A.L.R.7th 5.
16-3-4. Intoxication.
- A person shall not be found guilty of a crime when, at the time of the act, omission, or negligence constituting the crime, the person, because of involuntary intoxication, did not have sufficient mental capacity to distinguish between right and wrong in relation to such act.
-
Involuntary intoxication means intoxication caused by:
- Consumption of a substance through excusable ignorance; or
- The coercion, fraud, artifice, or contrivance of another person.
-
Voluntary intoxication shall not be an excuse for any criminal act or omission.
(Laws 1833, Cobb's 1851 Digest, p. 779; Code 1863, § 4197; Code 1868, § 4236; Code 1873, § 4301; Code 1882, § 4301; Penal Code 1895, § 39; Penal Code 1910, § 39; Code 1933, § 26-403; Code 1933, § 26-704, enacted by Ga. L. 1968, p. 1249, § 1.)
Cross references. - Voidable nature of contracts made by intoxicated persons, § 13-3-25 .
Mental capacity as it relates to competency to stand trial and as it relates to culpability for criminal acts, §§ 17-7-130 , 17-7-131 .
Driving under influence of alcohol or drugs, § 40-6-391 .
Law reviews. - For article discussing the theory of insanity in criminal law, see 15 Mercer L. Rev. 399 (1964).
JUDICIAL DECISIONS
ANALYSIS
General Consideration
Construction with O.C.G.A. § 16-3-2 . - Law of intoxication contained in O.C.G.A. § 16-3-4 must be read in light of O.C.G.A. § 16-3-2 . O.C.G.A. § 16-3-4 limits the reach of O.C.G.A. § 16-3-2 so that the inability to distinguish between right and wrong is not a defense if the inability is a consequence of voluntary intoxication (but remains a defense if the inability is a consequence of involuntary intoxication). Foster v. State, 258 Ga. 736 , 374 S.E.2d 188 (1988), cert. denied, 490 U.S. 1085, 109 S. Ct. 2110 , 104 L. Ed. 2 d 671 (1989).
Voluntary intoxication shall not be an excuse for any criminal act or omission. Gilreath v. State, 247 Ga. 814 , 279 S.E.2d 650 (1981), cert. denied, 456 U.S. 984, 102 S. Ct. 2258 , 72 L. Ed. 2 d 862 (1982).
If condition of a man's mind, when unexcited by liquor, is capable of distinguishing between right and wrong, reasoning and acting rationally, and one voluntarily deprives self of reason by intoxication, and commits an offense while in that condition, one is criminally responsible for it. Williams v. State, 237 Ga. 399 , 228 S.E.2d 806 (1976).
As long as a criminal defendant can distinguish between right and wrong, can reason and act rationally when sober, and the defendant voluntarily deprives self of reason by intoxication and commits an offense while intoxicated, defendant is criminally responsible for defendant's actions. Booth v. State, 184 Ga. App. 494 , 361 S.E.2d 868 (1987).
Claim that the defendant was unaware of what the defendant was doing because of medication the defendant was taking at the time of a burglary did not excuse the crime because voluntary intoxication was not a defense. Meeks v. State, 274 Ga. App. 517 , 618 S.E.2d 152 (2005).
Voluntary drunkenness furnishes no excuse for crime, though the sensibilities may be temporarily dulled, or though the crime be committed in excitement or frenzy produced thereby. Estes v. State, 55 Ga. 30 (1875); Marshall v. State, 59 Ga. 154 (1877); Hanvey v. State, 68 Ga. 612 (1882); Moon v. State, 68 Ga. 687 (1882); Beck v. State, 76 Ga. 452 (1886); Bernhard v. State, 76 Ga. 613 (1886); McCook v. State, 91 Ga. 740 , 17 S.E. 1019 (1893); Cribb v. State, 118 Ga. 316 , 45 S.E. 396 (1903); Strickland v. State, 137 Ga. 115 , 72 S.E. 922 (1911); Dickens v. State, 137 Ga. 523 , 73 S.E. 826 (1912); Stephens v. State, 139 Ga. 594 , 77 S.E. 875 (1913); Bonner v. State, 26 Ga. App. 185 , 105 S.E. 863 (1921).
Evidence was sufficient to enable the trial court to find, beyond a reasonable doubt, that the defendant possessed the intent necessary to commit aggravated assault, O.C.G.A. § 16-5-21(a) , and felony murder, O.C.G.A. § 16-5-1(c) , because the defendant used a vehicle as an offensive weapon, was extremely drunk when the defendant committed the crimes, and there was no evidence of brain damage, temporary or permanent; the defendant's crimes would have been aggravated assault and felony murder if the defendant were sober, and the fact that the defendant was voluntarily intoxicated did not make the crimes anything less. Guyse v. State, 286 Ga. 574 , 690 S.E.2d 406 (2010).
Defendant's conviction was affirmed because the evidence showed that the defendant voluntarily consumed alcohol; and the defendant's ability after the night of the incident to recall events from that evening as evidenced by the defendant's apology to the business owner two days later and by the defendant's testimony at trial, showed that any alteration of the defendant's brain function that night was not more than temporary. Anderson v. State, 319 Ga. App. 701 , 738 S.E.2d 285 (2013).
Voluntary intoxication looked upon as aggravation to rather than excuse for offense. - As to artificial, voluntarily contracted madness, by drunkenness or intoxication, which, depriving men of their reason, puts them in a temporary frenzy, the law looks upon this as an aggravation of an offense, rather than an excuse for any criminal misbehavior. Grimes v. Burch, 223 Ga. 856 , 159 S.E.2d 69 (1968).
Kind or strength of liquor drunk is immaterial. Cribb v. State, 118 Ga. 316 , 45 S.E. 396 (1903); Strickland v. State, 137 Ga. 115 , 72 S.E. 922 (1911).
It makes no difference that defendant is particularly susceptible to ill effects of liquor. - It does not make any difference that a man, either by former injury to the head or brain, or constitutional infirmity, is more liable to be maddened by liquor than another man. If one has legal memory and discretion when sober, and voluntarily deprives self of reason, one is responsible for own acts while in that condition. Massey v. State, 222 Ga. 143 , 149 S.E.2d 118 , appeal dismissed, 385 U.S. 36, 87 S. Ct. 241 , 17 L. Ed. 2 d 36 (1966).
Brain function not permanently altered by alcohol. - Evidence was sufficient to convict the defendant of malice murder, armed robbery, and concealing the death of another as a party to the crimes, and the defendant's voluntary intoxication provided no defense because the defendant admitted that the defendant was not coerced into participating in the crimes; the defendant admitted that the defendant took money from the victim's pockets as an accomplice bludgeoned the victim with a baseball bat; the defendant admitted participating in removing the victim's body from the apartment; and the defendant presented no evidence at trial that the defendant's brain function had been permanently altered. Perez v. State, Ga. , S.E.2d (Sept. 8, 2020).
Defendant not involuntarily intoxicated. - There was sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that defendant was not involuntarily intoxicated since defendant consumed alcohol while on prescription medication in direct contradiction of a doctor's orders. Carter v. State, 248 Ga. App. 139 , 546 S.E.2d 5 (2001).
Jury can consider drunkenness to shed light on transaction, though drunkenness cannot excuse the transaction. Hicks v. State, 146 Ga. 221 , 91 S.E. 57 (1916) (decided under former Penal Code 1910, § 39).
One sober enough to try to hide is sober enough to form a guilty intent. Brazzell v. State, 119 Ga. 559 , 46 S.E. 837 (1904).
Defense of involuntary intoxication. - Defendant's convictions for driving under the influence per se and reckless driving were proper, as the evidence was not sufficient to raise the issue of insanity by way of involuntary intoxication in the defendant's trial because it only showed, at most, that the defendant could not remember committing the crimes or was in a "blanked out" state of mind during the commission of the acts charged. Crossley v. State, 261 Ga. App. 250 , 582 S.E.2d 204 (2003).
Trial counsel was not ineffective for failing to pursue evidence and request a jury instruction regarding the defense of involuntary intoxication because there was no evidence that the defendant was involuntarily intoxicated due to excusable ignorance or the coercion, fraud, or contrivance of another person. Jacobs v. State, 306 Ga. 571 , 832 S.E.2d 363 (2019).
Trial counsel's failure to request a jury instruction on involuntary intoxication did not amount to ineffective assistance in violation of the Sixth Amendment because there was no persuasive evidence on that point; to the contrary, the evidence tended to show that the defendant was much more sober than the victim. Hills v. State, 306 Ga. 800 , 833 S.E.2d 515 (2019).
Cited in Meadows v. State, 230 Ga. 471 , 197 S.E.2d 698 (1973); Pierce v. State, 231 Ga. 731 , 204 S.E.2d 159 (1974); McKenty v. State, 135 Ga. App. 271 , 217 S.E.2d 388 (1975); Johnson v. State, 235 Ga. 486 , 220 S.E.2d 448 (1975); Cochran v. State, 136 Ga. App. 125 , 220 S.E.2d 477 (1975); Barner v. State, 139 Ga. App. 50 , 227 S.E.2d 874 (1976); Mason v. Balcom, 531 F.2d 717 (5th Cir. 1976); Young v. State, 239 Ga. 53 , 236 S.E.2d 1 (1977); Veasley v. State, 142 Ga. App. 863 , 237 S.E.2d 464 (1977); Richardson v. State, 143 Ga. App. 846 , 240 S.E.2d 217 (1977); Jackson v. State, 149 Ga. App. 253 , 253 S.E.2d 874 (1979); Kennedy v. State, 156 Ga. App. 792 , 275 S.E.2d 339 (1980); Moore v. State, 158 Ga. App. 579 , 281 S.E.2d 322 (1981); Webb v. State, 159 Ga. App. 403 , 283 S.E.2d 636 (1981); Dick v. State, 248 Ga. 898 , 287 S.E.2d 11 (1982); Butler v. State, 161 Ga. App. 251 , 288 S.E.2d 306 (1982); Tucker v. State, 249 Ga. 323 , 290 S.E.2d 97 (1982); Bailey v. State, 249 Ga. 535 , 291 S.E.2d 704 (1982); Ford v. State, 164 Ga. App. 620 , 298 S.E.2d 327 (1982); Nash v. State, 166 Ga. App. 533 , 304 S.E.2d 727 (1983); Hatcher v. State, 251 Ga. 388 , 306 S.E.2d 250 (1983); Purdue v. State, 170 Ga. App. 18 , 316 S.E.2d 166 (1984); Tucker v. Kemp, 256 Ga. 571 , 351 S.E.2d 196 (1987); Haywood v. State, 256 Ga. 694 , 353 S.E.2d 184 (1987); Collins v. State, 183 Ga. App. 243 , 358 S.E.2d 876 (1987); State Farm Fire & Cas. Co. v. Morgan, 185 Ga. App. 377 , 364 S.E.2d 62 (1987); McEver v. State, 258 Ga. 768 , 373 S.E.2d 624 (1988); Swenson v. State, 196 Ga. App. 898 , 397 S.E.2d 211 (1990); Stephens v. State, 214 Ga. App. 183 , 447 S.E.2d 26 (1994); Burchfield v. State, 219 Ga. App. 40 , 464 S.E.2d 27 (1995); Ford v. Schofield, 488 F. Supp. 2d 1258 (N.D. Ga. 2007); McClure v. State, 306 Ga. 856 , 834 S.E.2d 96 (2019).
Notice
Witnesses used in involuntary intoxication defense. - While the defendant was correct that in 2013 there was no pre-trial notice requirement where an insanity-type defense, such as involuntary intoxication, was to be pursued exclusively through lay witnesses, the defense depended on more than lay-witness testimony as the defendant intended to call an emergency-department physician who treated the defendant on the night of the defendant's arrest; and the anticipated purpose of the physician's testimony was in exploring what testing the physician ordered, what substances the physician did not test for, and whether the defendant could have been on those substances, which required scientific or specialized knowledge, and veered into the realm of expert-witness testimony. McKelvin v. State, 305 Ga. 39 , 823 S.E.2d 729 (2019).
Pre-trial notice of involuntary intoxication defense. - Although involuntary intoxication was not specifically referenced in Supreme Court Rule 31.5, pre-trial notice of that defense was required as it was a subset of an insanity defense. McKelvin v. State, 305 Ga. 39 , 823 S.E.2d 729 (2019).
Counsel conducted reasonable investigation into involuntary intoxication defense. - Defendant's trial counsel was not ineffective as counsel's investigation of the defendant's involuntary intoxication defense was reasonable, even though the investigation failed to lead to an expert competent to testify as to the defendant's intoxication and potential effects of combining alcohol with a substance marketed as an over-the-counter "performance supplement." Knox v. State, 290 Ga. App. 49 , 658 S.E.2d 819 (2008).
Only involuntary intoxication sufficient to remove the mental capacity to distinguish between right and wrong in relation to the act may excuse a criminal act. Voluntary intoxication is not an excuse for any criminal act. Bailey v. State, 198 Ga. App. 632 , 402 S.E.2d 363 (1991).
Chronic intoxication does not constitute involuntary intoxication within meaning of O.C.G.A. § 16-3-4 . Franklin v. State, 183 Ga. App. 58 , 357 S.E.2d 879 (1987).
Defense of chronic alcoholism is not an excuse for offense of escape. Grimes v. Burch, 223 Ga. 856 , 159 S.E.2d 69 (1968).
Alcoholism is not involuntary intoxication and consequently is not a defense to offense of escape or any other criminal act or omission. Ford v. State, 164 Ga. App. 620 , 298 S.E.2d 327 (1982).
Cross-examination regarding effect of alcohol and drugs. - Trial court properly disallowed cross-examination of a psychological forensic specialist on the effect of alcohol and drugs on defendant's ability to form the intent to commit kidnapping and aggravated assault, where there was no evidence that defendant was unconscious or comatose when the crimes were committed. Carsner v. State, 190 Ga. App. 141 , 378 S.E.2d 181 (1989).
Lack of intent not implicated. - Persons are not excused from criminal liability under O.C.G.A. § 16-3-4 because they are incapable of forming criminal intent. Lack of intent is a defense, but it is not implicated by that section. Foster v. State, 258 Ga. 736 , 374 S.E.2d 188 (1988), cert. denied, 490 U.S. 1085, 109 S. Ct. 2110 , 104 L. Ed. 2 d 671 (1989); Mills v. State, 198 Ga. App. 527 , 402 S.E.2d 123 (1991).
Defendant bears burden of showing that voluntary intoxication negated intent. - Defendant has burden, once criminal intent has been shown, of illustrating that defendant's voluntary intoxication rose to a level required to negate intent. Blankenship v. State, 247 Ga. 590 , 277 S.E.2d 505 (1981), cert. denied, 488 U.S. 871, 109 S. Ct. 183 , 102 L. Ed. 2 d 152 (1988), overruled on other grounds, Thompson v. State, 263 Ga. 23 , 426 S.E.2d 895 (1993).
State was not required to disprove a defendant's O.C.G.A. § 16-3-4 affirmative defense of involuntary intoxication as the defendant failed to initially establish by a preponderance of the evidence that the defendant had involuntarily been injected with drugs by the defendant's aggravated assault victim and that due to the injection, the defendant was not mentally responsible for the actions that led to false imprisonment and aggravated assault charges. Stewart v. State, 291 Ga. App. 846 , 663 S.E.2d 278 (2008).
Level of intoxication necessary to render act unintentional. - Unless actor was so intoxicated as to be unable to know, understand and intend to do the act, it cannot be said that the actor's was not intentional. Transamerica Ins. Co. v. Thrift-Mart, Inc., 159 Ga. App. 874 , 285 S.E.2d 566 (1981).
Closing argument regarding voluntary intoxication proper. - In a prosecution for murder, the prosecutor properly noted during closing argument that voluntary intoxication is not a defense where one of the investigating officers testified that the defendant smelled of alcohol and an expert witness for the defense testified that the defendant admitted that defendant consumed liquor and cocaine on the day of the murder. Payne v. State, 273 Ga. 317 , 540 S.E.2d 191 (2001).
Trial court's charge on voluntary intoxication was correct and sufficient because voluntary intoxication was not a defense to the crime unless the intoxication resulted in altering brain function so as to negate intent, and defendant offered no evidence at trial concerning such permanent alteration of defendant's brain function. Mathis v. State, 241 Ga. App. 869 , 528 S.E.2d 293 (2000).
Jury charges. - Refusal to give charges not error. Houck v. State, 173 Ga. App. 388 , 326 S.E.2d 567 (1985); Williams v. State, 180 Ga. App. 854 , 350 S.E.2d 837 (1986).
Portion of a request to charge that, "whether intent to commit a felony or a theft is present is usually a jury question, but where, through unconsciousness, drunkenness, or other cause, there can be no intent, this would be a defense to a criminal charge," was misleading to the extent that it implied that voluntary intoxication in and of itself may be a defense to a crime, and the trial court did not err in refusing the requested charge. Tutton v. State, 179 Ga. App. 462 , 346 S.E.2d 898 (1986).
Instruction that "voluntary intoxication shall not be an excuse for any criminal act" was sufficient. The trial court was not required to charge that defendant should be acquitted if defendant was intoxicated to the point where defendant could not form the requisite intent for the crimes of attempted armed robbery and aggravated battery. Franklin v. State, 183 Ga. App. 58 , 357 S.E.2d 879 (1987).
It is not error to refuse to charge that voluntary intoxication can negate the specific intent for a crime. Mitchell v. State, 187 Ga. App. 40 , 369 S.E.2d 487 , cert. denied, 187 Ga. App. 908 , 369 S.E.2d 487 (1988); Clark v. State, 187 Ga. App. 232 , 369 S.E.2d 550 (1988).
Even though trial court's charge was not clear on the issue of whether voluntary intoxication can be considered a defense to a crime, defendant failed to show how defendant was harmed by the charge; thus, reversal was not required. Rattansay v. State, 240 Ga. App. 165 , 523 S.E.2d 36 (1999).
Counsel not ineffective for failing to raise defense. - As voluntary intoxication was not an excuse for a criminal act, pursuant to O.C.G.A. § 16-3-4(c) , counsel was not ineffective for failing to present a defense predicated on a lack of criminal intent due to alcohol intoxication. Leppla v. State, 277 Ga. App. 804 , 627 S.E.2d 794 (2006).
Application to Specific Crimes
Fact of intoxication will not lessen character or degree of malice apparent from circumstances. - If defendant was in a state of drunkenness by voluntary use of intoxicating liquor, and circumstances of killing were such as to show an abandoned and malignant heart, fact of intoxication will not lessen or affect character or degree of malice. Bradberry v. State, 170 Ga. 870 , 154 S.E. 351 (1930).
Trial court did not err in refusing to allow the defendant to call a forensic toxicologist as a newly-discovered exculpatory witness to testify about the defendant's blood-alcohol level at the time the defendant's spouse was shot in the head, as voluntary intoxication was not an excuse for a criminal act and other evidence that the defendant had been drinking on the night of the shooting had already been admitted. Rowe v. State, 276 Ga. 800 , 582 S.E.2d 119 (2003).
Evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of the crimes for which the defendant was convicted as the jury was free to reject the defendant's claim that the defendant was involuntarily intoxicated and acting in self-defense at the time that the defendant shot and killed the victim. Cox v. State, 306 Ga. 736 , 832 S.E.2d 354 (2019).
Drunkenness will not reduce murder to manslaughter. - Simply to prove that a person was drunk and killed another in passion would not reduce crime from murder to manslaughter. Bradberry v. State, 170 Ga. 859 , 154 S.E. 344 (1930).
Habeas court erred in granting relief to a petitioner on a malice murder conviction on the basis of ineffective assistance of counsel because counsel's defense theory of innocence was not unsupported by the evidence, and there was no evidence of sudden passion supporting a proposed theory of voluntary manslaughter under O.C.G.A. § 16-5-2(a) . Petitioner's intoxication likewise would not support a theory of voluntary manslaughter. Hall v. Lewis, 286 Ga. 767 , 692 S.E.2d 580 (2010).
Burglary and aggravated sexual battery. - Trial court was not required to charge that defendant should be acquitted if defendant was intoxicated to the point where defendant could not form the requisite intent for the crimes of burglary and aggravated sexual battery. Sydenstricker v. State, 209 Ga. App. 418 , 433 S.E.2d 644 (1993).
Intoxication did not disprove intent to commit burglary. - Evidence was sufficient to support the defendant's burglary conviction since the jury decided that evidence of the defendant's intoxication did not disprove intent. In addition to testimony about television wires having been disconnected from various devices in the victim's house, one witness testified that the television was sitting upright on the floor, not face-down, despite the defendant's testimony that the defendant had knocked the television off the stand. Dillard v. State, 323 Ga. App. 333 , 744 S.E.2d 863 (2013).
One capable of intent to shoot is capable of intent to kill. - One who can voluntarily shoot is capable of malice, unless one can plead some infirmity besides drunkenness. To be too drunk to form intent to kill, one must be too drunk to form intent to shoot. Marshall v. State, 59 Ga. 154 (1877); Cone v. State, 193 Ga. 420 , 18 S.E.2d 850 (1942).
Person, sober enough to intend to shoot at another, and actually to shoot at and hit that person, without any provocation or justification whatever, is to be deemed sober enough to form specific intent to murder; and mere drunkenness, whatever its degree, will not negative such intent. Bradberry v. State, 170 Ga. 859 , 154 S.E. 344 (1930).
If intent to steal is present, fact that drunkenness is the cause is no excuse. - While drunkenness may be a circumstance from which the jury may infer that one who has taken and carried away another's property did not intend to steal the property, still, if intention to steal is present, drunkenness is no excuse for the crime, even though intent to steal is caused by the drunkenness itself. Greeson v. State, 90 Ga. App. 57 , 81 S.E.2d 839 (1954).
Voluntary intoxication charge was not "red flag" as to character. - Defendant's claim that the state used a voluntary intoxication charge as a "red flag" to the jury that the defendant was drunk and therefore was "an unsavory character," that the victim's parents now might question their decision "to invite this intoxicated man into their home," and that the defendant had "major psychological problems" was rejected; there was evidence from which an inference or deduction might be made that the defendant was drunk on the afternoon in question. Byers v. State, 276 Ga. App. 295 , 623 S.E.2d 157 (2005).
Child molestation. - Trial court properly instructed the jury on voluntary intoxication in the defendant's trial for child molestation because there was evidence that: (1) the defendant was drinking on the night before and on the day the incident occurred; (2) the defendant told an interviewing agent that the defendant "probably" consumed four or five beers on that day and that the defendant would not have driven a car; (3) the defendant insisted that the defendant was not "intoxicated" by the defendant's definition of the word; and (4), the defendant estimated that the defendant drank three or four beers on the afternoon of the incident. Byers v. State, 276 Ga. App. 295 , 623 S.E.2d 157 (2005).
Drug Addiction
Drug addiction presents no defense unless it results in involuntary intoxication. Goldsmith v. State, 148 Ga. App. 786 , 252 S.E.2d 657 (1979).
Intoxication from drug is no defense to crime. - See Cribb v. State, 118 Ga. 316 , 45 S.E. 396 (1903); Strickland v. State, 137 Ga. 115 , 72 S.E. 977 (1911).
Drug addiction is not involuntary. - McLaughlin v. State, 236 Ga. 577 , 224 S.E.2d 412 (1976).
Chronic drug abuse, like chronic alcoholism, is not involuntary under the law. Mitchell v. State, 187 Ga. App. 40 , 369 S.E.2d 487 , cert. denied, 187 Ga. App. 908 , 369 S.E.2d 487 (1988).
When a defendant relies upon involuntary intoxication because of mandatory medication as a defense to criminal prosecution, the defendant bears the burden of showing by a preponderance of the evidence that defendant was not mentally responsible at the time of the alleged crime. Rauschenberg v. State, 161 Ga. App. 331 , 291 S.E.2d 58 (1982).
Use of prescribed medication. - If a defendant charged with driving under the influence of drugs would otherwise be entitled to an instruction under O.C.G.A. § 16-3-4 , such an instruction would be required to be given without regard to whether the drug involved was legally prescribed or not. Flanders v. State, 188 Ga. App. 98 , 371 S.E.2d 918 (1988).
Trial court properly refused defendant's requested instruction when, although defendant produced evidence that defendant was not aware that a prescribed medication could affect defendant's ability to drive, there was no evidence that defendant did not have sufficient mental capacity to distinguish between right and wrong by reason of intoxication. Flanders v. State, 188 Ga. App. 98 , 371 S.E.2d 918 (1988).
RESEARCH REFERENCES
Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, § 48. 29 Am. Jur. 2d, Evidence, § 570. 75 Am. Jur. 2d, Trial, § 277. 75A Am. Jur. 2d, Trial, § 611 et seq.
Lack of Capacity to Form Specific Intent - Voluntary Intoxication, 5 POF2d 189.
Punitive Damages in Motor Vehicle Litigation - Intoxicated Driver, 18 POF3d 1.
C.J.S. - 22 C.J.S., Criminal Law: Substantive Principles, § 147.
ALR. - Drunkenness as affecting existence of elements essential to murder in second degree, 8 A.L.R. 1052 .
Voluntary intoxication as defense to homicide, 12 A.L.R. 861 ; 79 A.L.R. 897 .
Effect of voluntary drug intoxication upon criminal responsibility, 73 A.L.R.2d 12.
Modern status of the rules as to voluntary intoxication as defense to criminal charge, 8 A.L.R.3d 1236.
When intoxication deemed involuntary so as to constitute a defense to criminal charge, 73 A.L.R.3d 195.
Validity, construction and effect of Uniform Alcoholism and Intoxication Treatment Act, 85 A.L.R.3d 701.
Adequacy of defense counsel's representation of criminal client - conduct occurring at time of trial regarding issues of diminished capacity, intoxication, and unconsciousness, 78 A.L.R.5th 197.
Adequacy of defense counsel's representation of criminal client - pretrial conduct or conduct at unspecified time regarding issues of diminished capacity, intoxication, and unconsciousness, 79 A.L.R.5th 419.
16-3-5. Mistake of fact.
A person shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission.
(Code 1933, § 26-705, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1969, p. 857, § 3.)
JUDICIAL DECISIONS
ANALYSIS
General Consideration
Honest belief that act was lawful is no defense unless knowledge is element of offense. - While a person may honestly believe a thing and yet not know it, an honest belief will not avail one who has committed an act in violation of a criminal statute, unless knowledge is made a part of the offense, so that scienter must be proved by state, and thus burden is on state to prove guilty knowledge. Tant v. State, 158 Ga. App. 624 , 281 S.E.2d 357 (1981).
Defendant's belief did not constitute mistake of fact. - Defendant's belief that the victim was not in the trajectory of the bullet when the defendant intentionally fired the weapon at a third party does not constitute the type of mistake of fact that would serve as a defense to malice murder or other crimes. Allen v. State, 290 Ga. 743 , 723 S.E.2d 684 (2012).
Mistake induced by fault or negligence of the party doing the wrongful act does not constitute a defense to a criminal charge. Baise v. State, 232 Ga. App. 556 , 502 S.E.2d 492 (1998).
Mistake is a defense when mistake negates mental state. - Mistake of fact is a defense to a crime to the extent that the ignorance of some fact negates the existence of the mental state required to establish a material element of the crime. Jones v. State, 263 Ga. 835 , 439 S.E.2d 645 (1994).
Mistake due to fault not valid defense. - Defendant's mistaken belief that the victim was a turkey was due to defendant's own fault in taking an unsafe shot under unsafe conditions at a target that defendant had not positively identified as legal game; accordingly, the jury was authorized to reject defendant's mistake of fact defense. Hines v. State, 276 Ga. 491 , 578 S.E.2d 868 (2003).
Condonation by forgery victim after the crime occurs is not an acceptable defense. Pratt v. State, 167 Ga. App. 819 , 307 S.E.2d 714 (1983).
Cited in Porter v. State, 122 Ga. App. 658 , 178 S.E.2d 283 (1970); McClendon v. State, 231 Ga. 47 , 199 S.E.2d 904 (1973); Treadwell v. State, 129 Ga. App. 573 , 200 S.E.2d 323 (1973); Hess v. State, 132 Ga. App. 26 , 207 S.E.2d 580 (1974); Carter v. State, 232 Ga. 654 , 208 S.E.2d 474 (1974); Jordon v. State, 232 Ga. 749 , 208 S.E.2d 840 (1974); Nichols v. State, 133 Ga. App. 717 , 213 S.E.2d 20 (1975); Corder v. State, 134 Ga. App. 316 , 214 S.E.2d 404 (1975); Johnson v. State, 142 Ga. App. 526 , 236 S.E.2d 493 (1977); Childers v. State, 145 Ga. App. 594 , 244 S.E.2d 108 (1978); Smith v. State, 148 Ga. App. 634 , 252 S.E.2d 62 (1979); High v. State, 153 Ga. App. 729 , 266 S.E.2d 364 (1980); Davis v. State, 153 Ga. App. 847 , 267 S.E.2d 263 (1980); Bowers v. State, 153 Ga. App. 894 , 267 S.E.2d 309 (1980); Powell v. State, 154 Ga. App. 568 , 269 S.E.2d 70 (1980); Ellison v. State, 158 Ga. App. 419 , 280 S.E.2d 371 (1981); Morgan v. State, 161 Ga. App. 67 , 288 S.E.2d 836 (1982); Curry v. State, 162 Ga. App. 71 , 290 S.E.2d 179 (1982); Hobgood v. State, 162 Ga. App. 435 , 291 S.E.2d 570 (1982); Chapman v. State, 164 Ga. App. 662 , 297 S.E.2d 322 (1982); Diggs v. State, 170 Ga. App. 48 , 316 S.E.2d 171 (1984); McIlhenny v. State, 172 Ga. App. 419 , 323 S.E.2d 280 (1984); Pitts v. State, 184 Ga. App. 220 , 361 S.E.2d 234 (1987); Banks v. State, 184 Ga. App. 504 , 362 S.E.2d 227 (1987); Bowman v. State, 186 Ga. App. 544 , 368 S.E.2d 143 (1988); Hayes v. State, 193 Ga. App. 33 , 387 S.E.2d 139 (1989); Broomall v. State, 260 Ga. 220 , 391 S.E.2d 918 (1990); Sims v. State, 197 Ga. App. 214 , 398 S.E.2d 244 (1990); Williams v. State, 221 Ga. App. 296 , 471 S.E.2d 258 (1996); Crawford v. State, 267 Ga. 543 , 480 S.E.2d 573 (1997); Floyd v. State, 319 Ga. App. 564 , 737 S.E.2d 341 (2013); Murray v. State, 335 Ga. App. 634 , 782 S.E.2d 694 (2016), cert. denied, No. S16C0916, 2016 Ga. LEXIS 435 (Ga. 2016).
Jury Instructions
Charge on mistake of fact not warranted. - Failure to give a charge on mistake of fact is not error when the evidence shows that a party has made a mistake of law. Turner v. State, 210 Ga. App. 303 , 436 S.E.2d 229 (1993); Taylor v. State, 233 Ga. App. 221 , 504 S.E.2d 57 (1998).
Defendant was not entitled to a mistake of fact instruction in defendant's prosecution for burglary, with theft by taking as the underlying felony, when defendant testified that the "mistake" was in misunderstanding the attorney's advice, which led defendant to believe that it was lawful to remove and sell personal property from a trailer belonging to the victim to repay a debt allegedly owed to the defendant by the victim, but such mistake was one of law and not of fact. Randall v. State, 234 Ga. App. 704 , 507 S.E.2d 511 (1998).
Since defendant's own testimony indicated that defendant's misapprehension of fact was the result of defendant's own fault or negligence in committing the burglary and kidnapping, the trial court correctly refused to give an instruction of "mistake of fact" under O.C.G.A. § 16-3-5 . Wilson v. State, 241 Ga. App. 773 , 527 S.E.2d 623 (2000).
When defendant's testimony at trial, which was the only evidence of defendant's defense, was that the elderly victim from whom defendant took a check for a large sum was competent to make a gift of the check and had done so, such evidence did not raise a mistake of fact; thus, the trial court properly refused to instruct the jury on mistake of fact as a defense to the charge that defendant committed theft by taking the check. Hall v. State, 258 Ga. App. 156 , 573 S.E.2d 415 (2002).
Trial court did not err in declining to give the defendant's requested instruction on mistake of fact, as the facts of the defendant's burglary case did not show that such an instruction was warranted; the evidence showed that the defendant never attempted to verify the spouse's claim that some unidentified person stated that they were abandoning property in the other person's storage unit from which the defendant took property the defendant was not authorized to take, and, thus, the defendant and the spouse at best were negligently acting on the basis of speculative information when the defendant took the property. Lummus v. State, 274 Ga. App. 636 , 618 S.E.2d 692 (2005), overruled on other grounds, McCart v. State, 289 Ga. App. 830 , 658 S.E.2d 465 (2008).
In criminal trial on a charge of trafficking in methamphetamine in violation of O.C.G.A. § 16-13-31(e) , the trial court did not err when it did not sua sponte instruct the jury on the affirmative defense of mistake of fact under O.C.G.A. § 16-3-5 , as defendant's mistaken belief that the bag that defendant delivered contained marijuana rather than methamphetamine, did not justify delivery of the package in any event. Dimas v. State, 276 Ga. App. 245 , 622 S.E.2d 914 (2005).
Mistake of fact defense was not applicable because the defendant did not admit participation in the murder and, in fact, denied any involvement. Murphy v. State, 280 Ga. 158 , 625 S.E.2d 764 (2006).
In a murder prosecution, a defendant was not entitled to a charge on mistake of fact, under O.C.G.A. § 16-3-5 , because the defendant admitted that the defendant could not see anything when the defendant shot blindly at an unidentified noise, so any mistake of fact on the defendant's part as to the identity of the intended target was solely the result of the failure to identify the source of the noise before firing. Gabriel v. State, 280 Ga. 237 , 626 S.E.2d 491 (2006).
In a murder prosecution, the fact that the defendant testified to a belief that the defendant was required to defend himself because the victim was about to drag the defendant down the street with a truck did not entitle the defendant to a mistake of fact defense under O.C.G.A. § 16-3-5 , because the trial court gave a complete charge on the principles of law relating to the asserted defenses of justification and self-defense. Bell v. State, 280 Ga. 562 , 629 S.E.2d 213 (2006).
With regard to the defendant's conviction for criminal attempt to commit child molestation and related crimes, the trial court did not err in refusing to instruct the jury on mistake of fact because the affirmative defense did not apply since the intended victim told the defendant that the victim was underage and, having been made aware of that fact, the defendant nevertheless continued the contact, engaging the intended victim in sexually explicit conversations and arranging to meet for a sexual encounter. Castaneira v. State, 321 Ga. App. 418 , 740 S.E.2d 400 (2013).
Trial court did not err in failing to charge the jury on mistake of fact as the defense to burglary; the defendant believed the defendant could enter the house with impunity because the house was for sale was based on mistake of law rather than mistake of fact. Stillwell v. State, 329 Ga. App. 108 , 764 S.E.2d 419 (2014).
Defense of mistake of fact was not reasonably raised by the evidence when the victim's physical resistance ended and the victim's demeanor changed after being brutally beaten with a baseball bat, threatened at gunpoint, dragged bleeding through a house, ruthlessly bound to a bed, beaten with the bat again after resisting, and lacerated with a box cutter while the victim's clothes were forcibly removed, all while the defendant kept a handgun nearby and repeatedly verbally berated the victim. Franklin v. State, 335 Ga. App. 557 , 782 S.E.2d 461 (2016).
Trial court did not err by failing to charge on mistake of fact as a defense to the counts of perjury and use of a false document in connection with filing the petition for appointment of a guardian and/or conservator because it was undisputed that the defendant reviewed and verified the accuracy of the information to be filed, any mistake about what persons were the defendant's mother's lineal descendants was a mistake of law and therefore did not require a charge on mistake of fact, and the trial court fully and adequately charged the jury regarding perjury and filing a false document and that each required a knowing and willful action. Law v. State, 349 Ga. App. 823 , 824 S.E.2d 778 (2019).
Trial court did not err by failing to sua sponte charge the jury on mistake of fact with regard to burglary of a home because the evidence established that the circumstances did not support a finding that the defendant acted under reasonable and honest mistake of fact as the video footage presented at trial showed that the defendant chose to enter the carport twice, the second time after ascertaining during the first entry that no one was home. Ogle v. State, 349 Ga. App. 872 , 827 S.E.2d 61 (2019).
Charge on mistake of fact warranted. - Because a defendant's evidence that the defendant acted under a misapprehension of fact in entering a house would have authorized the jury to acquit the defendant of burglary under O.C.G.A. § 16-7-1(a) , and because the charge that was given did not properly inform the jury about the true nature of the defendant's affirmative defense, the defendant was entitled to a charge on mistake of fact under O.C.G.A. § 16-3-5 . Price v. State, 289 Ga. 459 , 712 S.E.2d 828 (2011).
Trial court did not err in refusing to charge mistake of fact since the jury did not find justifiable homicide but found criminal intent comprising voluntary manslaughter, necessarily precluding any possibility that appellant could have been acquitted for mistake of fact. Williams v. State, 162 Ga. App. 663 , 292 S.E.2d 531 (1982).
Trial court did not err in refusing to charge mistake of fact where the asserted mistake of fact concerned whether the victim was armed and, thus, whether the defendant was justified in shooting first in self-defense where the trial court gave a full charge on self-defense. Ellis v. State, 174 Ga. App. 535 , 330 S.E.2d 764 (1985).
There was no error in failing to charge on a lesser included offense where the defendant made a specific written request for a lesser included offense instruction on mistake of fact. Taylor v. State, 195 Ga. App. 314 , 393 S.E.2d 690 (1990).
In a prosecution for shoplifting, the trial court did not err in refusing to charge mistake of fact where there was no evidence showing that defendant believed the merchandise in defendant's possession had been paid for by defendant's companion. Darty v. State, 232 Ga. App. 814 , 503 S.E.2d 76 (1998).
Trial court's refusal to charge the jury on misapprehension of fact or mistaken belief was not error because, even though the defendant may have been mistaken about the purpose of the intrusion into the victim's house, the defendant's mistaken impression did not justify breaking into the house and attempting to rob its inhabitants; thus, defendant's requested charge was not adjusted to the evidence. Taylor v. State, 272 Ga. 744 , 534 S.E.2d 67 (2000).
Trial court did not err in refusing to charge mistake of fact since defendant's defense was not a mistake of fact but was a denial of committing the crime alleged. Harden v. State, 239 Ga. App. 700 , 521 S.E.2d 829 (1999); Davis v. State, 249 Ga. App. 579 , 548 S.E.2d 678 (2001).
When the defendant was prosecuted for serving alcohol to a minor, under O.C.G.A. § 3-3-23(a)(1), it was not error for a trial court to refuse to give defendant's proffered instructions on the requirement to prove defendant's knowledge of the age of the person to whom alcohol was served or on mistake of fact because the jury was instructed, inter alia, on the requirement that defendant knowingly served alcohol to a minor, and, pursuant to O.C.G.A. § 3-3-23(h) , that, when a reasonable person could reasonably be in doubt as to whether a person to whom alcohol was served was 21 years old or older, it was a defendant's duty to request identification and that defendant's failure to do so could be considered in determining if defendant knowingly furnished alcohol to a minor. Butler v. State, 298 Ga. App. 129 , 679 S.E.2d 361 (2009).
Trial court did not err in refusing to give a defendant's requested charge on mistake of fact in defense to a charge of sexual battery based on the defendant's testimony that the defendant believed that the victim was 19 rather than 12 when the defendant performed oral sex on the victim, because the defendant denied committing the acts that constituted sexual battery. The defendant could not deny committing an act while claiming to have committed the same act by mistake. Disabato v. State, 303 Ga. App. 68 , 692 S.E.2d 701 (2010).
Trial court did not err in failing to charge the jury on the defense of mistake of fact under O.C.G.A. § 16-3-5 as to the burglary counts of the indictment because the fact that the defendant could have thought that someone lived in the home did not constitute the type of mistake of fact that would serve as a defense to the defendant's unauthorized entry into the home since the evidence was uncontroverted that the defendant was not invited into the home. Boatright v. State, 289 Ga. 597 , 713 S.E.2d 829 (2011).
Trial court did not err by failing to give the defendant's requested jury charge on the defense of mistake of fact, pursuant to O.C.G.A. § 16-3-5 , because the charge was not authorized by the evidence as the evidence did not show that the defendant was working as a confidential informant at the time when drugs were found in an inventory search of the defendant's vehicle before the impoundment of the vehicle for the defendant not having a driver's license and insurance for the vehicle. Ahmad v. State, 312 Ga. App. 703 , 719 S.E.2d 563 (2011).
Trial court did not err by denying the defendants' requests to instruct the jury on the affirmative defense of mistake of fact because the defendants' insistence that the defendants' testimony was not false certainly did not support a mistake of fact charge; and, if the defendants' memory was faulty or the defendants somehow misunderstood the actual events, such mistakes were superinduced by the defendants own fault or negligence. Marlow v. State, 339 Ga. App. 790 , 792 S.E.2d 712 (2016).
When the defendant was convicted of malice murder, the trial court did not err in failing to instruct the jury on mistake of fact as the defendant's ignorance of the exact moment of the victim's death did not negate the defendant's mental state in performing the lethal act. Collett v. State, 305 Ga. 853 , 828 S.E.2d 362 (2019).
Failure to give a mistake of fact jury charge did not amount to plain error because the defendant could not show that the trial court's failure to give the charge likely affected the outcome of the proceedings as the evidence established that the defendant fought with the victim, the defendant's father, prior to the victim's death, was holding the gun to the victim's head when the gun fired, fled the scene and failed to call for help after the shooting, admitted to numerous people that the defendant had shot the victim, lied to law enforcement on numerous occasions about the defendant's role in the victim's death, and wrote a letter to the district attorney taking full responsibility for the victim's death. Norris v. State, Ga. , 843 S.E.2d 837 (2020).
When mistake is a material issue, charge on subject is required even absent request. Henderson v. State, 141 Ga. App. 430 , 233 S.E.2d 505 (1977).
Charge on mistake of fact mandatory where it constitutes sole defense. - When the mistake of fact was the defendant's sole defense and excuse, failure to give charge on subject, even without request, was error. Arnold v. State, 157 Ga. App. 714 , 278 S.E.2d 418 (1981).
Charge mandatory even if other defenses asserted. - Failure to give a mistake-of-fact charge may constitute reversible error when that defense is the defendant's sole defense; however, it is not reversible error when the defendant asserts another defense at trial. Adcock v. State, 260 Ga. 302 , 392 S.E.2d 886 (1990).
When defendant pursued other defenses of good character and misfortune or accident, and the incident as portrayed by defendant's witness, rather than raising the spectre of misapprehension of fact, raised the possibility of accident, which principle was charged, the trial court's refusal to charge O.C.G.A. § 16-3-5 under the circumstances presented no basis for reversal. Laymac v. State, 181 Ga. App. 737 , 353 S.E.2d 559 (1987).
Inasmuch as the appellant's defense was based on justification and self-defense, and inasmuch as the trial court gave a full jury charge with respect thereto, the appellant was not entitled to a charge on mistake of fact under O.C.G.A. § 16-3-5 . Pullin v. State, 257 Ga. 815 , 364 S.E.2d 848 (1988).
Charge on sole defense of mistake need not be given unless authorized by evidence. - While the trial court is required to charge on the criminal defendant's sole defense of mistake of fact, even absent request to do so, such charge is not required where it is not authorized by evidence. Gunter v. State, 155 Ga. App. 176 , 270 S.E.2d 224 (1980).
Misapprehension of officer's right to enter house one of law rather than fact. - In prosecution for obstruction of a law enforcement officer, where defendant was aware that police were attempting to enter defendant's home to arrest another individual, and defendant's only concern was whether the officer had lawful authority to enter the house to apprehend the subject, this constituted a misapprehension of the law rather than one of fact, thus, a charge on O.C.G.A. § 16-3-5 was not warranted. Brown v. State, 163 Ga. App. 209 , 294 S.E.2d 305 (1982).
Defendant's misapprehension over victim's possession of weapon. - In a prosecution for aggravated assault, because the trial court charged the jury on justification, self-defense, misfortune, and accident, the defendant's contention that a charge on mistake of fact was warranted because defendant mistakenly believed that a cordless telephone carried by the victim was a gun was not valid. Free v. State, 245 Ga. App. 886 , 539 S.E.2d 213 (2000).
Defense counsel did not provide ineffective assistance of counsel by failing to request a charge of mistake of fact under O.C.G.A. § 16-3-5 as the charge was not supported by the evidence as the defendant testified that the defendant was totally unaware of any of the codefendants' plans for breaking or entering the house; thus, the defense was a lack of knowledge of the crime, not that the defendant knew they had broken into the victim's house, but believed that they were authorized to do so, and the trial court charged the jury on mere presence, mere association, and the requirement that the state prove beyond a reasonable doubt that the defendant knew that a crime was being committed. Botelho v. State, 268 Ga. App. 129 , 601 S.E.2d 494 (2004).
Requested instruction should have been given. - In the defendant's trial on a charge of armed robbery, in violation of O.C.G.A. § 16-8-41 , the trial court should have provided the jury with a requested instruction on mistake of fact pursuant to O.C.G.A. § 16-3-5 , as the defendant's knowledge of a plan or intent to rob was a material element of the charge and there was evidence that might have supported the defendant's version of events. Windhom v. State, 315 Ga. App. 855 , 729 S.E.2d 25 (2012).
RESEARCH REFERENCES
Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, § 148.
C.J.S. - 22 C.J.S., Criminal Law: Substantive Principles, § 125.
ALR. - Reliance upon advice of counsel as affecting criminal responsibility, 133 A.L.R. 1055 .
Relief to owner of motor vehicle subject to state forfeiture for use in violation of narcotics laws, 50 A.L.R.3d 172.
Unintentional killing of or injury to third person during attempted self-defense, 55 A.L.R.3d 620.
Mistake or lack of information as to victim's age as defense to statutory rape, 46 A.L.R.5th 499.
16-3-6. Affirmative defenses to certain sexual crimes.
-
As used in this Code section, the term:
- "Coercion" shall have the same meaning as set forth in Code Section 16-5-46.
- "Deception" shall have the same meaning as set forth in Code Section 16-5-46.
- "Sexual crime" means prostitution, sodomy, solicitation of sodomy, or masturbation for hire as such offenses are proscribed in Chapter 6 of Title 16.
- "Sexual servitude" shall have the same meaning as set forth in Code Section 16-5-46.
-
A person shall not be guilty of a sexual crime if the conduct upon which the alleged criminal liability is based was committed by an accused who was:
- Less than 18 years of age at the time of the conduct such person was being trafficked for sexual servitude in violation of subsection (c) of Code Section 16-5-46; or
- Acting under coercion or deception while the accused was being trafficked for sexual servitude in violation of subsection (c) of Code Section 16-5-46.
- A defense based upon any of the provisions of this Code section shall be an affirmative defense. (Code 1981, § 16-3-6 , enacted by Ga. L. 2011, p. 217, § 3/HB 200; Ga. L. 2015, p. 675, § 4-1/SB 8.)
Cross references. - Modification of orders of adjudicated delinquent children for sexual crimes, § 15-11-32 .
Affirmative defenses, § 16-3-28 .
Investigation of trafficking offenses, § 35-3-4.3 .
Editor's notes. - Ga. L. 2015, p. 675, § 1-1/SB 8, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Safe Harbor/Rachel's Law Act.'"
Ga. L. 2015, p. 675, § 1-2/SB 8, not codified by the General Assembly, provides: "(a) The General Assembly finds that arresting, prosecuting, and incarcerating victimized children serves to retraumatize children and increases their feelings of low self esteem, making the process of recovery more difficult. The General Assembly acknowledges that both federal and state laws recognize that sexually exploited children are the victims of crime and should be treated as victims. The General Assembly finds that sexually exploited children deserve the protection of child welfare services, including family support, crisis intervention, counseling, and emergency housing services. The General Assembly finds that it is necessary and appropriate to adopt uniform and reasonable assessments and regulations to help address the deleterious secondary effects, including but not limited to, prostitution and sexual exploitation of children, associated with adult entertainment establishments that allow the sale, possession, or consumption of alcohol on premises and that provide to their patrons performances and interaction involving various forms of nudity. The General Assembly finds that a correlation exists between adult live entertainment establishments and the sexual exploitation of children. The General Assembly finds that adult live entertainment establishments present a point of access for children to come into contact with individuals seeking to sexually exploit children. The General Assembly further finds that individuals seeking to exploit children utilize adult live entertainment establishments as a means of locating children for the purpose of sexual exploitation. The General Assembly acknowledges that many local governments in this state and in other states found deleterious secondary effects of adult entertainment establishments are exacerbated by the sale, possession, or consumption of alcohol in such establishments.
"(b) The purpose of this Act is to protect a child from further victimization after he or she is discovered to be a sexually exploited child by ensuring that a child protective response is in place in this state. The purpose and intended effect of this Act in imposing assessments and regulations on adult entertainment establishments is not to impose a restriction on the content or reasonable access to any materials or performances protected by the First Amendment of the United States Constitution or Article I, Section I, Paragraph V of the Constitution of this state."
Law reviews. - For article on the 2011 enactment of this Code section, see 28 Ga. St. U. L. Rev. 131 (2011). For article, "Crimes and Offenses: Crimes Against the Person," see 28 Ga. St. U. L. Rev. 131 (2011). For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 43 (2015).
ARTICLE 2 JUSTIFICATION AND EXCUSE
Law reviews. - For note, "Heating Up and Cooling Down: Modifying the Provocation Defense by Expanding Cooling Time," see 54 Ga. L. Rev. 761 (2020).
JUDICIAL DECISIONS
Defendant does not bear burden of persuasion as to affirmative defenses. - Affirmative defenses authorized by the former Criminal Code and former Code 1933, § 26-1003 (see now O.C.G.A. § 16-4-5 ) imply that if a defendant presents one it is to defendant's advantage and to defendant's interest to affirmatively show it as best defendant can, but defendant has no burden to show it nor does defendant have burden of persuasion. Moore v. State, 137 Ga. App. 735 , 224 S.E.2d 856 , rev'd on other grounds, 237 Ga. 269 , 227 S.E.2d 241 (1976).
Cited in Grainger v. State, 138 Ga. App. 753 , 227 S.E.2d 483 (1976); Perkins v. State, 151 Ga. App. 199 , 259 S.E.2d 193 (1979); Powell v. State, 154 Ga. App. 568 , 269 S.E.2d 70 (1980); Patterson v. Fuller, 654 F. Supp. 418 (N.D. Ga. 1987); Hightower v. State, 224 Ga. App. 703 , 481 S.E.2d 867 (1997), overruled on other grounds by McClure v. State, 306 Ga. 856 , 834 S.E.2d 96 (2019); Budhani v. State, 306 Ga. 315 , 830 S.E.2d 195 (2019).
RESEARCH REFERENCES
ALR. - Homicide or assault in attempting to prevent elopement, 8 A.L.R. 660 .
Fact that gun was unloaded as affecting criminal responsibility, 68 A.L.R.4th 507.
16-3-20. Justification.
The fact that a person's conduct is justified is a defense to prosecution for any crime based on that conduct. The defense of justification can be claimed:
- When the person's conduct is justified under Code Section 16-3-21, 16-3-23, 16-3-24, 16-3-25, or 16-3-26;
- When the person's conduct is in reasonable fulfillment of his duties as a government officer or employee;
- When the person's conduct is the reasonable discipline of a minor by his parent or a person in loco parentis;
- When the person's conduct is reasonable and is performed in the course of making a lawful arrest;
- When the person's conduct is justified for any other reason under the laws of this state, including as provided in Code Section 51-1-29; or
-
In all other instances which stand upon the same footing of reason and justice as those enumerated in this article.
(Code 1933, § 26-901, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1999, p. 81, § 16; Ga. L. 2015, p. 598, § 2-2/HB 72.)
Law reviews. - For survey article on criminal law, see 60 Mercer L. Rev. 85 (2008). For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 63 (2015).
JUDICIAL DECISIONS
ANALYSIS
General Consideration
Editor's notes. - In light of the similarity of the statutory provisions, decisions decided under former Code 1933, §§ 26-1011 and 26-1016 prior to revision of title by Ga. L. 1968, p. 1249 are included in the annotations for this Code section.
Premise for defense under paragraph (6). - In order to "stand upon the same footing of reason and justice," a defense of justification under O.C.G.A. § 16-3-20(6) would still have to be premised upon the asserted prevention of "imminent use of unlawful force." Hoover v. State, 198 Ga. App. 481 , 402 S.E.2d 92 (1991).
Justifiable homicide is a substantive and affirmative defense. Trask v. State, 132 Ga. App. 645 , 208 S.E.2d 591 (1974).
Burden of proof rests entirely upon state, even when defendant asserts affirmative defense as set out in O.C.G.A. § 16-3-20 . Barnes v. State, 178 Ga. App. 205 , 342 S.E.2d 388 (1986).
When a defendant raises the affirmative defense of justification and testifies to the same, the burden is on the state to disprove that defense beyond a reasonable doubt. Anderson v. State, 262 Ga. 7 , 413 S.E.2d 722 (1992), overruled on other grounds, 264 Ga. 253 , 443 S.E.2d 626 (1994).
Law presumes every killing to be malicious until contrary appears from circumstances of alleviation, excuse, or justification; and it is incumbent on defendant to make out such circumstances to satisfaction of jury. Mullis v. State, 196 Ga. 569 , 27 S.E.2d 91 (1943) (decided under former Code 1933, § 26-1011).
When homicide is shown to have been committed by a defendant, or is admitted by a defendant, a legal presumption of malice arises, and it devolves upon the defendant to exculpate oneself from the crime and guilt of murder by showing justification, mitigation, or excuse, unless defendant's statement admitting the killing or state's evidence showing the killings, or surrounding facts and circumstances connected with such evidence or admission should themselves tend to justify or mitigate the homicide. Cady v. State, 198 Ga. 99 , 31 S.E.2d 38 , appeal dismissed and cert. denied, 323 U.S. 676, 65 S. Ct. 190 , 89 L. Ed. 549 (1944) (decided under former Code 1933, § 26-1011).
When evidence relied upon by state discloses circumstances of justification, presumption of malice does not arise; and in such case, burden does not devolve on defendant to show such facts as would reduce homicide from murder to manslaughter or justify it. Mullis v. State, 196 Ga. 569 , 27 S.E.2d 91 (1943) (decided under former Code 1933, § 26-1011).
Justification, if established under former Code 1933, § 26-1011, should always result in acquittal. Gordy v. State, 93 Ga. App. 743 , 92 S.E.2d 737 (1956) (decided under former Code 1933, § 26-1011).
When justification is found, defendant is entitled to acquittal. - Justifiable homicide is in law itself a substantive and affirmative defense, and, if found well supported in fact, the accused is entitled to an acquittal, without reference to evidence which apparently tended to convict the accused of the offense of murder or voluntary manslaughter. Fountain v. State, 207 Ga. 144 , 60 S.E.2d 433 (1950), overruled on other grounds, Lavender v. State, 234 Ga. 608 , 216 S.E.2d 855 (1975); Farr v. State, 83 Ga. App. 855 , 65 S.E.2d 270 (1951) (decided under former Code 1933, § 26-1011).
In a prosecution for malice murder, felony murder, and aggravated assault, although no error resulted from the trial court's issuance of a sequential jury charge, because the jury found in the defendant's favor on the defense of justification as to the malice murder count, the finding also applied to the felony murder charge. Thus, the trial court erred in finding the defendant guilty of both felony murder and the underlying felony of aggravated assault. Turner v. State, 283 Ga. 17 , 655 S.E.2d 589 (2008).
State carried burden of disproving justification defense. - Trial court did not err in determining that the state carried the state's burden of introducing evidence that disproved the defendant's alleged justification for the defendant's use of deadly force because the defendant intentionally fired a gun at the defendant's fiancee and the fiancee's three children while they were sitting in the fiancee's car and it was within the jury's province to reject the defendant's contention that the defendant was afraid the fiancee was trying to run the defendant over. Williams v. State, 347 Ga. App. 171 , 818 S.E.2d 88 (2018).
No verdict less than acquittal cures omission or erroneous charge of justifiable homicide. - If, under facts of case in which defendant is charged with murder, a charge or charges on justification is authorized, and court charges erroneously on defense or defenses, no verdict less than one of acquittal could cure such error or errors. McKibben v. State, 88 Ga. App. 466 , 77 S.E.2d 86 (1953) (decided under former Code 1933, § 26-1011).
Self-defense applicable to delusional compulsion defense. - General law of self-defense was properly applied to determine whether defendant had met the justification criteria for delusional compulsion defense. Dutton v. State, 225 Ga. App. 67 , 483 S.E.2d 305 (1997).
Cited in Johnson v. State, 122 Ga. App. 542 , 178 S.E.2d 42 (1970); Brown v. State, 228 Ga. 215 , 184 S.E.2d 655 (1971); Hewitt v. State, 127 Ga. App. 180 , 193 S.E.2d 47 (1972); Highland v. State, 127 Ga. App. 518 , 194 S.E.2d 332 (1972); Howard v. State, 128 Ga. App. 807 , 198 S.E.2d 334 (1973); Singleton v. State, 129 Ga. App. 644 , 200 S.E.2d 507 (1973); Sims v. State, 234 Ga. 177 , 214 S.E.2d 902 (1975); King v. State, 134 Ga. App. 636 , 215 S.E.2d 532 (1975); Henderson v. State, 136 Ga. App. 490 , 221 S.E.2d 633 (1975); Ellis v. State, 137 Ga. App. 834 , 224 S.E.2d 799 (1976); Colson v. State, 138 Ga. App. 366 , 226 S.E.2d 154 (1976); Reaves v. State, 146 Ga. App. 409 , 246 S.E.2d 427 (1978); McCane v. State, 147 Ga. App. 730 , 250 S.E.2d 181 (1978); Lanham v. State, 243 Ga. 576 , 255 S.E.2d 52 (1979); Carter v. State, 150 Ga. App. 119 , 257 S.E.2d 11 (1979); Frazier v. State, 150 Ga. App. 343 , 258 S.E.2d 29 (1979); Lemley v. State, 245 Ga. 350 , 264 S.E.2d 881 (1980); Anderson v. State, 245 Ga. 619 , 266 S.E.2d 221 (1980); Powell v. State, 154 Ga. App. 568 , 269 S.E.2d 70 (1980); Townsend v. State, 155 Ga. App. 422 , 271 S.E.2d 7 (1980); Hill v. State, 156 Ga. App. 518 , 275 S.E.2d 104 (1980); Mason v. Balkcom, 487 F. Supp. 554 (M.D. Ga. 1980); Williams v. State, 249 Ga. 6 , 287 S.E.2d 31 (1982); Whatley v. State, 162 Ga. App. 106 , 290 S.E.2d 316 (1982); Young v. State, 163 Ga. App. 507 , 295 S.E.2d 175 (1982); Millwood v. State, 164 Ga. App. 699 , 296 S.E.2d 239 (1982); Rivers v. State, 250 Ga. 288 , 298 S.E.2d 10 (1982); Taylor v. State, 180 Ga. App. 200 , 348 S.E.2d 582 (1986); Dukes v. State, 285 Ga. App. 172 , 645 S.E.2d 664 (2007); McClendon v. State, 287 Ga. App. 238 , 651 S.E.2d 165 (2007); Hudson v. State, 296 Ga. App. 692 , 675 S.E.2d 578 (2009); Hines v. State, 308 Ga. App. 299 , 707 S.E.2d 534 (2011).
Application
Effect of court's refusal to sever in felony murder trial. - Trial court's refusal to sever charge of felony murder while in commission of the offense of possession of a firearm by a convicted felon does not create an irrebuttable presumption of an absence of justification. Smith v. State, 257 Ga. 468 , 360 S.E.2d 591 (1987).
Evidence sufficient to show that defendant acted in self-defense. - See Steele v. State, 166 Ga. App. 24 , 303 S.E.2d 462 (1983).
Simple battery. - Justification is a defense in a case of simple battery. Harrell v. State, 205 Ga. App. 378 , 422 S.E.2d 71 (1992).
Underage drinking. - Defendant's conviction for underaged drinking of an alcoholic beverage was upheld on appeal since the police officer smelled alcohol on the defendant's breath in the county wherein the defendant was arrested, which was enough to establish venue, pursuant to O.C.G.A. § 17-2-2(h) and, because the defendant never produced evidence that a parent or guardian gave the defendant the beer that the defendant admitted to drinking and that the possession of the beer was in the home and presence of a parent or guardian, the defendant failed to establish the affirmative defense under O.C.G.A. § 3-3-23(a)(2). Burchett v. State, 283 Ga. App. 271 , 641 S.E.2d 262 (2007).
Reasonable discipline of child. - When in prosecution for cruelty to children the state's evidence showed that the victim was a five-year old child upon whom bruises were visible on about 75 percent of the face and neck and 25 percent of the body, the trial court committed no error in refusing to charge O.C.G.A. § 16-3-20(3) , as such injuries, if occasioned by defendant's acts, could not be determined to have been reasonable discipline. Bearden v. State, 163 Ga. App. 434 , 294 S.E.2d 667 (1982).
Homicide defendant who relies on the "reasonable parental discipline" justification defense is not entitled to an additional instruction on involuntary manslaughter in the course of a lawful act because if the defendant is justified in administering reasonable parental discipline the defendant is guilty of no crime; if the defendant is not entitled to rely on the reasonable discipline defense, the homicide does not fall within the "lawful act" predicate of O.C.G.A. § 16-5-3(b) , since in rejecting the justification claim the jury has determined that the act was not lawful. Paul v. State, 274 Ga. 601 , 555 S.E.2d 716 (2001), cert. denied, 537 U.S. 828, 123 S. Ct. 123 , 154 L. Ed. 2 d 41 (2002).
Killing for revenge. - It is error to charge jury that no matter what circumstances might be, killing committed in spirit of revenge is never justifiable. Crolger v. State, 88 Ga. App. 566 , 77 S.E.2d 98 (1953) (decided under former Code 1933, § 26-1011).
In order to make killing justifiable on grounds that it was committed under fears of a reasonable man, an essential element is that it must appear the homicide was not committed in a spirit of revenge. Lackey v. State, 217 Ga. 345 , 122 S.E.2d 115 (1961) (decided under former Code 1933, § 26-1011).
Evidence clearly authorized finding that defendant was not "justified" in escape from the county correctional institute in which defendant stipulated to being lawfully confined. Mullins v. State, 167 Ga. App. 670 , 307 S.E.2d 61 (1983).
Right to resist unlawful arrest permits use of force proportionate to force being unlawfully exerted. Mullis v. State, 196 Ga. 569 , 27 S.E.2d 91 (1943) (decided under former Code 1933, § 26-1011).
Prevention of planned act of adultery as justification for homicide. - Charge which provides that if jury finds that marriage relation existed between defendant in murder trial and her purported husband, each would have mutual right to protect such relationship, and shooting of a third person by one of them to prevent adultery with the other may be justified by real or apparent necessity presented by facts and circumstances as they appear to her at moment of her interposition to prevent the adultery, was a proper charge. Drewry v. State, 208 Ga. 239 , 65 S.E.2d 916 (1951) but see Burger v. State, 238 Ga. 171 , 231 S.E.2d 769 (1977) (decided under former Code 1933, § 26-1016).
If wife kills another woman to prevent sexual relations between such other woman and her husband, the killing is justified provided the killing was apparently necessary to prevent commission of such sexual act. In order to justify such a killing it is not necessary that the act be in progress, or that it is to be committed then and there. It is enough if it is apparent that the killing is necessary to prevent a planned act of sexual intercourse. Scroggs v. State, 94 Ga. App. 28 , 93 S.E.2d 583 (1956) but see Burger v. State, 238 Ga. 171 , 231 S.E.2d 769 (1977) (decided under former Code 1933, § 26-1016).
Slaying of illicit lover by wronged spouse in order to prevent adultery is not justifiable homicide. Chancellor v. State, 165 Ga. App. 365 , 301 S.E.2d 294 (1983).
It was not error for the trial court to inform the jury that a person was not justified in taking the life of a spouse's lover in order to prevent adultery. Chancellor v. State, 165 Ga. App. 365 , 301 S.E.2d 294 (1983).
Since the Supreme Court has ruled that prevention of adultery does not justify the killing of an illicit lover by a spouse, and the Court of Appeals has ruled that mental anguish does not rise to the level of "great bodily harm" as it is used in O.C.G.A. § 16-3-21 , an instruction that justification was a possible defense under O.C.G.A. § 16-3-20(6) was not authorized and the trial court committed no error in refusing to give it. Chancellor v. State, 165 Ga. App. 365 , 301 S.E.2d 294 (1983).
No justification. - Conduct is not justified under O.C.G.A. § 16-3-20(6) when purpose is ensuring that one's dog gets to stay inside one's house. Mitchell v. State, 187 Ga. App. 40 , 369 S.E.2d 487 , cert. denied, 187 Ga. App. 908 , 369 S.E.2d 487 (1988).
Even though the trial court charged the jury on justification in the specific context of defense of self or a third person as provided in O.C.G.A. § 16-3-21(a) and defense of property as provided in O.C.G.A. § 16-3-24 , such instruction alone failed to fairly present to the jury the law on defendant's theory of the case and defendant's defense of justification. The trial court erred in failing to charge justification under O.C.G.A. § 16-3-20(6) and in failing to charge the jury on the state's burden of proving the absence of the elements of a justification defense. Nelson v. State, 213 Ga. App. 641 , 445 S.E.2d 543 (1994).
Jury charge on justification was not required where the evidence, including defendant's own statements, showed that the victim was shot as the victim was trying to leave the premises and there was no hint of confrontation with defendant or that defendant was fearful for own safety or that of others. Bowden v. State, 270 Ga. 19 , 504 S.E.2d 699 (1998).
Grounds for justification outlined in O.C.G.A. § 16-3-20 did not include a desire not to wake a sleeping child as justification for disobeying lawful orders of an officer, and, thus, the state disproved that affirmative defense to the charge against defendant of obstruction of an officer. Arsenault v. State, 257 Ga. App. 456 , 571 S.E.2d 456 (2002).
Trial court erred in finding that a guardian had proved by a preponderance of the evidence, as required under O.C.G.A. § 19-13-3(a) , that a parent committed an act of family violence pursuant to O.C.G.A. § 19-13-1 , as there was insufficient evidence that the parent committed an act of violence, specifically simple battery in violation of O.C.G.A. § 16-5-23 , as opposed to administering reasonable discipline in the form of corporal punishment, as O.C.G.A. § 16-5-23 specifically exempted corporal punishment from the definition of battery, and the appellate court determined after considering O.C.G.A. § 16-3-20 and O.C.G.A. § 20-2-731 that the alleged action of the parent in slapping the child did not arise to the level of unreasonable discipline. Buchheit v. Stinson, 260 Ga. App. 450 , 579 S.E.2d 853 (2003).
Jury was authorized to find that the defendant's resistance to being arrested after the defendant pushed and hit another officer was not legally justified under O.C.G.A. § 16-3-20 because the jury was authorized to disbelieve the defendant's claim that the defendant was attempting to get medical assistance for the defendant's parent who was having a seizure, and to reject that defense. Harris v. State, 276 Ga. App. 234 , 622 S.E.2d 905 (2005).
Because the defendant failed in the burden of proving that the evidence of specific acts of violence by the victim should be admitted, and testimony did not establish that the event occurred before the defendant's attack on the victim, the trial court's ruling that there was no evidence to support a defense of justification was not clearly erroneous. Cross v. State, 285 Ga. App. 518 , 646 S.E.2d 723 (2007), cert. denied, No. S07C1479, 2007 Ga. LEXIS 680 (Ga. 2007).
Defendant did not present sufficient evidence to show justification for the victim's murder because multiple witnesses testified that the defendant came out from the defendant's hiding place behind the victim and loudly taunted the victim as the defendant fired the defendant's weapon; the defendant admitted surreptitiously following the victim and then taunting the victim as the defendant fired; several witnesses testified the victim was standing with the victim's back to the defendant when shots rang out and before the victim fired a shot; and the jury could conclude the defendant pursued the victim and the victim's friend, laid in wait to shoot the victim, and commenced shooting when the victim's back was turned to the defendant. McCray v. State, 301 Ga. 241 , 799 S.E.2d 206 (2017).
Ineffective assistance not found as evidence did not support justification defense. - Trial counsel's failure to introduce evidence of the defendant's mental health history was not ineffective assistance of counsel as a prior shooting, in which the defendant was shot, could not support a justification defense. Harris v. State, 279 Ga. 304 , 612 S.E.2d 789 (2005).
Counsel ineffective when evidence of victim's prior act of violence not admitted. - When the defendant presented a prima facie case of justification, counsel was ineffective in not introducing evidence of a prior act of violence by the victim based on counsel's mistaken belief that such an act had to have occurred prior to the act being tried in order to be admissible. The error was not harmless as the assault, which like the charged crime involved an assault with a gun upon a man leaving the residence of the victim's ex-spouse, was highly relevant to the sole defense of justification. Bennett v. State, 298 Ga. App. 464 , 680 S.E.2d 538 (2009).
Battered person defense not allowed. - In a prosecution for child molestation, defendant was not allowed to assert a battered person defense since the criminal acts were directed toward nonaggressor victims and self-defense was not an issue in the case. Graham v. State, 239 Ga. App. 429 , 521 S.E.2d 249 (1999).
In a prosecution for possession of marijuana, defendant was not entitled to an instruction on justification based on defendant's use of marijuana for certain physical ailments. Carlson v. State, 240 Ga. App. 589 , 524 S.E.2d 283 (1999).
There was no error in the refusal to admit expert testimony regarding the battered person syndrome to support the defendant's justification defense of coercion at the defendant's trial for various assault crimes committed against the defendant's nine-year-old child. Pickle v. State, 280 Ga. App. 821 , 635 S.E.2d 197 (2006), cert. denied, No. S06C2150, 2007 Ga. LEXIS 110, 111 (Ga. 2007).
Self-defense applicable to delusional compulsion defense. - General law of self-defense was properly applied to determine whether the defendant had met the justification criteria for delusional compulsion defense. Dutton v. State, 225 Ga. App. 67 , 483 S.E.2d 305 (1997).
Prima facie case of justification established. - Because the state's evidence established a prima facie case of justification through the defendant's statement, in which the defendant claimed to have shot the victim out of self-defense, it was error to refuse to admit evidence of violence by the victim toward a third party unless the defendant testified. The error, which implicated the Fifth Amendment, was not harmless because when the defendant took the stand, the state was able on cross-examination to undermine the defense by showing that the defendant had been able to disarm the victim in the past by using the defendant's military training. Williams v. State, 298 Ga. App. 151 , 679 S.E.2d 377 (2009).
Defense unavailable when defendant did not admit to crimes charged. - Trial court properly refused to allow the defendant, who was charged with obstructing an officer, to testify as to the defendant's state of mind in order to prove the defense of justification; because the defendant did not admit to the crimes charged, the defense of justification was not available. Ojemuyiwa v. State, 285 Ga. App. 617 , 647 S.E.2d 598 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Jury free to reject defense. - Jury was free to accept the evidence that the shootings were not done in self-defense or in defense of another person, including the defendant's own inculpatory statements, and to reject any evidence offered by the defendant in support of a justification defense. Harris v. State, 279 Ga. 304 , 612 S.E.2d 789 (2005).
Prima facie showing of justification. - Defendant, who claimed to have acted in self-defense when the defendant beat the victim with a pipe, made a prima facie showing of justification. The defendant testified that the victim approached the defendant, uttered a racial epithet, and threatened to shoot the defendant, and the defendant claimed that the defendant feared for the defendant's life because the defendant knew of the victim's reputation and had previously seen the victim with a pistol in the victim's jeans. Bennett v. State, 298 Ga. App. 464 , 680 S.E.2d 538 (2009).
Jury Instruction
Absent request, charge on justification not required if raised solely by defendant's statement. McKibben v. State, 88 Ga. App. 466 , 77 S.E.2d 86 (1953) (decided under former Code 1933, § 26-1011).
Judge may construct a charge upon various issues made by evidence, and if defense is set up in statement alone, it is not error for judge to omit submitting law appropriate to such defense, in absence of timely written request. Pope v. State, 76 Ga. App. 288 , 45 S.E.2d 681 (1947) (decided under former Code 1933, § 26-1011).
In a trial in which the defendant claimed that the defendant was wrongfully threatened by a drug dealer that if the defendant did not fatally shoot a victim, then the dealer would harm the defendant and the defendant's family members, and accordingly, the defendant shot the victim and then hid the victim's body in a shallow grave until such time as the defendant confessed to the crime 10 years later, the trial court properly refused to instruct the jury on justification pursuant to O.C.G.A. § 16-3-20(6) , as the defendant's criminal acts were directed toward a non-aggressor victim and there was no evidence that the defendant or any family members were threatened with "imminent death or great bodily injury"; furthermore, a coercion defense under O.C.G.A. § 16-3-26 would not be applicable to a charge of murder. Gravitt v. State, 279 Ga. 33 , 608 S.E.2d 202 (2005).
In a prosecution for driving under the influence and making an improper lane change, because the defendant did not request instructions on accident and justification, the trial court did not err in failing to give those instructions; moreover, because the jury was charged on involuntary intoxication, the failure to charge on accident was not harmful as a matter of law. Walker v. State, 280 Ga. App. 393 , 634 S.E.2d 177 (2006).
Where court charges on justification, even though not raised at trial, defendant cannot complain. - If issue of justification is not raised by evidence or defendant's statement, but, nevertheless, court charges, either correctly or incorrectly, on justification, defendant cannot complain, as court under these circumstances has given or attempted to give defendant benefit of a defense to which defendant was not entitled. McKibben v. State, 88 Ga. App. 466 , 77 S.E.2d 86 (1953) (decided under former Code 1933, § 26-1011).
O.C.G.A. § 40-6-395(a) was not unconstitutional merely because the statute failed to include a provision for the exercise of a fundamental right of self-defense, given the statutory defense that the fact that a person's conduct was justified remained a defense to the prosecution for any crime based on that conduct; moreover, the defendant was permitted to present evidence of justification, and the trial court instructed the jury that justification was a defense and could be claimed when the person's conduct was justified for any reason under the law or in all other instances based on similar reason and justice. Harbuck v. State, 280 Ga. 775 , 631 S.E.2d 351 (2006).
Defendant entitled to a charge as to justification. - When a defendant was charged with possession of a firearm by a convicted felon, the defendant was entitled to a charge as to justification, the only defense defendant claimed; when the court refused to so charge, and charged merely the language of O.C.G.A. § 16-11-131 , this was tantamount to a directed verdict, requiring reversal. Little v. State, 195 Ga. App. 130 , 392 S.E.2d 896 (1990).
When the defendant testified that he drove without a license because his wife was experiencing labor pains, the doctor said he needed to see her, and she could not drive herself to the doctor's office, a jury could have found that his decision to seek medical help for his wife and their soon-to-be-born child stands on "the same footing of reason and justice" as a government employee's reasonable fulfillment of his duties, a parent's reasonable discipline of a child, and a person's reasonable conduct in performing a citizen's arrest. Tarvestad v. State, 261 Ga. 605 , 409 S.E.2d 513 (1991).
Trial court's failure to charge the jury on justification as a defense to the crime of impersonating an officer was reversible error since defendant's sole defense was justification. Wells v. State, 200 Ga. App. 104 , 407 S.E.2d 86 (1991).
When the defendant's testimony provided "some" evidence in support of defendant's justification defense based on a claim of self-defense, the trial court's refusal to charge the jury on this sole defense was reversible error, even though the defendant was a convicted felon and not authorized by law to possess a firearm. Jones v. State, 220 Ga. App. 784 , 470 S.E.2d 326 (1996).
In a prosecution for interference with government property, the court improperly refused to charge the jury with regard to justification where: (1) it was undisputed that the defendant had high blood pressure and allergies and that pepper spray with which defendant was sprayed caused defendant acute respiratory distress; (2) while seated in a police cruiser, defendant screamed for air, gagged, and bodily secretions streamed down defendant's face; (3) although an officer cracked one window a few inches, this brought the defendant no relief; and (4) defendant kicked out the window to ease the symptoms. Moore v. State, 234 Ga. App. 332 , 506 S.E.2d 685 (1998).
Defendant was entitled to a jury charge on the affirmative legal defense of justification on the charge of failure to maintain a lane, which was defendant's sole defense, since the testimony could support that charge. Smith v. State, 250 Ga. App. 532 , 552 S.E.2d 499 (2001).
Defendant was not entitled to an instruction on the defense of justification regarding a charge of possession of a firearm as a convicted felon because the defendant did not present evidence of any imminent threat or other present threat of death or serious bodily harm either to the defendant or to a third party. Branton v. State, 292 Ga. App. 104 , 663 S.E.2d 414 (2008), cert. denied, No. S08C1771, 2008 Ga. LEXIS 873 (Ga. 2008).
In a prosecution for kidnapping the defendant's former lawyer and law firm employees, the defendant was not entitled to a jury instruction on a justification defense under O.C.G.A. § 16-3-20(5) or (6) as the defendant did not identify any reason under state law that would have justified such conduct, the defendant had no duty to act on behalf of a third party, and there was no need for prompt action. Brower v. State, 298 Ga. App. 699 , 680 S.E.2d 859 (2009), cert. denied, No. S09C1845, 2010 Ga. LEXIS 13 (Ga. 2010), overruled on other grounds by McClure v. State, 306 Ga. 856 , 834 S.E.2d 96 (2019).
Trial court did not err in refusing to charge the jury on the defense of justification because the defendant made no attempt to argue how the defendant's subjective, drug-influenced belief that the defendant was being pursued across the state by unidentified men with Uzis supported the application of a justification defense; defendant's fear, which was based upon an earlier encounter with unidentified men, could not provide justification for the crimes because there was no immediate threat of would-be assassins at the time of the crimes but only a pursuit by law enforcement vehicles with lights flashing and sirens blaring. Luke v. State, 306 Ga. App. 701 , 703 S.E.2d 335 (2010).
Circumstances did not support a charge on justification because the defendant's argument that the defendant did not intend to commit any crime could be contradicted by a defense that the defendant acted intentionally but was justified in doing so; while a defendant may choose to pursue alternative defense theories, the trial court has no obligation to charge the jury sua sponte on all possible theories of defense. Luke v. State, 306 Ga. App. 701 , 703 S.E.2d 335 (2010).
Defendant was not entitled to a jury instruction on justification because, under the defendant's version of events, the damage to the parked cars resulted from an unavoidable accident; the defendant's testimony as to the reasons for the decision to steer the truck towards the parked cars, to avoid people, served to support the defendant's accident defense, and such a position was inconsistent with a justification defense. Jackson v. State, 329 Ga. App. 240 , 764 S.E.2d 569 (2014).
Trial court did not err in not charging the jury on the omnibus justification defense because the defendant's argument that the defendant feared for the lives of the defendant's family at the hands of a codefendant, as well as the defendant's own life, if the defendant did not do what the codefendant wished did not fall under the omnibus justification defense as there was not a current or imminent threat because there was no evidence that the codefendant was in a position to harm the defendant's family when the defendant committed the acts. Allen v. State, 296 Ga. 785 , 770 S.E.2d 824 (2015).
Trial court did not err by failing to instruct the jury on the defenses of accident and justification as the defendant denied shaking the baby and, given the undisputed evidence regarding the number and severity of the child's injuries, the amount of force required to inflict the injuries, and that such injuries could not have been inflicted by accident, it was unlikely the jury would have found in the defendant's favor on either defense. Noel v. State, 297 Ga. 698 , 777 S.E.2d 449 (2015).
In a case of elder abuse, the trial court did not err in failing to instruct the jury on justification because the victim, the defendant's mother, was living with the defendant as a result of the defendant's own actions in discharging the victim from the nursing center and choosing to be the victim's care giver and there was no evidence that indicated that the victim was in such immediate danger that the defendant had to tie the victim to the bed instead of utilizing other options that were available. Haynes v. State, 337 Ga. App. 433 , 787 S.E.2d 776 (2016), cert. denied, No. S16C1776, 2017 Ga. LEXIS 64 (Ga. 2017).
Charge as to justification not misleading or confusing. - In a trial for aggravated assault, the jury charge as to justification was not misleading or confusing; the charge made it clear that the state bore the burden of proving both elements of aggravated assault under the indictment and that defendant's use of force was not justified beyond a reasonable doubt. White v. State, 291 Ga. App. 249 , 661 S.E.2d 865 (2008).
Defendant was not required to admit criminal conduct to be entitled to a charge on justification. - In the defendant's aggravated assault trial, O.C.G.A. § 16-5-21(a)(2), based on the defendant aiming a BB rifle at two victims, the trial court erred in denying the defendant's requested jury instructions on the defense of self and habitation, on the basis that the defendant did not admit aiming at the victims; if slight evidence supported the defenses, the charges should have been given. Defendant was not required to admit the elements of the crime in order to argue the defendant's theory of defense. McClure v. State, 306 Ga. 856 , 834 S.E.2d 96 (2019).
When specific instruction unnecessary. - Court did not err in failing to specifically charge the jury on the law of justification and coercion since the charge and the evidence as a whole adequately and fairly presented the defendant's theories of the case, that is, that the defendant was only incidentally involved in the commission of the crimes (armed robbery and kidnapping), and the defendant's testimony was not that the defendant was coerced into commission of the crime, but that the defendant on the defendant's own initiative had robbed the victim and forced the victim into the automobile, that the defendant was at all times attempting to talk the codefendant out of committing the crime, and that the defendant had nothing to do with either the robbery or the kidnapping. Mallory v. State, 166 Ga. App. 812 , 305 S.E.2d 656 (1983).
Ineffective assistance not found. - Trial court properly denied the defendant's request for a justification charge as there was no evidence to authorize such charge under O.C.G.A. § 16-3-20 since the defendant was not acting in self-defense, defense of others, or habitation; nor was the defendant's conduct justified under the statute. Stanford v. State, 259 Ga. App. 188 , 576 S.E.2d 594 (2003).
Defendant did not receive ineffective assistance of counsel based on defense counsel withdrawal of a request for a justification instruction as the defendant's testimony that the defendant did not act with the intent to inflict injury on a former love interest did not support an instruction on justification. Alston v. State, 277 Ga. App. 117 , 625 S.E.2d 475 (2005).
Defense counsel was not ineffective for failing to request for a jury charge on justification in accordance with O.C.G.A. § 16-3-20(6) as the defendant could not show that the defendant was justified in firing shots at the victim since the victim had only fired the victim's gun one time in the air and then was in a car and leaving at the time that the defendant and the codefendant fatally shot back. Stinchcomb v. State, 280 Ga. 170 , 626 S.E.2d 88 (2006).
Defendant's trial counsel did not render ineffective assistance by failing to request a charge that was not adjusted to the facts of the case; moreover, the trial court properly charged on the defenses of self-defense and the defense of others, as requested. Davenport v. State, 283 Ga. 171 , 656 S.E.2d 844 (2008).
Trial counsel was not ineffective for failing to object to the trial court's jury charge on justifiable parental discipline, O.C.G.A. § 16-3-20(3) , because the trial court was authorized to give a justifiable parental discipline jury charge that was adequately adjusted to the evidence in the case; because it was for the jury to decide whether or not the codefendant's conduct caused the victim to suffer cruel or excessive physical pain, any objection to the trial court's jury charge on justifiable parental discipline would have lacked merit. Tabb v. State, 313 Ga. App. 852 , 723 S.E.2d 295 (2012).
Counsel was not ineffective for failing to ask for a charge to support a justification defense and instead seeking a charge to support a coercion defense because coercion was a defense to the charged crimes of aggravated assault and fleeing and attempting to elude, and the defendant failed to show that an unspecified justification charge would have been more beneficial to the defendant than the coercion charge given by the trial court. Frazier v. State, Ga. , 845 S.E.2d 579 (2020).
Sua sponte instruction not warranted. - Trial court did not err in failing to sua sponte give an instruction on justification because the defendant's testimony that the defendant did not act with the intent to inflict injury on a former love interest did not support an instruction on justification. Alston v. State, 277 Ga. App. 117 , 625 S.E.2d 475 (2005).
OPINIONS OF THE ATTORNEY GENERAL
Reasonable force permissible in arresting person reasonably believed to be aiding escape. - If correctional officer reasonably believes persons in aircraft landing inside perimeter of correctional facility are aiding or attempting to aid an escape, then the officer is entitled to make an arrest of those persons. To effectuate this arrest the officer is justified in using reasonable force. 1981 Op. Att'y Gen. No. 81-90.
Extent of force permissible in disabling aircraft landing inside perimeter of correctional facility. See 1981 Op. Att'y Gen. No. 81-90.
RESEARCH REFERENCES
Am. Jur. 2d. - 5 Am. Jur. 2d, Arrest, § 1 et seq. 6 Am. Jur. 2d, Assault and Battery, §§ 29, 105. 39 Am. Jur. 2d, Guardian and Ward, § 63. 40A Am. Jur. 2d, Homicide, § 128 et seq. 59 Am. Jur. 2d, Parent and Child, §§ 9, 25 et seq. 63C Am. Jur. 2d, Public Officers and Employees, § 286 et seq.
C.J.S. - 22 C.J.S., Criminal Law: Substantive Principles, §§ 59, 119. 67A C.J.S., Parent and Child, §§ 12, 155.
ALR. - Duty to retreat to wall as affected by illegal character of premises on which homicide occurs, 2 A.L.R. 518 .
Acquittal on charge as to one as bar to charge as to the other, where one person is killed or assaulted by acts directed at another, 2 A.L.R. 606 .
Right of self-defense as affected by defendant's violation of law only casually related to the encounter, 10 A.L.R. 861 .
Voluntary intoxication as defense to homicide, 12 A.L.R. 861 ; 79 A.L.R. 897 .
Criminal law: criminal responsibility of peace officers for killing or wounding one whom they wished to investigate or identify, 18 A.L.R. 1368 ; 61 A.L.R. 321 .
Right of one in loco parentis other than teacher to punish child, 43 A.L.R. 507 .
Presumption that public officers have properly performed their duty, as evidence, 141 A.L.R. 1037 .
Proof to establish or negative self-defense in civil action for death from intentional act, 17 A.L.R.2d 597.
Pleading self-defense or other justification in civil assault and battery action, 67 A.L.R.2d 405.
Criminal liability for excessive or improper punishment inflicted on child by parent, teacher, or one in loco parentis, 89 A.L.R.2d 396.
Retaking of money lost in gambling as robbery or larceny, 77 A.L.R.3d 1363.
Robbery, attempted robbery, or assault to commit robbery, as affected by intent to collect or secure debt or claim, 88 A.L.R.3d 1309.
"Choice of evils," necessity, duress, or similar defense to state or local criminal charges based on acts of public protest, 3 A.L.R.5th 521.
Automobiles: necessity or emergency as defense in prosecution for driving without operator's license or while license is suspended, 7 A.L.R.5th 73.
Ineffective assistance of counsel: compulsion, duress, necessity, or "hostage syndrome" defense, 8 A.L.R.5th 713.
16-3-21. Use of force in defense of self or others; evidence of belief that force was necessary in murder or manslaughter prosecution.
- 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 or a third person against such other's imminent use of unlawful force; however, except as provided in Code Section 16-3-23, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.
-
A person is not justified in using force under the circumstances specified in subsection (a) of this Code section if he:
- Initially provokes the use of force against himself with the intent to use such force as an excuse to inflict bodily harm upon the assailant;
- Is attempting to commit, committing, or fleeing after the commission or attempted commission of a felony; or
- Was the aggressor or was engaged in a combat by agreement unless he withdraws from the encounter and effectively communicates to such other person his intent to do so and the other, notwithstanding, continues or threatens to continue the use of unlawful force.
- Any rule, regulation, or policy of any agency of the state or any ordinance, resolution, rule, regulation, or policy of any county, municipality, or other political subdivision of the state which is in conflict with this Code section shall be null, void, and of no force and effect.
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In a prosecution for murder or manslaughter, if a defendant raises as a defense a justification provided by subsection (a) of this Code section, the defendant, in order to establish the defendant's reasonable belief that the use of force or deadly force was immediately necessary, may be permitted to offer:
- Relevant evidence that the defendant had been the victim of acts of family violence or child abuse committed by the deceased, as such acts are described in Code Sections 19-13-1 and 19-15-1, respectively; and
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Relevant expert testimony regarding the condition of the mind of the defendant at the time of the offense, including those relevant facts and circumstances relating to the family violence or child abuse that are the bases of the expert's opinion.
(Laws 1833, Cobb's 1851 Digest, p. 785; Code 1863, § 4230; Code 1868, § 4267; Code 1873, § 4333; Code 1882, § 4333; Penal Code 1895, § 73; Penal Code 1910, § 73; Code 1933, § 26-1014; Code 1933, § 26-902, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1975, p. 1209, § 1; Ga. L. 1993, p. 1716, § 2; Ga. L. 2001, p. 1247, § 1.)
Law reviews. - For survey article on evidence, see 34 Mercer L. Rev. 163 (1982). For survey article on criminal law, see 60 Mercer L. Rev. 85 (2008). For note on admissibility of expert psychological testimony in Georgia, see 4 Ga. St. U. L. Rev. 117 (1988). For note on 1993 amendment of this Code section, see 10 Ga. St. U. L. Rev. 131 (1993). For note, "Smith v. State: The Georgia Supreme Court Mandated Jury Instructions in Battered Person Syndrome Cases," see 49 Mercer L. Rev. 1141 (1998). For note, "Open Season on Batterers in Georgia? Georgia Supreme Court Allows Jury Instructions on Battered Person Syndrome in Self-Defense Cases: Smith v. State (1997)," see 15 Ga. St. U. L. Rev. 821 (1999). For note on the 2001 amendment of this Code section, see 18 Ga. St. U. L. Rev. 25 (2001). For comment discussing the unconstitutional use of deadly force against nonviolent fleeing felons, see 18 Ga. L. Rev. 137 (1983).
JUDICIAL DECISIONS
ANALYSIS
General Consideration
Editor's notes. - In light of the similarity of the statutory provisions, decisions decided under former Code 1863, §§ 4227, 4228, former Code 1868, §§ 4264, 4265, former Code 1873, §§ 4330, 4331, former Code 1882, §§ 4330, 4331, former Penal Code 1895, §§ 70, 71, former Penal Code 1910, §§ 70, 71, and former Code 1933, §§ 26-1011, 26-1012, are included in the annotations for this Code section.
Conflict with other statutes and administrative rules. - Neither the self-defense statute nor the arrest statute automatically prohibits the discharge of a firearm if the lives of innocent people may be in danger, and, where a mandatory prohibition against such an action in a police department work rule conflicted with these statutes, it was invalid, and could not form the basis for a police officer's suspension. Allen v. City of Atlanta, 235 Ga. App. 516 , 510 S.E.2d 64 (1998).
Justification, if established, should always result in acquittal. Gordy v. State, 93 Ga. App. 743 , 92 S.E.2d 737 (1956) (decided under former Code 1933, §§ 26-1011, 26-1012).
Justification is affirmative defense. - In a wrongful death action, because justification is an affirmative defense, defendant bore the burden of proving actions met the requirements of O.C.G.A. § 16-3-21 . Bell v. Smith, 227 Ga. App. 17 , 488 S.E.2d 91 (1997).
In an action in which the defendant was convicted of the murder of the defendant's parent's love interest, defense counsel failure to investigate the victim's violent nature was not ineffective; the jury was given considerable information concerning the victim's violent nature, that the victim had beaten the defendant's parent, and had consumed cocaine; even with further investigation, the outcome of the trial would not have changed; the jury rejected both the justification defense and the lesser charge because there was overwhelming evidence that the defendant committed malice murder. Cooper v. State, 279 Ga. 189 , 612 S.E.2d 256 (2005).
City was not vicariously liable for the officer's alleged battery because the officer's use of deadly force was justified as the officer did not violate the Fourth Amendment in using deadly force against the decedent based on the decedent using the decedent's vehicle to elude and threaten the officers. L. T. v. Owens, 808 Fed. Appx. 814 (11th Cir. 2020)(Unpublished).
State has burden to disprove defense. - When a defendant presents evidence that defendant was justified in using deadly force, the burden is on the state to disprove the defense beyond a reasonable doubt. Hall v. State, 235 Ga. App. 44 , 508 S.E.2d 703 (1998).
Section may provide a defense to unlawful possession of weapon. - O.C.G.A. §§ 16-3-21(a) and 16-11-138 in combination effectively provide this rule of law: A person is justified in threatening or using force against another, or in possessing a weapon in circumstances otherwise prohibited under the Code, when and to the extent that he or she reasonably believes that such threat or force or conduct otherwise prohibited is necessary to defend himself or herself or a third person against such other's imminent use of unlawful force. Johnson v. State, 308 Ga. 141 , 839 S.E.2d 521 (2020).
Failure to consider student's affirmative defense of self-defense. - Judgment upholding the decision of a local board of education (local board) expelling a student for fighting was reversed because the record fully supported that the student properly raised the issue of self-defense before the local board and that the board failed to apply the proper law and make the board's own findings of fact on the issue. Henry County Bd. of Educ. v. S. G., 301 Ga. 794 , 804 S.E.2d 427 (2017).
Failure to present state of mind evidence from expert reasonable. - Trial counsel was not ineffective for failing to present expert testimony regarding the defendant's state of mind because counsel decided not to use the expert after seeking out an expert, reading the expert's report, interviewing the expert, consulting with the defendant, and determining it would not be good for the defense. Goodson v. State, 305 Ga. 246 , 824 S.E.2d 371 (2019).
Justifiable homicide is a substantive and affirmative defense and, if found well supported in fact, the accused is entitled to acquittal without reference to the evidence which apparently tends to convict the accused of the offense of murder or voluntary manslaughter. Fountain v. State, 207 Ga. 144 , 60 S.E.2d 433 (1950), overruled on other grounds, Lavender v. State, 234 Ga. 608 , 216 S.E.2d 855 (1975) (decided under former Code 1933, §§ 26-1011, 26-1012); Farr v. State, 83 Ga. App. 855 , 65 S.E.2d 270 (1951);(decided under former Code 1933, §§ 26-1011, 26-1012).
Controlling elements of self-defense. - Controlling element of self-defense is protecting against impending danger which either actually or as it reasonably appears to slayer cannot be otherwise prevented than by death of assailant. Green v. State, 52 Ga. App. 290 , 183 S.E. 204 (1935) (decided under former Code 1933, §§ 26-1011, 26-1012).
Two elements must be present before the use of deadly force is justified: (1) the danger to either the actor or a third person must be imminent; and (2) the actor must reasonably believe that such force is necessary to prevent death or great bodily injury to self or a third person. Coley v. State, 201 Ga. App. 722 , 411 S.E.2d 804 (1991).
Where witnesses testified that the victim of a stabbing started a fight with the juvenile defendant by "slamming" the defendant, this evidence did not demand a finding that the defendant acted solely in self-defense. In re T.T., 236 Ga. App. 46 , 510 S.E.2d 901 (1999).
When sole defense is denial of killing, justifiable homicide in self-defense is not applicable. Stevens v. State, 8 Ga. App. 217 , 68 S.E. 874 (1910) (decided under former Penal Code 1895, §§ 70, 71).
It is permissible to rely upon both defenses: that defendant did not kill, and that if defendant did kill, it was justifiable. Green v. State, 7 Ga. App. 803 , 68 S.E. 318 (1910).
Admission to specific allegations not required. - There is no requirement that a defendant has to admit to the specific allegations of violence in order to obtain the protection of O.C.G.A. § 16-3-21(a) . State v. Yapo, 296 Ga. App. 158 , 674 S.E.2d 44 (2009).
Defenses of self-defense and accident inconsistent. - Defenses of self-defense and justification do not deny the intent to inflict injury, but claim authority for the act under the legal excuse of reasonable fear of immediate serious harm to oneself or another. Since an accident defense involves the lack of intent to do the act at all, the two defenses are inconsistent. Fields v. State, 167 Ga. App. 816 , 307 S.E.2d 712 (1983).
Defenses of self-defense and accident are inconsistent. Wilkerson v. State, 183 Ga. App. 26 , 357 S.E.2d 814 (1987).
Instructions on accident and justification authorized. - Where there is evidence of both justification and accident, and timely requests for instructions on both topics have been made, the trial court should instruct the jury as to both. Koritta v. State, 263 Ga. 703 , 438 S.E.2d 68 (1994).
Defendant was not entitled to jury instructions on accident, self-defense, or mutual combat, although the victims struggled with the defendant and the defendant's gun arguably discharged accidentally, given that the defendant was the aggressor with a gun in the middle of an armed robbery. Wainwright v. State, 305 Ga. 63 , 823 S.E.2d 749 (2019).
Prevention or defense against impending or progressing wrong must enter into all cases of justifiable homicide. Lakeland v. State, 53 Ga. App. 345 , 185 S.E. 583 (1936) (decided under former Code 1933, §§ 26-1011, 26-1012).
One is justified in slaying an antagonist to avoid a felony being committed on that one. Ellison v. State, 50 Ga. App. 58 , 176 S.E. 885 (1934) (decided under former Code 1933, §§ 26-1011, 26-1012).
Use of deadly force not justified. - Evidence was sufficient to allow the jury to conclude beyond a reasonable doubt that defendant did not justifiably use deadly force to protect self from the victim's assault. Brown v. State, 242 Ga. App. 106 , 528 S.E.2d 868 (2000).
Mental anguish not justification for killing. - Mental anguish does not constitute "great bodily harm"; therefore, its alleged infliction does not justify killing the inflictor. Chancellor v. State, 165 Ga. App. 365 , 301 S.E.2d 294 (1983) (decided under former Penal Code 1910, §§ 70, 71).
Law, in cases of homicide, does not take into account actual fears of slayer, but considers all circumstances, with reference to determination as to whether the circumstances were sufficient to excite fears of a reasonable person. Daniels v. State, 248 Ga. 591 , 285 S.E.2d 516 (1981).
Apprehensions or opinions of third parties that accused is in imminent danger are not relevant. But facts from which apprehension might reasonably be inferred, as distinct from opinion, are relevant when stated or shown by third parties. Melear v. State, 159 Ga. App. 574 , 284 S.E.2d 79 (1981).
On a trial for murder, as to the defendant's theory of self-defense, apprehensions or opinions of third parties that the accused is in imminent danger are not relevant. But facts from which apprehension might reasonably be inferred, as distinct from opinions, are relevant when stated or shown by third parties. Lancaster v. State, 250 Ga. 871 , 301 S.E.2d 882 (1983).
Means of inflicting threatened injury must apparently be at hand to warrant reasonable fear which may justify homicide. Lee v. State, 42 Ga. App. 360 , 156 S.E. 296 (1930) (decided under former Penal Code 1910, §§ 70, 71).
Victim's threats may be communicated by third persons. - Victim's prior threats need not be directly related to the defendant but may be communicated via third persons from the deceased to defendant. McDonald v. State, 182 Ga. App. 509 , 356 S.E.2d 264 (1987).
Previous attack not relevant to justification defense. - Evidence of a previous attack upon defendant by a third party which occurred two years before the crime on trial was not relevant to defendant's justification defense. Lara v. State, 216 Ga. App. 117 , 453 S.E.2d 137 (1995).
Previous attack upon defendant is relevant to reasonableness of belief. - Evidence that defendant was previously attacked with a knife and received scars to defendant's chest is relevant to whether defendant reasonably and honestly believed that deadly force was "necessary" to prevent death or great bodily injury to self. Daniels v. State, 248 Ga. 591 , 285 S.E.2d 516 (1981).
Prior acts of violence admissible to corroborate justification defense. - If the defendant's res gestae evidence establishes a prima facie justification defense, evidence of the victim's prior acts of violence against the accused, or against third parties, may be relevant to corroborate the defendant's contention that defendant did not act with the requisite criminal intent. Johnson v. State, 270 Ga. 234 , 507 S.E.2d 737 (1998).
Lapse of time between prior occurrences and homicide. - Lapse of time between prior occurrences and homicide go to weight and credit to be accorded testimony by jury and not to its admissibility. In cases of doubt, the testimony should be admitted. Daniels v. State, 248 Ga. 591 , 285 S.E.2d 516 (1981).
Distinction between voluntary manslaughter and justifiable homicide. - In voluntary manslaughter, killing is done solely because of passion or anger created in defendant by attempt on part of deceased to commit a serious injury upon defendant; whereas, justifiable homicide occurs when defendant kills because defendant reasonably believes such force is necessary to prevent great bodily injury. Williams v. State, 126 Ga. App. 454 , 191 S.E.2d 100 (1972).
Double jeopardy did not bar retrial. - Defendant's acquittal on malice murder charges under O.C.G.A. § 16-5-1(c) did not bar retrial on a voluntary manslaughter charge under O.C.G.A. § 16-5-2(a) as the collateral estoppel doctrine under the Double Jeopardy Clause, U.S. Const., amend. 5, and Ga. Const. 1983, Art. I, Sec. I, Para. XVIII, did not apply because the acquittal did not necessarily mean that the defendant acted in self-defense under O.C.G.A. § 16-3-21(a) ; if the jury did not find that the defendant acted with either express or implied malice, the jury had to acquit the defendant of malice murder. Roesser v. State, 316 Ga. App. 850 , 730 S.E.2d 641 (2012).
Unlawfulness, in sense of absence of excuse or justification, is essential element of murder and voluntary manslaughter. Tennon v. Ricketts, 642 F.2d 161 (5th Cir. 1981).
Absence of self-defense is an essential element of crime of voluntary manslaughter, and where trial court's charge operated to place burden of persuasion on defendant on this issue, defendant's conviction violates defendant's due process rights under the United States Constitution. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019 , 69 L. Ed. 2 d 398 (1981).
Lawfulness is proved by establishing self-defense. Tennon v. Ricketts, 642 F.2d 161 (5th Cir. 1981).
In prosecution for voluntary manslaughter state bears burden of persuasion in negating presence of self-defense. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019 , 69 L. Ed. 2 d 398 (1981).
Trial court's charge in homicide case shifting burden of persuasion to defendant on issue of self-defense in violation of due process clause of U.S. Const., amend. 14 is not harmless error. Tennon v. Ricketts, 642 F.2d 161 (5th Cir. 1981).
Mistake of fact and self-defense inconsistent. - Inasmuch as the appellant's defense was based on justification and self-defense, and inasmuch as the trial court gave a full jury charge with respect thereto, the appellant was not entitled to a charge on mistake of fact under O.C.G.A. § 16-3-5 . Pullin v. State, 257 Ga. 815 , 364 S.E.2d 848 (1988).
Conduct of lawful abortion not "imminent use of unlawful force." - To constitute justification under O.C.G.A. § 16-3-21 , the defendant must be acting in response to another's "imminent use of unlawful force." A lawful abortion conducted in compliance with O.C.G.A. § 16-12-141 would not constitute "imminent use of unlawful force". Hoover v. State, 198 Ga. App. 481 , 402 S.E.2d 92 (1991).
Ruling on self-defense claim before trial. - Upon the filing of a motion for immunity, a trial court must determine before trial whether a person is immune from prosecution; thus, the trial court did not err in ruling on the defendant's self-defense claim before trial. State v. Sutton, 297 Ga. 222 , 773 S.E.2d 222 (2015).
Jury selection. - Defendant's counsel was properly limited to questioning prospective jurors about whether they knew anyone who had acted in self-defense but not in asking them anything further, as that limit properly omitted jurors' personal beliefs on the defense while still allowing the necessary questioning as to their degree of fairness and impartiality, in defendant's trial for aggravated assault in violation of O.C.G.A. § 16-5-21(a)(2). Stewart v. State, 262 Ga. App. 426 , 585 S.E.2d 622 (2003).
Cited in Head v. State, 168 Ga. 843 , 149 S.E. 145 (1929); Johnson v. State, 122 Ga. App. 542 , 178 S.E.2d 42 (1970); Tate v. State, 123 Ga. App. 18 , 179 S.E.2d 307 (1970); Witt v. State, 124 Ga. App. 535 , 184 S.E.2d 517 (1971); Butts v. State, 126 Ga. App. 512 , 191 S.E.2d 329 (1972); Chambers v. State, 127 Ga. App. 196 , 192 S.E.2d 916 (1972); Hewitt v. State, 127 Ga. App. 180 , 193 S.E.2d 47 (1972); Harper v. State, 127 Ga. App. 359 , 193 S.E.2d 259 (1972); Highland v. State, 127 Ga. App. 518 , 194 S.E.2d 332 (1972); Towns v. State, 127 Ga. App. 751 , 195 S.E.2d 235 (1972); Walters v. State, 128 Ga. App. 232 , 196 S.E.2d 326 (1973); Howard v. State, 128 Ga. App. 807 , 198 S.E.2d 334 (1973); White v. State, 129 Ga. App. 353 , 199 S.E.2d 624 (1973); Nolan v. State, 129 Ga. App. 653 , 200 S.E.2d 474 (1973); Ford v. State, 232 Ga. 511 , 207 S.E.2d 494 (1974); Wilson v. State, 233 Ga. 479 , 211 S.E.2d 757 (1975); Barker v. State, 233 Ga. 781 , 213 S.E.2d 624 (1975); Stewart v. State, 234 Ga. 3 , 214 S.E.2d 509 (1975); Mitchell v. State, 134 Ga. App. 376 , 214 S.E.2d 593 (1975); Parham v. State, 135 Ga. App. 315 , 217 S.E.2d 493 (1975); Hale v. State, 135 Ga. App. 625 , 218 S.E.2d 643 (1975); Smith v. State, 235 Ga. 327 , 219 S.E.2d 440 (1975); Franklin v. State, 136 Ga. App. 47 , 220 S.E.2d 60 (1975); Henderson v. State, 136 Ga. App. 490 , 221 S.E.2d 633 (1975); Mathis v. State, 136 Ga. App. 701 , 222 S.E.2d 647 (1975); Holloway v. State, 137 Ga. App. 124 , 222 S.E.2d 898 (1975); Mason v. State, 236 Ga. 46 , 222 S.E.2d 339 (1976); Graham v. State, 236 Ga. 378 , 223 S.E.2d 803 (1976); Kessel v. State, 236 Ga. 373 , 223 S.E.2d 811 (1976); Stovall v. State, 236 Ga. 840 , 225 S.E.2d 292 (1976); Adams v. State, 138 Ga. App. 242 , 225 S.E.2d 699 (1976); Colson v. State, 138 Ga. App. 366 , 226 S.E.2d 154 (1976); Harris v. State, 138 Ga. App. 461 , 226 S.E.2d 301 (1976); Harrison v. State, 138 Ga. App. 419 , 226 S.E.2d 480 (1976); Copeland v. State, 139 Ga. App. 55 , 227 S.E.2d 850 (1976); King v. State, 238 Ga. 240 , 232 S.E.2d 236 (1977); Jackson v. State, 239 Ga. 40 , 235 S.E.2d 477 (1977); Johnson v. State, 142 Ga. App. 526 , 236 S.E.2d 493 (1977); Veasley v. State, 142 Ga. App. 863 , 237 S.E.2d 464 (1977); Aguilar v. State, 240 Ga. 830 , 242 S.E.2d 620 (1978); Dasher v. State, 146 Ga. App. 118 , 245 S.E.2d 476 (1978); Pullen v. State, 146 Ga. App. 665 , 247 S.E.2d 128 (1978); Griffin v. State, 242 Ga. 51 , 247 S.E.2d 853 (1978); Upshaw v. State, 147 Ga. App. 57 , 248 S.E.2d 17 (1978); Mason v. State, 147 Ga. App. 179 , 248 S.E.2d 302 (1978); Riner v. State, 147 Ga. App. 707 , 250 S.E.2d 161 (1978); Nordmann v. International Follies, Inc., 147 Ga. App. 77 , 250 S.E.2d 794 (1978); Tabb v. State, 148 Ga. App. 13 , 251 S.E.2d 16 (1978); Lanham v. State, 243 Ga. 576 , 255 S.E.2d 52 (1979); Simpkins v. State, 149 Ga. App. 763 , 256 S.E.2d 63 (1979); P.D. v. State, 151 Ga. App. 662 , 261 S.E.2d 413 (1979); Boling v. State, 244 Ga. 825 , 262 S.E.2d 123 (1979); Jarrard v. State, 152 Ga. App. 553 , 263 S.E.2d 444 (1979); Lemley v. State, 245 Ga. 350 , 264 S.E.2d 881 (1980); Keller v. State, 245 Ga. 522 , 265 S.E.2d 813 (1980); Davis v. State, 153 Ga. App. 528 , 265 S.E.2d 857 (1980); Walston v. State, 245 Ga. 572 , 266 S.E.2d 185 (1980); Bagley v. State, 153 Ga. App. 777 , 266 S.E.2d 804 (1980); Powell v. State, 154 Ga. App. 568 , 269 S.E.2d 70 (1980); Jones v. State, 154 Ga. App. 806 , 270 S.E.2d 201 (1980); Townsend v. State, 155 Ga. App. 422 , 271 S.E.2d 7 (1980); Lastinger v. State, 155 Ga. App. 707 , 272 S.E.2d 571 (1980); Hill v. State, 156 Ga. App. 518 , 275 S.E.2d 104 (1980); Stevens v. State, 247 Ga. 698 , 278 S.E.2d 398 (1981); Booker v. State, 157 Ga. App. 872 , 278 S.E.2d 745 (1981); Daniels v. State, 158 Ga. App. 476 , 282 S.E.2d 118 (1981); Mullis v. State, 248 Ga. 338 , 282 S.E.2d 334 (1981); Webb v. State, 159 Ga. App. 403 , 283 S.E.2d 636 (1981); Lett v. State, 160 Ga. App. 476 , 287 S.E.2d 384 (1981); Cooper v. State, 249 Ga. 58 , 287 S.E.2d 212 (1982); Sawyer v. State, 161 Ga. App. 479 , 288 S.E.2d 108 (1982); Coppola v. State, 161 Ga. App. 517 , 288 S.E.2d 744 (1982); Hanlon v. State, 162 Ga. App. 46 , 290 S.E.2d 285 (1982); Whatley v. State, 163 Ga. App. 106 , 290 S.E.2d 316 (1982); Roland v. State, 161 Ga. App. 197 , 291 S.E.2d 41 (1982); Miller v. State, 162 Ga. App. 759 , 292 S.E.2d 481 (1982); Respres v. State, 249 Ga. 731 , 293 S.E.2d 319 (1982); Allen v. State, 249 Ga. 779 , 294 S.E.2d 491 (1982); Williams v. State, 249 Ga. 822 , 295 S.E.2d 293 (1982); Talley v. State, 164 Ga. App. 150 , 296 S.E.2d 173 (1982); Millwood v. State, 164 Ga. App. 699 , 296 S.E.2d 239 (1982); Walker v. State, 250 Ga. 230 , 297 S.E.2d 33 (1982); Rivers v. State, 250 Ga. 288 , 298 S.E.2d 10 (1982); Payment v. State, 164 Ga. App. 841 , 298 S.E.2d 298 (1982); Yeargin v. State, 164 Ga. App. 835 , 298 S.E.2d 606 (1982); Hunter v. State, 167 Ga. App. 349 , 306 S.E.2d 408 (1983); McNeil v. Parker, 169 Ga. App. 756 , 315 S.E.2d 270 (1984); Syms v. State, 175 Ga. App. 179 , 332 S.E.2d 689 (1985); White v. State, 179 Ga. App. 276 , 346 S.E.2d 91 (1986); Hambrick v. State, 256 Ga. 688 , 353 S.E.2d 177 (1987); Mitchell v. State, 187 Ga. App. 40 , 369 S.E.2d 487 (1988); Young v. State, 188 Ga. App. 601 , 373 S.E.2d 837 (1988); Thomas v. State, 189 Ga. App. 774 , 377 S.E.2d 539 (1989); Nobles v. State, 191 Ga. App. 594 , 382 S.E.2d 637 (1989); McWhorter v. State, 198 Ga. App. 493 , 402 S.E.2d 60 (1991); Shackleford v. State, 198 Ga. App. 768 , 403 S.E.2d 74 (1991); McKissic v. State, 201 Ga. App. 525 , 411 S.E.2d 516 (1991); Dye v. State, 202 Ga. App. 31 , 413 S.E.2d 500 (1991); Campbell v. State, 207 Ga. App. 902 , 429 S.E.2d 538 (1993); Pardue v. State, 214 Ga. App. 690 , 448 S.E.2d 768 (1994); Cox v. State, 216 Ga. App. 86 , 453 S.E.2d 471 (1995); Selman v. State, 267 Ga. 198 , 475 S.E.2d 892 (1996); McCracken v. State, 224 Ga. App. 356 , 480 S.E.2d 361 (1997); Crawford v. State, 267 Ga. 543 , 480 S.E.2d 573 (1997); Young v. State, 229 Ga. App. 497 , 494 S.E.2d 226 (1997); Nguyen v. State, 234 Ga. App. 185 , 505 S.E.2d 846 (1998); Hodo v. State, 272 Ga. 272 , 528 S.E.2d 250 (2000); Etheridge v. State, 249 Ga. App. 111 , 547 S.E.2d 744 (2001); Smith v. State, 249 Ga. App. 736 , 550 S.E.2d 106 (2001); Harris v. State, 274 Ga. 422 , 554 S.E.2d 458 (2001); Daniley v. State, 274 Ga. 474 , 554 S.E.2d 483 (2001); Price v. State, 280 Ga. 193 , 625 S.E.2d 397 (2006); Dukes v. State, 285 Ga. App. 172 , 645 S.E.2d 664 (2007); McClendon v. State, 287 Ga. App. 238 , 651 S.E.2d 165 (2007); Branton v. State, 292 Ga. App. 104 , 663 S.E.2d 414 (2008); State v. Burks, 285 Ga. 781 , 684 S.E.2d 269 (2009); Hipp v. State, 293 Ga. 415 , 746 S.E.2d 95 (2013); Fleming v. State, 324 Ga. App. 481 , 749 S.E.2d 54 (2013); State v. Hamilton, 308 Ga. 116 , 839 S.E.2d 560 (2020); Sullivan v. State, 308 Ga. 508 , 842 S.E.2d 5 (2020).
Fear of Reasonable Man
O.C.G.A. § 16-3-21 is a recodification of reasonable belief test, which was stated in former Code 1933, § 26-1012 as it read prior to revision of title by Ga. L. 1968, p. 1249. Daniels v. State, 248 Ga. 591 , 285 S.E.2d 516 (1981).
Fear justifying homicide refers to fear of reasonable man. - In cases of homicide, the law does not consider actual fears of slayer, but considers all circumstances with reference to determination as to whether they were sufficient to excite fears of a reasonable person. Bivins v. State, 200 Ga. 729 , 38 S.E.2d 273 (1946) (decided under former Code 1933, §§ 26-1011, 26-1012).
Standard of reasonable fear determined by jurors' observations, common knowledge and experience. - Standard of a reasonable man, as related to defense of reasonable fears in trial for murder, is one which jury must determine from their own observation and their common knowledge and experience. Fudge v. State, 190 Ga. 340 , 9 S.E.2d 259 (1940) (decided under former Code 1933, §§ 26-1011, 26-1012).
To establish plea of self-defense, defendant must show that circumstances were such as to excite fears of a reasonable man that his life was in danger; a mere unreasonable apprehension or suspicion of harm being insufficient. Young v. State, 160 Ga. App. 51 , 286 S.E.2d 54 (1981).
Homicide justified when caused by victim's threats inducing reasonable fear. - If threats and menaces of the victim were found by the jury to be sufficient to arouse, in a reasonable man, fears for his life or great bodily injury and that he acted from such fears, they would be authorized to find the homicide was justified as self-defense. Facison v. State, 152 Ga. App. 645 , 263 S.E.2d 523 (1979).
Force likely to cause death may be justified when it appears necessary to repel assault. - One who is assaulted by another need no longer stop and determine whether assault constitutes attempt to commit felony upon him or a mere misdemeanor upon him but may use such force in defense of his person as seems to him to be necessary even though such force may be intended to, or likely will, cause death or great bodily harm to the other. Henderson v. State, 227 Ga. 68 , 179 S.E.2d 76 (1970).
Fears causing use of force must be those of a reasonable man, and not just defendant's fears based on prior experiences. Moore v. State, 228 Ga. 662 , 187 S.E.2d 277 (1972).
Doctrine of reasonable fears inapplicable when danger apprehended not urgent and pressing actually or apparently at time of homicide. Jackson v. State, 91 Ga. 271 , 18 S.E. 298 , 44 Am. St. R. 22 (1893) (decided under former Penal Code 1895, §§ 70, 71); Williams v. State, 120 Ga. 870 , 48 S.E. 368 (1904) (decided under former Penal Code 1895, §§ 70, 71); Ellison v. State, 137 Ga. 193 , 73 S.E. 255 (1911) (decided under former Penal Code 1910, §§ 70, 71); Short v. State, 140 Ga. 780 , 80 S.E. 8 (1913) (decided under former Penal Code 1910, §§ 70, 71); Elrod v. State, 27 Ga. App. 265 , 108 S.E. 67 (1921) (decided under former Penal Code 1910, §§ 70, 71); Martin v. State, 36 Ga. App. 288 , 136 S.E. 324 (1927) (decided under former Penal Code 1910, §§ 70, 71).
Fear in reasonable man justifying deadly force is jury question. - Applicable standard under O.C.G.A. § 16-3-21 is whether circumstances of case are such that the circumstances would excite fears of a reasonable man, and whether the circumstances did so to the point that it would have been necessary to use deadly force, is a question for the jury. Anderson v. State, 245 Ga. 619 , 266 S.E.2d 221 (1980); Darden v. State, 271 Ga. 449 , 519 S.E.2d 921 (1999).
Sufficiency of an alleged provocation by the victim and the questions of reasonableness of fears and "cooling time" are the jury's to determine. Hagans v. State, 187 Ga. App. 216 , 369 S.E.2d 536 (1988).
Whether the circumstances are such to justify the defendant's response is a question for the jury. McMichael v. State, 194 Ga. App. 225 , 390 S.E.2d 120 (1990); Nolley v. State, 240 Ga. App. 382 , 523 S.E.2d 579 (1999).
Contrary to the defendant's contention, the jury was not required to believe that the defendant acted in defense of the defendant's parent when the defendant picked up a cinder block and threw it at the victim; it is for the jury to decide whether the defendant reasonably believed that the use of deadly force was necessary to defend the defendant's parent from the victim. Smith v. State, 261 Ga. App. 781 , 584 S.E.2d 29 (2003).
Unreasonable or delusory fear. - Unreasonable or delusory fear, while not that of a reasonable man and therefore not sufficient to constitute justification, may negative idea of malicious and intentional wrongdoing. Perry v. State, 104 Ga. App. 383 , 121 S.E.2d 692 (1961) (decided under former Code 1933, §§ 26-1011, 26-1012).
Offense of shooting at another may be committed by defendant who is acting under fears, although they are not fears of a reasonable man, and an unreasonable or delusory fear, while not that of a reasonable man and therefore not sufficient to constitute justification, may negative idea of malicious and intentional wrongdoing. Saylor v. State, 93 Ga. App. 895 , 93 S.E.2d 196 (1956) (decided under former Code 1933, §§ 26-1011, 26-1012).
Psychologist's opinion irrelevant. - State's motion in limine seeking to exclude the testimony of a defendant's psychologist was properly granted as the defendant claimed that the defendant shot the victim in self-defense; the defendant's psychological state was irrelevant. Lott v. State, 281 Ga. App. 373 , 636 S.E.2d 102 (2006).
Defendant's testimony regarding prior rape irrelevant. - Defendant's testimony that the defendant was raped at age 11 was barred because it was not relevant to the jury's determination regarding voluntary manslaughter; to support a claim of justification or self-defense as the defendant did not contend that the victim sexually abused the defendant as a child, and the defendant withdrew the requested charges on justification and self-defense; or to show the defendant's alleged subjective mental state in the absence of an insanity defense, which was withdrawn from consideration by the jury. Furthermore, the jury heard the defendant's testimony that the defendant feared both for the defendant's life and that the defendant was about to be raped, and the trial court did instruct the jury on the definition of voluntary manslaughter. Riggs v. State, 306 Ga. 759 , 833 S.E.2d 112 (2019).
Evidence of victim's prior child molestation against defendant not admitted. - In a defendant's trial for aggravated battery against a victim more than 65 years of age in violation of O.C.G.A. § 16-5-24(a) and (d), evidence that the victim had fondled the defendant's genitals when the defendant was 15 was not admissible under O.C.G.A. § 24-2-2 to support the defendant's claim of justification under O.C.G.A. § 16-3-21 . Strozier v. State, 300 Ga. App. 199 , 685 S.E.2d 743 (2009).
Mutual Combat
Mutual combat situation contemplated by section. - Designed to simplify and give order to previously disparate points of law, former Code 1933, § 26-902 contemplates situation of mutual combat where the defendant reasonably believes that use of deadly force to prevent death or great bodily harm to self or a third person, is necessary. Trask v. State, 132 Ga. App. 645 , 208 S.E.2d 591 (1974).
What constitutes mutual combat. - Mutual combat appears sufficiently where it is shown that there was a mutual intent to fight, and one or more blows were struck. Bailey v. State, 148 Ga. 401 , 96 S.E. 862 (1918) (decided under former Penal Code 1910, §§ 70, 71).
Mutual combat exists where there is a fight and both parties are willing to fight. Slocumb v. State, 157 Ga. 131 , 121 S.E. 116 (1923) (decided under former Penal Code 1910, §§ 70, 71).
Mutual combat exists where there is a fight with dangerous or deadly weapons, and when both parties are at fault and are willing to fight because of a sudden quarrel. Langford v. State, 212 Ga. 364 , 93 S.E.2d 1 (1956) (decided under former Code 1933, §§ 26-1011, 26-1012).
In order for mutual combat to exist in murder case, there must be mutual intent to fight on part of both parties. It is not necessary that mutual blows be exchanged, nor is it material who strikes the first blow or fires the first shot, nor is it necessary that both parties strike blows or fire shots. This intent, like any other intent, may be manifested by acts and conduct of parties and circumstances surrounding them at time of combat, as well as circumstances leading up to and culminating in such combat. Question of intent is peculiarly for the jury. Norris v. State, 93 Ga. App. 641 , 92 S.E.2d 537 (1956) (decided under former Code 1933, §§ 26-1011, 26-1012).
Mutual combat is a mutual fight following mutual intention to fight with felonious purpose. Warnack v. State, 3 Ga. App. 590 , 60 S.E. 288 (1908), later appeal, 5 Ga. App. 816 , 63 S.E. 935 (1909) (decided under former Penal Code 1895, §§ 70, 71).
An essential element of mutual combat is that both parties intend to engage in fight. Roberts v. State, 189 Ga. 36 , 5 S.E.2d 340 (1939) (decided under former Code 1933, §§ 26-1011, 26-1012).
Mutual combat requires willingness, readiness, and intent of both parties to fight. - Essential ingredient, mutual intent, in order to constitute mutual combat, must be a willingness, a readiness, and intention upon part of both parties to fight. Reluctance, or fighting to repel unprovoked attack is self-defense and is authorized by the law, and should not be confused with mutual combat. Langford v. State, 212 Ga. 364 , 93 S.E.2d 1 (1956) (decided under former Code 1933, §§ 26-1011, 26-1012).
Mutual combat requires intent to fight, but not that any blows actually be struck. Roberts v. State, 189 Ga. 36 , 5 S.E.2d 340 (1939) (decided under former Code 1933, §§ 26-1011, 26-1012).
Mutual blows are not always necessary to make mutual combat. Tate v. State, 46 Ga. 148 (1872) (decided under former Code 1868, §§ 4264, 4265); Gresham v. Equitable Accident Ins. Co., 87 Ga. 497 , 13 S.E. 752 , 27 Am. St. R. 263 , 13 L.R.A. 838 (1891) (decided under former Code 1882, §§ 4330, 4331).
Mutual combat involves agreement to fight with deadly weapons. - Mutual combat usually arises when parties are armed with deadly weapons and mutually agree or intend to fight with them. Mutual combat does not mean a mere fist fight or scuffle. Loudermilk v. State, 129 Ga. App. 552 , 200 S.E.2d 302 (1973); Flowers v. State, 146 Ga. App. 692 , 247 S.E.2d 217 (1978).
If parties draw guns upon sudden quarrel, and one kills the other, it is manslaughter upon theory that the parties engaged with each other in a mutual fight on equal terms. Williams v. State, 68 Ga. App. 558 , 23 S.E.2d 205 (1942) (decided under former Code 1933, §§ 26-1011, 26-1012).
Homicide committed during mutual combat. - If a killing is not in self-defense, or for some circumstances of justification, but in the course of an encounter in which participants engage with mutual intention to fight, the offense may be voluntary manslaughter as related to mutual combat. Shafer v. State, 191 Ga. 722 , 13 S.E.2d 798 (1941) (decided under former Code 1933, §§ 26-1011, 26-1012).
When homicide is committed during mutual combat, since defendant willingly engaged in the affray, defendant is in equal fault with deceased, and, under such circumstances, it is not justifiable for defendant to slay adversary without more. Accordingly, killing under such circumstances is voluntary manslaughter. Cribb v. State, 71 Ga. App. 539 , 31 S.E.2d 248 (1944) (decided under former Code 1933, §§ 26-1011, 26-1012).
Defense of withdrawal is applicable only in true cases of mutual combat. - Exercise of right of self-defense does not make one a mutual combatant. Otherwise the principle would be applicable in every case when a person unjustifiably and feloniously attacked undertook to defend oneself. Hill v. State, 211 Ga. 683 , 88 S.E.2d 145 (1955) (decided under former Code 1933, §§ 26-1011, 26-1012).
Defendant must have attempted to decline further struggle. - Before defendant can rely upon defense of mutual combat defendant must have declined further struggle. McDowell v. State, 78 Ga. App. 116 , 50 S.E.2d 633 (1948) (decided under former Code 1933, §§ 26-1011, 26-1012).
When there is mutual fault, and mutual combat, in order for killing to be justified it must appear that slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given. Gordy v. State, 93 Ga. App. 743 , 92 S.E.2d 737 (1956) (decided under former Code 1933, §§ 26-1011, 26-1012).
Person is not justified in using force which is intended or likely to cause death or great bodily harm when such person is the aggressor or was engaged in combat by agreement unless the person withdraws from the encounter and effectively communicates to the other person an intent to do so. Lancaster v. State, 250 Ga. 871 , 301 S.E.2d 882 (1983).
Defendant's use of defensive force was not justified when the evidence demonstrated that defendant engaged in mutual combat for several minutes from which defendant did not withdraw until injured. Roberts v. State, 215 Ga. App. 881 , 452 S.E.2d 570 (1994).
Court must charge on voluntary manslaughter as related to mutual combat when required by evidence. - When participants engage with mutual intention to fight, offense may be voluntary manslaughter as related to mutual combat. If evidence authorizes an inference that killing occurred in circumstances last mentioned, it is the duty of judge, even without request, to give in charge the law of voluntary manslaughter as related to mutual combat. Loudermilk v. State, 129 Ga. App. 552 , 200 S.E.2d 302 (1973).
Jury Charge
1. In General
Requirement for self-defense charge. - When there was some evidence supporting defendant's claim of self-defense, defendant's sole defense, the trial court erred in refusing to give a self-defense charge, even absent a written request. Printup v. State, 217 Ga. App. 495 , 458 S.E.2d 662 (1995).
As an instruction on unjustified self defense closely tracked the language of O.C.G.A. § 16-3-21 , giving that instruction was not harmful, even when the exceptions described by O.C.G.A. § 16-3-21 (b) did not apply. Reese v. State, 270 Ga. App. 522 , 607 S.E.2d 165 (2004).
Defendant pleading self-defense is not entitled to instruction on involuntary manslaughter. - Defendant who seeks to justify homicide under O.C.G.A. § 16-3-21 is not entitled to an additional instruction on involuntary manslaughter in the course of a lawful act, whatever the implement of death. Thomas v. State, 174 Ga. App. 560 , 330 S.E.2d 777 (1985).
Charge that self-defense inapplicable when in process of committing felony. - Trial court was authorized to instruct the jury pursuant to O.C.G.A. § 16-3-21(b)(2) that self-defense was inapplicable when the defendant was attempting to commit or was committing a felony because the defendant made an affirmative choice to engage in a dangerous and potentially violent criminal activity when the defendant participated in a drug transaction. Davis v. State, 290 Ga. 757 , 725 S.E.2d 280 (2012).
Proper statement of law not impermissible comment on evidence. - Trial court gave the jury a proper statement of the law advising the jury that if the jury found that the defendants were fleeing after committing a felony, justification would not be an available defense for the defendants; thus, the trial court's statement was not a comment on the evidence, and the trial court was not implying in any way that an actual felony had taken place. Ballard v. State, 297 Ga. 248 , 773 S.E.2d 254 (2015).
Self-defense instruction not warranted. - In a prosecution for various offenses committed against an officer involving the defendant and the defendant's mother, because self-defense was not their only defense and both denied ever touching the officer, the trial court did not err in failing to charge the jury on self-defense; moreover, aside from the aforementioned, an oral request for the instruction was insufficient to require that instruction. Curtis v. State, 285 Ga. App. 298 , 645 S.E.2d 705 (2007), overruled on other grounds by McClure v. State, 306 Ga. 856 , 834 S.E.2d 96 (2019).
Because no construction of the evidence would support a finding that the defendant shot in self-defense pursuant to O.C.G.A. § 16-3-21(a) , the trial court properly refused to charge on that issue; the defendant pointed to no evidence that the defendant entered a fracas between the victim and the victim's friend in defense of the friend, and the unarmed victim was shot three times in the back as the victim was attempting to flee after the defendant assaulted the victim with a firearm. Hicks v. State, 287 Ga. 260 , 695 S.E.2d 195 (2010), overruled on other grounds by McClure v. State, 306 Ga. 856 , 834 S.E.2d 96 (2019).
Trial court did not err by refusing to charge the jury on the affirmative defense of self-defense because the defendant never admitted to the crimes alleged and, in fact, denied even being present during the assault of the victim; therefore, there was no evidence to support the giving of the requested charge. Ransom v. State, 318 Ga. App. 764 , 734 S.E.2d 761 (2012).
Appellant failed to show ineffective assistance of counsel for failing to emphasize certain testimony from an investigator that supported a claim of self defense because co-indictees testified that they did not see appellant and the victim fight or the victim with a weapon and trial counsel testified that they agreed to focus on appellant's character instead of self-defense and a jury instruction that deadly force was not justified during a felony would have been required. Jones v. State, 294 Ga. 501 , 755 S.E.2d 131 (2014).
In the defendant's trial for cruelty to a child and false imprisonment, O.C.G.A. §§ 16-5-70(c) and 16-5-41(a) , respectively, based on the defendant's locking the defendant's seven-year-old son in a wooden box the defendant built for the purpose and also binding the child in a sleeping bag, the trial court did not err in failing to instruct the jury on self-defense, defense of habitation, and defense of property other than habitation, nor was counsel ineffective in failing to request these instructions. Leslie v. State, 341 Ga. App. 731 , 802 S.E.2d 674 (2017).
Trial court did not err in refusing to instruct the jury on self-defense because the defendant did not point to any evidence to support a reasonable belief that shooting the victim was necessary to defend the defendant or the defendant's girlfriend from any imminent use of unlawful force as the victim agreed to meet the defendant to apologize for hitting the defendant and taking the defendant's shotgun weeks earlier; the defendant did not point to any evidence that the defendant was in fear of suffering harm during the encounter with the victim; and there was no evidence that the victim was reaching for a weapon; rather, the evidence showed that the defendant was the aggressor, and was not entitled to a self-defense instruction. Garner v. State, 303 Ga. 788 , 815 S.E.2d 36 (2018).
Defendant failed to prove that the trial court erred in refusing to instruct the jury on self-defense because the defendant pointed to no evidence to support a reasonable belief that shooting the victim was necessary to defend from any imminent use of unlawful force. Although the defendant and the victim were engaged in an argument before the shooting, nothing in the record suggested that the defendant was in danger of imminent violence when the defendant retrieved a gun and pointed the gun at the victim or when the defendant fired the gun. Crider v. State, Ga. App. , 846 S.E.2d 205 (2020).
Trial court did not err in failing to instruct the jury regarding self-defense because there was no evidence to support such an instruction and trial counsel was not deficient for failing to request a charge on self-defense since the defense strategy was that the defendant had no involvement in the victim's death. Floyd v. State, 307 Ga. 789 , 837 S.E.2d 790 (2020).
Justification instruction not warranted. - Trial court did not err by failing to charge the jury on the defense of justification under O.C.G.A. § 16-3-21(a) because the evidence did not support the giving of the charge; there was no evidence presented at trial that the victim's act of opening the front door was in any way an unlawful entry into or attack upon the victim's mother's house, that the victim opened the door in a violent and tumultuous manner, or that the defendant could have reasonably believed that the victim intended to attack or offer personal violence toward anyone inside the house. Reese v. State, 289 Ga. 446 , 711 S.E.2d 717 (2011), overruled on other grounds by State v. Lane, 308 Ga. 10 , 838 S.E.2d 808 (2020).
Trial court did not err by declining to charge the jury on the defense of justification under O.C.G.A. § 16-3-21(a) because the defendant declined to testify at trial or present any defense witnesses to support a justification defense, and the defendant's cross-examination of the state's witnesses did not reveal any evidence that would support such a defense. Jackson v. State, 316 Ga. App. 588 , 730 S.E.2d 69 (2012).
There was no evidence to support the giving of a jury charge on justification, because the defendant hit the defendant's wife in the face with a trophy, requiring sutures, while the defendant did not even appear to have been in a fight. Hudson v. State, 325 Ga. App. 657 , 754 S.E.2d 626 (2014).
When the defendant, an inmate, was convicted of the aggravated assault and aggravated battery of the victim, another inmate, the trial court did not commit any error in declining to charge the jury on the defense of justification because there was no evidence to support the defense as the defendant declined to testify at trial or present any defense witnesses to support a justification defense; the defendant's cross-examination of the state's witnesses did not reveal any evidence that would support a defense of justification; and the detention officer's testimony that the defendant had a mild abrasion or a cut over one eye, without more, clearly was insufficient to support a justification charge. Boutier v. State, 328 Ga. App. 869 , 763 S.E.2d 255 (2014).
Defendant was not entitled to a jury instruction on justification as the defendant was not justified in using force in self-defense as to the charge of harming the police dog even if the defendant had an involuntary reaction to the dog's bite. Bynes v. State, 336 Ga. App. 223 , 784 S.E.2d 71 (2016).
Any error in the trial court's failure to charge on justification during the defendant's trial for murder was harmless because it was highly probable that the jury would have reached the same verdict even had the trial court given the charge as the jury would have independently concocted a theory of the victim's death that was inconsistent with the state's theory of the case and inconsistent with the defendant's own account of the events. Guerrero v. State, 307 Ga. 287 , 835 S.E.2d 608 (2019).
Trial court's decision not to give a justification instruction was not error as there was evidence presented that the defendant was the initial aggressor on the night of the shooting. Crider v. State, Ga. App. , 846 S.E.2d 205 (2020).
Trial counsel was not ineffective for failing to request an instruction on a justification defense because there was at best slight evidence presented at trial that would have allowed the jury to infer that the defendant acted in self-defense and there was no direct evidence that the victim was armed or that the defendant was in imminent danger from the victim at the time of the shooting. Gaston v. State, 307 Ga. 634 , 837 S.E.2d 808 (2020).
Jury charge on defense of habitation. - In a prosecution for aggravated assault, while the trial court charged the jury regarding the details of the defense of justification, because the evidence did not authorize the charge of defense of habitation, the instruction was properly denied; moreover, no evidence was presented to suggest that the victim used coercion or threats to gain entry into the defendant's residence. Brimidge v. State, 287 Ga. App. 23 , 651 S.E.2d 344 (2007).
Charging language of Code section sufficient. - When the trial court has charged on self-defense in the language of O.C.G.A. § 16-3-21(a) and has also charged on the presumption of innocence and the state's burden of proving every element of the offense charged beyond a reasonable doubt, the trial court does not err by refusing defendant's request to charge that once the issue of self-defense is raised, the state has the burden of proving that defendant was not justified in using force likely to cause death or great bodily harm. Hudson v. State, 171 Ga. App. 181 , 319 S.E.2d 28 (1984).
Although the defendant contended the trial court erred by failing to give defendant's requested charge on self-defense, since the court charged the jury on self-defense in the language of O.C.G.A. §§ 16-3-21 and 16-3-23 , which is the law in Georgia, and those code provisions cover the same principles requested by defendant, it was not error to deny defendant's request to charge. Cade v. State, 180 Ga. App. 314 , 348 S.E.2d 769 (1986).
Trial court did not err in charging the jury on self-defense even though the charge related to matters not in evidence since the charge to the jury was almost verbatim the pattern jury instruction contained in the Suggested Pattern Jury Instructions and was also almost verbatim to the provisions of O.C.G.A. § 16-3-21 . Washington v. State, 194 Ga. App. 756 , 391 S.E.2d 718 (1990).
When a defendant was charged with malice murder and possession of a firearm by a convicted felon, the charge given to the jury clearly provided a legal theory upon which the jury could acquit. Cauley v. State, 260 Ga. 324 , 393 S.E.2d 246 (1990).
Charge containing nearly precise language of O.C.G.A. § 16-3-21 and covering same principles as requested charge is adequate, and contention that the trial court did not give defendant's requested charge on the justifiable use of force in the defense of self or others is without merit. Strickland v. State, 250 Ga. 624 , 300 S.E.2d 156 (1983).
In a case charging malice murder and felony murder, where the court instructed the jury in almost the exact language of O.C.G.A. § 16-3-21 and instructed that, if the defendant raised the issue of self-defense, the state would have the burden of proving that the accused did not act in self-defense and also that the state had the burden of proof and responsibility to prove each element beyond a reasonable doubt, it was not error for the court not to instruct the jury that if they believed the accused to have been justified, it would be their duty to acquit the accused. Doss v. State, 262 Ga. 499 , 422 S.E.2d 185 (1992).
Trial court did not improperly instruct the jury on self-defense and using force to prevent a forcible felony in defendant's aggravated battery case, as the trial court gave defendant's requested instruction, which tracked the statutory language, and a defendant could not complain that an instruction that the defendant requested was improper. Colbert v. State, 263 Ga. App. 193 , 587 S.E.2d 300 (2003).
In an aggravated assault case, contrary to defendant's assertion that the trial court's jury instruction on the law of self-defense erroneously imposed a requirement of absolute necessity, rather than reasonable necessity, the instruction, taken as a whole, was not reversible error because it included the statutory language of O.C.G.A. § 16-3-21(a) , regarding justification. Bailey v. State, 263 Ga. App. 614 , 588 S.E.2d 807 (2003).
Trial court did not err in charging the jury on self-defense in the language of O.C.G.A. § 16-3-21(b)(3) because assuming that there was no evidence that the defendant was the aggressor, the charge was at most merely irrelevant, being one of a number of stated exceptions to the rule concerning the use of force in self-defense. Neal v. State, 290 Ga. 563 , 722 S.E.2d 765 (2012).
Jury charge that a person is not justified in using force if that person initially provokes the use of force was supported by the evidence because the evidence showed that appellant, possessing a firearm and believing that the victim did not want to speak with the appellant, stopped a truck at the residence, and a reasonable jury could infer that the appellant did so to provoke a confrontation with the victim about the affair. Anthony v. State, 298 Ga. 827 , 785 S.E.2d 277 (2016).
Charging entire Code section when only part is applicable. - When evidence would have authorized jury finding that O.C.G.A. § 16-3-21(b)(1) is applicable, the trial court did not commit reversible error by charging entirety of section, which sets out circumstances upon which defendant's use of force could not be said to have been justified. Guevara v. State, 151 Ga. App. 444 , 260 S.E.2d 491 (1979).
Trial court's charging jury as to the entire language of O.C.G.A. § 16-3-21 , even though the exceptions in subsection (b) were inapplicable under the facts of the case, did not impermissibly shift the burden of proof to defendant to disprove the existence of those exceptions. Jolley v. State, 254 Ga. 624 , 331 S.E.2d 516 (1985).
It was not reversible error for the trial judge to give a charge on O.C.G.A. § 16-3-21 , parts of which were applicable to the factual situation, even though a portion thereof was not specifically pertinent. Diaz v. State, 194 Ga. App. 577 , 391 S.E.2d 140 (1990).
In a prosecution for felony murder, it was not error for the trial court to instruct the jury on all subsections of O.C.G.A. § 16-3-21 even though a part of the charge may have been inapplicable under the facts in evidence. Lee v. State, 265 Ga. 112 , 454 S.E.2d 761 (1995).
Even though there was no evidence or contention that defendant initially provoked the victim's use of force with intent to use that force as an excuse to shoot the victim, inclusion of the instruction on that principle in the context of the entirety of the charge on justification did not mislead the jury or violate defendant's due process rights. Lowe v. State, 267 Ga. 410 , 478 S.E.2d 762 (1996).
Charge on self-defense and accident appropriate. - In a murder case, the trial court did not err in charging the jury on both self-defense and accident because the evidence supported both charges. The defendant testified that the victim was threatening the defendant and that the defendant used a knife to force the victim to get back; the defendant also testified that the defendant did not mean to stab the victim and that the defendant did not understand how the knife became lodged in the victim's chest. Hudson v. State, 284 Ga. 595 , 669 S.E.2d 94 (2008).
When testimony shows appellant was aggressor, charge of justification is unnecessary absent request. Corder v. State, 134 Ga. App. 316 , 214 S.E.2d 404 (1975).
Lack of evidence to support jury charge on justification. - Because the defendant was on the victim's premises unlawfully and initiated violence by lunging at the victim, pursuant to O.C.G.A. §§ 16-3-23 and 16-3-24 , the victim's efforts to defend the house and a mail truck were entirely legal; consequently, there was no evidence to support a jury charge on justification under O.C.G.A. § 16-3-21(a) . Robinson v. State, 270 Ga. App. 869 , 608 S.E.2d 544 (2004).
Trial court did not err in failing to instruct the jury on the defense of justified use of force in self-defense as defendant did not request the instruction and the trial court was not required to sua sponte instruct the jury on the defense as it was not defendant's sole defense; further, the evidence did not support giving the charge as the officers were making a lawful arrest based on probable cause, they had the right to use force reasonably necessary to make the arrest, and defendant had no right to resist the use of such reasonable force. Mayfield v. State, 276 Ga. App. 544 , 623 S.E.2d 725 (2005).
When there was no evidence of any second encounter between the defendant and a victim involving a handgun, either in a codefendant's testimony or in another victim's testimony, and there was no evidence of any threat so as to have given rise to a reasonable belief that the defendant must shoot the victim in the back of the head to avoid death or great bodily harm, the trial court did not err by not charging the jury on justification during the defendant's trial for malice murder. Hunter v. State, 281 Ga. 693 , 642 S.E.2d 668 (2007).
Trial court did not err in refusing to give a jury charge on justification because there was no evidence of any imminent threat of harm; although the defendant argued that the defendant's actions were justified because the defendant was trying to prevent the victim from using methamphetamine, which could cause harm to the victim and their unborn baby, the defendant pointed to no evidence that the victim used or threatened to use methamphetamine while the victim was pregnant with the child or to otherwise harm herself or the baby. Morgan v. State, 303 Ga. App. 358 , 693 S.E.2d 504 (2010).
Defendant's counsel was not ineffective for failing to request jury charges on the excessive use of force or on lack of justification under O.C.G.A. § 16-3-21(b)(1) and (b)(3) because two corrections officers did not use excessive force as a matter of law in subduing the defendant when, while incarcerated in a county jail, the defendant took two dinner trays, refused to put one back, and fought and choked an officer who took the trays away. Williams v. State, 309 Ga. App. 688 , 710 S.E.2d 884 (2011).
Trial court did not err by failing to charge the jury on the defense of justification under O.C.G.A. § 16-3-21(a) because the requested charge, which contrasted justification, voluntary manslaughter, and murder, was an inaccurate statement of the law; the definition of "justifiable homicide" contained in the defendant's request was inconsistent with and had been superseded by the current statutory scheme for the affirmative offense of justification; the existence of "reasonable fears" is irrelevant to the consideration of voluntary manslaughter. Reese v. State, 289 Ga. 446 , 711 S.E.2d 717 (2011), overruled on other grounds by State v. Lane, 308 Ga. 10 , 838 S.E.2d 808 (2020).
Trial court did not err by failing to charge the jury on the defense of justification under O.C.G.A. §§ 16-3-21(a) and 16-3-23 because counsel for the defendant characterized the defense as an "imperfect self-defense," a form of voluntary manslaughter that was not recognized in Georgia. Reese v. State, 289 Ga. 446 , 711 S.E.2d 717 (2011), overruled on other grounds by State v. Lane, 308 Ga. 10 , 838 S.E.2d 808 (2020).
Although the defendant indicated that the defendant believed a civilian code enforcement officer and a police officer were "stealing" the defendant's vehicles, that belief was unfounded because the vehicles were being removed after the defendant failed to clean up property; thus, there was no evidence of any imminent threat of harm to justify the defendant's use of force under O.C.G.A. § 16-3-21(a) . Adcock v. State, 317 Ga. App. 468 , 731 S.E.2d 365 (2012).
With regard to the defendant's domestic violence convictions, because the defendant acquiesced to the trial court's decision not to charge on justification, the issue of the trial court's refusal to give the requested charge was waived on appeal. Palmer v. State, 330 Ga. App. 679 , 769 S.E.2d 107 (2015).
Defendant was not required to admit criminal conduct to be entitled to charge on justification. - In the defendant's aggravated assault trial, O.C.G.A. § 16-5-21(a)(2), based on the defendant aiming a BB rifle at two victims, the trial court erred in denying the defendant's requested jury instructions on the defense of self and habitation, on the basis that the defendant did not admit aiming at the victims; if slight evidence supported the defenses, the charges should have been given. Defendant was not required to admit the elements of the crime in order to argue the defendant's theory of defense. McClure v. State, 306 Ga. 856 , 834 S.E.2d 96 (2019).
Charge on mutual combat not adjusted to the evidence. - Trial court's refusal to give the defendant's requested jury instruction on mutual combat, O.C.G.A. § 16-3-21(b)(3), did not constitute plain error under O.C.G.A. § 17-8-58(b) because a charge on mutual combat was not adjusted to the evidence; there was no evidence of intent to engage in a mutual fight or combat by agreement. Carruth v. State, 290 Ga. 342 , 721 S.E.2d 80 (2012).
Supreme Court of Georgia has held that because a mutual combat charge authorizes the jury to find the defendant guilty of voluntary manslaughter in lieu of murder, the charge benefits defendants and, as such, a convicted defendant's complaint that it was improper to give a mutual combat charge was without merit. Johnson v. State, 350 Ga. App. 478 , 829 S.E.2d 652 (2019).
Jury charge on mutual combat not error. - Trial court did not err in denying the defendant's claim that trial counsel rendered ineffective assistance by failing to object to the jury charge on mutual combat because there was some evidence, in the form of the defendant's testimony, that the victim was armed and it was undisputed that the defendant was armed; thus, trial counsel's performance could not have been deficient for failing to object as such objection would have been futile. Johnson v. State, 350 Ga. App. 478 , 829 S.E.2d 652 (2019).
Defendant could not challenge requested instruction. - Defendant's challenge to the instruction on justification failed as counsel did not object to the portion of the self-defense instruction tracking O.C.G.A. § 16-3-21(b)(2), and indeed requested that the trial court give the pattern charge including that language. Woodard v. State, 296 Ga. 803 , 771 S.E.2d 362 (2015).
Instruction on retreat not required. - Trial court's instruction thoroughly covered the law of justification and self-defense such that all of the first defendant's defenses could be properly considered, and any lack of additional specific instructions by the trial court on the duty to retreat were unnecessary. Ballard v. State, 297 Ga. 248 , 773 S.E.2d 254 (2015).
Request to charge on mutual combat was not ineffective assistance. - In a murder case in which the lawyers pursued not only a justification defense, but also voluntary manslaughter as an alternative to murder, it was not unreasonable to request a charge on mutual combat, even though the request might have impaired the justification defense because the request aided the voluntary manslaughter alternative. State v. Mobley, 296 Ga. 876 , 770 S.E.2d 1 (2015), cert. denied, 136 S. Ct. 535 , 2015 U.S. LEXIS 7570, 193 L. Ed. 2 d 431 (U.S. 2015).
Trial counsel not ineffective. - Trial counsel did not provide ineffective assistance of counsel in failing to request a jury instruction on specific forcible felonies since even assuming that trial counsel was deficient, the defendant could not show prejudice as the trial court charged the jury on the presumption of innocence, reasonable doubt, the burden of proof, and the defense of justification, including that the definition of a forcible felony; the jury was fairly informed as to when a homicide was justified and there was not a reasonable probability that the jury would have reached a different result if an instruction on specific forcible felonies had also been given. Lott v. State, 281 Ga. App. 373 , 636 S.E.2d 102 (2006).
Because there was no evidence to support a justification defense pursuant to O.C.G.A. § 16-3-21(a) , including defense of habitation under O.C.G.A. § 16-3-23 , trial counsel's performance could not be considered deficient for failure to pursue those defenses. Reese v. State, 289 Ga. 446 , 711 S.E.2d 717 (2011), overruled on other grounds by State v. Lane, 308 Ga. 10 , 838 S.E.2d 808 (2020).
Defendant was not entitled to a new trial due to ineffective assistance of trial counsel for failure to conduct a pre-trial consultation with an expert witness to utilize the evidence of the trajectory of the fatal bullet to support the defense because the defendant failed to demonstrate a reasonable probability that the trial result would have been different if counsel had made such a consultation as the undisputed evidence established that the defendant fired the first shot and was the aggressor who started the gunfight; and the fact that the defendant fired the fatal shot while trying to get away from the gunfight the defendant started did not change the analysis regarding the lack of justification as the defendant was the aggressor. Mosby v. State, 300 Ga. 450 , 796 S.E.2d 277 (2017).
Defendant was not entitled to a new trial due to ineffective assistance of trial counsel for failure to present the testimony of an expert witness who could have established that, based upon the video, the defendant could not have inflicted the muzzle wound to the victim's right leg and that the victim accidentally shot the victim's own leg because the jury was able to determine for itself whether the defendant was ever close enough to the victim to cause a muzzle contact wound; and it was undisputed that the shot to the victim's leg was not the fatal wound. Mosby v. State, 300 Ga. 450 , 796 S.E.2d 277 (2017).
Defendant was not entitled to a new trial due to ineffective assistance of trial counsel for failure to consult with or retain a crime scene reconstruction or firearms expert to explain the events the video portrayed because the jury could draw the jury's own conclusions about the events shown on the video; the defendant failed to show that the testimony of an expert witness with respect to what the expert observed on the video would have been admissible or that the jury would have accepted the expert's testimony over what the jurors observed; and, even if admissible, the jurors could have disregarded the expert's testimony about what the expert saw in the video if the testimony conflicted with what the jurors saw for themselves. Mosby v. State, 300 Ga. 450 , 796 S.E.2d 277 (2017).
Because the homeowner's testimony supported an instruction on defense of self or others, not an instruction on mutual combat or voluntary manslaughter, trial counsel was not ineffective in declining to pursue instructions on mutual combat or voluntary manslaughter. Bannister v. State, 306 Ga. 289 , 830 S.E.2d 79 (2019).
Defendant failed to show that trial counsel was ineffective for pursuing a defense of justification by self-defense because given the lack of evidence and the instructions the jury received, there was nothing from which the jury could conclude that defendant was barred from asserting a self-defense claim based on counsel's speculation in closing argument that defendant may have been attempting to purchase marijuana. Brooks v. State, Ga. , S.E.2d (Aug. 24, 2020).
2. Content
Erroneous version of charge. - Defendant was not entitled to a new trial on the basis that the court charged the jury with a garbled version of O.C.G.A. § 16-3-21(b)(1) and (b)(2), which addresses the circumstances under which a person is not justified in using force, since just before giving the garbled charge the trial court gave the defendant's requested charge on justification and the court's misstatement could not have harmed the defendant. Boxer X v. State, 237 Ga. App. 526 , 515 S.E.2d 668 (1999).
Charge covering elements of justifiable homicide need not include language of this section and O.C.G.A. § 16-3-24 . - When the charge given sufficiently instructed the jury on elements of justifiable homicide, in absence of any request to charge, or objection to charge, it was not error to fail to charge in language of former Code 1933, §§ 26-902 and 26-904 (see O.C.G.A. §§ 16-3-21 and 16-3-24 ). Brooks v. State, 227 Ga. 339 , 180 S.E.2d 721 (1971).
Failure to define "felony" as used in section. - Failure to define word "felony", in jury charge in absence of request, is not such error as requires grant of new trial. Fountain v. State, 207 Ga. 144 , 60 S.E.2d 433 (1950), overruled on other grounds, Lavender v. State, 234 Ga. 608 , 216 S.E.2d 855 (1975) (decided under former Code 1933, §§ 26-1011, 26-1012).
Word "excusable" should not be used in instruction on justifiable homicide. Mixon v. State, 123 Ga. 581 , 51 S.E. 580 , 107 Am. St. R. 149 (1905) (decided under former Penal Code 1895, §§ 70, 71).
Instruction which incorrectly imposed a higher threshold for justification of the killing, i.e., that the necessity for it be "absolute," prejudiced defendants. Gerald v. State, 189 Ga. App. 155 , 375 S.E.2d 134 (1988); Bracewell v. State, 243 Ga. App. 792 , 534 S.E.2d 494 (2000).
Charge on preponderance of evidence to support defense under former Code 1933, § 26-902, although authorized, is not required. Smith v. State, 232 Ga. 99 , 205 S.E.2d 188 (1974).
Charge need not instruct jury that it must acquit if it finds homicide justifiable. - It is not error, in charging as to justifiable homicide, to fail to tell jury in general or specific terms that, if they find homicide justifiable, it is their duty to acquit. Lavender v. State, 234 Ga. 608 , 216 S.E.2d 855 (1975).
Self-defense killing need not be "absolutely necessary." - It is error to add to the charge of self-defense that the killing must have been "absolutely necessary" to save the slayer's life. Murray v. State, 254 Ga. 351 , 329 S.E.2d 485 (1985).
Charge requiring flight or retreat and fear for own life. - Trial court's charge places a heavier burden on defendant than the law requires when it limits defense to consideration of whether defendant was in fear of own life and imposes a requirement of flight or retreat. Scott v. State, 141 Ga. App. 848 , 234 S.E.2d 685 (1977).
Defense entitled to jury charge as to retreat. - When self-defense is the sole defense, and the issue of retreat is raised by the evidence or placed in issue, the defense is entitled to a charge on the principles of retreat even though O.C.G.A. § 16-3-21 is silent on the duty to retreat. Johnson v. State, 253 Ga. 37 , 315 S.E.2d 871 (1984).
Trial court committed reversible error in failing to charge the jury on the lack of a duty to retreat under O.C.G.A. § 16-3-23.1 because self-defense, O.C.G.A. § 16-3-21(a) , was the defendant's sole defense, and the issue of retreat was squarely placed in issue by the prosecutor's cross-examination of the defendant, by the defendant's explanation of why the defendant did not drive away from the victim, whom the defendant characterized as the aggressor, and by the prosecutor's closing argument; the evidence of the defendant's guilt was not overwhelming, given that the case turned solely on the credibility of the defendant, the victim, and the other witnesses. Hill v. State, 310 Ga. App. 695 , 713 S.E.2d 891 (2011).
Instruction on retreat not required absent evidence. - Instruction on the principle that a person who is not the original aggressor is under no duty to retreat was not required since "self-defense" was not the "sole defense" and the issue of retreat was not raised by the evidence or placed in issue. Wainwright v. State, 197 Ga. App. 43 , 397 S.E.2d 456 (1990).
Since the issue of retreat was not raised by the evidence or placed in issue, the trial court did not err in failing to charge the jury on the duty to retreat. Ellis v. State, 245 Ga. App. 807 , 539 S.E.2d 184 (2000).
Neither the prosecution nor the evidence raised the issue of retreat; thus, the trial court's excessive force instruction without a no duty to retreat charge did not unduly stress the state's contentions. Dukes v. State, 256 Ga. App. 236 , 568 S.E.2d 151 (2002).
Charge may include exceptions to justification. - Even though justification can be a defense to felony murder in some situations, it was not error to include the exceptions of O.C.G.A. § 16-3-21(b)(2) in the jury charge where the court also charged the jury that "the defense of justification applies to each of the counts alleged ... except that charge dealing with theft by taking." Williams v. State, 274 Ga. 371 , 552 S.E.2d 814 (2001).
Because an instruction recited the language of O.C.G.A. § 16-3-21 , giving that charge was not harmful, even when the exceptions described by § 16-3-21 (b) did not apply. Hayles v. State, 287 Ga. App. 601 , 651 S.E.2d 860 (2007).
Instruction that justification was possible defense unwarranted. - Since the Supreme Court has ruled that prevention of adultery does not justify the killing of an illicit lover by a spouse, and the Court of Appeals has ruled that mental anguish does not rise to the level of "great bodily harm" as it is used in O.C.G.A. § 16-3-21 , an instruction that justification was a possible defense under O.C.G.A. § 16-3-20(6) was not authorized, and the trial court committed no error in refusing to give it. Chancellor v. State, 165 Ga. App. 365 , 301 S.E.2d 294 (1983).
Trial court was not obligated to instruct the jury as to a justification defense where the defendant tried to remain locked in defendant's prison cell and injured a corrections officer when the officer tried to get defendant out of the cell after the officer threatened to place the defendant in a padded cell if the defendant did not quit yelling. Grant v. State, 257 Ga. App. 678 , 572 S.E.2d 38 (2002).
In a malice murder prosecution, the defendant's testimony that an unarmed person approached the defendant aggressively with the person's hands up did not establish that the defendant had a reasonable belief that stabbing the person in a manner likely to, and which did, cause death was necessary to prevent the defendant's own death or great bodily injury. Thus, the defendant was not entitled to a justification instruction under O.C.G.A. § 16-3-21(a) . Boyd v. State, 284 Ga. 46 , 663 S.E.2d 218 (2008).
Defendant entitled to justification charge. - Where the defendant's testimony provided "some" evidence in support of defendant's justification defense based on a claim of self-defense, the trial court's refusal to charge the jury on defendant's sole defense was reversible error, even though the defendant was a convicted felon and not authorized by law to possess a firearm. Jones v. State, 220 Ga. App. 784 , 470 S.E.2d 326 (1996).
In a murder prosecution, the defendant was not entitled to a charge on self-defense, under O.C.G.A. § 16-3-21 , because the trial court gave a complete charge on justification, much of which was in the language the defendant requested. Gabriel v. State, 280 Ga. 237 , 626 S.E.2d 491 (2006).
Charge fairly represented issue of justification. - Trial court did not err in failing to include certain language in the court's charge on justification because the charge as a whole fairly represented the issue of justification; inasmuch as the charge as a whole was not an incorrect statement of the law, and the charge instructed the jury that the defendant was justified in using self defense against the "imminent use of unlawful force and against great bodily injury", the trial court's omission of the phrase "or to prevent the commission of a forcible felony" did not undermine the legal adequacy of the charge. Milinavicius v. State, 290 Ga. 374 , 721 S.E.2d 843 (2012).
Defendant entitled to justification charge under § 16-3-20(6) . - Even though the trial court charged the jury on justification in the specific context of defense of self or a third person as provided in O.C.G.A. § 16-3-21(a) and defense of property as provided in O.C.G.A. § 16-3-24 , such instruction alone failed to fairly present to the jury the law on defendant's theory of the case and defendant's defense of justification. The trial court erred in failing to charge justification under O.C.G.A. § 16-3-20(6) and in failing to charge the jury on the state's burden of proving the absence of the elements of a justification defense. Nelson v. State, 213 Ga. App. 641 , 445 S.E.2d 543 (1994).
Defendant not entitled to justification charge. - Without any evidence that defendant's actions were justified, the trial court's obligation to instruct the jury on the defendant's sole defense of justification dissolved. The defendant must present some evidence justifying the use of deadly force and only then must the state disprove that defense beyond a reasonable doubt. Porter v. State, 272 Ga. 533 , 531 S.E.2d 97 (2000).
Jury charge on self-defense, which informed the jury that an accused was not justified in committing an assault to avenge past wrongs, was adjusted to the evidence that the defendant had previous confrontations with the victim over a person of the opposite sex and that the defendant had threatened the victim via that person's cell phone before driving to the scene and confronting them; the trial court correctly instructed the jury that to the extent that the defendant's subsequent acts might have been motivated by resentment over the perceived slight, justification was not a viable defense. Hall v. State, 273 Ga. App. 203 , 614 S.E.2d 844 (2005).
Based on the evidence supporting the defendant's participation in a felony drug transaction at the time of the fatal shooting of the victim, the trial court was authorized to instruct the jury pursuant to O.C.G.A. § 16-3-21(b)(2) that a person was not justified in using force in defense of self or others if the person was attempting to commit, committing, or fleeing after the commission or attempted commission of a felony; the defendant affirmatively chose to engage in the potentially dangerous and violent criminal business of a felony drug deal before the fatal confrontation with the victim took place. Smith v. State, 290 Ga. 768 , 723 S.E.2d 915 (2012).
Because the evidence showed that the defendant was the initial aggressor, breaking into the defendant's girlfriend's house and confronting her family, the defendant was not entitled to the defense of justification. Bryson v. Jackson, 299 Ga. 751 , 791 S.E.2d 43 (2016).
When evidence indicated that defendant was aggressor, charge on justification was gratuity to which defendant was not entitled, and the defendant could not therefore complain of any alleged error in the charge on justification. Montgomery v. State, 173 Ga. App. 570 , 327 S.E.2d 770 (1985); Park v. State, 230 Ga. App. 274 , 495 S.E.2d 886 (1998).
Law of justifiable homicide and voluntary manslaughter need not be connected in charge. - When law of voluntary manslaughter is involved under evidence, or is charged without exception by the defendant, and when law of justifiable homicide is involved, and instructions are given as to it, it is not error to fail to charge law of justifiable homicide in immediate connection with charge on general law of voluntary manslaughter. Fann v. State, 195 Ga. 368 , 23 S.E.2d 399 (1942) (decided under former Penal Code 1895, §§ 70, 71).
Charge covering self-defense, although inapplicable, is not erroneous if not tending to destroy other defenses. Adams v. State, 214 Ga. 131 , 103 S.E.2d 550 (1958) (decided under former Code 1933, §§ 26-1011, 26-1012).
Although evidence would not have authorized verdict of justifiable homicide, where cross-examination of state's witnesses unsuccessfully attempted to show that deceased had a weapon, charge on justifiable homicide gave defendant benefit of defense to which defendant was not entitled and did not tend to destroy other defenses, and court did not err in so charging. Jones v. State, 197 Ga. 604 , 30 S.E.2d 192 (1944) (decided under former Code 1933, §§ 26-1011, 26-1012).
Erroneous charge on justifiable homicide not cured by verdict of lesser grade of murder. - Erroneous charge or failure to charge on accused's defense or defenses of justifiable homicide is not cured by verdict finding accused guilty of some lesser grade of offense than murder. McKibben v. State, 88 Ga. App. 466 , 77 S.E.2d 86 (1953) (decided under former Code 1933, §§ 26-1011, 26-1012).
Charge on justifiable homicide not reversible error. - When the defendant was charged with murder by shooting the deceased, and defendant denied any knowledge or connection therewith, thus making an issue of murder or nothing, it was error to submit by charge the question of justifiable homicide, but this was not reversible error as defendant was not injured thereby. Claybourn v. State, 190 Ga. 861 , 11 S.E.2d 23 (1940) (decided under former Code 1933, §§ 26-1011, 26-1012).
When, in trial for murder, state proves killing as alleged in indictment, and accused defends upon ground that the accused did not commit the crime, and was not present at time of the crime's commission, it is not reversible error for the court to charge the law of justifiable homicide, when no injury is shown as a result thereof. Williams v. State, 199 Ga. 504 , 34 S.E.2d 854 (1945) (decided under former Code 1933, §§ 26-1011, 26-1012).
Charge on mutual combat authorized by evidence. - See McMichael v. State, 252 Ga. 305 , 313 S.E.2d 693 (1984).
Charge regarding mutual combat when there is no evidence of mutual combat is reversible error. Bivins v. State, 200 Ga. 729 , 38 S.E.2d 273 (1946) (decided under former Code 1933, §§ 26-1011, 26-1012).
Defendant's claim of error in a mutual combat charge was rejected as the charge redounded to the defendant's advantage as the charge enabled the jury to find a criminal defendant guilty of voluntary manslaughter in lieu of murder. Hall v. State, 273 Ga. App. 203 , 614 S.E.2d 844 (2005).
Erroneous charge on mutual combat related to self-defense not cured by verdict of voluntary manslaughter. - If under facts of case a charge on mutual combat as applied to self-defense is required, and court fails so to charge or charges erroneously, verdict of voluntary manslaughter will not cure error. McKibben v. State, 88 Ga. App. 466 , 77 S.E.2d 86 (1953); Patton v. State, 93 Ga. App. 575 , 92 S.E.2d 219 (1956) (decided under former Code 1933, §§ 26-1011, 26-1012).
Failure to charge mutual combat and self defense. - The trial court did not err by failing to charge the jury on mutual combat and self defense where the defendant and three other men entered a barber shop, demanded money, and started fighting with people in the barber shop resulting in one of the other men shooting and killing a person when the person attempted to flee and the defendant shooting and seriously wounding another person who threw a radio at the defendant in an attempt to prevent the defendant from injuring the person's nephew. Johnson v. State, 275 Ga. 630 , 570 S.E.2d 309 (2002).
Charge to jury on self-defense in relation to mutual combat was incorrect where it did not set forth the standard by which the jury was to judge the defendant's behavior if mutual intention to fight was present. McCord v. State, 176 Ga. App. 505 , 336 S.E.2d 371 (1985).
Evidence supported decision to instruct jury on self-defense. - Evidence that a person who was engaged to marry the mother of the defendant's child got into a fight with the defendant was sufficient to warrant an instruction on self-defense, even though the defendant testified that the defendant did not fire the shot that struck the mother's fiance, and the trial court did not err because it instructed the jury on self-defense, even though the defendant did not request that instruction. Hendrix v. State, 268 Ga. App. 455 , 602 S.E.2d 133 (2004).
Court's refusal to charge on involuntary manslaughter not erroneous. - See Lancaster v. State, 250 Ga. 871 , 301 S.E.2d 882 (1983); Rhodes v. State, 170 Ga. App. 473 , 317 S.E.2d 285 (1984).
Charge on specific forcible felony. - When prevention of a forcible felony is charged as justification and defendant requests a charge on the specific forcible felony of which there is evidence, it is error to fail to charge the elements of such a felony as it relates to justification. Wiseman v. State, 249 Ga. 559 , 292 S.E.2d 670 (1982).
When the defendant did not testify that the fatal shot was fired to prevent the commission of a forcible felony against the defendant, this legal concept was not reasonably raised by the evidence, and the trial court, in omitting the words "or to prevent the commission of a forcible felony" from the court's charge to the jury, did not err, since a court can decline to give a charge that is misleading, confusing, or not adequately raised or authorized by the evidence. Brown v. State, 236 Ga. App. 166 , 511 S.E.2d 276 (1999).
On appeal from a conviction for voluntary manslaughter as a lesser-included offense of malice murder, the appeals court found that no error or prejudice resulted from the trial court's denial of the defendant's request for an aggravated battery charge as a forcible felony in support of the defendant's justification claim, and affirmed the trial court's choice to charge on aggravated assault and rape as the defendant failed to present evidence of any reasonable belief that the use of force was necessary to prevent the commission of an aggravated battery. Wicker v. State, 285 Ga. App. 294 , 645 S.E.2d 712 (2007).
In an aggravated assault case in which the defense was justification under O.C.G.A. § 16-3-21(a) , trial counsel was not ineffective for failing to request a charge defining aggravated battery under O.C.G.A. § 16-5-24(a) , as a forcible felony for which the use of force was justified. Also, there was no showing that the outcome of the trial would have been different if such a charge had been given. Lewis v. State, 302 Ga. App. 506 , 691 S.E.2d 336 (2010).
Charge as to felony after charge that force is not justified before, at, or after felony. - The trial court did not err in charging the jury that the sale of marijuana is a felony after charging that a person is not justified in using force if the person "is attempting to commit, committing, or fleeing after the commission of a felony." The latter portion of the charge tracks O.C.G.A. § 16-3-21(b)(2). Howard v. State, 165 Ga. App. 555 , 301 S.E.2d 910 (1983).
Defense of third party charge not justified. - Trial court did not err in failing to give a jury charge on the defense of a third party; as defendant was a party to an armed robbery, the evidence did not show that defendant was justified in the use of deadly force and the evidence did not warrant such charge. Reynolds v. State, 275 Ga. 548 , 569 S.E.2d 847 (2002).
Family violence or child abuse. - Modified jury instruction on justification should be given in all battered person syndrome cases, when authorized by the evidence and requested by defendant, to assist the jury in evaluating the battered person's defense of self-defense. Smith v. State, 268 Ga. 196 , 486 S.E.2d 819 (1997), reversing Smith v. State, 222 Ga. App. 412 , 474 S.E.2d 291 (1996).
Jury instruction based on domestic violence report statute was error. - Jury charge based on O.C.G.A. § 17-4-20.1(a) and (b) was not supported by the evidence because only one of the two parties involved in a domestic dispute reported the incident to law enforcement, and the error was not harmless because it could have led the jury to conclude that the defendant, who was arrested, was the primary aggressor, and undermined the defense of self-defense, which was not permitted under O.C.G.A. § 16-3-21 if the defendant was the aggressor. Dean v. State, 313 Ga. App. 726 , 722 S.E.2d 436 (2012).
Charge on battered person syndrome. - Because the evidence showed that defendant had been abused by the victim, defendant's stepfather, and an expert witness testified that defendant suffered from battered person syndrome, the requirements for requesting a charge on battered person syndrome were met. Freeman v. State, 269 Ga. 337 , 496 S.E.2d 716 (1998).
Defendant who sought to justify killing a victim by battered person syndrome was not entitled to an additional instruction on involuntary manslaughter resulting from the commission of a lawful act in an unlawful manner under O.C.G.A. § 16-5-3(b) because if the act was justified, it was not a crime, and if not justified, it was not a lawful act. Demery v. State, 287 Ga. 805 , 700 S.E.2d 373 (2010).
Defendant not entitled to instruction on defense of others as not protecting sibling. - Trial court did not err when the court refused the defendant's request to charge the jury on defense of others because there was no evidence that the defendant killed the victim in defense of the defendant's sister as the defendant explicitly testified that, after the defendant began fighting with the victim, the defendant was worried about the defendant's own safety and not the safety of the defendant's sister; that the victim wrestled the defendant to the kitchen and away from the defendant's sister in the living room; and that the victim was stabbed to defend the defendant and not the defendant's sister. Cotton v. State, 297 Ga. 257 , 773 S.E.2d 242 (2015).
A "first aggressor" charge was justified by evidence that the victim's verbal tirade was delivered from the victim's own property, a substantial distance from defendant's home, and that defendant drove to a location adjacent to the victim's property and gestured the victim to come to where the defendant was located. Johnson v. State, 229 Ga. App. 586 , 494 S.E.2d 382 (1997).
Jury instruction on voluntary manslaughter not erroneous. - When there is evidence raising doubt, however slight, as to whether a homicide was murder or voluntary manslaughter, it is not error for the court to instruct the jury upon the law of voluntary manslaughter. Lee v. State, 167 Ga. App. 59 , 306 S.E.2d 57 (1983).
Fact that the defendant claimed self-defense under O.C.G.A. § 16-3-21 did not preclude a charge on voluntary manslaughter. The defendant was in effect asking the court to re-weigh the evidence to give greater credence to the defendant's self-defense justification than did the jury. Branford v. State, 299 Ga. App. 890 , 685 S.E.2d 731 (2009).
Defendant not entitled to instruction on involuntary manslaughter. - Defendant who seeks to justify homicide under O.C.G.A. § 16-3-21 is not entitled to an additional instruction on involuntary manslaughter in the course of a lawful act, O.C.G.A. § 16-5-3(b) , whatever the implement of death. For if defendant is justified in killing under O.C.G.A. § 16-3-21 , defendant is guilty of no crime at all. If defendant is not so justified, the homicide does not fall within the "lawful act" predicate of § 16-5-3(b) , for the jury, in rejecting defendant's claim of justification, has of necessity determined thereby that the act is not lawful. Saylors v. State, 251 Ga. 735 , 309 S.E.2d 796 (1983); Thompson v. State, 257 Ga. 481 , 361 S.E.2d 154 (1987); Kennedy v. State, 193 Ga. App. 784 , 389 S.E.2d 350 , cert. denied, 193 Ga. App. 910 , 389 S.E.2d 350 (1989); Nobles v. State, 201 Ga. App. 483 , 411 S.E.2d 294 , cert. denied, 201 Ga. App. 904 , 411 S.E.2d 294 (1991).
Defendant in a murder trial who argued that defendant's actions were lawful in defending self with an ax but did so in an unlawful manner, in that the force used was excessive, and who received a self-defense instruction, was not entitled to an additional charge of the lesser included offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner. Jordan v. State, 171 Ga. App. 558 , 320 S.E.2d 395 (1984); Wilson v. State, 176 Ga. App. 322 , 335 S.E.2d 888 (1985).
In a murder prosecution, as defendant claimed the defendant killed the victim in self-defense, the defendant was not entitled to an additional instruction on involuntary manslaughter in the course of a lawful act under O.C.G.A. § 16-5-3(b) since if the defendant was justified in killing under the self-defense statute, O.C.G.A. § 16-3-21 , the defendant was guilty of no crime at all; but if the defendant was not so justified, the homicide did not occur in the course of a lawful act. Hooper v. State, 284 Ga. 824 , 672 S.E.2d 638 (2009).
Defendant's requested charge on misdemeanor involuntary manslaughter was not justified by the defendant's statement to police that the victim attacked the defendant and that the defendant accidentally strangled the victim in an attempt to restrain the victim because one who sought to justify homicide as having been committed in self-defense was not entitled to an additional instruction on involuntary manslaughter resulting from the commission of a lawful act in an unlawful manner. Moore v. State, 325 Ga. App. 749 , 754 S.E.2d 792 (2014).
Failure to charge on self-defense when it constitutes defendant's only defense is reversible error. Jackson v. State, 154 Ga. App. 867 , 270 S.E.2d 76 (1980).
Failure to charge on defense of others constituted error. - Trial court erred in failing to give a requested charge on the right to use force in the defense of others, where a jury question existed as to whether defendant reasonably believed it was necessary to shoot the victim in order to prevent "great bodily injury" to the defendant's sons, which was the defendant's principal defense at trial. Wainwright v. State, 197 Ga. App. 43 , 397 S.E.2d 456 (1990).
Charge on self-defense unauthorized where defendant returned to scene after imminent danger had passed. - When any imminent danger justifying self-defense passed by the time the defendant returned to the scene of the altercation, the evidence was insufficient to authorize a requested charge on self-defense. Loggins v. State, 147 Ga. App. 122 , 248 S.E.2d 191 (1978).
Defendant not entitled to instruction on self-defense or mutual combat. - See Penn v. State, 224 Ga. App. 616 , 481 S.E.2d 602 (1997).
Court need not charge paragraph (b)(3) absent withdrawal or communication of intent to withdraw. - Court is not required to charge former Code 1933, § 26-902 when there was never any withdrawal by defendant, nor any communication from defendant that defendant so intended when defendant continued to hold a gun aimed at another party and that party, in obedience to defendant's command, had put the gun in that party's pocket. Hall v. State, 124 Ga. App. 381 , 183 S.E.2d 917 (1971).
Error in including language in charge was harmless. - Any error that occurred when the trial court included language from O.C.G.A. § 16-3-21(b)(2) in the charge was harmless given the defendant's testimony that the defendant shot the victim because the victim previously said the victim was going to get the victim's "tool," the evidence the victim was unarmed, and the fact that the trial court charged the jury on the defense of self and habitation. Mullins v. State, 299 Ga. 681 , 791 S.E.2d 828 (2016).
Recharge. - Trial court did not err in failing to recharge the entire Suggested Pattern Jury Charge on justification. The jury asked the trial court to redefine justification, not to repeat the entire charge. Branford v. State, 299 Ga. App. 890 , 685 S.E.2d 731 (2009).
Application
Burden of proof. - When the defense of self-defense is made, the better practice is to specifically advise the jury that the burden of proof with regard to the offense is on the state and is not on the defendant to prove the defense. Jolly v. State, 164 Ga. App. 240 , 296 S.E.2d 784 (1982).
Because the defendant failed in the burden of proving that the evidence of specific acts of violence by the victim should be admitted, and testimony did not establish that the event occurred before the defendant's attack on the victim, the trial court's ruling that there was no evidence to support a defense of justification was not clearly erroneous. Cross v. State, 285 Ga. App. 518 , 646 S.E.2d 723 (2007), cert. denied, No. S07C1479, 2007 Ga. LEXIS 680 (Ga. 2007).
Trial court did not err by granting the defendant's motion for immunity from prosecution pursuant to O.C.G.A. § 16-3-24.2 because the court's determination that the defendant was immune from prosecution since the defendant acted in self-defense under O.C.G.A. § 16-3-21(a) in discharging the defendant's service weapon, although based upon conflicting evidence, was supported by a preponderance of the evidence. State v. Bunn, 288 Ga. 20 , 701 S.E.2d 138 (2010).
Justifiable homicide may exist when one kills another other than in defense of own life. - Smith v. State, 215 Ga. 51 , 108 S.E.2d 688 (1959) (decided under former Code 1933, §§ 26-1011, 26-1012).
One may kill to protect sister from death or serious bodily injury, real or apparent, and may be justified. Willingham v. State, 72 Ga. App. 372 , 33 S.E.2d 721 (1945) (decided under former Code 1933, §§ 26-1011, 26-1012).
No justification for use of force when fleeing felony. - Defendant's concession that the defendant's actions as to the victim at least constituted voluntary manslaughter, a felony, precluded the defendant from claiming self defense because the defendant was not justified in using force when fleeing the commission or attempted commission of a felony. Soto v. State, 303 Ga. 517 , 813 S.E.2d 343 (2018).
Killing in defense of another requires same danger as killing in self-defense. - To justify homicide in defense of relative, danger must be impending. Hill v. State, 64 Ga. 453 (1880) (decided under former Code 1873, §§ 4330, 4331).
In order for defendant to be justified in killing deceased to protect defendant's sister, the sister's life or person would have to be in same sort of peril that defendant's own life would be in if defendant was killing in defense of self. Moody v. State, 47 Ga. App. 1 , 169 S.E. 541 (1933) (decided under former Penal Code 1910, §§ 70, 71).
Failure to make prima facie showing of self-defense. - Because the defendant failed to make a prima facie showing that the defendant acted in self-defense and evidence of the victim's propensity for violence could not be introduced, the defendant could not satisfy the requirement of demonstrating a pertinent trait of character of the alleged victim of the crime, and there was no need to address the defendant's contention that the court incorrectly applied the rule regarding the methods of proving character. Oliver v. State, 329 Ga. App. 377 , 765 S.E.2d 606 (2014).
Former Code 1933 § 26-1015 was inapplicable where facts show that danger to relative was not impending. Ingram v. State, 204 Ga. 164 , 48 S.E.2d 891 (1948) (decided under former Code 1933, §§ 26-1011, 26-1012).
Absolute necessity to kill is not test by which to determine whether homicide was justifiable when defense of justifiable homicide under fears of a reasonable man is involved. McCray v. State, 134 Ga. 416 , 68 S.E. 62 , 20 Ann. Cas. 101 (1910) (decided under former Penal Code 1895, §§ 70, 71).
It is unnecessary that slayer retreat where the slayer is free from fault and acts under fears of a reasonable man. Glover v. State, 105 Ga. 597 , 31 S.E. 584 (1898) (decided under former Penal Code 1895, §§ 70, 71).
Possession of firearm by felon used in self-defense. - Evidence supported the defendant's contention that the defendant shot the victim in self-defense; therefore, if the defendant's possession of a firearm at the shooting was justified under the rule created under O.C.G.A. §§ 16-3-21 and 16-11-138 , then it could not be said that the defendant was committing a felony when the defendant shot the victim, and the preclusive bar of § 16-3-21 (b)(2) would not apply. However, the trial court needed to consider whether possession of the firearm before or after the shooting could be prosecuted. State v. Remy, 308 Ga. 296 , 840 S.E.2d 385 (2020).
Assertion of self-defense by provoker. - When it was the defendant who began hitting the victim, pinned the victim to the floor, and continued to administer a beating, the evidence presented was sufficient to prove defendant did not act in self-defense in subsequently stripping victim of the unloaded shotgun and employing the shotgun upon the victim as a club. Syfrett v. State, 210 Ga. App. 185 , 435 S.E.2d 470 (1993).
Evidence was sufficient to support a defendant's convictions for aggravated assault because the defendant was involved with other members of a rap group in settling a previous altercation with a rival rap group, the defendant and others drove into an assigned park where the meeting was to be held, the defendant admitted to firing gunshots, and although others also had guns and fired shots, the defendant was liable under O.C.G.A. § 16-2-20 for injuries and a death to bystanders; the defendant could not assert self-defense under O.C.G.A. § 16-3-21(b)(3) because the defendant was the aggressor. Taylor v. State, 296 Ga. App. 212 , 674 S.E.2d 81 (2009).
Evidence that the defendant, possessing a firearm and believing that the victim did not want to speak with the defendant, stopped the defendant's truck at the defendant's estranged spouse's residence while the victim was present could be viewed by a jury as being intended to provoke the victim's use of force, justifying the trial court's instruction under O.C.G.A. § 16-3-21(b)(3). Anthony v. State, 298 Ga. 827 , 785 S.E.2d 277 (2016).
When the defendant was convicted of murder and other offenses arising out of the shooting death of the victim, the evidence was sufficient for the jury to find that the defendant did not act in self-defense and was not otherwise justified when the defendant shot the victim because the jury reasonably could have found that the defendant's version of the events was not supported by a security video and other evidence as the defendant fired the first shot; a witness, who was previously involved in a relationship with the defendant, testified that the altercation started when the defendant verbally threatened the witness; and the video showed a short gun battle between the defendant and the victim. Mosby v. State, 300 Ga. 450 , 796 S.E.2d 277 (2017).
To deliberately kill in revenge for past injury, however heinous, cannot be justifiable after reason has had time to resume its sway. Mize v. State, 135 Ga. 291 , 69 S.E. 173 (1910) (decided under former Penal Code 1895, §§ 70, 71); Ward v. State, 25 Ga. App. 296 , 103 S.E. 726 (1920) (decided under former Penal Code 1910, §§ 70, 71).
Aggressor may defend himself where provoked party responds with disproportionate force. - One who provokes a difficulty may yet defend self against violence on part of one provoked, if violence is disproportionate to seriousness of provocation or greater in degree than the law recognizes as justifiable under the circumstances. Sams v. State, 124 Ga. 25 , 52 S.E. 18 (1905) (decided under former Penal Code 1895, §§ 70, 71); Bennett v. State, 19 Ga. App. 442 , 91 S.E. 889 (1917) (decided under former Penal Code 1910, §§ 70, 71).
Homicide to prevent serious personal injury not amounting to felony upon person killing is not justified. Carter v. State, 92 Ga. App. 68 , 87 S.E.2d 655 (1955) (decided under former Code 1933, §§ 26-1011, 26-1012).
Killing committed under fears of injury less than a felony is manslaughter. - If one kills another, under fears of a reasonable man, that deceased was manifestly intending to commit a personal injury upon the defendant, amounting to felony, the killing is justifiable homicide; if one is under similar fears of some injury less than a felony, the offense is manslaughter, and not murder. McDaniel v. State, 209 Ga. 827 , 76 S.E.2d 500 (1953) (decided under former Code 1933, §§ 26-1011, 26-1012).
Words, threats, and other verbal menaces may be sufficient to justify homicide. Cumming v. State, 99 Ga. 662 , 27 S.E. 177 (1896); Holland v. State, 3 Ga. App. 465 , 60 S.E. 205 (1908); Fallon v. State, 5 Ga. App. 659 , 63 S.E. 806 (1909); Davis v. State, 7 Ga. App. 822 , 68 S.E. 319 (1910); Griggs v. State, 17 Ga. App. 301 , 86 S.E. 726 (1915).
Words, threats and other verbal menaces must be accompanied by immediate danger to justify homicide. Roberts v. State, 65 Ga. 430 (1880).
Killing must stem from reasonable fears and not from spirit of revenge. - It must appear that circumstances were sufficient to excite fears of a reasonable man, and that party killing really acted under influence of those fears, and not in a spirit of revenge. Gordy v. State, 93 Ga. App. 743 , 92 S.E.2d 737 (1956).
Unreasonable apprehension or suspicion of harm. - Juvenile defendant was not authorized to stab the victim under O.C.G.A. § 16-3-21(a) , where defendant was attacked by the victim from behind with the victim's fists, and could see that the victim did not have a weapon; defendant's belief that defendant's own life was in danger was a mere unreasonable apprehension or suspicion of harm which was insufficient to justify the use of deadly force, and defendant was properly adjudicated a delinquent for aggravated assault under O.C.G.A. § 16-5-21(a)(2) and for carrying a weapon onto a school bus under O.C.G.A. § 16-11-127.1(b) . In the Interest of Q.M.L., 257 Ga. App. 22 , 570 S.E.2d 92 (2002).
Battered woman syndrome does not stand as a separate defense but rather is evidentiary support for a claim of justification under O.C.G.A. § 16-3-21(d) . Adame v. State, 244 Ga. App. 257 , 534 S.E.2d 817 (2000).
Since the evidence did not rise to the level of battering necessary to rely on the battered person syndrome as a basis for a self-defense claim, the trial court did not err in preventing defendant's expert from giving an opinion that defendant suffered from the battered person syndrome. Adame v. State, 244 Ga. App. 257 , 534 S.E.2d 817 (2000).
Battered person syndrome evidence not admissible when no claim of self-defense. - In the trial of defendants, husband and wife, for the murder of a 13-month-old child in their care, the trial court did not err in excluding the wife's evidence that she suffered from battered person syndrome because she did not assert self-defense against the child victim. Virger v. State, 305 Ga. 281 , 824 S.E.2d 346 (2019).
When presence of spirit of revenge does not preclude justification. - When one contends that one acted under fears of a reasonable man, it must appear that one did act under such fears, and not in a spirit of revenge. However, if one must take one's adversary's life in order to save one's own or to prevent commission of a felony upon one's person, property, or habitation, then it matters not what feelings of malice or revenge one may also entertain. Crolger v. State, 88 Ga. App. 566 , 77 S.E.2d 98 (1953).
Section applies to force used in making lawful arrest. - One making a lawful arrest is justified in killing under fears of a reasonable man that a felony is about to be committed upon self or a fellow officer. Gordy v. State, 93 Ga. App. 743 , 92 S.E.2d 737 (1956).
Section applies to force used in resisting unlawful arrest. - Citizen upon whom an unlawful arrest is attempted has a right to resist force with force proportionate to that being used to arrest that citizen, and if, in exercise of such right of resistance, the citizen kills an officer who is unlawfully attempting to arrest the citizen, then the citizen is guilty of no offense. Perdue v. State, 5 Ga. App. 821 , 63 S.E. 922 (1909), later appeal, 134 Ga. 300 , 67 S.E. 810 ; 135 Ga. 277 , 69 S.E. 184 (1910).
If arrest sought to be made is unlawful, person sought to be arrested has right to resist, and, if such person is in the right, and under fears of a reasonable man expects a felony to be committed upon self, then the person has the right to resist up to point of slaying those seeking unlawfully to arrest the person. Mullis v. State, 196 Ga. 569 , 27 S.E.2d 91 (1943); Gordy v. State, 93 Ga. App. 743 , 92 S.E.2d 737 (1956).
Homicide in defending self against robbery may be justified. - Violent taking of money or property from person of another by force or intimidation for purpose of applying same to payment of debt, to which money or property taker has no bona fide claim of title or right of possession, constitutes offense of robbery. Resistance by armed force of an actual attempt to commit such a robbery would be justifiable provided that "the circumstances were sufficient to excite the fears of a reasonable man" that such an offense was about to be committed, and that the party killing really acted under influence of those fears, and not in a spirit of revenge. Daniel v. State, 187 Ga. 411 , 1 S.E.2d 6 (1939).
When blow with fist may be repelled by stabbing. - Unless there is great superiority in physical strength of assailant, who strikes another a blow with the assailant's fist, or ill-health in the assailed at the time, or other circumstance producing relatively great inequality between them in combat, the assailed party cannot justifiably repel the blow by stabbing the assailant. The general rule is, that whether stabbing is in self-defense depends on nature and violence of assault made on the person who stabs. Hix v. State, 48 Ga. App. 845 , 174 S.E. 157 (1934).
Admissibility of uncommunicated threat by deceased against defendant. - Threat made by deceased against defendant, uncommunicated before homicide, is not admissible on trial of case involving question whether or not slayer was justified in taking life of deceased, unless there is evidence tending to show that deceased began mortal conflict, and that defendant killed in self-defense. Slater v. State, 76 Ga. App. 209 , 45 S.E.2d 106 (1947).
Previous, uncommunicated threats are not admissible to show justification. Hoye v. State, 39 Ga. 718 (1869).
Evidence of bar's reputation for violent incidents inadmissible. - When the defendant was convicted of, inter alia, malice murder and attempted murder, the trial court did not err in excluding the proffered evidence of 10 incidents at a bar because the evidence was not relevant to show that the dangerous, violent environment at the bar influenced the defendant's state of mind and made the defendant's extreme reaction to perceived threats from the victims reasonable as the defendant did not contend that the defendant knew about any of the proffered occurrences at the time of the shooting; none of the incidents showed a propensity for violence in either of the victims; and the evidence did not tend to make it more likely that the defendant reasonably believed that deadly force was necessary. Ramirez v. State, 303 Ga. 232 , 811 S.E.2d 416 (2018), cert. denied, 139 S. Ct. 110 , 2018 U.S. LEXIS 5541, 202 L. Ed. 2 d 69 (U.S. 2018).
Admissibility of conduct and condition of deceased and its influence upon accused. - Conduct and condition of deceased shortly before fatal encounter, and influence of this conduct or condition upon mind of accused, are relevant as being illustrative not only of reasonableness of the accused's fears, but also as indicating the motive of deceased, although previous difficulty may have been between deceased and a third person. Dunn v. State, 16 Ga. App. 9 , 84 S.E. 488 (1915).
Victim's character admissible only after prima facie showing of self-defense. - There is no reason to construe the rules regarding the admission of character evidence as a modification of Georgia's long-standing requirement that a defendant must first make a prima facie showing of self-defense before requiring a trial court to determine whether evidence pertaining to the victim's character is admissible. Oliver v. State, 329 Ga. App. 377 , 765 S.E.2d 606 (2014).
Jury might consider size and physical condition of parties, but it would be erroneous for judge to instruct them that they should consider such disparity. Alexander v. State, 118 Ga. 26 , 44 S.E. 851 (1903).
Defenselessness of person whose life is in danger may be considered. Gillis v. State, 8 Ga. App. 696 , 70 S.E. 53 (1911).
Whether fists and feet can be dangerous weapons under certain circumstances is not material to the issue of self-defense. The determining factor in self-defense is not whether the victim was using a deadly weapon, but whether the actor reasonably believed the amount of force used was necessary to prevent death or great bodily harm to self. Ellis v. State, 168 Ga. App. 757 , 309 S.E.2d 924 (1983).
Defendant may establish self-defense with same type evidence that prosecution uses in establishing guilt. - If state can exhibit victim's ear to jury, and can exhibit gruesome pictures of victim to jury, then defendant should be allowed to show jury a picture of defendant's chest. If state can prove defendant's prior crimes to show defendant's intent and motive, then defendant should be allowed to prove crimes previously committed against the defendant to show defendant's intent and motive in defending self. The jury can decide, when informed of all circumstances surrounding attack, whether defendant's actions meet "reasonable man" standard. Daniels v. State, 248 Ga. 591 , 285 S.E.2d 516 (1981).
Evidence of specific acts of violence of victim known to defendant admissible. - Defendant on trial for murder of stepfather was entitled to introduce evidence of specific acts of violence of defendant's stepfather, directed at defendant's mother, of which defendant had knowledge. Strickland v. State, 250 Ga. 624 , 300 S.E.2d 156 (1983).
Evidence of victim's alleged violent acts against third parties inadmissible. - Court of appeals erred in reversing the trial court's order refusing to allow the defendant to testify about a previous incident of violence the victim allegedly committed against third parties in support of a justification defense under O.C.G.A. § 16-3-21(a) because the defendant sought to introduce alleged evidence in the form of unsupported assertions by the defendant as to what was in the defendant mind at the time the defendant killed the victim. State v. Hodges, 291 Ga. 413 , 728 S.E.2d 582 (2012).
When use of force not justified. - Person is not justified in using force if the person initially provokes the use of force against self with the intent to use such force as an excuse to inflict bodily harm upon the assailant; or if the person was the aggressor or was engaged in a combat by agreement unless the person withdraws from the encounter and effectively communicates to such other person an intent to do so and the other, notwithstanding, continues or threatens to continue the use of unlawful force. Lee v. State, 167 Ga. App. 59 , 306 S.E.2d 57 (1983).
Defendant convicted of aggravated assault was not entitled to a new trial based on self-defense because a jury could find that: (1) the defendant had no reasonable belief that it was necessary to shoot the victim to protect the defendant; (2) the defendant started the argument and used it as an excuse to shoot the victim; or (3), the two were engaged in mutual combat from which the defendant did not withdraw, each of which negated a self-defense claim. Giddens v. State, 276 Ga. App. 353 , 623 S.E.2d 204 (2005).
The defendant failed to make a prima facie showing that the defendant acted in self-defense when the defendant shot the victim because the defendant was the aggressor and the victim would have been justified in using force to subdue the defendant; the trial court did not abuse the court's discretion in excluding evidence of the victim's propensity for violence. Oliver v. State, 329 Ga. App. 377 , 765 S.E.2d 606 (2014).
Evidence was sufficient to convict the defendant of malice murder and possession of a firearm by a convicted felon because the defendant, the homeowner, and at least three other people were sitting outside the house drinking alcohol and talking; the people saw the 16-year-old victim walking toward them waving a pistol in the air; although the victim did not direct a threat toward the defendant or those in the defendant's party and did not point a weapon or behave aggressively toward anyone, the defendant retrieved a rifle from the trunk of the defendant's car and approached the victim when the victim arrived in front of the house; the defendant then shot the victim and fled; and the defendant's actions were not justified in self-defense. Howard v. State, 298 Ga. 396 , 782 S.E.2d 255 (2016).
In the defendant's trial for murder, the evidence that the defendant did not shoot in self-defense, O.C.G.A. § 16-3-21(a) , was overwhelming: multiple witnesses testified that the victim was not armed, did not threaten the defendant, simply walked toward the defendant's car, and was still a considerable distance away when the defendant opened fire. Watts v. State, 308 Ga. 455 , 841 S.E.2d 686 (2020).
Lawful arrest. - Where the arrest of the defendant's spouse is legal, the defendant's actions in obstructing an officer in "defense" of the spouse are not "justified." Perano v. State, 167 Ga. App. 560 , 307 S.E.2d 64 (1983).
When force used exceeds that necessary for self-defense, the law considers the defender the aggressor and if the defensive act results in homicide the offense is at least manslaughter. Spradlin v. State, 151 Ga. App. 585 , 260 S.E.2d 517 (1979), overruled on other grounds, Bangs v. State, 198 Ga. App. 404 , 401 S.E.2d 599 (1991), overruled on other grounds, Stewart v. State, 262 Ga. App. 426 , 585 S.E.2d 622 (2003).
Continued firing on fatally wounded person. - Person who fatally wounds another, even in self-defense, is not entitled to hasten the victim's death by continuing to pump bullets into the victim's body. Brown v. State, 249 Ga. 805 , 294 S.E.2d 510 (1982).
From evidence, jury could believe defendant provoked victim's attack as an excuse to kill her. - See Taylor v. State, 252 Ga. 125 , 312 S.E.2d 311 (1984).
Admissibility of evidence of deceased's prior use of weapons in assailing defendant. - When the defendant has made a prima facie showing of basis for reasonable belief that defendant had to use deadly force to defend self, defendant is entitled to introduce in evidence own testimony and that of defendant's witnesses to prove specific instances in which deceased had used a firearm or other weapons or object to assail defendant, even in cases of doubt. The lapse of time between prior occurrences and homicide, conduct of parties toward each other during intervals between occurrences, and other such matters go to weight and credit to be accorded testimony by jury and not to its admissibility. Milton v. State, 245 Ga. 18 , 262 S.E.2d 789 (1980).
Exclusion of tape-recorded threats by victim held harmless error. - Erroneous exclusion of a tape recording in which the victim allegedly made threats against defendant and defendant's girl friend was harmless, where the victim appeared to have been intoxicated and it was doubtful whether the victim's statements would have aroused the fears of a reasonable man. McDonald v. State, 182 Ga. App. 509 , 356 S.E.2d 264 (1987).
There is no substantial difference between phrases "serious personal injury" and "great bodily injury." Williams v. State, 126 Ga. App. 454 , 191 S.E.2d 100 (1972).
Stabbing of victim not self-defense. - The state presented sufficient evidence that defendant did not act in self-defense and that defendant was guilty of aggravated assault, where defendant attempted to justify stabbing the victim by stating that on a previous occasion, the victim displayed a sawed-off shotgun and that on the night of the assault, defendant thought the victim had a knife. Parham v. State, 204 Ga. App. 659 , 420 S.E.2d 356 (1992).
Despite the defendant's claim that the state failed to disprove a claim of self-defense, the appeals court upheld the defendant's aggravated assault conviction, because sufficient evidence was presented by the state to allow the jury to decide that the defendant's act of stabbing the weaponless victim amounted to excessive force. Thus, the defendant's motion for a new trial on the issue was properly denied. Richards v. State, 288 Ga. App. 814 , 655 S.E.2d 690 (2007).
Defendant was not entitled to a directed verdict of acquittal on a voluntary manslaughter count predicated on the defendant's claim of self-defense, O.C.G.A. § 16-3-21(a) , because the evidence was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of voluntary manslaughter in violation of O.C.G.A. § 16-5-2(a) and to enable a rational trier of fact to find that the defendant's stabbing of the victim was not justified as an act of self-defense; under former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8 ), a neighbor's eyewitness testimony, standing alone, was sufficient to support a finding that the defendant was the aggressor, continued to use force after any imminent danger posed by the victim had passed, or used excessive force, and the jury also was entitled to rely upon evidence that the defendant lied to the police about the stabbing and hid the knife. Muckle v. State, 307 Ga. App. 634 , 705 S.E.2d 721 (2011).
Any error in admitting the testimony of a Georgia Bureau of Investigation special agent regarding the circumstances of a 2008 stabbing incident involving the defendant was harmless as the evidence pointed directly to an intentional and malicious killing committed by the defendant rather than one that was committed in self-defense because the defendant did not deny initiating the attack against the victim, another inmate; the defendant did not know if the victim was armed when the defendant decided to attack the victim; and five correctional officers testified that the defendant and the co-defendant were the aggressors, and that the pair cornered the unarmed victim before stabbing the victim a total of 17 times. Rodrigues v. State, 306 Ga. 867 , 834 S.E.2d 59 (2019).
Homicide resulting solely from resentment of provoking threats is not justified. - Provocation by threats is insufficient to free person killing from crime of murder, nor will it reduce homicide from murder to manslaughter, when killing is done solely for purpose of resenting provocation thus given. Davenport v. State, 245 Ga. 845 , 268 S.E.2d 337 (1980).
Trespass amounts only to a misdemeanor and does not justify killing the trespasser. Washington v. State, 245 Ga. 117 , 263 S.E.2d 152 (1980).
When one intentionally shoots at another in self-defense, defense of accidental killing is generally not involved. Henderson v. State, 153 Ga. App. 801 , 266 S.E.2d 522 (1980).
Evidence authorized jury to believe that the defendant did not act in self-defense. - See Steele v. State, 166 Ga. App. 24 , 303 S.E.2d 462 (1983); Knight v. State, 271 Ga. 557 , 521 S.E.2d 819 (1999); Williams v. State, 245 Ga. App. 670 , 538 S.E.2d 544 (2000).
Whether defendant was justified in using force that was intended or likely to cause death or great bodily injury to defend another or oneself, under O.C.G.A. § 16-3-21(a) , was a matter for the jury to determine, and it reasonably found that defendant was not justified in using such force. Gray v. State, 257 Ga. App. 393 , 571 S.E.2d 435 (2002).
Jury was free to accept the evidence that the shootings were not done in self-defense or in defense of another person, including the defendant's own inculpatory statements, and to reject any evidence offered by the defendant in support of a justification defense. Harris v. State, 279 Ga. 304 , 612 S.E.2d 789 (2005).
Evidence was sufficient for the jury to reject the defendant's claim of self-defense and to support the defendant's aggravated assault and possession of a firearm during the commission of a crime conviction because, inter alia, two witnesses yelled at the defendant to put the gun away, but the defendant shot the victim a second time, the defendant testified that the defendant believed that the victim was holding a weapon behind the victim's leg when the victim got out of the car and that the defendant heard someone yell "bust," which the defendant understood to mean "shoot," and another witness heard no such statement and did not see anything in the victim's hands when the victim exited the car. Hill v. State, 276 Ga. App. 874 , 625 S.E.2d 108 (2005).
While the defendant and the codefendant insisted that their victim had a gun, no other witness saw the victim with a gun, and no such gun was found at the scene of the victim's shooting death; there was evidence that the defendant chased the victim as the victim ran away and shot the victim from behind, so the jury was entitled to reject the defendant's claims of self-defense and defense of another, and the evidence supported the defendant's convictions of voluntary manslaughter, O.C.G.A. § 16-5-3 , and possession of a firearm during the commission of a crime, O.C.G.A. § 16-11-106 . Windham v. State, 278 Ga. App. 663 , 629 S.E.2d 837 (2006).
When the unarmed victim advanced on the defendant, who had a baseball bat, and the defendant swung twice at the victim, then hit the victim on the head with the bat after the victim lost the victim's balance, the jury at the defendant's aggravated assault trial was entitled to conclude that the defendant was not justified in using force greater than that necessary for self-defense; the evidence, including the defendant's bragging at a party that night about the incident and telling an acquaintance a few days later that the acquaintance was "riding with a murderer," supported the conviction. Fields v. State, 285 Ga. App. 345 , 646 S.E.2d 326 (2007).
There was sufficient evidence for the jury to find the defendant guilty of felony murder and of aggravated assault and to reject the defendant's self-defense claim; the defendant, who had broken up with the victim, followed the victim as the victim left defendant's apartment, stabbed the victim twice with a nine-inch knife when the victim turned to face defendant without the victim striking the defendant, pulling a weapon, or yelling at the defendant, and the defendant claimed that the defendant had retrieved the knife in self-defense, then followed the victim out of the apartment, down the stairs, and into a parking lot where the defendant stabbed the victim. Ganaway v. State, 282 Ga. 297 , 647 S.E.2d 590 (2007).
Evidence was sufficient to support a jury's determination that the defendant's fatal shooting of a victim following the parties' altercation and the victim's subsequent punch in the defendant's face constituted voluntary manslaughter, in violation of O.C.G.A. § 16-5-2(a) , as there was no evidence that the victim had a gun at the time of the shooting incident and the defendant gave conflicting versions of the incident; the jury acted within the jury's province in rejecting the defendant's claim of self-defense pursuant to O.C.G.A. § 16-3-21(a) . Thomas v. State, 296 Ga. App. 231 , 674 S.E.2d 96 (2009).
Evidence plainly was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of aggravated assault with a deadly weapon in violation of O.C.G.A. § 16-5-21(a)(2) and battery in violation of O.C.G.A. § 16-5-23.1(a) because the state presented more than ample evidence that the defendant's use of force was not justified under O.C.G.A. § 16-3-21(a) ; based upon the victim's testimony and the victim's prior statement to the responding officer, the jury clearly was authorized to find that the defendant's acts of grabbing the victim by the hair, throwing the victim to the ground, and choking the victim to the point of unconsciousness constituted excessive force, and the prior and subsequent difficulties evidence and the similar transaction evidence the state presented supported the jury's decision to give little credence to the defendant's self-defense claim. Whitley v. State, 307 Ga. App. 553 , 707 S.E.2d 375 (2011).
Evidence was sufficient to support the defendant's conviction for voluntary manslaughter because the defendant's testimony that the initial shot to the victim's head was an accident and that the defendant kept shooting because the victim threatened to kill the defendant was sufficient to allow the jury to conclude beyond a reasonable doubt that the defendant did not justifiably use deadly force to protect oneself, after the victim already had been shot in the head, from the victim's assault pursuant to O.C.G.A. § 16-3-21(a) ; or the jury simply could have disbelieved the defendant's claim of self-defense, given the number of gunshots fired. Davis v. State, 309 Ga. App. 831 , 711 S.E.2d 324 (2011).
Evidence was sufficient to enable the jury to find beyond a reasonable doubt that the defendant did not act in self-defense under O.C.G.A. § 16-3-21(a) because, even if the jury accepted the defendant's version of events preceding the shooting of the two victims, the jury was authorized to conclude that, having wrestled control of one of the victim's gun, the defendant used excessive force in shooting the two unarmed victims and/or in continuing to fire at the victims after the victims had fallen to the ground. Jimmerson v. State, 289 Ga. 364 , 711 S.E.2d 660 (2011).
Rational jury could find the defendant guilty beyond a reasonable doubt of aggravated assault in violation of O.C.G.A. § 16-5-21(a)(2) because the evidence was sufficient for the jury to conclude beyond a reasonable doubt that the state disproved the defendant's self-defense claim; the jury was entitled to reject the defendant's version of events, and even if the jury found that the victim threw a bottle at the defendant's car, the jury could have concluded that the defendant struck the victim after any danger had passed and that the defendant's response was excessive. Hill v. State, 310 Ga. App. 695 , 713 S.E.2d 891 (2011).
Trial court did not err in refusing to grant the defendant's motion for a new trial under O.C.G.A. § 5-5-21 because the evidence establishing that the defendant and the victims engaged in a heated argument, which escalated to preparations for a physical altercation, was sufficient to sustain the defendant's voluntary manslaughter conviction, O.C.G.A. § 16-5-2(a) ; given the heated exchange and the defendant's belief that the defendant was in serious danger, there was sufficient provocation to excite the passion necessary for voluntary manslaughter, and the jury was authorized to reject the defendant's claim of self-defense under O.C.G.A. § 16-3-21(a) and conclude that the defendant was so influenced and excited that the defendant reacted passionately, rather simply in self defense, when the defendant shot an unarmed victim. White v. State, 312 Ga. App. 421 , 718 S.E.2d 335 (2011).
Because the evidence showed that the victim was shot and killed by a caliber of gun different from that which the victim was known to carry, and the defendant was seen checking the chamber of a gun which a witness thought was of the same caliber used to shoot the victim, the jury was entitled to disbelieve the defendant's claim of self-defense. Murray v. State, 295 Ga. 289 , 759 S.E.2d 525 (2014).
Evidence was sufficient to convict the defendant of murder and other crimes in connection with the fatal stabbing of the victim because the defendant intervened and fought with the victim in the living room of the apartment after the victim and defendant's sister got into an argument that escalated into a physical altercation; the defendant pushed the victim into a lamp, went into the kitchen, returned to the living room with a knife, and stabbed the victim in the chest; the victim later died; and the jury was free to accept the evidence that the stabbing was not done in self-defense and to reject any evidence in support of a justification defense. Cotton v. State, 297 Ga. 257 , 773 S.E.2d 242 (2015).
As the jury was authorized to conclude that the defendant fired the gun not out of a reasonable belief that the defendant's life was in danger but rather out of aggression towards the victim, the evidence supported the defendant's convictions for felony murder, aggravated assault, and firearm possession during the commission of a crime. Amos v. State, 298 Ga. 804 , 783 S.E.2d 900 (2016).
Defendant did not present sufficient evidence to show justification for the victim's murder because multiple witnesses testified that the defendant came out from the defendant's hiding place behind the victim and loudly taunted the victim as the defendant fired the defendant's weapon; the defendant admitted surreptitiously following the victim and then taunting the victim as the defendant fired; several witnesses testified the victim was standing with the victim's back to the defendant when shots rang out and before the victim fired a shot; and the jury could conclude the defendant pursued the victim and the victim's friend, laid in wait to shoot the victim, and commenced shooting when the victim's back was turned to the defendant. McCray v. State, 301 Ga. 241 , 799 S.E.2d 206 (2017).
Evidence presented by the state was sufficient to overcome the appellant's claim of justification as although statements made by the appellant to law enforcement suggested the appellant acted in self-defense when the victim was hit and stabbed, evidence presented by the state contradicted that account and called the appellant's credibility into question, which was a jury issue. Birdow v. State, 305 Ga. 48 , 823 S.E.2d 736 (2019).
Evidence was sufficient to prove that the defendant fatally shot the victim, and that the defendant did not act in self-defense, because the jury was entitled to give greater weight to the evidence that the defendant had a gun cocked and ready before the meeting with the victim, while the victim was unarmed; the defendant told the homeowner to make the scene look like a burglary and threatened the homeowner; the defendant disposed of the gun and clothes; and there was evidence that the defendant was engaged in a felony drug deal at the time of the shooting, which would preclude the defendant's self-defense claim; thus, the defendant was not entitled to a new trial based on general grounds. Bannister v. State, 306 Ga. 289 , 830 S.E.2d 79 (2019).
Evidence authorized jury to believe defendant used excessive force. - When the only issue was whether, under O.C.G.A. § 16-3-21(a) , the defendant was justified in shooting the victim, the jury was authorized to conclude that the defendant used excessive force because the defendant shot the victim in response to the victim having punched the defendant; thus, the evidence was sufficient to support the defendant's felony murder conviction based on the underlying felony of aggravated assault. Nelson v. State, 283 Ga. 119 , 657 S.E.2d 201 (2008).
Evidence of the dangerous environment surrounding defendant's apartment complex, offered to prove defendant's defense of justification when defendant fired at police officers who were serving a warrant, was properly excluded absent testimony showing defendant had the requisite state of mind to support a self-defense theory. Bowman v. State, 222 Ga. App. 893 , 476 S.E.2d 608 (1996).
Evidence did not support defense of habitation. - Trial counsel's withdrawal of the defense of habitation did not constitute deficient performance as the record contained no evidence that the victim entered violently, unlawfully, forcibly, or with the intent to commit a felony, the victim was there as a guest of the defendant, who was a resident of the house, and the trial court found that the victim attacked the defendant rather than the defendant's habitation. Harris v. State, 339 Ga. App. 30 , 793 S.E.2d 417 (2016).
Actions deemed attempt to escape not self-defense. - Defendant's use of force that damaged a police car and which was not against another person and occurred sometime after the alleged unlawful arrest could not be said to have been in self-defense, but was actually an attempt to escape. Hack v. State, 168 Ga. App. 927 , 311 S.E.2d 211 (1983).
No evidence of confrontation. - In a prosecution for malice murder, evidence that the murder victim refused to remove the victim's hand from pants pocket upon request and possibly threw a paper cup at defendant is not evidence of a confrontation between the two men sufficient to support a charge on justification. Burgess v. State, 264 Ga. 777 , 450 S.E.2d 680 (1994), cert. denied, 515 U.S. 1133, 115 S. Ct. 2559 , 132 L. Ed. 2 d 813 (1995).
Evidence of justification. - Trial court properly held that the defendant, who was charged with family violence battery and simple battery under O.C.G.A. §§ 16-5-23.1(f) and 16-5-23 , was immune from prosecution under O.C.G.A. § 16-3-24.2 . The testimony of the defendant's friend that the defendant restrained the friend after the friend broke the defendant's windshield and kicked a car seat, knocking the defendant into the steering wheel, provided some evidence that the defendant's actions were justified under O.C.G.A. § 16-3-21(a) . State v. Yapo, 296 Ga. App. 158 , 674 S.E.2d 44 (2009).
As the defendant showed a threat of force from the victim and reasonably believed that the defendant needed to defend oneself from a violent attack by the victim that could have caused the defendant great bodily injury, the defendant was justified in using deadly force against the victim to protect the defendant under O.C.G.A. § 16-3-21 ; consequently, the defendant was immune from prosecution under O.C.G.A. § 16-3-24.2 . State v. Green, 289 Ga. 802 , 716 S.E.2d 194 (2011).
Evidence was sufficient for the trial court to determine that the defendant was entitled to immunity from prosecution for the aggravated assault charge because there was evidence in the record to support the trial court's finding that the victim was the first person to wield a gun and that the victim became aggressive with the gun, waiving the gun around and pointing the gun at the two men involved in the fight, as well as the trial court's conclusion that the defendant was justified in the belief that it was necessary to defend third parties against the victim's imminent use of unlawful force. State v. Jenkins, 355 Ga. App. 39 , 840 S.E.2d 742 (2020).
Prima facie showing of justification. - Defendant, who claimed to have acted in self-defense when the defendant beat the victim with a pipe, made a prima facie showing of justification. The defendant testified that the victim approached the defendant, uttered a racial epithet, and threatened to shoot the defendant, and the defendant claimed that the defendant feared for the defendant's life because the defendant knew of the victim's reputation and had previously seen the victim with a pistol in the victim's jeans. Bennett v. State, 298 Ga. App. 464 , 680 S.E.2d 538 (2009).
Evidence sufficient to disprove justification defense. - See Andrews v. State, 267 Ga. 473 , 480 S.E.2d 29 (1997); Silas v. State, 247 Ga. App. 792 , 545 S.E.2d 358 (2001).
Trial court properly instructed the jury as to defendant's justification defense under O.C.G.A. § 16-3-21 and the state's burden to show the lack of justification beyond a reasonable doubt; there was ample evidence from which the jury could reject defendant's justification defense and find defendant guilty of voluntary manslaughter where: (1) defendant and the victim fought earlier in the evening, during which the victim disarmed defendant; (2) defendant returned to the tavern later in the evening with an assault rifle, and pointed it at the occupants; (3) the occupants fled to the kitchen, and defendant demanded to see the victim; (4) the victim grabbed a knife and lunged at the defendant; and (5) when the victim came within defendant's sight again, defendant shot the victim, twice. Cameron v. State, 262 Ga. App. 296 , 585 S.E.2d 209 (2003).
There was no showing of ineffective assistance in counsel's failure to pursue a justification defense pursuant to O.C.G.A. § 16-3-21(a) because, although the defendant claimed that the defendant shot the victim to protect the defendant's father, inter alia, the facts did not show that the father was in imminent danger, and the victim's threat against the father was made 30 minutes before the fatal shooting; at the time of the shooting, both men had fought in the street outside the father's home, the father was inside the home and not with them, and the victim was running away from the defendant. Even if the victim, who may have been carrying a knife, was going towards the father's house, the victim was shot before reaching the front yard. Carter v. State, 285 Ga. 565 , 678 S.E.2d 909 (2009).
Evidence failed to support the defendant's claim of justification or self-defense although the defendant and the victim engaged in a fight before the defendant shot the victim because the fight had ended at the time the defendant retrieved a gun. Willis v. State, 316 Ga. App. 258 , 728 S.E.2d 857 (2012).
Denial of a defendant's pretrial motion for immunity, based on a claim of justification, was proper because the evidence showed that the shooting was motivated by gang rivalry and a desire for revenge, rather than self-defense. Sifuentes v. State, 293 Ga. 441 , 746 S.E.2d 127 (2013).
Jury could not have found the defendant's illegal gun possession justified given that the defendant admitted to possessing the gun before the defendant even encountered the victim. Starks v. State, 304 Ga. 308 , 818 S.E.2d 507 (2018).
Self defense claim rejected. - Evidence that, after a fistfight, the defendant pursued and shot the defendant's victim in the back while the victim was unarmed and attempting to flee to safety authorized a jury to reject the defendant's self-defense claim and find the defendant guilty of aggravated assault. Aldridge v. State, 267 Ga. App. 489 , 600 S.E.2d 439 (2004).
Evidence was sufficient to convict the defendant of aggravated assault, a violation of O.C.G.A. § 16-5-21(a)(2), because the state presented evidence that the defendant stabbed the defendant's love interest's child several times with a butcher knife. Even though the defendant argued that the defendant was merely defending the defendant against the child's attack with a bat, the jury was authorized by O.C.G.A. § 16-3-21(b)(2) to reject the defendant's justification claim; the evidence showed that the love interest's son hit the defendant with a bat to protect the defendant's love interest from the defendant, who forcefully entered their house and then charged the love interest's child, pushed the child down, and stabbed the child. Williams v. State, 268 Ga. App. 384 , 601 S.E.2d 833 (2004).
Evidence presented by the state was sufficient to convict a defendant of felony murder despite the defendant's evidence of justification and battered person syndrome pursuant to O.C.G.A. §§ 16-3-21(d) and 19-13-1 , including testimony that the defendant had been the victim of acts of violence and expert testimony that the defendant suffered from the syndrome. The jury could disbelieve the defense witnesses. Demery v. State, 287 Ga. 805 , 700 S.E.2d 373 (2010).
Defendant's claim of self-defense failed because the evidence was sufficient to support the state's theory that the defendant provoked the victim's use of force, including evidence that the defendant participated in the robbery of the victim, pursued the victim, and then laid in wait for the victim. Mingledolph v. State, 324 Ga. App. 157 , 749 S.E.2d 757 (2013).
Evidence was sufficient to convict the defendant of malice murder as the defendant admitted to firing two shots from the passenger's side of the car while leaning over the roof; a bullet hit the first victim in the neck, severing the first victim's spine and spinal cord; the first victim died several days later after being removed from life support; the first victim died as a result of the injuries inflicted by the defendant as the first victim's injuries were such that the first victim could not live once life support systems were removed; and the defendant did not act in self defense. Browder v. State, 294 Ga. 188 , 751 S.E.2d 354 (2013).
Claims of self-defense raised by codefendants. - In a prosecution for aggravated assault, arising out of a fight outside a restaurant, although both codefendants claimed they had acted in self-defense it was not incumbent upon the jury to decide which of the defendants was the aggressor and which acted in self-defense rather than disbelieving both and convicting both. The jury could have concluded, from the evidence about the acts and the circumstances surrounding the fight, that both codefendants intended to fight and agreed to fight, and thus neither was entitled to the defense of justification. Pendergrass v. State, 199 Ga. App. 467 , 405 S.E.2d 297 (1991).
Self-defense applicable to delusional compulsion defense. - General law of self-defense was properly applied to determine whether the defendant had met the justification criteria for delusional compulsion defense. Dutton v. State, 225 Ga. App. 67 , 483 S.E.2d 305 (1997).
Child molestation is a forcible felony. - Child molestation constitutes a forcible felony for the purpose of establishing the defense of justification pursuant to O.C.G.A. § 16-3-21(a) . Brown v. State, 268 Ga. 154 , 486 S.E.2d 178 (1997).
Motion for directed verdict of acquittal based on justification defense was properly denied. - When the defendant was tried on two counts of battery in violation of O.C.G.A. § 16-5-23.1(a) in relation to an altercation in a movie theater, the trial court properly denied the defendant's motion for a directed verdict of acquittal, which was based on the defendant's claim of justification under O.C.G.A. § 16-3-21(a) , even though the defendant presented the testimony of two witnesses who said that the defendant only struck the victim after the victim grabbed the defendant's throat as the victim denied choking the defendant and the defendant had earlier entered into a written restitution agreement with the victim in which the defendant had admitted that the defendant approached and struck the seated victim, inflicting a forehead laceration; the conflicting testimony on the justification defense presented credibility issues for the jury to resolve and there was ample evidence from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Tahantan v. State, 260 Ga. App. 861 , 581 S.E.2d 373 (2003).
Victim's violent acts. - Evidence of violent acts committed by the victim against either the defendant or against third parties may be introduced by a criminal defendant claiming justification because the key showing must be that the victim was the aggressor in the fatal encounter. State v. Hodges, 291 Ga. 413 , 728 S.E.2d 582 (2012).
Evidence of bar's reputation for violent incidents inadmissible. - When the defendant was convicted of, inter alia, the malice murder of the first victim and the attempted murder of the second victim, to the extent that the bar's reputation for violent incidents influenced the defendant's state of mind, that reputation and its effect on the defendant was well established through other evidence admitted at trial; thus, even if the proffered incidents had some marginal relevance to the defendant's self-defense claim, any slight probative value was substantially outweighed by considerations of a waste of time or needless presentation of cumulative evidence, and the trial court acted within the court's discretion in excluding the evidence. Ramirez v. State, 303 Ga. 232 , 811 S.E.2d 416 (2018), cert. denied, 139 S. Ct. 110 , 2018 U.S. LEXIS 5541, 202 L. Ed. 2 d 69 (U.S. 2018).
Insufficient evidence to support instruction on self-defense. - Trial court did not err in failing to instruct the jury on the affirmative defense of self-defense because the record showed that the victim moved towards the defendant because the defendant threatened the victim with a revolver and both eyewitnesses testified that the victim grabbed the arm of the hand holding the gun and pointed the gun away from everyone. Brunson v. State, 293 Ga. 226 , 744 S.E.2d 695 (2013).
Insufficient evidence of justification. - There was no evidence to support the trial court's grant of immunity as to the charge of aggravated assault against the second victim because the undisputed evidence showed that the defendant initially shot at and hit the second victim, who was unarmed and standing 20 to 30 feet away from the first victim, who the defendant maintained was wielding the gun. State v. Jenkins, 355 Ga. App. 39 , 840 S.E.2d 742 (2020).
Immunity properly found. - Evidence was sufficient for the trial court to determine that the defendants met the defendants' burden of proving that the defendants were entitled to immunity from prosecution pursuant to O.C.G.A. § 16-3-24.2 because the defendants' testimony provided some evidence that the defendants' actions were justified, and the state chose to present no contrary testimony. State v. Cooper, 324 Ga. App. 32 , 749 S.E.2d 35 (2013).
Motion to dismiss the indictment was properly granted as the defendant acted in self-defense in shooting the deceased and was thus immune from prosecution because the evidence showed that the defendant received a threatening voicemail from the deceased; at the time of the shooting, the defendant knew of three prior acts of violence committed by the deceased; on the morning of the shooting, the defendant was at the apartment of the defendant's mother when the defendant saw the deceased enter the doorway of the mother's apartment; the defendant repeatedly told the deceased not to come any closer, but the deceased nevertheless continued to proceed through the doorway; and the defendant then fired a weapon once, killing the deceased. State v. Sutton, 297 Ga. 222 , 773 S.E.2d 222 (2015).
Trial court did not err in granting in part the defendant's motion to bar the prosecution on immunity grounds because the defendant presented sufficient evidence to carry the defendant's burden of proving the reasonableness of the defendant's belief in the necessity of deadly force with respect to the first victim because the first victim punched and choked the defendant, and threatened to kill the defendant; and the defendant's testimony, which was corroborated in part by the second victim, provided some evidence that the defendant's actions with respect to the first victim were justified. State v. Jennings, 337 Ga. App. 164 , 786 S.E.2d 545 (2016).
Defendant's motion to dismiss the charges against the defendant based on immunity from prosecution was properly granted because the alleged victim was the initial aggressor and the defendant used the defendant's car to protect the defendant as the defendant ran from the victim, got inside the car, and locked the doors; the victim stood in front of the hood of the car; the defendant tried to wave the victim off, but the victim refused to move; the defendant started the car and the victim then jumped on top of the hood; the defendant put the car into gear, but the victim did not get off the car; and the defendant proceeded to accelerate; however, there was no evidence the car was used in a way likely to cause death or great bodily harm. State v. Smith, 347 Ga. App. 289 , 819 S.E.2d 87 (2018).
Immunity properly found. - Order granting the defendant immunity was upheld because the evidence supported the determination that the use of deadly force against the ex-husband was justified based on the defendant's statements that the ex-husband had physically abused her for years and that he was attacking her at the time she shot him, the testimony of several witnesses about the ex-husband's routine and ongoing physical abuse of the defendant, and the ex-husband's threat to use deadly force on the night in question. State v. Hamilton, 308 Ga. 116 , 839 S.E.2d 560 (2020).
Immunity motion properly denied. - Defendant failed to show that the defendant was entitled to immunity as the defendant did not show by a preponderance of the evidence that the defendant reasonably believed that the defendant was in imminent danger of being subjected to unlawful force when the defendant shot the victim because, although the defendant testified that the defendant shot the victim only after the victim grabbed a gun from the victim's car, two guests at the gathering in the defendant's front yard testified that they never saw the victim with a gun; and the jury was authorized to reject the defendant's claim that the victim was the aggressor and to conclude that the defendant did not reasonably believe that it was necessary to shoot the victim in self-defense. Arnold v. State, 302 Ga. 129 , 805 S.E.2d 94 (2017).
Defendant was not immune from prosecution based on self-defense because, even if the victim lunged at the defendant, the defendant was not entitled to slam the victim onto a concrete sidewalk and then punch the victim multiple times with enough force to cause the significant facial injuries and brain damage that led to the victim's death; and the defendant never told the police that the defendant thought the victim might have had a large knife when the victim lunged at the defendant. Gardhigh v. State, Ga. , 844 S.E.2d 821 (2020).
Trial counsel not ineffective. - In a murder case, trial counsel was not ineffective for arguing that the defendant was not guilty of attempting to violate the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., because the defendant had abandoned the drug deal at the time of the shooting and that the shooting was in self-defense in light of the limited defense options that were available and the evidence against the defendant. Moore v. State, 294 Ga. 453 , 754 S.E.2d 344 (2014).
RESEARCH REFERENCES
Am. Jur. 2d. - 6 Am. Jur. 2d, Assault and Battery, §§ 47, 69 et seq. 40A Am. Jur. 2d, Homicide, §§ 134 et seq., 170 et seq.
Self Defense, 33 POF2d 211.
Self-Defense in Homicide Cases, 42 Am. Jur. Trials 151.
C.J.S. - 40 C.J.S., Homicide, §§ 155, 182 et seq., 194 et seq.
ALR. - Duty to retreat to wall as affected by illegal character of premises on which homicide occurs, 2 A.L.R. 518 .
Acquittal on charge as to one as bar to charge as to the other, where one person is killed or assaulted by acts directed at another, 2 A.L.R. 606 .
Civil liability growing out of mutual combat, 6 A.L.R. 388 ; 30 A.L.R. 199 ; 47 A.L.R. 1092 .
Right of self-defense as affected by defendant's violation of law only casually related to the encounter, 10 A.L.R. 861 .
Homicide: duty to retreat when not on one's own premises, 18 A.L.R. 1279 .
Wanton or willful misconduct by person killed or injured as defense to an action based on wanton or willful misconduct of defendant, 41 A.L.R. 1379 .
Evidence of improper conduct by deceased toward defendant's wife as admissible in support of plea of self-defense, 44 A.L.R. 860 .
Right of self-defense by officer attempting illegal arrest, 46 A.L.R. 904 .
Self-defense by one who has rightfully entered on premises of his assailant, 53 A.L.R. 486 .
Danger or apparent danger of death or great bodily harm as condition of self-defense in prosecution for assault as distinguished from prosecution for homicide, 114 A.L.R. 634 .
Admissibility on issue of self-defense (or defense of another), on prosecution for homicide or assault, of evidence of specific acts of violence by deceased, or person assaulted, against others than defendant, 121 A.L.R. 380 .
Proof to establish or negative self-defense in civil action for death from intentional act, 17 A.L.R.2d 597.
Danger or apparent danger of great bodily harm or death as condition of self-defense in civil action for assault and battery, personal injury, or death, 25 A.L.R.2d 1215.
Homicide: extent of premises which may be defended without retreat under right of self-defense, 52 A.L.R.2d 1458.
Pleading self-defense or other justification in civil assault and battery action, 67 A.L.R.2d 405.
Admissibility of evidence of uncommunicated threats on issue of self-defense in prosecution for homicide, 98 A.L.R.2d 6.
Civil liability for use of firearm in defense of habitation or property, 100 A.L.R.2d 1021.
Admissibility of evidence as to other's character or reputation for turbulence on question of self-defense by one charged with assault or homicide, 1 A.L.R.3d 571.
Relationship with assailant's wife as provocation depriving defendant of right of self-defense, 9 A.L.R.3d 933.
Homicide: duty to retreat where assailants and assailed share the same living quarters, 26 A.L.R.3d 1296.
Homicide: modern status of rules as to burden and quantum of proof to show self-defense, 43 A.L.R.3d 221.
Unintentional killing of or injury to third person during attempted self-defense, 55 A.L.R.3d 620.
Right to resist excessive force used in accomplishing lawful arrest, 77 A.L.R.3d 281.
Modern status: right of peace officer to use deadly force in attempting to arrest fleeing felon, 83 A.L.R.3d 174.
Homicide: duty to retreat where assailant is social guest on premises, 100 A.L.R.3d 532.
Construction and application of statutes justifying the use of force to prevent the use of force against another, 71 A.L.R.4th 940.
Standard for determination of reasonableness of criminal defendant's belief, for purposes of self-defense claim, that physical force is necessary - modern cases, 73 A.L.R.4th 993.
Admissibility of evidence of battered child syndrome on issue of self-defense, 22 A.L.R.5th 787.
Admissibility of threats to defendant made by third-parties to support claim of self-defense in criminal prosecution for assault or homicide, 55 A.L.R.5th 449.
16-3-22. Immunity from criminal liability of persons rendering assistance to law enforcement officers.
- Any person who renders assistance reasonably and in good faith to any law enforcement officer who is being hindered in the performance of his official duties or whose life is being endangered by the conduct of any other person or persons while performing his official duties shall be immune to the same extent as the law enforcement officer from any criminal liability that might otherwise be incurred or imposed as a result of rendering assistance to the law enforcement officer.
- The official report of the law enforcement agency shall create a rebuttable presumption of good faith and reasonableness on the part of the person who assists the law enforcement officer.
-
The purpose of this Code section is to provide for those persons who act in good faith to assist law enforcement officers whose health and safety is being adversely affected and threatened by the conduct of any other person or persons. This Code section shall be liberally construed so as to carry out the purposes thereof.
(Code 1933, § 27-219, enacted by Ga. L. 1967, p. 745, §§ 1, 2.)
Cross references. - Exercise of power of arrest by private persons generally, § 17-4-60 et seq.
JUDICIAL DECISIONS
Cited in Carter v. State, 129 Ga. App. 536 , 199 S.E.2d 925 (1973).
RESEARCH REFERENCES
Am. Jur. 2d. - 5 Am. Jur. 2d, Arrest, §§ 24, 127. 70 Am. Jur. 2d, Sheriffs, Police, and Constables, §§ 39, 63 et seq.
C.J.S. - 22 C.J.S., Criminal Procedure and Rights of the Accused, § 104.
ALR. - Accident insurance: aiding peace officer as voluntary exposure to unnecessary danger, 17 A.L.R. 191 .
16-3-22.1. Persons who provide assistance to law enforcement officers or the Division of Family and Children Services when the health and safety of children are adversely affected and threatened.
- Any person that in good faith has possession of materials or images in violation of Article 3 of Chapter 12 of this title and immediately notifies law enforcement officials or any person that is required by Code Section 19-7-5 to report suspected child abuse, or makes such notification within 72 hours from the time there is reasonable cause to believe such person is in possession of such materials or images, shall be immune to the same extent as a law enforcement officer would be immune from criminal liability for such possession.
- The official report of the law enforcement agency or the Division of Family and Children Services of the Department of Human Services shall create a rebuttable presumption of good faith and reasonableness on the part of the person that has possession.
- The purpose of this Code section is to provide for those persons that act in good faith to assist law enforcement officers or the Division of Family and Children Services of the Department of Human Services when the health and safety of a child are being adversely affected and threatened by the conduct of another. This Code section shall be liberally construed so as to carry out the purposes thereof. (Code 1981, § 16-3-22.1 , enacted by Ga. L. 2016, p. 773, § 1/HB 905.)
16-3-23. Use of force in defense of habitation.
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 prevent or terminate such other's unlawful entry into or attack upon a habitation; however, such person is justified in the use of force which is intended or likely to cause death or great bodily harm only if:
- The entry is made or attempted in a violent and tumultuous manner and he or she reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person dwelling or being therein and that such force is necessary to prevent the assault or offer of personal violence;
- That force is used against another person who is not a member of the family or household and who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using such force knew or had reason to believe that an unlawful and forcible entry occurred; or
-
The person using such force reasonably believes that the entry is made or attempted for the purpose of committing a felony therein and that such force is necessary to prevent the commission of the felony.
(Laws 1833, Cobb's 1851 Digest, p. 785; Code 1863, § 4229; Code 1868, § 4266; Code 1873, § 4332; Code 1882, § 4332; Penal Code 1895, § 72; Penal Code 1910, § 72; Code 1933, § 26-1013; Code 1933, § 26-903, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 2001, p. 1247, § 2.)
Cross references. - Criminal trespass, § 16-7-21 .
Habitation and personal property defined, § 16-3-24.1 .
Immunity from civil liability for using force in defense of habitation, § 51-11-9 .
Law reviews. - For annual survey of criminal law, see 56 Mercer L. Rev. 153 (2004). For annual survey on criminal law, see 61 Mercer L. Rev. 79 (2009). For note on the 2001 amendment to this Code section, see 18 Ga. St. U. L. Rev. (2001). For note, "Cops or Robbers? How Georgia's Defense of Habitation Statute Applies to No-Knock Raids by Police," see 26 Ga. St. U. L. Rev. 585 (2010). For article, "Vigilant or Vigilante? Procedure and Rationale for Immunity in Defense of Habitation and Defense of Property Under the Official Code of Georgia Annotated §§ 16-3-23 , 16-3-24 , 16-3-24.1 , and 16-3-24 .2," see 59 Mercer L. Rev. 629 (2008).
JUDICIAL DECISIONS
ANALYSIS
General Consideration
Editor's notes. - In light of the similarity of the statutory provisions, decisions decided under former Code 1933, §§ 26-1011 and 26-1012 are included in the annotations for this Code section.
Rules governing liability of one injuring trespasser are same whether proceedings are civil or criminal. - Rules of law governing liability of one who injures another in an attempt to prevent or end a trespass on one's property are same whether proceedings are civil or criminal in nature. Goerndt v. State, 144 Ga. App. 93 , 240 S.E.2d 711 (1977).
When relevant, principle of justifiable homicide should be charged, even without request. - When evidence renders principle relating to justifiable homicide in preventing forceful attack and invasion of property or habitation applicable, court should charge justifiable homicide, even without written request. Frazier v. State, 88 Ga. App. 82 , 76 S.E.2d 70 (1953).
Charging justifiable homicide where not applicable is not harmful error. - Even where provisions regarding justifiable homicide in repelling forcible attack and invasion of property of another are not applicable to facts of case, inclusion of such charge is not harmful error. Grier v. State, 212 Ga. 248 , 91 S.E.2d 749 (1956) (decided under former Code 1933, § 26-1011).
Justification, if established, should always result in acquittal. Gordy v. State, 93 Ga. App. 743 , 92 S.E.2d 737 (1956) (decided under former Code 1933, § 26-1011).
Erroneous charge on justification not cured by verdict of guilty of lesser grade of offense. - Erroneous charge or failure to charge on accused's defense or defenses of justifiable homicide is not cured by verdict finding accused guilty of some lesser grade of offense than murder. McKibben v. State, 88 Ga. App. 466 , 77 S.E.2d 86 (1953) (decided under former Code 1933, § 26-1011).
Defense of habitation makes it necessary that forcible attack and invasion concur in order for that defense to apply. Gresham v. State, 70 Ga. App. 80 , 27 S.E.2d 463 (1943).
Fear justifying homicide must be that of a reasonable man. - When justification for a homicide is sought in defense of oneself or one's property, against one who manifestly intends or endeavors by violence or surprise to commit felony on either, it is proper for trial court in connection therewith to charge provisions to the effect that bare fear of any of the offenses, to prevent which homicide is alleged to have been committed, shall not be sufficient to justify killing, but that it must appear that circumstances were sufficient to excite fears of a reasonable man, and that party killing really acted under those fears and not in spirit of revenge. Crolger v. State, 88 Ga. App. 566 , 77 S.E.2d 98 (1953) (decided under former Code 1933, § 26-1012).
Unreasonable or delusory fear may negate malicious intent. - Unreasonable or delusory fear, while not that of a reasonable man and therefore not sufficient to constitute justification, may negate idea of malicious and intentional wrongdoing. Perry v. State, 104 Ga. App. 383 , 121 S.E.2d 692 (1961) (decided under former Code 1933, § 26-1012).
Homicide may be justified to prevent nonfelonious assault upon defendant in his habitation. - One may permissibly, acting under fears of a reasonable man, kill to prevent commission of a felony in defense of habitation, property, or person; one may also kill one riotously attempting to enter one's habitation for purpose of assaulting one, although assault be less than a felony. Leverette v. State, 104 Ga. App. 743 , 122 S.E.2d 745 (1961) (decided under former Code 1933, § 26-1011).
Feelings of malice or revenge on part of one defending self or habitation. - When one contends that one acted under fears of a reasonable man, that is, under apparent rather than absolute necessity, it must appear that one did act under such fears and not in a spirit of revenge. However, if one must take one's adversary's life in order to save own or to prevent commission of a felony upon one's person, property, or habitation, then it matters not what feelings of malice or revenge one may also entertain. Crolger v. State, 88 Ga. App. 566 , 77 S.E.2d 98 (1953) (decided under former Code 1933, § 26-1012).
Use of force caused by something wholly independent of trespass. - When difficulty resulting in homicide was purely of a personal nature and had no connection with the house where the homicide occurred, former Code 1873, § 4332 was not relevant. Wilson v. State, 69 Ga. 224 (1882).
When difficulty was caused by a matter wholly independent of invasion, mere fact that person assaulted entered habitation of assailant would be no defense. Love v. State, 14 Ga. App. 49 , 80 S.E. 209 (1913).
Where difficulty during which fatal shot was fired, killing an innocent bystander, was caused by profane and unbecoming language wholly independent of and disconnected from invasion of property by defendant's antagonist, mere fact that this person entered yard or premises of defendant and that fight occurred in yard would be no defense upon theory of invasion of property. Jackson v. State, 69 Ga. App. 707 , 26 S.E.2d 485 (1943) (decided under former Code 1933, § 26-1013).
Section inapplicable where deceased was guest or visitor of defendant. - Section refers only to homicides having their origin in forcible attack and invasion of property or habitation of another and, where there was no evidence tending to show that any attack or invasion of habitation of defendant was intended by deceased, as where deceased was a guest or visitor at defendant's residence before beginning of difficulty, a charge upon former Code 1933, § 26-1013 was unauthorized and erroneous. Stephens v. State, 71 Ga. App. 417 , 31 S.E.2d 217 (1944) (decided under former Code 1933, § 26-1013).
O.C.G.A. § 16-3-23 inapplicable if deceased was visitor or guest of roommate. - Defense of habitation was not available to defendant since the victim was already in defendant's apartment when shot, there was no evidence that the victim made any threats against the habitation, and further, the victim was there as a guest of defendant's roommate, who was a resident of the apartment and signer of the apartment's lease. Stobbart v. State, 272 Ga. 608 , 533 S.E.2d 379 (2000).
Victim was child living in home. - In the defendant's trial for cruelty to a child and false imprisonment, O.C.G.A. §§ 16-5-70(c) and 16-5-41(a) , respectively, based on the defendant's locking the defendant's seven-year-old son in a wooden box the defendant built for the purpose and also binding the child in a sleeping bag, the trial court did not err in failing to instruct the jury on self-defense, defense of habitation, and defense of property other than habitation, nor was counsel ineffective in failing to request these instructions. Leslie v. State, 341 Ga. App. 731 , 802 S.E.2d 674 (2017).
Inapplicable when violent acts committed by someone other than victim. - Trial court did not err by excluding evidence that the defendant was attacked by a third party during a previous home invasion, which the defendant sought to introduce to support an affirmative defense of justification in using force to defend the habitation, because the defense was not available to a defendant for violent acts or abuse committed against a defendant by someone other than the victim. Watson v. State, 328 Ga. App. 832 , 763 S.E.2d 122 (2014).
Justifiable homicide did not exist when the defendant invited the victim into defendant's home, and when there was no evidence the victim entered the house for the purpose of obtaining money from the defendant by committing a felony. Lee v. State, 202 Ga. App. 708 , 415 S.E.2d 290 , cert. denied, 202 Ga. App. 906 , 415 S.E.2d 290 (1992).
Section does not provide justification for homicide to prevent adultery. - Purpose of section is to provide justification only for repulsion of forcible felonies. Adultery, in addition to fact that it is not a felony, is a consensual and nonviolent crime. Except in extreme circumstances, adultery cannot stand as a complete justification for homicide, although always relevant to degree of the crime. Henderson v. State, 136 Ga. App. 490 , 221 S.E.2d 633 (1975).
No evidence of forcible entry. - Where there was no evidence that the deceased was attempting to force entry into defendant's habitation and the defendant testified that the victim stood outside and called to appellant to come out, charge of use of force in defense of habitation was not authorized by the evidence. Harvard v. State, 162 Ga. App. 218 , 290 S.E.2d 202 (1982).
O.C.G.A. § 16-3-23 did not apply where evidence showed that the victim was not attempting to enter defendant's house when defendant stepped outside and shot the victim. Darden v. State, 233 Ga. App. 353 , 504 S.E.2d 256 (1998).
Houseguest. - Evidence was sufficient to support a conviction for aggravated assault in a case where the defendant, an occasional houseguest, became angry at a relative, retrieved a meat cleaver, and attacked the relative, who grabbed a pool cue to defend against the attack; the defendant's conduct amounted to a reasonable imminent threat of the use of deadly force and the relative, under the circumstances, was entitled to use force in defense of habitation pursuant to O.C.G.A. § 16-3-23 . Robison v. State, 277 Ga. App. 133 , 625 S.E.2d 533 (2006).
Excessive force used against lessor. - Evidence supported a simple battery conviction under O.C.G.A. § 16-5-23 when the defendant slammed a door on the victim, the defendant's lessor, knocking the victim down a short flight of stairs. As the defendant's oral tenancy had always been subject to the right of realtors to enter the residence, the victim, who sought to enter the home upon two hours' notice to show the property to a new realtor, was within the victim's rights to enter the premises; even if this were not the case, because the defendant might have simply denied the victim reentry by warning the victim not to proceed further and closing the door, the defendant's use of force exceeded that permissible under O.C.G.A. § 16-3-23 had there been no right of reentry. Young v. State, 291 Ga. App. 460 , 662 S.E.2d 258 (2008).
"Tumultuous" entry by unarmed victim. - Defendant's voluntary manslaughter conviction was affirmed, where, although there was evidence that the victim's entry into defendant's home was "tumultuous," the jury was authorized to conclude that the victim was unarmed and that deadly force was not necessary for defendant's protection. Zachery v. State, 199 Ga. App. 891 , 406 S.E.2d 243 (1991).
Homicide resulting from use of "spring gun" to defend habitation was not justified where defendant was working and not at home when the gun activated. Bishop v. State, 257 Ga. 136 , 356 S.E.2d 503 (1987).
Use of force not justified. - Defendant was not entitled to a directed verdict of acquittal on a voluntary manslaughter count predicated on the defendant's claim of defense of habitation, O.C.G.A. § 16-3-23 , because the evidence was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of voluntary manslaughter in violation of O.C.G.A. § 16-5-2(a) and to find that the defendant's stabbing of the victim was not justified in defense of the defendant's habitation; the jury was authorized to rely upon the defendant's prior inconsistent statement to the defendant's relative to conclude that the victim's entry into the defendant's apartment was not "violent and tumultuous," and based upon the eyewitness testimony of a neighbor, the jury also was authorized to find that the victim was unarmed and that deadly force was not necessary for the defendant's protection. Muckle v. State, 307 Ga. App. 634 , 705 S.E.2d 721 (2011).
Defendant's claim that the evidence was insufficient to convict the defendant of malice murder because the state failed to disprove the defense of habitation beyond a reasonable doubt failed because the jury was authorized to conclude that the use of deadly force was unreasonable given that the victim only slapped the defendant once and did not use any aggressive words, and the struggle that followed was like child's play. Clark v. State, 307 Ga. 537 , 837 S.E.2d 265 (2019).
Charge using statutory language. - Where defendant contended the trial court erred by failing to give defendant's requested charge on self-defense, since the court charged the jury on self-defense in the language of O.C.G.A. §§ 16-5-21 and 16-5-23 , which is the law in Georgia, and those code provisions cover the same principles requested by defendant, it was not error to deny defendant's request to charge. Cade v. State, 180 Ga. App. 314 , 348 S.E.2d 769 (1986).
No evidence existed to support jury charge on justification under O.C.G.A. § 16-3-21 because the defendant was on the victim's premises unlawfully and initiated violence by lunging at the victim; pursuant to O.C.G.A. §§ 16-3-23 and 16-3-24 , the victim's efforts to defend the house and a mail truck were entirely legal. Robinson v. State, 270 Ga. App. 869 , 608 S.E.2d 544 (2004).
Defendant not required to admit criminal conduct to be entitled to charge on justification. - In the defendant's aggravated assault trial, O.C.G.A. § 16-5-21(a)(2), based on the defendant aiming a BB rifle at two victims, the trial court erred in denying the defendant's requested jury instructions on the defense of self and habitation, on the basis that the defendant did not admit aiming at the victims; if slight evidence supported the defenses, the charges should have been given. Defendant was not required to admit the elements of the crime in order to argue the defendant's theory of defense. McClure v. State, 306 Ga. 856 , 834 S.E.2d 96 (2019).
Officers' entry lawful. - In a capital murder case involving the shooting death of a deputy while executing a no-knock warrant with other officers involved in a drug task force, the immunity from prosecution prescribed by O.C.G.A. § 16-3-24.2 did not apply to the defendants because the officers' entry was lawful. Fair v. State, 288 Ga. 244 , 702 S.E.2d 420 (2010).
Mistake of fact defense not separate from defense of habitation. - Because the mistake of fact that the defendant argued to the jury was not separate from the defense of habitation argument as the asserted mistake was the defendant's belief that the victim actually was an unknown intruder, and that the defendant was thus justified in shooting the victim in defense of the defendant's home, the trial court was not required to give an instruction on mistake of fact. Winters v. State, 303 Ga. 127 , 810 S.E.2d 496 (2018).
Request for immunity defense properly denied. - Trial court's denial of immunity from prosecution based on defense of habitation was supported by a victim's testimony that the victims did not enter the defendant's home in a violent and tumultuous manner for the purposes of committing a felony therein, but were invited in by the defendant, who threatened and assaulted them. Inman v. State, 294 Ga. 650 , 755 S.E.2d 752 (2014).
Plain error not shown for failing to charge on no duty to retreat. - When the rightful owner of the parcel on which the defendant resided hired a tow truck company to enter the property to remove old vehicles parked on the parcel, and the defendant shot and killed one of the tow truck company employees, the trial court's failure to instruct the jury that a person who was justified in using force to defend a habitation had no duty to retreat did not constitute plain error because the trial court's instructions covered the law of justification in general, and specifically covered the law of justification with respect to use of force in defense of habitation; and the defendant failed to make an affirmative showing that the alleged erroneous instructions likely affected the outcome of the proceedings. Reed v. State, 304 Ga. 400 , 819 S.E.2d 44 (2018).
Jury charge on defense of habitation. - If the jury had been properly charged on defense of habitation (as opposed to only a self-defense instruction), it was reasonably probable that they would have accepted the substantial evidence that the victim unlawfully entered the defendant's car in a violent and tumultuous manner for the purpose of offering personal violence to the occupants, and that the defendant was justified under the circumstances in using deadly force to repel the attack; thus, the defendant established that but for counsel's error there was a reasonable probability the result of the proceeding would have been different and that counsel was ineffective. Benham v. State, 277 Ga. 516 , 591 S.E.2d 824 (2004).
Because the defendant challenged one of the victims to get the victim's guns, adding that the defendant was already carrying a pistol, the defendant was an aggressor who was engaged in mutual combat, and the defendant was not justified in using force in defense of habitation when the defendant then began shooting, wounding one victim and killing another; the trial court did not err in refusing the defendant's request to charge on defense of habitation; if even that refusal was error, there was no reversible error because the trial court charged the jury on self-defense and justifiable homicide and the evidence of the defendant's guilt was overwhelming. McKee v. State, 280 Ga. 755 , 632 S.E.2d 636 (2006).
In a prosecution for aggravated assault, while the trial court charged the jury regarding the details of the defense of justification, because the evidence did not authorize the charge of defense of habitation, the instruction was properly denied; moreover, no evidence was presented to suggest that the victim used coercion or threats to gain entry into the defendant's residence. Brimidge v. State, 287 Ga. App. 23 , 651 S.E.2d 344 (2007).
Trial court did not err in refusing to instruct the jury on the law of defense of habitation in the context of an automobile because under the facts of the case there could be no reasonable belief that firing a pistol at the driver of another car while driving on the road was necessary to prevent or terminate the driver's unlawful entry into or attack upon a motor vehicle as that term was used in the pattern jury instructions; the evidence showed that the defendant did not use deadly force until the justification for the use of deadly force was over. Kendrick v. State, 287 Ga. 676 , 699 S.E.2d 302 (2010).
Trial court did not err in refusing to instruct the jury on the law of defense of habitation in the context of an automobile because the defendant did not supply the trial court with a written request to charge specific language on the legal concept of defense of habitation; the defendant's only written submission stated that the defendant wished the trial court to give the "following pattern requests to charge numbered 1 through 23," and then "22. Justification: Use of Force in Defense of Motor Vehicle," but such a request failed to comply with the requirements of Ga. Unif. Super. Ct. R. 10.3. Kendrick v. State, 287 Ga. 676 , 699 S.E.2d 302 (2010).
Trial court did not err by failing to charge the jury on the defense of justification under O.C.G.A. §§ 16-3-21(a) and 16-3-23 because counsel for the defendant characterized the defense as an "imperfect self-defense," a form of voluntary manslaughter that was not recognized in Georgia. Reese v. State, 289 Ga. 446 , 711 S.E.2d 717 (2011), overruled on other grounds by State v. Lane, 308 Ga. 10 , 838 S.E.2d 808 (2020).
Trial court did not err by failing to give the jury the defendant's request to charge on the defense of habitation under O.C.G.A. § 16-3-23 because the evidence that the victim was intoxicated and had cursed at the defendant earlier that evening simply did not meet the statutory standard; there was no evidence presented at trial that the victim's act of opening the front door was in any way an unlawful entry into or attack upon the victim's mother's house, that the victim opened the door in a violent and tumultuous manner, or that the defendant could have reasonably believed that the victim intended to attack or offer personal violence toward anyone inside the house. Reese v. State, 289 Ga. 446 , 711 S.E.2d 717 (2011), overruled on other grounds by State v. Lane, 308 Ga. 10 , 838 S.E.2d 808 (2020).
Trial counsel was not ineffective for failing to request a jury charge on the defense of habitation under O.C.G.A. § 16-3-23(1) because there was no basis for an instruction on defense of habitation; the jury was charged on the law of self-defense, but rejected that defense, and the defendant did not establish how a jury charge on the defense of habitation would have raised a reasonable probability that the outcome of the case would have been different. Hill v. State, 290 Ga. 493 , 722 S.E.2d 708 (2012).
Although the defendant indicated that the defendant believed a civilian code enforcement officer and a police officer were "stealing" the defendant's vehicles, that belief was unfounded because the vehicles were being removed after the defendant failed to clean up property; thus, there was no evidence of an unlawful entry into the defendant's habitations that would have justified the defendant's use of force under O.C.G.A. § 16-3-23 . Adcock v. State, 317 Ga. App. 468 , 731 S.E.2d 365 (2012).
Trial testimony did not provide the slight evidence necessary to support an instruction on the defense of habitation because the evidence showed that the defendant exited the van and began fighting after the van stopped, at a time when no attack was even arguably being made on the van. Andrade v. State, 319 Ga. App. 75 , 733 S.E.2d 474 (2012).
Trial court did not err in failing to charge the jury on the defense of habitation under O.C.G.A. § 16-3-23(2) , despite the defendant's failure to request charge, because it was not the defendant's sole defense and the omission of the unrequested charge was not clearly harmful as a matter of law. Barrett v. State, 292 Ga. 160 , 733 S.E.2d 304 (2012).
Trial court did not err in not charging the jury on defense of a habitation because the victim neither entered the defendant's home unlawfully nor attacked the defendant's home; the victim was on the defendant's porch by permission; and the witnesses testified that the victim had been stabbed and was on the ground when the victim's friends started throwing things at the defendant's apartment and around the porch. Neverson v. State, 324 Ga. App. 322 , 750 S.E.2d 397 (2013).
Defendant was not entitled to a charge on the defense of habitation because the defense did not apply to the use of force against another person's property and there was no evidence that the victim attempted to enter or attack the defendant's habitation. Fleming v. State, 324 Ga. App. 481 , 749 S.E.2d 54 (2013).
Trial court erred by refusing to charge the jury on the defense of habitation because the defendant testified that when the defendant returned to the vehicle with the victim to obtain the defendant's insurance card, after a vehicle collision, the victim reached through the defendant's window and began grabbing the defendant's shoulder and accusing the defendant of not having insurance; that the defendant became nervous and frightened, and that the defendant's son began to cry; and that the defendant drove away from the victim to escape the victim reaching through the window and grabbing the defendant while the victim was verbally accosting the defendant. Salazar-Balderas v. State, 343 Ga. App. 201 , 806 S.E.2d 644 (2017).
Trial court did not commit plain error by not instructing the jury on the defense of habitation theory of justification as there was no evidence of any entry or attempted entry by the victim into the vehicle when the defendant opened fire. Walker v. State, 301 Ga. 482 , 801 S.E.2d 804 (2017).
Trial court did not plainly err in instructing the jury on the defense of habitation form of justification where the habitation being defended was the victim's and not the defendant's because the court of appeals rejected the argument that the defense was for the use of a defendant, not a victim; further, the supreme court had not ruled on that issue. Beasley v. State, 305 Ga. 231 , 824 S.E.2d 311 (2019).
Although the jury was not specifically instructed on the defense of habitation, the jury was, in fact, instructed on self-defense as well as accident, and the jury rejected all of the appellant's conflicting stories and those defenses and in light of compelling evidence of the appellant's guilt, an alleged error did not likely affect the outcome of the trial court proceedings. State v. Newman, 305 Ga. 792 , 827 S.E.2d 678 (2019).
No error in failing to charge on defense of habitation. - Trial court erred in failing to give the pattern jury charge on defense of habitation because the state's evidence did not show that the deputies entered the defendant's home unlawfully and the defendant did not present evidence raising the issue. Calmer v. State, Ga. , 846 S.E.2d 40 (2020).
Counsel was not ineffective for failing to present defense. - Defendant did not receive ineffective assistance of counsel during a trial on a charge of felony murder; trial counsel properly declined to request an instruction on use of force in defense of habitation, O.C.G.A. § 16-3-23 , as it was sound strategy to try to steer the jury away from thinking that the defendant shot the victim for breaking into a storage building. Patel v. State, 279 Ga. 750 , 620 S.E.2d 343 (2005).
Defendant and codefendant were not denied their constitutional right to effective assistance of counsel due to trial counsel's failure to request a jury instruction on the use of force in defense of habitation found in O.C.G.A. § 16-3-23 because the defendant's testimony did not provide the slight evidence necessary to support a charge on defense of habitation, and in light of the evidence that the codefendant exited the codefendant's vehicle and repeatedly shot an unarmed man, there was no reasonable probability that instructing the jury on the law of defense of habitation would have resulted in a different outcome; while counsel's failure to request an instruction constituted deficient performance, it did not constitute ineffective assistance of counsel in light of the evidence against the codefendant since there did not exist a reasonable probability that, but for counsel's errors, the outcome of the trial would have been different. Coleman v. State, 286 Ga. 291 , 687 S.E.2d 427 (2009).
Trial counsel was not ineffective for failing to request a charge on the defense of habitation, O.C.G.A. § 16-3-23 , because there was no evidence that the victim attempted to enter an apartment to harm anyone inside the building, and the evidence demonstrated that the victim went inside the apartment to escape from the defendant when the victim saw that the defendant had a gun; the evidence did not reflect that the victim's intent was other than to change the locks of the apartment. Mubarak v. State, 305 Ga. App. 419 , 699 S.E.2d 788 (2010).
Because there was no evidence to support a justification defense pursuant to O.C.G.A. § 16-3-21(a) , including defense of habitation under O.C.G.A. § 16-3-23 , trial counsel's performance could not be considered deficient for failure to pursue those defenses. Reese v. State, 289 Ga. 446 , 711 S.E.2d 717 (2011), overruled on other grounds by State v. Lane, 308 Ga. 10 , 838 S.E.2d 808 (2020).
Trial court did not err in denying the defendant's motion for new trial on the ground of ineffective assistance of counsel because there was no evidence to support an instruction on defense of habitation pursuant to O.C.G.A. § 16-3-23 and, thus, trial counsel did not perform deficiently in failing to request such an instruction; there was no evidence that the victim was attempting to unlawfully enter or attack the defendant's vehicle at the time the defendant stabbed the victim, and under the facts, there could be no reasonable belief that stabbing the victim was necessary to prevent or terminate the other's unlawful entry into or attack upon a motor vehicle. Philpot v. State, 311 Ga. App. 486 , 716 S.E.2d 551 (2011).
Defendant failed to show that trial counsel was ineffective for failing to assert a defense of justification by defense of habitation because during the incident neither victim "entered" the vehicle, as the victims were already inside at the time defendant entered the vehicle and it was doubtful in any event whether the defendant could claim the victims' vehicle as the defendant's "habitation" as opposed to the "habitation" of the victims, the driver and owner. Brooks v. State, Ga. , S.E.2d (Aug. 24, 2020).
Counsel was ineffective for failing to present defense. - Defendant's trial counsel rendered constitutionally ineffective assistance by failing to request a jury charge on the use of force in defense of habitation because counsel knew the defense of self-defense that the defendant did pursue was legally foreclosed, counsel testified that the defendant was unaware that "habitation" referred to a motor vehicle, and no reasonable trial counsel would have made a strategic decision not to request such an instruction. Swanson v. State, 306 Ga. 153 , 829 S.E.2d 312 (2019).
Cited in White v. State, 129 Ga. App. 353 , 199 S.E.2d 624 (1973); Chambers v. State, 134 Ga. App. 53 , 213 S.E.2d 158 (1975); Colson v. State, 138 Ga. App. 366 , 226 S.E.2d 154 (1976); Murray v. State, 138 Ga. App. 776 , 227 S.E.2d 428 (1976); Adams v. State, 139 Ga. App. 670 , 229 S.E.2d 142 (1976); Johnson v. State, 142 Ga. App. 526 , 236 S.E.2d 493 (1977); Leach v. State, 143 Ga. App. 598 , 239 S.E.2d 177 (1977); Aufderheide v. State, 144 Ga. App. 877 , 242 S.E.2d 758 (1978); Todd v. State, 149 Ga. App. 574 , 254 S.E.2d 894 (1979); Burton v. State, 151 Ga. App. 176 , 259 S.E.2d 176 (1979); Washington v. State, 245 Ga. 117 , 263 S.E.2d 152 (1980); Lemley v. State, 245 Ga. 350 , 264 S.E.2d 881 (1980); Davis v. State, 158 Ga. App. 594 , 281 S.E.2d 344 (1981); Brown v. State, 163 Ga. App. 209 , 294 S.E.2d 305 (1982); Rivers v. State, 250 Ga. 288 , 298 S.E.2d 10 (1982); Fannin v. State, 165 Ga. App. 24 , 299 S.E.2d 72 (1983); Price v. State, 175 Ga. App. 780 , 334 S.E.2d 711 (1985); Parrish v. State, 182 Ga. App. 247 , 355 S.E.2d 682 (1987); Hicks v. State, 211 Ga. App. 370 , 439 S.E.2d 56 (1993); Gilchrist v. State, 270 Ga. 287 , 508 S.E.2d 409 (1998); Fair v. State, 284 Ga. 165 , 664 S.E.2d 227 (2008); Bunn v. State, 284 Ga. 410 , 667 S.E.2d 605 (2008); State v. Burks, 285 Ga. 781 , 684 S.E.2d 269 (2009); Oliver v. State, 329 Ga. App. 377 , 765 S.E.2d 606 (2014); Virger v. State, 305 Ga. 281 , 824 S.E.2d 346 (2019); Johnson v. State, 350 Ga. App. 478 , 829 S.E.2d 652 (2019); State v. Hamilton, 308 Ga. 116 , 839 S.E.2d 560 (2020); Newman v. State, Ga. , 844 S.E.2d 775 (2020).
What Constitutes Habitation
Trailer which is home of defendant is a habitation, and right to defend it against trespassers is same as for any other habitation. Goerndt v. State, 144 Ga. App. 93 , 240 S.E.2d 711 (1977).
Landlord cannot forcibly enter rented premises without right of reentry. - As against tenant in possession, where right of reentry is not contained in rental agreement, landlord is without right to force the landlord's way into rented premises. Goerndt v. State, 144 Ga. App. 93 , 240 S.E.2d 711 (1977).
Forcible entry without legal process by landlord against will of tenant renders landlord mere trespasser. Goerndt v. State, 144 Ga. App. 93 , 240 S.E.2d 711 (1977).
Motor vehicles. - Defendant's own testimony established that the victim was not directing any threats upon defendant's vehicle at the time defendant struck the victim; thus, O.C.G.A. § 16-3-23 was not applicable. If, in fact, dirt was thrown on defendant's vehicle, the attack had ended before defendant exited the vehicle to inspect it. Indeed, that defendant's first inclination was to inspect the vehicle, rather than protect it by restraining the victim from committing further violence against the vehicle, belies any argument that any action was needed on defendant's part to stop the victim from attacking defendant's vehicle. Defendant's proper defense was self-defense, not defense of habitation and the court's failure to instruct on habitation was not error. Wike v. State, 262 Ga. App. 444 , 585 S.E.2d 742 (2003).
Because trial counsel was not ineffective for failing to predict either the addition of the definition of habitation (which included automobiles) to the statutory scheme, or Georgia Supreme Court precedent, appellate counsel was not ineffective for failing to argue that trial counsel was ineffective on that ground. Cochran v. Frazier, F.3d (11th Cir. May 3, 2010)(Unpublished).
Space in jointly occupied dwelling. - For purposes of O.C.G.A. § 16-3-23 , a person's habitation can be a particular space in a jointly-occupied dwelling provided that such person has obtained the right to occupy that space and exclude co-inhabitants therefrom. Hammock v. State, 277 Ga. 612 , 592 S.E.2d 415 (2004).
RESEARCH REFERENCES
ALR. - Duty to retreat to wall as affected by illegal character of premises on which homicide occurs, 2 A.L.R. 518 .
Homicide or assault in defense of habitation or property, 25 A.L.R. 508 ; 32 A.L.R. 1541 ; 34 A.L.R. 1488 .
Pleading self-defense or other justification in civil assault and battery action, 67 A.L.R.2d 405.
Homicide: duty to retreat as condition of self-defense when one is attacked at his office, or place of business or employment, 41 A.L.R.3d 584.
Use of set gun, trap, or similar device on defendant's own property, 47 A.L.R.3d 646.
Unintentional killing of or injury to third person during attempted self-defense, 55 A.L.R.3d 620.
Homicide: duty to retreat where assailant is social guest on premises, 100 A.L.R.3d 532.
Homicide: duty to retreat where assailant and assailed share the same living quarters, 67 A.L.R.5th 637.
16-3-23.1. No duty to retreat prior to use of force in self-defense.
A person who uses threats or force in accordance with Code Section 16-3-21, relating to the use of force in defense of self or others, Code Section 16-3-23, relating to the use of force in defense of a habitation, or Code Section 16-3-24, relating to the use of force in defense of property other than a habitation, has no duty to retreat and has the right to stand his or her ground and use force as provided in said Code sections, including deadly force.
(Code 1981, § 16-3-23.1 , enacted by Ga. L. 2006, p. 477, § 1/SB 396.)
JUDICIAL DECISIONS
Reversible error in failing to charge jury on lack of duty to retreat. - Trial court committed reversible error in failing to charge the jury on the lack of a duty to retreat under O.C.G.A. § 16-3-23.1 because self-defense, O.C.G.A. § 16-3-21(a) , was the defendant's sole defense, and the issue of retreat was squarely placed in issue by the prosecutor's cross-examination of the defendant, by the defendant's explanation of why the defendant did not drive away from the victim, whom the defendant characterized as the aggressor, and by the prosecutor's closing argument; the evidence of the defendant's guilt was not overwhelming, given that the case turned solely on the credibility of the defendant, the victim, and the other witnesses. Hill v. State, 310 Ga. App. 695 , 713 S.E.2d 891 (2011).
Plain error not shown for failing to charge on no duty to retreat. - Under a plain error analysis in the defendant's trial for murder, the trial court did not err when the court failed to charge the jury that one acting in defense of self has no duty to retreat because the jury charges given in the case fairly informed the jury as to the law of self-defense and the defendant failed to affirmatively show that the failure to charge on the duty to retreat probably affected the outcome of the trial. Shaw v. State, 292 Ga. 871 , 742 S.E.2d 707 (2013).
Plain error not shown for failing to charge on no duty to retreat. - When the rightful owner of the parcel on which the defendant resided hired a tow truck company to enter the property to remove old vehicles parked on the parcel, and the defendant shot and killed one of the tow truck company employees, the trial court's failure to instruct the jury that a person who was justified in using force to defend a habitation had no duty to retreat did not constitute plain error because the trial court's instructions covered the law of justification in general, and specifically covered the law of justification with respect to use of force in defense of habitation; and the defendant failed to make an affirmative showing that the alleged erroneous instructions likely affected the outcome of the proceedings. Reed v. State, 304 Ga. 400 , 819 S.E.2d 44 (2018).
Cited in Webb v. State, 284 Ga. 122 , 663 S.E.2d 690 (2008).
RESEARCH REFERENCES
ALR. - Construction and application of "make my day" and "stand your ground" statutes, 76 A.L.R.6th 1.
16-3-24. Use of force in defense of property other than a habitation.
-
A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to prevent or terminate such other's trespass on or other tortious or criminal interference with real property other than a habitation or personal property:
- Lawfully in his possession;
- Lawfully in the possession of a member of his immediate family; or
- Belonging to a person whose property he has a legal duty to protect.
-
The use of force which is intended or likely to cause death or great bodily harm to prevent trespass on or other tortious or criminal interference with real property other than a habitation or personal property is not justified unless the person using such force reasonably believes that it is necessary to prevent the commission of a forcible felony.
(Code 1933, § 26-904, enacted by Ga. L. 1968, p. 1249, § 1.)
Cross references. - Criminal trespass, § 16-7-21 .
Habitation and personal property defined, § 16-3-24.1 .
Law reviews. - For annual survey on criminal law, see 61 Mercer L. Rev. 79 (2009). For note, "Cops or Robbers? How Georgia's Defense of Habitation Statute Applies to No-Knock Raids by Police," see 26 Ga. St. U. L. Rev. 585 (2010). For article, "Vigilant or Vigilante? Procedure and Rationale for Immunity in Defense of Habitation and Defense of Property Under the Official Code of Georgia Annotated §§ 16-3-23 , 16-3-24 , 16-3-24.1 , and 16-3-24 .2," see 59 Mercer L. Rev. 629 (2008).
JUDICIAL DECISIONS
Editor's notes. - In light of the similarity of the statutory provisions, decisions decided under former Code 1933, § 26-1011 are included in the annotations for this Code section.
Justifiable homicide is in law itself a substantive and affirmative defense, and, if found well supported in fact, accused is entitled to acquittal without reference to evidence which apparently tends to convict the accused of offense of murder or voluntary manslaughter. Fountain v. State, 207 Ga. 144 , 60 S.E.2d 433 (1950), overruled on other grounds, Lavender v. State, 234 Ga. 608 , 216 S.E.2d 855 (1975) (decided under former Code 1933, § 26-1011).
Purpose of former Code 1933, § 26-904(b) is to provide justification only for repulsion of a forcible felony. Adultery, in addition to fact that it is not a felony, is a consensual and nonviolent crime. It appears unlikely, in view of the trend of modern law, that except in extreme circumstances, it can stand as a complete justification for homicide, although always relevant to degree of crime. Henderson v. State, 136 Ga. App. 490 , 221 S.E.2d 633 (1975).
Justification, if established, should always result in acquittal. Gordy v. State, 93 Ga. App. 743 , 92 S.E.2d 737 (1956) (decided under former Code 1933, § 26-1011).
Resistance by armed force of actual attempt to commit robbery is justifiable and one cannot create emergency which renders it necessary for another to defend self, and then take advantage of effort of such other person to do so. Hill v. State, 211 Ga. 683 , 88 S.E.2d 145 (1955) (decided under former Code 1933, § 26-1011).
Homicide in resisting robbery may be justified. - Violent taking of money or property from person of another by force or intimidation for purpose of applying same to payment of a debt, to which money or property taker has no bona fide claim of title or right of possession, constitutes offense of robbery. Resistance by armed force of actual attempt to commit such a robbery would be justifiable provided that "circumstances were sufficient to excite fears of a reasonable man" that such an offense was about to be committed, and that party killing really acted under influence of those fears, and not in a spirit of revenge. Daniel v. State, 187 Ga. 411 , 1 S.E.2d 6 (1939) (decided under former Code 1933, § 26-1011).
When presence of spirit of revenge does not preclude justification. - When one contends that one acted under the fears of a reasonable man, that is, under apparent rather than absolute necessity, it must appear that one did act under such fears and not in a spirit of revenge. However, if one must take one's adversary's life in order to save own or to prevent commission of felony upon one's person, property, or habitation, then it matters not what feelings of malice or revenge one may also entertain. Crolger v. State, 88 Ga. App. 566 , 77 S.E.2d 98 (1953) (decided under former Code 1933, § 26-1011).
One entering another's property intending to commit imprudent and felonious act assumes risk of consequences. Johnson v. Jackson, 140 Ga. App. 252 , 230 S.E.2d 756 (1976).
Name-calling not trespass. - When a defendant is provoked to assault a trespasser by the trespasser's name-calling and not out of an intent to prevent a trespass, O.C.G.A. § 16-3-24 does not justify the assault. Dalton v. State, 187 Ga. App. 569 , 370 S.E.2d 823 (1988).
One cannot use deadly force in arresting or preventing escape of misdemeanant, even though no other means is available. Johnson v. Jackson, 140 Ga. App. 252 , 230 S.E.2d 756 (1976).
Landowner has right to shoot person who is or reasonably appears to be a burglar. Johnson v. Jackson, 140 Ga. App. 252 , 230 S.E.2d 756 (1976).
Former Code 1933, § 26-904 does not authorize destructive removal of fence and locked gate blocking driveway. State v. Moore, 243 Ga. 594 , 255 S.E.2d 709 (1979).
Husband was not justified in using physical force against wife in defense of prosecution for simple battery because the property she took was not the "property of another" within the definition provided by O.C.G.A. § 16-8-1(3) , applying to theft, and her conduct was not cognizable as tortious interference due to application of the doctrine of interspousal tort immunity. Barron v. State, 219 Ga. App. 481 , 465 S.E.2d 529 (1995).
When the defendant was charged with aggravated assault and family-violence battery arising from a chokehold the defendant applied to the defendant's pregnant wife, the defendant's motion for immunity was improperly granted because the defendant and the victim were married at the time of the altercation, they lived in the house where the incident occurred together, the victim routinely took care of the parties' small dog, and the victim was entitled to handle the dog, including putting the dog out of the house; and the defendant reacted to the victim's struggling against the chokehold by tightening the defendant's grip, which was not justified as the victim was not committing a forcible felony against the dog. State v. Morgan, 346 Ga. App. 702 , 814 S.E.2d 823 (2018).
Nature of issues for jury determination arising under section. - Relation between landowner and burglar or felon, owner's right and authority to arrest felon and allowable force in effectuation thereof, and duty owed by landowner to one who is there for purpose of committing a felony are questions for determination of jury. Johnson v. Jackson, 140 Ga. App. 252 , 230 S.E.2d 756 (1976).
Whether force used was reasonable or whether killing was necessary are for jury determination. Johnson v. Jackson, 140 Ga. App. 252 , 230 S.E.2d 756 (1976).
When charge covers elements of justifiable homicide, language of subsection (b) need not be charged. - When charge given sufficiently instructs jury on elements of justifiable homicide, in absence of any request to charge, or objection to charge, it is not error to fail to charge in language of former Code 1933, § 26-904(b). Brooks v. State, 227 Ga. 339 , 180 S.E.2d 721 (1971).
Erroneous charge on justifiable homicide not cured by verdict of guilty of lesser grade than murder. - Erroneous charge or failure to charge on accused's defense or defenses of justifiable homicide is not cured by verdict finding accused guilty of some lesser grade of offense than murder. McKibben v. State, 88 Ga. App. 466 , 77 S.E.2d 86 (1953) (decided under former Code 1933, § 26-1011).
In charging justifiable homicide, failure to define felony, absent request, does not require new trial. Fountain v. State, 207 Ga. 144 , 60 S.E.2d 433 (1950), overruled on other grounds, Lavender v. State, 234 Ga. 608 , 216 S.E.2d 855 (1975) (decided under former Code 1933, § 26-1011).
Jury instruction proper on defense of personal property during aggravated assault. - Trial court did not commit plain error in charging the jury because the jury was charged that the defendant's use of deadly force in defense of property would be justified if reasonably believed to be necessary to prevent the commission of a forcible felony and that aggravated assault was a forcible felony; thus, the jury had sufficient direction in order to intelligently consider the defense-of-personal-property theory of justification based on the defendant's claim that the victim committed aggravated assault when the victim lunged at the individual holding the gun and attempted to wrestle the gun away from the other individual. Hood v. State, 303 Ga. 420 , 811 S.E.2d 392 (2018).
Failure to give an instruction as to the elements of a forcible felony, which felony the defendant asserts as justification for the shooting of the alleged felon, is error which is substantial and harmful as a matter of law, so that defendant's failure to request such instruction does not preclude defendant's raising on appeal the issue of the court's failure to make such instruction. Laney v. State, 184 Ga. App. 463 , 361 S.E.2d 841 (1987).
Because the defendant was on the victim's premises unlawfully and initiated violence by lunging at the victim, pursuant to O.C.G.A. §§ 16-3-23 and 16-3-24 , the victim's efforts to defend the house and a mail truck were entirely legal; consequently, there was no evidence to support a jury charge on justification under O.C.G.A. § 16-3-21(a) . Robinson v. State, 270 Ga. App. 869 , 608 S.E.2d 544 (2004).
In the defendant's trial for cruelty to a child and false imprisonment, O.C.G.A. §§ 16-5-70(c) and 16-5-41(a) , respectively, based on the defendant's locking the defendant's seven-year-old son in a wooden box the defendant built for the purpose and also binding the child in a sleeping bag, the trial court did not err in failing to instruct the jury on self-defense, defense of habitation, and defense of property other than habitation, nor was counsel ineffective in failing to request these instructions. Leslie v. State, 341 Ga. App. 731 , 802 S.E.2d 674 (2017).
No evidence to support instruction on justification. - Although the defendant indicated that the defendant believed a civilian code enforcement officer and a police officer were "stealing" the defendant's vehicles, that belief was unfounded because the vehicles were being removed after the defendant failed to clean up property; thus, there was no evidence of tortious or criminal interference with the defendant's property to justify a jury instruction on the use of force under O.C.G.A. § 16-3-24 . Adcock v. State, 317 Ga. App. 468 , 731 S.E.2d 365 (2012).
Cited in Carlton v. Geer, 138 Ga. App. 304 , 226 S.E.2d 99 (1976); Colson v. State, 138 Ga. App. 366 , 226 S.E.2d 154 (1976); Adams v. State, 139 Ga. App. 670 , 229 S.E.2d 142 (1976); Williams v. State, 144 Ga. App. 72 , 240 S.E.2d 591 (1977); Reinertsen v. Porter, 242 Ga. 624 , 250 S.E.2d 475 (1978); Moore v. State, 148 Ga. App. 469 , 251 S.E.2d 376 (1978); Powell v. State, 154 Ga. App. 568 , 269 S.E.2d 70 (1980); Radney v. State, 156 Ga. App. 442 , 274 S.E.2d 800 (1980); Rivers v. State, 250 Ga. 288 , 298 S.E.2d 10 (1982); Nelson v. State, 213 Ga. App. 641 , 445 S.E.2d 543 (1994); Denny v. State, 226 Ga. App. 432 , 486 S.E.2d 417 (1997); Fair v. State, 284 Ga. 165 , 664 S.E.2d 227 (2008); Bunn v. State, 284 Ga. 410 , 667 S.E.2d 605 (2008); McClure v. State, 306 Ga. 856 , 834 S.E.2d 96 (2019); State v. Hamilton, 308 Ga. 116 , 839 S.E.2d 560 (2020).
RESEARCH REFERENCES
Am. Jur. 2d. - 6 Am. Jur. 2d, Assault and Battery, § 55 et seq. 40A Am. Jur. 2d, Homicide, § 174 et seq.
Justified Use of Force in Defense of Private Property, 38 POF2d 731.
C.J.S. - 40 C.J.S., Homicide, §§ 168, 169.
ALR. - Duty to retreat to wall as affected by illegal character of premises on which homicide occurs, 2 A.L.R. 518 .
Homicide or assault in defense of habitation or property, 25 A.L.R. 508 ; 32 A.L.R. 1541 ; 34 A.L.R. 1488 .
Right to use force to obtain possession of real property to which one is entitled, 141 A.L.R. 250 .
Homicide: duty to retreat as condition of self-defense when one is attacked at his office, or place of business or employment, 41 A.L.R.3d 584.
Use of set gun, trap, or similar device on defendant's own property, 47 A.L.R.3d 646.
Unintentional killing of or injury to third person during attempted self-defense, 55 A.L.R.3d 620.
Homicide: duty to retreat where assailant is social guest on premises, 100 A.L.R.3d 532.
16-3-24.1. Habitation and personal property defined.
As used in Code Sections 16-3-23 and 16-3-24, the term "habitation" means any dwelling, motor vehicle, or place of business, and "personal property" means personal property other than a motor vehicle.
(Code 1981, § 16-3-24.1 , enacted by Ga. L. 1998, p. 1153, § 1.1.)
Law reviews. - For article, "Vigilant or Vigilante? Procedure and Rationale for Immunity in Defense of Habitation and Defense of Property Under the Official Code of Georgia Annotated §§ 16-3-23 , 16-3-24 , 16-3-24.1 , and 16-3-24 .2," see 59 Mercer L. Rev. 629 (2008).
JUDICIAL DECISIONS
Motor vehicles. - Because trial counsel was not ineffective for failing to predict either the addition of the definition of habitation (which included automobiles) to the statutory scheme, or Georgia Supreme Court precedent, appellate counsel was not ineffective for failing to argue that trial counsel was ineffective on that ground. Cochran v. Frazier, F.3d (11th Cir. May 3, 2010)(Unpublished).
Trial court erred by refusing to charge the jury on the defense of habitation because the defendant testified that when the defendant returned to the vehicle with the victim to obtain the defendant's insurance card, after a vehicle collision, the victim reached through the defendant's window and began grabbing the defendant's shoulder and accusing the defendant of not having insurance; that the defendant became nervous and frightened, and that the defendant's son began to cry; and that the defendant drove away from the victim to escape the victim reaching through the window and grabbing the defendant while the victim was verbally accosting the defendant. Salazar-Balderas v. State, 343 Ga. App. 201 , 806 S.E.2d 644 (2017).
Jury charge on defense of habitation. - Although the jury was not specifically instructed on the defense of habitation, the jury was, in fact, instructed on self-defense as well as accident, and the jury rejected all of the appellant's conflicting stories and those defenses and in light of compelling evidence of the appellant's guilt, the alleged error did not likely affect the outcome of the trial court proceedings. State v. Newman, 305 Ga. 792 , 827 S.E.2d 678 (2019).
Cited in Wike v. State, 262 Ga. App. 444 , 585 S.E.2d 742 (2003); Coleman v. State, 286 Ga. 291 , 687 S.E.2d 427 (2009); Smith v. State, 309 Ga. App. 241 , 709 S.E.2d 823 (2011); Andrade v. State, 319 Ga. App. 75 , 733 S.E.2d 474 (2012); Newman v. State, Ga. , 844 S.E.2d 775 (2020).
16-3-24.2. Immunity from prosecution; exception.
A person who uses threats or force in accordance with Code Section 16-3-21, 16-3-23, 16-3-23.1, or 16-3-24 shall be immune from criminal prosecution therefor unless in the use of deadly force, such person utilizes a weapon the carrying or possession of which is unlawful by such person under Part 2 of Article 4 of Chapter 11 of this title.
(Code 1981, § 16-3-24.2 , enacted by Ga. L. 1998, p. 1153, § 1.2; Ga. L. 1999, p. 81, § 16; Ga. L. 2006, p. 477, § 2/SB 396; Ga. L. 2014, p. 599, § 1-3/HB 60.)
Cross references. - Possession of dangerous weapons, § 16-11-120 et seq. Carrying concealed firearms, § 16-11-126 et seq.
Editor's notes. - Ga. L. 2014, p. 599, § 1-1/HB 60, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Safe Carry Protection Act.'"
Law reviews. - For annual survey on criminal law, see 61 Mercer L. Rev. 79 (2009). For annual survey on death penalty law, see 61 Mercer L. Rev. 99 (2009). For article on the 2014 amendment of this Code section, see 31 Ga. St. U. L. Rev. 47 (2014). For annual survey on evidence law, see 69 Mercer L. Rev. 101 (2017). For article, "Vigilant or Vigilante? Procedure and Rationale for Immunity in Defense of Habitation and Defense of Property Under the Official Code of Georgia Annotated §§ 16-3-23 , 16-3-24 , 16-3-24.1 , and 16-3-24 .2," see 59 Mercer L. Rev. 629 (2008).
JUDICIAL DECISIONS
Constitutionality. - Defendant failed to show that O.C.G.A. § 16-3-24.2 treated members of a class differently from similarly situated individuals and, thus, the trial court did not err in upholding the statute as constitutional. Propst v. State, 299 Ga. 557 , 788 S.E.2d 484 (2016), cert. denied, 137 S. Ct. 646 , 196 L. Ed. 2 d 542 (U.S. 2017), overruled on other grounds, Worthen v. State, 2019 Ga. LEXIS 22 (Ga. 2019).
Applicability. - O.C.G.A. § 16-3-24.2 did not apply to defendant who was acting in self-defense. Boggs v. State, 261 Ga. App. 104 , 581 S.E.2d 722 (2003).
Preponderance of evidence standard applies. - To avoid trial, a defendant bears the burden of showing that the defendant is entitled to immunity under O.C.G.A. § 16-3-24.2 by a preponderance of the evidence. Bunn v. State, 284 Ga. 410 , 667 S.E.2d 605 (2008).
Jury instructions. - Defendant was not entitled to an immunity statute instruction at trial. Boggs v. State, 261 Ga. App. 104 , 581 S.E.2d 722 (2003).
Because the issue of immunity under O.C.G.A. § 16-3-24.2 was a question of law for the trial court to decide, it was not error for the trial court to refuse to give a defendant's requested jury charge on immunity in the defendant's prosecution for involuntary manslaughter. Campbell v. State, 297 Ga. App. 387 , 677 S.E.2d 312 (2009), cert. denied, No. S09C1263, 2009 Ga. LEXIS 411 (Ga. 2009).
Impact of jury's rejection of justification defense. - To the extent it holds that O.C.G.A. § 16-3-24.2 does not apply once a jury rejects the defendant's justification defense, the Georgia Supreme Court overrules the Georgia Court of Appeals' decision in Eason v. State, 261 Ga. App. 221 (2003). Hipp v. State, 293 Ga. 415 , 746 S.E.2d 95 (2013).
Motion must be decided pre-trial. - In two related cases in which the state sought the death penalty against two defendants, and in a case of first impression interpreting the immunity from prosecution statute set forth in O.C.G.A. § 16-3-24.2 , it was determined that the trial court erred by refusing to rule pre-trial on the defendants' motions for immunity from prosecution under § 16-3-24.2 . Fair v. State, 284 Ga. 165 , 664 S.E.2d 227 (2008).
Upon the filing of a motion for immunity, a trial court must determine before trial whether a person is immune from prosecution; thus, the trial court did not err in ruling on the defendant's self-defense claim before trial. State v. Sutton, 297 Ga. 222 , 773 S.E.2d 222 (2015).
Although a trial court must rule on a defendant's motion that asserts entitlement to immunity prior to the trial, the hearing on the defendant's motion to dismiss the charges on grounds of immunity from prosecution was conducted after the jury was struck due to the state's witness not being available before the jury was struck; however, if anything, the state benefitted from the case proceeding as it did, and the state could not now complain about the timing of the hearing on the defendant's motion, which was filed before the jury was struck. State v. Smith, 347 Ga. App. 289 , 819 S.E.2d 87 (2018).
Assuming that motions for immunity under O.C.G.A. § 16-3-24.2 were required to be made before trial, the defendant was entitled to file the defendant's motion after the grant of a new trial because it was as though no trial had been had under O.C.G.A. § 5-5-48 . State v. Remy, 308 Ga. 296 , 840 S.E.2d 385 (2020).
State's election to retry defendant allowed defendant to seek immunity. - It was not procedurally improper for the defendant to have moved for immunity from prosecution under O.C.G.A. § 16-3-24.2 before a new trial because once the state elected to retry the defendant, the defendant was free to seek immunity from prosecution under § 16-3-24.2 before any new trial was conducted. State v. Hamilton, 308 Ga. 116 , 839 S.E.2d 560 (2020).
Reconsideration of pretrial ruling on immunity. - Appellate court erred by reversing a trial court order granting the defendant a new trial because the trial court had the inherent authority to reconsider the court's pretrial ruling on the defendant's motion for immunity from criminal prosecution under O.C.G.A. § 16-3-24.2 and to rule otherwise. Hipp v. State, 293 Ga. 415 , 746 S.E.2d 95 (2013).
Immunity properly found. - Trial court properly held that the defendant, who was charged with family violence battery and simple battery under O.C.G.A. §§ 16-5-23.1(f) and 16-5-23 , was immune from prosecution under O.C.G.A. § 16-3-24.2 . The testimony of the defendant's friend that the defendant restrained the friend after the friend broke the defendant's windshield and kicked a car seat, knocking the defendant into the steering wheel, provided some evidence that the defendant's actions were justified under O.C.G.A. § 16-3-21(a) . State v. Yapo, 296 Ga. App. 158 , 674 S.E.2d 44 (2009).
Trial court did not err by granting the defendant's motion for immunity from prosecution pursuant to O.C.G.A. § 16-3-24.2 because the court's determination that the defendant was immune from prosecution since the defendant acted in self-defense under O.C.G.A. § 16-3-21(a) in discharging the defendant's service weapon, although based upon conflicting evidence, was supported by a preponderance of the evidence; the trial court expressly adopted the factual findings that were made by the original trial judge in the judge's previous order denying the defendant's motion, and the original trial judge's error in assessing evidentiary conflicts in light of the judge's improper legal conclusion that the defendant was required to prove "as a matter of law" that the defendant was justified in killing the victim were corrected when the supreme court held that the proper standard of review was the preponderance of the evidence. State v. Bunn, 288 Ga. 20 , 701 S.E.2d 138 (2010).
As the defendant showed a threat of force from the victim and reasonably believed that the defendant needed to defend oneself from a violent attack by the victim that could have caused the defendant great bodily injury, the defendant was justified in using deadly force against the victim to protect the defendant under O.C.G.A. § 16-3-21 ; consequently, the defendant was immune from prosecution under O.C.G.A. § 16-3-24.2 . State v. Green, 289 Ga. 802 , 716 S.E.2d 194 (2011).
Evidence was sufficient for the trial court to determine that the defendants met the defendants' burden of proving that the defendants were entitled to immunity from prosecution pursuant to O.C.G.A. § 16-3-24.2 because the defendants' testimony provided some evidence that the defendants' actions were justified, and the state chose to present no contrary testimony. State v. Cooper, 324 Ga. App. 32 , 749 S.E.2d 35 (2013).
Motion to dismiss the indictment was properly granted as the defendant acted in self-defense in shooting the deceased and was thus immune from prosecution because the evidence showed that the defendant received a threatening voicemail from the deceased; at the time of the shooting, the defendant knew of three prior acts of violence committed by the deceased; on the morning of the shooting, the defendant was at the apartment of the defendant's mother when the defendant saw the deceased enter the doorway of the mother's apartment; the defendant repeatedly told the deceased not to come any closer, but the deceased nevertheless continued to proceed through the doorway; and the defendant then fired a weapon once, killing the deceased. State v. Sutton, 297 Ga. 222 , 773 S.E.2d 222 (2015).
Trial court did not err in granting in part the defendant's motion to bar the prosecution on immunity grounds because the defendant presented sufficient evidence to carry the defendant's burden of proving the reasonableness of the defendant's belief in the necessity of deadly force with respect to the first victim because the first victim punched and choked the defendant, and threatened to kill the defendant; and the defendant's testimony, which was corroborated in part by the second victim, provided some evidence that the defendant's actions with respect to the first victim were justified. State v. Jennings, 337 Ga. App. 164 , 786 S.E.2d 545 (2016).
Defendant's pretrial motion for immunity from prosecution based on the defendant's claim of self-defense was properly granted as there was evidence introduced at the motion hearing to support the ruling in favor of the defendant because, although it was error for the superior court to cite document number 17 as support for its findings, the superior court's consideration of that document was harmless as the superior court never cited that document in isolation but always in conjunction with specific citations to the transcript of testimony adduced at the motion hearing; and all of the information the court mentions as proving the defendant's credibility came most clearly from evidence at the hearing. State v. Ogunsuyi, 301 Ga. 281 , 800 S.E.2d 542 (2017).
Defendant's motion to dismiss the charges against the defendant based on immunity from prosecution was properly granted because the alleged victim was the initial aggressor and the defendant used the defendant's car to protect the defendant as the defendant ran from the victim, got inside the car, and locked the doors; the victim stood in front of the hood of the car; the defendant tried to wave the victim off, but the victim refused to move; the defendant started the car and the victim then jumped on top of the hood; the defendant put the car into gear, but the victim did not get off the car; and the defendant proceeded to accelerate; however, there was no evidence the car was used in a way likely to cause death or great bodily harm. State v. Smith, 347 Ga. App. 289 , 819 S.E.2d 87 (2018).
Evidence was sufficient for the trial court to determine that the defendant was entitled to immunity from prosecution for the aggravated assault charge against the victim because there was evidence in the record to support the trial court's finding that the victim was the first person to wield a gun and that the victim became aggressive with the gun, waiving the gun around and pointing the gun at the two men involved in the fight, as well as the trial court's conclusion that the defendant was justified in the belief that it was necessary to defend third parties against the victim's imminent use of unlawful force. State v. Jenkins, 355 Ga. App. 39 , 840 S.E.2d 742 (2020).
Evidence supported the defendant's contention that the defendant shot the victim in self-defense; therefore, if the defendant's possession of a firearm at the shooting was justified under the rule created under O.C.G.A. §§ 16-3-21 and 16-11-138 , then it could not be said that the defendant was committing a felony when the defendant shot the victim, and the preclusive bar of § 16-3-21 (b)(2) would not apply. However, the trial court needed to consider whether possession of the firearm before or after the shooting could be prosecuted. State v. Remy, 308 Ga. 296 , 840 S.E.2d 385 (2020).
Order granting the defendant immunity was upheld because the evidence supported the determination that the use of deadly force against the ex-husband was justified based on the defendant's statements that the ex-husband had physically abused her for years and that he was attacking her at the time she shot him, the testimony of several witnesses about the ex-husband's routine and ongoing physical abuse of the defendant, and the ex-husband's threat to use deadly force on the night in question. State v. Hamilton, 308 Ga. 116 , 839 S.E.2d 560 (2020).
Immunity improperly found. - In a case in which the evidence showed that defendant, a convicted felon, used a firearm to shoot the deceased, a trial court erred in granting defendant's motion to quash the indictment under O.C.G.A. § 16-3-24.2 . Since defendant possessed the firearm in violation of O.C.G.A. § 16-11-131 , defendant was not entitled to the immunity offered by § 16-3-24.2 State v. Burks, 285 Ga. 781 , 684 S.E.2d 269 (2009).
Because the trial court failed to consider O.C.G.A. § 16-3-21(a) when the court found that the defendant was immune from prosecution under O.C.G.A. § 16-3-24.2 , the trial court used the wrong legal standard in reaching the court's decision; accordingly, the matter was remanded for further proceedings. State v. Green, 288 Ga. 1 , 701 S.E.2d 151 (2010).
After the defendant was charged with aggravated assault and family-violence battery arising from a chokehold the defendant applied to the defendant's pregnant wife, the defendant's motion for immunity was improperly granted because the defendant and the victim were married at the time of the altercation, they lived in the house where the incident occurred together, the victim routinely took care of the parties' small dog, and the victim was entitled to handle the dog, including putting the dog out of the house; and the defendant reacted to the victim's struggling against the chokehold by tightening the defendant's grip, which was not justified as the victim was not committing a forcible felony against the dog. State v. Morgan, 346 Ga. App. 702 , 814 S.E.2d 823 (2018).
There was no evidence to support the trial court's grant of immunity as to the charge of aggravated assault against the second victim because the undisputed evidence showed that the defendant initially shot at and hit the second victim, who was unarmed and standing 20 to 30 feet away from the first victim, who the defendant maintained was wielding the gun. State v. Jenkins, 355 Ga. App. 39 , 840 S.E.2d 742 (2020).
Immunity motion properly denied. - Trial court's apparent finding that defendant did not reasonably believe that the force defendant used was necessary to terminate a patron's entry into the restricted bakery area was supported by the patron's deposition testimony that defendant, without provocation, without warning that the bakery area was restricted, and without declaring the back door as off-limits, grabbed and struck the patron for no apparent reason other than perhaps believing that the patron was shoplifting food, despite defendant's admission that the patron had a receipt; although the trial court's ruling on defendant's immunity motion under O.C.G.A. § 16-3-24.2 was based on written deposition testimony, it could not be reviewed de novo, and as the trial court's ruling was supported by the patron's deposition testimony, the ruling had to be affirmed. Blazer v. State, 266 Ga. App. 743 , 598 S.E.2d 338 (2004).
Trial court did not err in denying a defendant's motion for immunity under O.C.G.A. § 16-3-24.2 made by a police officer who fired at and killed a fleeing suspect who was alleged to have been involved in a car theft and/or a hit and run accident. State v. Thompson, 288 Ga. 165 , 702 S.E.2d 198 (2010).
Denial of a defendant's pretrial motion for immunity, based on a claim of justification, was proper because the evidence showed that the shooting was motivated by gang rivalry and a desire for revenge, rather than self-defense. Sifuentes v. State, 293 Ga. 441 , 746 S.E.2d 127 (2013).
Trial court's denial of immunity from prosecution based on defense of habitation was supported by a victim's testimony that the victims did not enter the defendant's home in a violent and tumultuous manner for the purposes of committing a felony therein, but were invited in by the defendant, who threatened and assaulted them. Inman v. State, 294 Ga. 650 , 755 S.E.2d 752 (2014).
When the defendant was convicted of murder and other crimes in connection with the fatal stabbing of the victim, the defendant's motion for immunity from prosecution was properly denied because, although the trial judge did not reference the judicial standard or explicitly state that the trial judge had weighed the evidence at the hearing on the immunity motion, the trial judge later clarified that the trial judge had weighed the evidence during the immunity hearing and determined not only that the defendant failed to show that the defendant was entitled to immunity by a preponderance of the evidence but that it appeared more likely than not that the defendant was not acting in self-defense when the defendant killed the victim. Cotton v. State, 297 Ga. 257 , 773 S.E.2d 242 (2015).
Trial court did not err in denying the defendant's pre-trial motion for immunity based on self-defense as the court weighed the defendant's account of the shooting against the medical examiner's testimony that the victim had been shot in the back from a distance of at least 18 inches away, the testimony of the victim's friend that the defendant pointed a gun at the friend and refused to call 911, and the defendant's own admission that the defendant did not render aid or summon medical assistance. Lowe v. State, 298 Ga. 810 , 783 S.E.2d 111 (2016).
Given the undisputed evidence that the defendant did not possess a weapons carry license and was thus in violation of O.C.G.A. § 16-11-126 insofar as the defendant was carrying a weapon without such license in a place other than the defendant's own property, vehicle, or business, the trial court did not err in denying the defendant's claim to immunity. Amos v. State, 298 Ga. 804 , 783 S.E.2d 900 (2016).
Defendant failed to show that the defendant was entitled to immunity as the defendant did not show by a preponderance of the evidence that the defendant reasonably believed that the defendant was in imminent danger of being subjected to unlawful force when the defendant shot the victim because, although the defendant testified that the defendant shot the victim only after the victim grabbed a gun from the victim's car, two guests at the gathering in the defendant's front yard testified that the guests never saw the victim with a gun; and the jury was authorized to reject the defendant's claim that the victim was the aggressor and to conclude that the defendant did not reasonably believe that it was necessary to shoot the victim in self-defense. Arnold v. State, 302 Ga. 129 , 805 S.E.2d 94 (2017).
Defendant was not immune from prosecution based on self-defense because, even if the victim lunged at the defendant, the defendant was not entitled to slam the victim onto a concrete sidewalk and then punch the victim multiple times with enough force to cause the significant facial injuries and brain damage that led to the victim's death; and the defendant never told the police that the defendant thought the victim might have had a large knife when the victim lunged at the defendant. Gardhigh v. State, Ga. , 844 S.E.2d 821 (2020).
Denial of immunity improper. - Evidence was sufficient for the trial court to determine that the defendant met the burden of proving that the defendant was entitled to immunity from prosecution as there was some evidence to support the trial court's finding that the suspect was physically resisting being handcuffed and detained by the defendant, and that the defendant's application of the arm bar technique as a defensive measure to bring the suspect to the ground and handcuff the suspect was reasonable and proportionate. State v. Hall, 339 Ga. App. 237 , 793 S.E.2d 522 (2016).
Trial court was authorized to find that the appellant failed before, during, and after trial to meet the burden of showing that the appellant was entitled to immunity under O.C.G.A. § 16-3-24.2 because the statements-in-place by the appellant's lawyer were not a proper substitute for evidence at the hearing on the motion for immunity because the state did not accept those proffers but rather insisted that the appellant prove the appellant's immunity with traditional evidence. Anthony v. State, 298 Ga. 827 , 785 S.E.2d 277 (2016).
Immunity from prosecution did not apply when executing no-knock warrant. - In a capital murder case involving the shooting death of a deputy while executing a no-knock warrant with other officers involved in a drug task force, the immunity from prosecution prescribed by O.C.G.A. § 16-3-24.2 did not apply to the defendants because the officers' entry was lawful. Fair v. State, 288 Ga. 244 , 702 S.E.2d 420 (2010).
Counsel not ineffective for failing to file motion for immunity from prosecution. - Counsel was not ineffective for failing to file a pretrial motion for immunity from prosecution based on the defendant's claim of self-defense because trial counsel testified that it was a strategic decision not to file such a motion inasmuch as counsel did not want to expose the defendant to pre-trial cross-examination from the state, thereby previewing the defendant's anticipated trial testimony, and that counsel chose to attempt to demonstrate self-defense to the jury, as opposed to the judge. Dent v. State, 303 Ga. 110 , 810 S.E.2d 527 (2018).
Trial counsel testified that counsel did not believe an immunity motion based on self-defense would have been successful as there was insufficient evidence of self-defense, including that the victim was unarmed; the trial court likewise found that a pretrial immunity motion would have lacked merit. Trial counsel was not deficient for failing to file such a motion. Mathis v. State, Ga. , 844 S.E.2d 736 (2020).
Counsel not ineffective in allowing defendant to testify at immunity hearing. - Counsel was not unreasonable in allowing the defendant to testify under oath at a pretrial immunity hearing; the defendant's claim of immunity was supported by the defendant's own testimony that the defendant acted in self-defense or defense of habitation (the defendant's van) at the time that the defendant shot the victim. It was not unreasonable for counsel to support the defendant in the defendant's desire to testify at the immunity hearing in order to provide this evidence. Newman v. State, Ga. , 844 S.E.2d 775 (2020).
Trial counsel was not ineffective for failing to file a pretrial motion for immunity from prosecution based on self-defense as counsel would not have been able to show by a preponderance of the evidence that the defendant acted in self-defense because the evidence contradicting the defendant's claim of self-defense was overwhelming as the evidence presented at trial showed that, after the defendant brutally beat the victim to death with a hammer and then attempted to conceal the body and other evidence, the defendant admitted to the police that the victim had not had a weapon and had not threatened the defendant. Velasco v. State, 306 Ga. 888 , 834 S.E.2d 21 (2019).
Appeal from finding of immunity from prosecution. - Because O.C.G.A. § 5-7-1(a)(1) provides that the state may appeal an order dismissing "any count" of the indictment, the trial court's order that in effect dismissed two of the three counts by finding that the defendant was immune from prosecution under O.C.G.A. § 16-3-24.2 was appealable. State v. Yapo, 296 Ga. App. 158 , 674 S.E.2d 44 (2009).
Appeal from order denying motion to dismiss indictment was dismissed. - Because the trial court's order denying the defendant's motion to dismiss an indictment on immunity grounds under O.C.G.A. § 16-3-24.2 was not a final appealable order, the criminal matter was still pending below, and no other reason under O.C.G.A. § 5-6-34 was presented allowing an appeal from the same, the defendant's appeal was dismissed. Crane v. State, 281 Ga. 635 , 641 S.E.2d 795 (2007).
Cited in Smith v. State, 309 Ga. App. 241 , 709 S.E.2d 823 (2011).
16-3-25. Entrapment.
A person is not guilty of a crime if, by entrapment, his conduct is induced or solicited by a government officer or employee, or agent of either, for the purpose of obtaining evidence to be used in prosecuting the person for commission of the crime. Entrapment exists where the idea and intention of the commission of the crime originated with a government officer or employee, or with an agent of either, and he, by undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer.
(Code 1933, § 26-905, enacted by Ga. L. 1968, p. 1249, § 1.)
Law reviews. - For note, "Notice Requirements and the Entrapment Defense Under the Georgia Administrative Procedure Act" in light of Schaffer v. State Bd. of Veterinary Medicine, 143 Ga. App. 68 , 237 S.E.2d 510 (1977), see 30 Mercer L. Rev. 347 (1978).
JUDICIAL DECISIONS
ANALYSIS
- General Consideration
- What Constitutes Entrapment
- Conduct of State Agents
- Informants
- Burden of Proof
- Jury Charge
- Application
General Consideration
Function of law enforcement is prevention, not manufacture, of crime. Thornton v. State, 139 Ga. App. 483 , 228 S.E.2d 919 (1976).
Entrapment occurs when criminal conduct is product of creative activity of law enforcement officials. Brown v. State, 132 Ga. App. 399 , 208 S.E.2d 183 (1974).
Entrapment exists where idea and intention to commit act originate with police officer, who, by undue persuasion and deceitful means, induces defendant to violate the law. Howell v. State, 157 Ga. App. 451 , 278 S.E.2d 43 (1981).
Entrapment defense does not rest on constitutional grounds. State v. Royal, 247 Ga. 309 , 275 S.E.2d 646 (1981).
Elements. - Entrapment defense consists of three distinct elements: (1) the idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent's undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime. Keaton v. State, 253 Ga. 70 , 316 S.E.2d 452 (1984); Hill v. State, 261 Ga. 377 , 405 S.E.2d 258 (1991); Gilbert v. State, 212 Ga. App. 308 , 441 S.E.2d 785 (1994).
Predisposition is key element. - Under the majority view (which is followed in Georgia), the predisposition of the defendant toward crime is the key element of the defense of entrapment. Keaton v. State, 253 Ga. 70 , 316 S.E.2d 452 (1984).
Expert testimony on predisposition excluded. - Trial court did not abuse the court's discretion in ruling that whether the defendant would have committed the crime charged absent the inducement of law enforcement officers was a question for the jury without the assistance of expert opinion evidence because expert testimony that a defendant does not have the psychological characteristics of a person who is predisposed to having sexual contact with under-aged children invades the province of the jury as to the ultimate issue. Lopez v. State, 326 Ga. App. 770 , 757 S.E.2d 436 (2014).
Focus of entrapment defense is intent or predisposition of defendant to commit crime. Johnson v. State, 147 Ga. App. 92 , 248 S.E.2d 168 (1978); Bennett v. State, 158 Ga. App. 421 , 280 S.E.2d 429 (1981).
Entrapment defense focuses on defendant's intent and predisposition as well as upon conduct of government's agents. Griffin v. State, 154 Ga. App. 261 , 267 S.E.2d 867 (1980).
Effect of rebuttal by state. - To the extent that the defendant, who met with an undercover officer who wanted to buy marijuana, raised an entrapment defense, the state rebutted that defense; while the idea for the drug deal originated with state agents, the state's evidence rebutted any claims by the defendant that the defendant was induced by undue persuasion and that the defendant was not predisposed to commit the crime. Davis v. State, 285 Ga. App. 460 , 646 S.E.2d 342 (2007).
Furnishing opportunity to predisposed defendant not entrapment. - Entrapment does not exist where an accused who is ready to commit an offense is merely furnished an opportunity to do so. Pennyman v. State, 175 Ga. App. 405 , 333 S.E.2d 659 (1985).
"Undue persuasion." - Because the phrase "undue persuasion" is used in context with "incitement or deceitful means," it must mean something more than repeated requests for contraband drugs knowingly owned and possessed by one who at first demurs to the disposition of one's drugs. McQueen v. State, 185 Ga. App. 485 , 364 S.E.2d 617 (1988); Gooch v. State, 188 Ga. App. 196 , 372 S.E.2d 473 (1988); Wright v. State, 191 Ga. App. 392 , 381 S.E.2d 601 (1989).
Entrapment is not a rationale for suppressing evidence but an affirmative defense to a criminal prosecution. State v. Baker, 216 Ga. App. 66 , 453 S.E.2d 115 (1995).
Defense of entrapment necessarily assumes that act charged was committed. Gregoroff v. State, 248 Ga. 667 , 285 S.E.2d 537 (1982).
In asserting defense of entrapment, defendant admits other elements of crime. Garrett v. State, 133 Ga. App. 564 , 211 S.E.2d 584 (1974); Gregoroff v. State, 248 Ga. 667 , 285 S.E.2d 537 (1982).
Normally a defendant must admit the commission of the crime in order to raise the defense of entrapment. Lawrence v. State, 174 Ga. App. 788 , 331 S.E.2d 600 (1985).
Asserting both entrapment and denial of acts constituting offense is illogical. - It is illogical and impermissible for defendant to deny that defendant committed acts constituting crime and to simultaneously complain that defendant has been entrapped by improper governmental conduct into committing the acts. Gregoroff v. State, 248 Ga. 667 , 285 S.E.2d 537 (1982).
Exception to rule that criminal defendant may interpose inconsistent defenses. - Rule that defendant must admit commission of crime in order to raise defense of entrapment is viewed as an exception to general rule that accused is permitted to interpose inconsistent defenses in criminal case. Gregoroff v. State, 248 Ga. 667 , 285 S.E.2d 537 (1982).
Exception to rule that accused must admit crime in order to rely on defense of entrapment has been recognized where state, rather than defendant, injects evidence of entrapment into case and defendant offers no evidence of entrapment which contradicts defendant's primary defense that defendant did not commit crime charged. Gregoroff v. State, 248 Ga. 667 , 285 S.E.2d 537 (1982).
Use of defendant's common-law spouse as an informant was not "entrapment per se." White v. State, 244 Ga. App. 475 , 536 S.E.2d 180 (2000).
Defense of entrapment requires that defendant admit elements of offense, but affirmatively plead legal justification. Cowart v. State, 136 Ga. App. 528 , 221 S.E.2d 649 (1975), aff'd, 237 Ga. 282 , 227 S.E.2d 248 , overruled on other grounds, 137 Ga. App. 735 , 224 S.E.2d 856 (1976).
In asserting an entrapment defense, accused admits commission of offense while denying that accused was inclined to commit offense before intervention of law enforcement agent. Garrett v. State, 133 Ga. App. 564 , 211 S.E.2d 584 (1974); Brooks v. State, 141 Ga. App. 725 , 234 S.E.2d 541 (1977).
In order to raise defense of entrapment, defendant must admit commission of crime, but that defendant did so because of unlawful solicitation or inducement of law enforcement agent. Griffin v. State, 154 Ga. App. 261 , 267 S.E.2d 867 (1980).
Assertion of defense of entrapment requires party to admit commission of offense charged in indictment. McDonald v. State, 156 Ga. App. 143 , 273 S.E.2d 881 (1980).
Jury issue. - Because concept of entrapment involves predisposition of accused, issue is generally for jury determination. State v. Royal, 247 Ga. 309 , 275 S.E.2d 646 (1981).
Issue of entrapment cannot be presented to jury if accused denies guilt. Mafnas v. State, 149 Ga. App. 286 , 254 S.E.2d 409 (1979), overruled on other grounds, Davenport v. State, 289 Ga. 399 , 711 S.E.2d 699 (2011); Griffin v. State, 154 Ga. App. 261 , 267 S.E.2d 867 (1980).
Evidence raised entrapment defense and prompted jury charge. - When the evidence included testimony of informant and agent as well as taped conversations between them and the defendant, and this evidence sufficiently indicated the defendant's predisposition to consummate the crime, the evidence raised the defense of entrapment, necessitating a jury charge on the matter, but it did not demand a finding of entrapment. Norley v. State, 170 Ga. App. 249 , 316 S.E.2d 808 (1984).
Cited in Foskey v. State, 125 Ga. App. 672 , 188 S.E.2d 825 (1972); Johnson v. State, 128 Ga. App. 69 , 195 S.E.2d 676 (1973); Bennett v. State, 130 Ga. App. 510 , 203 S.E.2d 755 (1973); Zinn v. State, 134 Ga. App. 51 , 213 S.E.2d 156 (1975); Rucker v. State, 135 Ga. App. 468 , 218 S.E.2d 146 (1975); Lentile v. State, 136 Ga. App. 611 , 222 S.E.2d 86 (1975); Tolbert v. State, 138 Ga. App. 724 , 227 S.E.2d 416 (1976); Philmore v. State, 142 Ga. App. 507 , 236 S.E.2d 180 (1977); Schaffer v. State Bd. of Veterinary Medicine, 143 Ga. App. 68 , 237 S.E.2d 510 (1977); Smith v. State, 239 Ga. 477 , 238 S.E.2d 116 (1977); Bowman v. State, 144 Ga. App. 681 , 242 S.E.2d 480 (1978); Glover v. State, 145 Ga. App. 15 , 243 S.E.2d 296 (1978); White v. State, 146 Ga. App. 810 , 247 S.E.2d 536 (1978); Jones v. State, 154 Ga. App. 21 , 267 S.E.2d 323 (1980); Causey v. State, 154 Ga. App. 76 , 267 S.E.2d 475 (1980); Ray v. State, 157 Ga. App. 519 , 277 S.E.2d 804 (1981); Campbell v. State, 160 Ga. App. 561 , 287 S.E.2d 591 (1981); Spruell v. Jarvis, 654 F.2d 1090 (5th Cir. 1981); Thurmond v. State, 161 Ga. App. 602 , 288 S.E.2d 780 (1982); Ellis v. State, 164 Ga. App. 366 , 296 S.E.2d 726 (1982); Noles v. State, 164 Ga. App. 191 , 296 S.E.2d 768 (1982); Palmer v. State, 250 Ga. 219 , 297 S.E.2d 22 (1982); Rivers v. State, 250 Ga. 288 , 298 S.E.2d 10 (1982); Frazer v. State, 165 Ga. App. 331 , 299 S.E.2d 104 (1983); Verble v. State, 172 Ga. App. 321 , 323 S.E.2d 239 (1984); Tucker v. State, 182 Ga. App. 559 , 356 S.E.2d 559 (1987); Lawson v. State, 184 Ga. App. 204 , 361 S.E.2d 210 (1987); Pless v. State, 187 Ga. App. 772 , 371 S.E.2d 406 (1988); Edmondson v. State, 201 Ga. App. 566 , 411 S.E.2d 879 (1991); Wright v. State, 232 Ga. App. 104 , 501 S.E.2d 543 (1998); Mitchell v. State, 249 Ga. App. 520 , 548 S.E.2d 469 (2001); McClure v. State, 306 Ga. 856 , 834 S.E.2d 96 (2019).
What Constitutes Entrapment
When officer merely offers opportunity. - There is no entrapment when officer merely offers opportunity to one ready to commit offense. Hill v. State, 225 Ga. 117 , 166 S.E.2d 338 (1969); Thornton v. State, 139 Ga. App. 483 , 228 S.E.2d 919 (1976); Daniels v. State, 154 Ga. App. 323 , 268 S.E.2d 376 (1980); Johnson v. State, 246 Ga. 126 , 269 S.E.2d 18 (1980); Paras v. State, 247 Ga. 75 , 274 S.E.2d 451 (1981); Howell v. State, 157 Ga. App. 451 , 278 S.E.2d 43 (1981); Mason v. State, 194 Ga. App. 152 , 390 S.E.2d 246 (1990).
Defendant approaching officer and offering to commit crime. - It does not constitute entrapment when a defendant approaches a police officer or agent-informer with an offer to commit a crime, if that officer then plays a role in order to provide defendant with an opportunity to commit the intended offense. Howell v. State, 157 Ga. App. 451 , 278 S.E.2d 43 (1981); Smith v. State, 206 Ga. App. 138 , 424 S.E.2d 371 (1992).
Evidence of defendant's disposition to use and sell drugs. - Entrapment defense unavailable when evidence reveals marked disposition of the defendant to use and sell contraband. Mafnas v. State, 149 Ga. App. 286 , 254 S.E.2d 409 (1979), overruled on other grounds, Davenport v. State, 289 Ga. 399 , 711 S.E.2d 699 (2011).
Ready compliance with officer's request to purchase contraband. - Absent other circumstances, it is generally held that where officer simply makes request, as to purchase contraband, and there is ready compliance, defense of entrapment is unavailable. Thornton v. State, 139 Ga. App. 483 , 228 S.E.2d 919 (1976); Griffin v. State, 154 Ga. App. 261 , 267 S.E.2d 867 (1980).
Inducement by solicitation of one engaged in business of selling narcotics. - If at time of solicitation for sale of narcotics defendant was engaged in business of selling and possessing narcotics, it is no defense for defendant that defendant was merely induced by solicitation and misrepresentation to sell or possess such narcotics. Gibson v. State, 133 Ga. App. 68 , 209 S.E.2d 731 (1974).
Repeated requests by officer or agent for contraband goods does not constitute undue persuasion. Johnson v. State, 147 Ga. App. 92 , 248 S.E.2d 168 (1978); McDonald v. State, 156 Ga. App. 143 , 273 S.E.2d 881 (1980).
Meaning of "undue persuasion." - Phrase "undue persuasion," used in context with "deceitful means," means something more than requests to purchase. Smith v. State, 141 Ga. App. 529 , 233 S.E.2d 841 , aff'd in part and rev'd in part, 239 Ga. 477 , 238 S.E.2d 116 (1977).
Because phrase "undue persuasion" is used in context with "incitement or deceitful means," it must mean something more than repeated requests for contraband drugs knowingly owned and possessed by one who at first demurs to disposition of one's drugs. Bennett v. State, 158 Ga. App. 421 , 280 S.E.2d 429 (1981); Martin v. State, 175 Ga. App. 704 , 334 S.E.2d 32 (1985).
Phrase "undue persuasion" is something more than repeated requests for contraband goods. Murrell v. State, 166 Ga. App. 526 , 304 S.E.2d 408 (1983); Evans v. State, 209 Ga. App. 340 , 433 S.E.2d 426 (1993).
Repeated requests and offers of money do not establish entrapment as a matter of law. Paras v. State, 247 Ga. 75 , 274 S.E.2d 451 (1981).
Smile of police officer is insufficient to constitute lure, incitement, or persuasion to commit crime of kidnapping. Brown v. State, 132 Ga. App. 399 , 208 S.E.2d 183 (1974).
Government agent giving drugs to defendant with instructions to sell them. - Unopposed testimony that government agent gave defendant drugs with instructions to sell them to two men who also were concealed agents under guise of helping former to trap criminals cannot support conviction. Thornton v. State, 139 Ga. App. 483 , 228 S.E.2d 919 (1976).
Evidence not sufficient. - State's evidence showing only that agent offered defendant the opportunity to commit the offense could not reasonably be said to raise the issue of entrapment as a defense. Diana v. State, 164 Ga. App. 779 , 298 S.E.2d 281 (1982).
In prosecution for escape from lawful confinement, when the defendant failed to present any evidence that inmate who was allegedly encouraged by prison employees to entice defendant to escape was a government officer or employee, or an agent thereof, the trial court did not err in refusing to charge on the defense of entrapment. Johns v. State, 164 Ga. App. 133 , 296 S.E.2d 638 (1982).
That police agent met defendant through an informant, denied being a police officer and shared beer with defendant to engender defendant's trust were not circumstances which, either alone or in conjunction with the agent's request for drugs, were sufficient to give rise to an entrapment defense. Adams v. State, 207 Ga. App. 119 , 427 S.E.2d 90 (1993).
After the defendant gave a statement to the police admitting that the defendant intended to purchase cocaine from an undercover detective, and the detective's testimony showed the defendant's predisposition to commit the crime and willing participation in the crime, the evidence did not demand a finding of entrapment. Cody v. State, 222 Ga. App. 468 , 474 S.E.2d 669 (1996).
In a defendant's prosecution on drug charges, entrapment was not established under O.C.G.A. § 16-3-25 because while a confidential informant (CI) initiated contact with the defendant, there was no evidence that the CI used undue persuasion to induce the defendant to commit a crime that the defendant was not predisposed to commit; the CI was not aware of the defendant's financial problems, and the defendant initiated contact with the CI on at least one occasion and talked with the CI on several occasions. Robinson v. State, 296 Ga. App. 561 , 675 S.E.2d 298 (2009).
Conduct of State Agents
Reasonable person standard applies. - State agent's conduct is to be viewed objectively, and evaluated by the jury in light of the standard of conduct exercised by reasonable persons generally. Keaton v. State, 253 Ga. 70 , 316 S.E.2d 452 (1984).
Subjective state of mind irrelevant. - While proof of a defendant's "innocent" state of mind (i.e., nonpredisposition) is essential to maintenance of a successful entrapment defense, the state agent's subjective state of mind is irrelevant to the determination of whether the crime was induced by "undue persuasion, incitement, or deceitful means." Keaton v. State, 253 Ga. 70 , 316 S.E.2d 452 (1984).
Portion of instruction which read "If an officer acts in good faith in the honest belief that the defendant is engaged in unlawful conduct of which the offense charged is a part, and the purpose of the officer is not to induce an innocent man to commit a crime, but to secure evidence upon which a guilty man can be brought to justice, the defense of entrapment is without merit" was erroneous and required reversal of defendant's conviction. Keaton v. State, 253 Ga. 70 , 316 S.E.2d 452 (1984).
Informants
Informer need not be a paid informer to fulfill agency role. Leonardi v. State, 154 Ga. App. 402 , 268 S.E.2d 380 (1980).
Discussion of disclosure of identity of confidential informant. - See State v. Royal, 247 Ga. 309 , 275 S.E.2d 646 (1981).
Time to move for disclosure of informant's identity. - Defendant raising entrapment as a defense may not wait until case is over to make proper motion for disclosure of identity of informant in absence of some justification for delay. State v. Royal, 247 Ga. 309 , 275 S.E.2d 646 (1981).
Officer's testimony denying entrapment is insufficient where alleged entrapment was by informer outside officer's presence. Hughes v. State, 152 Ga. App. 80 , 262 S.E.2d 245 (1979).
Motion to compel informant's testimony at trial. - Defendant's motion to compel the state to produce the informant to testify at trial was improperly denied because the informant's testimony was material to the defendant's entrapment defense as the informant was the only source of evidence about it other than the defendant; the informant testified in camera, absent the defendant and defense counsel, that the informant brought up the subject of drug sales in the first place, and that the informant threatened to work the defendant for $5 a day if the sellers did not show up; and the defendant had no opportunity to question the informant about the informant's partiality as it might affect the informant's testimony about whether the informant coerced the defendant into setting up the deal. Hampton v. State, 338 Ga. App. 864 , 792 S.E.2d 124 (2016).
Testimony not required. - Rule that the state's failure to produce a confidential informant to rebut a defendant's entrapment testimony requires a directed verdict of acquittal did not apply where an undercover investigator testified that the informant had nothing to do with setting up the sale of the pound of cocaine, and in fact did not know it was going on. Armand v. State, 164 Ga. App. 350 , 296 S.E.2d 734 (1982).
When the state produces rebuttal to testimony of party arguing entrapment, informer need not testify. Chambers v. State, 154 Ga. App. 620 , 269 S.E.2d 42 (1980).
Burden of Proof
When evidence raises defense of entrapment, state must come forward with contrary proof. - When evidence of defendant raises defense of entrapment and is uncontested or not rebutted by state, conviction cannot be upheld as state has duty to come forward with contrary proof. Hall v. State, 136 Ga. App. 622 , 222 S.E.2d 140 (1975); Seabrooks v. State, 164 Ga. App. 747 , 297 S.E.2d 745 (1982), aff'd, 251 Ga. 564 , 308 S.E.2d 160 (1983).
When the defendant raised the defense of entrapment, contending that the defendant had been intimidated by the informant, who allegedly had a reputation for violent behavior, the trial court did not err in permitting the Georgia Bureau of Investigation agent to testify in rebuttal of the defendant's allegations regarding threats and intimidation. The state has the burden of presenting evidence in rebuttal of testimony offered in support of an affirmative defense. Meade v. State, 165 Ga. App. 556 , 301 S.E.2d 912 (1983).
Defendants were entitled to a directed verdict of acquittal, where the state neither offered evidence to rebut defendants' testimony that they were entrapped, nor offered evidence showing their disposition to commit the drug possession charges with which they were charged. Emanuel v. State, 260 Ga. 425 , 396 S.E.2d 225 (1990).
Distinction between evidence raising defense of entrapment and evidence which demands finding of entrapment. - Distinction must be made between evidence raising defense of entrapment and requiring that jury be charged as to law of entrapment and burden of proof thereon, and evidence which, would demand a finding of entrapment and, therefore, a directed verdict of acquittal. Childs v. State, 158 Ga. App. 376 , 280 S.E.2d 401 (1981).
Proof beyond reasonable doubt that entrapment did not exist. - When evidence in criminal case warrants charge on law of entrapment, failure of trial judge to charge in conjunction with its instruction on that subject that prosecution must carry burden to prove beyond reasonable doubt that such entrapment did not exist constitutes reversible error. Reed v. State, 130 Ga. App. 659 , 204 S.E.2d 335 (1974).
After a defendant presents a prima facie case of entrapment, the burden is on the state to disprove entrapment beyond a reasonable doubt. Hill v. State, 261 Ga. 377 , 405 S.E.2d 258 (1991).
Rebuttal evidence. - The state was not required to present rebuttal evidence demonstrating that defendant was not entrapped where sufficient evidence was presented by the state in its case-in-chief. Hudson v. State, 184 Ga. App. 245 , 361 S.E.2d 240 (1987).
In prosecution for selling cocaine, even though defendant's testimony provided evidence of entrapment, the state was not required to call a particular witness in rebuttal since the evidence in the case did not demand a finding of entrapment and, therefore, a directed verdict of acquittal. Finley v. State, 214 Ga. App. 452 , 448 S.E.2d 78 (1994).
State rebuttal not needed where mere theory presented. - Defendant's presentation of only a theory of entrapment, without a factual showing that a government agent had induced action, did not necessitate that the state present rebuttal evidence to avoid a directed verdict of acquittal. Simmons v. State, 208 Ga. App. 721 , 431 S.E.2d 721 (1993).
State's rebuttal must show predisposition of accused. - After defendant presents a prima facie case that defendant was induced to commit an offense charged in the indictment, burden is upon government to prove beyond a reasonable doubt that accused was predisposed to commit the offense - i.e., that defendant was ready and willing without persuasion and awaiting a propitious opportunity to commit the crime. Griffin v. State, 154 Ga. App. 261 , 267 S.E.2d 867 (1980).
Defendant's testimony, corroborated by a paid informant, established a prima facie case of entrapment. There was no evidence introduced that, prior to the defendant's entrapment, the defendant had a predisposition to deliver, sell, distribute, or knowingly possess cocaine as forbidden by O.C.G.A. § 16-13-30(b) . As the state failed to introduce evidence to rebut the affirmative defense of entrapment, the defendant was entitled to a directed verdict of acquittal. Hill v. State, 261 Ga. 377 , 405 S.E.2d 258 (1991).
Trial court did not err in refusing the defendant's request to disclose the identity of a confidential informant in order to support an entrapment defense, as the defendant was unable to present an arguably persuasive case regarding the lack of a predisposition to commit the crime, based specifically on: (1) a discussion with a detective about the impending drug sale; (2) the defendant's act of displaying a weapon considered to be protection against a robbery; and (3) the defendant's act of coordinating the movements of the numerous participants in the large-scale transaction the defendant was a part of. Griffiths v. State, 283 Ga. App. 176 , 641 S.E.2d 169 (2006).
Jury Charge
Evidence raised entrapment defense and prompted jury charge. - When the evidence included testimony of an informant and agent as well as taped conversations between them and the defendant, and this evidence sufficiently indicated the defendant's predisposition to consummate the crime, the evidence raised the defense of entrapment, necessitating a jury charge on the matter, but the evidence did not demand a finding of entrapment. Norley v. State, 170 Ga. App. 249 , 316 S.E.2d 808 (1984).
Instruction on entrapment properly refused absent supporting evidence. - It is not error for the court to refuse to give instruction on entrapment where the uncontradicted testimony of the undercover officer shows that the officer did not induce or solicit appellant to commit the crime. Lester v. State, 174 Ga. App. 886 , 332 S.E.2d 31 (1985).
In a prosecution for trafficking in cocaine, the trial court did not err in refusing to instruct the jury on the affirmative defense of entrapment, as: (1) sufficient evidence was presented that the defendant voluntarily committed the offense upon being given the opportunity to do so; and (2) no evidence was presented to show that the informant employed undue persuasion, incitement or deceit to induce the defendant into selling drugs; thus, the defendant's claim of ineffective assistance of counsel for failing to present evidence to support an entrapment defense was rejected and did not warrant a new trial. Campbell v. State, 281 Ga. App. 503 , 636 S.E.2d 687 (2006).
State's uncontradicted evidence showed that the idea to sell cocaine to an informant originated with the defendant, and the defendant was predisposed to commit the crime without any undue persuasion, incitement, or deceit by the state, and therefore supported the trial court's refusal to charge the jury on the defense of entrapment. Lightsey v. State, 289 Ga. App. 181 , 656 S.E.2d 852 (2008).
Trial court did not err in failing to charge the jury on entrapment because there was no evidence that a deputy's undue persuasion, incitement, or deceit induced the defendant to sell cocaine or that the defendant was not predisposed to commit the crime. Quarterman v. State, 305 Ga. App. 686 , 700 S.E.2d 674 (2010).
Charging jury in language of law. - Charge on entrapment substantially in language of O.C.G.A. § 16-3-25 was not inadequate by reason of omission of words "or solicited" following "induced." Wallace v. State, 162 Ga. App. 367 , 291 S.E.2d 437 (1982).
Trial court did not err in instructing the jury on the defense of entrapment as the charge given: (1) was part of the standard instructions on the element of knowledge; (2) sufficiently advised the jury that the state bore the burden of proving beyond a reasonable doubt that the defendant was not entrapped; and (3) was legally correct and did not mislead a jury. Griffiths v. State, 283 Ga. App. 176 , 641 S.E.2d 169 (2006).
Instruction on definition of incitement in context of entrapment. - Counsel's failure to object to the denial of counsel's request to instruct a jury on the definition of "incitement" in the context of an entrapment instruction was not ineffective assistance because "incitement," as used in O.C.G.A. § 16-3-25 , was a term of common knowledge. Millsaps v. State, 310 Ga. App. 769 , 714 S.E.2d 661 (2011).
When charge must cover entrapment. - In prosecution for sale of controlled substances, where there was no evidence of any predisposition on part of defendant to deal in drugs, defendant testified that state's informant created criminal design by undue persuasion, incitement, and deceitful means, and entrapment was sole defense relied upon by defendant, trial court erred in failing to charge on entrapment. Johnson v. State, 147 Ga. App. 92 , 248 S.E.2d 168 (1978).
Court's failure to charge on entrapment is not reversible error where the defendant rests without presenting any evidence, and the first criterion, that the state inject evidence of entrapment, has not been satisfied, since the uncontradicted testimony of the undercover officer showed that the officer did not induce or solicit defendant to commit the crime. Menefield v. State, 165 Ga. App. 545 , 301 S.E.2d 902 (1983).
No need to charge jury specifically that state must prove predisposition. - Jury charge on entrapment which did not specifically direct that the state had to prove predisposition beyond a reasonable doubt was sufficient because it is not necessary to charge on the state's burden of proof individually with regard to every element of a disputed matter. Norley v. State, 170 Ga. App. 249 , 316 S.E.2d 808 (1984).
Charge placing burden of proving entrapment upon defendant is erroneous. Thornton v. State, 139 Ga. App. 483 , 228 S.E.2d 919 (1976).
Instruction which may confuse jury as to burden of proof is erroneous. - When trial court properly instructed jury as to substantive law of entrapment and then charged jury as to burden of proof generally in criminal prosecution, the charge was both insufficient and prejudicial to defendant, for while it may not shift burden of proof to defendant, it is capable of confusing the jury. Reed v. State, 130 Ga. App. 659 , 204 S.E.2d 335 (1974).
Charge which adequately covers burden of proof as to offense generally is sufficient. - When charge of court includes instruction as to entrapment but places burden of proof as to each essential element of crime, including intent, upon state beyond a reasonable doubt, it is not error for court not to instruct the jury specifically, absent request, as to any burden of proof regarding entrapment. McDonald v. State, 156 Ga. App. 143 , 273 S.E.2d 881 (1980).
Trial court's jury charge on entrapment, which included statements that repeated requests by an officer or agent for contraband goods did not constitute undue persuasion and that entrapment was seduction or improper inducement to commit a crime and was not merely testing by trap, trickiness, or deceit of one who was suspected, was proper. Manders v. State, 280 Ga. App. 742 , 634 S.E.2d 773 (2006).
Pattern jury charge fully and accurately charged the jury on the state's burden when the defense of entrapment was raised and the trial court properly refused to give a requested charge that the state must prove that defendant "was disposed to commit the criminal act prior to first being approached by agents of the state." Haralson v. State, 223 Ga. App. 787 , 479 S.E.2d 115 (1996).
Word "criminal" is inappropriate in an entrapment charge (i.e., it is not entrapment where the officers merely furnish an opportunity to a criminal who is ready and willing to commit an offense). However, the charge is not incorrect as a matter of law. Epps v. State, 168 Ga. App. 79 , 308 S.E.2d 234 (1983).
Trial court properly declined to instruct the jury on entrapment under O.C.G.A. § 16-3-25 in defendant's trial for trafficking in cocaine because although defendant claimed to only be arranging for a meeting between a police informant and a supplier because defendant was interested in a relationship with the informant, and did not know the supplier would bring cocaine to the meeting, and the idea for the crime did originate with the state agent, there was no evidence presented by the state of the other two elements, undue persuasion, incitement or deceit, or that defendant was not predisposed to commit the crime. St. Jean v. State, 255 Ga. App. 129 , 564 S.E.2d 534 (2002).
Application
Suspected person may be tested by being offered opportunity to transgress in such manner as is usual therein, but may not be put under extraordinary temptation or inducement. Webb v. State, 136 Ga. App. 90 , 220 S.E.2d 27 (1975).
One suspected of being systematically guilty of a certain type of offense may be trapped. - When officers suspect a person of being systematically guilty of a certain type of offense, such as selling illegal liquor, setting of a trap by proposing to such person that the person sell to a decoy is not generally considered entrapment in the sense that it may be used as a legal defense for the reason that part of the law enforcement process involves apprehension and removal of known criminals. A different situation is presented when a person is persuaded into committing a crime in the first instance. Brown v. State, 132 Ga. App. 399 , 208 S.E.2d 183 (1974).
Discovery of crime and procurement of evidence by deception are not prohibited. Entrapment is seduction or improper inducement to commit crime and not testing by trap, trickiness, or deceit of one suspected. Thomas v. State, 134 Ga. App. 18 , 213 S.E.2d 129 (1975).
When entrapment is apparent, there can be no conviction absent contradictory testimony. - When it appears that entire plan and design of offense originates with government, and is effectuated by undue persuasion or deceitful means, there can be no conviction absent contradictory testimony. Thornton v. State, 139 Ga. App. 483 , 228 S.E.2d 919 (1976).
In absence of some evidence by state directly contradicting testimony of defendant that defendant was induced by informer to make the sales on behalf of the state, defendant is entitled to judgment of acquittal. Hughes v. State, 152 Ga. App. 80 , 262 S.E.2d 245 (1979).
State's character evidence in rebuttal improperly admitted. - Trial court erred in admitting evidence of a prior conviction and the defendant's involvement in other drug deals as the defendant offered no evidence in support of an entrapment defense and the state had no basis on which to admit the character evidence; however, the denial of the defendant's motion for mistrial was not an abuse of discretion in light of the overwhelming evidence of the defendant's guilt and a detailed curative instruction advising the jury not to consider the improperly-admitted character evidence. Nettles v. State, 276 Ga. App. 259 , 623 S.E.2d 140 (2005).
Evidence sufficient to raise defense. - Defendant's testimony that defendant was unduly persuaded by an informant to sell marijuana, along with evidence of defendant's predisposition to sell marijuana limited to defendant's possession of the drug at the time of the sale, was sufficient to raise an entrapment defense, although the evidence did not demand a finding that defendant was entrapped. Hattaway v. State, 185 Ga. App. 607 , 365 S.E.2d 480 (1988).
When defendant admitted to using amphetamines and that defendant agreed to deliver a small amount to a female acquaintance after she importuned defendant 15 times in three days to obtain the drug for her, there was evidence that the police used but one female confidential informant in the investigation, and that she had spoken with defendant moments before defendant was arrested, these circumstances authorized the inference that the female acquaintance was the informant who telephoned defendant just before defendant was arrested and her actions were sufficient to make her the agent of the state for purposes of establishing a prima facie case of entrapment. State v. Jackson, 188 Ga. App. 259 , 372 S.E.2d 823 (1988); Boatright v. State, 260 Ga. 534 , 397 S.E.2d 689 (1990); Williams v. State, 205 Ga. App. 397 , 422 S.E.2d 438 (1992); Gilbert v. State, 212 Ga. App. 308 , 441 S.E.2d 785 (1994); Rutledge v. State, 218 Ga. App. 130 , 460 S.E.2d 551 (1995).
In a prosecution for solicitation of sodomy and solicitation of sexual intercourse for money, defendant's solicitation of a police officer, by handing the officer a business card, precluded a claim that the crime originated with the police. Busener v. State, 188 Ga. App. 392 , 373 S.E.2d 81 (1988).
Defendant's testimony that undercover agents approached defendant rather than vice versa did not establish an entrapment defense, where defendant effectively admitted that defendant was ready and willing to cooperate with the agents in order to obtain drugs for defendant's own use. Wyatt v. State, 194 Ga. App. 159 , 390 S.E.2d 85 (1990).
Defendant was denied a meaningful opportunity to be heard and present an alibi defense where the court did not allow defendant to explore what the confidential informant said to persuade defendant to procure cocaine, defendant's relationship with the informant, or defendant's motive for participating in the transaction. Brooks v. State, 224 Ga. App. 829 , 482 S.E.2d 725 (1997).
Defendant was entitled to an instruction on entrapment where evidence showed that the state, with knowledge that defendant was a cocaine addict who was trying to stay free of drugs, employed an informant who not only enticed defendant into procuring cocaine for an undercover agent but also into returning to the habit of use, and where entrapment was defendant's sole defense. Wagner v. State, 220 Ga. App. 71 , 467 S.E.2d 385 (1996).
Defendant's unrebutted testimony regarding entrapment does not necessarily require directed verdict of acquittal. - Lack of conflict in evidence is only one criteria in O.C.G.A. § 17-9-1 . Thus, defendant's testimony as to entrapment, even if unrebutted by any other witness to alleged misconduct, will not entitle defendant to directed verdict of acquittal unless unrebutted testimony, together with all reasonable deductions and inferences therefrom, demands finding that entrapment occurred. State v. Royal, 247 Ga. 309 , 275 S.E.2d 646 (1981); Houston v. State, 175 Ga. App. 881 , 334 S.E.2d 907 (1985); Worley v. State, 185 Ga. App. 528 , 364 S.E.2d 897 (1988); Rapier v. State, 245 Ga. App. 211 , 535 S.E.2d 860 (2000).
For treatment of entrapment as affirmative defense. - See State v. McNeill, 234 Ga. 696 , 217 S.E.2d 281 (1975); Webb v. State, 136 Ga. App. 90 , 220 S.E.2d 27 (1975).
When police engage in illegal activity in concert with defendant. - If police engage in illegal activity in concert with defendant beyond scope of their duties, remedy lies not in freeing equally culpable defendant, but in prosecuting police under applicable provisions of state or federal law. Griffin v. State, 154 Ga. App. 261 , 267 S.E.2d 867 (1980).
When testimony shows only that agent asked defendant to procure cocaine for the agent, but there is no evidence that the agent induced or solicited defendant to commit the crime charged by undue persuasion, incitement, or deceitful means, defendant could not utilize an entrapment defense. Harold v. State, 185 Ga. App. 481 , 364 S.E.2d 615 (1988).
Defendant not entrapped to traffic methamphetamine. - Although the idea for the commission of the crime unquestionably originated with the state actors, the police and a confidential informant did not use undue persuasion, coercion, or deceit, and the defendant was predisposed to commit the crime of trafficking in methamphetamine; therefore, no entrapment was shown. Graves v. State, 274 Ga. App. 855 , 619 S.E.2d 356 (2005).
Evidence rebutted entrapment defense in sale of cocaine conviction. - Trial court did not err in convicting the defendant of the sale of cocaine and in denying the defendant's motion for a directed verdict of acquittal because the jury was authorized to find that the state's evidence rebutted the defendant's case of entrapment beyond a reasonable doubt since the uncontroverted testimony of the informant and the surveillance recording showed that the defendant had the previously established ability to purchase cocaine from the drug dealer and that the defendant willingly participated in the drug deal; there is no entrapment where the informant merely furnishes an opportunity to a defendant who is ready to commit the offense. Jackson v. State, 305 Ga. App. 591 , 699 S.E.2d 884 (2010).
Evidence insufficient to grant directed verdict for defendant. - Evidence did not authorize the granting of a directed verdict since, other than defendant's own uncorroborated testimony, defendant offered no evidence whatsoever in refutation of that presented by the prosecution and the entrapment defense which defendant attempted to raise was likewise unsupported by any evidence other than defendant's own testimony that the informant had a reputation for violence, that the informant had uttered a threat during appellant's negotiations with the Georgia Bureau of Investigation agent, and that defendant had assumed that a bulge allegedly observed beneath the agent's clothing was a gun; and the testimony of the agent, who was present during all stages of the transaction, was sufficient to rebut the defense of entrapment and to create an issue of fact for the jury. Meade v. State, 165 Ga. App. 556 , 301 S.E.2d 912 (1983).
Defendant's testimony that informant begged defendant to find the informant some crack, and that defendant was led to believe that sex would be received, in addition to money, for providing the crack was insufficient to support defendant's defense of entrapment. Farrow v. State, 222 Ga. App. 689 , 475 S.E.2d 706 (1996).
Evidence supported defendant's conviction for attempted prostitution when the record showed that defendant worked for "escort services" listed under "massage parlors" in the telephone directory and a witness testified "the lady put a condom on me and put her mouth on my penis" while charging the witness about $300 therefor. Renz v. State, 183 Ga. App. 108 , 357 S.E.2d 843 (1987).
Evidence was sufficient to sustain defendant's conviction for criminal attempt to kidnap, since the victim was grabbed and restrained against the victim's will and there was evidence from which the jury could find that the defendant intended to take the victim away in the defendant's truck and was thwarted only by the victim's resistance. McGinnis v. State, 183 Ga. App. 17 , 358 S.E.2d 269 (1987).
Attorney disciplinary proceeding. - Entrapment defense generally is not available in an attorney disciplinary proceeding; overruling Schaffer v. State Bd. of Veterinary Medicine, 143 Ga. App. 68 , 237 S.E.2d 510 (1977). In re Kennedy, 266 Ga. 249 , 466 S.E.2d 1 (1996), overruled on other grounds, In re Henley, 271 Ga. 21 , 518 S.E.2d 418 (1999).
OPINIONS OF THE ATTORNEY GENERAL
Legislative intent. - General Assembly intended former Code 1933, § 26-905 to be merely a codification of existing law regarding entrapment. 1969 Op. Att'y Gen. No. 69-430.
Necessity of undue persuasion. - Purchase of liquor by agent of Department of Revenue from one suspected of selling it illegally, where that purchase does not involve undue persuasion, does not constitute entrapment. 1969 Op. Att'y Gen. No. 69-430.
RESEARCH REFERENCES
Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, § 197 et seq.
Entrapment to Commit Narcotics Offense, 12 POF2d 237.
C.J.S. - 22 C.J.S., Criminal Law: Substantive Principles, § 60 et seq.
ALR. - Entrapment to commit crime with view to prosecution therefor, 18 A.L.R. 146 .
Entrapment to commit offense with respect to gambling or lotteries, 31 A.L.R.2d 1212.
Entrapment to commit offense with respect to narcotics law, 33 A.L.R.2d 883.
Entrapment to commit offense against laws regulating sales of liquor, 55 A.L.R.2d 1322.
Entrapment to commit bribery or offer to bribe, 69 A.L.R.2d 1397.
Entrapment with respect to violation of fish and game laws, 75 A.L.R.2d 709.
Entrapment to commit offense against obscenity laws, 77 A.L.R.2d 792.
Larceny: entrapment or consent, 10 A.L.R.3d 1121.
Defense of entrapment in contempt proceedings, 41 A.L.R.3d 418.
Conviction of possession of illicit drugs found in premises of which defendant was in nonexclusive possession, 56 A.L.R.3d 948.
Admissibility of evidence of other offenses in rebuttal of defense of entrapment, 61 A.L.R.3d 293.
Entrapment as a defense in proceedings to revoke or suspend license to practice law or medicine, 61 A.L.R.3d 357.
Modern status of the law concerning entrapment to commit narcotics offense - state cases, 62 A.L.R.3d 110.
Availability in state court of defense of entrapment where accused denies committing acts which constitute offense charged, 5 A.L.R.4th 1128.
Adequacy of defense counsel's representation of criminal client regarding entrapment defense, 8 A.L.R.4th 1160.
Entrapment defense in sex offense prosecutions, 12 A.L.R.4th 413.
Entrapment to commit traffic offense, 34 A.L.R.4th 1167.
Burden of proof as to entrapment defense - state cases, 52 A.L.R.4th 775.
Maintainability of burglary charge, where entry into building is made with consent, 58 A.L.R.4th 335.
Entrapment as defense to charge of selling or supplying narcotics where government agents supplied narcotics to defendant and purchased them from him, 9 A.L.R.5th 464.
Right of criminal defendant to raise entrapment defense based on having dealt with other party who was entrapped, 15 A.L.R.5th 39.
Entrapment to commit federal crimes of terrorism, 89 A.L.R. Fed. 2d 215.
16-3-26. Coercion.
A person is not guilty of a crime, except murder, if the act upon which the supposed criminal liability is based is performed under such coercion that the person reasonably believes that performing the act is the only way to prevent his imminent death or great bodily injury.
(Laws 1833, Cobb's 1851 Digest, p. 780; Code 1863, § 4202; Code 1868, § 4238; Code 1873, § 4303; Code 1882, § 4303; Penal Code 1895, § 41; Penal Code 1910, § 41; Code 1933, § 26-402; Code 1933, § 26-906, enacted by Ga. L. 1968, p. 1249, § 1.)
JUDICIAL DECISIONS
Constitutionality. - Exclusion of murder from those crimes to which coercion is defense is constitutional, i.e., does not deny a defendant the right to equal protection of the law. Luther v. State, 255 Ga. 706 , 342 S.E.2d 316 (1986).
"Duress" as employed in civil law is not synonymous with "coercion," as employed in criminal law. McCoy v. State, 78 Ga. 490 , 3 S.E. 768 (1887); Montford v. State, 144 Ga. 582 , 87 S.E. 797 (1916).
Defendant relying on defense of coercion admits elements of offense but affirmatively pleads legal justification. Cowart v. State, 136 Ga. App. 528 , 221 S.E.2d 649 (1975), aff'd, 237 Ga. 282 , 227 S.E.2d 248 (1976), overruled on other grounds, 137 Ga. App. 735 , 224 S.E.2d 856 .
Coercion not a defense to murder. - Defense of coercion may not be raised by party to or actual perpetrator of murder. Thomas v. State, 246 Ga. 484 , 272 S.E.2d 68 (1980).
One cannot successfully defend murder charge on ground that one was coerced. Milton v. State, 248 Ga. 192 , 282 S.E.2d 90 (1981).
In an action in which the defendant alleged that the defendant was wrongfully threatened by a drug dealer that if the defendant did not fatally shoot a victim, then the dealer would harm the defendant and the defendant's family members, and accordingly, the defendant shot the victim and then hid the victim's body in a shallow grave until such time as the defendant confessed to the crime 10 years later, the trial court properly refused to instruct the jury on justification pursuant to O.C.G.A. § 16-3-20(6) , as the defendant's criminal acts were directed toward a non-aggressor victim and there was no evidence that the defendant or any family members were threatened with "imminent death or great bodily injury;" furthermore, a coercion defense under O.C.G.A. § 16-3-26 would not be applicable to a charge of murder. Gravitt v. State, 279 Ga. 33 , 608 S.E.2d 202 (2005).
Defendant's counsel was not ineffective in adopting a coercion defense, although coercion was no defense to murder pursuant to O.C.G.A. § 16-3-26 , because counsel was constrained by the defendant's statements to police that another forced the defendant to beat the victim at gunpoint. Moreover, the evidence of guilt was overwhelming, and the defendant offered no alternate theory of defense. Lambert v. State, 287 Ga. 774 , 700 S.E.2d 354 (2010).
Trial court did not err in not charging the jury on the omnibus justification defense based on any claim that the defendant was under an immediate threat because that defense, like coercion, was not a defense to the victim's murder. Allen v. State, 296 Ga. 785 , 770 S.E.2d 824 (2015).
Evidence was sufficient to convict the defendant of, inter alia, felony murder and to overcome the defense of coercion because the defendant kicked in the door of a trailer and entered; after the victim threw some tools at the defendant, the first co-defendant shot and killed the victim; and both accomplices testified that the first accomplice never threatened the defendant and never pointed a pistol at the defendant to get the defendant to participate in the crimes. Brooks v. State, 305 Ga. 600 , 826 S.E.2d 45 (2019).
Defense of coercion predicated on reasonable person standard. - Trial court did not err in determining that the proffered evidence from a psychiatrist that the defendant was susceptible to being led into crime by another person to a greater extent than most people was irrelevant because the defense of coercion was predicated on the reasonable person standard, not the subjective situation of the defendant. Allen v. State, 296 Ga. 785 , 770 S.E.2d 824 (2015).
Coercion defense was not available to defendant who never admitted participation. - In a joint trial wherein a defendant and two codefendants were convicted of armed robbery, the trial court did not err by failing to instruct the jury on one defendant's sole defense of coercion and duress because the defendant never filed a written request for a charge on coercion or duress and a review of the defendant's trial testimony showed that the defendant never admitted participating in the armed robbery, thus, the defense was not available to the defendant. Mathis v. State, Ga. App. , S.E.2d (May 20, 2009).
Defendant not entitled to jury charge on coercion. - Defendant was not entitled to a jury instruction on coercion and could not show that counsel's failure to request such a charge constituted ineffective assistance because the defendant denied any knowledge of or participation in the armed robbery and denied knowing the person who pointed a gun at the defendant and told the defendant to drive. Tran v. State, 340 Ga. App. 546 , 798 S.E.2d 71 (2017).
Defendant who admitted being party to armed robbery entitled to instruction on defense of coercion. - Defendant who admitted the elements of armed robbery as a party to the crime, O.C.G.A. § 16-2-21 , and who testified that the defendant committed such acts because a codefendant pointed a gun at the defendant and threatened to shoot the defendant or defendant's family was entitled to a jury charge on coercion under O.C.G.A. § 16-3-26 , and the trial court erred in failing to so instruct the jury even in the absence of a request by the defendant. Mathis v. State, 299 Ga. App. 831 , 684 S.E.2d 6 (2009).
Requested instruction on justification constituted invited error. - Because the trial court gave the second defendant's specifically requested charge on justification that covered the particular defense that the second defendant was justified in possessing a rifle as the second defendant reasonably believed that taking the rifle from the first defendant was the only way to prevent the second defendant's own imminent death or bodily injury, any alleged error by the trial court from the court's failure to include language on that defense beyond the language provided by the second defendant was invited error, which did not warrant reversal. Ballard v. State, 297 Ga. 248 , 773 S.E.2d 254 (2015).
In a prosecution for felony murder the trial court did not commit reversible error by instructing the jury that coercion is not a defense to murder where defendant produced no evidence that defendant was coerced into committing the underlying felonies to the felony murder conviction. Kelly v. State, 266 Ga. 709 , 469 S.E.2d 653 (1996).
Codefendant's trial should have been severed. - Trial court erred in denying a codefendant's motion to sever the trial from the defendant's trial because the codefendant was not allowed to introduce the exculpatory portions of the statements that explained the excerpted admissions introduced by the state, which supported the codefendant's antagonistic defense that the codefendant was present at the robberies due to coercion by the defendant. To avoid potential Bruton issues, the state introduced only those portions of the codefendant's 9-1-1 calls or custodial statements made establishing that the codefendant was at the scene of two robberies, that the codefendant's vehicles were used, and that the codefendant sent police to a motel room to investigate the robberies, but refused the additional portions of the statements that tended to support the codefendant's defense that the codefendant was coerced into participating in the crimes. Bowe v. State, 288 Ga. App. 376 , 654 S.E.2d 196 (2007), cert. dismissed, sub. nom., State v. Baker, No. S08C0548, 2008 Ga. LEXIS 318 (Ga. 2008).
Person coerced by another to commit a crime is not an accomplice. Beal v. State, 72 Ga. 200 (1883); Henderson v. State, 5 Ga. App. 495 , 63 S.E. 535 (1909).
One charged as accomplice to murder may assert defense of coercion. - Witness may be found not to be an accomplice due to coercion so as to eliminate requirement of corroboration in murder trial even though such person, if charged with murder, could not successfully use coercion as a defense to the charges. Milton v. State, 248 Ga. 192 , 282 S.E.2d 90 (1981).
Fear must be of present and immediate violence. Hill v. State, 135 Ga. App. 766 , 219 S.E.2d 18 (1975).
Danger must not be one of future violence, but of present and immediate violence at time of commission of forbidden act. Williams v. State, 69 Ga. 11 (1882); Burns v. State, 89 Ga. 527 , 15 S.E. 748 (1892); Chambers v. State, 154 Ga. App. 620 , 269 S.E.2d 42 (1980); Stitt v. State, 190 Ga. App. 58 , 378 S.E.2d 168 (1989).
Where none of the defendant's evidence related to present and immediate violence towards defendant at the time defendant procured cocaine for informants so as to justify defendant's criminal conduct, and there was no showing of a reasonable fear of immediate violence, the trial court did not err in refusing to give a requested charge under O.C.G.A. § 16-3-26 . Holder v. State, 194 Ga. App. 790 , 391 S.E.2d 808 (1990).
Fear of injury must be reasonable. Hill v. State, 135 Ga. App. 766 , 219 S.E.2d 18 (1975).
In order for fear produced by threats or menaces to be a valid legal excuse for doing anything which would otherwise be criminal, the act must have been done under such threats or menaces as show that life or member was in danger, or that there was reasonable cause to believe that there was such danger. Chambers v. State, 154 Ga. App. 620 , 269 S.E.2d 42 (1980).
Coercion defense requires that the fear of injury must be reasonable and the danger must not be one of future violence but of present and immediate violence at the time of the commission of the forbidden act. Gordon v. State, 234 Ga. App. 551 , 507 S.E.2d 269 (1998).
Action necessitated by direct danger to life or of great bodily injury. - Coercion involves involuntary performance of criminal act under fear of threats or menaces involving a direct danger to life or great bodily injury where danger is abated only by performance of criminal act. Chambers v. State, 154 Ga. App. 620 , 269 S.E.2d 42 (1980); Stewart v. State, 177 Ga. App. 681 , 340 S.E.2d 283 (1986).
Coercion involves the involuntary performance of a criminal act under fear of threats or menaces involving a direct danger to life or great bodily injury where the danger is abated only by the performance of the criminal act. The danger must not be one of future violence but of present and immediate violence at the time of the commission of the forbidden act. Slater v. State, 185 Ga. App. 889 , 366 S.E.2d 240 (1988).
Exclusion of expert evidence regarding battered person's syndrome. - There was no error in the refusal to admit expert testimony regarding the battered person syndrome to support the defendant's justification defense of coercion at the defendant's trial for various assault crimes committed against the defendant's nine-year-old daughter. Pickle v. State, 280 Ga. App. 821 , 635 S.E.2d 197 (2006), cert. denied, No. S06C2150, 2007 Ga. LEXIS 110, 111 (Ga. 2007).
Coercion is no defense if the person has any reasonable way, other than committing the crime, to escape the threat of harm. Barnes v. State, 178 Ga. App. 205 , 342 S.E.2d 388 (1986); Stitt v. State, 190 Ga. App. 58 , 378 S.E.2d 168 (1989); Brinson v. State, 244 Ga. App. 40 , 537 S.E.2d 370 (2000).
When defendant testified that the codefendant conceived of the robbery without defendant's knowledge or participation and that only the codefendant was armed, defendant did acknowledge pretending to have a gun, and giving orders to the store occupants, defendant gave no indication that acts were out of fear that codefendant would harm defendant if defendant refused to cooperate thus, defendant's own testimony was sufficient to authorize a conviction for armed robbery and aggravated assault, and insufficient to support a defense of coercion. House v. State, 203 Ga. App. 55 , 416 S.E.2d 108 , cert. denied, 203 Ga. App. 906 , 416 S.E.2d 108 (1992).
In a bench trial for armed robbery and aggravated assault, the evidence authorized the trial court to conclude that the state had sufficiently disproved the defendant's defense that the defendant had been coerced by one of the defendant's companions into committing the crimes; the defendant had not mentioned coercion in either of the defendant's two statements to police, one in which the defendant had admitted to committing the crimes, and it was not until trial that the defendant claimed coercion. Edwards v. State, 285 Ga. App. 227 , 645 S.E.2d 699 (2007).
Appellate court chose not to disturb the jury's determination that the defendant was not coerced into driving while intoxicated because the defendant admitted that the defendant was not coerced into driving a truck away from a restaurant; the defendant testified that an employee of the restaurant asked the defendant to leave; the defendant drove away to avoid a fight; the defendant had three or four beers before driving the truck; the defendant had a cell phone in the defendant's possession but the defendant did not attempt to call 9-1-1, nor did the defendant ask the restaurant's employees to call a cab for the defendant; and the person who was trying to fight the defendant was in the parking lot but was not armed. Hines v. State, 308 Ga. App. 299 , 707 S.E.2d 534 (2011).
Trial court did not err by refusing to charge the jury on the defense of coercion under O.C.G.A. § 16-3-26 because the threat of violence to the defendant from a co-defendant did not occur during the crimes but while they were driving to the scene of the robbery. Additionally, the co-defendant walked off for a period of time prior to the crimes and the defendant could have left the scene but did not. Calmes v. State, 312 Ga. App. 769 , 719 S.E.2d 516 (2011), cert. denied, No. S12C0538, 2012 Ga. LEXIS 324 (Ga. 2012).
Failure to raise coercion defense not ineffective assistance of counsel. - Defendant was not denied effective assistance of counsel based on counsel's failure to present a coercion defense to armed robbery, aggravated assault, and kidnapping charges as the decision about what defense to present was a matter of strategy; there was no evidence that the codefendant threatened defendant during the offenses or forced the defendant to drive the getaway car and the defendant did not testify about any coercion by the codefendant until the police chase. Maxey v. State, 272 Ga. App. 800 , 613 S.E.2d 236 (2005), overruled on other grounds by McClure v. State, 306 Ga. 856 , 834 S.E.2d 96 (2019).
Trial counsel was not ineffective for failing to put forward the affirmative defense of coercion as the defendant told police that the defendant had not participated in the crime and counsel made an informed decision not to pursue a defense that did not comport with the defendant's own version of events. Lopez v. State, 332 Ga. App. 763 , 774 S.E.2d 802 (2015), overruled on other grounds by McClure v. State, 306 Ga. 856 , 834 S.E.2d 96 (2019).
Charge properly refused when coercion subsequent to offense. - Trial court properly refused to give a requested charge in regard to coercion when the events in question purportedly occurred subsequent to the events determinative of the defendant's guilt or innocence of the crime with which defendant is charged. McDaniel v. State, 169 Ga. App. 254 , 312 S.E.2d 363 (1983).
Issues of present O.C.G.A. § 16-3-26 are questions for jury. Hill v. State, 135 Ga. App. 766 , 219 S.E.2d 18 (1975).
It is for jury to determine whether there was coercion. Syck v. State, 130 Ga. App. 50 , 202 S.E.2d 464 (1973).
Defendant's claim of duress and coercion, under O.C.G.A. § 16-3-26 , did not require reversal of the defendant's convictions because the jury, being properly charged on this defense, was authorized to reject the defense. Bush v. State, 317 Ga. App. 439 , 731 S.E.2d 121 (2012).
When specific instruction unnecessary. - Court did not err in failing to specifically charge the jury on the law of justification and coercion when the charge and the evidence as a whole adequately and fairly presented the defendant's theories of the case, that is, that defendant was only incidentally involved in the commission of the crimes (armed robbery and kidnapping), and defendant's testimony was not that defendant was coerced into commission of the crime, but that the codefendant on the codefendant's own initiative had robbed the victim and forced the victim into the automobile, that the defendant was at all times attempting to talk the codefendant out of committing the crime, and that the defendant had nothing to do with either the robbery or the kidnapping. Mallory v. State, 166 Ga. App. 812 , 305 S.E.2d 656 (1983).
Unless the danger of present and immediate violence coincides with the commission of the forbidden act, a trial court may refuse to give a charge on coercion. Gordon v. State, 234 Ga. App. 551 , 507 S.E.2d 269 (1998).
An instruction on coercion was properly denied with regard to charges of kidnapping and murder where the defendant admitted only to simple battery. Hanifa v. State, 269 Ga. 797 , 505 S.E.2d 731 (1998).
Defendant was not entitled to a charge on coercion as the defendant did not admit to participating in the crimes. Olarte v. State, 273 Ga. App. 96 , 614 S.E.2d 213 (2005).
Absent evidence presented by the defendant showing an immediate or future threat of violence at the time of the commission of the crime, the defendant was properly denied a jury charge on coercion. Thomas v. State, 285 Ga. App. 290 , 645 S.E.2d 713 (2007), cert. denied, No. S07C1375, 2007 Ga. LEXIS 610 (Ga. 2007).
Trial court was not required to give a sua sponte charge on coercion since it was not supported in the case because the defendant did not testify at trial or at the hearing, and there was no other admissible evidence showing that an accomplice threatened the defendant with violence or that the defendant feared the accomplice; a codefendant testified that the accomplice never pointed a gun at the codefendant or the defendant, the victim testified that the accomplice's gun was constantly pointed at the victim, and police officers testified that, although the defendant told the officers that the defendant was the driver who pushed the victim out of the car, the defendant never stated to the police that the defendant acted under gunpoint. Clausell v. State, 302 Ga. App. 472 , 691 S.E.2d 312 (2010).
Trial court did not err in finding that trial counsel rendered effective assistance of counsel because trial counsel was not ineffective for failing to request a charge on coercion; there was no evidence of a threat of immediate violence at the time of the commission of the forbidden act, and the defendant failed to take advantage of the many opportunities the defendant had to walk away from the criminal enterprise. Clausell v. State, 302 Ga. App. 472 , 691 S.E.2d 312 (2010).
Coercion defense a matter of trial strategy. - Trial court did not err in concluding that the defendant failed to carry the defendant's burden of showing ineffective assistance; trial counsel's decision to pursue the coercion defense, O.C.G.A. § 16-3-26 , for armed robbery rather than a mistaken identity defense, was clearly a strategic decision based upon the evidence. Lewis v. State, 270 Ga. App. 48 , 606 S.E.2d 77 (2004).
Counsel was not ineffective for failing to ask for a charge to support a justification defense and instead seeking a charge to support a coercion defense because coercion was a defense to the charged crimes of aggravated assault and fleeing and attempting to elude, and the defendant failed to show that an unspecified justification charge would have been more beneficial to the defendant than the coercion charge given by the trial court. Frazier v. State, Ga. , 845 S.E.2d 579 (2020).
Coercion is a jury issue. - Defendant argued that given the conflicts in the evidence, the jury was not authorized to reject the defendant's coercion defense, however, the resolution of conflicts in the evidence is a matter for the jury and whether or not a defendant is coerced into acting is a question for the trier of fact; under the circumstances of this case including the defendant's youth, the jury certainly was authorized to conclude that the defendant was not coerced into robbing the victim. Treadwell v. State, 272 Ga. App. 508 , 613 S.E.2d 3 (2005).
Evidence that the defendant and others approached two separate victims while the defendant brandished a shotgun, that the defendant threatened the victims with the gun, and that the defendant and the compatriots stole both of the victims' cars, sufficed to sustain the defendant's convictions of two counts of hijacking a motor vehicle, two counts of armed robbery, two counts of aggravated assault with a deadly weapon, and two counts of possession of a firearm during the commission of a felony; the jury was free to disbelieve the defendant's testimony that the defendant was coerced into threatening the victims at gunpoint and participating in the car thefts, and was authorized to find the defendant guilty based on the evidence presented at trial. Martinez v. State, 278 Ga. App. 500 , 629 S.E.2d 485 (2006).
Cited in Ivie v. State, 131 Ga. App. 201 , 205 S.E.2d 529 (1974); Dobbs v. State, 132 Ga. App. 614 , 208 S.E.2d 624 (1974); Orkin v. State, 236 Ga. 176 , 223 S.E.2d 61 (1976); Mason v. Balcom, 531 F.2d 717 (5th Cir. 1976); Wilson v. State, 151 Ga. App. 501 , 260 S.E.2d 527 (1979); Herring v. State, 152 Ga. App. 150 , 262 S.E.2d 529 (1979); Jones v. State, 154 Ga. App. 806 , 270 S.E.2d 201 (1980); Kennedy v. State, 156 Ga. App. 792 , 275 S.E.2d 339 (1980); Coile v. State, 161 Ga. App. 51 , 288 S.E.2d 859 (1982); Young v. State, 163 Ga. App. 507 , 295 S.E.2d 175 (1982); Rivers v. State, 250 Ga. 288 , 298 S.E.2d 10 (1982); Minton v. State, 167 Ga. App. 114 , 305 S.E.2d 812 (1983); Head v. State, 191 Ga. App. 262 , 381 S.E.2d 519 (1989); Rogers v. State, 191 Ga. App. 353 , 381 S.E.2d 545 (1989); Aleman v. State, 227 Ga. App. 607 , 489 S.E.2d 867 (1997); Norris v. State, 227 Ga. App. 616 , 489 S.E.2d 875 (1997); Walsh v. State, 269 Ga. 427 , 499 S.E.2d 332 (1998); Bailey v. State, 245 Ga. App. 852 , 539 S.E.2d 191 (2000); McClure v. State, 306 Ga. 856 , 834 S.E.2d 96 (2019).
RESEARCH REFERENCES
Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, § 137 et seq.
ALR. - Effect of coverture upon the criminal responsibility of a woman, 4 A.L.R. 266 ; 71 A.L.R. 1116 .
Coercion, compulsion, or duress as defense to criminal prosecution, 40 A.L.R.2d 908.
Coercion, compulsion, or duress as defense to charge of robbery, larceny, or related crime, 1 A.L.R.4th 481.
Coercion, compulsion, or duress as defense to charge of kidnapping, 69 A.L.R.4th 1005.
Defense of necessity, duress, or coercion in prosecution for violation of state narcotics laws, 1 A.L.R.5th 938.
Ineffective assistance of counsel: compulsion, duress, necessity, or "hostage syndrome" defense, 8 A.L.R.5th 713.
Duress, necessity, or conditions of confinement as justification for escape from prison, 54 A.L.R.5th 141.
16-3-27. Benefit of clergy.
Since it is no longer needed or appropriate, the ancient device of benefit of clergy shall not exist.
(Laws 1833, Cobb's 1851 Digest, p. 837; Code 1863, § 4547; Code 1868, § 4567; Code 1873, § 4661; Code 1882, § 4661; Penal Code 1895, § 17; Penal Code 1910, § 17; Code 1933, § 26-102; Code 1933, § 26-202, enacted by Ga. L. 1968, p. 1249, § 1.)
JUDICIAL DECISIONS
Cited in Peavy v. State, 159 Ga. App. 280 , 283 S.E.2d 346 (1981).
16-3-28. Affirmative defenses.
A defense based upon any of the provisions of this article is an affirmative defense.
(Code 1933, § 26-907, enacted by Ga. L. 1968, p. 1249, § 1.)
Law reviews. - For survey article on criminal law, see 60 Mercer L. Rev. 85 (2008).
JUDICIAL DECISIONS
Affirmative defense admits doing act charged, but seeks to justify, excuse, or mitigate it. Cowart v. State, 136 Ga. App. 528 , 221 S.E.2d 649 (1975), aff'd, 237 Ga. 282 , 227 S.E.2d 248 , overruled on other grounds, 137 Ga. App. 735 , 224 S.E.2d 856 (1976).
Burden of proof of affirmative defenses rests entirely upon state. - Charges which place any burden of persuasion upon defendant in criminal cases shall not be given and such charges will be deemed erroneous and subject to reversal, absent harmless error and invited error; even when defendant raises one of the affirmative defenses defined in the Criminal Code (see now O.C.G.A. Ch. 3, T. 16), the burden of proof still rest entirely upon the state as it does with all other issues in the case. State v. McNeill, 234 Ga. 696 , 217 S.E.2d 281 (1975); Perkins v. State, 151 Ga. App. 199 , 259 S.E.2d 193 (1979).
Trial court erred in failing to charge the jury that the state had the burden of disproving defendant's affirmative defense of accident beyond a reasonable doubt. Griffin v. State, 267 Ga. 586 , 481 S.E.2d 223 (1997).
Burden of putting forward affirmative defense is on defendant, though the state has the burden of disproving the affirmative defense beyond a reasonable doubt. State v. McNeill, 234 Ga. 696 , 217 S.E.2d 281 (1975).
Defendant need not negate any elements of crime which state must prove to convict. Holloway v. McElroy, 241 Ga. 400 , 245 S.E.2d 658 (1978).
Burden placed on defendant to excuse homicide is an affirmative defense. Holloway v. McElroy, 241 Ga. 400 , 245 S.E.2d 658 (1978).
Mistake of fact defense inapplicable. - Mistake of fact defense was not applicable because the defendant did not admit participation in the murder and, in fact, denied any involvement. Murphy v. State, 280 Ga. 158 , 625 S.E.2d 764 (2006).
For discussion of entrapment as affirmative defense, see State v. McNeill, 234 Ga. 696 , 217 S.E.2d 281 (1975).
Cited in Chambers v. State, 127 Ga. App. 196 , 192 S.E.2d 916 (1972); Rivers v. State, 250 Ga. 288 , 298 S.E.2d 10 (1982); Aleman v. State, 227 Ga. App. 607 , 489 S.E.2d 867 (1997); Norris v. State, 227 Ga. App. 616 , 489 S.E.2d 875 (1997); Manning v. State, 231 Ga. App. 584 , 499 S.E.2d 650 (1998); Graham v. State, 239 Ga. App. 429 , 521 S.E.2d 249 (1999); Bailey v. State, 245 Ga. App. 852 , 539 S.E.2d 191 (2000); Mathis v. State, Ga. App. , S.E.2d (May 20, 2009); Hines v. State, 308 Ga. App. 299 , 707 S.E.2d 534 (2011).
RESEARCH REFERENCES
ALR. - Homicide: modern status of rules as to burden and quantum of proof to show self-defense, 43 A.L.R.3d 221.
ARTICLE 3 ALIBI
16-3-40. Alibi.
The defense of alibi involves the impossibility of the accused's presence at the scene of the offense at the time of its commission. The range of the evidence in respect to time and place must be such as reasonably to exclude the possibility of presence.
(Penal Code 1895, § 992; Penal Code 1910, § 1018; Code 1933, § 38-122.)
Law reviews. - For note discussing Smith v. Smith, 454 F.2d 572 (5th Cir. 1971), rehearing and rehearing en banc denied February 1, 1972, see 23 Mercer L. Rev. 977 (1972). For comment on Parham v. State, 120 Ga. App. 723 , 171 S.E.2d 911 (1969) and the rejection of charge that defendant must prove alibi to the satisfaction of the jury, see 21 Mercer L. Rev. 511 (1970). For comment on Bassett v. Smith, 464 F.2d 347 (5th Cir. 1972), refusing to apply decision holding Georgia's alibi instruction unconstitutional retroactively, see 9 Ga. St. B. J. 500 (1973).
JUDICIAL DECISIONS
ANALYSIS
General Consideration
Alibi is physical circumstance, and derives its entire potency as a defense from fact that it involves physical impossibility of guilt of accused. An alibi which still leaves it possible for accused to be guilty is not an alibi at all. Harris v. State, 120 Ga. 167 , 47 S.E. 520 (1904).
Alibi is simply evidence in support of defendant's plea of not guilty, and should be treated merely as evidence tending to disprove one of the essential factors in prosecution's case, that is, presence of defendant at time and place of alleged crime. Parham v. State, 120 Ga. App. 723 , 171 S.E.2d 911 (1969), for comment, see 21 Mercer L. Rev. 511 (1970).
Alibi is simply evidence rebutting case for prosecution by denying charge against defendant. Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99 , 34 L. Ed. 2 d 141 (1972), for comment, see 23 Mercer L. Rev. 977 (1972).
Defense of alibi is statutory in criminal cases, but not in civil cases. Roberts v. McClellan, 80 Ga. App. 199 , 55 S.E.2d 736 (1949).
Alibi consists of proof that defendant was elsewhere when crime was committed. - Alibi as a defense consists of proof that at time when crime was committed, accused was at place different from that where it was committed, so as to preclude idea that accused was perpetrator. Staton v. State, 174 Ga. 719 , 163 S.E. 901 (1932).
Alibi is not a true affirmative defense. Parham v. State, 120 Ga. App. 723 , 171 S.E.2d 911 (1969), for comment, see 21 Mercer L. Rev. 511 (1970); Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99 , 34 L. Ed. 2 d 141 (1972), for comment, see 23 Mercer L. Rev. 977 (1972).
Failure to inform state of defendant's alibi defense. - Defendant's assigned attorney did not render ineffective assistance for failing to inform the state of the defendant's alibi defense and witness, which resulted in the exclusion of the defendant's alibi defense at the defendant's criminal trial, as counsel indicated that counsel spoke with the alibi witness, the defendant's sibling, and counsel had concluded that the defendant could not provide testimony establishing an alibi defense because the defendant had no memory of the defendant's whereabouts on specific dates and times. Rogers v. State, 271 Ga. App. 698 , 610 S.E.2d 679 (2005).
Construction with O.C.G.A. § 17-16-5(a) . - Defendant, whose evidence was the sole evidence in support of an alibi defense, was required to file an intention to offer an alibi defense under O.C.G.A. § 17-16-5(a) , even when the state was aware that the defendant claimed to be elsewhere on the day of the crime, and such did not affect the defendant's right to testify under the Sixth Amendment; moreover, any prejudice to the state was irrelevant, because the statute provided no exception for such prior knowledge, and because common sense dictated that the mere claim to be elsewhere when confronted by authorities was a far cry from intending to present the legal defense of alibi. State v. Charbonneau, 281 Ga. 46 , 635 S.E.2d 759 (2006).
Use of words "set up," in charging that "the defendant has set up an alibi as a defense in this case," is not an expression by the trial court that the defendant's defense of alibi was a concocted matter. Strozier v. State, 165 Ga. App. 551 , 301 S.E.2d 907 (1983).
Cited in Williams v. State, 123 Ga. 138 , 51 S.E. 322 (1905); Collier v. State, 154 Ga. 68 , 113 S.E. 213 (1922); Jones v. State, 68 Ga. App. 210 , 22 S.E.2d 671 (1942); Weaver v. State, 199 Ga. 267 , 34 S.E.2d 163 (1945); Porter v. State, 200 Ga. 246 , 36 S.E.2d 794 (1946); King v. State, 77 Ga. App. 539 , 49 S.E.2d 196 (1948); Roberts v. McClellan, 80 Ga. App. 199 , 55 S.E.2d 736 (1949); Perry v. State, 105 Ga. App. 776 , 125 S.E.2d 666 (1962); Pryor v. State, 113 Ga. App. 660 , 149 S.E.2d 401 (1966); Pippins v. State, 224 Ga. 462 , 162 S.E.2d 338 (1968); Boyles v. State, 120 Ga. App. 852 , 172 S.E.2d 637 (1969); Bridges v. State, 123 Ga. App. 157 , 179 S.E.2d 685 (1970); Evans v. State, 124 Ga. App. 723 , 185 S.E.2d 805 (1971); Johnson v. State, 228 Ga. 860 , 188 S.E.2d 859 (1972); Bryant v. State, 229 Ga. 60 , 189 S.E.2d 435 (1972); Welch v. State, 130 Ga. App. 18 , 202 S.E.2d 223 (1973); Poole v. State, 130 Ga. App. 603 , 203 S.E.2d 886 (1974); Peters v. State, 131 Ga. App. 513 , 206 S.E.2d 623 (1974); Payne v. State, 233 Ga. 294 , 210 S.E.2d 775 (1974); Bagby v. State, 134 Ga. App. 263 , 214 S.E.2d 11 (1975); Billups v. State, 236 Ga. 922 , 225 S.E.2d 887 (1976); Abner v. State, 139 Ga. App. 600 , 229 S.E.2d 83 (1976); Howard v. State, 141 Ga. App. 238 , 233 S.E.2d 58 (1977); Cooper v. State, 143 Ga. App. 246 , 237 S.E.2d 715 (1977); Johnson v. State, 143 Ga. App. 516 , 239 S.E.2d 201 (1977); Cain v. State, 144 Ga. App. 249 , 240 S.E.2d 750 (1977); Calloway v. State, 144 Ga. App. 457 , 241 S.E.2d 575 (1978); Rice v. State, 147 Ga. App. 643 , 249 S.E.2d 694 (1978); Colbert v. State, 146 Ga. App. 266 , 253 S.E.2d 882 (1979); Patrick v. State, 245 Ga. 417 , 265 S.E.2d 553 (1980); Hudgins v. State, 153 Ga. App. 601 , 266 S.E.2d 283 (1980); Adams v. State, 246 Ga. 119 , 269 S.E.2d 11 (1980); Whitt v. State, 157 Ga. App. 10 , 276 S.E.2d 64 (1981); James v. State, 162 Ga. App. 490 , 292 S.E.2d 91 (1982); Pearson v. State, 164 Ga. App. 337 , 297 S.E.2d 98 (1982); Jones v. State, 165 Ga. App. 498 , 299 S.E.2d 576 (1983); Kennedy v. State, 172 Ga. App. 336 , 323 S.E.2d 169 (1984); Melton v. State, 222 Ga. App. 555 , 474 S.E.2d 640 (1996); McClure v. State, 306 Ga. 856 , 834 S.E.2d 96 (2019).
When Charge Required
When evidence reasonably excludes possibility of defendant's presence at time of commission of offense, charge on alibi is warranted. Simmons v. State, 149 Ga. App. 830 , 256 S.E.2d 79 (1979).
Defendant's testimony as to whereabouts at time of crime warrants charge on alibi. - It is not error for court to charge law of alibi where defendant, testifying as witness in own behalf, states that defendant was at some place distant from where crime was committed at time it occurred. Williams v. State, 223 Ga. 773 , 158 S.E.2d 373 (1967).
When alibi is sole defense and is supported by evidence. - It is error, even in absence of request, to fail to charge on law of alibi, if this is the defendant's sole defense and is supported not only by the defendant's statement but by the testimony of witnesses. Cutts v. State, 86 Ga. App. 760 , 72 S.E.2d 565 (1952); Jenkins v. State, 96 Ga. App. 86 , 99 S.E.2d 474 (1957); Coppage v. State, 113 Ga. App. 482 , 148 S.E.2d 484 (1966); Brown v. State, 122 Ga. App. 470 , 177 S.E.2d 509 (1970); Silvey v. State, 142 Ga. App. 699 , 236 S.E.2d 869 (1977).
When alibi is sole defense of the accused, the failure of the trial court to charge on defense of alibi, even in absence of request, is reversible error when there is some evidence to support the defense. Dixon v. State, 157 Ga. App. 550 , 278 S.E.2d 130 (1981).
In prosecution for burglary and rape, evidence was sufficient to support charge on alibi where, although the defendant testified to not remembering where defendant was on the day the crimes occurred, defendant also testified that on that day defendant did not see the victim, defendant did not break into the victim's home, and defendant did not see the codefendant. Boyd v. State, 167 Ga. App. 799 , 307 S.E.2d 725 (1983).
When Charge Not Required
Lack of supporting evidence. - Although alibi constitutes the sole defense, the court need not charge thereon when not authorized by the evidence. Sapp v. State, 155 Ga. App. 485 , 271 S.E.2d 19 (1980).
In prosecution for attempting to elude police officer, when defendant admitted to being present in the vicinity of the chase, defendant's explanation that defendant was at school moments before being stopped did not constitute an alibi so as to require an alibi charge. Storey v. State, 205 Ga. App. 610 , 422 S.E.2d 879 , cert. denied, 205 Ga. App. 901 , 422 S.E.2d 879 (1992).
Charge on alibi not authorized by evidence. - Alibi was not an issue and the trial court was not required to give a charge on alibi since the charge was not authorized by the evidence when the evidence was uncontradicted that the defendant was not at the motel at the time of the drug transaction or when the contraband was discovered and seized, and the state never contended that defendant was present. The "alibi" witnesses for the defense testified only that they had seen defendant at another motel on some unspecified dates in March. Mathis v. State, 204 Ga. App. 896 , 420 S.E.2d 788 , cert. denied, 204 Ga. App. 922 , 420 S.E.2d 788 (1992).
Charge not requested. - Absent request, court need not charge on alibi where evidence supporting it is manifestly insufficient. Hornbuckle v. State, 76 Ga. App. 111 , 45 S.E.2d 98 (1947).
It is ordinarily not error to fail to charge specifically on alibi absent a request for such a charge. Rivers v. State, 250 Ga. 288 , 298 S.E.2d 10 (1982); Ashley v. State, 240 Ga. App. 502 , 523 S.E.2d 901 (1999).
Trial court did not err in failing to charge on alibi absent a request. Johnson v. State, 174 Ga. App. 751 , 330 S.E.2d 925 (1985).
Even if the defense of alibi had been raised by the evidence, a specific charge on alibi was not required, absent a written request, if the court's charge as a whole covered such defense. Hightower v. State, 224 Ga. App. 703 , 481 S.E.2d 867 (1997), overruled on other grounds by McClure v. State, 306 Ga. 856 , 834 S.E.2d 96 (2019).
It was not error to fail to give a charge on alibi when a burglary defendant had not requested such a charge; the jury had been fully charged on the presumption of innocence and proof beyond a reasonable doubt, and moreover the defendant's alibi testimony did not establish the impossibility of the defendant's presence at the scene of the burglary at the time the burglary was committed. Matthews v. State, 285 Ga. App. 859 , 648 S.E.2d 160 (2007).
Trial court's refusal to give defendant's written request to charge the jury on the law of alibi was not reversible error where the testimony of the witness for the defendant would have provided an alibi for the night before the actual commission of the crime. Brewton v. State, 174 Ga. App. 109 , 329 S.E.2d 270 (1985).
When defendant charged with setting up robbery. - When the state never contended the defendant was actually present at the time of the robbery but that defendant had set up the robbery and left the scene shortly before the robbery took place, alibi was not in issue and therefore it was not error for the court to refuse an instruction on alibi. Martin v. State, 170 Ga. App. 854 , 318 S.E.2d 724 (1984).
When evidence of alibi is not of strong probative value, charge thereon is unnecessary. - Failure to charge on alibi is not error, especially in absence of written request, where evidence in support of alibi is not of clear and strong probative value. Cole v. State, 63 Ga. App. 418 , 11 S.E.2d 239 (1940).
When evidence relating to alibi is not clear and of strong probative value, failure to charge thereon, in absence of proper request, will not be cause for reversal. Dixon v. State, 157 Ga. App. 550 , 278 S.E.2d 130 (1981).
Trial court did not err in not charging the jury on the law on alibi notwithstanding the defendant's failure either to request such a charge or to object to the jury charge given when, because of the vagueness of the exact times of defendant's alibi and the wide span of time during which the crime occurred, the defendant's testimony, even if believed, did not necessarily or reasonably exclude the possibility of defendant's presence. Morris v. State, 166 Ga. App. 137 , 303 S.E.2d 492 (1983).
Failure to show impossibility of defendant's presence. - When evidence in support of defense of alibi does not show impossibility of defendant's presence at scene of crime at time of the crime's commission, failure of the court to charge law of alibi, especially in absence of request for such charge, is not error. Plemons v. State, 155 Ga. App. 447 , 270 S.E.2d 836 (1980).
When only evidence of alibi is defendant's unsupported statement. - In rape prosecution, when there was no evidence of alibi except a statement of defendant, even conceding that statement of defendant was sufficient to raise the defense, if evidence of sheriff, who arrested defendant, in no way supported defense of alibi, and no other evidence tending to do so was offered, the trial court did not err in failing to charge law of alibi, in the absence of a timely written request. Williams v. State, 207 Ga. 620 , 63 S.E.2d 358 (1951).
It is not error to fail to charge on alibi when there is no request therefor and only basis for alibi consists of defendant's unsworn statement. Smith v. State, 155 Ga. App. 506 , 271 S.E.2d 654 (1980), cert. denied, 450 U.S. 922, 101 S. Ct. 1372 , 67 L. Ed. 2 d 351 (1981).
Unsworn statement of defendant, by itself, is insufficient to establish alibi. - With issue of alibi raised only by defendant's unsworn statement, it cannot be said there is strong and probative evidence which reasonably excludes possibility of defendant's presence at scene. Baker v. State, 127 Ga. App. 403 , 194 S.E.2d 122 (1972).
Defendant's prior statements repeated in court by state's witnesses are insufficient to raise defense of alibi. Smith v. State, 155 Ga. App. 506 , 271 S.E.2d 654 (1980), cert. denied, 450 U.S. 922, 101 S. Ct. 1372 , 67 L. Ed. 2 d 351 (1981).
Defendant's unsworn statement that defendant was asleep in car used in robbery. - When defendant in unsworn statement admitted being in an automobile allegedly used in a robbery but contended defendant was asleep from before until after the robbery took place, the statement was not sufficient to raise the issue of alibi so as to require that the trial court give the requested instruction on alibi. Hunsinger v. State, 225 Ga. 426 , 169 S.E.2d 286 (1969).
Testimony contradicting rape victim's evidence regarding time spent with defendant. - Testimony which merely contradicted evidence of girl allegedly raped as to length of time she and defendant were together was insufficient to show impossibility of defendant's presence at scene of alleged offense at time of its commission; accordingly, court did not err in not charging on subject of alibi. Latimer v. State, 188 Ga. 775 , 4 S.E.2d 631 (1939).
When question of identity and fact of alibi are essentially the same. - When the trial court charges the jury on the subject of identification of the defendant as the perpetrator of the charged offenses and when the question of identity of the perpetrator and the fact of alibi are essentially the same defense, the court's failure to charge on alibi is not error. Morris v. State, 166 Ga. App. 137 , 303 S.E.2d 492 (1983).
When personal identity and alibi are virtually the same defense, the court need not instruct separately on alibi. Staton v. State, 174 Ga. 719 , 163 S.E. 901 (1932).
Counsel was not ineffective in failing to request an alibi charge since the defense witnesses' testimony did not reasonably exclude the possibility of the defendant's presence at the crime scene. Moore v. State, 268 Ga. App. 398 , 601 S.E.2d 854 (2004).
Burden of Proof
State must prove defendant's presence at commission of offense, beyond reasonable doubt when it is an essential element of the crime. Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99 , 34 L. Ed. 2 d 141 (1972), commented on in 23 Mercer L. Rev. 977 (1972).
Since the true effect of an alibi defense is to traverse the state's proof that the defendant committed the crime, the charge that the burden is on the state to prove that the defendant committed the crime beyond a reasonable doubt itself necessarily covers the question of whether the evidence of alibi was sufficient to create a reasonable doubt. Rivers v. State, 250 Ga. 288 , 298 S.E.2d 10 (1982).
Burden of proving defendant's presence is on state throughout trial, and evidence of defendant's absence tends merely to weaken or disprove testimony of state's witnesses on this point. Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99 , 34 L. Ed. 2 d 141 (1972), commented on in 23 Mercer L. Rev. 977 (1972).
Defendant need not establish alibi by any particular quantum of proof. - When state presents evidence of defendant's presence, the burden of going forward with evidence to contradict the state's evidence may shift to defendant but it must not carry with it the requirement that defendant establish own evidence by any quantum of proof. Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99 , 34 L. Ed. 2 d 141 (1972), commented on in 23 Mercer L. Rev. 977 (1972).
Placing burden of proof or persuasion of alibi on defendant. - Regardless of what quantum of proof is required, practice of placing burden of proof or persuasion on defendant is unconstitutionally impermissible in cases involving alibi defense. Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99 , 34 L. Ed. 2 d 141 (1972), commented on in 23 Mercer L. Rev. 977 (1972).
Requiring proof of alibi by preponderance of evidence is erroneous. - To charge that defendant in criminal case must establish defense of alibi by preponderance of evidence would be erroneous as placing upon defendant a greater burden than is required by law. Moultrie v. State, 93 Ga. App. 396 , 92 S.E.2d 33 (1956).
Due process is violated by charge that burden is upon criminal defendant to prove defense of alibi by preponderance of evidence. Parham v. State, 120 Ga. App. 723 , 171 S.E.2d 911 (1969), commented on in 21 Mercer L. Rev. 511 (1970).
Charge that alibi must be established to reasonable satisfaction of jury is error for reason that it shatters presumption of innocence, creates confusion in minds of jury, shifts burden of persuasion to defendant on issue of defendant's presence at crime and requires defendant to establish innocence, is inconsistent with principle that state must prove defendant's guilt beyond reasonable doubt, and thereby violates fundamental rights incorporated in due process clause of U.S. Const., amend. 14. Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99 , 34 L. Ed. 2 d 141 (1972), commented on in 23 Mercer L. Rev. 977 (1972).
Charge to jury requiring that the defendant presenting alibi evidence must establish the defendant's alibi to a reasonable satisfaction of the jury violates due process because such highly ambiguous and contradictory charge might lead the jury to the erroneous belief that the jury was free to apply the lesser standard of proof to an essential element of the crime, i.e., defendant's presence. Bassett v. Smith, 464 F.2d 347 (5th Cir. 1972), cert. denied, 410 U.S. 991, 93 S. Ct. 1509 , 36 L. Ed. 2 d 190 (1973), commented on in 9 Ga. St. B.J. 500 (1973).
Accused is only required to establish alibi to reasonable satisfaction of jury, not beyond a reasonable doubt. Nevertheless, any evidence of alibi whatsoever is to be considered on the general case, with the rest of the testimony, and, if a reasonable doubt of guilt is raised by evidence as a whole, defendant should be acquitted. Ranson v. State, 2 Ga. App. 826 , 59 S.E. 101 (1907). But see Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99 , 34 L. Ed. 2 d 141 (1972), commented on in 23 Mercer L. Rev. 977 (1972).
Burden is upon defendant to establish defense of alibi to reasonable satisfaction of jury. However, if all evidence, including evidence introduced on question of alibi, creates in their minds a reasonable doubt as to guilt of defendant, it is their duty to give defendant benefit of doubt and acquit the defendant. Stanford v. State, 153 Ga. 219 , 112 S.E. 130 (1922); Eugee v. State, 159 Ga. 604 , 126 S.E. 471 (1925). But see Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99 , 34 L. Ed. 2 d 141 (1972), commented on in 23 Mercer L. Rev. 977 (1972).
Burden is on accused to sustain defense of alibi to reasonable satisfaction of jury in order to overcome proof of guilt of crime with which defendant is charged. Mills v. State, 199 Ga. 211 , 33 S.E.2d 702 (1945). But see Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99 , 34 L. Ed. 2 d 141 (1972), commented on in 23 Mercer L. Rev. 977 (1972).
When issue of alibi is present, it is not error to instruct jury that alibi as a defense should be established to reasonable satisfaction of jury, but not necessarily beyond a reasonable doubt. Merneigh v. State, 123 Ga. App. 485 , 181 S.E.2d 498 (1971). But see Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99 , 34 L. Ed. 2 d 141 (1972), commented on in 23 Mercer L. Rev. 977 (1972).
Application
Defense of alibi is covered by general issue of not guilty as a matter of pleading. Kitchens v. State, 209 Ga. 913 , 76 S.E.2d 618 (1953).
Evidence of alibi should come into case like any other evidence, and should be submitted to jury for consideration of whether evidence as a whole proves defendant's guilt beyond a reasonable doubt. Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99 , 34 L. Ed. 2 d 141 (1972), commented on in 23 Mercer L. Rev. 977 (1972).
Evidence most favorable to defendant must be considered in determining whether charge on alibi required. Cutts v. State, 86 Ga. App. 760 , 72 S.E.2d 565 (1952).
Distance from victim is of slight, if any, importance. Harris v. State, 120 Ga. 167 , 47 S.E. 520 (1904).
Defendant claiming alibi defense entitled to continuance. - Approximately one week before trial, the defendant filed a notice of alibi with the state; at the beginning of the trial, the state announced that the state intended to prove that the alleged drug trafficking occurred within two weeks of the date alleged in the indictment, not on that date exactly. It was reversible error to deny the defendant's subsequent motion for continuance as the defendant had relied on the date in the indictment for the defendant's trial preparation. Bradford v. State, 285 Ga. 1 , 673 S.E.2d 201 (2009).
Inadvertent use of "possibility" rather than "impossibility." - When court charged that alibi as a defense involves "possibility" of presence of accused at scene of crime, and subsequently stated that jury should acquit defendant if the jury does not believe that defendant was present at the time and place of jury offense, the word "possibility" could not have misled the jury and is not ground for a new trial. Evans v. State, 222 Ga. 392 , 150 S.E.2d 240 , cert. denied, 385 U.S. 953, 87 S. Ct. 336 , 17 L. Ed. 2 d 231 (1966).
Use of "defendant" for "accused" in jury charge not error. - Substitution of the word "defendant" for the word "accused" in instruction on the affirmative defense of alibi did not constitute a "toxic" shift of the burden of proof from the state to the defendant, as the charge stated the law accurately; thus, the trial court did not err in giving this version of the charge. Garrison v. State, 276 Ga. App. 243 , 622 S.E.2d 910 (2005).
Charge that evidence of alibi need only create reasonable doubt of guilt suffices. - Duty to instruct on alibi could be fulfilled by instructing that evidence presented to prove alibi, considered alone or with all other evidence, need only be sufficient to create reasonable doubt of defendant's guilt. Parham v. State, 120 Ga. App. 723 , 171 S.E.2d 911 (1969); Hunter v. State, 135 Ga. App. 172 , 217 S.E.2d 172 (1975)commented on in 21 Mercer L. Rev. 511 (1970).
Failure to charge on alibi as reversible error. - In very close case where there is evidence tending to show alibi, it is reversible error for judge to fail to charge upon that subject. Staton v. State, 174 Ga. 719 , 163 S.E. 901 (1932).
Failure to give charge on alibi is ground for new trial, when in close case it is set up and sustained by evidence. Hornbuckle v. State, 76 Ga. App. 111 , 45 S.E.2d 98 (1947).
Alibi, if proved, results in acquittal in and of itself. Hale v. State, 110 Ga. App. 236 , 138 S.E.2d 113 (1964).
Failure to call alibi witness. - Defendant failed to show that trial counsel was ineffective for failing to call the defendant's mother as an alibi witness because the prosecutor suggested there was a possibility that the state would call the mother as a part of the state's case in chief, suggesting that the mother's testimony was favorable to the state and trial counsel's testimony that there was a reason for not calling the mother but that counsel could not remember was supported by the state's plan to call the witness. Benjamin v. State, 322 Ga. App. 8 , 743 S.E.2d 566 (2013).
RESEARCH REFERENCES
Am. Jur. 2d. - 29A Am. Jur. 2d, Evidence, § 1417.
Alibi Defense, 27 POF2d 431.
ALR. - Instructions disparaging defense of alibi, 14 A.L.R. 1426 ; 67 A.L.R. 122 ; 146 A.L.R. 1377 .
Burden and degree of proof as to alibi, 29 A.L.R. 1127 ; 67 A.L.R. 138 ; 124 A.L.R. 471 .
Duty of court to instruct on the subject of alibi, 118 A.L.R. 1303 .
Validity and construction of statute requiring defendant in criminal case to disclose matter as to alibi defense, 45 A.L.R.3d 958.
Duty of court, in absence of specific request, to instruct on subject of alibi, 72 A.L.R.3d 547.
Propriety and prejudicial effect of "on or about" instruction where alibi evidence in federal criminal case purports to cover specific date shown by prosecution evidence, 92 A.L.R. Fed. 313.
CHAPTER 4 CRIMINAL ATTEMPT, CONSPIRACY, AND SOLICITATION
Sec.
Law reviews. - For annual survey article discussing trial practice and procedure, see 52 Mercer L. Rev. 447 (2000).
JUDICIAL DECISIONS
Cited in Smith v. State, 228 Ga. 293 , 185 S.E.2d 381 (1971).
RESEARCH REFERENCES
Abandonment of Crime, Proof of Withdrawal from Conspiracy, 8 POF2d 831.
Conspiracy, Generally, 20 Am. Jur. Trials 351 et seq.
16-4-1. Criminal attempt.
A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.
(Code 1933, § 26-1001, enacted by Ga. L. 1968, p. 1249, § 1.)
Law reviews. - For annual survey on criminal law and procedure, see 42 Mercer L. Rev. 141 (1990). For article, "A Comprehensive Analysis of Georgia RICO," see 9 Ga. St. U. L. Rev. 537 (1993). For survey article on criminal law and procedure for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 117 (2003). For review of 1996 criminal attempt, conspiracy, and solicitation legislation, see 13 Ga. St. U. L. Rev. 105 (1996).
JUDICIAL DECISIONS
ANALYSIS
General Consideration
Editor's notes. - In light of the similarity of the statutory provisions, decisions decided prior to codification of this principle by Ga. L. 1968, p. 1249, § 1, are included in the annotations for this Code section.
Relationship to other laws. - Defendant's prior conviction for attempted armed robbery pursuant to an Alford plea qualified as a predicate offense under the Armed Career Criminal Act, 18 U.S.C. § 924(e), because the record showed that the defendant's plea was knowing and voluntary, and supported by a factual basis. United States v. Wade, 551 Fed. Appx. 546 (11th Cir. 2014), overruled on other grounds, Wade v. United States, Nos. 1:15-CV-1712-RWS-JSA, 1:11-CR-337-RWS-JSA-1, 2016 U.S. Dist. LEXIS 29169 (N.D. Ga. 2016)(Unpublished).
Essential elements of criminal attempt are that the act (substantial step) be such as would be proximately connected with completed crime, and there must be apparent possibility to commit the crime in manner proposed. Fears v. State, 152 Ga. App. 817 , 264 S.E.2d 284 (1979).
Attempt to commit crime consists of three elements: first, intent to commit crime; second, performance of some overt act towards commission of crime; and third, failure to consummate its commission. Howell v. State, 157 Ga. App. 451 , 278 S.E.2d 43 (1981).
To constitute attempt, there must be act done in pursuance of intent, and more or less directly tending to commission of crime. Howell v. State, 157 Ga. App. 451 , 278 S.E.2d 43 (1981).
Act must be one done in pursuance of intent to commit crime and must tend toward commission of the crime. R.L.T. v. State, 159 Ga. App. 828 , 285 S.E.2d 259 (1981); Adams v. State, 178 Ga. App. 261 , 342 S.E.2d 747 (1986).
Attempt requires act done with intent to commit crime, and tending to, but falling short of its commission. Hammond v. State, 47 Ga. App. 795 , 171 S.E. 559 (1933).
Sufficient evidence. - Defendant's conviction of criminal attempt to commit burglary was affirmed because, while the defense presented a different theory of events and claimed that defendant did not act with the intent to commit a theft, it was the jury's province to assess witness credibility, resolve the conflicts in the evidence, and determine whether there was a reasonable hypothesis of innocence favorable to defendant. Anthony v. State, 317 Ga. App. 807 , 732 S.E.2d 845 (2012).
Acts going beyond preparation and towards final commission of crime. - Acts which go towards final commission of crime and are carried beyond mere preparation, although falling short of ultimate design, do constitute attempt to commit crime. Hammond v. State, 47 Ga. App. 795 , 171 S.E. 559 (1933).
Intent necessary. - In order to constitute an attempt to commit a crime, where no crime is actually committed, an intention to commit the particular crime is essential. Jenkins v. State, 53 Ga. 33 , 21 Am. R. 255 (1874); Nowell v. State, 94 Ga. 588 , 21 S.E. 591 (1894); Chelsey v. State, 121 Ga. 340 , 49 S.E. 258 (1904).
Commission means act of committing, doing, or performing; the act of perpetrating. Howell v. State, 157 Ga. App. 451 , 278 S.E.2d 43 (1981).
Criminal attempt defined only in conjunction with substantive crime involved in attempt. Orkin v. State, 236 Ga. 176 , 223 S.E.2d 61 (1976).
Uniform Commercial Code definition of "negotiable instrument" did not apply as an additional element in a prosecution for criminal attempt to commit the crime of theft by taking. Thogerson v. State, 224 Ga. App. 76 , 479 S.E.2d 463 (1996).
Issue is whether accused has gone past preparation and has begun perpetration. Riddle v. State, 145 Ga. App. 328 , 243 S.E.2d 607 (1978).
Mere preparation is insufficient. J.E.T. v. State, 151 Ga. App. 836 , 261 S.E.2d 752 (1979).
Act must be more than mere preparation and must be inexplicable as a lawful act. Howell v. State, 157 Ga. App. 451 , 278 S.E.2d 43 (1981); R.L.T. v. State, 159 Ga. App. 828 , 285 S.E.2d 259 (1981).
Mere acts of preparation, not proximately leading to consummation of intended crime, will not suffice to establish attempt to commit such crime. Howell v. State, 157 Ga. App. 451 , 278 S.E.2d 43 (1981).
It cannot be said that no preparations can amount to an attempt, rather, it is a question of degree, and depends upon circumstance of each case. Howell v. State, 157 Ga. App. 451 , 278 S.E.2d 43 (1981).
Nature of act required to constitute attempt. - In general, to constitute an attempt, there must be an act done in pursuance of the intent, and more or less directly tending to commission of crime. Riddle v. State, 145 Ga. App. 328 , 243 S.E.2d 607 (1978), overruled on other grounds, Adsitt v. State, 248 Ga. 237 , 282 S.E.2d 305 (1981); J.E.T. v. State, 151 Ga. App. 836 , 261 S.E.2d 752 (1979).
Substantial step toward commission of crime suffices. - Substantial step made toward commission of crime, even though it might not be ultimate step or last possible act to consummation of offense attempted, is sufficient evidence to support verdict of guilty of criminal attempt. Lett v. State, 150 Ga. App. 132 , 257 S.E.2d 37 (1979).
Defendant's acts, including telephoning a known drug dealer about purchasing cocaine, and driving to an agreed location to make the transaction, sufficiently constituted a substantial step under Jackson v. Virginia to convict the defendant of attempting to possess cocaine Massey v. State, 267 Ga. App. 482 , 600 S.E.2d 437 (2004).
In an attempt to traffic in cocaine case under O.C.G.A. §§ 16-4-1 and 16-13-31 , the defendant was not entitled to a directed verdict of acquittal because the state did not prove the purity of the cocaine that the defendant intended to purchase; proof of purity was unnecessary given that all that was needed was a substantial step towards the crime of trafficking, not completion of the crime. Davis v. State, 281 Ga. App. 855 , 637 S.E.2d 431 (2006), cert. denied, No. S07C0408, 2007 Ga. LEXIS 151 (Ga. 2007).
Because sufficient evidence was presented which showed that the defendant took substantial steps to arouse the defendant's own sexual desires in soliciting both the defendant's child and the child's cousin, showing the cousin indecent photos, discussing masturbation with both, and trying to kiss the defendant's child between the legs, the defendant's attempted child molestation convictions were upheld on appeal. Carey v. State, 281 Ga. App. 816 , 637 S.E.2d 757 (2006).
Based on a victim's testimony, the jury could have concluded that had the victim consented to the defendant's request for oral sex, the defendant would have performed oral sex on the victim, thereby committing aggravated child molestation; consequently, the jury could have found that the defendant asking the victim about engaging in oral sex constituted a substantial step towards the commission of that crime. Johnson v. State, 284 Ga. App. 147 , 643 S.E.2d 556 (2007).
Count 1 in the indictment was not defective and trial counsel was not deficient in failing to attack the count as the defendant was sufficiently informed of the charges against the defendant and also protected from subsequent prosecution for the same crime because, although Count 1 did not track the criminal attempt statute exactly, read as a whole, Count 1 asserted that, with intent to commit armed robbery, the defendant committed a substantial step toward commission of the crime by pointing a gun at the victim and grabbing the victim's person; and, although Count 1 referenced an attempt to commit robbery, it clearly alleged use of a gun, and armed robbery occurred when a person committed a robbery by use of an offensive weapon. Wilson v. State, 344 Ga. App. 285 , 810 S.E.2d 303 (2018).
Mere preparatory acts not proximately leading to consummation of offense do not constitute attempt. Groves v. State, 116 Ga. 516 , 42 S.E. 755 (1902); Hammond v. State, 47 Ga. App. 795 , 171 S.E. 559 (1933).
What acts constitute attempt may be governed by specific statute. - Indefinite nature of offense at common law of attempt to commit a crime, has induced enactment of many statutes in England and this country, setting forth, in express terms, what acts shall constitute an attempt to commit crimes referred to in such statutes. In such cases, the statute, of course, will govern. Herndon v. State, 178 Ga. 832 , 174 S.E. 597 (1934), appeal dismissed, 295 U.S. 441, 55 S. Ct. 794 , 79 L. Ed. 1530 (1935).
Indictment for attempt to steal cattle was sufficient. - Indictment for attempt to steal cattle which charged the accused with attempting to steal the cattle of a named person located in that person's pasture, without further specifying the cattle intended to be stolen, was sufficiently certain, for where there is only an attempt, it is not always possible to say what particular cattle the would-be thief meant to steal. Davis v. State, 66 Ga. App. 877 , 19 S.E.2d 543 (1942).
Indictment sufficient with regard to Internet sting operation allegations. - With regard to an indictment charging the defendant with computer pornography, attempted aggravated child molestation, and attempted child molestation arising from an Internet sting operation, the appellate court erred by finding that a second indictment was insufficient to withstand a special demurrer because the indictment identified the victim by the only name which the defendant knew the intended victim by and informed the defendant that the intended victim was not an actual child. State v. Grube, 293 Ga. 257 , 744 S.E.2d 1 (2013).
Inclusion of additional acts in indictment is mere surplusage. - Because O.C.G.A. § 16-4-1 requires proof of only one act which is a substantial step toward the commission of the crime, inclusion in the indictment of more than one such act is mere surplusage, which is unnecessary to constitute the offense, need not be proved, and may be disregarded. Ranson v. State, 198 Ga. App. 659 , 402 S.E.2d 740 , cert. denied, 198 Ga. App. 898 , 402 S.E.2d 740 (1991).
Indictment sufficient. - Trial court did not err by denying the defendant's motion for a new trial on the ground that the indictment was defective for failing to allege the essential element of intent to commit a theft because the indictment clearly charged that the defendant attempted to commit a burglary, not that the defendant completed the crime. Coleman v. State, 318 Ga. App. 478 , 735 S.E.2d 788 (2012), recons. denied; overruled on other grounds by State v. Heath, 2020 Ga. LEXIS 362 (Ga. 2020).
Trial court properly denied the defendant's motion for arrest of judgment because the indictment charged attempted aggravated child molestation based on the defendant's act of asking the victim if the victim performed a certain sexual action and referred to the statutory language for attempt and aggravated child abuse as well as specifically alleged that the victim was under the age of sixteen, thus, the indictment sufficiently placed the defendant on notice of the charges. Ashmore v. State, 323 Ga. App. 329 , 746 S.E.2d 927 (2013).
No fatal variance in indictment. - Even if there was a deviation between the allegations in the indictment and the evidence adduced at trial, there was no fatal variance because the defendant was sufficiently informed of the nature and substance of the charge of criminal attempt to commit armed robbery and failed to show that the defendant was unable to present a viable defense. Brown v. State, 307 Ga. 24 , 834 S.E.2d 40 (2019).
Purpose of "substantial step" requirement. - In addition to assuring firmness of criminal purpose, requirement of substantial step will remove very remote preparatory acts from ambit of attempt liability and relatively stringent sanctions imposed for attempts; on the other hand, by broadening liability to extent suggested, apprehension of dangerous person will be facilitated and law enforcement officials and others will be able to stop criminal effort at an earlier stage - thereby minimizing risk of substantive harm - without providing immunity to offender. Howell v. State, 157 Ga. App. 451 , 278 S.E.2d 43 (1981).
Denial of motion to sever. - In a prosecution on two counts of attempting to hijack a motor vehicle, four counts of aggravated assault, possession of a firearm during the commission of a crime, and criminal trespass, because the offenses committed by a defendant and a codefendant amounted to a series of continuous acts connected together both in time and the area in which committed, and there was no likelihood of confusion, the trial court did not abuse its discretion in denying the defendant's motion to sever the trial from that of the codefendant; furthermore, the mere fact that the codefendants' defenses were antagonistic was insufficient in itself to warrant separate trials. Diaz v. State, 280 Ga. App. 413 , 634 S.E.2d 160 (2006).
"Substantial step" language shifts emphasis from what remains to be done to what has been done; the fact that further step must be taken before crime can be completed does not preclude finding that steps already undertaken are substantial and, it is expected, in normal case, that this approach will broaden scope of attempt liability. Howell v. State, 157 Ga. App. 451 , 278 S.E.2d 43 (1981); Adams v. State, 178 Ga. App. 261 , 342 S.E.2d 747 (1986); Smith v. State, 189 Ga. App. 27 , 375 S.E.2d 69 , cert. denied, 189 Ga. App. 913 , 375 S.E.2d 69 (1988); Brown v. State, 242 Ga. App. 858 , 531 S.E.2d 409 (2000).
Effective assistance of counsel in attempted rape trial. - Defendant was not prejudiced by trial counsel's failure to object to testimony speculating as to the defendant's state of mind because there was no reasonable likelihood that the testimony contributed to the guilty verdict on the lesser charge of attempted rape; the testimony regarding the victim's belief as to why the defendant was following the van in which the victim was traveling was not relevant to the consideration of the charges against the defendant, rape or attempted rape. Gomez-Oliva v. State, 312 Ga. App. 105 , 717 S.E.2d 689 (2011), overruled in part by Southall v. State, 300 Ga. 462 , 796 S.E.2d 261 (2017).
Cited in Moore v. State, 231 Ga. 218 , 201 S.E.2d 146 (1973); Wade v. State, 132 Ga. App. 600 , 208 S.E.2d 613 (1974); Mealor v. State, 135 Ga. App. 682 , 218 S.E.2d 683 (1975); J.A.T. v. State, 136 Ga. App. 540 , 221 S.E.2d 702 (1975); Rolland v. State, 235 Ga. 808 , 221 S.E.2d 582 (1976); Johnson v. Jackson, 140 Ga. App. 252 , 230 S.E.2d 756 (1976); Jones v. State, 238 Ga. 51 , 230 S.E.2d 865 (1976); Brooks v. State, 141 Ga. App. 725 , 234 S.E.2d 541 (1977); Printup v. State, 142 Ga. App. 42 , 234 S.E.2d 840 (1977); Brooks v. State, 144 Ga. App. 97 , 240 S.E.2d 593 (1977); Dunbar v. State, 146 Ga. App. 136 , 245 S.E.2d 486 (1978); Amadeo v. State, 243 Ga. 627 , 255 S.E.2d 718 (1979); Brooks v. State, 151 Ga. App. 384 , 259 S.E.2d 743 (1979); Maddox v. State, 152 Ga. App. 384 , 262 S.E.2d 636 (1979); Taylor v. Hopper, 596 F.2d 1284 (5th Cir. 1979); Bissell v. State, 153 Ga. App. 564 , 266 S.E.2d 238 (1980); Rollins v. State, 154 Ga. App. 585 , 269 S.E.2d 81 (1980); Gunter v. State, 155 Ga. App. 176 , 270 S.E.2d 224 (1980); Conroy v. State, 155 Ga. App. 576 , 271 S.E.2d 726 (1980); McKenzie v. State, 248 Ga. 294 , 282 S.E.2d 95 (1981); Morris v. State, 159 Ga. App. 600 , 284 S.E.2d 103 (1981); Davis v. State, 165 Ga. App. 440 , 301 S.E.2d 659 (1983); Graham v. State, 171 Ga. App. 242 , 319 S.E.2d 484 (1984); Lester v. State, 173 Ga. App. 300 , 325 S.E.2d 912 (1985); Cook v. State, 255 Ga. 565 , 340 S.E.2d 843 (1986); Battle v. State, 178 Ga. App. 655 , 344 S.E.2d 477 (1986); Cox v. State, 180 Ga. App. 820 , 350 S.E.2d 828 (1986); Mathis v. State, 184 Ga. App. 455 , 361 S.E.2d 856 (1987); Dawson v. State, 186 Ga. App. 718 , 368 S.E.2d 367 (1988); Wittschen v. State, 259 Ga. 448 , 383 S.E.2d 885 (1989); United States v. Ward, 808 F. Supp. 803 (S.D. Ga. 1992); Keener v. State, 215 Ga. App. 117 , 449 S.E.2d 669 (1994); Painter v. State, 219 Ga. App. 290 , 465 S.E.2d 290 (1995); Busch v. State, 234 Ga. App. 766 , 507 S.E.2d 868 (1998); Sewell v. State, 244 Ga. App. 449 , 536 S.E.2d 173 (2000); Mann v. State, 263 Ga. App. 131 , 587 S.E.2d 288 (2003); Fernandez v. State, 263 Ga. App. 750 , 589 S.E.2d 309 (2003); Brewster v. State, 261 Ga. App. 795 , 584 S.E.2d 66 (2003); Drammeh v. State, 285 Ga. App. 545 , 646 S.E.2d 742 (2007); Smith v. State, 289 Ga. App. 742 , 658 S.E.2d 156 (2008); DaimlerChrysler Motors Co. v. Clemente, 294 Ga. App. 38 , 668 S.E.2d 737 (2008); Simon v. State, 320 Ga. App. 15 , 739 S.E.2d 34 (2013); State v. Cosmo, 295 Ga. 76 , 757 S.E.2d 819 (2014); Rollf v. Carter, 298 Ga. 557 , 784 S.E.2d 341 (2016).
Application
Sufficiency of indictment. - Indictment stating offense charged, attempted armed robbery, in terms and language of O.C.G.A. § 16-4-1 suffices. Miller v. State, 155 Ga. App. 54 , 270 S.E.2d 466 (1980).
Indictment for attempted child molestation was sufficient without alleging the specific intent of child molestation under O.C.G.A. § 16-6-4 . Livery v. State, 233 Ga. App. 332 , 503 S.E.2d 914 (1998).
Indictment for attempted child molestation alleging that defendant took a substantial step toward commission of the crime of child molestation by (1) engaging in sexually-explicit conversations over the internet and (2) driving to an arranged meeting place was not fatally defective in that it failed to allege the commission of a crime. Dennard v. State, 243 Ga. App. 868 , 534 S.E.2d 182 (2000).
Although an indictment for attempting to commit the offense of enticing a child for indecent purposes did not allege actual asportation, it did allege that defendant arranged to meet the victim for the purpose of committing indecent acts and, accordingly, did not fail to allege the taking of a substantial step toward the commission of the crime. Dennard v. State, 243 Ga. App. 868 , 534 S.E.2d 182 (2000).
Trial court properly denied the defendant's motion to dismiss the indictment accusing the defendant of criminal attempt to traffic in cocaine in violation of O.C.G.A. §§ 16-4-1 and 16-13-31(a)(1); purity did not have to be alleged in an attempt case, particularly since there was no cocaine involved in the instant case, the indictment satisfied O.C.G.A. § 17-7-54(a) by tracking the applicable statutes in a manner that was easily understood and by apprising the defendant of both the crime and the manner in which the crime was alleged to have been committed, and if the defendant admitted the allegations precisely as set forth in the indictment, the defendant would have been guilty of criminal attempt to traffic in cocaine. Davis v. State, 281 Ga. App. 855 , 637 S.E.2d 431 (2006), cert. denied, No. S07C0408, 2007 Ga. LEXIS 151 (Ga. 2007).
Trial court erred in granting the defendant's specific demurrer to an indictment charging the defendant with criminal attempt to entice a child for indecent purposes in violation of O.C.G.A. §§ 16-4-1 and 16-6-5(a) because the indictment contained the elements of the crime, informed the defendant of the charges against the defendant, and was specific enough to protect the defendant from double jeopardy, and the language in the indictment tracked the legislative language used in and cited directly to § 16-6-5(a) ; the crime charged in and of itself alerted the defendant to the fact that the defendant was being accused of acting with the intent of engaging in illicit sexual conduct with a minor, and because the defendant was indicted with criminal attempt to commit the crime of enticing a child for indecent purposes, by definition, the defendant fell short of the crime's commission, and any evidence of defendant's criminal intent was necessarily implicit. State v. Marshall, 304 Ga. App. 865 , 698 S.E.2d 337 (2010).
Defendant was properly convicted of criminal attempt to commit burglary, O.C.G.A. §§ 16-4-1 and 16-7-1 , because prosecution for that crime was not time-barred; the crime for criminal attempt to commit burglary was substituted in lieu of a count of burglary charged in the original indictment, and the same evidence could be used to prove both the crime and criminal attempt to commit that crime. Martinez v. State, 306 Ga. App. 512 , 702 S.E.2d 747 (2010).
Trial court did not err in granting the defendant's special demurrer and dismissing the indictment charging the defendant with attempted child molestation, O.C.G.A. §§ 16-4-1 and 16-6-4 , attempted aggravated child molestation, §§ 16-4-1 and 16-6-4 (c), and computer pornography, O.C.G.A. § 16-12-100.2(d) , because the indictment contained inadequate information as to the alleged victim; attempted child molestation, attempted aggravated child molestation, and computer pornography are crimes against a particular person and require the victim to be identified in the indictment, even if the victim was a police officer using a pseudonym. State v. Grube, 315 Ga. App. 885 , 729 S.E.2d 42 (2012).
Offense of enticing. - Offense of enticing does not require that lewd act be accomplished or even attempted, merely that it was intended as motivation for enticement. Thus, standards for proving criminal attempt are not applicable. Peavy v. State, 159 Ga. App. 280 , 283 S.E.2d 346 (1981).
Crime of enticing is complete when the defendant asports the victim with the intent to commit an indecent act, regardless of whether the act is actually committed; when, however, the defendant attempts to entice a child but is unsuccessful with respect to the asportation element, the defendant is properly charged with criminal attempt. Dennard v. State, 243 Ga. App. 868 , 534 S.E.2d 182 (2000).
Defendant's conviction for criminal attempt to entice a child for indecent purposes, under O.C.G.A. §§ 16-4-1 and 16-6-5(a) , was reversed because: (1) the victim's compliance with the defendant's request to send the defendant a naked picture of the victim would not have satisfied the element of asportation since the request did not try to entice the victim to go to another place; (2) without evidence that the defendant tried to move the victim "any place whatsoever," the state did not prove the defendant had the requisite intent to commit the crime of enticing a child and that the defendant took a substantial step toward committing that crime; so (3) the state presented insufficient evidence to prove all elements of the only crime with which the state charged the defendant. Heard v. State, 317 Ga. App. 663 , 731 S.E.2d 124 (2012).
Misdemeanor attempt, not felony, escape sentencing was proper when defendant was jailed for parole violation. - Defendant should have been sentenced for misdemeanor attempted escape under O.C.G.A. § 16-10-52(b)(4) since the defendant was in jail for a parole violation, not for a charge on another crime, when the defendant attempted to escape; because the defendant was not charged with any crime at the time the defendant was incarcerated for the parole violation when the defendant attempted to escape from custody, the defendant was erroneously sentenced for a felony under § 16-10-52(b)(2) and was entitled to resentencing for misdemeanor attempted escape under § 16-10-52(b)(4). Green v. State, 283 Ga. App. 541 , 642 S.E.2d 167 (2007).
Attempted obstruction. - Because an investigative stop of the defendant matured into a de facto arrest when the officers transported the defendant, without consent, to a police investigative site, the officers needed probable cause to arrest the defendant for a criminal drug activity, and, based on what the officers knew at the time of the de facto arrest, probable cause did not exist to arrest the defendant for such an activity; however, the defendant lied to the officers, providing probable cause to arrest the defendant for attempted obstruction under O.C.G.A. §§ 16-4-1 and 16-10-24(a) and therefore, the seizure of the defendant's person was not illegal, and the evidence gathered as a result of the seizure was not suppressed. United States v. Virden, 417 F. Supp. 2d 1360 (M.D. Ga. 2006), aff'd, 488 F.3d 1317 (11th Cir. 2007).
Jury instruction upheld. - Trial court did not err in giving the jury an instruction on conspiracy when the offense charged was not conspiracy but attempted bribery. Since the instruction was free of confusion or other error, it follows that there was no "possibility" or "real probability" that the instruction would induce the jury to convict the defendant of conspiracy (maximum sentence: five years) rather than of attempted bribery (a ten-year maximum). Carpenter v. State, 167 Ga. App. 634 , 307 S.E.2d 19 (1983), aff'd, 252 Ga. 79 , 310 S.E.2d 912 (1984).
To the extent the defendant sought review under O.C.G.A. § 17-8-58(b) , of the trial court's charge to the jury on the jury's consideration of child molestation, attempted child molestation, and indecent exposure, there was no error because the trial court explained that the jury needed to consider all three offenses at the same time and properly explained how the jury would record the jury's verdict. Machado v. State, 300 Ga. App. 459 , 685 S.E.2d 428 (2009).
Trial court did not err in charging the jury on attempted statutory rape, O.C.G.A. §§ 16-4-1 and 16-6-3(a) , because the court's instruction to the jury was properly tailored to fit the allegations in the indictment and the evidence admitted at trial; the victim testified that the defendant positioned himself between her legs with his pants unbuttoned and that the two of them were about to engage in sexual intercourse before the victim's grandfather came into her bedroom, and based on that evidence, a rational trier of fact could conclude that the defendant attempted to have sexual intercourse with a person under the age of 16. Judice v. State, 308 Ga. App. 229 , 707 S.E.2d 114 (2011).
When the evidence showed a completed crime, there was no error in refusing to charge on attempt or abandonment of attempt. Sanders v. State, 251 Ga. 70 , 303 S.E.2d 13 (1983).
Abandonment defense disproved. - With regard to the defendant's convictions for attempted child molestation, the state sufficiently defeated the defendant's defense of abandonment because while the defendant did leave the motel parking lot, it was not until the defendant viewed the task force agents wearing identifying t-shirts, communications through open car windows about the defendant's identification were already had, and the defendant left at a high rate of speed in an attempt to flee. Muse v. State, 323 Ga. App. 779 , 748 S.E.2d 136 (2013).
Failure to give adequate charge. - Since an adequate charge on criminal attempt to commit armed robbery was not given to the jury, that crime cannot serve as a basis for defendant's felony murder convictions. Prater v. State, 273 Ga. 477 , 541 S.E.2d 351 (2001).
Evidence held sufficient. - See Laidler v. State, 180 Ga. App. 213 , 348 S.E.2d 739 (1986) (attempted rape); Walker v. State, 193 Ga. App. 446 , 388 S.E.2d 44 (1989) (attempted armed robbery);; Harrison v. State, 201 Ga. App. 577 , 411 S.E.2d 738 (1991) (attempted felony bail jumping); Criswell v. State, 186 Ga. App. 823 , 368 S.E.2d 579 (1988) (attempted criminal escape); Perkins v. State, 224 Ga. App. 63 , 479 S.E.2d 471 (1996) (attempted child molestation) Alford v. State, 224 Ga. App. 451 , 480 S.E.2d 893 (1997); Hollis v. State, 225 Ga. App. 370 , 484 S.E.2d 54 (1997) (attempted burglary); Sweeney v. State, 233 Ga. App. 862 , 506 S.E.2d 150 (1998) (attempted rape); Heath v. State, 240 Ga. App. 492 , 522 S.E.2d 761 (1999) (attempt to possess cocaine); Salters v. State, 244 Ga. App. 219 , 535 S.E.2d 278 (2000) (attempt to escape); Jackson v. State, 247 Ga. App. 273 , 543 S.E.2d 770 (2000); Davis v. State, 249 Ga. App. 579 , 548 S.E.2d 678 (2001) (attempted armed robbery);(attempted armed robbery).
Evidence insufficient to convict for attempt to commit armed robbery. - Several counts of the defendant's robbery and burglary convictions were reversed as was one count of criminal attempt to commit armed robbery because the finding of the proceeds of some of the robberies at an apartment did not show that the defendant was in possession of the property taken and no witness testified connecting the defendant with some of the home invasions; thus, the evidence did not exclude the reasonable possibility that the defendant did not participate in some of the crimes. Cisneros v. State, 334 Ga. App. 659 , 780 S.E.2d 360 (2015), aff'd, 792 S.E.2d 326 (Ga. 2016).
Evidence was insufficient to convict the defendant of criminal attempt to commit armed robbery because, although the evidence presented supported a finding that the defendant performed certain acts in preparation for an armed robbery, the defendant's acts were merely preparatory acts and did not amount to an attempt to commit the crime of armed robbery as the defendant was not in possession of a weapon or device having the appearance of a weapon; furthermore, there was no evidence that the defendant gave the robbery notes to anyone or concealed the defendant's hands in any way as if to hide a weapon. Rainey v. State, 338 Ga. App. 413 , 790 S.E.2d 106 (2016).
Conviction for attempted rape and aggravated assault. - Defendant's conviction for aggravated assault with intent to rape under O.C.G.A. § 16-5-21(a)(1) merged into the defendant's conviction for attempted rape under O.C.G.A. §§ 16-4-1 (criminal attempt) and 16-6-1 (rape) because the same evidence supported both convictions and, therefore, the aggravated assault conviction was vacated. Smith v. State, 313 Ga. App. 170 , 721 S.E.2d 165 (2011).
Denial of merger. - Because the defendant's convictions for attempt to sell oxycodone and possession with intent to distribute each required proof of a fact which the other did not, the trial court did not err in not merging the offenses and in sentencing the defendant on both. Crankshaw v. State, 336 Ga. App. 700 , 786 S.E.2d 245 (2016).
No merger of attempted burglary and conspiracy to commit armed robbery. - Because attempted burglary and conspiracy to commit armed robbery each required different statutory elements and, thus, required proof of a fact the other did not, the offenses did not merge. Owens v. State, 353 Ga. App. 616 , 838 S.E.2d 909 (2020).
Inconsistent verdict claim rejected. - Defendant's claim that the defendant's attempted armed robbery verdict and three armed robbery verdicts should have been vacated as the defendant was acquitted of the firearms offenses related to those crimes was rejected; although the defendant claimed to have argued that the verdicts were mutually exclusive, the defendant in fact argued that the verdicts were inconsistent and Georgia has abolished the inconsistent verdict rule. Ray v. State, 273 Ga. App. 656 , 615 S.E.2d 812 (2005).
Sentencing. - Convictions for possession of methamphetamine and criminal attempt to manufacture methamphetamine merged as a matter of fact since the state used the same conduct to establish commission of both crimes, namely the same methamphetamine oil found in a toilet; therefore, though it was permissible to prosecute defendant for each crime, defendant could not be convicted for both offenses and a possession conviction and sentence were vacated by operation of law on appeal. Womble v. State, 290 Ga. App. 768 , 660 S.E.2d 848 (2008).
Trial court erred in sentencing the defendant to 20 years to serve on the criminal attempt to commit robbery count because the maximum sentence the defendant could have received was 10 years as convicted of the offense of criminal attempt to commit a felony, not punishable by death or life imprisonment, could be punished by imprisonment for not less than one year nor more than one-half the maximum period of time for which the defendant could have been sentenced if the defendant had been convicted of the crime attempted; the maximum sentence for robbery was 20 years and half that time was 10 years. Ranger v. State, 330 Ga. App. 578 , 768 S.E.2d 768 (2015).
Prior out-of-state convictions. - Defendant's case was remanded for resentencing after a conviction for criminal attempt to manufacture methamphetamine because the trial court considered an uncertified Arkansas docket sheet in aggravation of sentence and a Tennessee conviction that might not qualify as a prior felony in Georgia under the recidivist statute. Elliot v. State, 274 Ga. App. 73 , 616 S.E.2d 844 (2005).
Defendant's conviction for criminal attempt to manufacture methamphetamine was supported by the evidence because: (1) the defendant's spouse informed law enforcement authorities that the defendant was manufacturing methamphetamine; (2) the defendant was discovered at a motel and was arrested; and (3) a forensic chemist testified that the items found in the defendant's motel room were those used in the manufacture of methamphetamine. Elliot v. State, 274 Ga. App. 73 , 616 S.E.2d 844 (2005).
1. Offenses Against Property
Evidence of criminal attempt to enter automobile sufficient. - Evidence that defendants discussed theft of a car stereo, possessed tools to aid in the commission of such a crime, and that they drove to a shopping center parking lot in search of a specific car to enter was sufficient to find them guilty of criminal attempt to enter an automobile. Evans v. State, 216 Ga. App. 21 , 453 S.E.2d 100 (1995).
There was sufficient evidence to support the defendant's conviction for criminal attempt to commit the felony of entering an automobile as the state presented circumstantial evidence that the defendant attempted to enter the victim's vehicle with the intent to commit a theft, including the victim's testimony that the victim observed the defendant attempting to lift the door handle of the victim's car. In the Interest of M. F., 353 Ga. App. 737 , 839 S.E.2d 291 (2020).
Evidence that the defendant's DNA was on the steering wheel of a vehicle identified as being at the scene of the offenses, that the defendant and the accomplice were together either the day after the murder or the next day, and that the defendant was driving the car on the day of the murder was sufficient to support the conviction for entering one automobile and attempting to enter a second automobile and the jury's rejection of the theory that someone else was with the accomplice was not insupportable. Chestnut v. State, 353 Ga. App. 530 , 838 S.E.2d 605 (2020).
Attempt to enter an automobile did not merge with loitering. - Merging of sentences for attempt to enter an automobile in violation of O.C.G.A. §§ 16-4-1 and 16-8-18 , and loitering under O.C.G.A. § 16-11-36 , was not warranted because loitering required proof of presence in a place at a time or in a manner not usual for law-abiding individuals, and attempt to enter an automobile required performance of an act which constituted a substantial step toward the commission of entering an automobile, both elements not required by the other crime. Brown v. State, 312 Ga. App. 489 , 718 S.E.2d 847 (2011).
Evidence sufficient for conviction of attempt to commit burglary. - Breaking window of door and reaching inside in attempt to open the door does not constitute entry for purposes of O.C.G.A. § 16-7-1 and will only sustain conviction for criminal attempt to commit burglary. Hampton v. State, 145 Ga. App. 642 , 244 S.E.2d 594 (1978).
Presence of valuables inside premises, evidence of defendant's flight, presence of a cement block under a broken window, and a positive identification of defendant were sufficient to support defendant's conviction of criminal attempt to commit burglary. Methvin v. State, 189 Ga. App. 906 , 377 S.E.2d 735 (1989).
Circumstantial evidence was sufficient to sustain defendant's conviction of criminal attempt to commit burglary, where defendant was found walking about a quarter of a mile from the burglarized premises within about a half hour of the attempted burglary, lied about defendant's identity, and was wearing boots and was carrying a knife with a piece of wire on it, and there was evidence that a bootprint was found at the premises and that the telephone line had been cut. Ware v. State, 198 Ga. App. 24 , 400 S.E.2d 384 (1990).
Evidence was sufficient to support convictions for attempted burglary after police officers who responded to an alert by a security company of an irregular noise at a warehouse found defendants with tools covered with cinder block dust along with a four foot hole in the back cinder block wall of the warehouse. Climpson v. State, 253 Ga. App. 485 , 559 S.E.2d 495 (2002).
Insertion of a crowbar into the locked door to a business with the intent of prying open the door, and exerting pressure on the crowbar in such a manner that the striker plate on the door was bent and damaged, constituted a substantial step toward the commission of the crime of burglary to support a conviction for attempted burglary. Flanagan v. State, 265 Ga. App. 122 , 592 S.E.2d 894 (2004).
Evidence was sufficient to support the defendant's conviction for attempted burglary as the evidence showed that the defendant took the substantial step of prying open the carport door of the house of another person, the exterior of which was 100 percent complete, so that the defendant could steal the valuable construction tools inside, and that the defendant was caught in the act while doing so. Weeks v. State, 274 Ga. App. 122 , 616 S.E.2d 852 (2005).
Evidence supported the defendant's conviction for attempted burglary after the defendant admitted trying to break into a gas station to steal beer and cigarettes. Smith v. State, 273 Ga. App. 107 , 614 S.E.2d 219 (2005).
Sufficient evidence, including that the defendant took a substantial step of knocking off the victim's shed door handle, without authority, with the intent to steal valuable goods therein, supported an attempted burglary conviction; moreover, although the defendant denied any intention to commit a theft, the credibility of the witnesses and the questions as to the reasonableness of the defendant's actions were issues for the factfinder to decide. Minor v. State, 278 Ga. App. 327 , 629 S.E.2d 44 (2006).
Sufficient evidence supported the defendant's conviction of criminal attempt to commit burglary since the defendant, who had a history of sexual assaults, went to a hotel alone, late at night, wearing a mask, since, after visiting the hotel parking lot once before in the evening, and following a female hotel employee until the employee ran, the defendant approached the office door where that same lone female hotel employee had returned to work, and attempted to open the locked door, since, when the locked door would not open, the defendant continued to shake the door violently, still wearing the mask, and since, when the defendant saw the hotel employee pick up the phone and dial 9-1-1, the defendant fled; in light of this evidence, the jury was authorized to conclude that the defendant took a substantial step toward entering the hotel office without authority to commit a sexual felony therein. Swint v. State, 279 Ga. App. 777 , 632 S.E.2d 712 (2006).
Defendant was properly sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), and U.S. Sentencing Guidelines Manual § 4B1.1(a) based upon a Georgia attempted burglary of a dwelling conviction under O.C.G.A. §§ 16-4-1 and 16-7-1 because the defendant failed to object to the factfindings at sentencing, which conclusively established that the defendant was in fact convicted of attempting to commit a generic burglary within the meaning of 18 U.S.C. § 924(e); thus, because that offense was an enumerated violent felony, the crime of attempting to commit that offense was also a violent felony, permitting the court to use the conviction as a predicate offense under the Armed Career Criminal Act after the defendant pled guilty to violating 18 U.S.C. § 922(g). United States v. Wade, 458 F.3d 1273 (11th Cir. 2006).
There was sufficient evidence to support defendant's convictions of malice murder, felony murder, armed robbery, aggravated assault, attempted burglary, and possession of a firearm by a convicted felon; in addition to testimony by a codefendant and eyewitness testimony by the victim's spouse, the victim's blood was on the defendant's clothes, the defendant had the victim's keys, and the knife used to kill the victim and a pistol were discovered near the site of the defendant's arrest in some woods near the scene of the crime. Walker v. State, 282 Ga. 774 , 653 S.E.2d 439 (2007), cert. denied, 129 S. Ct. 481 , 172 L. Ed. 2 d 344 (2008), overruled on other grounds, No. S10P1859, 2011 Ga. LEXIS 267 (Ga. 2011).
Despite a sufficiency challenge to an adjudication on a charge of criminal attempt to commit burglary, the court of appeals upheld the finding because the juvenile's conduct including: (1) repeatedly ringing the victim's doorbell; (2) hiding in the backyard; (3) furtive observation of the victim's house; (4) telephone contact with the other juvenile who was at the victim's front door; and (5) climbing over a basketball goal to reach a window at the back of the house was suspicious and undoubtedly consistent with preparation for a daylight burglary. Moreover, the juvenile's actions, as well as evidence of a bent window screen, constituted evidence of a substantial step towards entering the victim's house without authority and inconsistent with a lawful purpose. In the Interest of R.C., 289 Ga. App. 293 , 656 S.E.2d 914 (2008).
Evidence supported a conviction of criminal attempt to commit burglary. The victim heard knocking at the victim's sliding glass door and saw the defendant, a neighbor, crouched down holding a crowbar and beating the bottom track of the door; when the victim asked what the defendant was doing, the defendant said, "Oh, you're home," and asked to borrow the victim's shovel, then said that the defendant had just wanted to make sure the victim was okay and left without the shovel; when police asked the defendant what had gone on, the defendant said, "I didn't have a crowbar in my hand. I had a screwdriver in my hand"; and during an interview with police, the defendant gave differing explanations for the defendant's actions. Rudnitskas v. State, 291 Ga. App. 685 , 662 S.E.2d 729 (2008).
Evidence was sufficient to show that the defendant, who was convicted of attempted burglary under O.C.G.A. §§ 16-4-1 and 16-7-1 , had the intent to rob the sawmill in question. The defendant and others set out early on a Saturday and entered the property in an unusual way; and the defendant drove the getaway truck, lied to police, and failed to produce a flashlight when asked to empty the defendant's pockets. Armour v. State, 292 Ga. App. 111 , 663 S.E.2d 367 (2008).
Trial court did not err in denying a defendant's motion for a directed verdict of acquittal on a charge of attempted burglary in violation of O.C.G.A. §§ 16-4-1 and 16-7-1(a) because the evidence was sufficient to authorize the jury to conclude that the defendant took a substantial step toward entering an owner's apartment to commit a felony; the defendant's inculpatory statement that the defendant intended to enter the owner's apartment to get money was direct evidence of the defendant's guilt, and this statement, combined with a witness's testimony that the witness heard the defendant and the defendant's brother discuss entering the owner's apartment through the window, saw them on the owner's porch, and then heard the window breaking, provided ample evidence to support the defendant's conviction of attempted burglary beyond a reasonable doubt. Durham v. State, 295 Ga. App. 734 , 673 S.E.2d 80 (2009).
With regard to the defendant's conviction for attempted burglary, sufficient evidence supported the conviction because the jury evaluated the nature of the circumstances of the morning's events, as well as the daughter's eyewitness testimony identifying the defendant and, although the defendant explained that it was mistakenly the wrong house, the jury was authorized to come to a different and reasonable conclusion based on the state's case. White v. State, 323 Ga. App. 660 , 744 S.E.2d 857 (2013).
Evidence was sufficient to sustain the defendant's attempted burglary conviction since the victim testified that, after the victim woke and saw the defendant outside, the victim found the screen to an open window on the hood of the victim's car and found a piece of carpet the victim had left in the window sill for the victim's cat to sit on in the yard. The jury thus could have found that the defendant removed the screen in an attempt to gain entrance into the house. Dillard v. State, 323 Ga. App. 333 , 744 S.E.2d 863 (2013).
Evidence that the defendant rang the doorbell, made a motion in which the defendant appeared to adjust a gun, and that two other people stood to the defendant's side, one wearing a mask and holding a sawed-off shotgun and the other crouched behind the defendant with a pistol was sufficient to support the defendant's conviction for criminal attempt to commit burglary. Owens v. State, 353 Ga. App. 616 , 838 S.E.2d 909 (2020).
Evidence sufficient for criminal attempt to commit theft by receiving stolen property. - Evidence that the informant told the defendant that the items being pawned were not "hot, hot," the defendant's failure to put serial numbers of the items on the pawn tickets or property-tracking website, the defendant's instructions to the informant to remove the packaging of one of the new items, and the defendant's admission that the defendant had been suspicious of the informant was sufficient to support the defendant's conviction for criminal attempt to commit theft by receiving stolen property. Miller v. State, 323 Ga. App. 412 , 744 S.E.2d 926 (2013).
Rule of lenity did not apply. - Trial court did not err in not applying the rule of lenity with regard to the defendant's conviction for criminal attempt to commit burglary because the crimes of criminal trespass and criminal attempt to commit a burglary did not address the same criminal conduct and there was no ambiguity created by different punishments being set forth for the same crime; thus, the rule of lenity did not apply. Snow v. State, 318 Ga. App. 131 , 733 S.E.2d 428 (2012).
Trial court did not err by not applying the rule of lenity in sentencing the defendant on criminal attempt to commit a felony, rather than on aggravated assault, because the statutory language and indictment showed that the two counts did not address the same criminal conduct as the criminal attempt (of murder) included the substantial step of pulling the trigger of the handgun aimed at the victim's head, which additional step was not required for the commission of aggravated assault. Gonzalez v. State, 352 Ga. App. 83 , 833 S.E.2d 727 (2019).
Attempt to push open door sufficient for attempted burglary. - Defendant's attempted burglary conviction, O.C.G.A. § 16-4-1 , was supported by evidence that the victim heard someone "snatching" at and "pushing on" the victim's door. When the victim observed the defendant and another person outside the victim's house, the victim threatened to shoot them; they fled in a car that they had parked close enough to the house that they could have stood on the car and climbed through a window. Mock v. State, 306 Ga. App. 93 , 701 S.E.2d 567 (2010).
Severance from separate charge of armed robbery. - Attempted armed robbery conviction was upheld on appeal, as severance from a separate charge of armed robbery was not required, given that the two crimes were part of a series of connected acts, committed within a short period of time, in the same area, with the same weapon, and involved a similar modus operandi. Fields v. State, 283 Ga. App. 208 , 641 S.E.2d 218 (2007).
Evidence sufficient for criminal attempt to commit armed robbery. - Since the victim testified that, while threatening the victim with a loaded gun and after telling the victim that defendant wouldn't hesitate to kill the victim, defendant asked, "do you got any money in here?", the evidence provided a sufficient basis for the jury's determination that defendant was guilty of criminal attempt to commit armed robbery. Green v. State, 249 Ga. App. 546 , 547 S.E.2d 569 (2001).
Evidence was sufficient to support the defendant's conviction of criminal attempt to commit armed robbery because the defendant surreptitiously watched others at a fast food restaurant, wore a mask, and drew a BB handgun that resembled a semi-automatic weapon when the defendant was confronted by a police officer. New v. State, 270 Ga. App. 341 , 606 S.E.2d 865 (2004).
Evidence supported the defendant's conviction for armed robbery, attempted armed robbery, burglary, and one firearms offense because: (1) the defendant confessed to the crimes; (2) a companion wore distinctive shoes that matched those of an armed robber; (3) two dust-free ski masks, similar to those worn by the armed robbers, were found in the defendant's very dusty utility closet; and (4) a small red car was parked near a restaurant that was robbed, officers stopped the defendant two hours later, and the defendant drove the same car to the police station when the defendant came for voluntary questioning. Ray v. State, 273 Ga. App. 656 , 615 S.E.2d 812 (2005).
Evidence supported a conviction for criminal attempt to commit armed robbery because the defendant jumped over the counter at a restaurant, held a knife to a waitress' neck and, after fleeing the scene and being caught by police, admitted to the crime. Lemming v. State, 272 Ga. App. 122 , 612 S.E.2d 495 (2005), overruled on other grounds, Miller v. State, 285 Ga. 285 , 676 S.E.2d 173 (2009).
Armed robbery, attempted armed robbery, and possession of a firearm during the commission of a crime convictions were upheld on appeal, based on sufficient evidence supporting the defendant's guilt, specifically, a security surveillance videotape, eyewitness testimony, and the defendant's voluntary admission to police. Smith v. State, 281 Ga. App. 587 , 636 S.E.2d 748 (2006).
Evidence was sufficient to convict the defendant of criminal attempt to commit armed robbery, even though the defendant never said the defendant was going to rob a store or demanded money, as the jury was authorized to find that, having spent all of the defendant's money, the defendant took the substantial step of entering the store with a knife with the intent to commit robbery. Boyd v. State, 284 Ga. 46 , 663 S.E.2d 218 (2008).
Evidence supported the defendant's convictions for malice murder, felony murder, criminal attempt to commit armed robbery, armed robbery, aggravated assault, and possession of a firearm during the commission of a crime because: (1) the defendant participated in the armed robbery of three people, including the shooting victim, who were sitting in a car on a neighborhood street; (2) during the encounter, the co-indictee fatally shot the victim in the head with a shot gun; (3) one of the two other people in the car testified that, after the shooting, the defendant, with the defendant's hand in the defendant's pocket simulating that the defendant had a gun, took money and drugs from the witness; (4) the co-indictee also took money from the other person; and (5) the defendant and the co-indictee then fled the scene. Gilyard v. State, 288 Ga. 800 , 708 S.E.2d 329 (2011).
Victim's testimony that the defendant was one of the two men who came into the victim's house, beat the victim with fists and a flashlight, and demanded the victim's keys and money authorized the jury to find the defendant guilty of burglary, aggravated battery, and criminal attempt to commit armed robbery. Garmon v. State, 317 Ga. App. 634 , 732 S.E.2d 289 (2012).
Evidence including testimony as to the gang's criminal activities, corroborating the defendant's participation in the armed robberies; the defendant's admission to participating in two murders; and a gun the defendant used in the attempted armed robbery of the first victim was sufficient to support the defendant's convictions for criminal street gang activity, criminal attempt to commit armed robbery, two counts of aggravated assault, and possession of a firearm during the commission of a felony. Morris v. State, 322 Ga. App. 682 , 746 S.E.2d 162 (2013).
Sufficient evidence supported the defendant's convictions for two counts of armed robbery with respect to two victims at the first residence, attempt to commit armed robbery with respect to one of the victims at the first residence, and two counts of burglary with respect to the two residences because the accomplice testimony was sufficiently corroborated by one of the witnesses, who identified the defendant. Lane v. State, 324 Ga. App. 303 , 750 S.E.2d 381 (2013).
Evidence that men ultimately identified as the defendant and the codefendant broke into the victims' home, held all three victims at gunpoint while demanding drugs and money, and began loading electronics and other valuables from the home into the victims' vehicle before fleeing the premises was sufficient to support the defendant's three attempted armed robbery convictions. Issa v. State, 340 Ga. App. 327 , 796 S.E.2d 725 (2017).
Jury was authorized to conclude that the defendant used a firearm to attempt to take money from the victim given the victim's testimony that the defendant pulled out a gun and asked the victim what the victim had in the victim's pockets. Green v. State, 304 Ga. 385 , 818 S.E.2d 535 (2018).
Circumstantial evidence was sufficient to convict the defendant of felony murder predicated on criminal attempt to commit armed robbery because the victim was found dead from gunshot wounds; the victim's wallet was missing when the victim was found; the suspect fled the scene in a small, silver sedan; the defendant's co-indictee was driving a vehicle matching that description in the area at the time of the murder; and the defendant stated in a jailhouse telephone conversation that the defendant was involved in the week-long crime spree. Perdomo v. State, 307 Ga. 670 , 837 S.E.2d 762 (2020).
Evidence that the defendant approached the victim with a handgun, pointed the gun at the victim while demanding money, and ultimately shot the victim was sufficient to support the defendant's convictions for armed robbery, criminal attempt to commit armed robbery, aggravated assault, and possession of a firearm during the commission of a crime. Cooke v. State, Ga. App. , S.E.2d (Sept. 15, 2020).
Evidence insufficient to convict for attempt to commit theft by taking as a fiduciary. - Evidence was insufficient to convict the defendant of criminal attempt to commit theft by taking by a fiduciary as the relationship between the defendant and the employer was merely that of employer-employee because, although the defendant was responsible for creating invoices, the defendant did not have authority to act for the employer beyond weighing the metals and assigning to the weight a dollar amount that had been previously fixed by the employer; and the defendant could not negotiate with the customers or independently determine how much the metals were worth; thus, although the conviction for criminal attempt to commit theft by taking stood, the felony sentence, based on the defendant being a fiduciary, was reversed. Scott v. State, 344 Ga. App. 412 , 810 S.E.2d 613 (2018).
Criminal attempt not included in offense of shoplifting. - Trial court did not err in refusing to instruct on criminal attempt as a lesser included offense of theft by shoplifting where the evidence showed that defendant concealed shirts in defendant's pants while in the store and the only issue for the jury was whether defendant had the requisite intent to shoplift; if the jury had not found such intent, it would have been required to acquit defendant. Parham v. State, 218 Ga. App. 42 , 460 S.E.2d 78 (1995).
Possession of firearm did not merge with attempted armed robbery conviction. - Possession of a firearm during the commission of a felony did not merge with an attempted armed robbery conviction because the crime of possession of a firearm is considered to be a separate offense under O.C.G.A. § 16-11-106(b) and (e). McKinney v. State, 274 Ga. App. 32 , 619 S.E.2d 299 (2005).
Criminal attempt to commit theft from vehicle. - There was no merit to argument of juvenile defendant that circumstantial evidence was insufficient to prove the acts of entering an automobile and criminal attempt to commit theft from a vehicle since, during the early morning hours, defendant was in the area where a car stereo was stolen and the attempted theft of tire rims occurred, a driver's license bearing the false name defendant gave was found at the crime scene, defendant returned to the car that defendant was driving with a car stereo, and car stereo parts were found in the car defendant was driving. In the Interest of C.M., 290 Ga. App. 788 , 661 S.E.2d 598 (2008).
Defendant's act of repeatedly pulling at a vehicle's door handle in a sorority house parking lot at 2:00 A.M. amounted to more than a mere preparatory act, and was instead an act proximately leading to the consummation of the crime of entering an automobile, supporting the defendant's conviction for attempt to enter an automobile in violation of O.C.G.A. §§ 16-4-1 and 16-8-18 . Brown v. State, 312 Ga. App. 489 , 718 S.E.2d 847 (2011).
Attempt to hijack a motor vehicle. - Given that a defendant repeatedly stabbed a victim in the throat in a parking lot to attempt to force the victim to get inside the victim's car, the trial court could find that the defendant rejected the car keys when the victim offered the keys because the defendant intended to abscond with both the car and the victim as needed to prove attempted hijacking of a motor vehicle under O.C.G.A. §§ 16-4-1 and 16-5-44.1(b) . Hickman v. State, 311 Ga. App. 544 , 716 S.E.2d 597 (2011).
Abandonment of robbery not found. - Trial court properly denied the defendant's motion for a directed verdict, on a charge of criminal attempt to commit armed robbery, as the mere fact of the fortuitous arrival of the police while the defendant and another were about to commit the actual robbery did not constitute an abandonment of the act. Level v. State, 273 Ga. App. 601 , 615 S.E.2d 640 (2005).
Charge on attempted first-degree arson was authorized, since the jury would have been authorized from the evidence to conclude that the defendant intended to set fire to a house and that defendant set fire to clothing as a substantial step toward the commission of that crime. Plemons v. State, 194 Ga. App. 554 , 390 S.E.2d 916 (1990).
Evidence was sufficient to support the defendant's conviction of criminal attempt to commit arson, even though the defendant testified that the defendant poured the gasoline on the floor as an experiment to get rid of insects, when a victim testified that the defendant poured gasoline on the floor after getting angry with the defendant's spouse, a neighbor testified that the victim and the victim's parent smelled like gasoline, the police chief testified that the odor of gasoline was so strong that the defendant called the fire department, and the defendant testified that the defendant overreacted when the defendant heard the defendant's spouse and child laughing and that the defendant told them that they thought that the defendant was wrong about burning the house down. Waller v. State, 267 Ga. App. 608 , 600 S.E.2d 706 (2004).
When the facts demonstrated that the defendant threatened to burn down a restaurant and then proceeded to pour gasoline onto the restaurant's tables and carpet in front of numerous eyewitnesses, such was sufficient evidence to allow a rational jury to convict defendant of attempt to commit arson and terroristic threats; moreover, the defendant's act of damaging the tables and carpet by pouring gasoline on them was sufficient to support a conviction of first-degree criminal damage to property. Robinson v. State, 288 Ga. App. 219 , 653 S.E.2d 810 (2007).
Fingerprint evidence sufficient. - Evidence was sufficient to adjudicate the defendant juvenile delinquent for acts that, if committed by an adult, would constitute the offenses of burglary and attempted burglary because, for purposes of the first burglary, it appeared to the investigating officers that the burglar had entered through a kitchen window at the rear of the house, and the officers found the defendant's palm prints on the outside of the bottom lower window pane of that window; for purposes of the second burglary, the officers found the defendant's palm prints on the outside of three windows at the back of the house; and the only reasonable hypothesis was that the defendant's palm prints were impressed at the time of the burglaries. In the Interest of S. B., 348 Ga. App. 339 , 822 S.E.2d 835 (2019).
2. Offenses Against Individuals
Kidnapping not converted to mere criminal attempt when victim did not obey all of the assailant's commands. Padgett v. State, 170 Ga. App. 98 , 316 S.E.2d 523 (1984).
In a prosecution for enticing a child for indecent purposes, there was no error in the trial court's refusal to charge the jury on the offense of criminal attempt. Morris v. State, 179 Ga. App. 228 , 345 S.E.2d 686 (1986).
Enticement and intended motivation must be shwon to support attempt to entice a child for indecent purposes. - Defendant's convictions for criminal attempt of enticing a child for indecent purposes were reversed because the state failed to present any evidence to show that an act of indecency or child molestation was the intended motivation behind the defendant's apparent attempts to entice the victims into the defendant's vehicle when the defendant drove by the alleged victims or asked one to put their bike in the truck. Phillips v. State, 354 Ga. App. 88 , 840 S.E.2d 165 (2020).
Asportation of child is not essential element of attempted child molestation. Wittschen v. State, 189 Ga. App. 828 , 377 S.E.2d 681 (1988), aff'd, 259 Ga. 448 , 383 S.E.2d 885 (1989).
Delinquent attempted aggravated child molestation. - In order to find juvenile defendant guilty of the delinquent act of attempted aggravated child molestation, the court must find defendant attempted aggravated child molestation with intent to satisfy defendant's own desires. Whether the juvenile defendant had the sexual intent or knowledge of an adult would be irrelevant. In re W.S.S., 266 Ga. 685 , 470 S.E.2d 429 (1996).
Defendant's conviction of attempted child molestation was affirmed on evidence showing that defendant drove a van up to two young girls who were roller-skating on a street, held up dollar bills and asked them if they would like to have the money, and when one girl responded affirmatively, made a lewd suggestion. Wittschen v. State, 189 Ga. App. 828 , 377 S.E.2d 681 (1988), aff'd, 259 Ga. 448 , 383 S.E.2d 885 (1989).
When there was undisputed evidence that the defendant entered the 12-year old victim's house with the intent to engage in sexual activity and that the defendant sat nude on the victim's bed while the victim was in the bed, a rational trier of fact could have concluded beyond a reasonable doubt that the defendant was guilty of criminal attempt to commit child molestation. Garmon v. State, 192 Ga. App. 250 , 384 S.E.2d 278 (1989).
Evidence that defendant undressed himself and a 14-year-old girl and then climbed into bed with her was more than sufficient to sustain defendant's conviction of criminal attempt to commit child molestation in violation of O.C.G.A. §§ 16-4-1 and 16-6-4(a) . Colbert v. State, 255 Ga. App. 182 , 564 S.E.2d 787 (2002).
Defendant could be convicted of criminal attempt to commit child molestation since defendant had definitely gone beyond mere preparation as the undisputed evidence showed that defendant repeatedly visited the victim and offered the victim money, defendant stuck a hand in the front pocket of the victim's pants, carried a picture of the victim in defendant's wallet, and gave the victim a note that expressly stated that defendant wanted to make love to the victim. Lopez v. State, 258 Ga. App. 92 , 572 S.E.2d 736 (2002).
Evidence was sufficient to support conviction for attempted child molestation under O.C.G.A. § 16-4-1 when defendant: (1) wrapped defendant's body around a child so as to restrain the child's arms; (2) rubbed and kissed the child's back, placing defendant's feet in the child's crotch; and (3) asked where the child had been all defendant's life. Tanner v. State, 259 Ga. App. 94 , 576 S.E.2d 71 (2003).
Evidence supported the defendant's attempted child molestation conviction as the defendant showered a 13-year-old victim with gifts and marijuana to induce the victim to have sexual intercourse with the defendant. Leaptrot v. State, 272 Ga. App. 587 , 612 S.E.2d 887 (2005).
Evidence supported the defendant's conviction of child molestation and criminal attempt to commit child molestation because: (1) the nine-year-old victim testified that on multiple occasions the defendant fondled the victim's breasts and private parts; (2) the victim further testified that the defendant attempted to have the victim touch the defendant's genitals; and (3) the victim initially informed the victim's mother of the defendant's actions and shortly thereafter repeated the details of the incidents to a therapist and two child services agency case workers. Cook v. State, 276 Ga. App. 803 , 625 S.E.2d 83 (2005).
Despite allegations that: (1) the victim's testimony was contradicted by the victim's mother; and (2) the victim had a motive to lie about the defendant, the appeals court refused to disturb the jury's determination as to the same, given the jury's province to resolve the conflicts in the evidence; hence, the defendant's cruelty to children and attempted aggravated and child molestation convictions were upheld on appeal. Chalker v. State, 281 Ga. App. 305 , 635 S.E.2d 890 (2006).
Sufficient evidence supported the defendant's convictions of aggravated child molestation under O.C.G.A. § 16-6-4(c) , attempted aggravated sodomy under O.C.G.A. §§ 16-4-1 and 16-6-2(a) , and statutory rape under O.C.G.A. § 16-6-3(a) ; the victim testified that the defendant put the defendant's privates inside the victim's privates and attempted to put the defendant's privates in the victim's behind, and the nurse practitioner testified that the physical examination of the victim indicated injuries consistent with the victim's testimony. Anderson v. State, 282 Ga. App. 58 , 637 S.E.2d 790 (2006), overruled on other grounds, Schofield v. Holsey, 281 Ga. 809 , 642 S.E.2d 56 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Rational trier of fact could have found the defendant guilty of attempted child molestation beyond a reasonable doubt because whether the defendant's actions were immoral or indecent and done with the requisite intent were questions for the jury. Machado v. State, 300 Ga. App. 459 , 685 S.E.2d 428 (2009).
Evidence that the defendant, age 35, met a girl online whom the defendant believed was 15, that the defendant made numerous comments about how the defendant could get in trouble or go to jail, that the defendant engaged in sexually explicit conversations and directed the child to pornography sites showing black men having sex with white women, that the defendant drove to an arranged meeting place, and, that, when officers appeared, the defendant fled, was sufficient to convict defendant of violating O.C.G.A. §§ 16-4-1 (attempt), 16-6-4 (child molestation), 16-6-5 (enticement of a child), and 16-10-24 (obstruction). Smith v. State, 306 Ga. App. 301 , 702 S.E.2d 211 (2010).
Evidence that the defendant raised the subject of masturbation with the child victim and asked her to perform that act upon him was sufficient to support the defendant's conviction of attempted child molestation. Pendley v. State, 308 Ga. App. 821 , 709 S.E.2d 18 (2011).
Evidence that the defendant sent email communications to a person the defendant believed to be the mother of a 14-year-old girl, arranged to pay for a night of "companionship" with the girl, and traveled to the arranged meeting place was sufficient to show that the defendant took a substantial step toward committing the crime of child molestation and supported the conviction for attempted child molestation. Schlesselman v. State, 332 Ga. App. 453 , 773 S.E.2d 413 (2015).
Evidence that the defendant communicated with someone the defendant believed was a 15-year-old girl, asked the alleged child repeatedly for nude photos, told the child the defendant was a horny and dirty old man, and told the child they could play and get all worked up and be ready for fun before meeting, arranged a meeting, and traveled to the arranged meeting place was sufficient to support the defendant's conviction for attempt to commit child molestation. Reid v. State, 349 Ga. App. 196 , 825 S.E.2d 555 (2019).
Evidence was sufficient to convict the defendant of the remaining counts of aggravated child molestation, child molestation, attempted child molestation, and cruelty to children, not included in Count 3, based on the video-recordings of the children's forensic interviews; testimony about the children's various disclosures; the children's testimony; and the neighbors' testimony that the neighbors observed bruises and other injuries on the children, and saw the defendant kick one of the children. Shepherd v. State, 353 Ga. App. 228 , 836 S.E.2d 221 (2019).
Conviction of criminal attempt to commit child molestation and to entice a child upheld; the defendant had sexual contact with his daughters when they were children, with one of the daughters giving birth to two of his children, he touched the victim (his 10-year-old granddaughter) inappropriately, and he gave her a note asking to lie in bed with her and caress her. Shaum v. State, 355 Ga. App. 513 , 844 S.E.2d 863 (2020).
Sexual offenses with minors initiated over the Internet. - Defendant was not entrapped by law enforcement because: (1) the defendant, via electronic communications, asked an undercover officer who was posing as a teenage girl to engage in sexual intercourse and oral sodomy with the defendant, even after the "teenage girl" told the defendant that the teenage girl was 14 years old; (2) the defendant initiated the conversation during which a meeting was arranged and the defendant described in detail the sex acts which the defendant wished to perform on the teenage girl at the park where the two discussed meeting for sex; (3) when the defendant arrived at the park, the defendant possessed a condom on the defendant's person; and (4) when the officers who stopped the defendant at the park explained that the officers were with a task force for Internet crimes against children, the defendant immediately responded that the defendant was at the park to counsel a 14-year-old girl about the dangers of meeting men from the Internet. Logan v. State, 309 Ga. App. 95 , 709 S.E.2d 302 , cert. denied, No. S11C1101, 2011 Ga. LEXIS 579, cert. denied, 132 S. Ct. 823 , 181 L. Ed. 2 d 533 (2011).
When the defendant was charged with using the Internet to seduce, solicit, lure, or entice a child or a person believed to be a child to commit an illegal sex act, under O.C.G.A. § 16-12-100.2(d)(1), attempted aggravated child molestation, under O.C.G.A. §§ 16-4-1 and 16-6-4(c) , and attempted child molestation, under O.C.G.A. §§ 16-4-1 and 16-6-4(a) , it was not error to deny the defendant's motion for a directed verdict of acquittal, based on entrapment, because the jury's determination that entrapment did not occur was supported by evidence that: (1) the defendant continued communicating with a person the defendant believed to be 14 years old, including having sexually explicit conversations with the person in which the defendant stated the defendant wanted "a lot of oral," after the defendant learned that the person was 14 years old; (2) the defendant discussed with the person how the person could meet the defendant if the person could not drive, inquired whether the person had ever snuck away from home before, and stated that the defendant believed the union would be legal if the defendant were 16 years old, instead of the defendant's actual age; (3) the defendant left the defendant's home of Tennessee to meet a purportedly 14-year-old girl in order to have sex with the person, which the defendant admitted in the defendant's statements to officers; and (4) the defendant brought condoms with the defendant, which the defendant stated were to prevent any "accidents" in the event the defendant was able to have sex with the person. Millsaps v. State, 310 Ga. App. 769 , 714 S.E.2d 661 (2011).
Sufficient evidence supported the defendant's conviction for criminal attempt to entice a child for indecent purposes based on the evidence that the defendant thought the intended victim was a 15-year-old girl with whom the defendant continued to contact, engaged in sexually explicit conversations, and arranged to meet for a sexual encounter, and although the defendant introduced some evidence in the form of an e-mail to support the claim that defendant believed the defendant was dealing with an adult, that evidence was not conclusive and it was for the jury to determine defendant's truthfulness. Castaneira v. State, 321 Ga. App. 418 , 740 S.E.2d 400 (2013).
Evidence that the defendant traveled from Tennessee to an arranged location in Georgia to have sexual intercourse with a person the defendant thought to be a 14-year-old girl, a substantial step toward committing the offense of criminal attempt to commit child molestation, was sufficient to support the defendant's conviction for attempt to commit child molestation. The fact that the girl did not actually exist and, thus, the defendant was never in the child's presence did not preclude the defendant's conviction. Brown v. State, 321 Ga. App. 798 , 743 S.E.2d 474 (2013).
Evidence of guilt overwhelming despite attempt to commit felony murder not recognized crime. - Assuming without deciding that attempt to commit felony murder is not a recognized crime in Georgia, the evidence supporting the defendant's other convictions was overwhelming; thus, the inclusion of the attempt to commit felony murder counts, even if erroneous, would not have prejudiced the jury's consideration of guilt as to the other counts in the indictment. Summerlin v. State, 339 Ga. App. 148 , 793 S.E.2d 477 (2016).
Assault with automotive water pump. - Evidence that the defendant approached the victim from behind and struck the victim after the victim received cash in payment for delivering pizza and that the defendant attempted to use an automotive water pump to hit the victim was sufficient to support the defendant's convictions for aggravated assault and criminal attempt to commit armed robbery. Simmons v. State, 342 Ga. App. 853 , 805 S.E.2d 615 (2017).
Evidence insufficient to support conviction for attempt to influence public official. - Defendant corrections officer's conviction of an attempt to influence the defendant's supervisor not to charge an inmate with possession of marijuana by an inmate could not stand for lack of evidence showing that the officer took any action, substantial or otherwise, to improperly influence the defendant's supervisor to such end. Beard v. State, 300 Ga. App. 146 , 684 S.E.2d 306 (2009).
Completed attempt to commit armed robbery. - Attempt to commit armed robbery was completed when defendant entered bank armed with gun and wearing disguise, with manifest intent to commit theft. Lambert v. State, 157 Ga. App. 275 , 277 S.E.2d 66 (1981).
Failing to charge the jury on the lesser included offense of criminal attempt to commit armed robbery was not error since, if the jury believed any combination of defendant's statements, the defendant either was a party to the completed crime of armed robbery or defendant lacked any intent to be a party to the crime. Spivey v. State, 243 Ga. App. 785 , 534 S.E.2d 498 (2000).
No merger of crimes of attempted child molestation and computer child exploitation. - Because the offenses of criminal attempt to commit child molestation and computer child exploitation each required proof of a fact the other did not, the trial court did not err in sentencing the defendant on both convictions. Brown v. State, 321 Ga. App. 798 , 743 S.E.2d 474 (2013).
Crimes of attempted armed robbery and aggravated assault are separate and distinct, and separate sentences may be imposed. Lambert v. State, 157 Ga. App. 275 , 277 S.E.2d 66 (1981).
Aggravated assault is not included in attempted armed robbery as a matter of law, although these two offenses may as a matter of fact merge if the same facts are used to prove both offenses. However, where the underlying facts show that one crime was completed prior to the second crime, so that the crimes are separate as a matter of law, there is no merger. Gaither v. Cannida, 258 Ga. 557 , 372 S.E.2d 429 (1988).
When a defendant pulled out a gun and demanded money from a cab driver, the offense of criminal attempt armed robbery was complete, and the defendant's subsequent acts, including striking the driver on the head, were not necessary to prove that offense; thus, the attempt offense did not merge with aggravated assault offenses for sentencing purposes. Duncan v. State, 290 Ga. App. 32 , 658 S.E.2d 780 (2008).
Defendant was properly denied merger of a charge of criminal attempt to commit armed robbery and aggravated assault of a store victim as the offense of attempted armed robbery under, inter alia, O.C.G.A. § 16-4-1 was complete when the defendant pointed the gun at the victim and aggravated assault occurred when the victim was struck in the face with the gun. Stubbs v. State, 293 Ga. App. 692 , 667 S.E.2d 905 (2008).
Aggravated assault conviction merged with attempted armed robbery. - Since the defendant was indicted for aggravated assault for pointing a handgun at a victim, which was also a substantial step toward commission of the armed robbery, the trial court properly merged the defendant's aggravated assault conviction with the attempted armed robbery conviction. McKinney v. State, 274 Ga. App. 32 , 619 S.E.2d 299 (2005).
Attempted armed robbery did not merge with aggravated assault. - Because an attempted armed robbery began when the defendant kicked down the victim's door, entered the victim's home with a firearm, and demanded that the victim give it up, and continued as the victim and a co-defendant struggled outside; after the victim was able to run away, the co-defendant shot the victim twice; the robbery and aggravated assault were separate offenses and did not merge. Cuyler v. State, 344 Ga. App. 532 , 811 S.E.2d 42 (2018), cert. denied, No. S18C0874, 2018 Ga. LEXIS 482 (Ga. 2018).
Trial court erred in failing to merge the defendant's convictions for attempted armed robbery and aggravated assault because the aggravated assault charge did not require proof of any fact that was not also required to prove the attempted armed robbery, as that offense could have been proved under the indictment in the current case; and the conduct involved in the attempted armed robbery count and aggravated assault count arose out of the same act or transaction as both counts alleged that the defendant pointed the gun at the victim, and the victim indicated that the gun was directed at the victim one time. Wilson v. State, 344 Ga. App. 285 , 810 S.E.2d 303 (2018).
Attempted armed robbery is lesser included offense of felony murder. Farley v. State, 238 Ga. 181 , 231 S.E.2d 761 (1977).
Later, additional crimes did not merge with attempted armed robbery. - Convictions for burglary, kidnapping, terroristic threats, and possession of a firearm during the commission of a felony did not merge with attempted armed robbery conviction because the attempted armed robbery was complete before the crimes were committed inside the residence; the defendant discussed with the co-worker the idea to dress up as a heating and air technician to perform a robbery, traveled to the residence armed with handguns and a hollow clipboard used to conceal the handgun, and pointed the handgun at a victim before entering the house. McKinney v. State, 274 Ga. App. 32 , 619 S.E.2d 299 (2005).
Criminal attempt to commit rape. - When, instead of stopping as requested, defendant drove past the fire station, grabbed the victim by the hair and told her she could not get out until she gave defendant a kiss, and that she would have to do some other stuff, too, defendant's statements to the victim and his actions in the car indicate that he was attempting to rape the victim, and the evidence was sufficient to support defendant's conviction. Helton v. State, 166 Ga. App. 662 , 305 S.E.2d 592 (1983).
Criminal attempt to commit murder. - Aggravated assault conviction merged into a criminal attempt to commit murder conviction, where both counts were based on allegations that defendant had stabbed the victim with a knife. Kelley v. State, 201 Ga. App. 343 , 411 S.E.2d 276 (1991).
Evidence that a defendant gave a detective checks for $7,000 to kill the defendant's uncle and described defendant's uncle's location was sufficient to support defendant's convictions for criminal attempt to commit murder and solicitation of murder. Impossibility was not a defense, although the uncle was through airport security and there were no funds in the defendant's account, because the defendant believed that the hit could take place and that the checks would persuade the supposed hit man to commit the murder. Rana v. State, 304 Ga. App. 750 , 697 S.E.2d 867 , cert. denied, No. S10C1764, 2010 Ga. LEXIS 922 (Ga.), cert. denied, U.S. , 131 S. Ct. 156 , 178 L. Ed. 2 d 93 (2010).
Jury was authorized to find that the defendant was a party to the crimes of attempted murder and first degree arson based on evidence that the defendant and an accomplice intended to rob the victim and then kill the victim to avoid detection and hitting the victim with a machete and setting fire to the victim's residence were done in execution of that purpose. Lonon v. State, 348 Ga. App. 527 , 823 S.E.2d 842 (2019).
In view of the circumstances of the chase, in which the codefendant leaned the codefendant's upper body out the window of the moving vehicle while shooting at the trooper, the jury could have concluded that the defendant assisted the codefendant by steering the vehicle and the jury was free to reject as unreasonable the hypothesis that the defendant was a mere passenger who did not assist the codefendant. Best v. State, Ga. App. , 846 S.E.2d 157 (2020).
Aggravated battery merged with attempted murder. - Trial court erred in failing to merge the offense of family violence aggravated battery with attempted murder as both convictions were established by the same conduct. Hernandez v. State, 317 Ga. App. 845 , 733 S.E.2d 30 (2012).
Most reasonable understanding of the conviction for lesser included offenses statute as applied to attempted murder and aggravated battery is that the aggravated battery merges into the greater offense of attempted murder when the crimes are predicated upon the same conduct. The Georgia Supreme Court overrules Hernandez v. State, 317 Ga. App. 845 (2012), Zamudio v. State, 332 Ga. App. 37 (2015), and Dobbs v. State, 2020 Ga. App. Lexis 279 (2020), to the extent that those cases hold otherwise. Priester v. State, Ga. , 845 S.E.2d 683 (2020).
Criminal attempt to commit statutory rape. - Nineteen-year-old's defendant's admission that the defendant and a 14-year-old child of the opposite sex took off their clothes and got onto the bed together, and that the defendant "got on" the child was sufficient to sustain the defendant's conviction for attempted statutory rape, even though the defendant testified, in contravention to the victim's testimony, that they did not have sexual intercourse. Neal v. State, 264 Ga. App. 311 , 590 S.E.2d 168 (2003).
Attempted rape required sex offender registration. - In pleading guilty to criminal attempt to commit rape, a defendant admitted that the defendant intended to commit the specific crime of rape and took a substantial step toward that end. Because the crime attempted was related to a sexually violent offense, namely rape, the defendant was properly required to comply with the registration requirements of O.C.G.A. § 42-1-12 , and the trial court did not err in convicting the defendant for violating the registry statute. Jenkins v. State, 284 Ga. 642 , 670 S.E.2d 425 (2008).
Attempted kidnapping. - Convictions of criminal attempt to commit kidnapping, O.C.G.A. § 16-5-40(a) , and aggravated assault with intent to rape, O.C.G.A. § 16-5-21(a)(1), were supported by sufficient evidence since the victim positively identified the defendant as the attacker when the defendant was captured and again at trial, and since a store owner also identified the defendant at trial and testified that the store owner maintained sight of the defendant from when the store owner saw the defendant attacking the victim until the defendant's capture; additionally, since the defendant made no attempt to take the victim's purse or keys, and the evidence showed that the defendant had pornographic photos of a person who looked similar to the victim, the jury was authorized to find that the defendant had the requisite intent to detain, abduct, and rape the victim as charged. Mobley v. State, 279 Ga. App. 476 , 631 S.E.2d 491 (2006).
Evidence that the defendant entered an occupied motor vehicle and commanded the driver to "drive or die," while wielding a rock in a sock supported the defendant's conviction for criminal attempt to commit kidnapping. Hughes v. State, 323 Ga. App. 4 , 746 S.E.2d 648 (2013).
Attempted kidnapping shown with use of non-filed criminal charges. - Defendant's convictions for kidnapping, attempted kidnapping, and criminal trespass were erroneously reversed as the fact that the state did not file criminal charges against the defendant based directly on three prior pool incidents with young children did not mean that those incidents were non-criminal or not indicative of the defendant's state of mind. State v. Ashley, 299 Ga. 450 , 788 S.E.2d 796 (2016).
Attempted statutory rape merged into child molestation. - Trial court did not err in merging an attempted statutory rape charge into a child molestation charge as the state was required to prove the commission of an immoral or indecent act, removing the victim's and the defendant's clothing, the victim's age was less than 16, and the defendant's intent to arouse or satisfy the defendant's own or the child's sexual desires; thus, the state used up the evidence that the defendant committed attempted statutory rape in establishing that the defendant committed child molestation. Leaptrot v. State, 272 Ga. App. 587 , 612 S.E.2d 887 (2005).
Defendant's convictions for child molestation, attempted statutory rape, and burglary were supported because: (1) the defendant entered the 14-year-old victim's room through a window, uninvited; (2) told the victim to push the bed against the door; (3) removed the victim's panties and the defendant's own pants and laid on top of the victim, but the victim prevented the defendant from penetrating the victim; (4) defendant fondled the victim's breasts and touched the victim's nipples; and (5) on a prior occasion, the defendant made the victim touch the defendant's penis with the victim's hand. Leaptrot v. State, 272 Ga. App. 587 , 612 S.E.2d 887 (2005).
Sex offender registration. - Defendant was properly ordered to register as a sex offender because defendant's convictions constituted criminal offenses against a victim who was a minor, pursuant to O.C.G.A. § 42-1-12(a)(9)(B) and, as attempt convictions pursuant to O.C.G.A. § 16-4-1 were covered within the registration requirement; defendant was convicted of criminal attempt to commit child molestation and criminal attempt to entice a child for indecent purposes, in violation of O.C.G.A. §§ 16-6-4(a) and 16-6-5(a) , respectively, after defendant communicated over the Internet with a police officer who was disguised as a 14-year-old child, and arranged to meet the alleged child, and the fact that an actual child was not involved did not negate the offense or the need for the registration, as there was no impossibility defense. Spivey v. State, 274 Ga. App. 834 , 619 S.E.2d 346 (2005).
Attempted aggravated sodomy. - There was sufficient evidence presented for the jury to find the defendant guilty of criminal attempt to commit aggravated sodomy because the state presented sufficient evidence via the victim's testimony that the defendant attempted to force the victim to perform oral sodomy; the victim testified that the defendant moved her to the bedroom of her home while holding a knife and told her to perform oral sex on him and that when she explained that she could not engage in the act the defendant, while still standing over her, moistened and fondled himself and then forced her to fondle him. Williams v. State, 300 Ga. App. 839 , 686 S.E.2d 446 (2009).
Trial court did not err in convicting the defendant of criminal attempt to commit aggravated sodomy in violation of O.C.G.A. §§ 16-4-1 and 16-6-2 because a reasonable trier of fact could have found that the defendant had the necessary criminal intent to commit aggravated sodomy when the evidence presented at trial showed that the defendant forced the victim's mouth into close proximity with the defendant's sex organs while the victim screamed for help, kicked, and fought the defendant; a reasonable trier of fact could have found that had the victim not been able to escape, the defendant would have forced the victim to engage in sodomy, thereby demonstrating that the defendant had taken a substantial step toward committing aggravated sodomy even though the defendant had not spoken, touched either the defendant's or the victim's sex organs, or exposed the defendant's genitals when the violent acts occurred. English v. State, 301 Ga. App. 842 , 689 S.E.2d 130 (2010).
Attempted aggravated child molestation and attempted aggravated sodomy did not merge. - In the defendant's trial for charges for going to a meeting place with the purpose of having sex with fictitious brothers, ages 12 and 5, the trial court erred in merging attempted aggravated child molestation into attempted aggravated sodomy convictions because the offenses did not merge in either direction under O.C.G.A. §§ 16-1-6 and 16-1-7 . Each required proof of an element the other did not, and the two crimes were equally serious. Metcalf v. State, 349 Ga. App. 408 , 825 S.E.2d 909 (2019).
Malice murder and attempted arson convictions were upheld as: (1) the evidence presented showed that an attempted arson was inextricably linked to the victim's murder, and the jury was authorized to find beyond a reasonable doubt that the defendant was guilty; (2) the admission of two handwritten documents that defendant had penned, was proper as their prejudicial impact did not outweigh their probative value; and (3) the trial court did not abuse the court's discretion in determining that any prejudicial impact of a religious prayer asking for strength, and an expression of uncertainty as to what "makes me tick," did not outweigh the probative value of the evidence. Fortson v. State, 280 Ga. 376 , 628 S.E.2d 104 (2006).
Because sufficient evidence showed that the defendant, by posing as a police officer and driving the victims to remote locations, used fear and intimidation to ensure that the victims would cooperate and agree to have sex, the defendant was not entitled to an acquittal as to the charges of impersonating an officer, aggravated sodomy, attempted aggravated sodomy, aggravated assault and rape; furthermore, though both victims willingly got into the defendant's car, after the victims pleaded to be let go and the defendant refused to grant those pleas, that act amounted to a kidnapping. Dasher v. State, 281 Ga. App. 326 , 636 S.E.2d 83 (2006).
Based on the defendant's concession that the state's evidence tended to show an inference of the defendant's guilt in making a false claim against the county as to money the county allegedly owed to the defendant, and despite a claim that the facts supported the conclusion that the county's aquatic center director was the culpable party, when the defendant pointed to no evidence proving such, convictions for criminal attempt to commit theft by taking and first-degree forgery were supported by the evidence. Brown v. State, 285 Ga. App. 453 , 646 S.E.2d 289 (2007), cert. denied, No. S07C1503, 2007 Ga. LEXIS 672 (Ga. 2007).
There was sufficient evidence to support an adjudication for delinquency based on criminal attempt to commit robbery under O.C.G.A. §§ 16-4-1 and 16-8-40 ; a rational trier of fact was authorized to find that the defendant, in "reaching at" the victim and grabbing the victim's jacket prior to shooting the victim, attempted to take the victim's cigarettes by force, intimidation, or sudden snatching. In the Interest of B.S., 284 Ga. App. 680 , 644 S.E.2d 527 (2007).
Despite a juvenile's challenge to the sufficiency of the evidence, an adjudication entered by the juvenile court on a charge of attempted rape was proper because the charge was supported not only by the testimony of the victim, but also by the corroborating testimony offered by both the victim's neighbor, who witnessed the attack, and the victim's sister, who chased the juvenile away from the scene. In the Interest of J.L.H., 289 Ga. App. 30 , 656 S.E.2d 160 (2007).
Sufficient evidence existed to support defendant's conviction for criminal attempt to manufacture methamphetamine, and defendant's challenge to the sufficiency of the evidence based upon the uncorroborated testimony of defendant's accomplice alone failed, as the incriminating testimony by the accomplice was adequately corroborated by independent evidence, including defendant's possession of essential items for manufacturing methamphetamine; defendant's statement to a passenger in the back of the patrol car that a store likely had ratted about the matchbook purchases; and the large quantity of matchbooks found discarded along the route defendant had just traveled. Kohlmeier v. State, 289 Ga. App. 709 , 658 S.E.2d 261 (2008).
Evidence was sufficient for the jury to find beyond a reasonable doubt that defendant was guilty of criminal attempt to manufacture methamphetamine based on evidence that defendant was processing and in possession of methamphetamine oil and that defendant performed an act (processing and possession of methamphetamine oil) which constituted a substantial step toward commission of that crime. Womble v. State, 290 Ga. App. 768 , 660 S.E.2d 848 (2008).
There was sufficient evidence to support a defendant's conviction for attempting to possess marijuana based on the evidence that the defendant solicited undercover officers and asked for marijuana and attempted to pay for the marijuana. The defendant's rejection of the first bag the undercover officers gave did not establish abandonment of the crime since the defendant asked for a second bag. Collins v. State, 297 Ga. App. 364 , 677 S.E.2d 407 (2009).
Sufficient evidence was presented to the jury to support the defendant's convictions for armed robbery, aggravated assault, burglary, criminal attempt to commit aggravated sodomy, and possession of a knife during the commission of a crime because the victim's testimony alone was sufficient to support the convictions; regardless of any inconsistencies in the victim's testimony, it was for the jury to assess witness credibility, and the jury chose to believe the victim's identification of the defendant as the individual who committed the crimes Williams v. State, 300 Ga. App. 839 , 686 S.E.2d 446 (2009).
There was sufficient evidence to infer that a defendant had taken a substantial step, in violation of O.C.G.A. § 16-4-1 , toward the manufacturing of methamphetamine by transporting most of the chemicals, tools, and supplies necessary to commit that crime. Davenport v. State, 308 Ga. App. 140 , 706 S.E.2d 757 (2011).
Evidence was sufficient to support the defendant's conviction for attempted rape in violation of O.C.G.A. §§ 16-4-1 and 16-6-1(a)(1) because the victim's testimony as to the defendant forcing his penis into her vagina against her will sufficed to sustain the attempted rape conviction. Gomez-Oliva v. State, 312 Ga. App. 105 , 717 S.E.2d 689 (2011), overruled in part by Southall v. State, 300 Ga. 462 , 796 S.E.2d 261 (2017).
Evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt of aggravated assault and attempted rape because under the circumstances the jury was authorized to conclude that the defendant's actions, although circumstantial insofar as intent was concerned, provided sufficient evidence to establish that the defendant attempted to rape the victim; the defendant knocked the victim down and attempted to pull the victim into an isolated vacant lot and continued to do so despite the victim's struggles and attempted escape. Wright v. State, 314 Ga. App. 353 , 723 S.E.2d 737 (2012).
Evidence that the defendant owned the house where the ingredients and equipment were found, the defendant talked to the codefendant about whether the codefendant should abscond and bought the codefendant a truck, and the defendant made a list of pharmacy directions for the codefendant so that the codefendant could avoid legal restrictions on the purchase of ingredients was sufficient to support a conviction for attempt to manufacture methamphetamine. Taylor v. State, 320 Ga. App. 596 , 740 S.E.2d 327 (2013).
Sufficient evidence supported the defendant's conviction for criminal attempt to commit child molestation based on the evidence that the defendant thought the intended victim was a 15-year-old girl with whom the defendant continued to contact, engaged in sexually explicit conversations, and arranged to meet for a sexual encounter, and although the defendant introduced some evidence in the form of an e-mail to support the claim that the defendant believed the defendant was dealing with an adult, that evidence was not conclusive, and it was for the jury to determine the defendant's truthfulness. Castaneira v. State, 321 Ga. App. 418 , 740 S.E.2d 400 (2013).
3. Drug Offenses
Attempted drug trafficking. - Evidence was sufficient to support a conviction of attempted trafficking in marijuana. A codefendant's testimony at the codefendant's trial and the codefendant's statement to the police were admissible as prior inconsistent statements and constituted substantive evidence of the defendant's participation in the attempted drug trafficking; furthermore, the codefendant's statements were sufficiently corroborated under former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8 ) by the testimony of a case agent that a loaded pistol was found at the defendant's feet and that a bag containing the currency used in the drug transaction was found within arm's reach of the defendant. Green v. State, 298 Ga. App. 17 , 679 S.E.2d 348 (2009).
Sufficient evidence supported the defendant's conviction for criminal attempt to commit trafficking in cocaine based on the trial evidence establishing that the defendant negotiated for and attempted to purchase one kilogram of cocaine from an undercover investigator, that the defendant took substantial steps and actively participated in the attempted drug offense by meeting with the undercover investigator at the designated location and at the arranged time for the purpose of conducting the transaction and by executing the bill of sale for a vehicle in exchange for the drug purchase, and by taking possession of the package of cocaine and cutting the package open to examine the contents. Tehrani v. State, 321 Ga. App. 685 , 742 S.E.2d 502 (2013).
Sufficient evidence existed to support the defendant's conviction for attempted trafficking by manufacturing methamphetamine based on the evidence that the defendant lived at the residence wherein the meth lab was discovered as shown by the owner's testimony and another witness who testified that the defendant slept at the home nightly and material used in the red phosphorous process for manufacturing methamphetamine was seized from the residence. Franks v. State, 325 Ga. App. 488 , 758 S.E.2d 604 (2013).
Evidence was sufficient to support both the defendants' convictions for attempted trafficking by manufacturing methamphetamine because the evidence connected the defendants to the house and the rooms in which the manufacturing components and the items containing methamphetamine residue were found; the police found lantern fuel in the house, which was commonly used as a solvent in methamphetamine labs; the chief of police, who was qualified as an expert witness, testified that the items seized appeared to have been used in the red phosphorous process for manufacturing methamphetamine; and a chemical odor associated with methamphetamine labs lingered around the house. Long v. State, 325 Ga. App. 488 , 758 S.E.2d 604 (2013).
Evidence insufficient to support a conviction for criminal attempt to manufacture methamphetamine. - Defendants were stopped for a traffic violation and had possession of an unopened bottle of Heet, one pack of cold pills containing pseudoephedrine, a large unopened bottle of iodine, and some plastic tubing which an officer testified that, based on training and experience, were ingredients used in the manufacture of methamphetamine. All of the items in defendants' possession had recognized legal uses and were only a small portion of the ingredients and materials necessary to manufacture methamphetamine, and the quantity of each item was also only a small portion of the amount needed. Defendants' possession of materials used in the manufacture of methamphetamine constituted mere preparation to commit the crime and was insufficient to support convictions for attempt to manufacture methamphetamine. Thurman v. State, 295 Ga. App. 616 , 673 S.E.2d 1 (2008).
Criminal attempt to sell drugs. - It was not error to charge the jury on attempt because there was evidence regarding defendant's attempt to sell cocaine in the county in which defendant was charged before completing a purchase and sale in another county. Singleton v. State, 229 Ga. App. 135 , 493 S.E.2d 556 (1997).
Likelihood of success in concelaing drug evidence. - Evidence that defendant tried to slide a bag of marijuana into a pool table pocket in order to conceal it was sufficient to sustain conviction for attempting to tamper with evidence, and defendant's reasonable ability to conceal the marijuana was irrelevant; the test was whether defendant performed an act which constituted a substantial step toward concealing the evidence, not whether defendant was likely to succeed. Taylor v. State, 260 Ga. App. 890 , 581 S.E.2d 386 (2003).
Similar transaction evidence admissible in drug trial. - Based on the defendant's position that the defendant was not involved with a methamphetamine laboratory, as well as the similarity of the defendant's prior drug crime with criminal attempt to manufacture methamphetamine, the trial court did not abuse the court's discretion in admitting the evidence of the defendant's prior attempts to manufacture methamphetamine for the purpose of showing the defendant's bent of mind and course of conduct; the trial court was authorized to find that the probative value of the similar transaction evidence outweighed its prejudicial effect, and the trial court provided jury instructions that limited consideration of the similar transaction evidence to the appropriate purposes and provided guidance so as to diminish its prejudicial impact. Newton v. State, 313 Ga. App. 889 , 723 S.E.2d 95 (2012).
Trial court did not abuse the court's discretion in admitting evidence of the defendant's prior attempts to manufacture methamphetamine because the state needed the evidence of the defendant's prior drug conviction to show the defendant's bent of mind and course of conduct with respect to the methamphetamine offense at issue, criminal attempt to manufacture methamphetamine in violation of O.C.G.A. §§ 16-4-1 and 16-13-30(b) ; the defendant disclaimed any involvement with or knowledge of a methamphetamine laboratory. Newton v. State, 313 Ga. App. 889 , 723 S.E.2d 95 (2012).
RESEARCH REFERENCES
Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, § 149 et seq.
C.J.S. - 22 C.J.S., Criminal Law: Substantive Principles, § 150 et seq.
ALR. - What constitutes attempt to commit robbery, 55 A.L.R. 714 .
Offense of larceny, embezzlement, robbery, or assault to commit robbery, as affected by defendant's intention to take or retain money or property in payment of, or as security for, a claim, or to collect a debt, or to recoup gambling losses, 116 A.L.R. 997 .
Criminal responsibility of one cooperating in offense which he is incapable of committing personally, 131 A.L.R. 1322 .
Homicide: causing one, by threats or fright, to leap or fall to his death, 25 A.L.R.2d 1186.
Conviction or acquittal of attempt to commit particular crime as bar to prosecution for conspiracy to commit same crime, or vice versa, 53 A.L.R.2d 622.
Attempt to commit assault as criminal offense, 79 A.L.R.2d 597.
Attempts to receive stolen property, 85 A.L.R.2d 259.
Attempts to commit offenses of larceny by trick, confidence game, false pretenses, and the like, 6 A.L.R.3d 241.
What constitutes attempted murder, 54 A.L.R.3d 612.
What conduct amounts to an overt act or acts done toward commission of larceny so as to sustain charge of attempt to commit larceny, 76 A.L.R.3d 842.
Attempt to commit assault as criminal offense, 93 A.L.R.5th 683.
16-4-2. Conviction for criminal attempt where crime completed.
A person may be convicted of the offense of criminal attempt if the crime attempted was actually committed in pursuance of the attempt but may not be convicted of both the criminal attempt and the completed crime.
(Code 1933, § 26-1004, enacted by Ga. L. 1968, p. 1249, § 1.)
JUDICIAL DECISIONS
Lesser included offenses. - Aggravated assault with intent to commit murder and with a deadly weapon may be charged as lesser included offenses of murder. Hall v. State, 163 Ga. App. 515 , 295 S.E.2d 194 (1982).
When an attempt to commit one crime can only be proved by proof of another, greater, consummated crime, the attempt of the former cannot possibly be "included" in or "lesser" than the latter. Cannon v. State, 167 Ga. App. 225 , 305 S.E.2d 910 (1983).
One may be convicted of assault, though criminal act intended was completed. - It is intent of legislature that although assault may be a criminal attempt, and even though criminal act intended be completed, a conviction for assault is authorized. Williams v. State, 141 Ga. App. 201 , 233 S.E.2d 48 (1977).
One may be convicted of simple assault though battery was committed. - Recognizing fact that assault is nothing more than an attempted battery, (and thus that every battery necessarily includes an assault) by virtue of O.C.G.A. §§ 16-4-2 and 16-5-22 , it is presently lawful to convict for simple assault even though proof shows that a battery was committed. C.L.T. v. State, 157 Ga. App. 180 , 276 S.E.2d 862 (1981).
No fatal variance in indictment for murder conviction as opposed to attempted drug purchase. - Appellant's murder conviction was upheld because the appellant did not establish a fatal variance in the indictment as the appellant did not even allege how the indictment impaired the appellant's ability to present a defense or that the appellant would be subjected to prosecution for a completed offense, as opposed to the attempted purchase of marijuana. Scott v. State, Ga. , S.E.2d (Sept. 8, 2020).
Not entitled to jury charge on lesser included offense of attempted armed robbery. - Trial court did not err by refusing to charge the jury that the jury could find the defendant guilty of attempted armed robbery as an included offense of aggravated assault with intent to rob since the defendant was not entitled to a charge or verdict of attempted armed robbery when that offense could only be proved by showing that the defendant brandished a weapon in the faces of the victims with the intent to rob the victims, that is, that the defendant actually committed the greater offense, a completed aggravated assault with the intent to rob. Since the evidence that proved that the defendant committed an attempted armed robbery necessarily proved that the defendant committed the greater, completed crime of aggravated assault with intent to rob, there was no evidence that the defendant committed only the offense of attempted armed robbery and, therefore, the defendant was not entitled to a charge on that lesser included offense. Pilkington v. State, 298 Ga. App. 317 , 680 S.E.2d 164 (2009), cert. denied, No. S09C1717, 2010 Ga. LEXIS 54 (Ga. 2010).
Recovery for personal injuries. - Legislative purpose of the Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq. does not preclude recovery for personal injuries. Reaugh v. Inner Harbour Hosp., 214 Ga. App. 259 , 447 S.E.2d 617 (1994).
Evidence sufficient for giving charge on criminal attempt. - See Plummer v. State, 168 Ga. App. 108 , 308 S.E.2d 210 (1983).
Convictions for attempt and completed offenses involving different victims. - Because the defendant's seven attempted armed robbery convictions involved different victims than the defendant's 13 completed armed robberies, the defendant victimized 20 separate individuals and, thus, the defendant was properly convicted and sentenced on each of the 20 counts. Houston v. State, 302 Ga. 35 , 805 S.E.2d 34 (2017), overruled on other grounds by Collier v. State, 834 S.E.2d 769 , 2019 Ga. LEXIS 708 (Ga. 2019).
Cited in Bearden v. State, 122 Ga. App. 25 , 176 S.E.2d 243 (1970); Adams v. State, 129 Ga. App. 839 , 201 S.E.2d 649 (1973); Jones v. State, 238 Ga. 51 , 230 S.E.2d 865 (1976); Scott v. State, 141 Ga. App. 848 , 234 S.E.2d 685 (1977); Printup v. State, 142 Ga. App. 42 , 234 S.E.2d 840 (1977); Harper v. State, 157 Ga. App. 480 , 278 S.E.2d 28 (1981); Schwerdtfeger v. State, 167 Ga. App. 19 , 305 S.E.2d 834 (1983); Parham v. State, 218 Ga. App. 42 , 460 S.E.2d 78 (1995); Spivey v. State, 243 Ga. App. 785 , 534 S.E.2d 498 (2000); Sewell v. State, 244 Ga. App. 449 , 536 S.E.2d 173 (2000); Colbert v. State, 255 Ga. App. 182 , 564 S.E.2d 787 (2002); Calloway v. State, 303 Ga. 48 , 810 S.E.2d 105 (2018).
RESEARCH REFERENCES
Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, §§ 21, 149.
C.J.S. - 42 C.J.S., Indictments and Informations, § 317.
ALR. - Conviction or acquittal of attempt to commit particular crime as bar to prosecution for conspiracy to commit same crime, or vice versa, 53 A.L.R.2d 622.
Attempt to commit assault as criminal offense, 79 A.L.R.2d 597.
Application of felony-murder doctrine where the felony relied upon is an includible offense with the homicide, 40 A.L.R.3d 1341.
16-4-3. Charge of commission of crime as including criminal attempt.
A person charged with commission of a crime may be convicted of the offense of criminal attempt as to that crime without being specifically charged with the criminal attempt in the accusation, indictment, or presentment.
(Code 1933, § 26-1005, enacted by Ga. L. 1968, p. 1249, § 1.)
Law reviews. - For article, "A Comprehensive Analysis of Georgia RICO," see 9 Ga. St. U. L. Rev. 537 (1993).
JUDICIAL DECISIONS
Controlled substance violations. - O.C.G.A. § 16-13-33 concerning attempt in no way affects operation of O.C.G.A. § 16-4-3 ; rather it renders the penalty in O.C.G.A. § 16-4-6 inapplicable in prosecutions under the Georgia Controlled Substances Act, O.C.G.A. Ch. 13, T. 16. Davis v. State, 164 Ga. App. 633 , 298 S.E.2d 615 (1982).
It was not error to charge the jury on attempt because there was evidence regarding defendant's attempt to sell cocaine in the county in which defendant was charged before completing a purchase and sale in another county. Singleton v. State, 229 Ga. App. 135 , 493 S.E.2d 556 (1997).
Predicate acts for purposes of RICO prosecution. - Jurisdiction under 28 U.S.C. § 1331 did not exist in a borrower's suit asserting various claims against a lender and an appraiser in connection with a loan that encumbered the borrower's property with a debt that exceeded the property's value. Athough the borrower alleged that the lender violated 18 U.S.C. §§ 1341 and 1343 as predicate acts under O.C.G.A. § 16-14-3(9)(A) of Georgia's Racketeer Influenced and Corrupt Organizations (RICO) Act, O.C.G.A. § 16-14-1 et seq., that did not require the court to interpret the federal statutes; further, the borrower also asserted that the lender violated state statutes that could serve as predicate acts under Georgia's RICO law. Austin v. Ameriquest Mortg. Co., 510 F. Supp. 2d 1218 (N.D. Ga. Feb. 27, 2007).
One may be charged with a crime and convicted only of attempt if evidence warrants. Finley v. State, 139 Ga. App. 495 , 229 S.E.2d 6 (1976).
Evidence was sufficient to convict defendants who were indicted for burglary of attempted burglary; it was not necessary that the offense of attempted burglary be charged in the indictment in order for defendants to be found guilty of attempted burglary. Climpson v. State, 253 Ga. App. 485 , 559 S.E.2d 495 (2002).
Evidence sufficient for giving charge on criminal attempt. - See Plummer v. State, 168 Ga. App. 108 , 308 S.E.2d 210 (1983).
Although the codefendants argued that since the codefendants were not indicted for attempting to obtain a motor vehicle by force, the trial court should not have given the jury the opportunity to convict the codefendants of attempting to obtain a motor vehicle by charging the entire statute; nevertheless, a person indicted for a specific crime could be convicted of attempt of the specific crime without an attempt charge being listed in the indictment, O.C.G.A. § 16-4-3 . The specific statutory inclusion of attempt as a method of committing the crime of hijacking a motor vehicle did not alter the general rule that an attempt could be proven and charged without being indicted; accordingly, the trial court did not err in the court's charge to the jury on the offense of hijacking a motor vehicle. Daniels v. State, 306 Ga. App. 577 , 703 S.E.2d 41 (2010).
Rule of lenity inapplicable. - With regard to defendant's conviction for criminal attempt to commit burglary in the first degree, the trial court did not err in not applying the rule of lenity because the crimes of criminal trespass and criminal attempt to commit a burglary do not address the same criminal conduct and there was no ambiguity created by different punishments being set forth for the same crime; thus, the rule of lenity did not apply. Snow v. State, 318 Ga. App. 131 , 733 S.E.2d 428 (2012).
Evidence sufficient for attempted aggravated child molestation conviction. - Trial court did not err in denying the defendant's motion for a directed verdict on the count of an indictment charging the defendant with attempted aggravated child molestation because the defendant was convicted only of the offense of criminal attempt, which was supported by the evidence, and the defendant could be convicted of the lesser-included offense of criminal attempt pursuant to a proper jury instruction. Arnold v. State, 305 Ga. App. 45 , 699 S.E.2d 77 (2010).
Instruction on attempted statutory rape proper. - Trial court did not err in charging the jury on attempted statutory rape, O.C.G.A. §§ 16-4-1 and 16-6-3(a) , because the court's instruction to the jury was properly tailored to fit the allegations in the indictment and the evidence admitted at trial; the victim testified that the defendant positioned himself between her legs with his pants unbuttoned and that the two of them were about to engage in sexual intercourse before the victim's grandfather came into her bedroom, and based on that evidence, a rational trier of fact could conclude that the defendant attempted to have sexual intercourse with a person under the age of 16. Judice v. State, 308 Ga. App. 229 , 707 S.E.2d 114 (2011).
Cited in Lingo v. State, 226 Ga. 496 , 175 S.E.2d 657 (1970); Rozier v. State, 124 Ga. App. 481 , 184 S.E.2d 203 (1971); Bryant v. State, 146 Ga. App. 43 , 245 S.E.2d 333 (1978); Maddox v. State, 152 Ga. App. 384 , 262 S.E.2d 636 (1979); Collins v. State, 164 Ga. App. 482 , 297 S.E.2d 503 (1982); Schwerdtfeger v. State, 167 Ga. App. 19 , 305 S.E.2d 834 (1983); Gatlin v. State, 199 Ga. App. 500 , 405 S.E.2d 118 (1991); Jenkins v. State, 284 Ga. 642 , 670 S.E.2d 425 (2008); Calloway v. State, 303 Ga. 48 , 810 S.E.2d 105 (2018).
RESEARCH REFERENCES
Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, § 149. 41 Am. Jur. 2d, Indictments and Informations, §§ 106, 282.
C.J.S. - 42 C.J.S., Indictments and Information, § 317.
ALR. - Attempt to commit assault as criminal offense, 79 A.L.R.2d 597.
16-4-4. Impossibility as a defense.
It is no defense to a charge of criminal attempt that the crime the accused is charged with attempting was, under the attendant circumstances, factually or legally impossible of commission if such crime could have been committed had the attendant circumstances been as the accused believed them to be.
(Code 1933, § 26-1002, enacted by Ga. L. 1968, p. 1249, § 1.)
Law reviews. - For article, "A Comprehensive Analysis of Georgia RICO," see 9 Ga. St. U. L. Rev. 537 (1993).
JUDICIAL DECISIONS
Predicate act sufficiently set forth in indictment. - Indictment clearly specified the predicate acts alleged against the defendants by count one specifying that the pattern of racketeering activity was unlawfully obtaining oxycodone, and it incorporated as predicate acts the remaining counts of the indictment charging the defendants with unlawfully obtaining oxycodone. Kimbrough v. State, 336 Ga. App. 381 , 785 S.E.2d 54 (2016).
Trafficking imitation cocaine. - The fact that the defendant attempted to traffic imitation cocaine does not relieve defendant of culpability absent evidence that defendant knew the substance was not cocaine. Durfee v. State, 221 Ga. App. 211 , 471 S.E.2d 32 (1996).
Aggravated assault with intent to rape. - Defendant's belief that the victim was a female and defendant's actions taken towards the victim were sufficient to establish defendant's intent to rape; fact that the victim turned out to be a male rendering an actual rape impossible did not affect defendant's culpability. Gordon v. State, 252 Ga. App. 133 , 555 S.E.2d 793 (2001).
Participation and relationship sufficiently set forth in indictment. - Indictment, when read as a whole, was sufficient to withstand the special demurrer on the grounds that it did not sufficiently allege the manner in which the defendants participated in the enterprise and the enterprise's relationship to the alleged racketeering activity because it specified in the counts alleging predicate acts the acts that amounted to the defendants' participation in the enterprise. Kimbrough v. State, 336 Ga. App. 381 , 785 S.E.2d 54 (2016).
Evidence sufficient to satisfy defense. - Defendant's actual inability to complete drug purchase because defendant had no money with the defendant falls within the definition of impossibility set forth in O.C.G.A. § 16-4-4 . Guzman v. State, 206 Ga. App. 170 , 424 S.E.2d 849 (1992).
Defense not supported by the evidence. - Evidence that a defendant gave a detective checks for $7,000 to kill the defendant's uncle and described the defendant's uncle's location was sufficient to support the defendant's convictions for criminal attempt to commit murder and solicitation of murder. Impossibility was not a defense, although the uncle was through airport security and there were no funds in the defendant's account, because the defendant believed that the hit could take place and that the checks would persuade the supposed hit man to commit the murder. Rana v. State, 304 Ga. App. 750 , 697 S.E.2d 867 , cert. denied, No. S10C1764, 2010 Ga. LEXIS 922 (Ga.), cert. denied, U.S. , 131 S. Ct. 156 , 178 L. Ed. 2 d 93 (2010).
Cited in Williams v. State, 123 Ga. App. 9 , 179 S.E.2d 351 (1970); Riddle v. State, 145 Ga. App. 328 , 243 S.E.2d 607 (1978); Hibbert v. State, 146 Ga. App. 887 , 247 S.E.2d 554 (1978); Logan v. State, 309 Ga. App. 95 , 709 S.E.2d 302 (2011).
RESEARCH REFERENCES
Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, § 151.
ALR. - Criminal responsibility of one co-operating in offense which he is incapable of committing personally, 74 A.L.R. 1110 ; 131 A.L.R. 1322 .
Attempts to receive stolen property, 85 A.L.R.2d 259.
What constitutes attempted murder, 54 A.L.R.3d 612.
Construction and application of state statute governing impossibility of consummation as defense to prosecution for attempt to commit crime, 41 A.L.R.4th 588.
16-4-5. Abandonment of effort to commit a crime as an affirmative defense.
- When a person's conduct would otherwise constitute an attempt to commit a crime under Code Section 16-4-1, it is an affirmative defense that he abandoned his effort to commit the crime or in any other manner prevented its commission under circumstances manifesting a voluntary and complete renunciation of his criminal purpose.
-
A renunciation of criminal purpose is not voluntary and complete if it results from:
- A belief that circumstances exist which increase the probability of detection or apprehension of the person or which render more difficult the accomplishment of the criminal purpose; or
-
A decision to postpone the criminal conduct until another time.
(Code 1933, § 26-1003, enacted by Ga. L. 1968, p. 1249, § 1.)
JUDICIAL DECISIONS
Burden of proof. - Renunciation of criminal purpose is an affirmative defense of which defendant bears burden of proof. Cowart v. State, 136 Ga. App. 528 , 221 S.E.2d 649 (1975), aff'd, 237 Ga. 282 , 227 S.E.2d 248 (1976), over-ruled on other grounds, 137 Ga. App. 735 , 224 S.E.2d 856 , 1976,.
Burden of persuasion as to renunciation of criminal purpose. - Affirmative defenses authorized by former Code 1933, § 26-901 et seq. (see O.C.G.A. § 16-3-20 et seq.) and by former Code 1933, § 26-1003 (see O.C.G.A. § 16-4-5 ) imply that if defendant presents one it is to defendant's advantage and to defendant's interest to affirmatively show it as best defendant can but defendant has no burden to show it nor does defendant have burden of persuasion. Moore v. State, 137 Ga. App. 735 , 224 S.E.2d 856 , rev'd on other grounds, 237 Ga. 269 , 227 S.E.2d 241 (1976).
Charge that defendant bears burden of persuasion under former Code 1933, § 26-1003 was constitutionally impermissible. Moore v. State, 137 Ga. App. 735 , 224 S.E.2d 856 , rev'd on other grounds, 237 Ga. 269 , 227 S.E.2d 241 (1976) (see O.C.G.A. § 16-4-5 ).
Defendant's mere disinterest in subsequent proceedings inside the room where defendant and codefendant were engaged in a criminal enterprise did not establish abandonment. Cunningham v. State, 240 Ga. App. 92 , 522 S.E.2d 684 (1999).
When a crime is already completed, the court need not charge on abandonment of criminal attempt. Maddox v. State, 152 Ga. App. 384 , 262 S.E.2d 636 (1979); Baker v. State, 157 Ga. App. 746 , 278 S.E.2d 462 (1981); Sanders v. State, 251 Ga. 70 , 303 S.E.2d 13 (1983); Freese v. State, 196 Ga. App. 761 , 396 S.E.2d 922 (1990); Perkins v. State, 224 Ga. App. 63 , 479 S.E.2d 471 (1996).
Showing that crime was already completed when defendant abandoned efforts is insufficient to require charge on abandonment of criminal attempt. Joiner v. State, 147 Ga. App. 526 , 249 S.E.2d 335 (1978).
Evidence was sufficient to convict the defendant of armed robbery as a party to the offense and to find that the defendant did not abandon the defendant's effort to commit the crime prior to the crime's completion because, although the defendant told police that the defendant begged off from the robbery at the last moment, the defendant helped plan the robbery of the bank, provided the guns used in the robbery, dropped the accomplices off near the bank so that the accomplices could rob the bank, waited at the gas station knowing the robbery was taking place, and then followed the accomplices as the accomplices fled after taking the money. Birdsong v. State, 353 Ga. App. 316 , 836 S.E.2d 232 (2019).
Crime already committed. - Defendant could be found guilty of hindering the apprehension of a criminal where, knowing that a codefendant had used the gun to shoot someone, the defendant concealed it with the intent of protecting self and defendant's friend from punishment; defendant's later informing the police where defendant had hidden the gun was not abandonment of a crime because the crimes had already been committed. Hubbard v. State, 210 Ga. App. 141 , 435 S.E.2d 709 (1993).
Victim's testimony that after attempting rape and murder, defendant "up and left" does not authorize abandonment charge. Guthrie v. State, 147 Ga. App. 351 , 248 S.E.2d 714 (1978).
Charge on entire section where request included only portion of section. - Trial court did not err in charge on renunciation of criminal purpose where appellant requested and court had approved a charge on only a portion of O.C.G.A. § 16-4-5 , and court's charge included entire Code section. Smith v. State, 157 Ga. App. 238 , 276 S.E.2d 905 (1981).
Flight when discovered. - Trial court did not err by failing to give burglary defendant's requested charge on abandonment of an attempt, where there was no evidence that the attempt was abandoned for any reason other than that defendant fled when discovered. Hayes v. State, 193 Ga. App. 33 , 387 S.E.2d 139 , cert. denied, 193 Ga. App. 909 , 387 S.E.2d 139 (1989).
Evidence supported finding of involuntary renunciation of criminal purpose. - Attempted robbery conviction was supported by sufficient evidence which showed, inter alia, that the defendant only abandoned a plan to rob a bank after repeatedly making eye contact with an officer who had fortuitously arrived, and that the defendant believed this increased the probability of apprehension, rendering renunciation of the criminal purposes involuntary under O.C.G.A. § 16-4-5(b)(1); although the officer arrived in an unmarked car and did not wear a police uniform, there was evidence that the officer wore clothing normally worn by law enforcement individuals and that the officer's badge was possibly visible. Moreover, regardless of whether the defendant knew the individual the defendant continued to look at was an officer, the fact remained that the defendant was acutely aware of the individual's presence. Heard v. State, 299 Ga. App. 44 , 681 S.E.2d 701 (2009).
No evidence presented to indicate defendant abandoned effort to sell cocaine. - See Quinn v. State, 171 Ga. App. 590 , 320 S.E.2d 827 (1984).
Forcing victim to perform fellatio after failed rape attempt was not evidence of renunciation of criminal purpose of rape. - Since the evidence showed that, upon discovering the victim was menstruating, the defendant apparently found the accomplishment of the crime of rape to be more difficult, the defendant was not found to have abandoned the criminal enterprise, choosing instead to force the victim to perform fellatio; therefore, sufficient evidence existed to support the defendant's conviction for attempted rape since the defendant did not make a complete renunciation of the criminal purpose. Allen v. State, 286 Ga. App. 82 , 648 S.E.2d 677 (2007).
No evidence of abandonment. - When the evidence showed that the defendant directed the getaway car to enable an accomplice to join the group and effect an escape, and the defendant disposed of weapons that had been used in the crimes, there was sufficient evidence from which the jury could have rejected the defendant's defense of abandonment. Johnson v. State, 276 Ga. 368 , 578 S.E.2d 885 (2003).
In a criminal trial on a charge of criminal attempt to commit armed robbery, a trial court properly denied the defendant's motion for a directed verdict because a criminal attempt under O.C.G.A. § 16-4-1 was committed when the defendant and the defendant's two coworkers obtained equipment, including guns and ammunition, in preparation for robbing a store, drove to the store, and were thereafter spotted by the police. Level v. State, 273 Ga. App. 601 , 615 S.E.2d 640 (2005).
Evidence that a defendant was participating in a home invasion robbery but backed out of the house when confronted by the victim, then shot the victim in the chest as the victim reached for the victim's pistol, did not show the defense of abandonment under O.C.G.A. § 16-4-5(b) because it was a response to circumstances presenting an increased probability of apprehension or making accomplishment of the criminal purpose more difficult. Younger v. State, 288 Ga. 195 , 702 S.E.2d 183 (2010).
With regard to the defendant's convictions for attempted child molestation, the state sufficiently defeated the defendant's defense of abandonment because while the defendant did leave the motel parking lot, it was not until the defendant viewed the task force agents wearing identifying t-shirts, communications through open car windows about the defendant's identification were already had, and the defendant left at a high rate of speed in an attempt to flee. Muse v. State, 323 Ga. App. 779 , 748 S.E.2d 136 (2013).
Trial counsel not ineffective. - In a murder case, trial counsel was not ineffective for arguing that the defendant was not guilty of attempting to violate the Georgia Controlled Substances Act, O.C.G.A. § 16-13-1 et seq., because the defendant had abandoned the drug deal at the time of the shooting and that the shooting was in self-defense in light of limited defense options that were available and the evidence against the defendant. Moore v. State, 294 Ga. 453 , 754 S.E.2d 344 (2014).
Jury instruction on abandonment not warranted. - Trial counsel was not ineffective in failing to request a jury charge on the defense of abandonment because the testimony of two witnesses showed that the defendant did not voluntarily abandon the defendant's criminal purpose within the meaning of O.C.G.A. § 16-4-5 ; and the defendant's claim that the defendant was merely present near the scene and wanted nothing to do with the robbery was a claim that the defendant never committed a crime, as opposed to having abandoned an attempt to commit a crime. Satterfield v. State, Ga. , S.E.2d (Sept. 28, 2020).
Cited in Gibbons v. State, 136 Ga. App. 609 , 222 S.E.2d 55 (1975); Cowart v. State, 237 Ga. 282 , 227 S.E.2d 248 (1976); Hibbert v. State, 146 Ga. App. 887 , 247 S.E.2d 554 (1978); Stewart v. State, 147 Ga. App. 547 , 249 S.E.2d 351 (1978); Jackson v. State, 148 Ga. App. 623 , 252 S.E.2d 26 (1979); J.E.T. v. State, 151 Ga. App. 836 , 261 S.E.2d 752 (1979); Beckum v. State, 156 Ga. App. 484 , 274 S.E.2d 829 (1980); Cook v. State, 249 Ga. 709 , 292 S.E.2d 844 (1982); Padgett v. State, 170 Ga. App. 98 , 316 S.E.2d 523 (1984); Battle v. State, 178 Ga. App. 655 , 344 S.E.2d 477 (1986); Merritt v. State, 183 Ga. App. 135 , 358 S.E.2d 293 (1987); Willis v. State, 191 Ga. App. 251 , 381 S.E.2d 416 (1989); Williams v. State, 191 Ga. App. 913 , 383 S.E.2d 344 (1989); Spivey v. State, 243 Ga. App. 785 , 534 S.E.2d 498 (2000); Barnett v. State, 244 Ga. App. 585 , 536 S.E.2d 263 (2000); Kelly v. State, 272 Ga. 800 , 537 S.E.2d 338 (2000).
RESEARCH REFERENCES
Withdrawal From or Abandonment of Criminal Enterprise, 8 POF2d 231.
C.J.S. - 22 C.J.S., Criminal Law: Substantive Principles, § 152.
ALR. - Attempt to conceal or dispose of body as evidence connecting accused with homicide, 2 A.L.R. 1227 .
What constitutes attempted murder, 54 A.L.R.3d 612.
16-4-6. Penalties for criminal attempt.
- A person convicted of the offense of criminal attempt to commit a crime punishable by death or by life imprisonment shall be punished by imprisonment for not less than one year nor more than 30 years.
- A person convicted of the offense of criminal attempt to commit a felony, other than a felony punishable by death or life imprisonment, shall be punished by imprisonment for not less than one year nor more than one-half the maximum period of time for which he or she could have been sentenced if he or she had been convicted of the crime attempted, by one-half the maximum fine to which he or she could have been subjected if he or she had been convicted of the crime attempted, or both.
-
A person convicted of the offense of criminal attempt to commit a misdemeanor shall be punished as for a misdemeanor.
(Code 1933, § 26-1006, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 2007, p. 501, § 1/SB 79.)
Editor's notes. - Ga. L. 2007, p. 501, § 2/SB 79, not codified by the General Assembly, provides that this Code section shall apply to all crimes committed on and after July 1, 2007.
JUDICIAL DECISIONS
Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1873, § 4712 are included in the annotations for this Code section.
Statute not confined to indictments for attempts. - Penalties prescribed for attempts to commit offenses apply equally whether indictment is under statute for attempt, or under some other statute for offense itself and only attempt is found by jury. Miller v. State, 58 Ga. 200 (1877) (decided under former Code 1873, § 4712).
O.C.G.A. §§ 16-4-6 and 16-13-33 are mutually exclusive and there is no uncertainty as to which applies because § 16-13-33 renders § 16-4-6 inapplicable in prosecutions under the Georgia Controlled Substances Act as when a crime is penalized by a special law, the general provisions of the penal code are not applicable; accordingly, there is no merit to the assertion that § 16-13-33 contravenes the rule of lenity, and the trial court did not err in imposing a sentence for marijuana convictions under that provision rather than § 16-4-6. Woods v. State, 279 Ga. 28 , 608 S.E.2d 631 (2005).
Sentence of 30 years for attempted kidnapping proper. - Defendant's life sentence for kidnapping the seven-year-old girl and the 30-year sentence for criminal attempt to kidnap the two-year-old girl did not constitute cruel and unusual punishment forbidden by the Eighth Amendment because the sentences fell within the statutory limits set by the legislature for those offenses; furthermore, because the defendant's challenges to the constitutionality of the defendant's sentences were untimely as the defendant did not make the challenge at the first available opportunity - in the sentencing hearing - but instead waited until the defendant's motion for new trial to object, the defendant's challenges were untimely and were not subject to review. Ashley v. State, 340 Ga. App. 539 , 798 S.E.2d 235 (2017).
Attempted rape conviction required sex offender registration. - In pleading guilty to criminal attempt to commit rape, a defendant admitted that the defendant intended to commit the specific crime of rape and took a substantial step toward that end. Because the crime attempted was related to a sexually violent offense, namely rape, the defendant was properly required to comply with the registration requirements of O.C.G.A. § 42-1-12 , and the trial court did not err in convicting the defendant for violating the registry statute. Jenkins v. State, 284 Ga. 642 , 670 S.E.2d 425 (2008).
Recovery for personal injuries. - Legislative purpose of the Georgia Racketeer Influenced and Corrupt Organizations Act does not preclude recovery for personal injuries. Reaugh v. Inner Harbour Hosp., 214 Ga. App. 259 , 447 S.E.2d 617 (1994).
Felony punished as misdemeanor. - That felony may be punished as misdemeanor when prisoner is recommended to mercy, does not take attempt to commit such felony out of operation of former Code 1873, § 4712 if there were no recommendation of mercy. Miller v. State, 58 Ga. 200 (1877) (decided under former Code 1873, § 4712).
Controlled substance violations. - O.C.G.A. § 16-13-33 , concerning attempt, in no way affects operation of O.C.G.A. § 16-4-3 , but rather it renders the penalty in O.C.G.A. § 16-4-6 inapplicable in prosecutions under the Georgia Controlled Substances Act, O.C.G.A. § 16-13-1 et seq. Davis v. State, 164 Ga. App. 633 , 298 S.E.2d 615 (1982).
Contribution rights. - Contribution rights by which liability is apportioned among joint tortfeasors will be recognized under Georgia Racketeer Influenced Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., when those rights are expressly created by the parties in a contractual agreement preceding the litigation. Sikes v. AT & T Co., 841 F. Supp. 1572 (S.D. Ga. 1993).
Jury instruction upheld. - Trial court did not err in giving the jury an instruction on conspiracy when the offense charged was attempted bribery. Since the instruction is free of confusion or other error, it follows that there is no "possibility" or "real probability" that the instruction would induce the jury to convict the defendant of conspiracy (maximum sentence: five years) rather than of attempted bribery (a ten-year maximum). Carpenter v. State, 167 Ga. App. 634 , 307 S.E.2d 19 (1983), aff'd, 252 Ga. 79 , 310 S.E.2d 912 (1984).
Defendant was properly sentenced as recidivist under O.C.G.A. § 17-10-7 as O.C.G.A. § 16-7-1(b) was inapplicable since defendant was convicted of attempted burglary, which was subject to sentencing under O.C.G.A. § 16-4-6 ; further, defendant had been convicted of two other burglaries and two other felonies, so defendant was a four-time felony offender subject to the general recidivist sentencing scheme in O.C.G.A. § 17-10-7 . Smith v. State, 273 Ga. App. 107 , 614 S.E.2d 219 (2005).
Trial court properly vacated a consent order modifying the defendant's original sentence, as such was based upon a mistake of law induced by the defendant personally, and hence, void; moreover, because the defendant was sentenced as a recidivist, the trial court was required to impose a sentence pursuant to O.C.G.A. § 17-10-7(a) . Sosebee v. State, 282 Ga. App. 905 , 640 S.E.2d 379 (2006).
Sentence within statutory limits for attempted burglary upheld. - When the defendant was sentenced to 10 years, the maximum allowed under O.C.G.A. § 16-4-6(b) for a first offense of attempted burglary, the court would not disturb the sentence as the sentence was within the statutory limits. Armour v. State, 292 Ga. App. 111 , 663 S.E.2d 367 (2008).
Merger of counts for sentencing required. - Trial court erred by failing to merge the defendant's aggravated assault counts into the armed robbery count for purposes of sentencing because the offenses merged as a matter of fact, and as such, the aggravated assault conviction was the lesser offense and had to be merged into the attempted armed robbery conviction. Reed v. State, 318 Ga. App. 412 , 734 S.E.2d 113 (2012).
Court erred in sentencing defendant to 30 years for attempted sodomy. - In 2007, the maximum penalty for criminal attempt to commit aggravated sodomy was increased from ten years to thirty years pursuant to O.C.G.A. § 16-4-6 . The increased sentence, however, applied only to crimes committed on or after July 1, 2007; therefore, the trial court erred in sentencing a defendant to 30 years for an attempted sodomy that occurred on March 2, 2006. Bryant v. State, 304 Ga. App. 755 , 697 S.E.2d 860 (2010).
Trial court erred in sentencing the defendant to 20 years to serve on the criminal attempt to commit robbery count because the maximum sentence the defendant could have received was 10 years as convicted of the offense of criminal attempt to commit a felony, not punishable by death or life imprisonment, could be punished by imprisonment for not less than one year nor more than one-half the maximum period of time for which the defendant could have been sentenced if the defendant had been convicted of the crime attempted; the maximum sentence for robbery was 20 years; and half that time was 10 years. Ranger v. State, 330 Ga. App. 578 , 768 S.E.2d 768 (2015).
Defendant properly sentenced for attempted murder rather than aggravated assault. - Defendant's appeal from the defendant's conviction of attempted murder, in which the defendant argued that the law was ambiguous about whether the defendant's attempt to kill the defendant's spouse was punishable as attempted murder or only as aggravated assault, was res judicata and barred the defendant's petition for habeas corpus; contrary to the defendant's argument, there was no change in the law because McNair v. State, 293 Ga. 282 (2013), applying the rule of lenity when there was ambiguity between two felony punishments, was dictated by the Supreme Court's own precedents. Rollf v. Carter, 298 Ga. 557 , 784 S.E.2d 341 (2016).
Cited in Bearden v. State, 122 Ga. App. 25 , 176 S.E.2d 243 (1970); Williams v. State, 123 Ga. App. 9 , 179 S.E.2d 351 (1970); Witt v. State, 124 Ga. App. 535 , 184 S.E.2d 517 (1971); Fullewellen v. State, 127 Ga. App. 568 , 194 S.E.2d 275 (1972); Cowart v. State, 136 Ga. App. 528 , 221 S.E.2d 649 (1975); Johnson v. Jackson, 140 Ga. App. 252 , 230 S.E.2d 756 (1976); Farley v. State, 238 Ga. 181 , 231 S.E.2d 761 (1977); Johnson v. State, 144 Ga. App. 568 , 241 S.E.2d 458 (1978); Head v. Hopper, 241 Ga. 164 , 243 S.E.2d 877 (1978); Dunbar v. State, 146 Ga. App. 136 , 245 S.E.2d 486 (1978); Taylor v. Hopper, 596 F.2d 1284 (5th Cir. 1979); Gunter v. State, 155 Ga. App. 176 , 270 S.E.2d 224 (1980); McKenzie v. State, 248 Ga. 294 , 282 S.E.2d 95 (1981); Stillwell v. State, 161 Ga. App. 230 , 288 S.E.2d 295 (1982); Morast v. Lance, 631 F. Supp. 474 (N.D. Ga. 1986); Ranson v. State, 198 Ga. App. 659 , 402 S.E.2d 740 ; Daniel v. State, 200 Ga. App. 79 , 406 S.E.2d 806 (1991); English v. State, 282 Ga. App. 552 , 639 S.E.2d 551 (2006); Upton v. Johnson, 282 Ga. 600 , 652 S.E.2d 516 (2007); Castaneira v. State, 321 Ga. App. 418 , 740 S.E.2d 400 (2013); Marshall v. State, Ga. , S.E.2d (Sept. 8, 2020).
16-4-7. Criminal solicitation.
- A person commits the offense of criminal solicitation when, with intent that another person engage in conduct constituting a felony, he solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage in such conduct.
- A person convicted of the offense of criminal solicitation to commit a felony shall be punished by imprisonment for not less than one nor more than three years. A person convicted of the offense of criminal solicitation to commit a crime punishable by death or by life imprisonment shall be punished by imprisonment for not less than one nor more than five years.
- It is no defense to a prosecution for criminal solicitation that the person solicited could not be guilty of the crime solicited.
-
The provisions of subsections (a) through (c) of this Code section are cumulative and shall not supersede any other penal law of this state.
(Code 1933, §§ 26-1007, 26-1008, 26-1009, enacted by Ga. L. 1978, p. 903, § 1.)
Law reviews. - For article surveying developments in Georgia constitutional law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 51 (1981).
JUDICIAL DECISIONS
Section is not overbroad as encompassing protected speech. - Former Code 1933, § 26-1007 prohibits only such language as creates a clear and present danger of a felony being committed and is therefore not overbroad as encompassing protected speech. State v. Davis, 246 Ga. 761 , 272 S.E.2d 721 (1980) (see O.C.G.A. § 16-4-7 ).
Clear and present danger of perpetration of felony by person solicited. - Phrase "or otherwise attempts to cause such other person to engage in such conduct" is construed as meaning or otherwise creates a clear and present danger of such other person perpetrating a felony. State v. Davis, 246 Ga. 761 , 272 S.E.2d 721 (1980).
Nature of statement constituting solicitation. - Only a relatively overt statement or request intended to bring about action on part of another person will bring defendant within statute. State v. Davis, 246 Ga. 761 , 272 S.E.2d 721 (1980).
Words alone, regardless of degree of their insulting nature, will not in any case justify excitement of passion so as to reduce crime for murder to manslaughter where killing is done solely on account of the indignation aroused by use of opprobrious words. Brooks v. State, 249 Ga. 583 , 292 S.E.2d 694 (1982).
Drug trafficking. - Defendant's exercise of control over an attempted sale of drugs to police sufficiently supported defendant's conviction for criminal solicitation to commit trafficking. Forrester v. State, 255 Ga. App. 456 , 565 S.E.2d 825 (2002).
Solicitation to commit murder. - Evidence that a defendant gave a detective checks for $7,000 to kill the defendant's uncle and described the defendant's uncle's location was sufficient to support the defendant's convictions for criminal attempt to commit murder and solicitation of murder. Impossibility was not a defense, although the uncle was through airport security and there were no funds in the defendant's account, because the defendant believed that the hit could take place and that the checks would persuade the supposed hit man to commit the murder. Rana v. State, 304 Ga. App. 750 , 697 S.E.2d 867 , cert. denied, No. S10C1764, 2010 Ga. LEXIS 922 (Ga.), cert. denied, U.S. , 131 S. Ct. 156 , 178 L. Ed. 2 d 93 (2010).
Solicitation is not a lesser included offense of trafficking in methamphetamine in violation of O.C.G.A. § 16-13-31(e) , as the facts necessary to prove each offense are different. Dimas v. State, 276 Ga. App. 245 , 622 S.E.2d 914 (2005).
Trial court properly denied defendant's motion for a directed verdict of acquittal on all of the charges relating to solicitation to commit two murders and solicitation to conceal the death of one of the purported murder victims as the testimony of a witness established that defendant sought that witness's aide in murdering two game wardens who had charged defendant with various hunting violations, that the witness was equipped with a tape device to record defendant's plans and those tapes were presented at trial, which detailed defendant going over the gun to be used and the manner in which the death of one victim was to be concealed. English v. State, 290 Ga. App. 378 , 659 S.E.2d 783 (2008).
Jury instructions. - Evidence did not warrant a charge on criminal solicitation as a lesser included offense within charge of criminal attempt to commit murder where the evidence established without dispute that to the extent the defendant may have attempted to induce another person to commit a crime, defendant went well beyond the mere use of language and paid defendant for that purpose. Norris v. State, 176 Ga. App. 164 , 335 S.E.2d 611 (1985).
Trial court did not err in denying defendant's requested charge on criminal solicitation because it was not a lesser included offense in the crime of trafficking in cocaine as a matter of law or fact. Adams v. State, 229 Ga. App. 381 , 494 S.E.2d 92 (1997).
Trial court did not err in refusing to charge on criminal attempt to solicit murder since that charge was not supported in law or fact. McTaggart v. State, 225 Ga. App. 359 , 483 S.E.2d 898 (1997).
Defendant's convictions on two counts of criminal solicitation to commit a felony (murder) were reversed for a new trial as the trial court erred in failing to instruct the jury on the definitions of the words "felony" and "murder" as essential elements of the crime charged. Essuon v. State, 286 Ga. App. 869 , 650 S.E.2d 409 (2007).
Trial court properly charged the jury with the entire solicitation statute, pursuant to O.C.G.A. § 16-4-7 , despite the state only alleging that defendant violated the statute in one manner in the indictment as there was no reasonable probability existing that the jury convicted defendant for committing the offense in a manner not charged in the indictment. The trial court did not submit the case to the jury upon a theory entirely different from that claimed in the indictment; the indictment used the words "solicit" and "request," as did the trial court in the court's charge to the jury; the trial court's charge to the jury, which also included "commands, urges or otherwise attempts," did not permit the prosecution to prove that a crime was committed in a wholly different manner than that specifically alleged in the indictment; and the trial court instructed the jury that the state must prove the acts were completed as alleged in the indictment, and that the state bore the burden of proving every material allegation of the indictment beyond a reasonable doubt. English v. State, 290 Ga. App. 378 , 659 S.E.2d 783 (2008).
After the defendant delivered a package containing drugs to an informant's love interest who was working with police, and there was no evidence that the defendant asked the love interest to engage in anything or that the defendant used language indicating a clear and present danger that a felony would be committed, the defendant was not entitled to a jury charge on criminal solicitation in violation of O.C.G.A. § 16-4-7(a) . Dimas v. State, 276 Ga. App. 245 , 622 S.E.2d 914 (2005).
Cited in Williams v. State, 123 Ga. App. 9 , 179 S.E.2d 351 (1970); Howell v. State, 157 Ga. App. 451 , 278 S.E.2d 43 (1981); Washington v. State, 268 Ga. 598 , 492 S.E.2d 197 (1997); Lindsey v. State, 282 Ga. 447 , 651 S.E.2d 66 (2007).
RESEARCH REFERENCES
Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, § 153 et seq.
C.J.S. - 22 C.J.S., Criminal Law: Substantive Principles, §§ 151, 161 et seq.
ALR. - Solicitation to crime as substantive common-law offense, 35 A.L.R. 961 .
Criminal responsibility of one cooperating in offense which he is incapable of committing personally, 131 A.L.R. 1322 .
Construction and effect of statutes making solicitation to commit crime a substantive offense, 51 A.L.R.2d 953.
Validity and construction of statute or ordinance proscribing solicitation for purposes of prostitution, lewdness, or assignation - modern cases, 77 A.L.R.3d 519.
Solicitation to commit crime against more than one person or property, made in single conversation, as single or multiple crimes, 24 A.L.R.4th 1324.
16-4-8. Conspiracy to commit a crime.
A person commits the offense of conspiracy to commit a crime when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy. A person convicted of the offense of criminal conspiracy to commit a felony shall be punished by imprisonment for not less than one year nor more than one-half the maximum period of time for which he could have been sentenced if he had been convicted of the crime conspired to have been committed, by one-half the maximum fine to which he could have been subjected if he had been convicted of such crime, or both. A person convicted of the offense of criminal conspiracy to commit a misdemeanor shall be punished as for a misdemeanor. A person convicted of the offense of criminal conspiracy to commit a crime punishable by death or by life imprisonment shall be punished by imprisonment for not less than one year nor more than ten years.
(Laws 1833, Cobb's 1851 Digest, p. 808; Code 1863, § 4387; Code 1868, § 4425; Code 1873, § 4497; Code 1882, § 4497; Penal Code 1895, § 118; Penal Code 1910, § 120; Code 1933, § 26-1901; Code 1933, § 26-3201, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1969, p. 857, § 14; Ga. L. 1977, p. 601, § 2.)
Law reviews. - For article, "A comprehensive analysis of Georgia RICO," see 9 Ga. St. U. L. Rev 537 (1993). For annual survey of real property law, see 57 Mercer L. Rev. 331 (2005).
JUDICIAL DECISIONS
ANALYSIS
General Consideration
Editor's notes. - In light of the similarity of the statutory provisions, decisions rendered prior to codification of this principle by Ga. L. 1968, p. 1249, § 1 are included in the annotations for this Code section.
Constitutionality. - Conspiracy statute, O.C.G.A. § 16-4-8 , is not unconstitutionally vague because the statute's term "overt act" unambiguously refers to a specific type of open or manifest act made in furtherance of a conspiracy to commit a crime. Bradford v. State, 285 Ga. 1 , 673 S.E.2d 201 (2009).
Conspiracy to defraud the state, O.C.G.A. § 16-10-21(a) , is distinct from O.C.G.A. § 16-4-8 , which is the general conspiracy statute. Gordon v. State, 181 Ga. App. 391 , 352 S.E.2d 582 (1986), aff'd in part, rev'd in part on other grounds, 257 Ga. 335 , 359 S.E.2d 634 (1987).
Offense of conspiracy to defraud a state or political subdivision does not merge with the underlying offense of theft by taking. English v. State, 202 Ga. App. 751 , 415 S.E.2d 659 (1992).
Crime of conspiracy, or of criminal attempt, can only be defined in conjunction with a second criminal section. Orkin v. State, 236 Ga. 176 , 223 S.E.2d 61 (1976).
Crime of conspiracy can be defined only in conjunction with substantive crime involved in it. Orkin v. State, 236 Ga. 176 , 223 S.E.2d 61 (1976); Gonzalez v. Abbott, 262 Ga. 671 , 425 S.E.2d 272 (1993).
When conspiracy itself is a separate crime. - It was intent of the legislature to make conspiracy itself a separate crime only in cases where crime conspired to be committed had not in fact been committed. Scott v. State, 229 Ga. 541 , 192 S.E.2d 367 (1972); Rowe v. State, 166 Ga. App. 836 , 305 S.E.2d 624 (1983).
It was intent of legislature to make conspiracy itself a separate crime only in cases where crime conspired to be committed had not in fact been committed, that is, where conspiracy had been "nipped in the bud." Crosby v. State, 232 Ga. 599 , 207 S.E.2d 515 (1974); Roberts v. State, 242 Ga. 634 , 250 S.E.2d 482 (1978).
One cannot be tried for conspiracy when the object of the conspiracy is completed. Kilgore v. State, 251 Ga. 291 , 305 S.E.2d 82 (1983).
Law of conspiracy can apply only to subjects capable of entertaining a criminal intent. Sweat v. State, 119 Ga. App. 646 , 168 S.E.2d 654 (1969).
Each participant in a conspiracy is responsible for acts of the others. Causey v. State, 154 Ga. App. 76 , 267 S.E.2d 475 (1980).
When a conspiracy is shown, the act of one becomes the act of all, insofar as furtherance of conspiracy is concerned; and each is as fully responsible for acts of the others in carrying out common purpose as if that one personally had committed the acts. Thrift-Mart, Inc. v. Commercial Union Assurance Cos., 154 Ga. App. 344 , 268 S.E.2d 397 (1980).
Once common design is shown by evidence tending to indicate that individuals have associated themselves together to do an unlawful act, any act done in pursuance of that association by any one of the associates, would, in legal contemplation, be the act of each of them. Greene v. State, 155 Ga. App. 222 , 270 S.E.2d 386 (1980).
Act of one conspirator is considered to be act of all conspirators. Whitfield v. State, 159 Ga. App. 398 , 283 S.E.2d 627 (1981).
One may become part of conspiracy after its formation. - After conspiracy is formed, if a party joins therein, knowing of its existence and purpose, that party becomes as much a party thereto as if the person had been an original member. Willson v. Appalachian Oak Flooring & Hdwe. Co., 220 Ga. 599 , 140 S.E.2d 830 (1965) (decided under prior law).
Conspiring with another to commit crime as element of accessorial liability. - Conspiring with another to commit an offense may be an element in the guilt of one charged as an accessory, or in misdemeanors, even of a principal. Crow v. State, 52 Ga. App. 192 , 182 S.E. 685 (1935) (decided under prior law).
One who conspires to commit murder does so with malice aforethought. Orkin v. State, 236 Ga. 176 , 223 S.E.2d 61 (1976).
Murder may be imputable to coconspirators where it is incidental, probable consequence of conspiracy. - If during commission of crime a coconspirator commits murder, it is not necessary that the murder be part of original design, but it is enough if it is an incidental, probable consequence of the execution of conspirators' design and should appear at the moment to one of the participants to be expedient for the common purpose, and intent of actual slayer is imputable to the coconspirators. Lumpkin v. State, 176 Ga. 446 , 168 S.E. 241 (1933) (decided under prior law).
Evidence of a subsequent successful conspiracy by defendant to murder her husband had a logical connection to the crime for which she was being tried, a separate conspiracy to murder him. Such evidence tends to show intent and state of mind, and certainly tends to establish conspiracy to murder the same victim. Buffington v. State, 171 Ga. App. 919 , 321 S.E.2d 418 (1984).
E-mails as evidence of conspiracy to murder. - Evidence that the defendant sent the co-conspirator e-mails entreating the co-conspirator to help the defendant out of the hell the defendant was living in, that the defendant made specific references to shooting and killing the victim, and the co-conspirator had access to a drug found in the victim's blood that had never been prescribed to the victim supported the convictions and denial of a directed verdict. Thornton v. State, 331 Ga. App. 191 , 770 S.E.2d 279 (2015), aff'd, 298 Ga. 709 , 784 S.E.2d 417 (2016).
Gang activities and murders. - Sufficient evidence supported the appellant's conviction for a conspiracy offense that served as a predicate for conviction for violation of the Georgia Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-1 et seq., based on the appellant's rank in the gang, statements to fellow gang members about killing violators of gang rules, communications with gang members who were critical of the victim, coupled with statements that somebody's got to die, and the appellant's trip to meet with gang members about the victim. Chavers v. State, 304 Ga. 887 , 823 S.E.2d 283 (2019).
Merger of offenses. - Even though the crimes of conspiracy and possession of tools for the commission of a crime do not merge as a matter of law, because the form of the indictment required proof of the possession of tools in order to prove the conspiracy, the offenses merged as a matter of fact. Green v. State, 240 Ga. App. 377 , 523 S.E.2d 581 (1999).
Merger of conspiracy into greater crime. - Conspiracy is merged into greater crime where evidence shows without dispute that crime charged was actually committed, or that all essential acts constituting crime were committed. Dutton v. State, 228 Ga. 850 , 188 S.E.2d 794 (1972); Crosby v. State, 232 Ga. 599 , 207 S.E.2d 515 (1974).
No merger of attempted burglary and conspiracy to commit armed robbery. - Because attempted burglary and conspiracy to commit armed robbery each required different statutory elements and, thus, required proof of a fact the other did not, the offenses did not merge. Owens v. State, 353 Ga. App. 616 , 838 S.E.2d 909 (2020).
Multiple convictions under separate conspiracy statutes. - When conspiracy contemplates commission of more than one substantive offense, and there are separate conspiracy statutes separately punishing a conspiracy to commit each offense, a separate conviction under each conspiracy statute may be authorized. Price v. State, 247 Ga. 58 , 273 S.E.2d 854 (1981).
Acts pursuant to single conspiracy constituting separate substantive offenses. - When multiple overt acts are committed pursuant to what is albeit a single conspiracy, and each overt act constitutes a separate substantive offense, there may be multiple convictions for multiple substantive offenses. Price v. State, 247 Ga. 58 , 273 S.E.2d 854 (1981).
Charges of conspiracy to import marijuana and trafficking in marijuana could be joined for trial, over objection, where the charges arose from the same conduct. Bridges v. State, 195 Ga. App. 851 , 395 S.E.2d 30 (1990).
Inconsistent verdict not relevant when co-conspirator acquitted. - Trial court did not err by refusing to vacate the conviction for conspiracy to commit murder on the basis that the verdict was inconsistent or irreconcilable with the acquittal of a co-conspirator. Thornton v. State, 331 Ga. App. 191 , 770 S.E.2d 279 (2015), aff'd, 298 Ga. 709 , 784 S.E.2d 417 (2016).
Improper conviction for multiple counts of conspiracy as harmless error. - Improper conviction of multiple counts of conspiracy indictment is harmless error where defendant's sentence is within legal limits for conviction of a single conspiracy. Price v. State, 247 Ga. 58 , 273 S.E.2d 854 (1981).
When defendants are indicted under former Code 1933, § 26-3201, the maximum punishment provisions apply. Jones v. State, 135 Ga. App. 893 , 219 S.E.2d 585 (1975) (see O.C.G.A. § 16-4-8 ).
Sentence appropriate. - Juvenile defendant was sentenced as an adult to 10 years' imprisonment after being convicted of conspiracy to commit armed robbery in a criminal episode in which a person was killed. As the 10-year sentence was within the limits set by O.C.G.A. §§ 16-4-8 and 16-8-41(b) , and there was no showing that the sentence was overly severe or excessive in proportion to the offense, the sentence did not violate the Eighth Amendment. Pascarella v. State, 294 Ga. App. 414 , 669 S.E.2d 216 (2008), cert. denied, No. S09C0426, 2009 Ga. LEXIS 188 (Ga. 2009).
Sentence for two conspiracies harmless error. - Even if it was error to sentence the defendant on two conspiracy counts, the error was harmless because the sentence was within the legal limits for conviction of a single conspiracy. Dorsey v. State, 331 Ga. App. 486 , 771 S.E.2d 167 (2015).
Sentence for conspiracy to traffic in marijuana. - Sentencing provisions in O.C.G.A. § 16-13-33 , not the general provisions in O.C.G.A. § 16-4-8 , are applicable to the offense of conspiracy to traffic in marijuana. Raftis v. State, 175 Ga. App. 893 , 334 S.E.2d 857 (1985).
Maximum punishment provisions of Controlled Substances Act apply to conspiracy. - When the indictment charged "Conspiracy to Possess and Sell Marijuana" a violation of provisions of the Georgia Controlled Substances Act (see O.C.G.A. Ch. 13, T. 16) is properly charged and maximum punishment provisions of it apply. Jones v. State, 135 Ga. App. 893 , 219 S.E.2d 585 (1975).
Because conspiracy to manufacture methamphetamine was a crime penalized by a special law, the general provisions of the penal code did not apply; thus, under both O.C.G.A. §§ 16-13-30 and 16-13-33 , which were mutually exclusive, the defendant was properly sentenced to 30 years, which was the maximum sentence allowed. McWhorter v. State, 275 Ga. App. 624 , 621 S.E.2d 571 (2005).
Imposition of a fine. - When the clear language of O.C.G.A. § 16-13-33 precludes the imposition of a fine in conjunction with a prison sentence for conspiracy to violate the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., the preclusion applies equally to attempt and conspiracy; therefore, § 16-13-33 supplanted the general punishment provision of O.C.G.A. § 16-4-8 for attempt or conspiracy to possess controlled substances. Watson v. State, 276 Ga. 212 , 576 S.E.2d 897 (2003).
Since under O.C.G.A. § 16-13-33 , a conviction for criminal attempt to violate the Georgia Controlled Substance Act, O.C.G.A. § 16-13-20 et seq., does not authorize the imposition of a fine; therefore, Watson v. State, 256 Ga. App. 789 (2002) is reversed to the extent that it holds to the contrary. Watson v. State, 276 Ga. 212 , 576 S.E.2d 897 (2003).
Civil liability arising from acts pursuant to conspiracy. - If in carrying out design of conspirators, overt acts are done, causing legal damage, the person so damaged has a right of action. Patterson-Pope Motor Co. v. Ford Motor Co., 66 Ga. App. 41 , 16 S.E.2d 877 (1941).
Conspiracy alone, without overt act, will not support a civil cause of action. Patterson-Pope Motor Co. v. Ford Motor Co., 66 Ga. App. 41 , 16 S.E.2d 877 (1941).
Arson conspiracy and murder. - Conspiracy to commit arson, without more does not naturally, necessarily, and probably result in the murder of one coconspirator by another; thus, defendant was improperly convicted of murder because although defendant was guilty of conspiracy to commit arson, the subsequent murder of one coconspirator by another to keep the murdered coconspirator quiet was not reasonably foreseen as a necessary, probable consequence of the arson conspiracy. Everritt v. State, 277 Ga. 457 , 588 S.E.2d 691 (2003).
Theft by shoplifting. - Sufficient evidence supported the defendant's convictions of false statements under O.C.G.A. § 16-10-20 and conspiracy to commit theft by shoplifting under O.C.G.A. § 16-4-8 as the coconspirator testified as to the defendant's request for specific items to be stolen, the special agent testified about the defendant's false statements, and the defendant gave a statement admitting to the conduct; the testimony of the coconspirator and of the special agent established the elements of the offenses, and the jury, under former O.C.G.A. § 24-9-80 (see now O.C.G.A. § 24-6-620 ), had the right to disbelieve the defendant's testimony to the contrary. Acey v. State, 281 Ga. App. 197 , 635 S.E.2d 814 (2006).
Theft by receiving stolen property. - Evidence was sufficient to sustain the codefendants' convictions for theft by receiving stolen property and conspiracy to commit theft by receiving stolen property since the testimony was sufficient to show that items of value, owned by someone other than the codefendants, were recovered from a warehouse over which the codefendants had control. A witness's misstatements concerning the specific address of the warehouse did not render the evidence insufficient as to the location from where the stolen property was recovered. Robinson v. State, 312 Ga. App. 736 , 719 S.E.2d 601 (2011).
Conspiracy as underlying felony. - State proved that the defendant possessed the intent required to commit the predicate aggravated assault and conspiracy felonies for the felony murder conviction because evidence was sufficient to authorize a rational jury to conclude that the defendant, with a coparty and coconspirator, intended to rob the victim using a deadly weapon, that the victim was reasonably apprehensive of receiving a violent injury as a result of their intentional acts, and that the defendant was guilty beyond a reasonable doubt as a party to the crimes for which the defendant was convicted pursuant to O.C.G.A. § 16-2-2 . Johnson v. State, 289 Ga. 498 , 713 S.E.2d 376 (2011).
Cited in Cross v. State, 124 Ga. App. 152 , 183 S.E.2d 93 (1971); Patterson v. State, 126 Ga. App. 753 , 191 S.E.2d 584 (1972); Sak v. State, 129 Ga. App. 301 , 199 S.E.2d 628 (1973); Porterfield v. State, 137 Ga. App. 449 , 224 S.E.2d 94 (1976); Barner v. State, 139 Ga. App. 50 , 227 S.E.2d 874 (1976); Brooks v. State, 144 Ga. App. 97 , 240 S.E.2d 593 (1977); Mace v. State, 144 Ga. App. 496 , 241 S.E.2d 615 (1978); Hammock v. State, 146 Ga. App. 339 , 246 S.E.2d 392 (1978); Booker v. State, 242 Ga. 773 , 251 S.E.2d 518 (1979); Dasher v. State, 149 Ga. App. 740 , 256 S.E.2d 106 (1979); Evans v. State, 161 Ga. App. 468 , 288 S.E.2d 726 (1982); Hamilton v. State, 162 Ga. App. 620 , 292 S.E.2d 473 (1982); State v. Lewis, 249 Ga. 565 , 292 S.E.2d 667 (1982); Robinson v. State, 164 Ga. App. 652 , 297 S.E.2d 751 (1982); Staton v. State, 165 Ga. App. 572 , 302 S.E.2d 126 (1983); Minton v. State, 167 Ga. App. 114 , 305 S.E.2d 812 (1983); Solomon v. Kemp, 735 F.2d 395 (11th Cir. 1984); Simmons v. State, 174 Ga. App. 171 , 329 S.E.2d 312 (1985); Robinson v. State, 175 Ga. App. 769 , 334 S.E.2d 358 (1985); Duren v. State, 177 Ga. App. 421 , 339 S.E.2d 394 (1986); Chase v. State, 179 Ga. App. 71 , 345 S.E.2d 149 (1986); Hamilton v. State, 179 Ga. App. 434 , 346 S.E.2d 881 (1986); Rowe v. State, 181 Ga. App. 492 , 352 S.E.2d 813 (1987); Skinner v. State, 182 Ga. App. 370 , 355 S.E.2d 726 (1987); Kelleher v. State, 185 Ga. App. 774 , 365 S.E.2d 889 (1988); Hargrove v. State, 188 Ga. App. 336 , 373 S.E.2d 44 (1988); State v. McBride, 261 Ga. 60 , 401 S.E.2d 484 (1991); Lyons v. State, 214 Ga. App. 709 , 448 S.E.2d 777 (1994); Burnette v. State, 241 Ga. App. 682 , 527 S.E.2d 276 (1999); Pinkins v. State, 243 Ga. App. 737 , 534 S.E.2d 192 (2000); Granados v. State, 244 Ga. App. 153 , 34 S.E.2d 886 (2000); Anderson v. State, 261 Ga. App. 456 , 582 S.E.2d 575 (2003); Kelley v. State, 279 Ga. App. 187 , 630 S.E.2d 783 (2006); Walker v. State, 289 Ga. App. 879 , 658 S.E.2d 375 (2008), overruled on other grounds, Gordon v. State, 334 Ga. App. 633 , 780 S.E.2d 376 (2015); Harper v. State, 292 Ga. 557 , 738 S.E.2d 584 (2013); Sanchez-Villa v. State, 341 Ga. App. 264 , 799 S.E.2d 364 (2017).
What Constitutes Conspiracy
Evidence supported conviction for conspiracy to possess cocaine with intent to distribute where: (1) the defendant was found in a shed with 70 pieces of crack cocaine, scales, razors, and baggies; (2) the defendant's pockets contained a large amount of cash; (3) the codefendant, the shed's occupant, fled from the police and was found with additional crack cocaine; and (4) the defendant's car contained a case for holding scales and additional baggies. King v. State, 275 Ga. App. 450 , 620 S.E.2d 570 (2005).
Essence of conspiracy under O.C.G.A. § 16-4-8 is an agreement, and that agreement (unlike its meaning in contract law) may be a mere tacit understanding. Drane v. State, 265 Ga. 255 , 455 S.E.2d 27 (1995).
Some evidence necessary to support its finding of conspiracy. - While ordinarily the question of whether or not a conspiracy was entered into is a question of fact exclusively for consideration of jury, this question, like other questions of fact, is subject to the scintilla rule and unless there is some evidence to show a conspiracy, a conviction or a finding of fact which has as its basis a conspiracy ought not to be allowed to stand. Brewer v. State, 129 Ga. App. 118 , 199 S.E.2d 109 (1973), overruled on other grounds, State v. Folk, 238 Ga. App. 206 , 521 S.E.2d 194 (1999).
Existence of conspiracy may appear from direct proof or by inference as a deduction from conduct which discloses a common design on part of persons charged to act together for accomplishment of unlawful purpose. McGinty v. State, 134 Ga. App. 399 , 214 S.E.2d 678 (1975); Jerdine v. State, 137 Ga. App. 811 , 224 S.E.2d 803 (1976); Tookes v. State, 159 Ga. App. 423 , 283 S.E.2d 642 (1981), cert. denied, 455 U.S. 945, 102 S. Ct. 1443 , 71 L. Ed. 2 d 658 (1982).
Conspiracy may be shown by circumstantial evidence, such as conduct evidencing common design of participants. Simpkins v. State, 149 Ga. App. 763 , 256 S.E.2d 63 (1979).
Conspiracy may be established by circumstantial as well as direct evidence, and on occasion without actually placing one of the parties as present at scene of crime. Byrd v. State, 156 Ga. App. 522 , 275 S.E.2d 108 (1980).
Conspiracy consists in corrupt agreement between two or more persons to do an unlawful act. Tookes v. State, 159 Ga. App. 423 , 283 S.E.2d 642 (1981), cert. denied, 455 U.S. 945, 102 S. Ct. 1443 , 71 L. Ed. 2 d 658 (1982).
To have a conspiracy, there must be an agreement between two or more persons to commit a crime. Kilgore v. State, 251 Ga. 291 , 305 S.E.2d 82 (1983).
It is not necessary to show a preliminary antecedent agreement. Simpkins v. State, 149 Ga. App. 763 , 256 S.E.2d 63 (1979).
It is not necessary to prove an express compact or agreement among parties. It need not appear that parties have ever met together, either formally or informally, and entered into any explicit formal agreement; it is not necessary that it appear either by words or writing that defendants formulated their unlawful objects. It is sufficient that two or more persons in any manner, either positively or tacitly, come to a mutual understanding that they will accomplish the unlawful design. Hewitt v. State, 127 Ga. App. 180 , 193 S.E.2d 47 (1972).
While essential element of charge is the common design or purpose between two or more persons to commit an unlawful act, it need not appear that parties met together either formally or informally or that they entered into a formal agreement. Neither is it essential that conspirators formulated their unlawful objective either by words or writings. It is sufficient that two or more persons in any manner either expressly or tacitly came to a mutual understanding that they would accomplish the unlawful design. Causey v. State, 154 Ga. App. 76 , 267 S.E.2d 475 (1980).
Conspiracy to purchase marijuana. - Evidence was sufficient to support the defendant's conviction of conspiracy to purchase marijuana because the defendant had previously gone to the seller's home to purchase marijuana, the defendant accompanied the codefendant to the seller's home when the latter went to purchase marijuana, the defendant entered the neighbor's porch with the codefendant where the seller was selling marijuana, drugs and money were visible on the porch, the defendant remained with the seller and the codefendant as they discussed the sale of marijuana for $20 and $10, and the defendant blocked the seller's friend's exit as the friend was leaving the residence. Hunter v. State, 355 Ga. App. 520 , 844 S.E.2d 858 (2020).
"Meeting of the minds" is not necessary. - Type of agreement necessary to form a conspiracy is not the "meeting of the minds" necessary to form a contract and may be a mere tacit understanding between two or more people that the people will pursue a particular criminal objective. Kilgore v. State, 251 Ga. 291 , 305 S.E.2d 82 (1983).
Acting "together with" one another. - Agreement relating to the sale or delivery of amounts of less than 28 grams cannot support a conviction of conspiracy to traffic in methamphetamine, even if the amounts sold over time amount to 28 grams or more, as the plain language of O.C.G.A. § 16-13-31(e) requires a transaction involving 28 grams or more; additionally, the coconspirators must act "together with" one another to commit the crime of trafficking. Pruitt v. State, 264 Ga. App. 44 , 589 S.E.2d 864 (2003).
Acts pursuant to common intent and purpose as establishing conspiracy. - If evidence shows that defendants acted with a common intent and purpose, and that things which were proved to have happened were within scope of this common intent and purpose, this amounts to a conspiracy. Garmon v. State, 122 Ga. App. 61 , 176 S.E.2d 218 (1970).
Consideration relevant to jury's determination as to existence of conspiracy. - Jury is authorized to conclude that a conspiracy existed by proof of acts and conduct of parties, and from nature of acts done, relation of parties and interests of alleged conspirator. Hewitt v. State, 127 Ga. App. 180 , 193 S.E.2d 47 (1972).
Presence, companionship and conduct before and after commission of alleged offense may be considered by jury and are circumstances which may give rise to inference of existence of conspiracy. Stroud v. State, 154 Ga. App. 852 , 270 S.E.2d 69 (1980); Price v. State, 155 Ga. App. 206 , 270 S.E.2d 203 (1980), rev'd on other grounds, 247 Ga. 58 , 273 S.E.2d 854 (1981).
Proof that crime has been committed does not necessarily prove end of conspiracy so as to render acts and declarations of coconspirators after that time inadmissible against other coconspirators, as a conspiracy may be kept open for various purposes. Hawkins v. State, 80 Ga. App. 496 , 56 S.E.2d 315 (1949) (decided under prior law).
Conspiracy may extend beyond actual commission of criminal offense charged. It may expressly or impliedly include such matters as concealing the crime, concealing or suppressing evidence, taking means to prevent or defeat prosecution, possession and disposition of the spoils - depending on nature and extent of agreement as expressly or impliedly entered into by alleged conspirators. Burns v. State, 191 Ga. 60 , 11 S.E.2d 350 (1940); Kent v. State, 105 Ga. App. 565 , 125 S.E.2d 96 (1962) (decided under prior law).
Knowledge of existence or acquiescence in conspiracy does not render one part of it; there must exist some element of affirmative cooperation or at least an agreement to cooperate. Stinson v. State, 151 Ga. App. 533 , 260 S.E.2d 407 (1979).
Only one conspiracy can result from single agreement. - Whether object of a single agreement is to commit one or many crimes, it is in either case the agreement that constitutes the conspiracy, and if there is only one agreement there can be only one conspiracy. Price v. State, 247 Ga. 58 , 273 S.E.2d 854 (1981).
"Wheel" conspiracies. - In a "wheel" conspiracy, there is usually a "hub," or common source of the conspiracy, who deals individually with different persons, "spokes," who do not know each other. It is more difficult to infer an agreement among these spokes than among the links of a "chain" conspiracy because they are less likely to have a community of interest or reason to know of each others' existence, since one spoke's success is usually not dependent on the other spokes' success but instead on the spokes' dealings with the hub. Kilgore v. State, 251 Ga. 291 , 305 S.E.2d 82 (1983).
Conspiracy is deemed to progress until its ultimate purpose is accomplished and may include acts performed and declarations made after commission of crime, and conspiratorial efforts to conceal facts of crime and identity of perpetrators are a continuance of a conspiracy. Timberlake v. State, 158 Ga. App. 125 , 279 S.E.2d 283 (1981).
Possession of burglary tools. - Possessing tools for the commission of a crime, itself a violation of O.C.G.A. § 16-7-20(a) , is an overt act upon which an armed robbery conspiracy conviction may be based. Fuller v. State, 165 Ga. App. 55 , 299 S.E.2d 397 (1983).
Conspiracy to commit burglary. - Evidence that the defendant confessed to entering the apartment to burglarize it, the apartment was occupied, and the defendant and the accomplices took items from the apartment was sufficient to support the defendant's conviction for first degree burglary and conspiracy to commit burglary. Taylor v. State, 344 Ga. App. 122 , 809 S.E.2d 76 (2017).
Conspiracy to commit armed robbery. - Evidence was sufficient to support the defendant's conviction for conspiracy to commit armed robbery because evidence was presented that the defendant and a co-defendant entered a restaurant to rob the restaurant and shot two employees of the restaurant. In a statement to the police, the defendant admitted that the defendant entered the restaurant with a handgun to rob the restaurant, but the defendant claimed that the defendant heard gunshots and left the restaurant, while the co-defendant gave a similar statement to the police. Watkins v. State, 289 Ga. 359 , 711 S.E.2d 655 (2011).
Evidence was sufficient to enable a rational trier of fact to find the defendant guilty of malice murder, conspiracy to commit armed robbery, and possession of a firearm during the commission of a crime because the defendant's claim that, pursuant to O.C.G.A. § 16-4-9 , the defendant renounced and abandoned the conspiracy and that a co-conspirator fatally shot the victims was contradicted by the physical evidence at trial; shell casings from two guns were found at the murder scene and in positions indicating that there were two weapons fired by different individuals. Bailey v. State, 291 Ga. 144 , 728 S.E.2d 214 (2012).
Evidence was sufficient to support the defendant's conviction of conspiracy to commit robbery because the evidence was sufficient for a reasonable juror to infer that the defendant entered into an agreement with the other codefendants to carry out a plot to recover drugs and money from the victim's home. In the week prior to the incident, a codefendant repeatedly met the defendant to discuss "retrieving" drugs and cash from the victim's home, on the night of the home invasion defendant left the hotel with the other co-defendants in a white truck, which was identified as being at the scene of the incident, and the defendant was present with the other co-defendants in the hotel room after the incident. Stokes v. State, 355 Ga. App. 565 , 845 S.E.2d 305 (2020).
Given that the defendant was accompanied by two other people, one masked, who had guns and who stood outside the door's line of sight, a rational trier of fact could have found that the defendant intended to commit armed robbery and that the defendant had conspired with the other people to do so. Owens v. State, 353 Ga. App. 616 , 838 S.E.2d 909 (2020).
Writing and signing a contract are overt acts to effect the object of a conspiracy to commit murder. McCright v. State, 176 Ga. App. 486 , 336 S.E.2d 361 (1985).
Coconspirator's letters, written during existence of conspiracy, tending to show acts pursuant to conspiracy, are admissible. Nelson v. State, 51 Ga. App. 207 , 180 S.E. 16 (1935).
Acts, conduct and sayings of coconspirator during concealment of offense are admissible. - Acts, conduct, and sayings of one conspirator during pendency of wrongful act, not alone in its actual perpetration but also in its subsequent concealment, were admissible against another conspirator. Bragg v. State, 52 Ga. App. 69 , 182 S.E. 403 (1935).
Other acts of same character at about same time. - When intent is material, other acts of same character, at about same time, tending to show common purpose and design to defraud, although such acts were committed by coconspirator, are admissible. Nelson v. State, 51 Ga. App. 207 , 180 S.E. 16 (1935).
Conspiracy to commit murder. - Former Code 1933, § 26-3201 (see O.C.G.A. § 16-4-8 ) and substantive offense of murder, former Code 1933, § 26-1101 (see O.C.G.A. § 16-5-1 ), create crime of conspiracy to commit murder. Orkin v. State, 236 Ga. 176 , 223 S.E.2d 61 (1976).
Drug trafficking. - Evidence supported defendant's conviction on a charge of conspiracy to traffic in cocaine by showing that defendant conspired with defendant's nephew and another man to knowingly possess 28 grams or more of cocaine; defendant performed an overt act by picking up the cocaine from the nephew; by instructing the other man to drive slower to avoid arrest because they had cocaine in the car; and by trying to conceal the cocaine in the car after the driver was stopped for speeding. Smith v. State, 253 Ga. App. 131 , 558 S.E.2d 455 (2001).
State did not have to prove that the defendant was guilty of trafficking in cocaine to obtain a conviction for conspiracy to commit trafficking in cocaine, and the state supreme court rejected defendant's argument that the defendant's conviction for conspiracy to commit trafficking in cocaine had to be reversed because the state did not offer evidence to prove the quantity or purity of the cocaine allegedly involved. Hendricks v. State, 277 Ga. 61 , 586 S.E.2d 317 (2003).
Evidence was sufficient to convict defendant of a conspiracy to traffic in methamphetamine, based on the defendant's understanding with the defendant's spouse regarding the spouse's drug sales, and testimony of drug enforcement agents and co-indictees as well as drugs, money, and drug paraphernalia obtained during a search of the residence defendant shared with the spouse, who had engaged in three sales of this contraband. Williamson v. State, 300 Ga. App. 538 , 685 S.E.2d 784 (2009), cert. denied, No. S10C0387, 2010 Ga. LEXIS 191 (Ga. 2010).
Evidence was sufficient to sustain the defendant's conviction for conspiracy to traffic methamphetamine over 400 grams in violation of O.C.G.A. §§ 16-4-8 and 16-13-31(e)(3) because an accomplice testified that the defendant supplied the accomplice with several pounds of methamphetamine, and that testimony was amply corroborated by other evidence in the record; the defendant's translator testified that the translator retrieved $15,000 from the accomplice as payment for fronted methamphetamine, police officers recovered $15,000 in cash from the translator upon leaving the accomplice's residence, and there were recorded conversations between the accomplice, the defendant, and the translator in which they discussed methamphetamine transactions. Melesa v. State, 314 Ga. App. 306 , 724 S.E.2d 30 (2012).
Evidence was sufficient to establish that the defendant possessed marijuana with intent to distribute under a conspiracy theory because the defendant admitted to agreeing to drive a passenger to pick up the marijuana in exchange for the crack cocaine, which demonstrated an agreement between the defendant and the passenger; both the defendant and the passenger committed acts in furtherance of the agreement because the defendant drove the passenger to pick up the marijuana, and the passenger acquired the marijuana. Stokes v. State, 317 Ga. App. 435 , 731 S.E.2d 118 (2012).
Because the state failed to prove the essential element of an agreement between the defendant and the occupants of a stash house in a drug conspiracy trial, since the only evidence was that a purchase of drugs was to take place, the defendant's conviction for conspiracy to traffic in cocaine under O.C.G.A. §§ 16-4-8 and 16-13-31(a)(1) was reversed. Griffin v. State, 294 Ga. 325 , 751 S.E.2d 773 (2013).
Drug possession. - Evidence supported a defendant's conviction of bringing stolen property to Georgia, eluding an officer, and possessing marijuana as a party, if not as a conspirator since: (1) the defendant discussed with the defendant's love interest what would happen if they were apprehended by the police; (2) the love interest gave the defendant a handgun after the love interest stole a new gun and the defendant packed two guns with the defendant's personal items and the ski masks; (3) the defendant suspected that the truck was stolen, refused to ask about its origin, saw the stolen gun on the seat of the truck, observed two gas drive-offs, ate stolen food, smoked shared marijuana repeatedly, and sat next to the glove compartment where the marijuana lay; and (4) the defendant was silent during the police pursuits, saw the defendant's love interest retrieve a stolen handgun just prior to an assault of a police officer, did not hinder the love interest or warn the police, lied to the police to cover up the matter, and referred to the entire affair as having "fun for a minute." Michael v. State, 281 Ga. App. 289 , 635 S.E.2d 790 (2006), overruled on other grounds by Gibbs v. State, 304 Ga. App. 723 , 798 S.E.2d 308 (2017).
Possession as lesser included offense of conspiracy to purchase marijuana. - Trial court did not plainly err by failing to instruct the jury on possession of marijuana as a lesser-included offense of conspiracy to purchase marijuana because the offense of possession of marijuana was not a lesser-included offense of conspiracy to purchase marijuana as the facts necessary to prove each offense were different. Hunter v. State, 355 Ga. App. 520 , 844 S.E.2d 858 (2020).
Conspiracy to manufacture methamphetamine. - Conviction for conspiring to manufacture methamphetamine was not supported by the evidence. The testimony of the defendant's friend showed only that as an admitted methamphetamine user, the friend was familiar with methamphetamine labs, not that the friend and the defendant reached any agreement to manufacture the drug at the place and time in question; furthermore, the fact that the friend was convicted for manufacturing the drug in a related proceeding arising from the same facts could not be taken as evidence of that fact for purposes of the present case. Honeycutt v. State, 293 Ga. App. 614 , 668 S.E.2d 19 (2008).
Evidence sufficient to show conspiracy to distribute methamphetamine. - Evidence was sufficient to convict the defendant of conspiracy to distribute methamphetamine because methamphetamine was found in a trailer on the defendant's property, which the defendant occupied and controlled, a known drug dealer was found on the defendant's premises, who had been "fronting" the defendant and the defendant's spouse methamphetamine on a weekly basis, and the defendant's spouse kept a book regarding their sales from the drugs supplied by the dealer. Peacock v. State, 301 Ga. App. 873 , 689 S.E.2d 853 (2010).
Aggravated assault. - Defendant's motion for a new trial on the defendant's aggravated assault and possession of a firearm during the aggravated assault charges was properly denied as the defendant's actions before, during, and after a friend's aggravated assault and firearm possession crimes at a home showed not only that the defendant was a party to those crimes, but that the defendant was a fellow conspirator in the assault against the woman as the defendant: (1) forced the woman at gunpoint to drive to the home; (2) stayed in the nearby living room while the friend shot a gun and threatened the woman (and defendant looked into the bedroom after the gun was fired); (3) accompanied the friend and the handcuffed woman in the vehicle following the incident while the friend searched for the boyfriend's residence; (4) encouraged the friend to kill the woman; and (5) did not protest any of the friend's actions throughout the evening. Sapp v. State, 280 Ga. App. 592 , 634 S.E.2d 523 (2006).
Evidence was insufficient to support the defendant's conviction of conspiracy to commit aggravated assault on a police officer because the state failed to show a mutual understanding between the defendant and anyone else to pursue the common criminal objective of shooting the officer. There was no evidence presented about how the defendant obtained the weapon from a co-indictee, and even though the defendant told the others to run after the defendant announced that the defendant was going to shoot the officer and the others ran, that evidence was insufficient to establish a conspiracy to commit aggravated assault on the officer. Frazier v. State, 349 Ga. App. 507 , 826 S.E.2d 361 (2019).
Overt act is required for conviction of conspiracy under former Code 1933, § 79A-812. - For one to be guilty of conspiracy under former Code 1933, § 79A-812, one or more of the conspirators must commit an overt act, as required by O.C.G.A. § 16-4-8 . Price v. State, 247 Ga. 58 , 273 S.E.2d 854 (1981) (see O.C.G.A. § 16-13-33 ).
Phrase, "any person who conspires," in former Code 1933, § 79A-812 (see O.C.G.A. § 16-13-33 ), means anyone committing conspiracy as defined by former Code 1933, § 26-3201 (see O.C.G.A. § 16-4-8 ). Hammock v. Zant, 244 Ga. 863 , 262 S.E.2d 82 (1979).
Separate indictment of parties does not affect admissibility of acts of coconspirator against defendant. Nelson v. State, 51 Ga. App. 207 , 180 S.E. 16 (1935) (decided under prior law).
Acts and declarations of one coconspirator, by themselves. - While rule is well established that conspiracy itself cannot be shown from acts and declarations of one coconspirator in absence of the others, such acts and declarations made in carrying out the conspiracy are relevant. Bragg v. State, 52 Ga. App. 69 , 182 S.E. 403 (1935) (decided under prior law).
Admissibility of acts and declarations of alleged conspirator against others. - Unless a conspiracy is shown prima facie, evidence of acts and declarations of one alleged conspirator can only operate against person whose acts and declarations are proved, if one is on trial; or, if one is not on trial, they are not admissible against defendants being on trial, and should be rejected. Jones v. State, 62 Ga. App. 734 , 9 S.E.2d 707 (1940) (decided under prior law).
Federal crime of conspiracy to transport stolen goods matched Georgia's conspiracy crime. - Trial court properly imposed recidivist punishment pursuant to O.C.G.A. § 17-10-7 based on the defendant's prior federal conviction for conspiracy to transport stolen goods in interstate commerce, 18 U.S.C. §§ 371 and 2314, because the conviction's elements matched felony conspiracy to commit a crime under Georgia law as defined in O.C.G.A. § 16-4-8 . It did not match Georgia's receiving stolen goods crime, O.C.G.A. § 16-8-7 . Nordahl v. State, 306 Ga. 15 , 829 S.E.2d 99 (2019).
When jury finds no company. - If sufficient prima facie evidence of conspiracy is introduced to authorize admitting of evidence of acts and declarations of one of the alleged conspirators, ultimately it is for jury to determine whether from all evidence, a conspiracy has been shown; and, if they find that none has been established, it is then their duty not to consider acts and declarations of supposed coconspirator which have been admitted, except so far as they may affect the coconspirator, if the coconspirator is on trial. Nelson v. State, 51 Ga. App. 207 , 180 S.E. 16 (1935) (decided under prior law).
Indictment
Object of conspiracy need not be charged. - State is not precluded from electing to indict and proceed on a conspiracy charge where the object of the conspiracy is completed but not charged. Moser v. State, 178 Ga. App. 526 , 343 S.E.2d 703 (1986).
It is unnecessary that another person be indicted with defendant for conspiracy to justify a charge on the subject. Simpkins v. State, 149 Ga. App. 763 , 256 S.E.2d 63 (1979).
Indictment need not specify which appellants committed each overt act. Causey v. State, 154 Ga. App. 76 , 267 S.E.2d 475 (1980).
Offense of conspiracy was not included in an indictment when no reference was made therein to one or more persons conspiring or agreeing to commit an offense, and when the indictment did not refer to any overt act to effect the object of a conspiracy, but, on the contrary, alleged only that a substantive crime had been committed, namely, possession with intent to distribute marijuana. Rowe v. State, 166 Ga. App. 836 , 305 S.E.2d 624 (1983).
Conspiracy instruction when conspiracy not charged in indictment. - In a trial for armed robbery and kidnapping, the trial court does not err in instructing the jury on the law of conspiracy although conspiracy is not charged in the indictment, where the conspiracy instruction is properly adjusted to the evidence. Spencer v. State, 180 Ga. App. 498 , 349 S.E.2d 513 (1986).
Conspiracy may be proven and a jury charge given on conspiracy, even though defendant is not indicted under that theory. Williams v. State, 267 Ga. 308 , 477 S.E.2d 570 (1996); Wiley v. State, 238 Ga. App. 334 , 519 S.E.2d 10 (1999).
Victim was raped and robbed at gunpoint by two accomplices, and then murdered. The jury was properly charged on conspiracy, although it was not alleged in the indictment, since the evidence tended to show a conspiracy. Davis v. State, 292 Ga. App. 782 , 666 S.E.2d 56 (2008).
Error to convict for conspiracy where not charged. - When the evidence established clearly that the offense of possession with intent to distribute more than one ounce of marijuana had been committed, considering the fact that conspiracy was not included in the indictment and a person cannot be convicted of a crime not charged, together with the fact that conspiracy is a separate crime only when the crime conspired to be committed has not been committed, it was error to find appellant guilty of conspiracy to possess with intent to distribute marijuana, and defendant's conviction must be set aside. Rowe v. State, 166 Ga. App. 836 , 305 S.E.2d 624 (1983).
Habeas relief warranted for invalid indictment. - Denial of habeas relief was reversed where conviction for conspiracy to traffic in cocaine was based on indictment alleging "a conspiracy to commit the crime of possessing a sufficient amount of a substance containing cocaine"; this indictment was invalid as a matter of law. Gonzalez v. Abbott, 986 F.2d 461 (11th Cir. 1993), cert. denied, 510 U.S. 894, 114 S. Ct. 257 , 126 L. Ed. 2 d 210 (1993).
Indictment held sufficient. - Because an indictment clearly charged that, in furtherance of the conspiracy, the defendant arranged for the distribution of both amphetamine and methamphetamine, and no authority required the indictment to set forth the particulars of the overt act, but required a reference to the overt act alleged by the State, the indictment at issue sufficiently apprised the defendant of the crimes charged. Bradford v. State, 283 Ga. App. 75 , 640 S.E.2d 630 (2006).
Conspiracy count as alleged in the indictment was sufficient to withstand both a general and special demurrer, and therefore trial counsel was not ineffective for failing to file either demurrer, because in the relevant clause alleging that the defendant did forcibly enter the residence and take methamphetamine and United States currency; the word "forcibly" modified both the verbs "enter" and "take"; meaning that the indictment plainly alleged that the defendants conspired to take the drugs and cash by force. As such, the defendant could not admit to all of the facts in this count of the indictment and still be innocent of conspiracy to commit robbery. Stokes v. State, 355 Ga. App. 565 , 845 S.E.2d 305 (2020).
Venue
Some act pursuant to conspiracy must occur in county where indictment returned. - If conspiracy is formed in one county and act done in another, or if some acts are in county of venue and others not, proof must affirmatively show one or more of these events as occurring in county of venue and jury must be instructed, if more than one is alleged and evidence of venue is in conflict, that the jury must acquit unless the evidence shows one of the forbidden acts to have occurred in the county where indictment was returned. Caldwell v. State, 142 Ga. App. 831 , 237 S.E.2d 452 (1977).
Venue may be laid in county of corrupt agreement or overt act. - When overt acts are alleged to have been committed in more than one jurisdiction, it is essential in a conspiracy prosecution that jury be properly instructed as to venue. In Georgia, both corrupt agreement and overt act must be proved; venue may be laid in county of either, or, if there are several overt acts, in a county where any of them was committed. Caldwell v. State, 142 Ga. App. 831 , 237 S.E.2d 452 (1977).
Jury Charge
Conspiracy is question for jury. Simpkins v. State, 149 Ga. App. 763 , 256 S.E.2d 63 (1979).
Conspiracy may be charged, though not alleged. - Conspiracy may be proved, though not alleged in indictment or accusation. Sweat v. State, 119 Ga. App. 646 , 168 S.E.2d 654 (1969).
When evidence shows a conspiracy, a charge on the subject is proper even though not alleged in indictment. Alexander v. State, 150 Ga. App. 41 , 256 S.E.2d 649 (1979); Keen v. State, 164 Ga. App. 81 , 296 S.E.2d 91 (1982); Simpkins v. State, 149 Ga. App. 763 , 256 S.E.2d 63 (1979); Anderson v. State, 153 Ga. App. 401 , 265 S.E.2d 299 (1980); Greene v. State, 155 Ga. App. 222 , 270 S.E.2d 386 (1980); Evans v. State, 161 Ga. App. 468 , 288 S.E.2d 726 (1982); Keen v. State, 164 Ga. App. 81 , 296 S.E.2d 91 (1982). But see Rowe v. State, 166 Ga. App. 836 , 305 S.E.2d 624 (1983).
When the evidence tends to show jointly indicted defendants had acted in concert, conspiracy may be proved though not alleged in the indictment, and there is no error in charging the jury upon the issue of conspiracy. Alexander v. State, 186 Ga. App. 787 , 368 S.E.2d 550 (1988).
When evidence tends to show a conspiracy, a charge upon the subject is not error even if not alleged in indictment. Simpkins v. State, 149 Ga. App. 763 , 256 S.E.2d 63 (1979); Anderson v. State, 153 Ga. App. 401 , 265 S.E.2d 299 (1980); Greene v. State, 155 Ga. App. 222 , 270 S.E.2d 386 (1980).
Conspiracy may be proven and a jury charge may be given on conspiracy and parties to a crime even though a defendant is not indicted under those theories. Parnell v. State, 260 Ga. App. 213 , 581 S.E.2d 263 (2003).
Because the evidence established more than the defendant's mere presence at the scene of the crimes, the evidence was sufficient to find the defendant guilty beyond a reasonable doubt of felony murder and simple assault; although the defendant was not indicted for conspiracy, the evidence also supported a conspiracy charge. Belsar v. State, 276 Ga. 261 , 577 S.E.2d 569 (2003).
Jury was properly instructed on conspiracy and parties, even though the defendant's indictment alleged that the defendant directly committed the offenses and did not specify that the defendant was only a party to or coconspirator in the criminal acts. Michael v. State, 281 Ga. App. 289 , 635 S.E.2d 790 (2006), overruled on other grounds by Gibbs v. State, 304 Ga. App. 723 , 798 S.E.2d 308 (2017).
Jury was not instructed on conspiracy. - When a defendant was charged with malice murder, the fact that a jury did not convict the defendant of conspiracy did not indicate that the jury did not believe the defendant to have been involved in the killings at issue; the jury had not been instructed that the jury could find the offense of conspiracy, and even if the jury had rejected a conspiracy offense, Georgia has rejected the inconsistent verdict rule. Conway v. State, 281 Ga. 685 , 642 S.E.2d 673 (2007).
Charge where two or more persons were involved in crime. - When evidence in a criminal case shows that two or more persons were concerned in the commission of an alleged crime, it is not harmful error for the trial court to charge the jury on law of conspiracy. Anderson v. State, 153 Ga. App. 401 , 265 S.E.2d 299 (1980).
When the state proceeded against the defendant as a party to the crime of murder with a co-indictee, any possible error by the trial court in charging conspiracy was harmless since there was sufficient evidence to support a charge on parties to a crime, and the state did not attempt to use statements of the co-indictee against defendant under the conspiracy hearsay exception. Drane v. State, 265 Ga. 255 , 455 S.E.2d 27 (1995).
Instruction when the offense charged is not conspiracy but attempted bribery. - When an instruction is free of confusion or other error, it follows that there is no "possibility" or "real probability" that the instruction would induce the jury to convict the defendant of conspiracy (maximum sentence: five years) rather than attempted bribery (a ten-year maximum). Carpenter v. State, 167 Ga. App. 634 , 307 S.E.2d 19 (1983), aff'd, 252 Ga. 79 , 310 S.E.2d 912 (1984).
When crime was completed. - When evidence showed crime to have been complete, refusal to charge on conspiracy as a lesser offense is not error. Terrell v. State, 138 Ga. App. 74 , 225 S.E.2d 470 (1976).
When the evidence shows without dispute that the crime charged was actually committed, omission to charge on conspiracy is not error. Gunter v. State, 243 Ga. 651 , 256 S.E.2d 341 (1979); Byram v. State, 189 Ga. App. 627 , 376 S.E.2d 909 (1988).
Even if the trial judge committed legal error in failing to instruct that an overt act is a necessary element of a conspiracy, the error was harmless where the jury necessarily found that the crimes themselves had been committed in furtherance of the conspiracy. High v. Turpin, 14 F. Supp. 2d 1358 (S.D. Ga. 1998), aff'd sub nom. High v. Head, 209 F.3d 1257 (11th Cir. 2000).
Failure to charge jury on withdrawal proper. - Trial court did not err in refusing to give the defendant's requested charge on withdrawal from conspiracy because the charge was not authorized by the evidence in the case when the conspiracy to rob the victims could not have been effected without the defendant's performance of overt acts; prior to the defendant's alleged withdrawal from the conspiracy, the defendant acted to lead the defendant's co-indictees to the home where the victims were present, told the co-indictees, who were seeking victims to rob, about dice game money the defendant observed on the floor of the home, accompanied an armed co-indictee to the home and knocked on the door, and gave the defendant's name so as to enable the defendant's armed co-indictee to gain entry when the door was opened in response to the defendant's words. Mikell v. State, 286 Ga. 434 , 689 S.E.2d 286 , overruled on other grounds, Manley v. State, 287 Ga. 338 , 698 S.E.2d 301 (2010).
Evidence sufficient to support jury instruction on conspiracy. - With regard to a defendant's conviction for trafficking in marijuana, the trial court properly denied the defendant's motion for a new trial since no error occurred by the trial court giving the jury an instruction on conspiracy as evidence that the defendant and the codefendant were paid, jointly picked up a package containing drugs from a shipping company, and both refused to tell who hired the pair was sufficient to support that a conspiracy existed. Aguilera v. State, 293 Ga. App. 523 , 667 S.E.2d 378 (2008).
Limiting instruction required. - Reversal of a conviction for conspiracy to violate the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., through a violation of O.C.G.A. § 16-13-30(j)(1), was required because the trial court failed to provide any limiting instruction informing jurors that the purchaser and the buyer in a drug transaction could not conspire together. Darville v. State, 289 Ga. 698 , 715 S.E.2d 110 (2011).
RESEARCH REFERENCES
Am. Jur. 2d. - 16 Am. Jur. 2d, Conspiracy, § 1 et seq.
Handling the Defense in a Conspiracy Prosecution, 20 Am. Jur. Trials 351.
ALR. - Substitution or attempted substitution of another for one under sentence as a criminal offense, 28 A.L.R. 1381 .
Merger of conspiracy in completed offense, 37 A.L.R. 778 ; 75 A.L.R. 1411 .
When does statute of limitations begin to run against civil action or criminal prosecution for conspiracy, 97 A.L.R. 137 ; 62 A.L.R.2d 1369.
Conspiracy to commit adultery or other offense which can only be committed by the concerted action of the parties to it, 104 A.L.R. 1430 .
Criminal responsibility of one who furnishes instrumentality of a kind ordinarily used for legitimate purposes, with knowledge that it is to be used by another for criminal purposes, 108 A.L.R. 331 .
Identity, as regards former jeopardy, of offenses charged in different indictments or information for conspiracy, 112 A.L.R. 983 .
Conviction or acquittal of attempt to commit particular crime as bar to prosecution for conspiracy to commit same crime, or vice versa, 53 A.L.R.2d 622.
Criminal conspiracies as to gambling, 91 A.L.R.2d 1148.
Jurisdiction to prosecute conspirator who was not in state at time of substantive criminal act, for offense committed pursuant to conspiracy, 5 A.L.R.3d 887.
Insured's co-operation with claimant in establishing valid claim against insurer as breach of co-operation clause, 8 A.L.R.3d 1345.
Actionability of conspiracy to give or to procure false testimony or other evidence, 31 A.L.R.3d 1423.
Criminal liability of corporation for bribery or conspiracy to bribe public official, 52 A.L.R.3d 1274.
Criminal conspiracy between spouses, 74 A.L.R.3d 838.
When statute of limitation begins to run on charge of obstructing justice or of conspiracy to do so, 77 A.L.R.3d 725.
Right of defendants in prosecution for criminal conspiracy to separate trials, 82 A.L.R.3d 366.
Right of creditor to recover damages for conspiracy to defraud him of claim, 11 A.L.R.4th 345.
Prosecution or conviction of one conspirator as affected by disposition of case against coconspirators, 19 A.L.R.4th 192.
Propriety of lesser-included-offense charge in state prosecution of narcotics defendant - Marijuana cases, 1 A.L.R.6th 549.
Propriety of lesser-included-offense charge in state prosecution of narcotics defendant - Cocaine cases, 2 A.L.R.6th 551.
When is conspiracy continuing offense for purposes of statute of limitations under 18 USCS § 3282, 109 A.L.R. Fed. 616.
State criminal prosecution against medical practitioner for fraud in connection with claims under Medicaid, Medicare, or similar welfare program for providing medical services, 79 A.L.R.6th 125.
16-4-8.1. Conviction of conspiracy even if crime completed.
A person may be convicted of the offense of conspiracy to commit a crime, as defined in Code Section 16-4-8, even if the crime which was the objective of the conspiracy was actually committed or completed in pursuance of the conspiracy, but such person may not be convicted of both conspiracy to commit a crime and the completed crime.
(Code 1981, § 16-4-8.1 , enacted by Ga. L. 1996, p. 679, § 1.)
JUDICIAL DECISIONS
Evidence sufficient for conviction. - Sufficient evidence supported the appellant's conviction for a conspiracy offense that served as a predicate for conviction for violation of the Georgia Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-1 et seq., based on the appellant's rank in the gang, statements to fellow gang members about killing violators of gang rules, communications with gang members who were critical of the victim, coupled with statements that somebody's got to die, and the appellant's trip to meet with gang members about the victim. Chavers v. State, 304 Ga. 887 , 823 S.E.2d 283 (2019).
Jury instructions. - O.C.G.A. § 16-4-8.1 does not address a trial court's obligation to give requested jury charges; since the evidence was undisputed that the conspirators to a scheme to rob for drugs came into possession of drugs, if the jury found that the defendant was a member of that conspiracy, then the defendant was also guilty of the completed crime pursuant to O.C.G.A. § 16-2-20 , and the trial court's omission to charge on conspiracy was proper. Garcia v. State, 279 Ga. App. 75 , 630 S.E.2d 596 (2006).
Cited in Willard v. State, 244 Ga. App. 469 , 535 S.E.2d 820 (2000); Tesler v. State, 295 Ga. App. 569 , 672 S.E.2d 522 (2009).
16-4-9. Withdrawal by coconspirator from agreement to commit crime.
A coconspirator may be relieved from the effects of Code Section 16-4-8 if he can show that before the overt act occurred he withdrew his agreement to commit a crime.
(Code 1933, § 26-3202, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1969, p. 857, § 14.)
JUDICIAL DECISIONS
Failure to charge jury on withdrawal proper. - Trial court did not err in refusing to give the defendant's requested charge on withdrawal from conspiracy because the charge was not authorized by the evidence in the case when the conspiracy to rob the victims could not have been effected without the defendant's performance of overt acts; prior to the defendant's alleged withdrawal from the conspiracy, the defendant acted to lead the defendant's co-indictees to the home where the victims were present, told the co-indictees, who were seeking victims to rob, about dice game money the defendant observed on the floor of the home, accompanied an armed co-indictee to the home and knocked on the door, and gave the defendant's name so as to enable the defendant's armed co-indictee to gain entry when the door was opened in response to the defendant's words. Mikell v. State, 286 Ga. 434 , 689 S.E.2d 286 , overruled on other grounds, Manley v. State, 287 Ga. 338 , 698 S.E.2d 301 (2010).
Evidence insufficient to show defendant renounced and abandoned conspiracy. - Evidence was sufficient to enable a rational trier of fact to find the defendant guilty of malice murder, conspiracy to commit armed robbery, and possession of a firearm during the commission of a crime because the defendant's claim that, pursuant to O.C.G.A. § 16-4-9 , the defendant renounced and abandoned the conspiracy and that a co-conspirator fatally shot the victims was contradicted by the physical evidence at trial; shell casings from two guns were found at the murder scene and in positions indicating that there were two weapons fired by different individuals. Bailey v. State, 291 Ga. 144 , 728 S.E.2d 214 (2012).
Cited in Patterson v. State, 126 Ga. App. 753 , 191 S.E.2d 584 (1972); Sak v. State, 129 Ga. App. 301 , 199 S.E.2d 628 (1973); Freedman v. United States, 437 F. Supp. 1252 (N.D. Ga. 1977); Booker v. State, 242 Ga. 773 , 251 S.E.2d 518 (1979); Jenkins v. State, 159 Ga. App. 183 , 283 S.E.2d 49 (1981); Wireman v. State, 163 Ga. App. 439 , 295 S.E.2d 530 (1982).
RESEARCH REFERENCES
Am. Jur. 2d. - 16 Am. Jur. 2d, Conspiracy, § 27.
Withdrawal from or Abandonment of Criminal Enterprise, 8 POF2d 231.
C.J.S. - 15A C.J.S., Conspiracy, § 150 et seq.
ALR. - What is "infamous" offense within constitutional or statutory provision in relation to presentment or indictment by grand jury, 24 A.L.R. 1002 .
Substitution or attempted substitution of another for one under sentence as a criminal offense, 28 A.L.R. 1381 .
Imprisonment as constituting withdrawal from conspiracy, 100 A.L.R.6th 335.
16-4-10. Domestic terrorism; penalty.
Repealed by Ga. L. 2017, p. 536, § 2-1/HB 452, effective July 1, 2017.
Editor's notes. - This Code section was based on Code 1981, § 16-4-10 , enacted by Ga. L. 2002, p. 1284, § 2.
Law reviews. - For article on the 2017 repeal of this Code section, see 34 Ga. St. U. L. Rev. 17 (2017).
CHAPTER 5 CRIMES AGAINST THE PERSON
Homicide.
Assault and Battery.
Kidnapping, False Imprisonment, and Related Offenses.
Reckless Conduct.
Cruelty to Children.
Feticide.
Stalking.
Protection of Elder Persons.
Notice of Conviction and Release from Confinement of Sex Offenders.
Cross references. - Exemption from classification of vicious dog for attacks during criminal pursuit, § 4-8-21 .
Suspension policy for students committing acts of physical violence resulting in injury to teachers, § 20-2-751.6 .
ARTICLE 1 HOMICIDE
Cross references. - Jurisdiction of state over homicides where act causing death or death itself occurs within state, § 17-2-1 .
Administrative penalties for killing or injuring another person while hunting, § 27-2-25.1 .
Denial of right of person who commits murder or voluntary manslaughter to receive benefits from insurance policy on life of victim, § 33-25-13 .
Homicide by vehicle, § 40-6-393 .
Actions for wrongful death, T. 51, C. 4.
Right of individual who feloniously and intentionally kills or conspires to kill to inherit, § 53-1-5 .
Law reviews. - For article, "From the Crime Scene to the Courtroom: The Future of Forensic Science Reform: The Overdose/Homicide Epidemic," see 34 Ga. St. U. L. Rev. 983 (2018). For note, "Heating Up and Cooling Down: Modifying the Provocation Defense by Expanding Cooling Time," see 54 Ga. L. Rev. 761 (2020).
JUDICIAL DECISIONS
Lack of causal relationship between wound and death. - It is a defense in prosecution for unjustifiable homicide that there was no causal relationship between wound inflicted and death, and that death resulted from completely independent cause. Styles v. State, 118 Ga. App. 445 , 164 S.E.2d 156 (1968).
Charge as to both murder and manslaughter where warranted by evidence. - If there is any doubt as to whether offense is murder or manslaughter, however slight, the court should instruct as to both when requested in writing. Spradlin v. State, 151 Ga. App. 585 , 260 S.E.2d 517 (1979), overruled on other grounds, Bangs v. State, 198 Ga. App. 404 , 401 S.E.2d 599 (1991), overruled on other grounds, Stewart v. State, 262 Ga. App. 426 , 585 S.E.2d 622 (2003).
Where the defendants were accused of firing into a house, killing one occupant and injuring another; one defendant admitted firing into the home, thinking the defendant had killed a man; ballistics reports identified shell casings found at the scene as having been fired from at least two different guns; and DNA testing identified a cap recovered from the scene as having been worn by another defendant, their convictions for felony murder and aggravated assault were supported by sufficient evidence. Culler v. State, 277 Ga. 717 , 594 S.E.2d 631 (2004).
Cited in Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980); Marshall v. State, Ga. , S.E.2d (Sept. 8, 2020).
RESEARCH REFERENCES
Homicide, 7 Am. Jur. Trials 477.
Vehicular Homicide, 13 Am. Jur. Trials 295.
Forensic Pathology in Homicide Cases, 40 Am. Jur. Trials 501.
Self-Defense in Homicide Cases, 42 Am. Jur. Trials 151.
Transcript of "The Trial of the Century: America vs. Lee Harvey Oswald," 56 Am. Jur. Trials 1.
ALR. - What amounts to participation in homicide on part of one not the actual perpetrator, who was present without preconcert or conspiracy, 12 A.L.R. 275 .
Homicide as affected by time elapsing between wound and death, 20 A.L.R. 1006 ; 93 A.L.R. 1470 .
Criminal responsibility of peace officers for killing or wounding one whom they wished to investigate or identify, 61 A.L.R. 321 .
Homicide or assault in connection with negligent operation of automobile or its use for unlawful purpose or in violation of law, 99 A.L.R. 756 .
Admissibility on issue of self-defense (or defense of another), on prosecution for homicide or assault, of evidence of specific acts of violence by deceased, or person assaulted, against others than defendant, 121 A.L.R. 380 .
Inference of malice or intent to kill where killing is by blow without weapon, 22 A.L.R.2d 854.
Admissibility in homicide prosecution for purpose of showing motive of evidence as to insurance policies on life of deceased naming accused as beneficiary, 28 A.L.R.2d 857.
Homicide by fright or shock, 47 A.L.R.2d 1072.
Homicide by juvenile as within jurisdiction of a juvenile court, 48 A.L.R.2d 663.
Admissibility and propriety, in homicide prosecution, of evidence as to deceased's spouse and children, 67 A.L.R.2d 731.
Necessity that trial court charge upon motive in homicide case, 71 A.L.R.2d 1025.
Applicability of criminal "hit-and-run" statute to accidents occurring on private property, 77 A.L.R.2d 1171.
Motor vehicle operator's criminal responsibility for homicide where he and deceased were racing, though accused's car was not otherwise involved in the collision or incident, 82 A.L.R.2d 463.
Homicide: presumption of deliberation or premeditation from the fact of killing, 86 A.L.R.2d 656.
Homicide: failure to provide medical or surgical attention, 100 A.L.R.2d 483.
Insulting words as provocation of homicide or as reducing the degree thereof, 2 A.L.R.3d 1292.
Earlier prosecution for offense during which homicide was committed as bar to prosecution for homicide, 11 A.L.R.3d 834.
Unintentional killing of or injury to third person during attempted self-defense, 55 A.L.R.3d 620.
Homicide as affected by lapse of time between injury and death, 60 A.L.R.3d 1323.
Necessity and effect, in homicide prosecution, of expert medical testimony as to cause of death, 65 A.L.R.3d 283.
Proof of live birth in prosecution for killing newborn child, 65 A.L.R.3d 413.
What constitutes "imminently dangerous" act within homicide statute, 67 A.L.R.3d 900.
Degree of homicide as affected by accused's religious or occult belief in harmlessness of ceremonial or ritualistic acts directly causing fatal injury, 78 A.L.R.3d 1132.
Criminal liability for death of another as result of accused's attempt to kill self or assist another's suicide, 40 A.L.R.4th 702.
Homicide: sufficiency of evidence of mother's neglect of infant born alive, in minutes or hours immediately following unattended birth, to establish culpable homicide, 40 A.L.R.4th 724.
Homicide by causing victim's brain-dead condition, 42 A.L.R.4th 742.
Corporation's criminal liability for homicide, 45 A.L.R.4th 1021.
Homicide: physician's withdrawal of life supports from comatose patient, 47 A.L.R.4th 18.
Homicide: cremation of victim's body as violation of accused's rights, 70 A.L.R.4th 1091.
Admissibility of evidence in homicide case that victim was threatened by other than defendant, 11 A.L.R.5th 831.
Homicide: liability where death immediately results from treatment or mistreatment of injury inflicted by defendant, 50 A.L.R.5th 467.
16-5-1. Murder; malice murder; felony murder; murder in the second degree.
- A person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.
- Express malice is that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.
- A person commits the offense of murder when, in the commission of a felony, he or she causes the death of another human being irrespective of malice.
- A person commits the offense of murder in the second degree when, in the commission of cruelty to children in the second degree, he or she causes the death of another human being irrespective of malice.
-
- A person convicted of the offense of murder shall be punished by death, by imprisonment for life without parole, or by imprisonment for life.
-
A person convicted of the offense of murder in the second degree shall be punished by imprisonment for not less than ten nor more than 30 years.
(Laws 1833, Cobb's 1851 Digest, p. 783; Code 1863, § 4217; Code 1868, § 4254; Code 1873, § 4320; Code 1882, § 4320; Penal Code 1895, § 60; Penal Code 1910, § 60; Code 1933, § 26-1002; Code 1933, § 26-1101, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 2009, p. 223, § 1/SB 13; Ga. L. 2014, p. 444, § 1-1/HB 271.)
Cross references. - Time limitation on prosecution for murder, § 17-3-1 .
Denial of right of murderer to inherit from victim, § 53-4-6.
Editor's notes. - Ga. L. 2009, p. 223, § 8/SB 13, not codified by the General Assembly, provides that: "Except as provided in this section, the provisions of this Act shall apply only to those offenses committed after the effective date of this Act. With express written consent of the state, an accused whose offense was committed prior to the effective date of this Act may elect in writing to be sentenced under the provisions of this Act, provided that: (1) jeopardy for the offense charged has not attached or (2) the accused has been sentenced to death but the conviction or sentence has been reversed on appeal and the state is not barred from seeking prosecution after the remand."
Ga. L. 2009, p. 223, § 9, not codified by the General Assembly, provides that: "Except as provided in Section 8 of this Act, the amendment or repeal of a Code section by this Act shall not affect any sentence imposed by any court of this state prior to the effective date of this Act."
Ga. L. 2009, p. 223, § 10, not codified by the General Assembly, provides that: "A person may be sentenced to life without parole without the prosecutor seeking the death penalty under the laws of this state." Ga. L. 2011, p. 752, § 17(3) codified these provisions at Code Section 17-10-16.1.
Ga. L. 2009, p. 223, § 11(a), not codified by the General Assembly, provides that the amendment by that Act shall apply to all crimes committed on and after April 29, 2009.
Ga. L. 2009, p. 223, § 11(b), not codified by the General Assembly, provides that: "The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment."
Law reviews. - For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B. J. 189 (1969). For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For annual survey of criminal law and procedure, see 35 Mercer L. Rev. 103 (1983). For annual survey article discussing developments in criminal law, see 51 Mercer L. Rev. 209 (1999). For annual survey article, "Georgia Death Penalty Law," see 52 Mercer L. Rev. 29 (2000). For article, "State v. Jackson and the Explosion of Liability for Felony Murder," see 62 Mercer L. Rev. 1335 (2011). For article, "Killers Shouldn't Inherit from their Victims - Or Should They?," see 48 Ga. L. Rev. 145 (2013). For annual survey of criminal law, see 67 Mercer L. Rev. 31 (2015). For note discussing the felony murder rule, and proposing legislation to place limitations on Georgia's felony murder statute, see 9 Ga. St. B. J. 462 (1973). For note, "An Unconstitutional Fiction: The Felony Murder Rule as Applied to the Supply of Drugs," see 20 Ga. L. Rev. 671 (1986). For note, "Edge v. State: The Modified Merger Rule Comes Up Short," see 44 Mercer L. Rev. 697 (1993). For comment on Battle v. State, 37 Ga. App. 154 , 139 S.E. 159 (1927), see 1 Ga. B. J. 51 (1927). For comment on Springer v. State, 37 Ga. App. 154 , 139 S.E. 159 (1927), see 1 Ga. B. J. 51 (1927). For comment on Head v. State, 68 Ga. App. 759 , 24 S.E.2d 145 (1943), holding year and a day rule applicable in Georgia as a matter of procedure and evidence, see 9 Ga. B. J. 320 (1947). For comment on Gaines v. Wolcott, 119 Ga. App. 313 , 167 S.E.2d 366 (1969), see 21 Mercer L. Rev. 325 (1969). For comment on Baker v. State, 236 Ga. 754 , 225 S.E.2d 269 (1976), see 28 Mercer L. Rev. 371 (1976).
JUDICIAL DECISIONS
ANALYSIS
- General Consideration
- Unlawfulness
- Indictment
- Intent and Malice
- Defenses
- Evidence of Malice
- Felony Murder
- Deadly Weapons
- Jury Instructions
- Death Penalty
- Merger
- Sentence
- Application
General Consideration
Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1863, §§ 4218, 4219, former Code 1868, §§ 4255, 4256, former Code 1873, §§ 4321, 4322, former Code 1882, §§ 4321, 4322, former Penal Code 1895, §§ 61, 62, former Penal Code 1910, §§ 61, 62, and former Code 1933, §§ 26-1003, 26-1004 are included in the annotations for this Code section.
Constitutionality. - O.C.G.A. § 16-5-1 , the murder statute, and O.C.G.A. § 17-10-30 , which authorizes a death sentence for murder, are not unconstitutional. Speed v. State, 270 Ga. 688 , 512 S.E.2d 896 (1999).
Defendant's malice murder conviction was affirmed as O.C.G.A. § 16-5-1 was constitutional. Thomason v. State, 281 Ga. 429 , 637 S.E.2d 639 (2006).
Felony murder defendant's constitutional challenge to Georgia's homicide statutes, O.C.G.A. §§ 16-5-1 and 16-5-2 , could not be reviewed because the challenge was raised for the first time in the defendant's amended motion for new trial. Such challenges could not be raised after a guilty verdict. Brown v. State, 285 Ga. 772 , 683 S.E.2d 581 (2009), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Defendant's challenge to the constitutionality of the murder statute failed because the language of the statute placed all persons on notice that they commit murder by committing a felony that causes the death of another. Davis v. State, 306 Ga. 140 , 829 S.E.2d 321 (2019).
Murder statute was not unconstitutional as applied to the defendant because fairness and considerations of prosecutorial discretion in charging co-conspirators who testify for the state were not considerations in determining whether the statute was unconstitutional as applied. Davis v. State, 306 Ga. 140 , 829 S.E.2d 321 (2019).
Definition of "crime." - Although "criminal negligence" was not an issue in a murder trial, the trial court did not err by employing the entirety of the language of O.C.G.A. § 16-2-21 in its charge to the jury on the general definition of "crime." Harper v. State, 182 Ga. App. 760 , 357 S.E.2d 117 (1987).
Elements of crime of murder in Georgia are (1) unlawfully (2) causing death of another human being (3) with malice aforethought. Holloway v. McElroy, 474 F. Supp. 1363 (M.D. Ga. 1979), aff'd, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019 , 69 L. Ed. 2 d 398 (1981), overruled on other grounds, Baker v. Montgomery, 811 F.2d 55 (11th Cir. 1987); Mason v. Balkcom, 487 F. Supp. 554 (M.D. Ga. 1980), rev'd on other grounds, 669 F.2d 222 (5th Cir. 1982), cert. denied, 460 U.S. 1016, 103 S. Ct. 1260 , 75 L. Ed. 2 d 487 (1983); Wilcox v. Ford, 626 F. Supp. 760 (M.D. Ga. 1985), aff'd in part, vacated in part on other grounds, 813 F.2d 1140 (11th Cir.), cert. denied, 484 U.S. 925, 108 S. Ct. 287 , 98 L. Ed. 2 d 246 (1987).
There can be no murder without malice express or implied. Shafer v. State, 193 Ga. 748 , 20 S.E.2d 34 (1942) (decided under former Code 1933, §§ 26-1003, 26-1004).
Mere negligent killing, without more, may not amount to murder. Patterson v. State, 181 Ga. 698 , 184 S.E. 309 (1936) (decided under former Code 1933, §§ 26-1003, 26-1004).
Both intent and malice are essential elements of the crime of murder in Georgia. Stephens v. Kemp, 846 F.2d 642 (11th Cir.), cert. denied, 488 U.S. 872, 109 S. Ct. 189 , 102 L. Ed. 2 d 158 (1988).
Premeditation is not a specific element of malice murder; in fact, malice need not be formed until immediately prior to the slaying. Blake v. Zant, 513 F. Supp. 772 (S.D. Ga. 1981), rev'd on other grounds sub nom. Burger v. Zant, 718 F.2d 979 (11th Cir. 1983), vacated, 467 U.S. 1212, 104 S. Ct. 2652 , 81 L. Ed. 2 d 360 (1984), cert. denied, 474 U.S. 998, 106 S. Ct. 374 , 88 L. Ed. 2 d 367 (1985).
Difference between malice murder and felony murder is absence of intent and malice in latter. Burke v. State, 234 Ga. 512 , 216 S.E.2d 812 (1975).
It is absence of malice which differentiates manslaughter from murder. - If at time of killing the circumstances are such as to exclude malice, then homicide cannot be murder. Parker v. State, 218 Ga. 654 , 129 S.E.2d 850 (1963) (decided under former Code 1933, §§ 26-1003, 26-1004).
"Year-and-a-day rule" no longer viable. - Because the "year-and-a-day rule," which allowed the quashing of an indictment on the ground that death did not occur within a year and a day of the injury caused by the defendant, was not included as part of what was intended to be a comprehensive criminal code, the adoption of the criminal code in 1968 ended the viability of the rule in Georgia. State v. Cross, 260 Ga. 845 , 401 S.E.2d 510 (1991).
Deprivation statute cannot be used as predicate offense for felony murder. - After looking at both the plain language of the statutes, as well as the sequence of their adoption, the felony deprivation statute could not be used as a predicate offense for felony murder as the clear language of O.C.G.A. § 16-12- 1(d.1)(1) and (e) specifically criminalizes the death of a minor resulting from an accused's contribution to the deprivation or delinquency of that child, whereas felony murder criminalizes general felony conduct resulting in death of another. Williams v. State, 299 Ga. 632 , 791 S.E.2d 55 (2016).
Deprivation statute cannot be used as predicate offense for felony murder. - Trial court's denial of appellant's demurrer to count one of the indictment was reversed because the plain language of O.C.G.A. § 16-12-1 establishes that the felony deprivation statute cannot be used as a predicate offense for felony murder. Williams v. State, 299 Ga. 632 , 791 S.E.2d 55 (2016).
Arrest warrant for murder supported by probable cause. - Arrest warrant for murder was supported by probable cause as the record clearly showed that the magistrate issuing the warrant was provided the officer's affidavit and was informed by the same officer that a surviving victim had identified the appellant from a photographic line-up as one of the shooters and the appellant's identification and use of a gun during the shooting were corroborated by the facts and circumstances officers had gathered from witnesses and evidence at the scene of the shooting. Williams v. State, 298 Ga. 538 , 783 S.E.2d 594 (2016).
Burglary and murder as included offenses for double jeopardy purposes. - For substantive double-jeopardy purposes, neither a burglary conviction nor a murder conviction is a lesser included offense within the other, since proof of additional elements must necessarily be shown to establish each crime. Cash v. State, 258 Ga. 460 , 368 S.E.2d 756 (1988).
Sufficiency of indictment for malice murder and felony murder. - Trial counsel was not ineffective in failing to challenge the sufficiency of the indictment charging malice murder and felony murder as unconstitutionally vague because the defendant's counsel reviewed the indictment and believed that the indictment was not vague, overbroad, or subject to dismissal; each of the murder counts tracked the language of the applicable statute and alleged the essential elements of the offense charged; and the indictment provided the date and county of the offense and the identity of the victim, and, in terms clear enough to be easily understood by the jury and by the accused, charged the defendant with acting in concert with the co-defendant to kill the victim by beating and stabbing the victim to death. Smith v. State, 303 Ga. 643 , 814 S.E.2d 411 (2018).
Proof of any particular motive is not essential to establish crime of murder. Phillips v. State, 207 Ga. 336 , 61 S.E.2d 473 (1950) (decided under former Code 1933, §§ 26-1003, 26-1004).
While motive is strong evidence of murder, it is not an essential element of it, and need not be proved where other elements exist. Carson v. State, 80 Ga. 170 , 5 S.E. 295 (1887) (decided under former Code 1882, §§ 4321, 4322); Barnett v. State, 136 Ga. 65 , 70 S.E. 868 (1911) (decided under former Penal Code 1910, §§ 61, 62).
Failure of evidence to show motive for homicide does not render conviction unlawful. Hancock v. State, 196 Ga. 351 , 26 S.E.2d 760 (1943) (decided under former Code 1933, §§ 26-1003, 26-1004).
Evidence of motive admissible. - As the defendant, a sheriff, was not empowered to use the sheriff's department as a personal domain, evidence of corruption in the sheriff's office was relevant and admissible, and the prosecution was well within bounds when it theorized that the defendant killed the victim, a political opponent, to prevent the victim from uncovering evidence of the defendant's corruption. Dorsey v. State, 279 Ga. 534 , 615 S.E.2d 512 (2005).
Alleged evidence of a same or similar nature committed by a codefendant was properly excluded as the defendant's proffered evidence, via the testimony of the two victims of the other crime, failed to identify the codefendant as the perpetrator of said crime, and the defendant offered no evidence independent of these witnesses in an attempt to establish that the codefendant actually committed the other crime in question; moreover, the motive for the other crime and the murder and armed robbery the defendant was charged with were different. Carr v. State, 279 Ga. 271 , 612 S.E.2d 292 (2005).
Abuse of discretion to reject defendant's offer to stipulate status as convicted felon. - When a defendant's prior conviction is of the nature likely to inflame the passions of the jury and raise the risk of a conviction based on improper considerations, and the purpose of the evidence is solely to prove the defendant's status as a convicted felon, then it is an abuse of discretion for the trial court to spurn the defendant's offer to stipulate to the defendant's prior conviction and admit the evidence to the jury. In this case, the nature of the defendant's prior conviction could raise the risk of a verdict tainted by improper considerations and the evidence was unnecessary to prove anything other than the defendant's status as a convicted felon; however, due to the overwhelming evidence of the defendant's guilt, the error was deemed harmless. Ross v. State, 279 Ga. 365 , 614 S.E.2d 31 (2005).
Personal ill will unnecessary. - To constitute murder, it is unnecessary that defendant should entertain personal ill will toward deceased. Revel v. State, 26 Ga. 275 (1858) (decided under former law).
Motive is not an element of the offense of murder. Cook v. State, 255 Ga. 565 , 340 S.E.2d 843 , cert. denied, 479 U.S. 871, 107 S. Ct. 241 , 93 L. Ed. 2 d 166 (1986).
Appropriate test of mental capacity in trial for murder and aggravated assault is whether the accused is capable of distinguishing between right and wrong at the time of the commission of the offense. Duck v. State, 250 Ga. 592 , 300 S.E.2d 121 (1983).
Soundness of mind in perpetration of act is prerequisite to murder. - It is, in all crimes, one of the ingredients of the offense that there shall be a joint operation of act and intent, and an insane person cannot, in a legal sense, have any intent; indeed, in murder, soundness of mind, in perpetration of act, is part of the definition of the crime. Handspike v. State, 203 Ga. 115 , 45 S.E.2d 662 (1947), overruled on other grounds, Brooks v. State, 247 Ga. 744 , 279 S.E.2d 649 (1981) (decided under former Code 1933, §§ 26-1003, 26-1004).
Child cannot be subject of homicide until it has existence independent of its mother. Shedd v. State, 178 Ga. 653 , 173 S.E. 847 (1934) (decided under former Code 1933, §§ 26-1003, 26-1004).
To convict for murder of newly born baby, it is incumbent upon state to prove that child was born alive and had an independent and separate existence from its mother, and that it was slain by accused. Montgomery v. State, 202 Ga. 678 , 44 S.E.2d 242 (1947) (decided under former Code 1933, §§ 26-1003, 26-1004).
There was no evidence presented that the defendant committed the crime of malice murder of a victim's unborn child in violation of O.C.G.A. § 16-5-1(a) because the only evidence was that the unborn child was alive solely in the mother's uterus, died due to the death of the mother, and never had an independent circulation or other evidence of independent existence. Pineda v. State, 288 Ga. 612 , 706 S.E.2d 407 (2011).
What constitutes existence of child independent of mother. - For a child to exist independent of its mother generally requires that the umbilical cord be severed and independent circulation established. Ordinarily, if the child has breathed, this would show independent life, but this test is not infallible. Sometimes infants breathe before they are fully delivered, and sometimes they do not breathe for quite a perceptible period after delivery. Generally, however, if respiration is established, that also establishes an independent circulation and independent existence. Shedd v. State, 178 Ga. 653 , 173 S.E. 847 (1934) (decided under former Code 1933, §§ 26-1003, 26-1004).
Corpus delicti and perpetration of offense by accused may be shown by circumstantial or direct evidence. Wright v. State, 199 Ga. 576 , 34 S.E.2d 879 (1945) (decided under former Code 1933, §§ 26-1003, 26-1004).
Wound sufficient to cause death. - Absent signs of accident or suicide, wound sufficient to cause death proves corpus delicti. Thomas v. State, 67 Ga. 460 (1881) (decided under former Code 1873, §§ 4321, 4322).
Wound from hit and run sufficiently showed proximate cause. - Evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of murder based on the medical examiner testifying that the victim died from an embolism caused by the defendant's hit-and-run injuries inflicted upon the victim, which was consistent with a finding of proximate cause. Taylor v. State, 303 Ga. 624 , 814 S.E.2d 353 (2018).
Prima facie case of murder. - In prosecution for murder the state establishes a prima facie case when it produces evidence sufficient to show that defendant killed deceased in manner alleged in indictment, and thereby shifts to defendant burden of going forward with evidence to show justification or such mitigating facts as would reduce grade of homicide from murder to a lesser offense where state's evidence does not within itself show such justification or mitigation. Delegal v. State, 92 Ga. App. 744 , 90 S.E.2d 32 (1955) (decided under former Code 1933, §§ 26-1003, 26-1004).
When state proves that accused killed person named in indictment, in county and in manner therein described, a prima facie case of murder is made out. Rickerson v. State, 10 Ga. App. 464 , 73 S.E. 681 (1912) (decided under former Penal Code 1910, §§ 61, 62).
Valid confession, corroborated by proof of corpus delicti. - Confession of guilt, freely, and voluntarily made by accused, is direct evidence of highest character and sufficient to authorize verdict of guilty on a charge of murder, when corroborated by proof of corpus delicti. Seymour v. State, 210 Ga. 571 , 81 S.E.2d 808 (1954) (decided under former Code 1933, §§ 26-1003, 26-1004).
Proof of killing without evidence of justification or mitigation shifts burden to defendant to establish defense and mere fact that there was a previous quarrel and fight does not, without more, establish mutual intent to fight. Cone v. State, 193 Ga. 420 , 18 S.E.2d 850 (1942) (decided under former Code 1933, §§ 26-1003, 26-1004).
Defendant's admissions at trial negate need for further proof by state. - In a homicide case, proof of corpus delicti must not only show that a person was killed, but must also identify the person. These elements must appear from proof other than extrajudicial confessions or admissions alone; but if defendant in defendant's statement made on trial admits them, state is not required to make further proof of them. Wall v. State, 5 Ga. App. 305 , 63 S.E. 27 (1908) (decided under former Penal Code 1895, §§ 61, 62).
Requirements for accepting guilty plea. - State trial courts need not specifically address each individual element required under O.C.G.A. § 16-5-1 in order to accept a guilty plea. The judge need only explain the statute sufficiently to give the defendant real and adequate notice of the nature of the charge against defendant or find proof that the defendant in fact understood the charge. Moore v. Balkcom, 716 F.2d 1511 (11th Cir. 1983), supplemented by 722 F.2d 629 (11th Cir. 1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1456 , 79 L. Ed. 2 d 773 (1984).
Defendant's conviction for malice murder, which was based upon a guilty plea, was reversed because the record did not show that the defendant was advised of the right against self-incrimination as required by Boykin; the state did not fulfill the state's duty to ensure that the defendant's guilty plea was constitutionally valid, the state apparently did not ensure that the defendant was advised of and had effective representation regarding the right to appeal the conviction, and the state did not litigate the merits of the defendant's guilty plea in the habeas corpus hearings since the record could have been expanded. Tyner v. State, 289 Ga. 592 , 714 S.E.2d 577 (2011).
Malice murder conviction, entered upon guilty plea, was not void. - Trial court properly denied the defendant's motion to vacate a malice murder conviction, entered upon a guilty plea, as: (1) the defendant's claim that the conviction preceded the indictment, and hence that the trial court lacked jurisdiction to hear the plea, was belied by the record; and (2) only a request for a competency evaluation was made, with which the trial court complied, and not a special plea of mental incompetency, which would have triggered a right to a competency hearing prior to the court's acceptance of the defendant's guilty plea. Jones v. State, 282 Ga. 568 , 651 S.E.2d 728 (2007).
Motion to withdraw guilty plea denied. - Trial court did not abuse the court's discretion in denying the defendant's motion to withdraw the defendant's guilty pleas; the defendant's claim that the defendant was not advised on the record as to the mandatory minimum sentences for murder and felony murder before pleading guilty and that defense counsel told the defendant that the defendant was taking a 20-year sentence and might serve 15 years was belied by the record, although the words "mandatory minimum sentence" were not used. Bradley v. State, 305 Ga. 857 , 828 S.E.2d 322 (2019).
Incorporation in one count of different ways of committing offense. - When one offense could be committed in several ways, that is, felony murder and murder with malice, it is permissible to incorporate the different ways in one count. Leutner v. State, 235 Ga. 77 , 218 S.E.2d 820 (1975).
Malice murder by vehicle, just as malice murder by other means, may be prosecuted under former Code 1933, § 26-1101. State v. Foster, 141 Ga. App. 258 , 233 S.E.2d 215 , aff'd, 239 Ga. 302 , 236 S.E.2d 644 (1977) (see O.C.G.A. § 16-5-1 ).
Vehicular homicide statute, O.C.G.A. § 40-6-393 , does not preclude a malice murder charge in vehicular deaths. Chester v. State, 262 Ga. 85 , 414 S.E.2d 477 (1992).
Malice murder and felony murder not mutually exclusive. - Presence or absence of malice is irrelevant to the commission of felony murder; therefore, the offenses are not mutually exclusive as a matter of law. Knight v. State, 271 Ga. 557 , 521 S.E.2d 819 (1999).
Evidence sufficient for malice murder and felony murder. - Evidence that the defendant was in the victim's home after a neighbor heard glass breaking and called 9-1-1, that a ribbon from the defendant's home was used to strangle the victim, that both the victim's and the defendant's DNA were on the ribbon, and that the victim's wedding ring was found in the defendant's pocket supported defendant's convictions for malice murder and felony murder. Muhammad v. State, 290 Ga. 880 , 725 S.E.2d 302 (2012).
Evidence was sufficient to convict the defendant of malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of a felony, all with regard to the shooting death of the victim because, after firing a handgun into the ground, the defendant followed the victim to the victim's home; the defendant shot the victim six times, even while the victim was attempting to run away; and the defendant admitted to shooting the victim and that the defendant never saw the victim with a gun. Tepanca v. State, 297 Ga. 47 , 771 S.E.2d 879 (2015).
Because the defendant's sentence of life imprisonment was appropriate for both felony murder and malice murder, the defendant suffered no harm from the trial court's action in vacating the malice murder conviction and retaining the felony murder conviction when the court merged those convictions. Tepanca v. State, 297 Ga. 47 , 771 S.E.2d 879 (2015).
Vehicular homicide must now be prosecuted under the vehicular homicide statute, former Code 1933, § 68A-903 (see O.C.G.A. § 40-6-393 ) or the murder statute, former Code 1933, § 26-1101 (see O.C.G.A. § 16-5-1 ). State v. Foster, 141 Ga. App. 258 , 233 S.E.2d 215 , aff'd, 239 Ga. 302 , 236 S.E.2d 644 (1977).
Murder and manslaughter, both voluntary and involuntary, are grades of unlawful homicide. Perry v. State, 78 Ga. App. 273 , 50 S.E.2d 709 (1948) (decided under former Code 1933, §§ 26-1003, 26-1004).
Distinguishing voluntary manslaughter. - Intent to kill is an essential element of both murder and voluntary manslaughter; provocation, or the lack thereof, is what distinguishes the two offenses. Parks v. State, 254 Ga. 403 , 330 S.E.2d 686 (1985).
Double jeopardy did not bar retrial. - Defendant's acquittal on felony murder under O.C.G.A. § 16-5-1(c) and aggravated assault under O.C.G.A. § 16-5-21 did not bar retrial on a voluntary manslaughter charge under O.C.G.A. § 16-5-2(a) as the collateral estoppel doctrine under the Double Jeopardy Clause, U.S. Const., amend. 5, and Ga. Const. 1983, Art. I, Sec. I, Para. XVIII, did not apply because voluntary manslaughter required proof of an element not found in felony murder or aggravated assault, and aggravated assault with a deadly weapon and voluntary manslaughter were mutually exclusive. Roesser v. State, 316 Ga. App. 850 , 730 S.E.2d 641 (2012).
Involuntary manslaughter as lesser included offense. - not giving a charge to the jury on involuntary manslaughter as a lesser included offense of murder where defendant did not request the charge nor object at trial to its absence. Kilpatrick v. State, 255 Ga. 344 , 338 S.E.2d 274 (1986).
Words, threats, menaces or contemptuous gestures. - Unlawful killing of one who has given slayer no provocation other than use of words, threats, menaces, or contemptuous gestures cannot be graded as voluntary manslaughter under doctrine of mutual combat. Cone v. State, 193 Ga. 420 , 18 S.E.2d 850 (1942) (decided under former Code 1933, §§ 26-1003, 26-1004).
Killing officer to prevent illegal arrest may constitute manslaughter, but not murder. Thomas v. State, 91 Ga. 204 , 18 S.E. 305 (1892) (decided under former Penal Code 1910, §§ 61, 62).
Admission of evidence of drug use was proper. - Defendant was properly convicted for felony murder, malice murder, and aggravated assault because the defendant was seen twice beating a person with a pipe and yelling at the person regarding drugs, and because the person died as a result of injuries from that beating two days later. Admission at the defendant's trial of use of drugs was proper because it was not admitted purely to impugn the defendant's character, but was relevant as to motive. Dyers v. State, 277 Ga. 859 , 596 S.E.2d 595 (2004).
Admissions of adultery coupled with conduct as reducing homicide to manslaughter. While it has been held that a mere admission by one spouse to the other spouse of an adulterous relationship with another person will not reduce homicide to manslaughter, admissions, coupled with conduct, or conduct alone, may do so. Campbell v. State, 204 Ga. 399 , 49 S.E.2d 867 (1948) (decided under former Code 1933, §§ 26-1003, 26-1004).
Simply being drunk and killing another in passion cannot reduce crime from murder to manslaughter. Bradberry v. State, 170 Ga. 859 , 154 S.E. 344 (1930) (decided under former Penal Code 1910, §§ 61, 62).
Prospective juror properly excluded on basis of bias. - When the defendant was convicted of malice murder, the trial court did not err in excusing for cause a prospective juror who was acquainted with defense counsel as the juror's statement that the juror worked with a criminal defense firm, and could not give the state a fair hearing clearly established a leaning or bias on the part of the juror, which made the juror subject to being excused for cause. Bell v. State, 276 Ga. 206 , 576 S.E.2d 876 (2003).
Photographs showing victim's injuries properly admitted. - In a trial for murder of a child by malnutrition and child abuse, it was not error to admit into evidence 14 pre-autopsy photographs and one post-autopsy photograph of the child's body. Such exhibits were not unnecessarily repetitious, gruesome, and inflammatory, but were clearly relevant and admissible to show both the extent of the injuries and the extent of the neglect and malnutrition from which the child had suffered. While it was true that two of the photographs appeared to be identical and certain others somewhat repetitious, such duplication in and of itself did not result in undue prejudice to the defendant. Lewis v. State, 180 Ga. App. 369 , 349 S.E.2d 257 (1986).
Defendant's motion for a mistrial based on the admission of a photograph of the victim's head was not an abuse of discretion as: (1) if pre-autopsy photographs were relevant and material to any issue in the case, they were admissible even if they were duplicative and might inflame the jury; (2) photographs showing the extent and nature of the victim's wounds were material and relevant, even if the cause of death was not in dispute; (3) the state had the burden to prove beyond a reasonable doubt that the defendant caused the death of the victim with malice aforethought; and (4) the photograph was relevant to the state's claim that the defendant had done so by shooting a single shot into the victim's head with a .38 revolver. Bradley v. State, 281 Ga. 173 , 637 S.E.2d 19 (2006).
Verdict of manslaughter constitutes acquittal of murder. - Finding accused guilty of manslaughter on indictment for murder is an acquittal of the charge of murder, and if the court is of the opinion that finding was wrong, and ought to have been for murder, it cannot grant a new trial. Jordan v. State, 22 Ga. 545 (1857) (decided under former law).
Error in charging on law relating to malice, either express or implied, or murder is not ground for new trial to one convicted of manslaughter. Loftin v. State, 30 Ga. App. 105 , 117 S.E. 471 (1923) (decided under former Penal Code 1910, §§ 61, 62).
When one is charged with murder, in which malice must exist either express or implied, but is convicted of a lower grade of that offense, to wit, voluntary manslaughter, in which malice is not an element, an erroneous charge on the question of malice is prima facie harmless to accused and a new trial will not be granted therefor unless it is plainly shown that the erroneous charge wrongfully led to or influenced the verdict rendered. Jones v. State, 52 Ga. App. 83 , 182 S.E. 527 (1935) (decided under former Code 1933, §§ 26-1003, 26-1004).
Refusal to charge upon principle of law which is solely applicable to crime of murder cannot be a ground for reversing judgment where conviction is of voluntary manslaughter, which is tantamount to acquittal of charge of murder. Goldsmith v. State, 54 Ga. App. 268 , 187 S.E. 694 (1936) (decided under former Code 1933, §§ 26-1003, 26-1004).
Having been indicted for murder and convicted of voluntary manslaughter, the verdict was an acquittal of the charge of murder and the defendant cannot complain of alleged errors in the court's instructions upon the law of murder. Cook v. State, 56 Ga. App. 375 , 192 S.E. 631 (1937) (decided under former Code 1933, §§ 26-1003, 26-1004).
Scientific evidence properly admitted. - In a murder prosecution, because the undisputed evidence showed that the mitochondrial DNA (mtDNA) analysis was based on sound scientific theory and produced reliable results when proper procedures were followed, and the "direct sequencing" method employed in the prosecution of the defendant for murder was the only technique accepted and used by those who conducted forensic mtDNA testing, as that technique produced reliable results upon which any practitioner could draw conclusions, the trial court did not err in allowing the evidence. Vaughn v. State, 282 Ga. 99 , 646 S.E.2d 212 (2007).
Admission of prejudicial unrelated evidence was abuse of discretion. - Although the evidence presented at trial was sufficient to convict the defendant of malice murder, the defendant was entitled to a new trial because the trial court abused the court's discretion in admitting evidence regarding guns and ammunition found in the defendant's home when the defendant was arrested nine days after a shooting; the guns and ammunition were totally unrelated to the shooting, the items were not probative of the defendant's guilt, and the state's attempt to use the evidence to establish that the defendant had a propensity to violence was improper. Nichols v. State, 282 Ga. 401 , 651 S.E.2d 15 (2007).
When conviction is for voluntary manslaughter, exclusion of evidence rebutting presumption of malice is harmless. Carter v. State, 2 Ga. App. 254 , 58 S.E. 532 (1907) (decided under former Penal Code 1895, §§ 61, 62).
Cruelty to child not lesser included offense. - Offense of cruelty to children requires proof that the victim was younger than eighteen, whereas the offense of malice murder only requires proof that the victim was a human being. Accordingly, to prove cruelty to children, at least one fact - the age of the victim - had to be established in addition to the facts used to establish malice murder, and the offense of cruelty to children therefore was not included as a matter of fact in the offense of malice murder. McCartney v. State, 262 Ga. 156 , 414 S.E.2d 227 (1992), overruled on other grounds, 287 Ga. 881 , 700 S.E.2d 394 (2010).
Evidence sufficient to convict. - Evidence was sufficient to support the first defendant and the second defendant's convictions for murder, kidnapping, armed robbery, and burglary, as the evidence showed that the defendants were involved in a scheme to rob a person who they believed to be selling large amounts of marijuana from an apartment, that the defendants burst into the apartment brandishing guns, that one of the defendants fatally shot the victim, and that the other defendant forced two people present to lie on the ground and divulge the location of a safe in the apartment that held money and marijuana. Howard v. State, 279 Ga. 166 , 611 S.E.2d 3 (2005).
Defendant's murder conviction was supported by evidence showing that an eyewitness walked into a vacant house, saw the defendant and another man holding the crying victim at gunpoint and arguing with the victim over a drug debt, and then saw the defendant shoot the victim; it was the jury's role to determine whether the witness, a drug addict and a convicted felon, was credible. Flowers v. State, 291 Ga. 122 , 728 S.E.2d 196 (2012).
Evidence was sufficient to support defendant's convictions for felony murder and armed robbery. One witness testified that the witness saw the defendant and the defendant's accomplice chasing the victim just prior to the shooting, while other witnesses testified that they saw the defendant and the defendant's accomplice fleeing the scene. Milford v. State, 291 Ga. 347 , 729 S.E.2d 352 (2012).
Evidence that the defendant, who threatened to kill the victim in the past, took the victim to a retention pond, shot the victim, wrapped the body with a large boulder, placed the victim in a retention pond, and, for days, misled the victim's mother and authorities about the victim's whereabouts was sufficient to support convictions for malice murder, felony murder, feticide, aggravated assault, and possession of a firearm. Platt v. State, 291 Ga. 631 , 732 S.E.2d 75 (2012).
Jury could reasonably have inferred from the evidence that the defendant and the alleged shooter shared a criminal intent with respect to the shooting, as the two were in the car at the time of the shooting, stood at the front of the car together after the shooting, and eventually made their way to the same place. Powell v. State, 291 Ga. 743 , 733 S.E.2d 294 (2012).
Murder defendant's claim that there was an insufficient factual basis for the defendant's guilty plea was belied by the state's evidence that the defendant and others placed a food order at a vacant home with a plan to rob the driver; the delivery driver was shot and killed; the co-indictees stated that the defendant was the shooter; and the gun was found at the defendant's home. Oliver v. State, 308 Ga. 652 , 842 S.E.2d 847 (2020).
Claim of error waived on appeal when exclusion of evidence not raised at trial. - On appeal from convictions for murder and aggravated assault, the defendant waived any error regarding the exclusion of a videotaped statement on appeal, which the defendant claimed would have supported a voluntary manslaughter theory, by failing to raise the claim specifically at trial. Johnson v. State, 282 Ga. 96 , 646 S.E.2d 216 (2007).
Murder cases treated differently in appeal bond. - Georgia Supreme Court recognizes that the Georgia General Assembly has chosen to treat murder cases differently in O.C.G.A. § 5-7-5 , and trial courts must be allowed some level of discretion to deny requests for bail pending appeals by the state in such cases; that discretion of trial courts in these cases should be governed by the standards for deciding whether to grant pretrial bail. Johnson v. State, 304 Ga. 369 , 818 S.E.2d 601 (2018).
Cited in Gaines v. Wolcott, 119 Ga. App. 313 , 167 S.E.2d 366 (1969); Teal v. State, 122 Ga. App. 532 , 177 S.E.2d 840 (1970); Evans v. State, 227 Ga. 571 , 181 S.E.2d 845 (1971); Pass v. State, 227 Ga. 730 , 182 S.E.2d 779 (1971); Witt v. State, 124 Ga. App. 535 , 184 S.E.2d 517 (1971); Fisher v. Stynchcombe, 336 F. Supp. 1308 (N.D. Ga. 1972); Foster v. State, 230 Ga. 666 , 198 S.E.2d 847 (1973); K.M.S. v. State, 129 Ga. App. 683 , 200 S.E.2d 916 (1973); Caldwell v. Beard, 232 Ga. 701 , 208 S.E.2d 564 (1974); Gaines v. State, 232 Ga. 727 , 208 S.E.2d 798 (1974); Cain v. State, 232 Ga. 804 , 209 S.E.2d 158 (1974); Hilton v. State, 233 Ga. 11 , 209 S.E.2d 606 (1974); Proveaux v. State, 233 Ga. 456 , 211 S.E.2d 747 (1974); Barker v. State, 233 Ga. 781 , 213 S.E.2d 624 (1975); Favors v. State, 234 Ga. 80 , 214 S.E.2d 645 (1975); Chenault v. State, 234 Ga. 216 , 215 S.E.2d 223 (1975); Davis v. State, 234 Ga. 730 , 218 S.E.2d 20 (1975); Sheppard v. State, 235 Ga. 89 , 218 S.E.2d 830 (1975); McCullough v. State, 137 Ga. App. 325 , 223 S.E.2d 729 (1976); Cromer v. State, 238 Ga. 425 , 233 S.E.2d 158 (1977); Scott v. State, 239 Ga. 130 , 236 S.E.2d 75 (1977); State v. Holmes, 142 Ga. App. 847 , 237 S.E.2d 406 (1977); Hawes v. State, 239 Ga. 630 , 238 S.E.2d 418 (1977); Harrison v. State, 143 Ga. App. 883 , 240 S.E.2d 263 (1977); Smith v. State, 242 Ga. 224 , 248 S.E.2d 634 (1978); Grace v. Hopper, 566 F.2d 507 (5th Cir. 1978); Taylor v. Hopper, 596 F.2d 1284 (5th Cir. 1979); Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759 , 64 L. Ed. 2 d 398 (1980); Franklin v. State, 245 Ga. 141 , 263 S.E.2d 666 (1980); Hardy v. State, 245 Ga. 272 , 264 S.E.2d 209 (1980); Dampier v. State, 245 Ga. 427 , 265 S.E.2d 565 (1980); Pitts v. State, 153 Ga. App. 666 , 266 S.E.2d 321 (1980); Causey v. State, 154 Ga. App. 76 , 267 S.E.2d 475 (1980); Lewis v. State, 246 Ga. 101 , 268 S.E.2d 915 (1980); Hosch v. State, 246 Ga. 417 , 271 S.E.2d 817 (1980); Jones v. State, 247 Ga. 268 , 275 S.E.2d 67 (1981); Jordan v. State, 247 Ga. 328 , 276 S.E.2d 224 (1981); Holt v. State, 247 Ga. 648 , 278 S.E.2d 390 (1981); McMillan v. State, 157 Ga. App. 694 , 278 S.E.2d 478 (1981); Gilreath v. State, 247 Ga. 814 , 279 S.E.2d 650 (1981); Moore v. State, 158 Ga. App. 579 , 281 S.E.2d 322 (1981); Daniel v. State, 248 Ga. 271 , 282 S.E.2d 314 (1981); Wallace v. State, 248 Ga. 255 , 282 S.E.2d 325 (1981); Jackson v. State, 248 Ga. 480 , 284 S.E.2d 267 (1981); United States v. Peacock, 654 F.2d 339 (5th Cir. 1981); McCorquodale v. Balkcom, 525 F. Supp. 408 (N.D. Ga. 1981); Young v. Zant, 677 F.2d 792 (11th Cir. 1982); Mitchell v. Hopper, 538 F. Supp. 77 (S.D. Ga. 1982); Maynor v. Green, 547 F. Supp. 264 (S.D. Ga. 1982); Hance v. Zant, 696 F.2d 940 (11th Cir. 1983); Cape v. Francis, 558 F. Supp. 1207 (M.D. Ga. 1983); Carter v. State, 252 Ga. 502 , 315 S.E.2d 646 (1984); Boyd v. State, 253 Ga. 515 , 322 S.E.2d 256 (1984); Drake v. Francis, 727 F.2d 990 (11th Cir. 1984); Cape v. Francis, 741 F.2d 1287 (11th Cir. 1984); Jones v. State, 253 Ga. 640 , 322 S.E.2d 877 (1984); Crawford v. State, 254 Ga. 435 , 330 S.E.2d 567 (1985); Williams v. State, 255 Ga. 21 , 334 S.E.2d 691 (1985); Cox v. State, 180 Ga. App. 820 , 350 S.E.2d 828 (1986); McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756 , 95 L. Ed. 2 d 262 (1987); Richie v. State, 258 Ga. 361 , 369 S.E.2d 740 (1988); Baisden v. State, 258 Ga. 425 , 369 S.E.2d 762 (1988); Mundy v. State, 259 Ga. 634 , 385 S.E.2d 666 (1989); Kinsman v. State, 259 Ga. 89 , 376 S.E.2d 845 (1989); Broomall v. State, 260 Ga. 220 , 391 S.E.2d 918 (1990); Spencer v. State, 260 Ga. 640 , 398 S.E.2d 179 (1990); Ferrell v. State, 261 Ga. 115 , 401 S.E.2d 741 (1991); Potts v. State, 261 Ga. 716 , 410 S.E.2d 89 (1991); Davis v. Thomas, 261 Ga. 687 , 410 S.E.2d 110 (1991); Gooden v. State, 261 Ga. 691 , 410 S.E.2d 113 (1991); Grace v. State, 262 Ga. 746 , 425 S.E.2d 865 (1993); Dunn v. State, 263 Ga. 343 , 434 S.E.2d 60 (1993); Lattimore v. State, 265 Ga. 102 , 454 S.E.2d 474 (1995); Williams v. State, 270 Ga. 125 , 508 S.E.2d 415 (1998); Rhode v. State, 274 Ga. 377 , 552 S.E.2d 855 (2001); Johnson v. State, 275 Ga. 630 , 570 S.E.2d 309 (2002); Adams v. State, 275 Ga. 867 , 572 S.E.2d 545 (2002); Oken v. State, 378 Md. 179, 835 A.2d 1105 (2003); Rivera v. State, 282 Ga. 355 , 647 S.E.2d 70 (2007); Teal v. State, 282 Ga. 319 , 647 S.E.2d 15 (2007); Roberts v. State, 282 Ga. 548 , 651 S.E.2d 689 (2007); Preston v. State, 282 Ga. 210 , 647 S.E.2d 260 (2007); Miller v. Martin, F. Supp. 2d (N.D. Ga. Aug. 20, 2007); Jones v. State, 282 Ga. 784 , 653 S.E.2d 456 (2007); Walker v. Hale, 283 Ga. 131 , 657 S.E.2d 227 (2008); Mitchell v. State, 283 Ga. 341 , 659 S.E.2d 356 (2008); Robinson v. State, 283 Ga. 229 , 657 S.E.2d 822 (2008); Robinson v. State, 283 Ga. 229 , 657 S.E.2d 822 (2008); Armstrong v. State, 292 Ga. App. 145 , 664 S.E.2d 242 (2008); Terry v. State, 284 Ga. 119 , 663 S.E.2d 704 (2008); Jackson v. State, 284 Ga. 484 , 668 S.E.2d 700 (2008); Bradshaw v. State, 284 Ga. 675 , 671 S.E.2d 485 (2008); Gonzales v. State, 298 Ga. App. 821 , 681 S.E.2d 248 (2009); Reeves v. State, 288 Ga. 545 , 705 S.E.2d 159 (2011); Kipp v. State, 294 Ga. 55 , 751 S.E.2d 83 (2013); Springer v. State, Ga. App. , S.E.2d (June 10, 2014); Freeman v. State, 328 Ga. App. 756 , 760 S.E.2d 708 (2014); Rollf v. Carter, 298 Ga. 557 , 784 S.E.2d 341 (2016); Hughey v. State, 337 Ga. App. 145 , 786 S.E.2d 523 (2016); Chavers v. State, 304 Ga. 887 , 823 S.E.2d 283 (2019); Lonon v. State, 348 Ga. App. 527 , 823 S.E.2d 842 (2019).
Unlawfulness
Unlawfulness, in sense of absence of excuse or justification, is an essential element of murder. Tennon v. Ricketts, 642 F.2d 161 (5th Cir. 1981).
Interpretation of unlawfulness. - Only sensible way to interpret the unlawfulness requirement of O.C.G.A. § 16-5-1(a) is to read it to mean unjustified and unexcused. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019 , 69 L. Ed. 2 d 398 (1981).
Term "unlawfully" in O.C.G.A. § 16-5-1(a) is not intended as a meaningless redundancy. The killing is not unlawful because it is murder; rather, part of the reason that the killing is murder is because it is unlawful. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019 , 69 L. Ed. 2 d 398 (1981).
Requirement does not refer to acts unlawful under other criminal statutes. - Requirement of O.C.G.A. § 16-5-1(a) , and by reference, of O.C.G.A. § 16-5-2 , that killing be unlawful does not refer to acts that are unlawful under some other criminal statute, since O.C.G.A. § 16-5-3(a) and O.C.G.A. § 16-5-1(c) deal with deaths caused during commission of felonies and other unlawful acts. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019 , 69 L. Ed. 2 d 398 (1981).
Lawfulness is proved by establishing self-defense. Tennon v. Ricketts, 642 F.2d 161 (5th Cir. 1981).
State must prove unlawfulness and malice aforethought beyond reasonable doubt. - Georgia law has chosen to include unlawfulness and malice aforethought as elements of murder and the prosecution must prove all these elements beyond a reasonable doubt without benefit of presumptions, at least when some evidence has been adduced to negate those elements. Holloway v. McElroy, 474 F. Supp. 1363 (M.D. Ga. 1979), aff'd, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019 , 69 L. Ed. 2 d 398 (1981), overruled on other grounds, Baker v. Montgomery, 811 F.2d 55 (11th Cir. 1987).
Unlawful acts causing unintended death which constitute murder. - An unlawful act may be of such nature as to make resulting homicide murder and not involuntary manslaughter, as (1) where intended act causing unintentional death is itself a felony; or (2) where such act is one which in its consequences naturally tends to destroy human life; or (3) where it is committed in prosecution of a riotous intent. Absence of intention to kill will not, in any of these instances, reduce killing from murder to involuntary manslaughter, but will do so in all other instances. Wells v. State, 44 Ga. App. 760 , 162 S.E. 835 (1932) (decided under former Penal Code 1910, §§ 61, 62).
Involuntary killing occurring during commission of unlawful act naturally tending to destroy life constitutes murder. Hammond v. State, 212 Ga. 186 , 91 S.E.2d 615 (1956) (decided under former Code 1933, §§ 26-1003, 26-1004).
Intentionally pointing a pistol at another. - To intentionally point a pistol at another, in fun or otherwise, save in instances excepted by statute, is unlawful; and if, while performing such unlawful act, the pistol is accidentally discharged, the person so acting, if not guilty of murder, would be guilty of involuntary manslaughter in commission of an unlawful act. Delegal v. State, 92 Ga. App. 744 , 90 S.E.2d 32 (1955) (decided under former Code 1933, §§ 26-1003, 26-1004).
Indictment
When an indictment charges murder it also charges manslaughter; under the criminal practice and procedure in this state a verdict of involuntary manslaughter would find support in such a pleading, because involuntary manslaughter is the unlawful killing of a human being, and such crime is always included in an indictment for murder. Perry v. State, 78 Ga. App. 273 , 50 S.E.2d 709 (1948) (decided under former Code 1933, §§ 26-1003, 26-1004).
That killing was unlawful need not be alleged in indictment. Coxwell v. State, 66 Ga. 309 (1881) (decided under Code 1873, §§ 4321, 4322); Davis v. State, 153 Ga. 669 , 113 S.E. 11 (1922) (decided under former Code 1910, §§ 61, 62).
While indictment must allege malice aforethought, words of equivalent meaning may be employed in lieu thereof. Gates v. State, 95 Ga. 340 , 22 S.E. 836 (1895) (decided under former Code 1882, §§ 4321, 4322).
Indictment need not specifically allege fact relied upon to establish malice. - Under allegation of malice aforethought state may introduce any evidence which is relevant and material upon issue of malice, either express or implied, and it is unnecessary for indictment to more specifically allege fact which will be relied upon to establish malice. Perry v. State, 78 Ga. App. 273 , 50 S.E.2d 709 (1948) (decided under former Code 1933, §§ 26-1003, 26-1004).
Indictment need not show detailed description of weapon, or location of wound. Bowens v. State, 106 Ga. 760 , 32 S.E. 666 (1899) (decided under former Penal Code 1895, §§ 61, 62).
Indictment mixing malice and felony murder elements was defective. - With regard to an indictment against a defendant which charged murder, felony murder, and concealment of a death, the count charging felony murder was quashed because the mixing of the elements of malice murder and felony murder constituted a material defect. Wagner v. State, 282 Ga. 149 , 646 S.E.2d 676 (2007).
Indictment properly charged malice murder and felony murder as distinct counts. - Trial court erred in quashing the count of an indictment alleging felony murder predicated on the felony of aggravated battery because the indictment did not allege malice murder twice but properly charged malice murder and felony murder as distinct, alternative counts, and the trial court's finding that the state improperly alleged "malicious malice" was erroneous when the felony murder count alleged that the causing of bodily harm was malicious, not that the commission of the complete crime of aggravated battery was malicious; a defendant might have had malice in the form of the intent to cause bodily harm with no malice in the form of the intent to kill, and yet death might still occur, and in such a case the defendant would be guilty of felony murder but not malice murder. Pope v. State, 286 Ga. 1 , 685 S.E.2d 272 (2009).
Failure to allege county. - Habeas petition was properly denied, despite an inmate's claim that the omission of the county in which a malice murder occurred rendered a conviction on that count void, as the defense was waived when the inmate plead guilty to the charge, and the inmate's allegations of trial counsel's ineffectiveness were meritless. Wright v. Hall, 281 Ga. 318 , 638 S.E.2d 270 (2006).
Indictment need not show that deceased was a human being. Sutherland v. State, 121 Ga. 591 , 49 S.E. 781 (1905) (decided under former Penal Code 1895, §§ 61, 62).
Indictment alleging that person was killed on specified date alleges that the person died on that date. Head v. State, 68 Ga. App. 759 , 24 S.E.2d 145 (1943) (decided under former Code 1933, §§ 26-1003, 26-1004).
One count indictment was sufficient. - One-count indictment against the defendant was held sufficient and did not violate the defendant's due process rights, because the indictment charged the defendant with felony murder by causing the death of the victim while committing the felony of aggravated assault and was sufficient to have withstood a general demurrer; the fact that the defendant failed to raise a special demurrer to the indictment prior to pleading to the merits of the indictment was a waiver of that argument. Stinson v. State, 279 Ga. 177 , 611 S.E.2d 52 (2005).
Sufficiency of indictment for felony murder. - A malice murder indictment which alleged that the defendant shot the victim with a pistol is sufficient to put the defendant on notice that defendant committed an aggravated assault on the victim and, therefore, may be charged with felony murder at trial. Jolley v. State, 254 Ga. 624 , 331 S.E.2d 516 (1985).
Indictment was sufficient to withstand a general demurrer because the indictment charged the defendant with felony murder-having caused the death of the victim while committing the felony of aggravated assault, which was a felony; and the defendant could not admit the defendant caused the death of the victim while in the commission of aggravated assault and not be guilty of the crime. Brooks v. State, 299 Ga. 474 , 788 S.E.2d 766 (2016), cert. denied, 137 S. Ct. 573 , 196 L. Ed. 2 d 451 (U.S. 2016).
Whether one may be convicted of lower grade of felony depends upon indictment. - Under indictment for murder, accused may be convicted of a lower grade of felony, or of a misdemeanor, if lesser offense is one involved in the homicide and is sufficiently charged in the indictment; but whether jury should be instructed on law of lesser offense, or would be authorized to convict of lesser offense, depends on evidence. Moore v. State, 55 Ga. App. 213 , 189 S.E. 731 (1937) (decided under former Code 1933, §§ 26-1003, 26-1004).
Because an indictment, which included charging language that the defendant "unlawfully, and with malice aforethought, caused the death of the victim by striking," placed the defendant on notice of a possible conviction of an assault upon the victim with the intent to murder or commit a violent injury, the defendant could be convicted of aggravated assault as a lesser included crime of malice murder; the only difference was that the malice murder indictment alleged that the defendant actually accomplished the murder, in addition to having intended to accomplish the murder. Reagan v. State, 281 Ga. App. 708 , 637 S.E.2d 113 (2006).
Waiver of challenge to indictment. - Defendants' contention that a felony murder indictment was deficient because the indictment did not contain all the essential elements of the underlying crime of aggravated assault was, in essence, a special demurrer seeking greater specificity with regard to the predicate felony. Pursuant to O.C.G.A. § 17-7-110 , the defendant's failure to file a timely special demurrer seeking additional information constituted a waiver of the right to be tried on a perfect indictment. Dasher v. State, 285 Ga. 308 , 676 S.E.2d 181 (2009).
Felony murder indictment was not deficient because the indictment did not contain all the essential elements of the underlying crime of aggravated assault because the defendant's failure to file a special demurrer seeking additional information before pleading guilty to the indictment constituted a waiver of the defendant's right to be tried on a perfect indictment. Brooks v. State, 299 Ga. 474 , 788 S.E.2d 766 (2016), cert. denied, 137 S. Ct. 573 , 196 L. Ed. 2 d 451 (U.S. 2016).
Indictment for felony murder and vehicular homicide. - Defendant could be indicted for vehicular homicide under O.C.G.A. § 40-6-393 and felony murder during the commission of fleeing and attempting to elude a police officer under O.C.G.A. § 40-6-395 . State v. Tiraboschi, 269 Ga. 812 , 504 S.E.2d 689 (1998).
Failure to file demurrer to indictment. - Trial counsel was not ineffective in failing to challenge the felony murder count of an indictment because the indictment contained sufficient facts to put the defendant on notice that the defendant was accused of the death of the victim as a result of an aggravated assault when the indictment alleged a specific, offensive use of the defendant's hands and feet and that when the defendant's hands and feet were used in a particular way they were objects which were likely to and actually did result in serious bodily injury; the absence of self-defense, like general intent, did not have to be expressly alleged in an indictment, and even if some such allegation were necessary, language in the indictment asserting that defendant acted unlawfully and contrary to the laws of the state, the good order, peace, and dignity thereof was sufficient. Lizana v. State, 287 Ga. 184 , 695 S.E.2d 208 (2010).
Under indictment for murder, jury may find prisoner guilty of lesser offense of manslaughter, either voluntary or involuntary, and verdict will be legal, although there is no count for manslaughter in indictment. Perry v. State, 78 Ga. App. 273 , 50 S.E.2d 709 (1948).
When on indictment and trial for murder, offense of voluntary manslaughter may be reasonably deduced from evidence, or defendant's statement, considered separately or together, a charge upon law of voluntary manslaughter is authorized. Tucker v. State, 61 Ga. App. 661 , 7 S.E.2d 193 (1940) (decided under former Code 1933, §§ 26-1003, 26-1004).
When evidence, or defendant's statement, or portions of evidence and portions of statement combined, raise doubt, however slight, as to whether homicide was murder or voluntary manslaughter, it is not error for court to instruct jury upon law of voluntary manslaughter. Tucker v. State, 61 Ga. App. 661 , 7 S.E.2d 193 (1940) (decided under former Code 1933, §§ 26-1002, 26-1003, 26-1004).
Indictment alleging that the defendant unlawfully and with malice aforethought did murder the victim in a manner unknown to the grand jury was not subject to demurrer for failing to indicate whether the malice alleged was express or implied, because an indictment failing to specify the cause of death is sufficient when the circumstances of the case will not admit of greater certainty in stating the means of death. Hinton v. State, 280 Ga. 811 , 631 S.E.2d 365 (2006).
Indictment alleging shooting sufficiently alleged instrumentality used was firearm. - Defendant, who pled guilty to malice murder, O.C.G.A. § 16-5-1 , was not entitled to an out-of-time appeal based on the indictment's failure to allege the instrumentality used; the indictment's allegations that the defendant caused the death of the victim by shooting the victim was sufficient to give notice that the defendant was charged with killing the victim with the use of a firearm. Brown v. State, 290 Ga. 321 , 720 S.E.2d 617 (2012), overruled on other grounds by Collier v. State, 834 S.E.2d 769 , 2019 Ga. LEXIS 708 (Ga. 2019).
Intent and Malice
1. In General
O.C.G.A. § 16-5-1(b) is not unconstitutional when given in charge to the jury. McMichael v. State, 252 Ga. 305 , 313 S.E.2d 693 (1984).
Defendant did not act in self-defense and was guilty of malice murder. - Evidence was sufficient to show that the defendant did not act in self-defense when the defendant made repeated threats to kill the victim, recruited family members to help and the defendant pursued and confronted the unarmed victim in the middle of the street and bragged to others about the crime; the defendant was not in imminent danger from the victim, but the defendant acted solely out of revenge for prior crimes and assaults allegedly committed against the defendant by the victim. Slaughter v. State, 278 Ga. 896 , 608 S.E.2d 227 (2005).
Evidence was sufficient to support defendant's conviction of malice murder, in violation of O.C.G.A. § 16-5-1 , based on an eyewitness's testimony that the eyewitness did not believe that defendant had acted in self-defense in fatally shooting the victim; the testimony was admissible over defendant's objection because the eyewitness based the testimony on personal observations, and there was also other evidence which allowed a rational trier of fact to have found sufficient proof beyond a reasonable doubt of defendant's guilt. Smith v. State, 281 Ga. 237 , 637 S.E.2d 400 (2006).
Evidence that the victim had been stabbed 12 times, six times in the back, and the defendant's testimony that the defendant kicked in the door to the victim's house, that the victim confronted the defendant with a knife, and that the defendant took the knife from the victim and acted in self-defense was sufficient to convict the defendant of malice murder as the jury was entitled to reject the self-defense claim. Timmreck v. State, 285 Ga. 39 , 673 S.E.2d 198 (2009).
Malice must be shown. - Malice is not confined to a particular animosity to deceased, but extends to an evil design in general, a wicked and corrupt motive, an intention to do evil, the event of which is fatal. Roberts v. State, 3 Ga. 310 (1847) (decided under former law).
In trial for murder it is absolutely essential that malice, express or implied, be shown. Elder v. State, 212 Ga. 705 , 95 S.E.2d 373 (1956) (decided under former Code 1933, §§ 26-1003, 26-1004).
Malice defined. - Legal malice is an unlawful intention to kill without justification or mitigation. Bailey v. State, 70 Ga. 617 (1883) (decided under former Code 1882, §§ 4321, 4322).
Legal malice is not ill will or hatred. Bailey v. State, 70 Ga. 617 (1883) (decided under former Code 1882, §§ 4321, 4322).
Malice is wickedness of purpose; a spiteful or malevolent design against another; a settled purpose to injure or destroy another. Patterson v. State, 85 Ga. 131 , 11 S.E. 620 , 21 Am. St. R. 152 (1890) (decided under former Penal Code 1895, §§ 61, 62).
Legal malice is the intent unlawfully to take human life in cases which the law neither mitigates nor justifies. Smithwick v. State, 199 Ga. 292 , 34 S.E.2d 28 (1945) (decided under former Code 1933, §§ 26-1003, 26-1004).
Malice means the intent to take life without legal justification, excuse, or mitigation. Gatliff v. State, 90 Ga. App. 869 , 84 S.E.2d 588 (1954) (decided under former Code 1933, §§ 26-1003, 26-1004).
Malice is the unlawful, deliberate intention to kill a human being without excuse, justification, or mitigation. It is a state of mind and is a premeditated, deliberate intention and desire and design to unlawfully kill another human being. Mason v. Balkcom, 487 F. Supp. 554 (M.D. Ga. 1980), rev'd on other grounds, 669 F.2d 222 (5th Cir. 1982), cert. denied, 460 U.S. 1016, 103 S. Ct. 1260 , 75 L. Ed. 2 d 487 (1983).
Malice element, which distinguishes murder from the lesser offense of voluntary manslaughter, means simply the intent to kill in the absence of provocation. McCleskey v. Zant, 580 F. Supp. 338 (N.D. Ga. 1984), rev'd on other grounds sub nom. McCleskey v. Kemp, 753 F.2d 877 (11th Cir. 1985), aff'd, 481 U.S. 279, 107 S. Ct. 1756 , 95 L. Ed. 2 d 262 (1987), cert. denied, 501 U.S. 1282, 112 S. Ct. 38 , 115 L. Ed. 2 d 1118 (1991).
Express malice is the deliberate intention unlawfully to take a life, manifested by external circumstances; malice could be implied where no considerable provocation appeared and the circumstances of the killing showed an abandoned and malignant heart. Hill v. State, 274 Ga. 591 , 555 S.E.2d 696 (2001).
Intent to kill is part of an essential element of murder, namely malice aforethought. Mason v. Balkcom, 487 F. Supp. 554 (M.D. Ga. 1980), rev'd on other grounds, 669 F.2d 222 (5th Cir. 1982), cert. denied, 460 U.S. 1016, 103 S. Ct. 1260 , 75 L. Ed. 2 d 487 (1983).
Intent to kill is necessary. Lott v. State, 18 Ga. App. 747 , 90 S.E. 727 (1916) (decided under former Penal Code 1910, §§ 60, 61, 62).
Purpose and specific intent not required. - Rather than affixing the terms of "specific intent" or "purpose" with respect to the mens rea required for murder, Georgia has opted for the common-law requirement of malice aforethought, which may be either express or implied. Accordingly, evidence which disproves "purpose" or "desire," such as evidence of mental deficiency, does not necessarily disprove malice aforethought. Wallace v. Kemp, 581 F. Supp. 1471 (M.D. Ga. 1984), rev'd on other grounds, 757 F.2d 1102 (11th Cir. 1985).
Intent need not be directed toward person killed or injured. - Offenses of murder, voluntary manslaughter, and aggravated assault do not require that the necessary element of intent, to kill or injure as the case may be, must have been directed toward the person who actually was killed or injured. Cook v. State, 255 Ga. 565 , 340 S.E.2d 843 , cert. denied, 479 U.S. 871, 107 S. Ct. 241 , 93 L. Ed. 2 d 166 (1986).
Act committed is judged by nature of act intended. - If one who was engaged in a personal difficulty with another fired upon the person with a pistol, but missing that person killed a third person who was nearby, such killing would be murder, and not involuntary manslaughter. Durham v. State, 70 Ga. 264 (1883) (decided under former Code 1882, §§ 4321, 4322).
If a person shoots at another under circumstances that, if death had ensued, the offense would be reduced from murder to voluntary manslaughter, and by accident the shot hits and kills another person standing by, for whom it was not intended, the offense would be voluntary manslaughter. McLendon v. State, 172 Ga. 267 , 157 S.E. 475 (1931) (decided under former Penal Code 1910, §§ 61, 62).
If the defendant intended to kill the defendant's own child, but, under mistake as to identity, killed another child, the defendant's act would be measured by the same standard as if the defendant had killed the defendant's own child. Wright v. State, 199 Ga. 576 , 34 S.E.2d 879 (1945) (decided under former Code 1933, §§ 26-1003, 26-1004).
Killing of innocent bystander while making a murderous assault on another is murder; the thing done follows the nature of the thing intended to be done and guilt or innocence of slayer depends upon same considerations which would have governed had the slayer shot and killed the person against whom it was directed. Montgomery v. State, 78 Ga. App. 258 , 50 S.E.2d 777 (1948) (decided under former Code 1933, §§ 26-1003, 26-1004).
Mere drunkenness will not negative specific intent to murder. - One sober enough to intend to shoot at another, and actually to shoot at and hit the other, without any provocation or justification whatever, is deemed sober enough to form specific intent to murder; and mere drunkenness, whatever its degree, will not negative such intent. Bradberry v. State, 170 Ga. 859 , 154 S.E. 344 (1930) (decided under former Penal Code 1910, §§ 61, 62).
Assault or other equivalent circumstances may exclude idea of deliberate, wanton intention to take life. McLendon v. State, 172 Ga. 267 , 157 S.E. 475 (1931) (decided under former Penal Code 1910, §§ 61, 62).
There is no difference between express and implied malice except in mode of arriving at fact. Jones v. State, 39 Ga. 594 (1859) (decided under former law).
One capable of forming simple intent to kill another is capable of malice. Jones v. State, 29 Ga. 594 (1859) (decided under former law).
One who can voluntarily shoot is capable of malice, unless one can plead some infirmity besides drunkenness. To be too drunk to form intent to kill, one must be too drunk to form intent to shoot. Cone v. State, 193 Ga. 420 , 18 S.E.2d 850 (1942) (decided under former law).
To render homicide murder, malice must exist at time of killing. McMillan v. State, 35 Ga. 54 (1866) (decided under former Code 1863, §§ 4218, 4219); Phillips v. State, 26 Ga. App. 263 , 105 S.E. 823 (1921) (decided under former Penal Code 1910, §§ 61, 62).
Malice need not exist for any particular length of time before killing. Bailey v. State, 70 Ga. 617 (1883) (decided under former Code 1882, §§ 4321, 4322); Perry v. State, 102 Ga. 365 , 30 S.E. 903 (1897) (decided under former Penal Code 1895, §§ 61, 62).
Momentary deliberation suffices. - Law does not fix time of deliberation, and if it is momentary, it is sufficient. Roberts v. State, 3 Ga. 310 (1846) (decided under former Code 1933, §§ 26-1003, 26-1004).
If malice is in mind of slayer at moment killing is done, and it moves slayer to do the killing, no matter how short a time it may have existed, such killing constitutes murder. Brown v. State, 190 Ga. 169 , 8 S.E.2d 652 (1940) (decided under former Code 1933, §§ 26-1003, 26-1004).
If malice appears, it cannot matter from what source the malice sprang. Perry v. State, 102 Ga. 365 , 30 S.E. 903 (1897) (decided under former Code 1895, §§ 61, 62).
"Hot blood" requirement for voluntary manslaughter is inconsistent with malice. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019 , 69 L. Ed. 2 d 398 (1981).
Evidence of prior serious violent acts improperly admitted to show intent. - Appellant's convictions for felony murder, aggravated assault, and knife-possession offenses were reversed because the Georgia Supreme Court could not say that the trial court's erroneous admission of the voluminous evidence that the appellant had previously committed multiple serious violent acts did not contribute to the guilty verdicts that the jury returned. Strong v. State, Ga. , 845 S.E.2d 653 (2020).
Intention of defendant is matter for jury. Blakewood v. State, 196 Ga. 34 , 25 S.E.2d 643 (1943) (decided under former Code 1933, §§ 26-1003, 26-1004).
Evidence adduced at trial that the victim was unarmed, that the victim made a 9-1-1 call for help moments before being shot, that the victim died of a single gunshot wound fired from a distance of between two and 20 feet away, and that the weapon used in the shooting could not be unintentionally fired, was sufficient to show that defendant did not accidentally shoot the victim. Jackson v. State, 276 Ga. 611 , 581 S.E.2d 34 (2003).
When weapon is used in manner not naturally calculated to produce death, intent is fact issue. Delk v. State, 135 Ga. 312 , 69 S.E. 541 , 1912A Ann. Cas. 105 (1910) (decided under former Penal Code 1895, §§ 61, 62).
Using weapon with intention to do act which will likely produce death may constitute murder. Aiken v. State, 170 Ga. 895 , 154 S.E. 368 (1930) (decided under former Penal Code 1910, §§ 61, 62).
Inferring intention to kill by use of deadly weapon. - Although the trial court erred by instructing the jury that it could infer that a person who used a deadly weapon in the manner in which it was usually used and that if the weapon caused a death, the jury could infer the intent to kill, the error was harmless in light of the overwhelming evidence of the defendant's guilt. Lewis v. State, 279 Ga. 69 , 608 S.E.2d 602 , cert. denied, 546 U.S. 987, 126 S. Ct. 571 , 163 L. Ed. 2 d 478 (2005).
It is for jury to determine whether killing is intentional and malicious from all facts and circumstances. Blair v. State, 245 Ga. 611 , 266 S.E.2d 214 (1980).
When words, threats, menaces, or contemptuous gestures induce fear justifying homicide. - While provocation by words, threats, menaces, or contemptuous gestures is not sufficient to justify excitement of passion and reduce homicide below grade of murder when killing is done not on account of any fear in mind of slayer, but solely to resent provocation given, it is nevertheless true that such acts may in some instances be sufficient to arouse fears of a reasonable man that the man's life is in danger, the same being a question to be determined by the jury, and that where words, threats, menaces, or contemptuous gestures may thus throw light upon that question, they should not be excluded from consideration of jury. Bird v. State, 71 Ga. App. 643 , 31 S.E.2d 835 (1944) (decided under former Code 1933, §§ 26-1003, 26-1004).
Defendant's threat to kill deceased is relevant where identity of slayer is in issue. - It is not error to permit a witness for the state to testify that a month before the homicide the witness heard the defendant threaten to kill the deceased, where one of the issues at the trial was the identity of the defendant as the slayer. Aycock v. State, 188 Ga. 551 , 4 S.E.2d 221 (1939) (decided under former Code 1933, §§ 26-1003, 26-1004).
In cases of provocation by threats, motive with which slayer acted is for jury determination, and if it is claimed that homicide was committed, not in a spirit of revenge, but under fears of a reasonable man, it is for jury to decide whether or not circumstances were sufficient to justify existence of such fear. Moore v. State, 228 Ga. 662 , 187 S.E.2d 277 (1972).
Existence of provocation does not preclude existence of malice. Malice can be express or it can be implied where no considerable provocation appears. Whether or not a provocation, if any, is such a serious provocation as would be sufficient to excite a sudden, violent, and irresistible passion in a reasonable person, reducing the offense from murder to manslaughter, is generally a question for the jury. Anderson v. State, 248 Ga. 682 , 285 S.E.2d 533 (1982).
Former animosities, concerned plots, threats, or nature of act itself may show express malice. Roberts v. State, 3 Ga. 310 (1847) (decided under former law).
Previous threats, ancient grudges, and waylaying are external circumstances illustrating express malice. Mitchum v. State, 11 Ga. 615 (1852) (decided under former law).
Prior similar transaction evidence properly admitted to show intent and bent of mind. - In a prosecution for felony murder during the commission of an aggravated assault, the trial court did not err in admitting relevant similar transaction evidence, consisting of a prior conviction for aggravated assault, considering the similarities between the two crimes, as such illustrated the defendant's course of conduct and bent of mind in resorting to the use of a knife to commit an unprovoked attack on one with whom the defendant was ostensibly socializing. Nichols v. State, 281 Ga. 483 , 640 S.E.2d 40 (2007).
In a malice murder prosecution when the victim was violently stabbed and severely beaten, evidence that an officer saw the defendant violently attack an acquaintance as the result of a minor disagreement was properly submitted as a similar transaction to show the defendant's bent of mind and course of conduct. Dixon v. State, 285 Ga. 312 , 677 S.E.2d 76 (2009), overruled on other grounds, 287 Ga. 242 , 695 S.E.2d 255 (2010).
Trial court's determination that the state met the requirements for admission of similar transaction evidence was not an abuse of discretion because evidence that the defendant used violence against an adult with whom the defendant had a close, loving relationship was admissible to show the defendant's bent of mind in using violence against a member of the defendant's family, even though the family member was a mere infant, and even though the family member suffered internal, rather than external, injuries. Brinson v. State, 289 Ga. 150 , 709 S.E.2d 789 (2011).
One who conspires to commit murder does so with malice aforethought. Orkin v. State, 236 Ga. 176 , 223 S.E.2d 61 (1976).
Use of "malice aforethought" in indictment. - Term "malice aforethought" as the term appears in an indictment is not self-explanatory and may be incomprehensible to a layman, particularly one of limited mental capacity, without further explanation. Gaddy v. Linahan, 780 F.2d 935 (11th Cir. 1986).
Malice murder as within scope of robbery conspiracy. - Jury was not misled into imputing intent to kill from a conspiracy to commit robbery since the charge stressed that the crime charged, malice murder, must have been within the scope of the conspiracy before it could be charged to any coconspirator. Solomon v. Kemp, 735 F.2d 395 (11th Cir. 1984), cert. denied, 469 U.S. 1181, 105 S. Ct. 940 , 83 L. Ed. 2 d 952 (1985).
Malice murder as within scope of arson. - Defendant was improperly convicted of murder because, although the defendant was guilty of conspiracy to commit arson, the subsequent murder of one co-conspirator by another to keep the murdered co-conspirator quiet was not reasonably foreseen as a necessary, probable consequence of the arson conspiracy. Everritt v. State, 277 Ga. 457 , 588 S.E.2d 691 (2003).
Construed with O.C.G.A. § 40-6-390 . - Murder charge cannot be predicated upon "reckless disregard for safety of persons" under O.C.G.A. § 40-6-390 . Foster v. State, 239 Ga. 302 , 236 S.E.2d 644 (1977).
Neglect and abuse of an infant may be done with malice aforethought. - Neglect of an infant can be intentional and deliberate and can, in conjunction with starvation and physical abuse, be done with malice aforethought intended to cause death. Lackey v. State, 246 Ga. 331 , 271 S.E.2d 478 (1980).
Parent's state of mind relevant where death was from child neglect. - Whether a child has been starved, neglected, and abused with malice so as to constitute murder, or has merely been harmed as a result of inability, carelessness, or accident, may often require considerable indirect proof to determine the parent's state of mind. The education, intelligence and work experience of parents in such cases are relevant to question of parent's state of mind and should generally be admitted into evidence. Lackey v. State, 246 Ga. 331 , 271 S.E.2d 478 (1980).
"Neglect," as used in indictment for death of child. - It was not error to overrule motion to dismiss indictment charging that defendants, with malice aforethought, killed their ten-month old daughter by means of starvation, neglect, and physical abuse on grounds that indictment was imperfect because "neglect" is inconsistent with malice aforethought and cannot constitute murder; neglect as used in indictment is not equivalent of negligence. Lackey v. State, 246 Ga. 331 , 271 S.E.2d 478 (1980).
Intent not admitted by self-defense plea. - Defendant does not admit intent to kill by pleading that defendant acted in self-defense. Patterson v. Austin, 728 F.2d 1389 (11th Cir. 1984); Brantley v. State, 256 Ga. 136 , 345 S.E.2d 329 (1986).
Evidence of defendant's shooting another the day before homicide was admissible as demonstrating defendant's bent of mind and propensity for use of a pistol. Bishop v. State, 257 Ga. 136 , 356 S.E.2d 503 (1987).
Homicide resulting from use of "spring gun" to defend habitation was not justified where defendant was working and not at home when the gun activated. Bishop v. State, 257 Ga. 136 , 356 S.E.2d 503 (1987).
Finding of guilty but mentally ill rather than not guilty by reason of insanity. - In a trial for murder of defendant's parents, a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence that defendant was insane at the time of the crime. Thus, a rational trier of fact could have found defendant guilty but mentally ill beyond a reasonable doubt. Harris v. State, 256 Ga. 350 , 349 S.E.2d 374 (1986).
Shooting of motorcyclist following teenage children home sufficient for conviction. - Evidence was sufficient to support the convictions of murder, aggravated assault, and firearm possession in connection with the shooting death of the victim because the evidence showed that: (1) the defendant's teenage children made a cell phone call to the children's parents' home to tell them that the children were being followed by a motorcycle rider; (2) as the children arrived home, the defendant exited from the house with a handgun; (3) the defendant fired two warning shots at the rider when the rider rode past; (4) the rider turned the motorcycle around and when the rider rode past the house again, the defendant fired again as the defendant claimed that the rider swerved toward the defendant; and (5) this shot struck the victim, resulting in the victim's death. Gear v. State, 288 Ga. 500 , 705 S.E.2d 632 (2011), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Sufficient evidence of malice. - Evidence of malice was sufficient to support the defendant's conviction for malice murder, as the evidence showed that the defendant drove by the victim who the defendant thought had killed the defendant's best friend, that the defendant immediately parked the defendant's car around the corner of a building, grabbed a gun from under a seat in the car, pushed aside a friend who tried to stop the defendant, ran to within a few feet of the victim, and shot the victim twice, even though the defendant could not show that the victim presented any immediate threat to the defendant. Garrett v. State, 276 Ga. 556 , 580 S.E.2d 236 (2003).
Evidence supported defendant's convictions for malice murder, attempted arson, and related charges where: (1) the victim was found encased in concrete in a cattle trough on a farm defendant used for hunting; (2) the victim was killed by a .22 caliber bullet wound to the head and multiple stab wounds and the police executing a search warrant found a .22 caliber rifle and ammunition consistent with those used to kill the victim at defendant's home; (3) defendant's mailbox was painted with the same type of paint used on the cattle trough, and similar paint was found at defendant's home; (4) defendant purchased 10 80-pound bags of concrete and a cattle trough, like the one in which the victim was found; and (5) there was a heavy smell of kerosene and a candle burned down to the stub under the victim's sofa, indicating that someone had unsuccessfully attempted to set the house on fire. Fortson v. State, 277 Ga. 164 , 587 S.E.2d 39 (2003), overruled on other grounds by Willis v. State, 304 Ga. 686 , 820 S.E.2d 640 (2018).
Evidence was sufficient to support defendant's convictions for malice murder, theft by taking, and financial transaction card fraud, as the evidence authorized any rational trier of fact to find defendant guilty of those crimes beyond a reasonable doubt; the evidence showed that defendant struck the victim multiple times with a wrench, causing the victim's death, that the defendant was in possession of a laptop computer that had been missing from the victim's office, and that defendant had used the victim's credit, posing as the victim's wife, on the day the victim died. Baugh v. State, 276 Ga. 736 , 585 S.E.2d 616 (2003).
When the record revealed that defendant and his girlfriend went to a party together, that he became enraged when the girlfriend and another woman left the party without telling him, and that upon returning home, he strangled his girlfriend, whom he had a history of abusing, and he assaulted the other woman, there was sufficient evidence to support his convictions for malice murder in violation of O.C.G.A. § 16-5-1 and simple assault in violation of O.C.G.A. § 16-5-20 . Rickman v. State, 277 Ga. 277 , 587 S.E.2d 596 (2003).
Evidence was sufficient to support convictions for malice murder and possession of a firearm in the commission of a felony because an eyewitness identified the defendant as one of two armed persons seen getting out of a van and two other eyewitnesses testified that they saw the defendant fire shots at the victim; the medical evidence showed that the victim died from gunshot wounds to the head and neck. Cox v. State, 279 Ga. 223 , 610 S.E.2d 521 (2005).
Evidence was sufficient to support the defendant's guilt of malice murder and possession of a firearm during the commission of a felony because, although the codefendant fired the shot that killed the victim, eyewitness testimony showed that the defendant was a party to the crimes. Cox v. State, 279 Ga. 223 , 610 S.E.2d 521 (2005).
Evidence that the defendant fatally shot the victim while the victim knelt unarmed was sufficient to establish the offense of malice murder. Weldon v. State, 279 Ga. 185 , 611 S.E.2d 36 (2005).
In an action in which the defendant was convicted of the murder of a parent's love interest, defense counsel failure to investigate the victim's violent nature was not ineffective; the jury was given considerable information concerning the victim's violent nature, that the victim had beaten the defendant's parent, and had consumed cocaine; even with further investigation, the outcome of the trial would not have changed; the jury rejected both the justification defense and the lesser charge because there was overwhelming evidence that the defendant committed malice murder. Cooper v. State, 279 Ga. 189 , 612 S.E.2d 256 (2005).
Eyewitness's identification of the defendant and the statement made to police by the mother of the defendant's children in which the mother stated that the defendant admitted to shooting someone provided sufficient evidence to convict the defendant of malice murder in violation of O.C.G.A. § 16-5-1 and possession of a firearm during the commission of a felony in violation of O.C.G.A. § 16-11-106 ; the weight accorded to the identification and the statement to police was a matter for the jury. Wells v. State, 281 Ga. 253 , 637 S.E.2d 8 (2006).
Evidence was sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of malice murder as the defendant shot the victim from behind twice in the head during a drug deal and several witnesses testified that the defendant bragged to the witnesses about shooting the victim. Rosser v. State, 284 Ga. 335 , 667 S.E.2d 62 (2008).
Evidence that the defendant shot at the victim until the defendant's gun ran out of bullets, and continued pulling the trigger thereafter, was sufficient to support the defendant's conviction of malice murder. Brown v. State, 285 Ga. 324 , 676 S.E.2d 221 (2009).
Because testimony about the circumstances of the victim's visit to a home where defendant was shot was relevant and admissible to explain defendant's motive in shooting the victim, the evidence was sufficient to convict defendant of malice murder, aggravated assault with a deadly weapon, and possession of a firearm during the commission of a felony. Taylor v. State, 287 Ga. 440 , 696 S.E.2d 652 (2010).
Jury was authorized to find the defendant guilty of malice murder, even if the jury concluded that the defendant did not intend the victim's death, because implied malice was sufficient and the evidence supported a finding of both express and implied malice since the defendant had threatened to kill the victim in the past, and the defendant again threatened to kill the victim just hours before the shooting; there was no "considerable provocation" for the shooting, and a rational jury could find that the circumstances surrounding the killing showed that the defendant had an abandoned and malignant heart, thereby establishing implied malice. Mills v. State, 287 Ga. 828 , 700 S.E.2d 544 (2010).
Evidence was sufficient to support the defendant's conviction for malice murder because the defendant hit the victim with a baseball bat during the course of an argument over a drug transaction, and an incident that occurred when the defendant was a juvenile was properly admitted to show course of conduct and bent of mind. Jackson v. State, 291 Ga. 54 , 727 S.E.2d 454 (2012).
Evidence that the defendant, who lived with the victims, and another were seen arguing with the victims immediately before the fire, a witness saw the defendant walk over to an area on the side of the residence where gas cans were discovered, witnesses observed the defendant throw something followed by the eruption of flames in the front portion of the house, and a crime scene investigator and arson investigation expert both concluded an accelerant had been used to intentionally set a fire was sufficient to support convictions for malice murder. Sharpe v. State, 291 Ga. 148 , 728 S.E.2d 217 (2012).
Evidence that the child victim appeared healthy before being left alone with the defendant for several hours before the morning on which the victim was found dead and that defendant attempted to flee to Mexico was sufficient to support defendant's conviction for malice murder. Zamora v. State, 291 Ga. 512 , 731 S.E.2d 658 (2012).
Evidence was sufficient to convict the defendant of malice murder and possession of a knife during the commission of a crime because, although the defendant testified that the victim attacked the defendant without provocation and that the defendant stabbed the victim merely to end a physical assault, the evidence of the disparity between the ages and physical sizes of the defendant and the victim, the defendant's lack of injuries from the encounter, the fact that the victim was unarmed and was seated or lying down when attacked, and the obvious savagery of the stabbing as shown by the victim's multiple and severe wounds, permitted not only findings of implied malice, but belied the claim that the killing was as an act of self-defense. Mosley v. State, 300 Ga. 521 , 796 S.E.2d 684 (2017).
Evidence was sufficient to support the defendant's conviction of malice murder because the defendant admitted that the defendant was in the driver's seat of the vehicle with the tinted windows when shots were fired from the driver's side window, killing the victim, the defendant admitted that a short time later the defendant fled from police, the police found the rifle from which the defendant's fingerprints were lifted discarded in the wooded area near the vehicle, the rifle was the only weapon found in or around the vehicle that could not be excluded as the weapon that fired the fatal shot, and the defendant's fingerprints and DNA placed the defendant in the vehicle. Frazier v. State, Ga. , 845 S.E.2d 579 (2020).
Evidence of malice overwhelming. - Evidence was sufficient to support the defendant's convictions of malice murder and possession of a firearm during the commission of a felony in relation to the shooting death of a person whom the defendant allegedly suspected of killing the defendant's parent after: (1) three witnesses identified the defendant as the shooter; (2) another witness, who had heard the defendant say that the defendant was going to kill the victim to avenge the death of the defendant's parent, placed the defendant at the crime scene with a gun; (3) two other witnesses averred that the defendant told them that the defendant had killed the victim; and (4) the defendant was arrested two weeks after the murder while carrying the same kind of weapon which was used to kill the victim. Furthermore, although the trial court erroneously charged the jury that it could infer the intent to kill from the defendant's intentional use of a deadly weapon, it was highly probable that the error did not contribute to the judgment and was, therefore, harmless as the evidence of malice was overwhelming. Smith v. State, 276 Ga. 263 , 577 S.E.2d 548 (2003).
Chasing and running the victim down in truck. - In the defendant's trial for malice murder, O.C.G.A. § 16-5-1 , the evidence was sufficient for the jury to find that the defendant intended to strike the victim with the defendant's truck, which was substantially certain to cause the victim's death: eyewitnesses testified that the defendant revved the engine while the victim was in front of the truck, then chased the victim down, hit the viictim, and dragged the victim 32 feet. Bozzie v. State, 302 Ga. 704 , 808 S.E.2d 671 (2017).
2. Implied Malice
Malice is a state of mind and frequently must be proven indirectly. Davis v. State, 237 Ga. 279 , 227 S.E.2d 249 (1976); Lackey v. State, 246 Ga. 331 , 271 S.E.2d 478 (1980).
When circumstances indicate an abandoned, malignant heart, malice is implied absent showing of considerable provocation. Davis v. State, 237 Ga. 279 , 227 S.E.2d 249 (1976).
Implied malice or its equivalent must be expressly alleged in indictment for murder. Cole v. State, 68 Ga. App. 179 , 22 S.E.2d 529 (1942) (decided under former Code 1933, §§ 26-1003, 26-1004).
Willful, wanton violation of statutes designed for public safety. - If the evidence discloses that defendant willfully and wantonly violated statutes designed to insure safety of traveling public on thoroughfares of state and natural and probable result of defendant's conduct was to take human life, malice is implied, and if infractions of such statutes cause another's death, defendant may be found guilty of murder. Geter v. State, 219 Ga. 125 , 132 S.E.2d 30 (1963) (decided under former Code 1933, §§ 26-1003, 26-1004).
When deadly weapon is used in homicide. - If a deadly weapon is used in commission of a homicide, and it appears that the weapon was used in a manner in which such weapons are ordinarily used to kill, the law presumes an intention to kill, and malice will be implied. Huntsinger v. State, 200 Ga. 127 , 36 S.E.2d 92 (1945) (decided under former Code 1933, §§ 26-1003, 26-1004).
When one shoots another in sport, malice is implied from such recklessness. Collier v. State, 39 Ga. 31 , 99 Am. Dec. 449 (1869) (decided under former Code 1868, §§ 4255, 4256).
Malice is implied where one shoots into crowd. Hamilton v. State, 129 Ga. 747 , 59 S.E. 803 (1907) (decided under former Code 1895, §§ 61, 62).
Defendant engaged in gunfight with innocent bystanders. - Rational jury could have inferred that the defendant shared a common criminal intent with the co-defendant to engage in a gunfight in the presence of innocent bystanders, and even though the decedent was not an intended victim, and the co-defendant fired the fatal shot, the defendant was a party to the crime of malice murder under the doctrine of transferred intent. Blackwell v. State, 302 Ga. 820 , 809 S.E.2d 727 (2018).
Malice may be implied by blows on head with billet of wood. Bryant v. State, 157 Ga. 195 , 121 S.E. 574 (1924) (decided under former Penal Code 1910, §§ 61, 62).
When homicide is proved, and evidence shows no justification or alleviation, malice will be inferred. Anderson v. State, 196 Ga. 468 , 26 S.E.2d 755 (1943) (decided under former Code 1933, §§ 26-1003, 26-1004).
"Reckless disregard for safety of persons" cannot serve as implied malice aforethought, i.e., an abandoned and malignant heart, so as to authorize a murder conviction. Foster v. State, 239 Ga. 302 , 236 S.E.2d 644 (1977).
When criminal negligence constitutes implied malice. - Criminal negligence constitutes implied malice for purposes of malice murder only when it is capable of producing violence resulting in the destruction of human life. Parker v. State, 270 Ga. 256 , 507 S.E.2d 744 (1998), overruled on other grounds, 287 Ga. 881 , 700 S.E.2d 394 (2010).
When one intentionally kills another unlawfully, and neither mitigation nor justification appears, malice is established, whether killing was done with a weapon likely to produce death or in some other manner. Smithwick v. State, 199 Ga. 292 , 34 S.E.2d 28 (1945) (decided under former Code 1933, §§ 26-1003, 26-1004).
Attempted vehicular suicide by colliding with another vehicle. - Defendant who attempted to commit suicide by driving defendant's car head-on into another vehicle, whose occupant was killed, could be considered as having an "abandoned and malignant" heart for purposes of implying malice, despite the fact that the primary purpose of defendant's action was to kill self. Anderson v. State, 254 Ga. 470 , 330 S.E.2d 592 (1985).
Leaving victim taped to chair sufficient to establish implied malice. - Reckless disregard for human life that implied malice was established to support the malice murder conviction based on the evidence that showed that the defendant and a cohort broke into and ransacked the house and stole belongings while the victim was away and when the victim returned, the pair held the victim at gunpoint, taped the victim to a chair, and left, causing the victim's death. Burney v. State, Ga. , 845 S.E.2d 625 (2020).
3. Presumption and Burden of Proof
Law presumes intention to kill when slayer unlawfully uses a deadly weapon. Rogers v. State, 87 Ga. App. 180 , 73 S.E.2d 215 (1952) (decided under former Code 1933, §§ 26-1003, 26-1004).
Law presumes every homicide to be malicious until contrary appears from facts or circumstances showing excuse or justification. Wiggins v. State, 221 Ga. 609 , 146 S.E.2d 294 (1965) (decided under former Code 1933, §§ 26-1003, 26-1004).
State bears burden of proving malice beyond reasonable doubt. - Burden of producing some evidence of provocation is on defendant only after state shows circumstances from which malice may be implied, and ultimate burden of proving malice beyond a reasonable doubt is on state. Davis v. State, 237 Ga. 279 , 227 S.E.2d 249 (1976).
Malice is an element of the offense of murder and must be proved beyond a reasonable doubt. West v. State, 251 Ga. 458 , 306 S.E.2d 909 (1983).
Prosecution has burden to prove intent to kill beyond a reasonable doubt. Mason v. Balkcom, 487 F. Supp. 554 (M.D. Ga. 1980), rev'd on other grounds, 669 F.2d 222 (5th Cir. 1982), cert. denied, 460 U.S. 1016, 103 S. Ct. 1260 , 75 L. Ed. 2 d 487 (1983).
Defendant's duty to produce some evidence of excuse, justification, or mitigation. - While duty may be placed upon defendant to produce some evidence of excuse, justification, or mitigation before obligation devolves to prosecution to prove unlawfulness and malice beyond proving intentional homicide, prosecution bears ultimate burden of proof as to unlawfulness and malice. Holloway v. McElroy, 474 F. Supp. 1363 (M.D. Ga. 1979), aff'd, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019 , 69 L. Ed. 2 d 398 (1981), overruled on other grounds, Baker v. Montgomery, 811 F.2d 55 (11th Cir. 1987).
Unlawful acts resulting in death which justify presumption of malice. - Not all unlawful acts resulting in death of a human being justify presumption of malice; this presumption exists only when killing should happen in commission of an unlawful act which, in its consequences, naturally tends to destroy life of a human being. Smith v. State, 200 Ga. 188 , 36 S.E.2d 350 (1945) (decided under former Code 1933, §§ 26-1003, 26-1004).
Killing with weapon likely to produce death raises presumption of malice. - Presumption of malice arises where a killing is shown to have been done unlawfully by use of a weapon likely to produce death, and no circumstances of justification or mitigation appear. Smithwick v. State, 199 Ga. 292 , 34 S.E.2d 28 (1945) (decided under former Code 1933, §§ 26-1003, 26-1004).
When state's evidence shows commission of homicide by accused, by use of a deadly weapon, the law presumes murder, and it is then incumbent upon the defendant to show killing to have been otherwise. Ogletree v. State, 209 Ga. 413 , 73 S.E.2d 201 (1952) (decided under former Code 1933, §§ 26-1003, 26-1004).
Overcoming presumption of malice arising from use of deadly weapon. - Presumption of malice arising from use of deadly weapon may be overcome not only by proof of circumstances of justification, but also by proof of accident or proof of lower grade of homicide; and where evidence for state shows killing by use of a deadly weapon and defendant's sole defense is that of accident, it is error to instruct jury in effect that they would be authorized to imply malice from use of such weapon and to convict defendant unless it be shown that defendant acted under fears of a reasonable man that defendant was in danger from deceased. Ayers v. State, 214 Ga. 156 , 103 S.E.2d 574 (1958).
Deadly weapon may be used in such manner as not necessarily to raise presumption of malice, but to leave intent as question of fact for jury. Thus, to strike one with the barrel of a pistol, instead of shooting the person, or to strike with the handle of a dirk, instead of with the blade, would not be the ordinary way of using such weapon to kill, and intention to kill would be rather a question of fact than of presumption. Huntsinger v. State, 200 Ga. 127 , 36 S.E.2d 92 (1945) (decided under former Code 1933, §§ 26-1003, 26-1004).
When instrument employed is not per se a deadly weapon. Huntsinger v. State, 200 Ga. 127 , 36 S.E.2d 92 (1945) (decided under former Code 1933, §§ 26-1002, 26-1003, 26-1004).
When weapon used was not likely to produce death. - When killing is shown to have been done unlawfully and intentionally without circumstances of justification or mitigation, though with a weapon not likely to produce death, absence of malice is not necessarily presumed. Smithwick v. State, 199 Ga. 292 , 34 S.E.2d 28 (1945) (decided under former Code 1933, §§ 26-1003, 26-1004).
Motive need not be proved in order to support presumption of malice. Campbell v. State, 124 Ga. 432 , 52 S.E. 914 (1905) (decided under former Penal Code 1895, §§ 61, 62).
Secretly carrying deadly weapons does not necessarily imply malice. Alford v. State, 33 Ga. 303 , 81 Am. Dec. 209 (1862) (decided under former law).
No presumption of malice when ax-helve is used but not proved to be deadly. Henry v. State, 33 Ga. 441 (1863) (decided under former law).
Malice not presumed where board is hastily picked up and used as a weapon, and where there is no evidence to show that it had been prepared beforehand. Ray v. State, 15 Ga. 223 (1854) (decided under former law).
Killing by using deadly weapon in manner likely to produce death, raises presumption of intention to kill. Davis v. State, 233 Ga. 638 , 212 S.E.2d 814 (1975).
Presumption of intention to kill arises from use of weapon that, in usual and natural manner in which it was used on occasion in question, is a weapon likely to produce death. Ayers v. State, 214 Ga. 156 , 103 S.E.2d 574 (1958) (decided under former Code 1933, §§ 26-1002, 26-1003, 26-1004).
Usual and natural method of using weapon. - If a deadly weapon is used in commission of homicide in the usual and natural manner in which such weapon would produce the result, presumption of intention to kill arises. Hanvey v. State, 68 Ga. 612 (1882) (decided under former Code 1873, §§ 4321, 4322); Delk v. State, 135 Ga. 312 , 69 S.E. 541 , 1912A Ann. Cas. 105 (1910) (decided under former Penal Code 1895, §§ 61, 62).
Presumption of intention to kill from use of pistol to kill another. - When a deadly weapon (pistol) was used to accomplish the killing, and the weapon was used in the usual and natural manner in which such a weapon would produce that result, a presumption of an intention to kill would arise. Hilburn v. State, 57 Ga. App. 854 , 197 S.E. 73 (1938) (decided under former Code 1933, §§ 26-1003, 26-1004).
Intent to kill is presumed by stabbing in back with pocketknife. Johnson v. State, 4 Ga. App. 59 , 60 S.E. 813 (1908) (decided under former Penal Code 1895, §§ 61, 62); Lott v. State, 18 Ga. App. 747 , 90 S.E. 727 (1916) (decided under former Penal Code 1910, §§ 61, 62).
Mandatory rebuttable presumption concerning the issue of intent is impermissible under the due process clause, but any error is harmless where the overwhelming and unrebutted evidence negates any possibility that defendant acted impulsively or otherwise unintentionally. Potts v. Kemp, 814 F.2d 1512 (11th Cir. 1987), cert. denied, 493 U.S. 876, 110 S. Ct. 214 , 107 L. Ed. 2 d 166 (1989).
If a homicide is proved and evidence adduced to establish homicide shows neither mitigation nor justification, malice will be presumed. Boyd v. State, 136 Ga. 340 , 71 S.E. 416 (1911) (decided under former Penal Code 1910, §§ 61, 62).
Evidence of alleviation or justification may overcome malice presumption. Boyd v. State, 136 Ga. 340 , 71 S.E. 416 (1911) (decided under former Penal Code 1910, §§ 61, 62).
Malice will not be presumed where proof of homicide is derived solely from admission of defendant which itself presents an exculpatory explanation of justification, excuse, or mitigation. Elder v. State, 212 Ga. 705 , 95 S.E.2d 373 (1956) (decided under former Code 1933, §§ 26-1003, 26-1004).
Malice is not presumed where proof of homicide is derived through admission of defendant which itself presents matters of exculpation. Wall v. State, 5 Ga. App. 305 , 63 S.E. 27 (1908) (decided under former Penal Code 1895, §§ 61, 62).
Defenses
Defendant could not argue justification as a defense since the defendant denied firing the weapon into the crowd; thus, the defendant did not meet the elements of justification whereby the defendant admitted acting with the intent to inflict an injury, but claimed doing so while in reasonable fear of suffering immediate serious harm. Broussard v. State, 276 Ga. 216 , 576 S.E.2d 883 (2003).
Trial court did not err by failing to charge the jury on the defense of justification under O.C.G.A. § 16-3-21(a) because the requested charge, which contrasted justification, voluntary manslaughter, and murder, was an inaccurate statement of the law; the definition of "justifiable homicide" contained in the defendant's request was inconsistent with and had been superseded by the current statutory scheme for the affirmative offense of justification; the existence of "reasonable fears" is irrelevant to the consideration of voluntary manslaughter. Reese v. State, 289 Ga. 446 , 711 S.E.2d 717 (2011), overruled on other grounds by State v. Lane, 308 Ga. 10 , 838 S.E.2d 808 (2020).
Defense of accident. - Trial court was not required, sua sponte, to instruct the jury that the state had the burden to disprove a defense of accident beyond a reasonable doubt, and the trial court's instructions in defendant's trial on charges of felony murder and cruelty to children in the first degree were adequate in the absence of a request for an additional charge; however, the state supreme court remanded the case so the trial court could hold a hearing on defendant's claim that defendant was denied effective assistance of trial counsel. Shadron v. State, 275 Ga. 767 , 573 S.E.2d 73 (2002).
Defense of self-defense. - Felony murder and aggravated assault convictions were upheld on appeal as the defendant's defense of self-defense lacked merit given evidence that any imminent threat posed against the defendant had passed, the victim was shot in the head after a confrontation had ended, and the victim had retreated to the victim's car and was being driven away at the time the fatal shot was dealt. Woolfolk v. State, 282 Ga. 139 , 644 S.E.2d 828 (2007).
In a malice murder prosecution, the defendant's testimony that an unarmed person approached the defendant aggressively with the person's hands up did not establish that the defendant had a reasonable belief that stabbing the person in a manner likely to, and which did, cause death was necessary to prevent the defendant's own death or great bodily injury. Thus, the defendant was not entitled to a justification instruction under O.C.G.A. § 16-3-21(a) . Boyd v. State, 284 Ga. 46 , 663 S.E.2d 218 (2008).
Defendant was properly convicted of malice murder, armed robbery, and possession of a firearm during the commission of a felony because although a witness testified that the defendant told the witness that the victim was about to pull a weapon, the evidence was more than sufficient to enable a rational trier of fact to find that the defendant did not act in self-defense when the defendant shot the victim and that the defendant was guilty beyond a reasonable doubt of the crimes for which the defendant was convicted. White v. State, 287 Ga. 208 , 695 S.E.2d 222 (2010).
Effect of malice in self-defense murders. - One may kill another against whom one entertains malice, and yet not be guilty of murder. One may harbor the most intense hatred toward another; one may court an opportunity to take one's life; and yet, if, to save one's own life, the facts showed that one was fully justified in slaying one's adversary, one's malice shall not be taken into account. Shafer v. State, 193 Ga. 748 , 20 S.E.2d 34 (1942) (decided under former Code 1933, §§ 26-1003, 26-1004).
Defenses of self-defense and accident are inconsistent. - See Wilkerson v. State, 183 Ga. App. 26 , 357 S.E.2d 814 , cert. denied, 183 Ga. App. 907 , 357 S.E.2d 814 (1987).
Accident not a defense to felony murder. - Trial court did not err in charging the jury that, while accident can be a defense to the underlying felony of aggravated assault, it cannot be a defense to a felony murder predicated upon the underlying felony of aggravated assault. Tessmer v. State, 273 Ga. 220 , 539 S.E.2d 816 (2000).
No reasonable probability existed that the outcome of the defendant's murder trial would have been different even if trial counsel presented an expert's testimony as to the defendant's borderline intellectual functioning and organic brain damage in the guilt/innocence phase of the original trial because the defendant's own testimony acknowledged that the defendant shot the vehicle occupant purposefully, as opposed to accidentally, in attempting to obtain a vehicle to escape, and even if the defendant had been convicted of only malice murder, instead of felony murder, the defendant would have still remained eligible for the death penalty. Humphrey v. Nance, 293 Ga. 189 , 744 S.E.2d 706 (2013).
Inneffective assistance of counsel in preparing defense. - Habeas court correctly concluded that trial counsel rendered deficient performance by failing to investigate the factual defense to a crime and failing to obtain available testimony confirming that defense and their client's own statements to them. Furthermore, counsel's decision to end the investigation into an individual's involvement when they did was neither consistent with professional standards nor reasonable in light of the evidence obtained by habeas counsel, evidence that would have caused reasonably competent counsel to investigate further and therefore defendant was granted a new trial. Terry v. Jenkins, 280 Ga. 341 , 627 S.E.2d 7 (2006).
Self-defense claim to murder rejected. - Evidence that a homicide victim was found in a truck with a cup of coffee between the victim's legs and a pack of cigarettes balanced on the victim's thigh; that the defendant approached the truck armed with a gun and did not see a weapon in the victim's possession; that the defendant claimed the victim was about to drag the defendant down the street with the vehicle; and that, after fatally shooting the victim, the defendant fled and did not report the events, was sufficient for the jury to find beyond a reasonable doubt that the defendant was not reasonably acting in self-defense. Bell v. State, 280 Ga. 562 , 629 S.E.2d 213 (2006).
Accidental discharge of gun defense rejected. - Evidence supported a defendant's conviction for malice murder as the defendant went to the victim's home and shot the victim in the head; the defendant admitted the defendant had the gun in the defendant's hand when the defendant approached the victim, but claimed that the gun accidentally discharged when the defendant put the defendant's hands up to deflect a tray thrown at the defendant by the victim. Mayberry v. State, 281 Ga. 144 , 635 S.E.2d 736 (2006).
Alibi defense rejected. - Evidence presented at trial was sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of murder, felony murder, armed robbery, and aggravated assault because it was for the jury to determine the credibility of the witnesses, and the jury was authorized to disbelieve the alibi defense the defendant proffered. Newsome v. State, 288 Ga. 647 , 706 S.E.2d 436 (2011).
Evidence of Malice
Reckless disregard of human life. - To demonstrate malice murder, evidence that the defendant acted in reckless disregard of human life is as equally probative as evidence that defendant acted with a specific intent to kill. Parker v. State, 270 Ga. 256 , 507 S.E.2d 744 (1998), overruled on other grounds, 287 Ga. 881 , 700 S.E.2d 394 (2010).
Defendant's actions demonstrated malice. - Based on defendant's behavior before the shooting, the obscene comment defendant made about the victim, and defendant's actions afterwards, defendant possessed the requisite malice, pursuant to O.C.G.A. § 16-5-1(a) , when defendant shot and killed the victim. Sapp v. State, 273 Ga. 472 , 543 S.E.2d 27 (2001).
Evidence was sufficient to support the defendant's conviction for malice murder where the defendant entered into an altercation with the victim, removed a pistol from behind the defendant's back and struck the victim with it resulting in a struggle over the pistol and it discharging, grazing the defendant's neck; the defendant gained control of the pistol and the victim went behind a nearby parked car where a bystander told the defendant that the defendant should not shoot the victim. The defendant stated that the victim shot the defendant with the defendant's own gun and the defendant approached the parked car and stated to the victim that the victim would die that day thereafter the defendant shot the victim several times, fatally hitting the victim once in the chest. Barner v. State, 276 Ga. 292 , 578 S.E.2d 121 (2003).
There was sufficient evidence to support the jury's verdict that the defendant was guilty beyond a reasonable doubt of aggravated assault in violation of O.C.G.A. § 16-5-21 and of malice murder in violation of O.C.G.A. § 16-5-1 , because the defendant saw the victim trying to break up a fight between the victim's sibling and another person, the defendant became angry and followed the victim and the victim's sibling after the fight broke up, the defendant then swore at them and shot at them, and the defendant's claim of self-defense was not found to be credible. Harris v. State, 278 Ga. 596 , 604 S.E.2d 788 (2004).
Evidence supported the defendant's conviction of malice murder because the defendant pointed a loaded revolver at the victim and pulled its trigger twice, while driving, fatally wounding the victim, the defendant did not call 9-1-1 from the defendant's cell phone and drove past a hospital, and the revolver had a hammer block, preventing it from firing unless pressure was applied to the trigger. Reed v. State, 279 Ga. 81 , 610 S.E.2d 35 (2005).
Evidence introduced at trial was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of malice murder because, while the defendant and the victim were talking in the parking lot of a store during the early morning hours, the defendant shot the victim in the face and took the victim's wallet. Roop v. State, 279 Ga. 183 , 611 S.E.2d 34 (2005).
Evidence of malice was sufficient for a conviction because the defendant was armed before going to the victim's home, shot the victim twice from a distance of five feet and, after some delay, the defendant shot a third time, into the victim's mouth and the victim was unarmed; the defendant told a police investigator that the victim got in the defendant's face so the defendant shot the victim. Cooper v. State, 279 Ga. 189 , 612 S.E.2d 256 (2005).
Evidence was sufficient to support the defendant's convictions for malice murder and possession of a firearm during the commission of a felony, as the circumstantial evidence showed the defendant shot the victim three times, that the defendant did so in retaliation for the victim allegedly arranging to rob the codefendants of certain property they planned to sell to buy drugs, that the defendant did not report the shooting but, instead, fled the scene, and stated "just shot that damn boy," but did not claim to have shot the victim accidentally. Glenn v. State, 279 Ga. 277 , 612 S.E.2d 478 (2005).
There was sufficient evidence to convict the defendant of malice murder under O.C.G.A. § 16-5-1 based upon the defendant's actions of instigating the gang attack on the victim and participating in the attack with a gun even though the defendant did not actually shoot the victim; that the defendant was criminally responsible under O.C.G.A. § 16-2-20 . Ros v. State, 279 Ga. 604 , 619 S.E.2d 644 (2005).
There was sufficient evidence to uphold a defendant's convictions for malice murder, aggravated assault, and possession of a firearm during the commission of a crime in connection with the fatal shootings of two men, and the wounding of four other men, as the jury was authorized to accept an accomplice's version of events, including that robbery was the initial motive and that the defendant fired the shots that killed and wounded the victims. The fact that conflicts in the evidence were resolved adversely to the defendant did not render the evidence insufficient and there was ample evidence that the defendant acted with implied malice, therefore, there was no error in determining that the killings were malice murders rather than felony murders. Jackson v. State, 282 Ga. 668 , 653 S.E.2d 28 (2007).
Legally sufficient evidence was presented to convict a defendant of malice murder as testimony was presented that the defendant contacted an individual to get rid of the defendant's spouse due to a contentious divorce and the individual made arrangements and brought a friend to the spouse's home where the friend posed as a flower delivery person and shot the spouse when the door was opened; the murder occurred on the day of the final divorce hearing. Sullivan v. State, 284 Ga. 358 , 667 S.E.2d 32 (2008).
Evidence that the defendant went to the victim's home with a gun, intending to rob the victim, and that after fatally shooting the victim, the defendant continued with the defendant's plan to steal the victim's money, and later attempted to destroy evidence of the crimes, was sufficient to establish the malice required to convict the defendant of malice murder. Stahl v. State, 284 Ga. 316 , 669 S.E.2d 655 (2008).
Defendant's conviction of malice murder was proper. Based on videotape evidence showing that the defendant followed the victim out of a store, jumped on the victim from behind, and stabbed the victim multiple times, the jury was authorized to determine that the defendant acted with malice aforethought. Brown v. State, 284 Ga. 838 , 672 S.E.2d 651 (2009).
Trial court properly denied the defendant's motion for a directed verdict of acquittal in a trial for malice murder, O.C.G.A. § 16-5-1(b) , because there was evidence that the victim did not provoke the defendant's attack and that the defendant acted with an abandoned and malignant heart by repeated acts of violence, including the use of a choke hold and the defendant's refusal to remove the defendant's body from the chest of the comatose victim. Hicks v. State, 285 Ga. 386 , 677 S.E.2d 111 (2009).
Sufficient evidence of malice aforethought was presented in support of the malice murder conviction, including the manner in which the victim was assaulted prior to death, which caused blunt force impact injuries and the fact that the victim was bound and gagged so tightly that the base of the victim's tongue was damaged. Dupree v. State, 303 Ga. 885 , 815 S.E.2d 899 (2018).
Defendant alone with victim. - Evidence that the wounds a murder victim received in each side of the head were each sufficient to instantaneously debilitate the victim and render any voluntary movement on the victim's part impossible, along with the defendant's admission that the defendant was alone with the victim at the time of the victim's death, were sufficient to allow a jury to find the defendant committed malice murder and to allow the jury to reject the defendant's claim that the victim was responsible for the victim's own death. Brewer v. State, 280 Ga. 18 , 622 S.E.2d 348 (2005).
Crime participant's testimony relevant. - During the appellant's trial for felony murder, aggravated assault, and possession of a firearm during the commission of a felony, it was not error to admit the testimony of a witness related to the witness's personal observations as a participant and witness to the crimes as the testimony clearly was damaging to the appellant's defense, it was relevant to establish the appellant's guilt and the circumstances surrounding the charged crimes, and did not improperly place the appellant's character in issue. Williams v. State, 298 Ga. 538 , 783 S.E.2d 594 (2016).
Contradictory testimony did not prohibit murder conviction. - When defendant argued that the evidence was insufficient to sustain defendant's conviction for felony murder of a person, O.C.G.A. § 16-5-1 , while in the commission of an aggravated assault, aggravated assault on another person, and two counts of possession of a firearm during the commission of a felony because codefendants who testified against the defendant gave contradictory testimony, the appellate court noted that the inconsistent testimony was put before the jury along with defendant's admission that the defendant was the driver, as well as other physical and circumstantial evidence of defendant's involvement in the shooting. Thus, the convictions were affirmed. Escutia v. State, 277 Ga. 400 , 589 S.E.2d 66 (2003).
Despite the defendant's contention that a voluntary manslaughter verdict should have been returned, given that the victim invited a violent confrontation, eyewitness testimony which established that the defendant was driving recklessly before confronting the victim with a knife, which led to the fatal stabbing, supported a malice murder conviction. Lonergan v. State, 281 Ga. 637 , 641 S.E.2d 792 (2007).
Evidence sufficient to support conviction. - Evidence that defendant and another person hijacked the victim, put the victim in the trunk of the car, the other person later shot the victim, both subsequently dumped the body and returned the car, was sufficient to support defendant's conviction of malice murder and possession of a weapon during a felony. Washington v. State, 276 Ga. 655 , 581 S.E.2d 518 (2003).
Evidence that right after the defendant lost money gambling, the defendant and two other persons agreed to go rob a store, that the defendant was armed for that purpose, that the defendant and the other persons then drove to the store, that the defendant entered the store to help facilitate the robbery, and that the defendant looked on as one of the other persons demanded money from the clerk and then shot the clerk was sufficient to support the defendant's conviction for malice murder. Collins v. State, 276 Ga. 726 , 583 S.E.2d 26 (2003).
Evidence was sufficient to convict the defendant of malice murder when the defendant drove the defendant's sibling to a rendezvous with the victim, then drove while the sibling shot the victim to death in the defendant's car; thus, the defendant's life sentence was affirmed. Brown v. State, 277 Ga. 623 , 593 S.E.2d 343 (2004).
Evidence that the defendant had previously had difficulties in the defendant's relationship with the murder victim, that the defendant had previously fired a gun into the bedroom where the murder victim and the victim's love interest were sleeping, that the defendant might have killed the victim if the victim woke the defendant and the defendant was mad, that the murder victim's body was found in the woods and the defendant stated that the defendant had been in the woods because the defendant's car broke down, and that the victim died of ligature strangulation, was sufficient to support the defendant's conviction for malice murder. Moody v. State, 277 Ga. 676 , 594 S.E.2d 350 (2004).
Because the defendant fatally stabbed the defendant's estranged spouse's love interest, stabbed the spouse in the head, and then bragged about those actions, the evidence was sufficient to convict the defendant of malice murder and aggravated assault. Henry v. State, 279 Ga. 615 , 619 S.E.2d 609 (2005).
Evidence that the defendant took money from the one victim, beat the victim while doing so, that the defendant was armed at the time, that the defendant had the victim removed from the defendant's house by the codefendants so that the one victim could be murdered elsewhere, and that the second victim was removed from the defendants house by another codefendant, all after the one victim and the second victim were suspected of plotting to rob the defendant, who was selling illegal drugs from the defendant's home, was sufficient to support the defendant's convictions for malice murder, kidnapping, armed robbery, and being in possession of a firearm during the commission of a felony. Mason v. State, 279 Ga. 636 , 619 S.E.2d 621 (2005).
Evidence was sufficient to support the defendant's conviction for malice murder as the evidence showed that the defendant was with the victim shortly before the victim's body was found, that the defendant admitted stabbing the victim multiple times, and that police recovered evidence consistent with the defendant having stabbed the victim between 45 and 57 times after the defendant and the victim smoked crack cocaine together. Cunningham v. State, 279 Ga. 694 , 620 S.E.2d 374 (2005).
Sufficient evidence supported the defendant's conviction for malice murder because: (1) two eyewitnesses who were the defendant's acquaintances saw the defendant commit the crime; (2) the defendant's fingerprints were found on the murder weapon, from which bullets and shell casings recovered from the crime scene and the victim's body were fired; (3) when the defendant was arrested the defendant was wearing the type of athletic shoes a witness testified the defendant was wearing on the night of the shooting; and (4) the defendant's love interest testified that the defendant sometimes drove a small red car similar to the one a witness testified the defendant drove on the night of the crimes. Washington v. State, 279 Ga. 722 , 620 S.E.2d 809 (2005).
Because the defendant asked the victim, a rival gang member, whether the victim had "put a hit" on the defendant, and the victim indicated that the victim had not done so, but did know who did it, whereupon the defendant turned and fatally stabbed the victim, the evidence supported the defendant's conviction of malice murder, in violation of O.C.G.A. § 16-5-1 , as well as a conviction for possession of a knife during the commission of a crime. Garrett v. State, 280 Ga. 30 , 622 S.E.2d 323 (2005).
Evidence was sufficient to support the defendant's convictions of burglary, armed robbery, and malice murder, in violation of O.C.G.A. §§ 16-5-1 , 16-7-1(a) , and 16-8-41 , respectively, because the defendant and a friend decided to rob the victim and they entered the victim's apartment unlawfully with that intent, stabbed and bludgeoned the victim, and took a lock-box and left. Redwine v. State, 280 Ga. 58 , 623 S.E.2d 485 (2005).
There was sufficient evidence to find the defendant guilty of malice murder, burglary, and possession of a gun during the commission of a crime because a witness testified that the witness, the defendant, and the defendant's sibling drove around looking for a home to burglarize and that while in a house, the two victims came home unexpectedly and were killed; also, DNA found at the crime scene matched the defendant. Denny v. State, 280 Ga. 81 , 623 S.E.2d 483 (2005).
Evidence was sufficient to authorize a rational trier of fact to find the defendant guilty of malice murder beyond a reasonable doubt because a witnesses testified that, after fighting over a debt, the defendant chased the victim on foot and then in a car, fatally shot the victim in the head, and then fled. Jones v. State, 280 Ga. 205 , 625 S.E.2d 1 (2005).
Evidence was sufficient to support convictions of malice murder after the elderly victim was stabbed to death, although the victim usually kept large sums of money at the victim's home in a bank envelope, and should have had about $800 in cash, no money was found after the victim's death, the defendant was seen at the victim's home the day before the victim's body was found, the defendant was seen with about $800, the defendant gave several people money for various reasons and said that the money was from a bank envelope from a person the defendant did work for, and when the defendant told police that the defendant worked for the victim on the day of the victim's death, and that the victim paid the defendant $20, but denied that the defendant harmed the victim. Patterson v. State, 280 Ga. 132 , 625 S.E.2d 395 (2006).
Malice murder and attempted arson convictions were upheld as: (1) the evidence presented showed that an attempted arson was inextricably linked to the victim's murder, and the jury was authorized to find beyond a reasonable doubt that the defendant was guilty; (2) the admission of two handwritten documents that the defendant had penned was proper as their prejudicial impact did not outweigh their probative value; and (3) the trial court did not abuse the court's discretion in determining that any prejudicial impact of a religious prayer asking for strength, and an expression of uncertainty as to what "makes me tick," did not outweigh the probative value of the evidence. Fortson v. State, 280 Ga. 376 , 628 S.E.2d 104 (2006).
Defendant's conviction of malice murder was supported by sufficient evidence that, during a fight with the defendant, the victim threw a gun out of a car window and that the defendant retrieved the gun and shot the victim; later, when interrogated by the police, the defendant gave a statement and led police to the murder weapon; the element of malice was not negated simply because the defendant and the victim were fighting when the fatal shots were fired. Moore v. State, 280 Ga. 766 , 632 S.E.2d 632 (2006).
Because each of the three defendants made statements implicating themselves in the crimes of malice murder in violation of O.C.G.A. § 16-5-1 and armed robbery in violation of O.C.G.A. § 16-8-41(a) and because money and electronic equipment were stolen from the home, there was sufficient evidence to convict the defendants of the crimes. Brooks v. State, 281 Ga. 14 , 635 S.E.2d 723 (2006), cert. denied, 549 U.S. 1215, 127 S. Ct. 1266 , 167 L. Ed. 2 d 91 (2007).
Evidence was sufficient to convict the defendant of malice murder under O.C.G.A. § 16-5-1 and of possession of a knife in the commission of a felony in violation of O.C.G.A. § 16-11-106 ; the defendant called 9-1-1 to report the defendant's killing of the victim, who had earlier broken up with the defendant, and the victim was found with fatal stab wounds and a five-inch knife blade embedded in the victim's neck. Perez v. State, 281 Ga. 175 , 637 S.E.2d 30 (2006).
Evidence was sufficient to convict the defendant of malice murder under O.C.G.A. § 16-5-1 and armed robbery under O.C.G.A. § 16-8-41 despite the defendant's alibi; the jury was permitted to reject the alibi testimony, and the jury could have found that the circumstantial evidence, which included the defendant's fingerprints and footprints at the scene and a car that defendant was known to drive, was sufficient to exclude every reasonable hypothesis save that of the defendant's guilt. Daniels v. State, 281 Ga. 226 , 637 S.E.2d 403 (2006).
Evidence was sufficient to support a defendant's conviction for felony murder after the defendant's romantic friend testified to being present in the victim's motel room when the defendant shot the victim. White v. State, 283 Ga. 566 , 662 S.E.2d 131 (2008).
Sufficient evidence supported the defendant's malice murder conviction. The jury was free to reject the defendant's claim that one of the victims fired the first shot, and evidence of a struggle between the defendant and one victim over control of a handgun did not require that there be a finding of voluntary manslaughter. As for intent, malice murder could be shown by evidence that the defendant acted where no considerable provocation appeared and where all the circumstances of the killing showed an abandoned and malignant heart. Allen v. State, 284 Ga. 310 , 667 S.E.2d 54 (2008).
Since the evidence established the defendant shot three men and took money from one of them, and two of the men survived and identified the defendant as the shooter, the evidence was sufficient to convict the defendant of malice murder. Abdullah v. State, 284 Ga. 399 , 667 S.E.2d 584 (2008).
Sufficient evidence was presented to convict a defendant of malice murder because, although the defendant gave conflicting statements to the police, the defendant admitted shooting the victim, but in self defense, and eyewitness testimony indicated that an individual handed a gun to the defendant, who ran up to the victim, accused the victim of robbery, and fatally shot the victim in the head. Hill v. State, 284 Ga. 521 , 668 S.E.2d 673 (2008).
Evidence was sufficient to support a defendant's conviction for malice murder and possession of a firearm during the commission of a crime when: (1) a person fitting the defendant's description was seen talking to a person in a car at the victim's home; (2) a neighbor found the victim sitting behind the wheel of the car with gunshot wounds to the head; (3) the victim told several witnesses that the defendant was the shooter and described the vehicle the defendant had been driving; and (4) paint found on the bumper of the defendant's vehicle was consistent with the paint on the victim's car. Thomas v. State, 284 Ga. 540 , 668 S.E.2d 711 (2008).
Defendant's conviction for malice murder was supported by legally sufficient evidence because while the defendant claimed that the fatal gunshot could not have come from the defendant's gun as there was no stippling on the victim's body or clothes and, thus, the fatal shot had to be fired from more than three feet away, the precise location of the shooter based on the resting place of a casing could not be determined as the casings from the gun used by the defendant typically flew six to ten feet rearward and to the right when the gun was fired. Baker v. State, 284 Ga. 537 , 668 S.E.2d 716 (2008).
Convictions against the defendant for malice murder, burglary, armed robbery, and aggravated assault were supported by evidence that the defendant entered the victim's home, hit the victim multiple times about the head and face with a tree limb with a metal piece on it, and wrote a check in defendant's name from the victim's checkbook; evidence included witness testimony from the bank where defendant cashed the check, defendant's confession to police, and physical evidence. Bell v. State, 284 Ga. 790 , 671 S.E.2d 815 (2009).
Convictions against the defendant for malice murder and possession of a firearm during the commission of a crime were supported by evidence that the defendant shot a victim in the back of the head during a drug sale because the victim allegedly set up the defendant's brother; at trial, there was testimony from witnesses to various parts of the incident as well as physical evidence that connected the defendant to the crime. Sheppard v. State, 284 Ga. 775 , 671 S.E.2d 830 (2009).
Evidence was sufficient to enable the jury to find the defendant guilty of malice murder beyond a reasonable doubt as several witnesses saw the victim leave with the defendant in the defendant's car, and evidence showed that shortly after the murder the defendant repainted the car, and, shortly after the victim's remains were discovered, sold the car. Manley v. State, 284 Ga. 840 , 672 S.E.2d 654 (2009).
Sufficient evidence was presented to convict a defendant of malice murder and cruelty to children under O.C.G.A. § 16-5-70(b) because the defendant testified that the defendant shook the five-year-old victim after the victim spit up dinner and in so doing, struck the victim's head against the railing of a bunk bed; the victim died a few days later of massive head trauma and intracranial bleeding. Wright v. State, 285 Ga. 57 , 673 S.E.2d 249 (2009).
Evidence was sufficient to support defendant's conviction of murder, O.C.G.A. § 16-5-1 , under circumstances in which, among other things, the record was replete with evidence that the defendant, not another buyer, arranged a drug sale with the victim, that the defendant knew the other buyer was armed when the drug sale occurred, that the defendant argued with the victim over the price for the drugs, precipitating the shooting, that the defendant fled the scene and destroyed evidence, and that the defendant threatened a witness; the defendant testified that, during the drug transaction, the victim turned with a gun in the victim's hand and the other buyer shot the victim. Duggan v. State, 285 Ga. 363 , 677 S.E.2d 92 (2009).
Evidence authorized the jury to conclude that the defendant was guilty beyond a reasonable doubt of malice murder, armed robbery, and aggravated assault because defendant and defendant's codefendants entered an apartment masked and armed with an assault rifle, and the defendant fired the rifle at the victim and fatally wounded the victim. Zackery v. State, 286 Ga. 399 , 688 S.E.2d 354 (2010).
Because defendant admitted to being in the back seat of the victims' car and that defendant sold the victims' drugs, and because bullets recovered from the bodies matched the pistol and ammunition found in a box in defendant's house, the evidence was sufficient to find defendant guilty of malice murder and possession of a firearm during the commission of a felony. Barnes v. State, 287 Ga. 423 , 696 S.E.2d 629 (2010).
Evidence was sufficient to support defendant's conviction for malice murder since there was testimony that the victim was going to require the defendant to move out of the victim's house because of the defendant's bizarre behavior brought about by drug use, and since the evidence was sufficient to authorize the jury to conclude that the defendant did not act in self-defense. White v. State, 287 Ga. 713 , 699 S.E.2d 291 (2010).
Evidence was sufficient to authorize a rational trier of fact to find the defendants guilty beyond a reasonable doubt of malice murder and aggravated assault because the independent corroborating evidence in the case was substantial; an accomplice's testimony implicating the defendants was corroborated by the aggravated assault victim, who positively identified one of the defendants, that the defendant's own admission to a woman in the defendant's apartment, evidence that the second defendant had sustained shotgun wounds on the evening of the crimes, ballistics evidence tying that defendant to the crime scene, and the presence of that defendant's blood on the first defendant's clothing and in the getaway vehicle. Ward v. State, 288 Ga. 641 , 706 S.E.2d 430 (2011).
Evidence was sufficient under former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6 ) to support the defendant's convictions for malice murder, felony murder, aggravated assault, possession of a knife during the commission of a crime, financial transaction card fraud, and recidivism because there was evidence placing the defendant at the victim's home during the time of the murder and evidence of the victim's blood on the defendant's shoes, which the defendant intentionally chose not to wear when being questioned by police; the evidence, together with the defendant's own statements regarding the defendant's use of the victim's debit card, was sufficient to authorize the jury to determine that the state excluded all reasonable hypotheses save that of the defendant's guilt and to find the defendant guilty beyond a reasonable doubt of the crimes of which the defendant was convicted. Johnson v. State, 288 Ga. 771 , 707 S.E.2d 92 (2011).
Evidence was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of felony murder and possession of a firearm during the commission of a felony because the defendant and a codefendant began shooting across a street at someone, who returned fire, and the victim was an innocent 16-year-old bystander who was killed during the shootout. Norris v. State, 289 Ga. 154 , 709 S.E.2d 792 (2011).
Evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt of malice murder, felony murder based on aggravated assault, possession of a firearm during the commission of a crime, and use of a firearm by a convicted felon because the defendant admitted to purposefully putting a gun to the fearful victim's head and pulling the trigger. Jones v. State, 289 Ga. 145 , 710 S.E.2d 127 (2011).
Evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt of felony murder because numerous eyewitnesses saw the defendant fire a gun into a crowd striking the victim, shout expletives, and assert that the defendant was a killer; that the state did not produce certain evidence did not mean that the evidence presented was insufficient to allow a jury to find the defendant guilty of murder. Glass v. State, 289 Ga. 542 , 712 S.E.2d 851 (2011).
Possession of a stolen automobile was sufficient to support a felony murder conviction because the defendant's possession of the stolen car played a role in the defendant's decision to flee the police; the defendant could have believed that the defendant could escape in the stolen car, where the defendant could not have escaped on foot, and the decision to remain in the stolen car in order to flee created a foreseeable risk of death. Johnson v. State, 289 Ga. 650 , 715 S.E.2d 99 (2011).
Evidence was sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of malice murder, felony murder while in the commission of armed robbery, armed robbery, and conspiracy to violate the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., through a violation of O.C.G.A. § 16-13-30(j)(1), because: (1) the defendant and another buyer met with the victim and another seller where the defendant and the other buyer inspected marijuana which the victim and the other seller had for sale; (2) after some discussion about price, the victim told the defendant what the price was and that the defendant could take it or leave it; (3) the defendant said that the defendant would take it, pulled a gun from the defendant's waistband, and fatally shot the victim; and (4) there was conflicting testimony as to whether the defendant took the marijuana and ran away with the marijuana after shooting the victim. Darville v. State, 289 Ga. 698 , 715 S.E.2d 110 (2011).
Defendant's convictions for armed robbery, aggravated assault, and malice murder were based on sufficient evidence where a victim in an apartment next to the defendant's was fatally stabbed multiple times, there was physical evidence that tied the defendant to the criminal incident, and the defendant confessed to committing the crimes. Culpepper v. State, 289 Ga. 736 , 715 S.E.2d 155 (2011).
Evidence that the defendant began the conflict, punching the victim shortly before the codefendant began to attack the victim, the defendant stood by and watched as the codefendant mercilessly continued the assault and encouraged the codefendant to "beat the victim's ass," and the defendant drove the codefendant away from the scene was sufficient for the jury to find the defendant guilty beyond a reasonable doubt of murder. Simmons v. State, 289 Ga. 773 , 716 S.E.2d 165 (2011).
Defendant's convictions of malice murder, armed robbery, and other crimes were not based on the uncorroborated testimony of an accomplice in violation of former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8 ) as: 1) a victim testified that intruders took a wallet that police later found in the defendant's home; and 2) cell phone tower records established that the defendant and the accomplice were exchanging phone calls during the times when the crimes were committed and within the vicinity of the crime sites. Jackson v. State, 289 Ga. 798 , 716 S.E.2d 188 (2011).
Because the defendant pointed a gun at the victim while defendant's accomplices robbed the victim, and thereafter shot at the victim's trailer, hitting a child and killing the victim's sister-in-law, the evidence was sufficient to find the defendant guilty of felony murder, aggravated assault, armed robbery, cruelty to children, possession of a gun during the commission of a crime, and possession of a revolver by a person under the age of 18. Lytle v. State, 290 Ga. 177 , 718 S.E.2d 296 (2011).
Evidence was sufficient to support the defendant's convictions for felony murder, aggravated assault, possession of a firearm during the commission of a crime, and participation in criminal street gang activity. The defendant and fellow gang members walked toward a group of teenagers in a front yard while yelling and making gang signals; the defendant fired once into the crowd, killing the victim, who was unarmed; and the defendant, who fled the scene, was the only person who fired a weapon and was identified to police as the shooter by witnesses who knew the defendant by name. Jackson v. State, 291 Ga. 25 , 727 S.E.2d 120 (2012).
Evidence was sufficient to enable a rational trier of fact to find the defendant guilty of malice murder, conspiracy to commit armed robbery, and possession of a firearm during the commission of a crime because the defendant's claim that, pursuant to O.C.G.A. § 16-4-9 , the defendant renounced and abandoned the conspiracy and that a co-conspirator fatally shot the victims was contradicted by the physical evidence at trial; shell casings from two guns were found at the murder scene and in positions indicating that there were two weapons fired by different individuals. Bailey v. State, 291 Ga. 144 , 728 S.E.2d 214 (2012).
Malice murder conviction was supported by evidence that, inter alia, multiple witnesses saw an individual matching the defendant's description in an argument prior to hearing multiple gunshots, the defendant admitted to a friend that the defendant shot the victim, phone records showed the defendant and the victim were communicating prior to the shooting and the defendant was in the vicinity of the hotel during that time, and the defendant was acting as a middle man for the victim's drug deal gone bad. Brown v. State, 291 Ga. 892 , 734 S.E.2d 23 (2012).
Evidence was sufficient to convict the defendant of malice murder as the defendant admitted to firing two shots from the passenger's side of the car while leaning over the roof; a bullet hit the first victim in the neck, severing the first victim's spine and spinal cord; the first victim died several days later after being removed from life support; the first victim died as a result of the injuries inflicted by defendant as the first victim's injuries were such that the first victim could not live once life support systems were removed; and the defendant did not act in self defense. Browder v. State, 294 Ga. 188 , 751 S.E.2d 354 (2013).
Evidence was sufficient to find the defendant guilty of malice murder because the defendant and the victim had a domestic dispute over the money that the defendant had borrowed from the victim; two days later, human body parts that were later identified as the victim's were found scattered around a secluded, wooded area near a house owned by the defendant; a coroner examined the remains and determined that the cause of death was homicide by unknown cause; the defendant never reported the victim missing; the defendant told conflicting stories about the victim's disappearance and the defendant's activities around that time; and the defendant towed the victim's car to a hotel parking lot and left it. Benson v. State, 294 Ga. 618 , 754 S.E.2d 23 (2014).
Evidence was sufficient to convict the defendant of malice murder as there was ample evidence to support a finding that the defendant deliberately fired the shotgun with the specific intent to kill the victim as the defendant was angry about a stolen CD player; the defendant went out to the shed to get the shotgun before the victim arrived home; the defendant told an aunt that the defendant had something for the victim and told the defendant's brother that the defendant planned to shoot the victim; the defendant deliberately pointed the shotgun at the victim; the defendant worked the pump to chamber a shell and shot the victim; and the victim died from the gunshot wound. Jones v. State, 303 Ga. 496 , 813 S.E.2d 360 (2018).
Evidence was sufficient to convict the defendant of malice murder of the first victim because, although the defendant and the first victim were playfully shadowboxing and wrestling and the defendant gave the defendant's gun to the second victim to hold, when the playfulness of the situation changed, the second victim put the gun down and stepped in between the defendant and the first victim in an effort to deescalate the situation, but, after the defendant swung at the first victim and missed, and the first victim punched the defendant in the eye, the defendant retrieved and fired the defendant's gun, shooting the second victim in the arm, and fatally shooting the first victim, who witnesses testified was unarmed and tried to run away. Russell v. State, 303 Ga. 478 , 813 S.E.2d 380 (2018).
Evidence was sufficient to convict the defendant of malice murder of the 15-year-old victim because, after the defendant became aware that the victim might be pregnant, the defendant discussed the situation with the co-defendant, telling the co-defendant that the defendant wanted to kill the victim; the defendant began beating the victim with the hammer; the defendant handed the co-defendant the hammer, and the co-defendant hit the victim with the hammer on the head and upper body as the victim lay on the floor, to make sure that the victim was dead; and the co-defendant later confessed to the co-defendant's role in the victim's murder, and testified for the state at the defendant's trial. Smith v. State, 303 Ga. 643 , 814 S.E.2d 411 (2018).
Evidence was sufficient to convict the defendant of malice murder, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon, based on the shooting death of the first victim, because the jury heard testimony that, after the defendant's girlfriend had been involved in a large-scale physical altercation in a club's parking lot, the defendant - who was a convicted felon - fired a weapon into the lingering crowd as the defendant was leaving, killing the first victim; and the state adduced testimony that nothing found at the scene suggested that the defendant had been provoked or attacked with guns or bottles. Blount v. State, 303 Ga. 608 , 814 S.E.2d 372 (2018).
Evidence was sufficient to convict the defendant of malice murder of the first victim, aggravated assault of the second victim, and possession of a firearm during the commission of a crime because the defendant pulled alongside the second victim's car at an intersection and shot into the passenger side of the car several times, killing the first victim; the second victim identified the defendant as the shooter; and the video recordings from the gas station's surveillance system and the city's street surveillance system that showed the incident that took place at the gas station before the shooting and showed the shooting were played for the jury. Johnson v. State, 305 Ga. 475 , 826 S.E.2d 89 (2019).
Evidence was sufficient to convict the defendant of malice murder as the defendant acted with at least implied malice when the defendant shot the victim because the defendant shot at an unarmed man who was driving away, following an argument over a distasteful but relatively insignificant encroachment on personal property; and the jury was entitled to reject the defendant's argument that the evidence supported a conclusion that the defendant was overcome with emotion incited by the victim's statements and fired at the victim as a result of a sudden, violent, and irresistible passion that was reasonable under the totality of the circumstances. Williams v. State, 306 Ga. 674 , 832 S.E.2d 843 (2019).
State did more than rely on circumstantial evidence in convicting defendant. - There was sufficient evidence to support the defendant's murder conviction and the defendant's argument that the state relied solely on circumstantial evidence was belied by the admission of the defendant's statement to police that the defendant hit the victim with the ax handle. Bunnell v. State, 292 Ga. 253 , 735 S.E.2d 281 (2013).
Evidence was sufficient to convict the defendant of malice murder because the defendant struck the defendant's spouse with a hammer multiple times; the spouse had bruises to the spouse's arms and legs that were consistent with defensive wounds; the defendant admitted to hiding the spouse's body in a freezer and leading others to believe that the spouse had left the defendant; and, although the defendant testified at trial that the defendant did not intend to kill the defendant's spouse, the jury was free to conclude otherwise. White v. State, 303 Ga. 533 , 813 S.E.2d 592 (2018).
Evidence sufficient to support conviction for malice murder of estranged spouse. - Evidence was sufficient to support the defendant's conviction for malice murder because, after the entry of a family violence protective order, the defendant purchased a knife with a large blade, followed the victim, who was the defendant's estranged spouse, and attempted to talk with the victim, appeared at a grocery store where the victim was, yelled at the victim, and stabbed and slashed the victim multiple times, resulting in the victim's death. The defendant then waited for the police, and stated that the defendant would not hurt anyone else, that the defendant came to do what the defendant needed to do, that no one got away with hurting the defendant, and that the victim, whom the defendant called by a derogatory term, deserved it because of what the victim did to the defendant in court. Weaver v. State, 288 Ga. 540 , 705 S.E.2d 627 (2011).
Evidence sufficient to support conviction of murder of grandparents. - There was sufficient evidence to support the defendant's convictions for murder, committed while the defendant was engaged in the capital felonies of armed robbery, aggravated battery, and kidnapping with bodily injury, which included accomplice testimony and items belonging to the victims as well as blood found in the defendant's motel room. Defendant tried to rob a friend's love interest's grandparents, tortured them with a hot poker, and bashed their heads in with an axe. Sealey v. State, 277 Ga. 617 , 593 S.E.2d 335 (2004), overruled on other grounds by Willis v. State, 304 Ga. 686 , 820 S.E.2d 640 (2018).
Evidence sufficient to support conviction of murder on parents. - Evidence supported conviction for malice murder, burglary, and hindering a police officer because the defendant was at the back door of the defendant's parent's home without authorization, and fled when an officer tried to handcuff the defendant, the defendant's parent was found dead from massive head injuries, and the parent's rings, a lawn mower blade, and a hatchet were found on the defendant's person or stashed in bags outside the home. Smith v. State, 279 Ga. 172 , 611 S.E.2d 1 (2005).
Evidence sufficient to convict police officer of malice murder. - Evidence was sufficient to allow a rational trier of fact to find the defendant guilty of malice murder because: (1) a blood trail led investigators to conclude the perpetrator had a pre-existing leg injury, which the defendant had; (2) the defendant had fresh bruises and cuts on the defendant's hands for which the defendant had no plausible explanation; (3) the defendant, who was a police officer, no longer had the defendant's service revolver, which was the same caliber weapon used to kill one of the victims; (4) expert testimony revealed the presence of the defendant's blood at several locations within the crime scene; and (5) a bloody shoe print matching shoe prints at the crime scene was found in the defendant's garage. Williams v. State, 279 Ga. 731 , 620 S.E.2d 816 (2005).
Wife of murderer witnessing abuse and murder of child in their care. - Evidence was sufficient to find a wife guilty of felony murder and second degree child cruelty arising out of her husband's abuse and murder of a 13-month-old child in their care, the husband and his wife were the only adults in the home, and the wife testified that the husband inflicted the victim's injuries, including head trauma from swinging the child by the ankle against a sofa, yet she did not seek medical treatment. Virger v. State, 305 Ga. 281 , 824 S.E.2d 346 (2019).
Strangulation as evidence of malice. - Despite the fact that the defendant did not admit to every element of the charged offenses, the state presented sufficient evidence to corroborate the admissions made specifically, that the victim died from manual strangulation inflicted by another human being shortly after the defendant was in the victim's company, and presented ample evidence of the defendant's intent to take the victim's life. Sheffield v. State, 281 Ga. 33 , 635 S.E.2d 776 (2006).
Sufficient evidence of malice in death of a child. - With regard to a defendant's trial and conviction for malice murder arising from the severe physical abuse of the defendant's five-year-old nephew, sufficient evidence existed to support the defendant's conviction since the evidence established that the defendant struck and beat the victim and deprived him of necessary nutrition as alleged in the indictment and that those actions caused the child's death. Peterson v. State, 282 Ga. 286 , 647 S.E.2d 592 (2007).
Victim found in defendant's home. - There was sufficient evidence to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of malice murder where the victim, found in the defendant's home, had been beaten and died from a severe blow to the head. Hannah v. State, 278 Ga. 195 , 599 S.E.2d 177 (2004).
Setting a fire as evidence of malice. - Because the defendant admitted that, while the defendant's children were sleeping and to scare the defendant's love interest, the defendant used a cigarette lighter to set fire to the bedding on the corner of a child's bed, causing a fire in a trailer that killed three children, the evidence was sufficient to enable a rational trier of fact to find that the defendant was, beyond a reasonable doubt, guilty of three counts of malice murder, three counts of felony murder, and two counts of arson in the first degree; thus, the trial court did not err by denying the defendant's motion for a directed verdict of acquittal pursuant to O.C.G.A. § 17-9-1(a) . Riley v. State, 278 Ga. 677 , 604 S.E.2d 488 (2004).
Poisoning of victim. - With regard to a defendant's conviction for the malice murder of the defendant's husband, the trial court did not err in admitting evidence of a similar transaction as to the defendant poisoning a boyfriend with antifreeze via being fed green Jell-O, because the defendant was intimate with both victims; both men went to the hospital complaining of flu-like symptoms soon before each man died; both men died from the unique cause of antifreeze poisoning; the defendant was the last person to see either man alive; both men died soon after the defendant served them Jell-O; and the defendant, who had financial problems before the deaths of both men, collected substantial money in connection with each man's death. Turner v. State, 281 Ga. 647 , 641 S.E.2d 527 (2007).
Introduction of civil dispute in murder prosecution. - Defendant's malice murder and aggravated battery convictions were upheld on appeal as the trial court did not err in introducing into evidence the pleadings filed in a civil lawsuit brought by defendant against the victim and others as the evidence was introduced to show the defendant's motive or state of mind. Taylor v. State, 282 Ga. 44 , 644 S.E.2d 850 , cert. denied, 552 U.S. 950, 128 S. Ct. 384 , 169 L. Ed. 2 d 263 (2007).
Evidence of wounding former wife. - In defendant's prosecution for the murder of his present wife, evidence that defendant had shot his former wife in the shoulder with a pistol was admissible to show malice, intent, motive, and bent of mind and did not impermissibly place defendant's character in issue. Clark v. State, 255 Ga. 370 , 338 S.E.2d 269 (1986).
Evidence of prior difficulties was admissible. Brown v. State, 51 Ga. 502 (1874) (decided under former Code 1873, §§ 4321, 4322).
Trial court did not err in denying the defendant's motion to suppress certain testimony about prior difficulties that had occurred between the defendant and the murder victim, as such evidence was relevant to the relationship between the victim and the defendant, and was admissible to show the defendant's motive, intent, and bent of mind in murdering the victim. Moody v. State, 277 Ga. 676 , 594 S.E.2d 350 (2004).
Evidence sufficient to show malice during heated argument. - Facts and circumstances were sufficient to authorize the trial court to infer malice pursuant to O.C.G.A. § 16-5-1 as defendant shot the victim in the back during a heated argument in which the victim informed defendant that the victim was leaving the defendant. Latimore v. State, 262 Ga. 448 , 421 S.E.2d 281 (1992).
Threats, though remote, are admissible in murder trials for purpose of showing motive and malice. Pierce v. State, 212 Ga. 88 , 90 S.E.2d 417 (1955) (decided under former Code 1933, §§ 26-1003, 26-1004).
Threats by accused against deceased as tending to show malice. - In trial for murder, threats by accused against deceased, though made a considerable period before homicide, are admissible in evidence for state as tending to show malice on part of accused; and mere omission of trial judge to charge jury as to what weight they should give to threats, or as to how jury should regard them in their deliberations, is not cause for new trial, particularly when accused was convicted of voluntary manslaughter only, the verdict thus negativing any conclusion that killing was done in malice. Ellis v. State, 72 Ga. App. 469 , 34 S.E.2d 171 (1945) (decided under former Code 1933, §§ 26-1003, 26-1004).
Showing threats is good evidence of malice. Phillips v. State, 26 Ga. App. 263 , 105 S.E. 823 (1921) (decided under former Penal Code 1910, §§ 61, 62).
Conditional threats are evidence of malice. Golatt v. State, 130 Ga. 18 , 60 S.E. 107 (1908) (decided under former Penal Code 1895, §§ 61, 62).
Witness, who was a friend of the deceased, was allowed to testify in defendant's murder trial under the "necessity" exception about the victim's relationship with the defendant. Brinson v. State, 276 Ga. 671 , 581 S.E.2d 548 (2003).
Even uncommunicated threats are evidence of malice. Graham v. State, 125 Ga. 48 , 53 S.E. 816 (1906) (decided under former Penal Code 1895, §§ 61, 62); Rouse v. State, 135 Ga. 227 , 69 S.E. 180 (1910);(decided under former Penal Code 1895, §§ 61, 62).
Evidence of state of feelings of parties is admissible to show malice. Brooks v. State, 134 Ga. 784 , 68 S.E. 504 (1910) (decided under former Penal Code 1895, §§ 61, 62).
Uncommunicated statement tending to show state of feelings of parties is admissible. McCray v. State, 134 Ga. 416 , 68 S.E. 62 , 20 Ann. Cas. 101 (1910) (decided under former Penal Code 1895, §§ 61, 62).
Evidence of difficulty between deceased's husband and accused several months before homicide is admissible. On trial of man for homicide of his sister-in-law growing out of a difficulty in which her husband also was killed by accused, evidence tending to show previous difficulty between accused and husband although occurring several months prior to homicide, and existence of bad blood between them, was admissible as tending to show malice, intent, or motive in killing deceased. Jeffords v. State, 162 Ga. 573 , 134 S.E. 169 (1926) (decided under former Penal Code 1910, §§ 61, 62).
Evidence of threats made four or five days before homicide is admissible. Stiles v. State, 57 Ga. 183 (1876) (decided under formal Code 1873, §§ 4321, 4322).
Intervening time between threat and act determines probative force of threat. Crumley v. State, 5 Ga. App. 231 , 62 S.E. 1005 (1908) (decided under former Penal Code 1910, §§ 61, 62).
Timely cruelty and ill-treatment by husband towards wife is admissible to show malice and motive. Roberts v. State, 123 Ga. 146 , 51 S.E. 374 (1905) (decided under former Code 1895, §§ 61, 62); Campbell v. State, 123 Ga. 533 , 51 S.E. 644 (1905) (decided under former Code 1895, §§ 61, 62); Green v. State, 125 Ga. 742 , 54 S.E. 724 (1906) (decided under former Code 1895, §§ 61, 62); Josey v. State, 137 Ga. 769 , 74 S.E. 282 (1912) (decided under former Penal Code 1910, §§ 61, 62).
Acts and declarations following infliction of mortal wound which evidence malice are admissible. It is competent in trial for murder to prove that, shortly after mortal wound was inflicted, accused made declarations and did acts evidencing malice toward injured person or indifference to that person's fate. Perry v. State, 110 Ga. 234 , 36 S.E. 781 (1900) (decided under former Penal Code 1895, §§ 61, 62).
Mother who destroys her infant to conceal her shame has legal malice. Jones v. State, 29 Ga. 594 (1859) (decided under former law).
Providing weapon prior to killing is evidence of malice. Hayes v. State, 58 Ga. 35 (1877) (decided under former Code 1895, §§ 61, 62); Perry v. State, 102 Ga. 365 , 30 S.E. 903 (1897) (decided under former Penal Code 1910, §§ 61, 62).
Use of weapon likely to produce death in brutal, bloodthirsty manner as evidence of malice. Daniels v. State, 197 Ga. 754 , 30 S.E.2d 625 (1944) (decided under former Code 1933, §§ 26-1003, 26-1004).
Deliberate violation of law as aid in establishing malice. - Deliberate violation of law, whether statute or ordinance prohibiting shooting of firearms in city without consent of mayor, is a fact which may be relied upon to aid in establishing malice; while violation of the law in itself is insufficient to supply malice unless it is a felony, if considered in connection with all surrounding facts and circumstances, it is such an unlawful act as naturally tends to destroy human life, it may be relied upon as a fact tending to show an abandoned and malignant heart, and malice. Perry v. State, 78 Ga. App. 273 , 50 S.E.2d 709 (1948) (decided under former Code 1933, §§ 26-1003, 26-1004).
Pouring alcohol upon another's clothing and lighting match to it. - There being evidence that accused poured alcohol upon body and clothing of his wife, that alcohol is highly inflammable, that accused then applied a match, and that his wife died as a result of the burns, this was sufficient evidence for jury to find that accused intended to kill and that killing was with malice. Blakewood v. State, 196 Ga. 34 , 25 S.E.2d 643 (1943) (decided under former Code 1933, §§ 26-1003, 26-1004).
Evidence of the malice murder held sufficient where defendant, while drinking, shot defendant's spouse, despite defendant's claim of accident. Rowe v. State, 276 Ga. 800 , 582 S.E.2d 119 (2003).
Malice, express or implied, is motive present at time of killing, and no other motive need be shown. Carson v. State, 80 Ga. 170 , 5 S.E. 295 (1887) (decided under former Code 1882, §§ 4321, 4322).
Evidence of bad feeling between defendant and deceased is admissible in some cases. Shaw v. State, 60 Ga. 246 (1878) (decided under former Code 1873, §§ 4321, 4322).
Repeated quarrels between the parties may be shown to establish ill will, but proof may not go back to a remote period to show a particular quarrel or cause of grudge unless it is followed up with proof of a continued difference flowing from that source. Monroe v. State, 5 Ga. 85 (1848) (decided under former law).
Evidence of bad feeling between father of accused and father of deceased is admissible. Rawlins v. State, 124 Ga. 31 , 52 S.E. 1 (1905), aff'd, 201 U.S. 638, 26 S. Ct. 560 , 50 L. Ed. 899 (1906) (decided under former Penal Code 1895, §§ 61, 62).
Fact that deceased testified against accused is relevant to show motive. Hayes v. State, 126 Ga. 95 , 54 S.E. 809 (1906) (decided under former Penal Code 1895, §§ 61, 62).
Evidence showing probability of rape is admissible for purpose of showing motive. Robinson v. State, 114 Ga. 56 , 39 S.E. 862 (1901) (decided under former Penal Code 1895, §§ 61, 62).
State may prove facts occurring after homicide which tend to illustrate motive. Hoxie v. State, 114 Ga. 19 , 39 S.E. 944 (1901) (decided under former Penal Code 1895, §§ 61, 62).
Evidence of bad feelings of deceased for defendant, unknown to latter. - When one is on trial for assassinating another, evidence of bad feeling on part of deceased toward defendant, unknown to defendant prior to killing is inadmissible against the defendant. Sasser v. State, 129 Ga. 541 , 59 S.E. 255 (1907) (decided under former Penal Code 1895, §§ 61, 62).
Existence of life insurance on deceased payable to defendant's spouse. - In murder trial, court did not err in admitting evidence relating to insurance upon life of deceased, payable to defendant's spouse, since under other circumstances of case the evidence was admissible on question of motive. Johnson v. State, 186 Ga. 324 , 197 S.E. 786 (1938) (decided under former Code 1933, §§ 26-1003, 26-1004).
Evidence that defendant intended to take money from the victim, anticipated a fight, and, after robbing and shooting the victim, returned to the scene and intentionally shot the still-living victim a second time was sufficient to authorize the jury to infer malice. Jackson v. State, 267 Ga. 130 , 475 S.E.2d 637 (1996).
Malice murder appropriate when victim shot 14 times. - Evidence supported the defendant's conviction for malice murder because the defendant admitted shooting the victim 14 times over 10 years ago and then burying the victim's body in a shallow grave because the defendant had been threatened with death for the defendant and the defendant's family members by a drug dealer who thought that the defendant and the victim stole money and drugs from the dealer. Gravitt v. State, 279 Ga. 33 , 608 S.E.2d 202 (2005).
Despite withdrawal from life support evidence sufficient for malice murder conviction. - Evidence was sufficient to convict the defendant of malice murder as the jury was authorized to conclude that the defendant's actions were the proximate cause of the victim's death, and that the withdrawal of life support was not the intervening and ultimate cause of the victim's death because the defendant caused the victim's severe brain injuries, which required the use of life support to attempt recovery and to reduce brain swelling; it was reasonably foreseeable that the victim would be taken off life support when the victim's condition failed to improve; and, although it was theoretically possible for the victim to survive, the medical examiner (ME) noted that the ME could not opine as to whether the victim would have survived. Stribling v. State, 304 Ga. 250 , 818 S.E.2d 563 (2018).
Felony Murder
1. In General
Georgia legislature intended felony murder to encompass all felonies as defined in former Code 1933, § 26-401 and not just dangerous or forcible felonies. Baker v. State, 236 Ga. 754 , 225 S.E.2d 269 (1976) (see O.C.G.A. § 16-1-3(5) ).
Evidence was sufficient to find the defendant guilty of felony murder based on the felony of cruelty to children; the child's age, the extent of the child's injuries, the nature of the assault to which the child was subjected, and the force with which the child was struck was sufficient evidence from which a jury, applying generally-accepted societal norms, could conclude whether the defendant caused cruel or excessive physical pain. Kennedy v. State, 277 Ga. 588 , 592 S.E.2d 830 (2004).
Felony murder does not require malice or intent to kill. It does, however, require that the defendant possess the requisite criminal intent to commit the underlying felony. Holliman v. State, 257 Ga. 209 , 356 S.E.2d 886 , cert. denied, 484 U.S. 933, 108 S. Ct. 306 , 98 L. Ed. 2 d 265 (1987).
Defendant's convictions for felony murder and the underlying crime of aggravated assault were supported by sufficient evidence because no proof of the defendant's criminal intent to murder was required for the felony murder conviction, and the aggravated assault conviction did not require proof that the defendant intended to injure the victim, as only proof that the defendant intended to do the act that placed the victim in reasonable apprehension of harm was required. Smith v. State, 280 Ga. 490 , 629 S.E.2d 816 (2006).
Felony murder does not require proof of intent, transferred or otherwise, as an element of the homicide. Towns v. State, 260 Ga. 423 , 396 S.E.2d 215 (1990), cert. denied, Barrett v. State, 263 Ga. 533 , 436 S.E.2d 480 (1993), overruled on other grounds, Wall v. State, 269 Ga. 506 , 500 S.E.2d 904 (1998).
Person who commits felony is liable for any murder that occurs as result of the commission of that felony, without regard to whether the person commits, intended to commit, or acted to commit the murder of the victim. Roberts v. State, 257 Ga. 180 , 356 S.E.2d 871 (1987).
Bifurcated trial on separate charges. - Trial court did not violate defendant's double jeopardy rights when it bifurcated the trial, allowing defendant to be tried on a malice murder and felony murder charge. The killing for which defendant was charged was not the subject of another prosecution and defendant's guilt was determined by the same jury in the same prosecution. Jones v. State, 276 Ga. 663 , 581 S.E.2d 546 (2003).
Prosecutor's comments in opening statements were permissible. - Trial court properly denied defendant's motion for a new trial pursuant to O.C.G.A. § 5-5-23 following defendant's conviction of felony murder; the prosecutor did not improperly bolster the credibility of a witness during opening statements. Wilson v. State, 276 Ga. 674 , 581 S.E.2d 534 (2003).
Conviction required reversal because evidence was improperly excluded. - During a trial for felony murder while in the commission of cruelty to a child arising from the death of the defendant's child from brain trauma sustained while the child was in the defendant's care, the defendant was improperly prevented from cross-examining a person who was in the apartment at the time about the person's history of inappropriate behavior toward the person's own child, including allegations of child abuse, because it was a crucial element of the defense that the person was a likely suspect, and, under former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6 ), the circumstantial evidence did not exclude the reasonable hypothesis that the person was the likely culprit; the defendant's conviction required reversal because it was not highly improbable that the jury's verdict would have been different if the evidence had been admitted, and the error therefore could not be considered harmless. Scott v. State, 281 Ga. 373 , 637 S.E.2d 652 (2006).
Only one felony is required to trigger felony-murder rule, but the state could allege more than one armed robbery in indictment and thereby cause multiple robberies to become lesser included offenses. Collier v. State, 244 Ga. 553 , 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346 , 63 L. Ed. 2 d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538 , 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23 , 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819 , 561 S.E.2d 82 (2002).
When there are multiple underlying felonies, the state is not required to elect between the felonies when charging the defendant with felony murder. State v. McBride, 261 Ga. 60 , 401 S.E.2d 484 (1991).
Appropriate manner for charging felony murder in instances when more than one underlying felony is alleged is to indict for one count of felony murder, and enumerate the multiple underlying felonies. State v. McBride, 261 Ga. 60 , 401 S.E.2d 484 (1991).
Parties to crime. - Given the testimony provided by both the codefendant and the codefendant's former wife, to whom the defendant admitted to firing the fatal shots killing the victim, which netted the victim's cellular phone and pager and evidence describing how the defendant participated in the events that happened before, during, and after the commission of the crimes, sufficient evidence was presented to uphold the defendant's convictions for felony murder and armed robbery as a party to the crimes. Pruitt v. State, 282 Ga. 30 , 644 S.E.2d 837 (2007).
Evidence established more than the mere presence of the defendant during the commission of the offense of aggravated assault and felony murder predicated on aggravated assault: (1) the defendant assaulted the victim during the drive to the murder scene; (2) the defendant participated in a plot to burn the victim's body and stood lookout while the body was buried; (3) the defendant did not attempt to report the crime; and (4) the defendant watched as another person stabbed the victim before attempting to intervene. Navarrete v. State, 283 Ga. 156 , 656 S.E.2d 814 (2008), cert. denied, 129 S. Ct. 104 , 172 L. Ed. 2 d 33 (2008).
Evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty as a party to malice murder, aggravated assault, possession of a firearm during the commission of a crime, and tampering with evidence because the evidence showed that before, during, and after the commission of the crimes, the defendant was present and shared the defendant's companionship with the defendant's brothers; the state's evidence authorized the inferences that the defendant, who had assisted the defendant's brothers in attacking the cousin of one of the victims, was not an innocent bystander, that the defendant drove the defendant's brothers to the crime scene knowing that one of the brothers was armed, that the defendant willingly stayed with the defendant's brothers while the brothers tried to start a fight and threatened to kill someone, and that the defendant ran to the defendant's car and drove the brothers away immediately after the brothers had shot one of the victims. Teasley v. State, 288 Ga. 468 , 704 S.E.2d 800 (2010).
Evidence was sufficient to convict the defendant as a party to the crimes of felony murder and possession of a firearm during the commission of a felony in connection with the shooting death of one of the accomplices to an attempted armed robbery because the defendant was not just an innocent bystander as the defendant admitted that the defendant was with the accomplices before the shooting; the jury could have reasonably inferred that the defendant was the person whom two witnesses overheard in the background of a call encouraging the armed robbery; and the defendant admitted that the defendant accompanied the accomplices knowing that the buyer and the group the defendant was with planned to rob each other during a purported drug deal. Frazier v. State, 308 Ga. 450 , 841 S.E.2d 692 (2020).
Felony murder is subject to same penalties as malice murder. Burke v. State, 234 Ga. 512 , 216 S.E.2d 812 (1975).
Convictions for both voluntary manslaughter and felony murder. - Verdicts of voluntary manslaughter and felony murder were not mutually exclusive under the facts of the case. Smith v. State, 272 Ga. 874 , 536 S.E.2d 514 (2000).
Felony murder was prohibited with malice murder conviction. - When a prisoner was convicted of malice murder under O.C.G.A. § 16-5-1(a) , a jury did not return a verdict on felony murder counts because O.C.G.A. § 16-1-7 prohibited a conviction for both offenses for the death of a single victim. Further, the defendant's crime of aggravated assault under O.C.G.A. § 16-5-21(a) also merged with the malice murder offense as it was a crime included within the greater offense. Newland v. Hall, 527 F.3d 1162 (11th Cir. 2008), cert. denied, 555 U.S. 1183, 129 S. Ct. 1336 , 173 L. Ed. 2 d 607 (2009).
Polygraph results corroborated accomplice's testimony. - Sufficient evidence supported the defendant's felony murder conviction because the defendant's polygraph results, which the defendant stipulated to admitting at trial, corroborated the accomplice's inculpatory testimony. Thornton v. State, 279 Ga. 676 , 620 S.E.2d 356 (2005).
Admission of irrelevant evidence did not require mistrial. - During a trial for felony murder while in the commission of cruelty to a child, evidence that a defendant's romantic partner did not know that the defendant was married was irrelevant; although the defendant's objection to the admission of the evidence was improperly overruled, the defendant's motion for a mistrial was properly denied because a mistrial was not mandated. Scott v. State, 281 Ga. 373 , 637 S.E.2d 652 (2006).
Jury resolves conflicts in evidence. - Defendant's conviction for felony murder and possession of a firearm in the commission of a crime was supported by sufficient evidence; while there was a conflict in the evidence as to whether the defendant shot the victim in self-defense, it was the role of the jury, not the court, to resolve conflicts in the evidence. Jackson v. State, 279 Ga. 721 , 620 S.E.2d 828 (2005).
Felony murder not lesser included offense. - In a prosecution on separate counts of malice murder, armed robbery, and kidnapping, the trial court did not err in failing to charge the jury on felony murder as a lesser included offense. Henry v. State, 265 Ga. 732 , 462 S.E.2d 737 (1995).
Multiple felony murder convictions, only one person killed. - Under O.C.G.A. § 16-1-7(a) , it was improper to sentence the defendant to two felony murder counts under O.C.G.A. § 16-5-1(c) because there was only one death involved. Rhodes v. State, 279 Ga. 587 , 619 S.E.2d 659 (2005).
Because the prohibition against double jeopardy does not permit a defendant to be punished on multiple murder counts for a single homicide, the superior court incorrectly sentenced the defendant on each felony murder count. Kipp v. State, 294 Ga. 55 , 751 S.E.2d 83 (2013).
When elements of malice and underlying felony both exist in murder case, the law does not preclude verdicts of guilty of both malice and felony murder. However, where there is a single victim, the defendant may be sentenced on either but not both. Smith v. State, 258 Ga. 181 , 366 S.E.2d 763 (1988).
Victim need not die during commission of underlying felony. - There is no merit to the contention that the victim must die during the commission of the underlying felony under a felony-murder indictment. O.C.G.A. § 16-5-1(c) , defining felony murder, requires that the death need only be caused by an injury which occurred during the res gestae of the felony. State v. Cross, 260 Ga. 845 , 401 S.E.2d 510 (1991).
Sentence following felony murder and vehicular homicide conviction. - After defendant was convicted of felony murder and vehicular homicide, the trial court properly sentenced defendant to life imprisonment for felony murder since the felony murder statute is separate from the vehicular homicide statute and is not ambiguous about the appropriate sentence. Diamond v. State, 267 Ga. 249 , 477 S.E.2d 562 (1996).
Circumstantial evidence was sufficient to sustain conviction in death of child. - Evidence that a defendant's 13-month-old child died while in the defendant's care from brain trauma caused by being struck by or against an object or violently shaken, at a time when one other person and that person's child were in the defendant's apartment, provided sufficient circumstantial evidence under former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6 ) to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of felony murder while in the commission of cruelty to a child; questions as to the reasonableness of hypotheses were to be decided by the jury, and the jury's authorized finding that evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt was not to be disturbed unless the guilty verdict was insupportable as a matter of law. Scott v. State, 281 Ga. 373 , 637 S.E.2d 652 (2006).
Circumstantial evidence supported the defendant's conviction of the felony murder of the defendant's two-month-old child. The victim's grandparent had not had contact with the victim on the day of the murder, and the evidence that the victim was well when the victim's other parent left the house, combined with a medical examiner's testimony and time line regarding the time of the child's death, excluded the other parent's guilt as well. Nixon v. State, 284 Ga. 800 , 671 S.E.2d 503 (2009).
Contrary to a defendant's contention that the state presented only circumstantial evidence under former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6 ) that did not exclude all reasonable hypotheses except that of the defendant's guilt, the evidence was sufficient to support the conviction for felony murder and aggravated assault; the defendant's infant child died of a massive closed head trauma complicated by blunt force chest trauma, and the defendant had the sole care of the child just before the child suffered rib injuries allegedly due to the defendant pushing on the child's chest while the child was choking and just before the child suffered seizure-like symptoms. Berryhill v. State, 285 Ga. 198 , 674 S.E.2d 920 (2009).
Evidence was sufficient to authorize a rational trier of fact to find the defendant guilty of felony murder beyond a reasonable doubt because the victim did not have physical injuries when the victim's mother left the house on the day of the crime, and the defendant was the only person present during the hours in which the victim was physically injured; the pathologist testified that the location and severity of injuries was inconsistent with a mere fall from the bed. Whitaker v. State, 291 Ga. 139 , 728 S.E.2d 209 (2012).
Circumstantial evidence was sufficient to convict the defendant of malice murder in connection with the beating death of the victim, the defendant's 10-month-old daughter, because, at the time the victim died, the victim had sustained numerous injuries in the days and hours leading up to the victim's death; the defendant was the sole adult with the victim in the hours preceding the victim's death; the jury heard expert testimony that the victim's injuries were not consistent with a fall; and the defendant had made an incriminating statement in a letter to the victim's mother while awaiting trial. Walker v. State, 308 Ga. 33 , 838 S.E.2d 792 (2020).
Evidence was sufficient to support conviction. - Evidence was sufficient to support convictions for felony murder, aggravated assault, and possession of a firearm during the commission of a crime since the record revealed that the defendant was riding in a car, made a gang sign to some people on the street, and in response to their obscene gesture, the defendant took out a gun and fired at the people, killing two people and wounding one. Defendant's contention that the defendant was acting to protect the defendant and others in the car, that the defendant fired into the air, and that the defendant did not mean to hurt anyone was found to lack merit. Ingram v. State, 276 Ga. 223 , 576 S.E.2d 855 (2003).
Evidence was sufficient to support the defendant's conviction for felony murder because the evidence showed that the defendant arrived at the apartment of a person the defendant had been dating, that the defendant started arguing with that person, that the murder victim, who was also dating that person, tried to escort the defendant out of the apartment, and that the defendant suddenly stabbed and killed the murder victim. Daniels v. State, 276 Ga. 632 , 580 S.E.2d 221 (2003).
Defendant's conviction was not based solely on circumstantial evidence because there was ample direct evidence that the defendant committed the murder, including the defendant's own inculpatory statements. White v. State, 276 Ga. 583 , 581 S.E.2d 18 (2003).
Because the defendant shot a victim in the head after an argument and also shot at another victim but failed to hit the second victim, a rational trier of fact could have found that defendant was guilty of felony murder, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. Hightower v. State, 278 Ga. 39 , 597 S.E.2d 362 (2004).
Evidence was sufficient to support the defendant's murder conviction because the defendant was with the victim the evening before the victim's body was discovered in the victim's bed, the defendant's freshly imprinted palm print was found on the wall above the bed, the defendant's blood-stained shirt was found stuffed into a toilet bowl in the victim's bathroom, the victim's blood was on another of the defendant's shirts found at the defendant's home, and post-mortem testing showed that the defendant and the victim engaged in sex on the night of the murder. Lassic v. State, 278 Ga. 701 , 606 S.E.2d 266 (2004).
When a victim paid the defendant money the victim owed, and, after the victim paid the money, the defendant told the victim that the victim was going to die anyway and shot the victim as the victim sat in a vehicle with two other people, the evidence was sufficient to allow a rational trier of fact to find the defendant guilty beyond a reasonable doubt of felony murder, possession of a weapon by a convicted felon, and possession of a weapon during the commission of a felony. Stephens v. State, 279 Ga. 43 , 609 S.E.2d 344 (2005).
Evidence was sufficient to support the defendant's convictions for felony murder, aggravated assault, and giving a false statement when the defendant and the codefendant were arrested when the codefendant sought medical treatment for a gunshot wound sustained in the incident, the codefendant gave police a false name and said that the codefendant was shot when someone tried to rob the codefendant, the codefendant told a neighbor who saw the wound that someone else was worse off than the codefendant was, the defendant asked the neighbor's niece to tell police the codefendant was at the niece's house on the night of the crime and was robbed when leaving, and, while in jail, the defendant told one inmate the defendant shot someone in the incident and told another inmate that the defendant was involved in a robbery of this victim that went bad, and that the defendant and the codefendant had been looking for a safe with money and marijuana. Styles v. State, 279 Ga. 134 , 610 S.E.2d 23 (2005).
Evidence that showed defendant and other members of a gang attacked rival gang members outside a restaurant and that defendant fired two shots into the back of the brother of two rival gang members after the victim had been beaten with a small bat, that defendant stated to another gang member that defendant had shot the victim, and that the gun used to kill the victim was found in defendant's backyard, supported the convictions for felony murder and possession of a firearm during the commission of a felony. Yat v. State, 279 Ga. 611 , 619 S.E.2d 637 (2005).
Evidence was sufficient to support defendant's convictions for felony murder, aggravated assault, and possession of a firearm in the commission of a felony in a case because defendant, who had engaged in previous altercations with the victim, got out of defendant's car after seeing the victim on the street, ran up to the victim, shot the victim, returned to defendant's car, ran back to the victim and shot the victim again, and then got in defendant's car and drove off, as all of the elements of those offenses were established. Hayes v. State, 279 Ga. 642 , 619 S.E.2d 628 (2005).
Evidence that (1) the victim died as the result of a verbal altercation between the defendant and the victim, which escalated into a physical confrontation; (2) eyewitnesses saw the defendant swinging a knife; and (3) the state's expert said the victim died of a stab wound to the chest was sufficient to allow a trier of fact to find defendant guilty of felony murder in the course of an aggravated assault beyond a reasonable doubt. McDaniel v. State, 279 Ga. 801 , 621 S.E.2d 424 (2005).
Circumstantial evidence was sufficient to allow a jury to find defendant committed felony murder and aggravated assault beyond a reasonable doubt when there was testimony that defendant was seen wearing a trench coat, waved down the victim's vehicle, leaned in through an open window in the vehicle, fled after firing two shots, saying, "I believe I shot him," forensic evidence was consistent with this testimony, defendant and the codefendant were earlier seen trying to sell a gun, a trench coat with missing buttons was found in the codefendant's house, and its buttons matched a button found in the victim's car. Burns v. State, 280 Ga. 24 , 622 S.E.2d 352 (2005).
As defendant and the victim were engaged in a heated verbal exchange, defendant went to defendant's room and obtained a serrated knife, returned to where the victim was and stabbed the victim in the chest, which resulted in the victim's heart being punctured, and defendant later admitted to the stabbing, the evidence was sufficient to support the verdict finding defendant guilty of felony murder and aggravated assault, in violation of O.C.G.A. §§ 16-5-1 and 16-5-21 , as well as possession of a knife during the commission of a felony; the jury was authorized to find defendant's claim of self-defense lacking in credibility. Delanoval v. State, 280 Ga. 36 , 622 S.E.2d 811 (2005).
Defendant's convictions for felony murder, aggravated assault, and possession of a knife during the commission of a felony were supported by sufficient evidence; while defendant argued that defendant acted in self-defense in stabbing the victim in the chest during a confrontation, the jury was authorized to disbelieve the defendant's testimony in favor of the testimony of the state's witnesses. Delanoval v. State, 280 Ga. 36 , 622 S.E.2d 811 (2005).
Sufficient evidence was introduced to support defendant's convictions for felony murder and burglary despite defendant's claims that the defendant was not sufficiently involved in the crimes to be convicted on those charges. Joyner v. State, 280 Ga. 37 , 622 S.E.2d 319 (2005).
Evidence was sufficient to support defendant's conviction for felony murder because defendant was involved in a physical altercation with the victim which escalated into a group fight, defendant was armed with a gun while the victim was unarmed, and defendant shot the victim while the victim kneeled before defendant on the ground. Hudson v. State, 280 Ga. 123 , 623 S.E.2d 497 (2005).
Evidence was sufficient to support a felony murder conviction because: (1) the victim was stabbed to death in an apartment; (2) the defendant was alone in the apartment with the victim the night before the victim's body was found; (3) the defendant's bloody fingerprint was found in the apartment; (4) the victim's blood was found on the shorts the defendant was wearing on the night of the murder; and (5) the defendant told police that the defendant could not remember the events of the night in question, denied that the defendant had ever been in the victim's apartment, but believed that the defendant and the victim were attacked by unknown persons. Rojas v. State, 280 Ga. 139 , 625 S.E.2d 750 (2006).
Sufficient evidence supported a conviction for felony murder while committing an aggravated assault because the defendant admitted that the defendant shot blindly at someone entering the room, rather than shooting accidentally. Gabriel v. State, 280 Ga. 237 , 626 S.E.2d 491 (2006).
Evidence was sufficient to find the defendant guilty of voluntary manslaughter in violation of O.C.G.A. § 16-5-2 , felony murder predicated on possession of a firearm by a convicted felon in violation of O.C.G.A. § 16-5-1 , two counts of aggravated assault in violation of O.C.G.A. § 16-5-21 , possession of a firearm by a convicted felon in violation of O.C.G.A. § 16-11-131 , and possession of a firearm during the commission of a felony murder in violation of O.C.G.A. § 16-11-106 , as the defendant was angered by the victim's presence in the residence, the defendant assaulted the victim with a baseball bat and threatened to kill the victim if the victim did not leave the residence, and when the victim returned to the residence, the defendant fatally shot the victim in the stomach. Lawson v. State, 280 Ga. 881 , 635 S.E.2d 134 (2006).
Evidence supported a defendant's convictions for fleeing and attempting to elude a police officer as an underlying offense for felony murder, theft by taking, vehicular homicide, disregarding a traffic control device, failing to stop at a stop sign, and reckless driving as: (1) the defendant stole a vehicle and was spotted by an officer shortly after the vehicle was reported as stolen; (2) when the officer began to follow the vehicle, the vehicle rapidly accelerated; (3) the officer followed the stolen vehicle for several blocks, with both vehicles traveling between 60-70 miles per hour; (4) the vehicle continued to accelerate after the officer turned on the officer's blue lights and siren; (5) when the stolen vehicle ran a red light, the vehicle struck a car, killing the driver; and (6) the officer and the owner of the stolen vehicle identified the defendant as the person driving the stolen vehicle. Ferguson v. State, 280 Ga. 893 , 635 S.E.2d 144 (2006).
Evidence supported a defendant's conviction for malice murder, felony murder while in commission of an aggravated assault, aggravated assault with a deadly weapon, and possession of a firearm during the commission of a felony as: (1) the defendant came to a tenant's apartment and told the victim that the defendant just shot someone in the backyard; (2) the tenant heard the victim calling the tenant's name; (3) another witness heard a series of gunshots and then someone being beaten, was familiar with the victim and recognized the victim's voice as the victim hollered, "You stomping me. I've been shot. You already done shot me," and saw the defendant emerge from behind the residence with a gun in the defendant's hand; (4) the defendant held the gun to the head of the witness, but then instructed the witness to leave the area; and (5) the victim's death was caused by two fatal gunshot wounds to the neck and chest and there was blunt force trauma to the head. Compton v. State, 281 Ga. 45 , 635 S.E.2d 766 (2006).
Because a rational trier of fact could have found the defendant guilty of felony murder, based on sufficient evidence that said defendant shot the unarmed victim after a failed attempt to purchase cocaine, thus rejecting a claim of self-defense, the defendant's felony murder conviction was upheld on appeal. McNeal v. State, 281 Ga. 427 , 637 S.E.2d 375 (2006).
When the victim was killed during the theft of the victim's vehicle, the evidence was sufficient for a jury to convict the defendant of felony murder, aggravated assault, and armed robbery; the defendant told others where the vehicle was, then stripped the vehicle; a call was placed from the victim's cell phone to the house of one of the defendant's grandparents; police found some of the victim's belongings at the home of the defendant's cousin; and a witness and two cousins of the defendant stated that the defendant admitted shooting the victim. Paige v. State, 281 Ga. 504 , 639 S.E.2d 478 (2007).
Defendant's conviction for felony murder and related charges was upheld on appeal because the evidence showed that the defendant admitted to killing to the defendant's girlfriend and others and the gun used to shoot the victim was the same that the defendant had shot at a party earlier in the evening; the defendant had asked the victim for a ride home from the party and the evidence indicated that defendant shot the victim twice and dumped the body in a wooded area. Lee v. State, 281 Ga. 511 , 640 S.E.2d 287 (2007).
There was sufficient evidence to support the defendant's convictions of felony murder and aggravated assault resulting from an incident when shots were fired from a van at the victims, who were riding in a car that had formerly belonged to a drug dealer; the defendant had argued with the drug dealer the day of the shooting, the defendant's wrecked car was found in the same place as the van, the surviving victim identified the defendant as the driver of the van, the van had been traded to the defendant's brother, and even if the defendant did not actually fire the shots, being the driver would authorize the defendant's conviction under O.C.G.A. § 16-2-20(a) . Yancey v. State, 281 Ga. 664 , 641 S.E.2d 524 (2007).
Sufficient evidence existed to support five defendants' convictions for felony murder and burglary as the evidence enabled any rational trier of fact to have found the defendants guilty beyond a reasonable doubt based on the state's introduction of both direct and circumstantial evidence to prove that the defendants rode together in a truck and participated in the invasion of the victim's house; although much of the state's case depended on accomplice testimony, the state presented additional corroborating evidence in the nature of the black clothing, weapons, and cellular telephone records, which tended to connect defendants to the crime. Guyton v. State, 281 Ga. 789 , 642 S.E.2d 67 (2007).
Because sufficient evidence was presented that the defendant was provoked by an attack on a sibling, and that the defendant had a history of abusive relationships with several men, the voluntary manslaughter of the male victim was supported by the evidence; moreover, evidence of the victim's stabbing and death also supported the jury's verdict with respect to the aggravated assault with a deadly weapon, felony murder, and possession of a knife during the commission of a felony charges. Breland v. State, 285 Ga. App. 251 , 648 S.E.2d 389 (2007).
There was sufficient evidence to support the defendant's convictions of felony murder, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a felony; a witness who sold drugs for the defendant had gotten into a dispute with a third person over drugs before the shooting, the defendant upon seeing the victim asked the witness if the victim was the third person in question and then shot the victim, and witnesses placed the defendant at the scene of the crime and testified that the witnesses saw the defendant carrying a gun. Johnson v. State, 282 Ga. 235 , 647 S.E.2d 48 (2007).
Evidence from eyewitnesses that the defendant had been in a heated argument with the victim, the defendant left the scene and returned with a gun, the defendant again argued with the victim, pulling out the gun and shooting the victim three times, and that the bullets recovered from the victim confirmed that the bullets were fired from the defendant's weapon, was sufficient to enable a rational trier of fact to reject the defendant's self-defense claim and to support the defendant's convictions for felony murder, aggravated assault, and possession of a firearm during the commission of a felony. Bolston v. State, 282 Ga. 400 , 651 S.E.2d 19 (2007).
It was not necessary for the state's circumstantial evidence against a defendant to exclude every conceivable hypothesis, and contrary to the defendant's assertions, the state of undress the victim was found in, coupled with DNA evidence that linked the defendant to the victim, was sufficient to support a jury's conclusion that the defendant raped and murdered the victim as opposed to having committed necrophilia or having engaged in consensual sex with the victim before the victim died. Walker v. State, 282 Ga. 406 , 651 S.E.2d 12 (2007).
There was sufficient evidence to support a defendant's conviction for felony murder of the love interest of the defendant's spouse, and the trial court did not err by denying the defendant's motions for a directed verdict or for a new trial; the trial court properly concluded that the defendant failed to prove by a preponderance of the evidence that the defendant was incompetent to stand trial based on the testimony of a state psychiatrist who determined that the defendant had some intellectual limitations and a problem with literacy, but found the defendant capable of rational and logical discussion about the circumstances of the incident to be tried, was capable of assisting in the defense, and that defendant understood the nature and object of the legal proceedings. The trial court also did not err by refusing the defendant's requested jury charges as the charges either did not relate to the evidence or the charge given was all that was necessary. Velazquez v. State, 282 Ga. 871 , 655 S.E.2d 806 (2008).
Evidence was sufficient to enable a jury to conclude that the defendant was guilty of committing the crimes of murder, felony murder, aggravated assault, burglary, and armed robbery beyond a reasonable doubt based on the evidence showing that: (1) a security guard at the hotel wherein the victim was murdered saw the vehicle the defendant often borrowed; (2) a homeless woman identified the defendant fleeing from the scene shortly after the shots were fired; (3) an acquaintance of the defendant's testified that the defendant said the defendant was going to get some money and flashed a .25 caliber handgun and invited the acquaintance to participate; and (4) the crime lab technician testified that the bullets that killed the victim came from the same gun that killed another victim the defendant was alleged to have murdered. McKnight v. State, 283 Ga. 56 , 656 S.E.2d 830 (2008).
With regard to defendant's felony murder conviction, it was within the jury's province to reject the voluntary manslaughter option on the special verdict form, finding instead that defendant was guilty of felony murder as, although defendant testified that defendant believed the victim was reaching for a weapon, police investigators testified that defendant had not told the investigators that, and the jury was not required to accept as true the version of events to which defendant testified, but could assess defendant's credibility and weigh defendant's testimony against other evidence. Sewell v. State, 283 Ga. 558 , 662 S.E.2d 537 (2008).
Testimony from an eyewitness that the defendant and the victim scuffled and fell to the ground, and that the defendant knelt over the victim, stabbing the victim repeatedly with a knife, was sufficient to support the defendant's convictions of felony murder and aggravated assault with a deadly weapon. Lampley v. State, 284 Ga. 37 , 663 S.E.2d 184 (2008).
Evidence supported a defendant's convictions of felony murder, aggravated assault, and possession of a firearm during the commission of a felony. Witnesses saw the defendant walk with the victim from a store to the victim's car and later run from the scene following the sounds of a gunshot and a car crash, and the defendant admitted pulling a gun on the victim and said that the gun had gone off during a struggle, after which the victim tried to drive away. Petty v. State, 283 Ga. 268 , 658 S.E.2d 599 (2008).
Evidence was sufficient to support two defendants' conviction of felony murder based on robbery when the defendants and a third person arranged to meet the victim to buy marijuana but decided before the meeting to take the marijuana instead; the first defendant brought a pistol and handed the pistol to the third person; the defendants and the third person ran away after the victim handed them the marijuana; and the third person fatally shot the victim when the victim pursued the three. Allen v. State, 283 Ga. 304 , 658 S.E.2d 580 (2008).
Evidence supported defendant's convictions of felony murder during commission of aggravated assault and of possessing a firearm while committing the murder; after defendant argued with the victim and hit the victim while they were riding in a car, defendant and the victim got out of the car where defendant shot at the victim multiple times, defendant fled the scene but later surrendered to authorities and stated that defendant had murdered the victim, and at trial defendant claimed that the gun accidentally discharged when defendant was trying to return the gun to the victim. Lashley v. State, 283 Ga. 465 , 660 S.E.2d 370 (2008).
Evidence was sufficient to support a defendant's conviction for felony murder based on aggravated assault and theft of the victim's car since the evidence established, inter alia, that the victim met the defendant at a motel, that the victim's blood was found in the motel room, and that a witness observed a female body in a tub in the trunk of the victim's car, which the defendant had been driving. Edmond v. State, 283 Ga. 507 , 661 S.E.2d 520 (2008).
Evidence that showed that, inter alia, a victim was standing in the driveway of the victim's employer with the victim's spouse when the defendant approached the victim in an angry manner, that they entered into a brief verbal exchange, and that the defendant then fired a gun, striking the victim in the head, was sufficient to support the defendant's conviction for felony murder. Browning v. State, 283 Ga. 528 , 661 S.E.2d 552 (2008).
Evidence was sufficient to support convictions of murder, felony murder, and armed robbery when the defendant and the codefendant offered to give the victim a ride, the defendant pointed a gun at the victim and told the victim to give the defendant the victim's money; the defendant became angry when the defendant saw that there was no money in the victim's wallet, and the defendant shot the victim in the neck, then dumped the victim's body and the wallet in a parking lot. Lockheart v. State, 284 Ga. 78 , 663 S.E.2d 213 (2008).
Sufficient evidence was presented to convict a defendant of felony murder based on evidence that the defendant and a codefendant approached the victims' rental car and brandished guns; while pistol whipping the victims and robbing them of their property, the defendant's gun went off and fatally wounded the first victim; and a gun matching the caliber of bullet recovered from the first victim during the autopsy was found during the execution of a search warrant at a hotel where the defendant had visited a guest on three occasions. Watkins v. State, 285 Ga. 107 , 674 S.E.2d 275 (2009).
Evidence supported the convictions of felony murder, aggravated assault, and possession of a knife during the commission of a felony. The victim's grandchild saw the defendant stab the victim after an argument, then went to a relative for help; the defendant then attacked the relative and fled, throwing the knife the defendant used to stab the victim in the bushes; when the defendant was found by police shortly thereafter, the defendant admitted to stabbing the victim; and a medical examiner testified that the bulk of the victim's stabs came from behind and that the cut on the defendant's hand was an offensive wound likely sustained as the defendant was stabbing the victim with enough force to break one of the victim's ribs. Butler v. State, 285 Ga. 518 , 678 S.E.2d 92 (2009).
Evidence was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of felony murder, aggravated assault, and possession of a firearm during the commission of a crime because a witness identified the defendant as the person the witness saw shooting and running, and witnesses testified that the day of the shooting the defendant told the witnesses that the victim had robbed the defendant; the mother of the defendant's children testified that the night of the shooting, the defendant came to her apartment in the same complex where the shooting took place, breathing heavily and wearing a shirt with bullet holes in the shirt. Allen v. State, 286 Ga. 392 , 687 S.E.2d 799 (2010).
Evidence was sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of felony murder while in the commission of aggravated assault because psychiatric testimony regarding the defendant's brain impairment and paranoid schizophrenia, and how defendant's mental condition would affect defendant's responses in an interview, did not make defendant's confession involuntary when the psychiatrist who testified as to the defendant's mental condition also testified that the defendant was competent to stand trial, was not delusional, and knew the difference between right and wrong; the evidence was not made insufficient by asserted inconsistencies in the defendant's confession, whether the inconsistencies were internal or with respect to other evidence, regarding identification of the weapon, how many times the defendant went to the victim's home, and defendant's knowledge of what killed the victim. Williams v. State, 287 Ga. 199 , 695 S.E.2d 246 (2010).
Conviction for felony murder during the commission of criminal attempt to commit armed robbery was affirmed because evidence was presented that: (1) the defendant, the codefendant, and an accomplice went to a drug dealer's apartment to steal money; (2) the accomplice entered the apartment to buy marijuana; (3) the defendant and the codefendant then entered the apartment; (4) when the drug dealer resisted, the defendant shot and killed the drug dealer; (5) the accomplice, in exchange for a plea deal, assisted the police in recording incriminating telephone conversations with the codefendant; and (6) the gun that was used in the shooting was found in the codefendant's apartment. Moon v. State, 288 Ga. 508 , 705 S.E.2d 649 (2011).
Evidence supported the defendant's convictions for felony murder predicated on armed robbery, armed robbery, and aggravated assault because the evidence showed that the defendant and the codefendant, after discussing the idea of stealing marijuana and whatever cash the victim had on the victim, arranged to meet with the victim to buy marijuana from the victim. When the victim got into the back seat of the defendant's vehicle and pulled out a bag of marijuana, the codefendant drew a gun and shot the victim, fatally wounding the victim. Herbert v. State, 288 Ga. 843 , 708 S.E.2d 260 (2011).
Evidence was sufficient to enable any rational trier of fact to find the defendant guilty beyond a reasonable doubt of felony murder and aggravated battery in connection with the death of a victim, the defendant's infant daughter, because the evidence showed that the defendant was the only person caring for the victim during the relevant time period and that the defendant caused the victim's death. Brinson v. State, 289 Ga. 150 , 709 S.E.2d 789 (2011).
In a felony murder case, testimony of eyewitnesses, cell phone exchanges between the cell phone in the defendant's possession and that of the victim just minutes before the shooting, the identification of a car used by the defendant as the car involved in the crime, and the defendant's statements about the shooting of the victim constituted sufficient evidence to enable a jury to find the defendant guilty beyond a reasonable doubt. Slaughter v. State, 289 Ga. 790 , 716 S.E.2d 180 (2011).
Evidence supported the defendant's convictions for felony murder, aggravated battery, kidnapping with bodily injury, aggravated assault, and burglary, after the state presented independent corroboration in support of an accomplice's testimony connecting the defendant to the crimes; the defendant's statements to police, the defendant's actions before and after the crimes, and the defendant's girlfriend's testimony stating that the defendant asked the girlfriend to lie about the defendant's whereabouts corroborated the defendant's guilt. Brown v. State, 291 Ga. 750 , 733 S.E.2d 300 (2012).
Evidence was sufficient to convict the defendant of felony murder and two counts of cruelty to a person age 65 or older because the defendant was a paid care provider for the victim, a disabled veteran; the Department of Veteran Affairs contracted with an adult daycare facility to provide care and supervision for the victim on weekdays and made arrangements with a transportation service to drive the victim to and from the daycare; the defendant knew that the victim's daycare center was closed on the day the victim died; the temperatures were freezing outside on that day; the defendant refused to allow the victim back into the house; and the victim died from hypothermia due to exposure to freezing temperatures. Smith v. State, 301 Ga. 348 , 801 S.E.2d 18 (2017).
Evidence was sufficient to convict the three defendants of unlawful participation in criminal gang activity through the commission of an aggravated assault and an aggravated battery and felony murder predicated upon criminal gang activity involving a simple battery because the defendants wore red clothing and were associated with a criminal street gang; the victim waved a blue bandana and started talking about a rival gang; the three defendants participated in beating the victim; the defendants followed the victim into the road, and beat the victim until the victim lost consciousness; the victim was almost immediately struck by a car and killed; and the witnesses testified that the three defendants were among the people who left the victim lying on the road. Anthony v. State, 303 Ga. 399 , 811 S.E.2d 399 (2018).
Defendant's conviction for felony murder was supported by evidence that the defendant agreed to sell methamphetamine and possessed a handgun, which the defendant gave to the defendant's cohort on the way to the drug sale; the two then robbed the two victims and shot at both victims, killing one; the two left the scene together, telephoned a senior gang member, and traveled to a gang safe house in Atlanta together. Boyd v. State, 306 Ga. 204 , 830 S.E.2d 160 (2019).
Circumstantial evidence was sufficient to convict the defendant of felony murder predicated on criminal attempt to commit armed robbery because the victim was found dead from gunshot wounds; the victim's wallet was missing when the victim was found; the suspect fled the scene in a small, silver sedan; the defendant's co-indictee was driving a vehicle matching that description in the area at the time of the murder; and the defendant stated in a jailhouse telephone conversation that the defendant was involved in the week-long crime spree. Perdomo v. State, 307 Ga. 670 , 837 S.E.2d 762 (2020).
Circumstantial evidence of the defendant's contentious relationship with the victim, who lived in a cabin on the defendant's property, that the victim was struck multiple times with a hatchet found in the defendant's trailer, and that a gun found in the defendant's hotel room used to shoot the victim, supported the defendant's felony murder conviction. Eggleston v. State, Ga. , S.E.2d (Sept. 28, 2020).
Evidence sufficient although cause of death undeterminable. - Evidence that the defendant made threatening remarks about the victim and then assaulted the victim in the defendant's trailer home, resulting in the victim becoming unconscious and then dying, along with evidence that the defendant admitted the murder, hid the body, and sold the victim's car was sufficient to find the defendant guilty of felony murder in spite of the fact that the medical cause of death was undeterminable due to the body's decomposition. Currier v. State, 294 Ga. 392 , 754 S.E.2d 17 (2014).
Felony murder after backing over victim with car. - Evidence supported convictions for aggravated assault, theft by taking, and felony murder when the evidence showed that the defendant pulled the victim out of the victim's car, beat the victim with a pistol, stole the car, and deliberately backed over the victim; before the crime, the defendant told an eyewitness to those acts that the defendant planned to rob the victim; and the defendant used the victim's phone after the victim's death. Lupoe v. State, 284 Ga. 576 , 669 S.E.2d 133 (2008).
Felony murder in conjunction with robbery. - Evidence was sufficient to support convictions of felony murder and possession of cocaine. A person fitting the defendant's description, wearing black clothing and carrying a black garbage bag, ran from the store where the victim worked; within an hour of the shooting, the defendant, who lived three blocks away, gave a neighbor's child "cigars without tobacco" and lottery tickets from a black garbage bag, and said that the defendant had "hit a lick"; packages of tobacco tubes were found on the ground between the store and the defendant's apartment complex; the victim's wallet was found in a trash receptacle at the complex, and a police dog followed the scent on the wallet to the defendant's apartment; officers searching the defendant's apartment found cocaine, a handgun, black clothing, a black stocking, and a novelty dollar bill of the sort that had been given to the victim the night before the shooting; and the bullet that killed the victim was fired from the handgun in the defendant's room. Jones v. State, 284 Ga. 672 , 670 S.E.2d 790 (2008).
Felony murder in gang activity. - As the defendant drove a car slowly by a house where rival gang members were while a car passenger repeatedly fired an assault rifle at the house, resulting in the death of two victims and injuries to two others, the defendant's convictions for felony murder, aggravated assault, and possession of a firearm during the commission of a felony were supported by the evidence. Deleon v. State, 285 Ga. 306 , 676 S.E.2d 184 (2009).
Evidence authorized the jury to find the defendant guilty beyond a reasonable doubt of murder, felony murder, aggravated assault, and possession of a weapon during the commission of a felony because contrary to the defendant's arguments, the evidence showed that the person who was sitting in the back seat of the victim's car was not sitting directly behind the victim, but instead, that person was in the rear seat on the passenger's side of the car; the forensics testing showed that the murderer was located to the left of the victim, not the right, and there was blood spatter on the seat behind the victim from which the jury could have inferred that no one was sitting there at the time of the shooting. Julius v. State, 286 Ga. 413 , 687 S.E.2d 828 (2010).
Evidence adduced was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of felony murder, armed robbery, and aggravated assault for attacking six people in a home because one of the victims stated that the victim saw defendant in the doorway after shots had been fired; whether the deal a codefendant made with the state rendered the codefendant's testimony biased to a degree that left the codefendant less creditworthy was a determination to be made by the jury. Mikell v. State, 286 Ga. 434 , 689 S.E.2d 286 , overruled on other grounds, Manley v. State, 287 Ga. 338 , 698 S.E.2d 301 (2010).
When the three defendants were found guilty of felony murder predicated on the defendants unlawful participation in criminal gang activity through the commission of a simple battery, and the defendants were also found guilty of voluntary manslaughter, the trial court properly convicted the defendants of felony murder because unlawful participation in criminal gang activity through the commission of a simple battery was not just a simple battery as it involved a nexus between the simple battery and the activities of the criminal street gang; and the culpability for unlawful participation in criminal gang activity was generally not susceptible of mitigation by the sort of provocation and passion that voluntary manslaughter involved. Anthony v. State, 303 Ga. 399 , 811 S.E.2d 399 (2018).
Verdicts not inconsistent. - Verdicts convicting a defendant of felony murder and vehicular homicide were not inconsistent because the felony murder and the underlying aggravated assault were based on the defendant driving a vehicle at the victim's vehicle, while the vehicular homicide charge was based on the defendant causing the victim's death by intentionally changing lanes when it was not safe to do so, meaning that the two crimes were based on distinct underlying acts, and it was neither legally nor logically impossible to convict the defendant of both crimes. Mills v. State, 280 Ga. 232 , 626 S.E.2d 495 (2006).
Similar offense evidence properly admitted. - With regard to a defendant's convictions for malice murder, aggravated assault, and possession of a firearm by a convicted felon arising out of the shooting deaths of a woman and her unborn child and the shooting at another person, because the evidence was sufficient to establish the required similarity between the charged crimes and a 1989 shooting offense, the trial court's allowance of the evidence regarding the 1989 offense was not clearly erroneous. Biggs v. State, 281 Ga. 627 , 642 S.E.2d 74 (2007).
Direct or approximate cause resulted in felony murder conviction. - Evidence was sufficient to convict a defendant on a charge of felony murder as the evidence showed that the defendant had leveled two blows with a pistol to the victim's head and testimony from the medical examiner established that either the blows or the victim's striking the victim's head on the pavement when the victim fell as a result of the blows caused the victim's fatal injuries; thus, the defendant's blows were either the direct or proximate cause of the victim's death. Chaney v. State, 281 Ga. 481 , 640 S.E.2d 37 (2007).
Proximate causation was shown in the defendant's conviction for felony murder in an armed robbery of a seller of hair (for hair weaves) because it was foreseeable that the victim would fight back and that, when the victim's friend was shot at, the victim would shoot the defendant's sister. Menzies v. State, 304 Ga. 156 , 816 S.E.2d 638 (2018).
Instruction on proximate cause in relationship to felony murder. - Trial court did not err in failing to instruct the jury on the law regarding proximate cause and its relationship to felony murder because the omission of additional language concerning proximate cause could not be considered a clear or obvious error under O.C.G.A. § 17-8-58 ; the jury was instructed that to find the defendant guilty of felony murder while in the commission of felony criminal attempt to possess cocaine, the jury had to find beyond a reasonable doubt that the felony was dangerous per se or, by the attendant circumstances in the case, created a foreseeable risk of death, and the jury was also instructed that for felony murder to be found, the jury had to find that, in the commission of the underlying felony, the defendant caused the death of another human being irrespective of malice. Sapp v. State, 290 Ga. 247 , 719 S.E.2d 434 (2011).
No error in failing to charge on proximate cause. - Trial court did not plainly err by failing to instruct the jury on proximate cause because the court did instruct the jury that the defendant was indicted for felony murder for causing the victim's death by cutting the victim with a knife and the trial court properly defined felony murder. Campbell-Williams v. State, Ga. , S.E.2d (Aug. 24, 2020).
Bragging about murder as evidence. - Felony murder shown when the defendant was overheard bragging about shooting the victim. Watkins v. State, 276 Ga. 578 , 581 S.E.2d 23 (2003).
Evidence sufficient for malice murder of business partner. - Evidence that the defendant and the victim disagreed about how their car wash business was to be run, that the defendant started removing supplies from the business, that the defendant obtained a gun and returned to the car wash, that the defendant talked to the victim outside the car wash while witnesses were inside the car wash, that the witnesses saw the defendant fire shots toward the ground and the victim's body was later found on the ground, and that the defendant admitted shooting the victim because the defendant was tired of the victim taking money from the business, was sufficient to support the defendant's conviction for malice murder although a new trial had to be held due to procedural errors that occurred. Laster v. State, 276 Ga. 645 , 581 S.E.2d 522 (2003).
No error in failing to charge on intervening cause of death. - Trial court did not plainly err by failing to instruct the jury on an intervening cause of death based on the victim's friend's failure to bring the victim directly to the hospital because the instruction was not supported by the evidence because it was reasonably foreseeable that when the defendant stabbed the victim, the victim would die without immediate medical intervention. Campbell-Williams v. State, Ga. , S.E.2d (Aug. 24, 2020).
Felony murder in death of a child. - Evidence was sufficient to support the defendant's convictions for felony murder in violation of O.C.G.A. § 16-5-1(c) and child cruelty in violation of O.C.G.A. § 16-5-70(b) after the record revealed that the eight-month old victim suffered a lacerated liver resulting from blunt force trauma to the abdomen, the injury was inflicted 12-24 hours prior to death, and that despite the infant's obvious pain and tenderness in the abdominal area, the defendant refused to take the infant, or to allow the child's parent to take the infant, to seek medical attention for fear that the baby would be taken away; although the indictment did not charge that the defendant committed the predicate act of child cruelty with malice within the count alleging felony murder, such was not insufficient because the separate count alleging child cruelty indicated that it was committed with malice. Mikenney v. State, 277 Ga. 64 , 586 S.E.2d 328 (2003).
Evidence supported the defendant's convictions of felony murder while in the commission of cruelty to children in the first degree and making a false statement to a government agency after a 23-month-old child whom the defendant had been baby-sitting died from severe aspiration pneumonia due to brain swelling and bleeding on the surface of the brain caused by multiple blows to the child's head and face; the defendant was the only adult with the child during the afternoon and early evening in question, the child had appeared uninjured and was walking when the child visited a store earlier in the day, the child had "pattern injury" contusions indicating that hair had been pulled out, a medical examiner testified that the child's brain swelling would have prevented the child from performing normal functions such as walking, talking, or waking, and the defendant told several conflicting stories about how the child had been injured. Banta v. State, 282 Ga. 392 , 651 S.E.2d 21 (2007).
There was sufficient evidence to support the defendant's convictions for the felony murder and aggravated battery of the defendant's two-month-old child: (1) the child, who had been in good health at a pediatric checkup earlier in the day, was limp and cold when the defendant brought the child to an office where the child's other parent had an appointment; (2) the child was diagnosed as a "shaken baby"; and (3) the defendant was the only person with the child during and immediately prior to the onset of the child's symptoms. Smith v. State, 283 Ga. 237 , 657 S.E.2d 523 (2008).
Felony murder committed by vehicle. - Evidence was sufficient to support felony murder and aggravated assault convictions because: (1) the defendant, after exchanging blows with the defendant's spouse while in a car, left the area but returned shortly thereafter in the car; (2) one eyewitness saw the defendant strike the spouse with the front of the car, back up striking the spouse again with the rear of the car, and drive off; (3) other witnesses saw two persons brought to the scene by the defendant beating and stomping the victim; and (4) the medical examiner testified that the victim died from blunt force head trauma consistent with being struck by a vehicle and that the force of the fatal blow would most likely have left the victim unconscious or unable to walk around. Rankin v. State, 278 Ga. 704 , 606 S.E.2d 269 (2004).
Sufficient evidence supported a conviction for felony murder because the testimony of witnesses established that, when the victim's vehicle re-entered a highway, after defendant had run the victim off the road, it was safe to do so and the defendant then abruptly changed lanes, rammed the vehicle into the rear of the victim's vehicle, and pushed the vehicle along the highway without applying the brakes. Mills v. State, 280 Ga. 232 , 626 S.E.2d 495 (2006).
When defendants struck another car while fleeing from the scene of an armed robbery defendants' committed, and expert testimony established that the driver of the car was killed by blunt impact injuries caused by the crash, the evidence was sufficient to support defendants' felony murder convictions. Mitchell v. State, 282 Ga. 416 , 651 S.E.2d 49 (2007).
Evidence sufficient for felony murder conviction despite absence of victim's body. - In a murder prosecution in which the victim's body was never found, the evidence established that defendant and the victim had left a ball park where they worked within five minutes of each other, that the victim's car was found abandoned at a gas station adjacent to the park, that a person whose voice characteristics matched defendant's said on the telephone that defendant had taken the victim at "the station," and that defendant made incriminating statements to fellow inmates, was sufficient evidence to convict defendant of murder, and to deny a directed verdict of acquittal. Hinton v. State, 280 Ga. 811 , 631 S.E.2d 365 (2006).
Felony murder committed by inmates against another inmate. - Evidence supported a defendant's conviction for felony murder (aggravated assault) as: (1) the authorities received a note stating the victim had not committed suicide in the victim's jail pod, but that the pod's inmates had murdered the victim; (2) the defendant told an agent that the defendant had complied with a co-indictee's directive to give the victim a bearhug and, when the defendant picked up the victim, the co-indictee strangled the victim with an elastic bandage; (3) the defendant also told the agent that some of the inmates believed that the victim was going to report to authorities that some inmates were chipping away at the defendant's window in an attempt to escape; (4) the chiseling around the defendant's window and a rod that served as the chisel were discovered; and (5) a forensic pathologist testified that the victim's injuries were not commonly found in a hanging, but were consistent with a ligature strangulation. McKinney v. State, 281 Ga. 92 , 635 S.E.2d 153 (2006).
2. Underlying Felony
"Felony" defined. - Under the felony-murder statute, a "felony" means any felony that is dangerous per se or which by the attendant circumstances creates a foreseeable risk of death. Ford v. State, 262 Ga. 602 , 423 S.E.2d 255 (1992).
Proof of felony required. - Proof of elements of offense of felony murder necessarily requires proof of elements of felony. Woods v. State, 233 Ga. 495 , 212 S.E.2d 322 (1975); Atkins v. Hopper, 234 Ga. 330 , 216 S.E.2d 89 (1975).
Defense counsel was not ineffective under Ga. Const. 1983, Art. I, Sec. I, Para. XIV and U.S. Const., amend. 6 for failure to request a bifurcated trial on felony murder under O.C.G.A. § 16-5-1 and on possession of a firearm by a convicted felon in violation of O.C.G.A. § 16-11-131 ; because the possession count was a predicate offense for the felony murder count, the prior conviction that was admitted into evidence was relevant to the felony murder count, and it was not necessary to sever the possession count. Wells v. State, 281 Ga. 253 , 637 S.E.2d 8 (2006).
Evidence was insufficient to support conviction for offense of felony murder based on armed robbery since there was no evidence to show that the defendants took any money or items from the restaurant at which the crime occurred or its employees, or even that they entered the restaurant after firing a fatal shot from the doorway threshold. Prater v. State, 273 Ga. 477 , 541 S.E.2d 351 (2001).
Conviction of the defendants for felony murder could not be upheld on the basis that they committed attempted armed robbery and killed the victim in the course of such crime since the court instructed the jury with regard to armed robbery but not with regard to attempted armed robbery. Prater v. State, 273 Ga. 477 , 541 S.E.2d 351 (2001).
"He causes" defined. - Supreme Court of Georgia overrules State v. Crane, 247 Ga. 779 (1981), and its subsequent cases relying upon Crane. The felony murder statute, O.C.G.A. § 16-5-1(c) , requires only that the defendant's felonious conduct proximately cause the death of another person. The causation issue should be decided by a properly instructed jury at trial, using the customary proximate cause standard. State v. Jackson, 287 Ga. 646 , 697 S.E.2d 757 (2010).
Underlying felony is a lesser included offense of felony murder under former Code 1933, § 26-505. Woods v. State, 233 Ga. 495 , 212 S.E.2d 322 (1975); Atkins v. Hopper, 234 Ga. 330 , 216 S.E.2d 89 (1975) (see O.C.G.A. § 16-1-6 ).
Felony fleeing and attempting to elude a police officer under O.C.G.A. § 40-6-395 served as a predicate to felony murder. State v. Tiraboschi, 269 Ga. 812 , 504 S.E.2d 689 (1998).
Felony murder may be predicated upon underlying felony which is itself part of the homicide. Baker v. State, 236 Ga. 754 , 225 S.E.2d 269 (1976).
Conviction of felony murder, predicated upon underlying felony which is itself a part of the homicide, does not violate doctrine of due process. Larkin v. State, 247 Ga. 586 , 278 S.E.2d 365 (1981).
Location of underlying felony. - Defendant's murder of the victim was within the res gestae of the kidnapping with bodily injury since the victim was under the continuous control of the defendant until the victim was killed; to hold otherwise would lead to the absurdity that a defendant who commits kidnapping with bodily injury in one county, and abducts the victim to a second county where defendant kills the victim without malice aforethought, could not be charged with felony murder in either county. Lee v. State, 270 Ga. 798 , 514 S.E.2d 1 , cert. denied, 528 U.S. 1006, 120 S. Ct. 503 , 145 L. Ed. 2 d 388 (1999).
Possession of a weapon on school property. - Because defendant's possession of a weapon on school property was dangerous under the circumstances, the offense was sufficient to support defendant's conviction for felony murder. Mosley v. State, 272 Ga. 881 , 536 S.E.2d 150 (2000).
Aggravated assault can be felony triggering operation of felony-murder rule. To demonstrate malice murder, evidence that the defendant acted in reckless disregard of human life is as equally probative as evidence that defendant acted with a specific intent to kill. Sutton v. State, 245 Ga. 192 , 264 S.E.2d 184 (1980).
Aggravated assault is a felony, and a death, although unintended, resulting from such assault may constitute felony murder. Marable v. State, 154 Ga. App. 426 , 268 S.E.2d 720 (1980).
Aggravated assault, assault with a deadly weapon, upon the homicide victim can support a finding of felony murder. Strong v. State, 251 Ga. 540 , 307 S.E.2d 912 (1983).
Aggravated assault as underlying felony. - When a defendant was charged in an indictment with malice murder and with possession of a pistol during the commission of a crime, and the indictment alleged that appellant shot the victim with a pistol contrary to the laws of Georgia, the trial court could charge the jury on felony murder, with aggravated assault as the supporting felony. Middlebrooks v. State, 253 Ga. 707 , 324 S.E.2d 192 (1985).
Evidence was sufficient to support convictions of the aggravated assault of one victim and of the felony murder of another victim, based on the underlying felony of aggravated assault of that victim. Walker v. State, 258 Ga. 443 , 370 S.E.2d 149 (1988).
When defendant killed the victim by stabbing the victim with a knife, the trial court was authorized in charging the jury on the principle of felony murder, the felony being aggravated assault. Catchings v. State, 256 Ga. 241 , 347 S.E.2d 572 (1986).
Defendant's aggravated assault conviction did not merge into a felony murder conviction, because neither the murder nor the underlying felony of criminal attempt to commit armed robbery required the state to prove the element of reasonable apprehension of receiving a violent injury, which was a required element of the aggravated assault count as indicted. Willingham v. State, 281 Ga. 577 , 642 S.E.2d 43 (2007).
Two defendants were properly convicted of felony murder with aggravated assault, O.C.G.A. § 16-5-21(a)(2), as the predicate felony since the evidence established that the defendants killed the victim by repeatedly striking the victim's face and head, and the jury was authorized to conclude that the defendants' hands and feet were used as deadly weapons. Dasher v. State, 285 Ga. 308 , 676 S.E.2d 181 (2009).
Evidence was sufficient to enable the trial court to find, beyond a reasonable doubt, that the defendant possessed the intent necessary to commit aggravated assault, O.C.G.A. § 16-5-21(a) , and felony murder, O.C.G.A. § 16-5-1(c) , because the defendant used a vehicle as an offensive weapon while the defendant was extremely drunk, and the evidence was sufficient to prove both forms of simply assault under O.C.G.A. § 16-5-20(a)(1)-(2) by the defendant against all six of the victims; the defendant engaged in an extended high-speed car chase with a driver, deliberately rammed the other driver's truck, and attempted to smash into the other driver head-on after the truck stalled, and within minutes after the driver escaped, the defendant came upon the other five victims by swerving sharply into oncoming traffic and slamming into a vehicle. Guyse v. State, 286 Ga. 574 , 690 S.E.2d 406 (2010).
Evidence was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of murder and aggravated assault because the defendant's conduct before, during, and after the crimes supported the finding that the defendant was a party thereto, notwithstanding the jury's acquittal of the defendant on three weapons charges. Allen v. State, 288 Ga. 263 , 702 S.E.2d 869 (2010).
Defendant's conviction for aggravated assault was not authorized because the count of the indictment that alleged aggravated assault had to be merged into the felony murder count; although the felony murder and the underlying felony were committed on different victims, the count of the indictment alleging felony murder set forth the aggravated assault against a victim as the underlying felony supporting the charge of felony murder. Glass v. State, 289 Ga. 542 , 712 S.E.2d 851 (2011).
State proved that the defendant possessed the intent required to commit the predicate aggravated assault and conspiracy felonies for the felony murder conviction because evidence was sufficient to authorize a rational jury to conclude that the defendant, with a coparty and coconspirator, intended to rob the victim using a deadly weapon, that the victim was reasonably apprehensive of receiving a violent injury as a result of their intentional acts, and that the defendant was guilty beyond a reasonable doubt as a party to the crimes for which the defendant was convicted pursuant to O.C.G.A. § 16-2-2 . Johnson v. State, 289 Ga. 498 , 713 S.E.2d 376 (2011).
Jury was authorized to find that the evidence was sufficient to find the defendant guilty beyond a reasonable doubt of felony murder during the commission of aggravated assault in the manner alleged in the indictment because at trial the medical examiner testified that the cause of the victim's death was suffocation; although the defendant told an ex-spouse over the phone that the defendant choked the victim, there was no other evidence to corroborate that statement while there was much physical and scientific evidence that pointed to the cause of death as suffocation. Davis v. State, 290 Ga. 421 , 721 S.E.2d 886 (2012).
Because the case law provided a defendant with an avenue to argue that a specific felony offense could not serve as a predicate to felony murder when such offense was neither inherently dangerous nor life-threatening, but aggravated assault with a deadly weapon was the paradigmatic inherently dangerous felony, the defendant's argument that the case law precluded the defendant's felony murder conviction based on aggravated assault with a deadly weapon was meritless. Eberhart v. State, 307 Ga. 254 , 835 S.E.2d 192 (2019).
Aggravated assault committed by police sergeant as underlying felony. - Evidence was sufficient to convict the defendant, a former police sergeant, of felony murder based on aggravated assault with a deadly weapon, specifically a TASER, because the medical examiner determined that the victim died from hypertensive cardiovascular disease exacerbated by physical exertion and conducted electrical stimulation from the application of the TASERs in drive-stun mode; and the state presented evidence that the repeated tasing of the victim in drive-stun mode over a span of about 20 minutes when the victim was exhausted from running and handcuffed not only inflicted intense physical pain, but also materially accelerated the victim's death minutes later. Eberhart v. State, 307 Ga. 254 , 835 S.E.2d 192 (2019).
Aggravated assault, possession of firearm, and discharge of firearm sufficient to support felony murder conviction. - Because the defendant and an accomplice ordered the victim and another individual against a wall, took the victim's money at gunpoint, and the defendant began to point and wave the gun when it fired, resulting in the victim being shot and subsequently dying, the evidence was sufficient for a rational trier of fact to find the defendant guilty of felony murder while committing aggravated assault and of possession of a firearm. Taylor v. State, 279 Ga. 706 , 620 S.E.2d 363 (2005).
Accomplice to aggravated assault. - Evidence that the defendant was seen making notes at the crime scene the day of the shooting, that the defendant accompanied the coconspirator knowing that the coconspirator intended to rob a cab driver, and that the defendant drove the coconspirator away after the shooting of the cab driver authorized the jury to find that the defendant was a party to the crime of aggravated assault committed with a deadly weapon, and hence to felony murder. Brown v. State, 278 Ga. 724 , 609 S.E.2d 312 (2004).
Even if defendant decided to take victim's money only after twice shooting the victim, the jury was authorized to find that the offense of murder was committed while defendant was engaged in the commission of the offense of armed robbery. Davis v. State, 255 Ga. 588 , 340 S.E.2d 862 , cert. denied, 479 U.S. 871, 107 S. Ct. 243 , 93 L. Ed. 2 d 168 (1986).
Evidence was sufficient to support the defendant's convictions on two counts of felony murder predicated on the underlying felony of aggravated assault, one count of armed robbery, and two counts of possession of a firearm in the commission of a crime, as the evidence showed that the defendant brandished a handgun and forced the two victims to give the defendant money, and that the defendant then fatally shot them after one victim argued with other people the defendant was with regarding the purity of a drug purchase the one victim had just made. Harden v. State, 278 Ga. 40 , 597 S.E.2d 380 (2004).
Death growing out of aggravated assault is either malice murder or felony murder, or else it is not punishable as a homicide. Baker v. State, 236 Ga. 754 , 225 S.E.2d 269 (1976); Cole v. State, 254 Ga. 286 , 329 S.E.2d 146 (1985).
Escape as lesser offense of felony murder. - Conviction for escape must be set aside, where it merges into greater crime of felony murder. Gore v. State, 246 Ga. 575 , 272 S.E.2d 306 (1980).
Underlying felony of armed robbery did not merge with defendant's felony-murder conviction, where the underlying felony charged in the indictment was committed upon one victim and the felony murder charged in another count of the indictment was committed upon another person. Kimbrough v. State, 254 Ga. 504 , 330 S.E.2d 875 (1985).
Criminal attempt-armed robbery is a lesser included offense of felony murder. To demonstrate malice murder, evidence that the defendant acted in reckless disregard of human life is as equally probative as evidence that defendant acted with a specific intent to kill. Farley v. State, 238 Ga. 181 , 231 S.E.2d 761 (1977).
Robbery of gas station attendant. - Evidence that the defendant shot the victim, a service station attendant, while attempting to rob the service station with a revolver was sufficient to support the defendant's conviction for felony murder. Brockman v. State, 292 Ga. 707 , 739 S.E.2d 332 (2013).
Charges of burglary and murder not legally incompatible. - Charge of burglary based on defendant's intent to commit aggravated assault on occupant of dwelling and murder for death of occupant during burglary were neither legally incompatible nor lesser included offenses of each other. Williams v. State, 250 Ga. 553 , 300 S.E.2d 301 , overruled on other grounds by Venturino v. State, 830 S.E.2d 110 , 2019 Ga. LEXIS 435 (Ga. 2019), cert. denied, 462 U.S. 1124, 103 S. Ct. 3097 , 77 L. Ed. 2 d 1356 (1983).
Evidence was sufficient to support defendant's convictions for malice murder and burglary, where defendant entered the victim's apartment with keys that defendant had as a maintenance worker. Oliver v. State, 276 Ga. 665 , 581 S.E.2d 538 (2003).
Homicide within res gestae of underlying felony of burglary. - Defendants' conviction for felony murder was affirmed because the homicide was within the res gestae of the underlying felony of burglary for the purpose of the felony-murder rule since defendants were observed in the area of the burglaries, their vehicle was parked at one of the burglarized homes, and police maintained continuous observation of defendants and their vehicle throughout the chase and subsequent death of another motorist. Westmoreland v. State, 287 Ga. 688 , 699 S.E.2d 13 (2010).
Cruelty to children as defined by O.C.G.A. § 16-5-70 may constitute the underlying felony in a felony murder prosecution. Estes v. State, 251 Ga. 347 , 305 S.E.2d 778 (1983).
Evidence that the cause of death was loss of blood due to a laceration of the liver caused by blunt force trauma to the abdomen, most likely a punch with a fist, was sufficient to show either excessive pain or the malice required for a conviction of felony murder with cruelty to children. Folson v. State, 278 Ga. 690 , 606 S.E.2d 262 (2004).
Evidence that there was an 80 to 90 percent chance that injuries that caused the death of a defendant's 10-month-old child were inflicted within an hour of the child's death, that the defendant left the apartment at 4:10 P.M., that an attending physician was called to the emergency room at 5:46 P.M., and that the child was dead on arrival at the emergency room was sufficient to support the defendant's convictions for felony murder while in commission of cruelty to a child in the second degree, aggravated assault, and cruelty to a child in the first degree; the evidence permitted the jury to conclude that the time frame in which the child's injuries were inflicted included the time before the defendant left for work, there was evidence concerning the defendant's actions before and after the child's death that indicated the defendant's guilt, and the jury was not required to accept the defendant's version of events. White v. State, 281 Ga. 276 , 637 S.E.2d 645 (2006).
Sufficient evidence supported a conviction of felony murder while in the commission of cruelty to children in the first degree: (1) the pathologist who performed the child's autopsy testified that the 14-month-old child, who had been injured while left in the defendant's care, died from multiple blunt force injuries that were inconsistent with falling off a bed or being dropped, as claimed by the defendant; (2) a defense pathologist agreed that there were at least seven distinct impact sites on the child's head and about 105 impact sites on the child's body; and (3) there was evidence that two years before, the defendant's six-month-old child had been left in the defendant's care and had been returned to the child's parent with unexplained bruises and other injuries. Moore v. State, 283 Ga. 151 , 656 S.E.2d 796 (2008).
Evidence was sufficient to convict the defendant of felony murder, predicated on cruelty to children in the second degree for failing to obtain medical treatment for the victim, because the defendant's oldest daughter heard a bump and the victim cry sometime before 10 o'clock in the evening; the medical examiner said the victim was alive for approximately three hours after experiencing the trauma to the victim's head; it was evident that the victim experienced head trauma because of the vomit in the defendant's bedroom; and the medical examiner testified the victim sustained four impacts to the victim's head and the injuries sustained were inconsistent with a household fall. Jones v. State, 302 Ga. 488 , 807 S.E.2d 344 (2017).
Conspiracy to commit armed robbery. - Since murder is probable consequence of conspiracy to commit armed robbery, codefendant is equally responsible for murder although the codefendant was not actual slayer and was not present at the time of killing. Fortner v. State, 248 Ga. 107 , 281 S.E.2d 533 (1981).
Cardiac arrest during burglary. - Evidence that the cause of death was cardiac arrest caused by the victim's small coronary arteries and the stress of events during the burglary was sufficient to sustain a conviction for felony murder. Durden v. State, 250 Ga. 325 , 297 S.E.2d 237 (1982).
Possession of firearm by convicted felon. - Crime of possession of a firearm by a convicted felon does not merge with act of shooting the firearm; therefore, a jury may find a convicted felon guilty of felony murder by treating the felon's possession of a firearm in committing the murder as the underlying felony. Scott v. State, 250 Ga. 195 , 297 S.E.2d 18 (1982); Brand v. State, 258 Ga. 378 , 369 S.E.2d 896 (1988).
A status felony, including the possession of a firearm by a convicted felon, is not inherently dangerous and, under circumstances which involve no assault or any other criminal conduct, is not a felony upon which a felony murder conviction may be obtained. Ford v. State, 262 Ga. 602 , 423 S.E.2d 255 (1992).
Defendant's demurrer to a charge of felony murder, predicated on a charge of possession of a weapon by a convicted felon, in violation of O.C.G.A. § 16-11-131 , which was predicated on defendant's out-of-state misdemeanor conviction for involuntary manslaughter, for which the maximum sentence was five years imprisonment, was properly sustained, because § 16-11-131(a) did not give defendant adequate notice that defendant's misdemeanor conviction could be used as the predicate felony for a charge of possession of a firearm by a convicted felon. State v. Langlands, 276 Ga. 721 , 583 S.E.2d 18 (2003).
Defendant's conviction of possession of a firearm by a convicted felon under O.C.G.A. § 16-11-131 merged with the defendant's conviction of felony murder under O.C.G.A. § 16-5-1(c) predicated on possession of a firearm by a convicted felon. Lawson v. State, 280 Ga. 881 , 635 S.E.2d 134 (2006).
Defendant's conviction of voluntary manslaughter under O.C.G.A. § 16-5-2 did not require reversal of the defendant's conviction of felony murder under O.C.G.A. § 16-5-1(c) when the underlying felony was possession of a firearm by a convicted felon, as those offenses did not merge. Lawson v. State, 280 Ga. 881 , 635 S.E.2d 134 (2006).
Conviction of felony murder upheld. - When the state's evidence showed that the defendant pulled into a parking lot while the victim was robbing a friend of the defendant's, waited in the defendant's car until the victim came around a corner, and then shot the victim three times without the victim ever having aimed the victim's gun at the defendant, there was sufficient evidence to convict the defendant of felony murder based on the defendant's killing the victim while being a convicted felon in possession of a firearm in violation of O.C.G.A. § 16-11-131 ; although the defendant claimed that the defendant acted in self-defense, the jury was free to reject the defendant's claim. Roper v. State, 281 Ga. 878 , 644 S.E.2d 120 (2007).
Convicted felon in possession of a firearm who furnishes it to another for the purpose of shooting a third person may be found guilty of felony murder even though the trigger-man is found guilty of malice murder. Whitehead v. State, 255 Ga. 526 , 340 S.E.2d 885 (1986).
Victim shot during theft. - Felony-murder rule is applicable where defendant's purpose in shooting victim was to commit theft. Edwards v. State, 233 Ga. 625 , 212 S.E.2d 802 (1975).
Offense of misuse of a firearm while hunting can serve as the predicate felony to a felony murder conviction. Chapman v. State, 266 Ga. 356 , 467 S.E.2d 497 (1996).
Distributing controlled substance as underlying felony. - Defendant may be convicted of felony murder based on the underlying felony of distributing a controlled substance if that felony is inherently dangerous, and if the defendant directly causes the death of the victim while in the commission of the felony. Hulme v. State, 273 Ga. 676 , 544 S.E.2d 138 (2001).
Evidence was sufficient to support conviction of felony murder based on the underlying felony of distributing a controlled substance since the defendant controlled the dosages of methadone that the victim took on a daily basis and gave the victim a dosage on the day of the victim's death that could have been lethal without regard to other drugs the victim might have consumed. Hulme v. State, 273 Ga. 676 , 544 S.E.2d 138 (2001).
Evidence that the defendants knew the victim had been drinking and taking drugs when they injected the victim with oxycodone, and that the victim died of a drug overdose was sufficient to prove that the defendants directly caused the victim's death in the commission of a felony, the distribution of oxycodone. Carter v. State, 285 Ga. 394 , 677 S.E.2d 71 (2009).
Participation in drug transaction meant no instruction on justification. - Based on the evidence supporting the defendant's participation in a felony drug transaction at the time of the fatal shooting of the victim, the trial court was authorized to instruct the jury pursuant to O.C.G.A. § 16-3-21(b)(2) that a person was not justified in using force in defense of self or others if the person was attempting to commit, committing, or fleeing after the commission or attempted commission of a felony; the defendant affirmatively chose to engage in the potentially dangerous and violent criminal business of a felony drug deal before the fatal confrontation with the victim took place. Smith v. State, 290 Ga. 768 , 723 S.E.2d 915 (2012).
Child abuse. - Ample evidence concerning the child victim's condition and expert testimony regarding the same was presented to authorize the jury to find defendant guilty of committing felony murder by holding the child in scalding water, and guilty of committing cruelty to a child by failing to provide medical attention, and to reject the evidence and hypothesis defendant presented in an attempt to refute the charges. Robles v. State, 277 Ga. 415 , 589 S.E.2d 566 (2003).
Voluntary and involuntary manslaughter do not invoke felony murder rule. - Voluntary manslaughter, and felony of involuntary manslaughter where it applies, are not themselves felonies which will invoke felony-murder rule as to death of main victim. Therefore, if a jury finds felonious manslaughter, they should not go on to reason that this offense, being itself a felony, turns the killing into a felony murder. The jury should be instructed in accordance with this principle. Malone v. State, 238 Ga. 251 , 232 S.E.2d 907 (1977).
When the jury renders a verdict for voluntary manslaughter, the jury cannot also find felony murder based on the same underlying aggravated assault. Edge v. State, 261 Ga. 865 , 414 S.E.2d 463 (1992).
Voluntary manslaughter is a lesser included offense of felony murder. Young v. State, 141 Ga. App. 261 , 233 S.E.2d 221 (1977).
With respect to jury instructions, voluntary manslaughter is a lesser included offense of felony murder under O.C.G.A. §§ 16-1-6 and 16-5-1(c) , because an act done in passion involves a less culpable mental state than the state of real or imputed malice which is the foundation of the felony-murder rule. Therefore, where facts warrant it, a charge on voluntary manslaughter may indeed be given in a felony-murder trial. Malone v. State, 238 Ga. 251 , 232 S.E.2d 907 (1977).
Defendant, who shot the victim in the abdomen, should not have been convicted of both voluntary manslaughter in violation of O.C.G.A. § 16-5-2 and felony murder while in the commission of an aggravated assault in violation of O.C.G.A. § 16-5-1(c) ; there was one assault, and the jury found that the fatal assault was mitigated by provocation and passion, so only the voluntary manslaughter conviction was proper. Lawson v. State, 280 Ga. 881 , 635 S.E.2d 134 (2006).
Conviction of both felony murder and underlying felony is proscribed, since latter is lesser included offense of former. Woods v. State, 233 Ga. 495 , 212 S.E.2d 322 (1975); Atkins v. Hopper, 234 Ga. 330 , 216 S.E.2d 89 (1975).
Defendant in felony-murder trial cannot be convicted of felony upon which conviction of felony murder is based, as it is a lesser included offense of felony murder. Collier v. State, 244 Ga. 553 , 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346 , 63 L. Ed. 2 d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538 , 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23 , 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819 , 561 S.E.2d 82 (2002).
Defendant may not be convicted lawfully of both felony murder and an underlying felony if the felony murder and underlying felony were committed on different victims, and when the count of the indictment alleging felony murder sets forth the underlying felony or felonies supporting the charge of felony murder. Walker v. State, 254 Ga. 149 , 327 S.E.2d 475 , cert. denied, 474 U.S. 865, 106 S. Ct. 185 , 88 L. Ed. 2 d 154 (1985).
Defendant may not be convicted of felony murder and also be convicted of the underlying felony (cruelty to children) which was alleged by the indictment to support the conviction of felony murder. Zackery v. State, 257 Ga. 442 , 360 S.E.2d 269 (1987).
Defendant may not be convicted of felony murder and also be convicted of the underlying felony which was alleged by the indictment to support the felony murder conviction; and sentence for the aggravated assault was therefore vacated. Jones v. State, 264 Ga. 144 , 442 S.E.2d 245 (1994).
Evidence of guilt overwhelming despite attempt to commit felony murder not recognized crime. - Assuming without deciding that an attempt to commit felony murder is not a recognized crime in Georgia, the evidence supporting the defendant's other convictions was overwhelming; thus, the inclusion of the attempt to commit felony murder counts, even if erroneous, would not have prejudiced the jury's consideration of guilt as to the other counts in the indictment. Summerlin v. State, 339 Ga. App. 148 , 793 S.E.2d 477 (2016).
Challenge to felony murder conviction moot. - Defendant's challenge to the defendant's felony murder conviction was moot because that conviction was vacated by operation of law. Mills v. State, 287 Ga. 828 , 700 S.E.2d 544 (2010).
Possession of controlled substance. - Because the defendant participated in a felony drug deal as the purchaser, the defendant was affirmatively choosing to engage in a dangerous and potentially violent criminal activity; thus, the defendant's criminal attempt to possess cocaine was dangerous and sufficiently connected to the murder so as to also serve as an underlying felony for the felony murder conviction. Chance v. State, 291 Ga. 241 , 728 S.E.2d 635 (2012).
3. Termination of Underlying Felony
Homicide as felony murder committed after technical completion of underlying felony. - Murder may be committed in commission of a felony so as to come within O.C.G.A. § 16-5-1(c) , although the murder does not take place until after the felony itself has been technically completed, if it is committed within res gestae of the felony. Collier v. State, 244 Ga. 553 , 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346 , 63 L. Ed. 2 d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538 , 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23 , 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819 , 561 S.E.2d 82 (2002).
Whether felony is terminated is question of fact for jury unless evidence is so overwhelming that reasonable people could not differ. Collier v. State, 244 Ga. 553 , 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346 , 63 L. Ed. 2 d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538 , 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23 , 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819 , 561 S.E.2d 82 (2002).
When underlying felony terminates for purposes of felony-murder rule. - Weight of authority holds that underlying felony continues during escape phase of felony if there is continuous pursuit immediately organized, and felony terminates at point perpetrator has arrived at place of seeming security or when perpetrator is no longer pursued by authorities. Collier v. State, 244 Ga. 553 , 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346 , 63 L. Ed. 2 d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538 , 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23 , 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819 , 561 S.E.2d 82 (2002).
What constitutes pursuit so as to continue underlying felony during escape. - Mere fact of delay in beginning pursuit until alarm can be sounded and pursuit organized and instituted does not necessarily segregate flight and prevent its being part and parcel of crime. Collier v. State, 244 Ga. 553 , 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346 , 63 L. Ed. 2 d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538 , 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23 , 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819 , 561 S.E.2d 82 (2002).
Homicide committed in flight from felony invokes felony-murder rule. - Homicide is within res gestae of underlying felony for purpose of felony-murder rule if it is committed while fleeing scene of crime. Collier v. State, 244 Ga. 553 , 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346 , 63 L. Ed. 2 d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538 , 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23 , 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819 , 561 S.E.2d 82 (2002).
When victims were killed while defendant was fleeing the scene of a burglary, defendant was still in the commission of the burglary for purposes of the felony murder rule. Diamond v. State, 267 Ga. 249 , 477 S.E.2d 562 (1996).
There was no fatal variance between a felony-murder indictment, which alleged that the defendant and an accomplice beat and choked a home-invasion robbery victim, and the proof at trial, which showed that the victim died of smoke inhalation after being left unconscious in a burning house, because the choking rendered the victim unconscious and proximately caused the victim's death in the fire. Cooper v. State, 286 Ga. 66 , 685 S.E.2d 285 (2009).
Effect of perpetrator's arrest. - Underlying felony can terminate for purpose of felony-murder rule if perpetrator is arrested. Collier v. State, 244 Ga. 553 , 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346 , 63 L. Ed. 2 d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538 , 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23 , 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819 , 561 S.E.2d 82 (2002).
For arrest to terminate felony for purpose of felony-murder rule, perpetrator must be subjected to complete custody; perpetrator must acquiesce and submit to arrest; and perpetrator's surrender must be complete and continuous. Collier v. State, 244 Ga. 553 , 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346 , 63 L. Ed. 2 d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538 , 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23 , 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819 , 561 S.E.2d 82 (2002).
Deadly Weapons
That instrument is a weapon likely to produce death may be shown by circumstantial evidence. - An instrument may be shown to be a weapon likely to produce death, by direct proof as to its character, by exhibition of it to jury, or by evidence as to nature of wound, or other evidence such as would warrant jury in finding the instrument was one calculated to produce death; the evidence need not be direct, but may be circumstantial. Kennedy v. State, 191 Ga. 22 , 11 S.E.2d 179 (1940) (decided under former Code 1933, §§ 26-1003, 26-1004).
That weapon is one likely to produce death may be shown by nature of wound. Blakewood v. State, 196 Ga. 34 , 25 S.E.2d 643 (1943) (decided under former Code 1933, §§ 26-1003, 26-1004).
An automobile is not per se a deadly weapon; when death results from its reckless or unlawful use, state relies upon implied malice in prosecution for murder in such instance. Huntsinger v. State, 200 Ga. 127 , 36 S.E.2d 92 (1945) (decided under former Code 1933, §§ 26-1003, 26-1004).
Shoe or boot as weapon likely to produce death. - Shoe or boot, when used to severely and brutally kick a helpless man, lying down, on his head, could be properly classified as a blunt instrument and a weapon likely to produce death. Goss v. State, 61 Ga. App. 621 , 7 S.E.2d 87 (1940) (decided under former Code 1933, §§ 26-1003, 26-1004).
Whether limb of tree is a weapon likely to produce death is a jury question. Smithwick v. State, 199 Ga. 292 , 34 S.E.2d 28 (1945) (decided under former Code 1933, §§ 26-1003, 26-1004).
Hands as deadly weapons. - Evidence that the victim was hit so hard by the defendant from behind that the victim's arms flew up in the air as the victim fell, causing the victim's fatal vertebral artery hemorrhage, was sufficient to authorize a jury to find defendant used defendant's hands as deadly weapons to commit felony aggravated assault, and thus felony murder. Miller v. State, 275 Ga. 730 , 571 S.E.2d 788 (2002), cert. denied, 538 U.S. 1004, 123 S. Ct. 1911 , 155 L. Ed. 2 d 835 (2003).
Automobile as deadly weapon. - Defendant's possession of a stolen automobile was sufficient to support a felony murder conviction, as the vehicle's possession played a role in the defendant's decision to flee, and a decision to remain in the stolen car in order to flee created a foreseeable risk of death; further, the jury was authorized to infer from this conduct that the defendant had an intent to injure in attempting to elude the police. Turner v. State, 281 Ga. 487 , 640 S.E.2d 25 (2007).
Lamps as deadly weapons. - Evidence was sufficient to support convictions of felony murder and of aggravated assault when during an argument the defendant threw a glass-jug lamp, fatally injuring one victim and causing the other to lose consciousness and require seven stitches. Hester v. State, 283 Ga. 367 , 659 S.E.2d 600 (2008).
When the defendant was accused of felony murder and aggravated assault by throwing a lamp at the victims, because the indictment alleged that the lamp was an object that when used offensively against a person was likely to and actually did result in serious bodily injury, an allegation that the lamp was a deadly weapon was not required. Furthermore, the indictment was not too vague as the defendant clearly was apprised that the defendant would have to defend against the allegation that the defendant struck one victim on and about the head with the lamp, and the defendant admitted to a law enforcement officer that the defendant had thrown the lamp at the other victim. Hester v. State, 283 Ga. 367 , 659 S.E.2d 600 (2008).
Evidence of cause of death. - Evidence authorized a jury to find that the victim died as a result of blows inflicted by the defendant because an emergency room physician testified that the victim was beaten with a blunt instrument, received multiple, and serious, head blows, and that the victim died from brain injuries when the victim was later removed from life support systems. Phillips v. State, 280 Ga. 728 , 632 S.E.2d 131 (2006).
Jury Instructions
Court charging regarding both murder and voluntary manslaughter. - If there is a doubt, however slight, as to whether offense is that of murder or voluntary manslaughter, it is the duty of the court to submit the law of both murder and manslaughter and let the jury determine the grade of the offense of the homicide. Thomas v. State, 47 Ga. App. 237 , 170 S.E. 303 (1933) (decided under former Penal Code 1910, §§ 61, 62); Thomas v. State, 51 Ga. App. 455 , 180 S.E. 760 (1935) (decided under former Code 1933, §§ 26-1003, 26-1004); Hayes v. State, 51 Ga. App. 462 , 180 S.E. 762 (1935) (decided under former Code 1933, §§ 26-1003, 26-1004); Goldsmith v. State, 54 Ga. App. 268 , 187 S.E. 694 (1936) (decided under former Code 1933, §§ 26-1003, 26-1004); Dickey v. State, 60 Ga. App. 199 , 3 S.E.2d 238 (1939) (decided under former Code 1933, §§ 26-1003, 26-1004); North v. State, 69 Ga. App. 836 , 26 S.E.2d 892 (1943) (decided under former Code 1933, §§ 26-1003, 26-1004); Harris v. State, 77 Ga. App. 842 , 50 S.E.2d 152 (1948) (decided under former Code 1933, §§ 26-1003, 26-1004).
Taken as a whole, jury re-charge did not lead the jury to believe that passion and provocation were relevant only as to felony murder or permit the jury to convict the defendant of malice murder despite having found that the defendant killed the victim while acting in sudden passion resulting from serious provocation; in the initial charge the jury was informed that a finding of malice was necessary for a homicide to constitute murder, was given the definition of express malice, and was told malice could be implied if there was no considerable provocation. Williams v. State, 279 Ga. 154 , 611 S.E.2d 19 (2005).
Since the defendant was convicted of malice murder, any error in charging the jury to consider voluntary manslaughter only after finding reasonable doubt as to the existence of malice murder was harmless. Williams v. State, 279 Ga. 154 , 611 S.E.2d 19 (2005).
Jury was properly charged that it could not find the defendant guilty of felony murder if it concluded the underlying felony of aggravated assault was the result of passion and provocation, but would be authorized to find the defendant guilty of voluntary manslaughter. Williams v. State, 279 Ga. 154 , 611 S.E.2d 19 (2005).
In a murder prosecution, a defendant was not entitled to an instruction on voluntary manslaughter because testimony that the defendant shot the victim because the defendant panicked and was frightened showed, at best, that the defendant was attempting to repel an attack, not that there was sufficient anger to invoke passion. Bell v. State, 280 Ga. 562 , 629 S.E.2d 213 (2006).
Charge on manslaughter unnecessary where state's unrefuted evidence shows premeditation. - Where state's evidence shows that homicide was premeditated murder, and defendant introduces no evidence, and there is nothing in defendant's statement that indicates in the slightest that the homicide was manslaughter, court does not err in failing to charge on law of manslaughter. Murray v. State, 214 Ga. 350 , 104 S.E.2d 905 (1958) (decided under former Code 1933, §§ 26-1003, 26-1004).
Charge on transferred intent inappropriate. - Because the charge on transferred intent was not adjusted to the evidence, it was error for the trial court to so instruct the jury, and trial counsel performed deficiently by failing to object to the giving of that charge and the prosecutor's closing argument addressing the inapplicable principles of transferred intent; there was no evidence that the defendant was intending to shoot any other person when the defendant shot the victim so as to bring the case within the typical "innocent bystander" scenario in which the doctrine of transferred intent was applied, but in light of the overwhelming evidence of the defendant's guilt, it was highly probable that the charge did not contribute to the verdict. Boatright v. State, 289 Ga. 597 , 713 S.E.2d 829 (2011).
Instructing on logical order in which to consider offenses. - Instructions were not subject to objection, where the trial court did not instruct the jury that it had to find the defendant not guilty of any particular offense prior to considering any lesser offense; rather, it simply gave the jury a logical order in which to consider the offenses. Zackery v. State, 257 Ga. 442 , 360 S.E.2d 269 (1987).
"Shall be implied" language of instruction did not unconstitutionally shift burden of proof to the defendant, as the language instructed the jury that the jury must find malice if the state proved the predicate facts of no considerable provocation and an abandoned and malignant heart. Humphrey v. Boney, 785 F.2d 1495 (11th Cir. 1986).
Charge that malice is presumed from intentional killing and that it rests with defendant to show justification or excuse unless they appear from state's evidence is not unconstitutionally burden-shifting. Burger v. State, 238 Ga. 171 , 231 S.E.2d 769 (1977).
Charge on malice need not be in exact language of section. - When judge on trial of one charged with murder, undertakes to define that offense, and malice, as employed in definition of murder, it is better to charge in language of statute, but failure to use this identical language does not constitute prejudicial error, where no essential element is omitted from the definition, and nothing is added to impair meaning as expressed in the statute. Adams v. State, 188 Ga. 668 , 4 S.E.2d 663 (1939) (decided under former Code 1933, §§ 26-1003, 26-1004).
Slight variation from language of section in charge on implied malice does not constitute error where section is substantially complied with. Shepherd v. State, 150 Ga. 799 , 105 S.E. 485 (1920) (decided under former Penal Code 1910, §§ 61, 62).
Malaprop in jury instruction. - Trial court's malaprop in instructing the jury that the jury was authorized to convict the defendant on malice murder based on malice or forethought, rather than malice aforethought, was a singular occurrence, and the jury was otherwise properly and accurately charged on malice murder; and the jury was instructed that the state was required to prove every material allegation of the indictment - which included the language "malice aforethought" - and every essential element of the offenses charged therein. Walker v. State, 308 Ga. 33 , 838 S.E.2d 792 (2020).
No error in recharging jury. - There was no error either in the jury recharge clarifying malice murder, or in the reception of the guilty verdicts; the actual guilty verdicts against both defendants were not received and published until after the jurors heard the recharge and then retired for further deliberations. Cox v. State, 279 Ga. 223 , 610 S.E.2d 521 (2005).
Trial court did not err by defining "malice aforethought" in response to a request from the jury for a recharge because the instruction was based on the pattern charge and was legally correct; given the correct and detailed instructions contained in the trial court's original charge to the jury, it was unlikely that the jury was confused by the recharge, which clearly indicated that premeditation was not an element of the crime. Dukes v. State, 290 Ga. 486 , 722 S.E.2d 701 (2012).
Denying request to recharge jury on affirmative defenses not reversible error. - Because no abuse of discretion resulted from the trial court's order denying defense counsel's request that the court recharge the jury on the affirmative defenses of accident and reasonable discipline of a minor, but the court granted the jury's request for a recharge as to the offenses of malice murder and felony murder, the defendant's felony murder and cruelty to children convictions were affirmed. Johnson v. State, 281 Ga. 770 , 642 S.E.2d 827 (2007).
Charge of mutual combat. - Erroneous failure to charge on mutual combat is reversible error where verdict is for murder. Davis v. State, 76 Ga. App. 427 , 46 S.E.2d 520 (1948) (decided under former Code 1933, §§ 26-1003, 26-1004).
When the defendant maintained that the trial court erred in failing to charge the law of mutual combat, but the evidence showed at most that the defendant and the victim pushed one another and "threw a few punches," and there was no evidence that they mutually agreed or intended to fight with deadly weapons, the requested charge was not warranted by the evidence and the trial court did not err in refusing to give the instruction. Martin v. State, 258 Ga. 300 , 368 S.E.2d 515 (1988).
Trial court properly chose not to give a jury charge on mutual combat in the defendant's criminal trial, whereupon the defendant was convicted of felony murder, as there was no evidence that during the physical altercation between the defendant, the victim, and others, the victim was armed with a deadly weapon; in fact, the evidence allowed the jury to find that the victim was unarmed during the fight while the defendant was armed with a gun. Hudson v. State, 280 Ga. 123 , 623 S.E.2d 497 (2005).
Trial counsel did not perform deficiently by failing to request a charge on mutual combat because there was no evidence of a mutual intention to fight; at trial, the defendant presented the defense of accident and asserted that the defendant lacked any intention to shoot the victim, but there was no evidence reflecting that the defendant and the victim mutually agreed to fight each other. Boatright v. State, 289 Ga. 597 , 713 S.E.2d 829 (2011).
Motive as proper subject for attorneys' closing arguments. - The motive for the killing, or lack thereof, is proper subject matter for the closing arguments of both the prosecution and the defense. Wade v. State, 258 Ga. 324 , 368 S.E.2d 482 (1988), cert. denied, 502 U.S. 1060, 112 S. Ct. 941 , 117 L. Ed. 2 d 111 (1992).
Charge on intent in murder trial did not unconstitutionally shift the burden of proof. Parker v. State, 256 Ga. 363 , 349 S.E.2d 379 (1986).
Instruction on voluntary manslaughter warranted. - Although there was sufficient evidence to support a defendant's conviction for murder beyond a reasonable doubt with regard to the stabbing death of the victim, which the defendant claimed was in self-defense, the defendant's conviction was reversed as the trial court erred in failing to give a jury instruction on voluntary manslaughter because there was evidence that the defendant overreacted and was outnumbered by the victim and another and could have felt threatened. Webb v. State, 284 Ga. 122 , 663 S.E.2d 690 (2008).
Instruction on voluntary manslaughter not warranted. - Where defendant was convicted of malice murder, the trial court properly refused to charge the jury on voluntary manslaughter, as there was no evidence that defendant stabbed the victim as the result of passion arising from reasonable provocation. Bell v. State, 276 Ga. 206 , 576 S.E.2d 876 (2003).
In a murder prosecution, the trial court properly refused to give jury instructions on voluntary manslaughter, involuntary manslaughter, pointing a pistol at another, and accident as: (1) no evidence of provocation was presented; (2) the victim faced a window through which the defendant pointed a pistol and reacted to the presence of a gun; (3) a demand from the defendant showed an apprehension of receiving a violent injury; and (4) the evidence showed that the victim was killed during the defendant's effort to rob the victim at gunpoint. Roberts v. State, 282 Ga. 548 , 651 S.E.2d 689 (2007).
Because the evidence presented showed that the defendant acted in a rational and calculating fashion in retrieving a car jack, breaking out the exterior light to darken the scene, and then quietly snuck into and through the victim's house in search of the victim, and did not show that the defendant's actions were the result of a sudden, violent, and irresistible passion, the defendant was not entitled to a charge on voluntary manslaughter, and a malice murder conviction was upheld on appeal. Taylor v. State, 282 Ga. 502 , 651 S.E.2d 715 (2007).
In a malice murder prosecution, as the evidence did not show the defendant was provoked seriously enough to cause a reasonable person to fatally stab the victim, the defendant was not entitled to a voluntary manslaughter instruction under O.C.G.A. § 16-5-2(a) . Boyd v. State, 284 Ga. 46 , 663 S.E.2d 218 (2008).
Trial court did not err by refusing to give the defendant's request for a jury instruction on voluntary manslaughter because the record failed to reveal any evidence that would support a voluntary manslaughter charge; the evidence and testimony at trial revealed that although a gun was in the victim's car at the time of the murder, the victim did not say or do anything before the defendant shot the victim, let alone do anything that would constitute the "serious provocation" necessary to warrant a charge on voluntary manslaughter. Lawrence v. State, 286 Ga. 533 , 690 S.E.2d 801 (2010).
During the defendant's trial for murder, the trial court did not err by refusing the defendant's request to charge the jury on voluntary manslaughter because in the absence of any evidence of a romantic relationship between the defendant and the teenaged victim, there could be no serious provocation created by the victim's call to her ex-boyfriend that could have aroused passion in a reasonable person pursuant to O.C.G.A. § 16-5-2(a) . Crawford v. State, 288 Ga. 425 , 704 S.E.2d 772 (2011).
Trial court did not err by refusing to charge the jury on voluntary manslaughter because the defendant's testimony that the defendant was not upset but fired a gun out of fear, in self-defense, and in defense of the defendant's parent showed that the defendant did not shoot a child in the heat of passion, and the other evidence was not to the contrary; rather, the testimony of the neighbors, who were the child's parents and the only other trial witnesses present during the shooting demonstrated, at most, that the defendant could have opened fire in response to the neighbors' heated or angry statements, which, as a matter of law, could not constitute "serious provocation" within the meaning of O.C.G.A. § 16-5-2(a) . Davidson v. State, 289 Ga. 194 , 709 S.E.2d 814 (2011).
During the defendant's murder trial, the trial court did not err by denying the defendant's request to charge on the lesser included offense of voluntary manslaughter, O.C.G.A. § 16-5-2 , since the defendant testified that the defendant fired a pistol because the defendant was "just scared," and acting out of fear was not the same as acting in the heat of a sudden irresistible passion. Funes v. State, 289 Ga. 793 , 716 S.E.2d 183 (2011).
Trial court did not give the jury an incomplete charge regarding the lesser included offense of voluntary manslaughter because the instruction did not prevent the jury from fully considering voluntary manslaughter and was adequate to inform the jury that before the jury could convict defendant of malice or felony murder, the jury had to first consider whether there was sufficient evidence of passion or provocation to support a conviction for voluntary manslaughter. Kendrick v. State, 290 Ga. 873 , 725 S.E.2d 296 (2012).
Instruction on involuntary manslaughter warranted. - With regard to a defendant's conviction for the felony murder of the defendant's wife, with aggravated assault as the underlying felony, the trial court erred by refusing the defendant's requested charge on involuntary manslaughter with pointing a pistol at another as the predicate misdemeanor, which entitled the defendant to a new trial based on the defendant testifying that the shooting occurred inadvertently when, in the course of horseplay with the pistol, the defendant pulled the trigger while pointing the pistol at the victim's head, not knowing there was a round in the chamber. Manzano v. State, 282 Ga. 557 , 651 S.E.2d 661 (2007).
Given evidence at trial that the defendant, age 15, was playing with a gun near the back of the defendant's father's head when the defendant shot the defendant's father, the trial court erred in refusing the defendant's request to charge on involuntary manslaughter as a lesser included offense of malice murder, not just as a lesser included offense of felony murder, and appellate counsel was ineffective in failing to make this argument. The "unlawful act" required for involuntary manslaughter could have been reckless conduct under O.C.G.A. § 16-5-60 . Seabolt v. Norris, 298 Ga. 583 , 783 S.E.2d 913 (2016).
Instruction on involuntary manslaughter not warranted. - Because the state did not allege that the felony murder victim died as a result of non-felony conduct, but the victim's death occurred as a result of the defendant's commission of a felony in the course of fleeing and attempting to elude the police, an involuntary manslaughter instruction was not warranted. Turner v. State, 281 Ga. 487 , 640 S.E.2d 25 (2007).
When evidence established either that defendant intentionally shot and killed the victim or that a pistol discharged accidentally and no offenses occurred, this showed either commission of felony murder and aggravated assault or commission of no offense, and the trial court did not err in refusing to give a lesser included offense charge on involuntary manslaughter based on reckless conduct. Lashley v. State, 283 Ga. 465 , 660 S.E.2d 370 (2008).
When the defendant was charged with felony murder, with cruelty to a child in the first degree as the underlying felony, the trial court properly denied the defendant's request for a jury instruction on felony involuntary manslaughter under O.C.G.A. § 16-5-3(a) as a lesser included offense. Contrary to the defendant's argument, the state did not present any evidence that the child died as a result of lack of medical care; furthermore, because the defendant argued that it was the child's parent who shook the child and that the defendant only tried to revive the child, such an instruction was not necessary because the evidence showed either the charged crime or no crime. Bostic v. State, 284 Ga. 864 , 672 S.E.2d 630 (2009).
Trial court did not err in refusing to instruct the jury on voluntary manslaughter as a lesser included crime of malice murder because a charge on voluntary manslaughter was precluded by the evidence when there was no evidence to illustrate the existence of provocation before the fatal shots were fired; the defendant assaulted the victim with a deadly weapon and then fired the fatal shots into the victim's back, and there was no evidence that the defendant had any type of relationship with the friend who was arguing with the victim that would explain an impassioned attack. Hicks v. State, 287 Ga. 260 , 695 S.E.2d 195 (2010), overruled on other grounds by McClure v. State, 306 Ga. 856 , 834 S.E.2d 96 (2019).
Trial court did not err by failing to give the defendant's requested charge on the lesser included offense of involuntary manslaughter, O.C.G.A. § 16-5-3 , because the defendant's admitted act of purposefully putting a gun to the fearful victim's head and pulling the trigger constituted the felony offense of aggravated assault, O.C.G.A. § 16-5-21 , not reckless conduct, O.C.G.A. § 16-5-60(b) ; the defendant's testimony that the victim began crying when the victim saw the gun provided evidence that the victim perceived the gun to be a loaded weapon that could be used to inflict a violent injury, which was a reasonable perception, and the jury's verdict of guilty on the felony murder charge established the existence of all the elements of the underlying felony offense of aggravated assault. Jones v. State, 289 Ga. 145 , 710 S.E.2d 127 (2011).
Trial court did not err by denying the defendant's request to charge the jury on involuntary manslaughter as a lesser included offense of the felony murder charge because the defendant's admitted act of purposefully firing a gun at the victim constituted the felony offense of aggravated assault, not reckless conduct; the jury's verdict of guilty on the felony murder charge established the existence of all the elements of the underlying felony offense of aggravated assault. Kendrick v. State, 290 Ga. 873 , 725 S.E.2d 296 (2012).
Charge on party to crime proper. - During the defendant's trial for felony murder, the trial court did not err in giving a charge on party to a crime because the charge given was legally correct and was supported by evidence presented at trial; in addition to the evidence linking the defendant to the commission of the crimes for which the defendant was convicted, there was evidence from an expert firearms examiner concerning the amount of time it would take for one person to shoot and re-load the two-shot derringer believed to be the murder weapon in order to fire six shots into the two victims, there was evidence that a confidential informant had told authorities that two shooters killed the victims, and the defendant testified that a drug dealer knew about the drug transaction between the defendant and one of the victims, that the defendant had loaned the defendant's truck to the drug dealer and had sold the defendant's derringers to the drug dealer prior to the murder of the victims. Baptiste v. State, 288 Ga. 653 , 706 S.E.2d 442 (2011).
When the defendant was convicted of murder, armed robbery, and related crimes in connection with the death of the victim, the defendant's counsel was not ineffective for failing to object to the trial court's jury instruction on parties to a crime, insofar as the indictment did not specifically charge the defendant as a party, because it was well-settled that the indictment need not specifically charge a criminal defendant as a party to the crime in order to permit a jury instruction on accomplice liability and authorize a conviction based thereon. Babbage v. State, 296 Ga. 364 , 768 S.E.2d 461 (2015).
Failure to charge on implied malice is not harmful when the jury is instructed that the jury must find actual malice before finding defendant guilty of malice murder. Jackson v. State, 269 Ga. 494 , 500 S.E.2d 902 (1998).
Instruction defining express and implied malice as requiring neither premeditation nor a preconceived intention to kill was a correct statement of the law. Wright v. State, 255 Ga. 109 , 335 S.E.2d 857 (1985).
Presumption that killing was intentional and malicious. - In prosecution for murder, trial court correctly charged that if state proved that defendant killed person named in indictment by use of a deadly weapon, the killing would be presumed to be intentional and malicious unless circumstances of alleviation, excuse, or justification appeared to satisfaction of jury. Felts v. State, 244 Ga. 503 , 260 S.E.2d 887 (1979), aff'd, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019 , 69 L. Ed. 2 d 398 (1981), overruled on other grounds, Baker v. Montgomery, 811 F.2d 55 (11th Cir. 1987); but see Holloway v. McElroy, 474 F. Supp. 1363 (M.D. Ga. 1979), aff'd, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019 , 69 L. Ed. 2 d 398 (1981), overruled on other grounds, Baker v. Montgomery, 811 F.2d 55 (11th Cir. 1987).
As to a charge of malice murder, because the trial court erroneously gave the state's requested jury instruction that the law presumed an intention to kill and malice was to be implied from the use of a deadly weapon, the defendant's malice murder conviction had to be reversed. Further, the error could not be considered harmless as: (1) there were no witnesses to the shooting; (2) the victim was shot only once; (3) the defendant claimed to have fired the weapon during a struggle with the victim after the defendant's accomplices fled the scene; and (4) the fact that the fatal shot was fired from a distance of three or more feet was not inconsistent with the defendant's story of a struggle and did not overwhelmingly establish that the defendant acted with malice in shooting the victim. Warren v. State, 283 Ga. 42 , 656 S.E.2d 803 (2008).
Constitutionality of presumptions of malice and intent. - Charges in homicide prosecution that malice is presumed from intentional killing and that intent is presumed from use of a deadly weapon did not violate due process, because there is a rational connection between facts proved and facts presumed. Patterson v. State, 239 Ga. 409 , 238 S.E.2d 2 (1977), aff'd, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019 , 69 L. Ed. 2 d 398 (1981), overruled on other grounds, Baker v. Montgomery, 811 F.2d 55 (11th Cir. 1987); but see Holloway v. McElroy, 474 F. Supp. 1363 (M.D. Ga. 1979), aff'd, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019 , 69 L. Ed. 2 d 398 (1981), overruled on other grounds, Baker v. Montgomery, 811 F.2d 55 (11th Cir. 1987).
Charge on assault with intent to murder when death not necessarily caused by intentional shooting. - When one is charged with murder by shooting and evidence does not demand finding that victim died from such gunshot wounds and defendant admits shooting, a verdict of guilty of assault with intent to murder may be authorized and it is not error to charge the jury on such lesser crime. Kimbro v. State, 113 Ga. App. 314 , 147 S.E.2d 876 (1966) (decided under former Code 1933, §§ 26-1003, 26-1004).
Jury instructions on presumption of intent did not shift burden. - Jury charge that "a presumption is a conclusion which the law draws from given facts"; that presumptions are rebuttable; and that the state must prove every element of the crime, including intent, beyond a reasonable doubt as a whole did not impermissibly shift the burden of proof to the defendant. Roberson v. State, 253 Ga. 239 , 319 S.E.2d 444 (1984).
Presumptions as to intent and malice are not unconstitutionally burden-shifting. - It is not unconstitutionally burden-shifting to presume that intentional homicide is malicious until the contrary appears, nor to presume intent to kill from use of deadly weapon. Such charges to a jury lay no burden of proof on defendant, but merely require defendant in certain circumstances to go forward with evidence. Thomas v. State, 240 Ga. 454 , 241 S.E.2d 204 (1978).
Instruction on presumption must note it is rebuttable. - Court erred in charging the jury that, "If you find that a homicide is proved to have been committed in this case by the defendant, and with a weapon that you find was, in the manner in which it was used upon the occasion in question, a weapon likely to produce death, the law would presume malice and the intent to kill," without also informing the jury that the presumption of intent may be rebutted. Trenor v. State, 252 Ga. 264 , 313 S.E.2d 482 (1984).
Instruction removing presumption of innocence. - Instruction which told the jury, at defendant's trial for felony-murder based upon the commission of armed robbery, that the acts of a person of sound mind and discretion are presumed to be the product of the person's will was reversible error, because it removed the presumption of innocence and relieved the state of the burden of proving beyond a reasonable doubt that defendant intentionally committed the felony of armed robbery by requiring the jury to presume that the defendant intended to perform defendant's actions. Hall v. Kelso, 892 F.2d 1541 (11th Cir. 1990).
Instruction on inferred intent and malice from proven circumstances. - Trial court's jury instruction in a murder prosecution that intent may be inferred from proven circumstances or by the acts and conduct of the defendant or may be presumed when it would be the natural and necessary consequence of the particular acts did not impermissibly relieve the prosecution of the prosecution's burden of proving intent beyond a reasonable doubt or otherwise undermine the fact-finding responsibility of the jury. Lamb v. Jernigan, 683 F.2d 1332 (11th Cir. 1982), cert. denied, 460 U.S. 1024, 103 S. Ct. 1276 , 75 L. Ed. 2 d 496 (1983).
Instruction on the presumption of malice was not interpreted as burden-shifting. Jarrell v. Balkcom, 735 F.2d 1242 (11th Cir. 1984), cert. denied, 471 U.S. 1103, 105 S. Ct. 2331 , 85 L. Ed. 2 d 848 (1985).
Instruction on implying malice. - Jury instruction in a murder prosecution that malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart could not, in view of the strong circumstantial evidence that preceded it, have been interpreted by the jury as changing the reasonable-doubt burden of proof they were initially told that the prosecution had to meet. Lamb v. Jernigan, 683 F.2d 1332 (11th Cir. 1982), cert. denied, 460 U.S. 1024, 103 S. Ct. 1276 , 75 L. Ed. 2 d 496 (1983).
Instruction that "malice shall be implied where no considerable provocation appears and where all of the circumstances of the killing show an abandoned and malignant heart" did not improperly relieve the state of its burden of proving malice. Walden v. State, 251 Ga. 505 , 307 S.E.2d 474 (1983).
Trial court does not err in charging, relative to implied malice, the language of O.C.G.A. § 16-5-1 . Mapp v. State, 258 Ga. 273 , 368 S.E.2d 511 (1988).
When the defendant was charged with murder under O.C.G.A. § 16-5-1 , the post-evidentiary charge, in which the jury was instructed that malice may be implied when no considerable provocation appears and when all the circumstances of the killing show an abandoned and malignant heart, being more favorable to appellant than the acceptable statutory charge, was not reversible error. Gambrel v. State, 260 Ga. 197 , 391 S.E.2d 406 (1990).
Instruction stating "malice may be inferred" did not impermissibly shift burden of proof to the defendant. Adams v. State, 255 Ga. 356 , 338 S.E.2d 860 (1986).
Instruction on inferring intent from use of deadly weapon. - Although the trial court erred by instructing the jury that it could infer intent to kill from the use of a deadly weapon, the error was harmless because defendant was found guilty of felony murder rather than malice murder. Ross v. State, 276 Ga. 747 , 583 S.E.2d 850 (2003).
Defendant's challenge to a jury instruction regarding inferring the intent to kill from the use of a deadly weapon failed; because felony murder did not require intent to kill (defendant only had to have intended to commit the underlying felony), any inference regarding the intent to kill would have had no bearing on the commission of felony murder. Brown v. State, 278 Ga. 544 , 604 S.E.2d 503 (2004)(Unpublished).
In a trial on a charge of malice murder, while the trial court erred in charging the jury that it could infer the intent to kill if a person used a deadly weapon and caused the death of a human being, the error was harmless because there was overwhelming evidence of malice, and thus, it was highly probable that the improper charge did not contribute to the verdict. Davis v. State, 279 Ga. 11 , 608 S.E.2d 628 (2005).
Harris v. State, 273 Ga. 608 , 543 S.E.2d 716 (2001), which held that a jury charge on malice that allowed a jury to infer an intent to kill by a defendant's use of a deadly weapon, applied to the defendant's case, which was pending on direct review when Harris was decided; however, any error in giving the jury the erroneous charge was harmless in light of the overwhelming evidence of malice. Flanders v. State, 279 Ga. 35 , 609 S.E.2d 346 (2005).
Instruction on the effect of a deadly weapon, which stated that malice and intent to kill would be presumed if the murder was committed with a "weapon likely to produce death," was upheld. Jarrell v. Balkcom, 735 F.2d 1242 (11th Cir. 1984), cert. denied, 471 U.S. 1103, 105 S. Ct. 2331 , 85 L. Ed. 2 d 848 (1985).
Instruction erroneously shifted burden to defendant. - It was erroneous to charge in a homicide prosecution that the law presumes that every homicide is malicious until the contrary appears from the circumstances of alleviation, excuse, or justification and that it is incumbent upon the accused to make out such circumstances to the jury's satisfaction unless such circumstances appear from the evidence produced against the accused; but the error was harmless beyond a reasonable doubt where the evidence of guilt was so overwhelming that the error could not have contributed to the jury's decision to convict. Lamb v. Jernigan, 683 F.2d 1332 (11th Cir. 1982), cert. denied, 460 U.S. 1024, 103 S. Ct. 1276 , 75 L. Ed. 2 d 496 (1983).
Instructions on malice and flight not burden-shifting. - See Ingram v. State, 253 Ga. 622 , 323 S.E.2d 801 (1984), cert. denied, 473 U.S. 911, 105 S. Ct. 3538 , 87 L. Ed. 2 d 661 (1985).
Following jury instruction impermissibly shifted the burden on to the defendant to disprove malice: "When and if a killing is proved to your satisfaction to be the intentional act of the defendant, himself, the presumption of innocence with which he enters upon the trial is removed from him. And, the burden is upon him to justify or mitigate the homicide, unless the evidence introduced against him shows justification or mitigation." Dix v. Newsome, 584 F. Supp. 1052 (N.D. Ga. 1984).
Instruction which unconstitutionally shifted the burden of proof was harmless error where, even absent the erroneous charge, no rational jury would have drawn any other inferences from defendant's conduct but that defendant intended to kill the victim. Lancaster v. Newsome, 880 F.2d 362 (11th Cir. 1989).
"Use of deadly weapon" charge is error, whether or not it is accompanied by an instruction that the jury has discretion to make the inference. This new rule of criminal procedure will be applied to all cases in the pipeline. Harris v. State, 273 Ga. 608 , 543 S.E.2d 716 (2001).
Jury instructions regarding intent impermissibly shifted burden of proof and rendered conviction invalid. Franklin v. Francis, 720 F.2d 1206 (11th Cir. 1983), aff'd, 471 U.S. 307, 105 S. Ct. 1965 , 85 L. Ed. 2 d 344 (1985).
Erroneous instruction harmless if intent not at issue. - An instruction which could lead a reasonable juror to understand as creating a mandatory presumption of intent may nevertheless be found to be harmless if intent is not at issue in the case or is overwhelmingly proved. Burger v. Kemp, 785 F.2d 890 (11th Cir. 1986), aff'd, 483 U.S. 776, 107 S. Ct. 3114 , 97 L. Ed. 2 d 638 (1987).
Instruction shifting burden where defendant claims self-defense. - An erroneous charge to the jury that shifted the burden of persuasion to defendant on the element of intent was harmless, where defendant relied on the defense of self-defense. White v. State, 255 Ga. 731 , 342 S.E.2d 304 (1986).
Trial court erred in failing to charge a jury on the principles of retreat when self-defense was a defendant's sole defense, the prosecution placed the concept of retreat in issue during cross-examination of the defendant, and evidence of the defendant's guilt on charges that included aggravated assault was not overwhelming. Felder v. State, 291 Ga. App. 740 , 662 S.E.2d 826 (2008).
Charge that when defendant admits killing defendant must show justification is not erroneous. - On trial of one charged with murder, it is not error to charge jury that if the defendant admits the killing, the law places upon the defendant the burden to satisfy the jury that the defendant was justified under some rule of law, unless admissions, together with evidence in the case against the defendant, or statement of the defendant, show justification or mitigation. Gay v. State, 173 Ga. 793 , 161 S.E. 603 (1931) (decided under former Penal Code 1910, §§ 61, 62).
When defendant admits homicide without stating excuse or justification. - Charge on confessions is authorized when accused admits homicide of which accused is charged and in connection therewith states no facts or circumstances showing excuse or justification for killing; and this is true although, when referring on another occasion to the killing, the accused states facts or circumstances showing excuse or justification therefor. Weatherby v. State, 213 Ga. 188 , 97 S.E.2d 698 (1957) (decided under former Code 1933, §§ 26-1003, 26-1004).
Effect of state's evidence showing mitigating circumstances, justification, or alleviation. - When any of the state's evidence shows mitigating circumstances, justification, or alleviation, it is error to charge that malice will be presumed from commission of homicide with a deadly weapon, and that burden rests upon the accused to show justification or mitigation. Jordon v. State, 232 Ga. 749 , 208 S.E.2d 840 (1974).
When the evidence as to provocation and self-defense is in dispute, it should be submitted to the jury to determine if the killing was with malice, express or implied. West v. State, 251 Ga. 458 , 306 S.E.2d 909 (1983).
Erroneous instruction on implied malice. - In prosecution for murder it was error to instruct that "implied malice is an intention to kill which is proven either by the act of the killing itself, the surrounding circumstances, or the absence of any provocation"; a reasonable juror could have construed the instruction as an irrebuttable direction to find intention to kill upon proof of either (1) absence of provocation or (2) the act of killing itself. Parks v. State, 254 Ga. 403 , 330 S.E.2d 686 (1985).
Charge on felony murder under malice murder indictment is not error where warranted by evidence. Marable v. State, 154 Ga. App. 426 , 268 S.E.2d 720 (1980).
Instructions on felony murder and aggravated assault moot in light of malice murder conviction. - Any issue concerning the trial court's issuance of instructions to the jury on the offenses of felony murder and aggravated assault became moot when a defendant was convicted and sentenced on a charge of malice murder. Parker v. State, 282 Ga. 897 , 655 S.E.2d 582 (2008).
Charge of felony-murder without defining elements of underlying felony is harmful error. Edwards v. State, 233 Ga. 625 , 212 S.E.2d 802 (1975).
Instruction on nexus between felony and death. - Trial court did not err in charging the jury on the nexus requirement between the felony and the death of the victim because the trial court gave the jurors the pattern charge on felony murder at least three times. Johnson v. State, 289 Ga. 650 , 715 S.E.2d 99 (2011).
Application of forcible felony instruction. - On appeal from a conviction for voluntary manslaughter as a lesser-included offense of malice murder, the appeals court found that no error or prejudice resulted from the trial court's denial of the defendant's request for an aggravated battery charge as a forcible felony in support of the defendant's justification claim, and affirmed the trial court's choice to charge on aggravated assault and rape as the defendant failed to present evidence of any reasonable belief that the use of force was necessary to prevent the commission of an aggravated battery. Wicker v. State, 285 Ga. App. 294 , 645 S.E.2d 712 (2007).
Charge of self-defense and accident. - Where the defendant based the defense upon a claim of justification, and the court charged the jury as to self defense and accident, the court's refusal to charge involuntary manslaughter was not error. Willis v. State, 258 Ga. 477 , 371 S.E.2d 376 (1988).
Charge of accident not warranted. - In a prosecution for felony murder and the predicate felonies of aggravated battery, O.C.G.A. § 16-5-24(a) , and first-degree child cruelty, O.C.G.A. § 16-5-70 , assuming arguendo that the evidence supported an instruction on accident, the trial court's failure to give that instruction was not reversible error as the jury's conclusion that the defendant acted with malice, which was supported by overwhelming evidence, necessarily meant that the jury would have rejected any accident defense. Sears v. State, 290 Ga. 1 , 717 S.E.2d 453 (2011).
Instruction on alibi. - Where the evidence in support of the defense of alibi does not show the impossibility of the defendant's presence at the scene of the crime at the time of its commission, the failure of the court to charge the law of alibi is not error. Hulett v. State, 262 Ga. 194 , 415 S.E.2d 642 (1992).
Trial court did not sua sponte err in failing to charge jury on identity as: (1) there was Georgia law requiring a trial judge to warn the jury against the possible dangers of mistaken identification of an accused as the person committing a crime; and (2) such was not required after the jury had already been charged as to the presumption of innocence, reasonable doubt, burden of proof, credibility of witnesses, and impeachment of witnesses. Lee v. State, 281 Ga. 776 , 642 S.E.2d 835 (2007).
Issuance of sequential jury charge in trial for malice, murder, felony murder, and aggravated assault. - In a prosecution for malice murder, felony murder, and aggravated assault, although no error resulted from the trial court's issuance of a sequential jury charge, because the jury found in the defendant's favor on the defense of justification as to the malice murder count, the finding also applied to the felony murder charge. Thus, the trial court erred in finding the defendant guilty of both felony murder and the underlying felony of aggravated assault. Turner v. State, 283 Ga. 17 , 655 S.E.2d 589 (2008).
Instructions on both murder and voluntary manslaughter should be given where warranted. - On trial of murder case, if there is any evidence, however slight, as to whether offense is murder or voluntary manslaughter, instruction as to law of both offenses should be given to jury. Birdsong v. State, 140 Ga. App. 719 , 231 S.E.2d 813 (1976); Raines v. State, 247 Ga. 504 , 277 S.E.2d 47 (1981); Coleman v. State, 256 Ga. 306 , 348 S.E.2d 632 (1986).
It is permissible for the court to instruct the jury that it might consider voluntary manslaughter if it did not believe that the defendant was guilty of malice murder and if it did not believe that defendant was guilty of felony murder. This is not a "sequential" charge of the type disallowed by the holding in Edge v. State, 261 Ga. 865 (2), 414 S.E.2d 463 (1992). Shaw v. State, 263 Ga. 88 , 428 S.E.2d 566 (1993).
Error in charge on presumed intent was harmless where defendant had pleaded self-defense. - Error, if any, in jury charge on presumed intent in trial for malice murder was harmless where defendant had pleaded self-defense at trial and had acknowledged that homicide was intentional. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980).
Evidence of good character alone does not require charge on voluntary manslaughter in murder case, although good character may of itself constitute a defense in behalf of an accused so as to generate reasonable doubt of guilt. Swett v. State, 242 Ga. 228 , 248 S.E.2d 629 (1978).
Self-defense instruction properly refused. - When, in a trial for homicide, the record contained no evidence of a verbal threat made by the victim to the defendant, and there was testimony that the victim said he could "get out of the car and discuss this like a man," whereupon the victim exited his car and "reached for" the defendant, but after the victim saw the defendant's handgun, he re-entered his automobile, these acts, standing alone, did not constitute a sufficient threat to render pointing a loaded pistol at another a lawful act of self-defense. Rhodes v. State, 257 Ga. 368 , 359 S.E.2d 670 (1987).
While the defendant admitted shooting the victim, the defendant, with the help of an expert witness, attempted to show that the defendant had shot the victim in order to release oneself and the defendant's family from a voodoo or "roots" spell the victim had cast over them for a long period of time, the trial court's refusal to charge on self-defense was proper. McDaniel v. State, 257 Ga. 345 , 359 S.E.2d 642 (1987).
Because no construction of the evidence would support a finding that the defendant shot in self-defense pursuant to O.C.G.A. § 16-3-21(a) , the trial court properly refused to charge on that issue; the defendant pointed to no evidence that the defendant entered a fracas between the victim and the victim's friend in defense of the friend, and the unarmed victim was shot three times in the back as the victim was attempting to flee after the defendant assaulted the victim with a firearm. Hicks v. State, 287 Ga. 260 , 695 S.E.2d 195 (2010), overruled on other grounds by McClure v. State, 306 Ga. 856 , 834 S.E.2d 96 (2019).
Trial court was authorized to instruct the jury pursuant to O.C.G.A. § 16-3-21(b)(2) that self-defense was inapplicable when the defendant was attempting to commit or was committing a felony because the defendant made an affirmative choice to engage in a dangerous and potentially violent criminal activity when the defendant participated in a drug transaction. Davis v. State, 290 Ga. 757 , 725 S.E.2d 280 (2012).
Instruction on vehicular homicide. - Trial court did not err in denying the defendant's request to instruct the jury on vehicular homicide as a lesser-included offense of felony murder because that lesser-included offense was not before the jury; before the case went to the jury, the trial court entered a directed verdict in the defendant's favor on the greater offense of felony murder and, thus, as the jury did not consider the greater offense, it could likewise not consider the lesser included offense for which the defendant had not been indicted. Johnson v. State, 289 Ga. 650 , 715 S.E.2d 99 (2011).
Charge on accident not warranted. - Where in a murder trial the defendant testified that defendant deliberately fired through a glass window pane at a large figure, a charge on accident was not authorized. Duke v. State, 256 Ga. 671 , 352 S.E.2d 561 (1987).
Because the defendant admitted killing the defendant's spouse and witnesses testified that the spouse feared the defendant would kill the spouse if the spouse left, the evidence was sufficient to find the defendant guilty of malice murder; consequently, the trial court did not err in declining to give a charge on "accident." Mathis v. State, 279 Ga. 100 , 610 S.E.2d 62 (2005).
Trial court did not err in rejecting the defendant's request to instruct the jury on the affirmative defense of accident, O.C.G.A. § 16-2-2 , since although the defendant said that the defendant did not fire a gun intentionally, the defendant also testified that the defendant climbed into bed with the victim holding a loaded handgun with the defendant's finger on the trigger because the defendant wanted the victim to understand the seriousness of the defendant's concerns about infidelity; while the defendant initially denied pointing the gun at the victim and said the defendant kept the gun by the defendant's side, the defendant later admitted that the defendant did point the gun at the victim's head and that the gun went off when the victim smacked the gun away, and misuse of a firearm in the manner described by the defendant showed a degree of culpability that constituted criminal negligence. Mills v. State, 287 Ga. 828 , 700 S.E.2d 544 (2010).
Reckless conduct instruction unwarranted in felony murder trial. - Because the evidence in the defendant's felony murder trial, with aggravated assault as the underlying felony, showed without dispute that, although the defendant might not have intended to kill the victim, the defendant intentionally gunned the engine and then drove at the victim, who was acting aggressively and was armed with a knife, the trial judge did not err in denying the defendant's request for a reckless conduct instruction, but properly instructed the jury on the issue of justification. Berry v. State, 282 Ga. 376 , 651 S.E.2d 1 (2007).
Trial court did not err by failing to include reckless conduct on the verdict form as a lesser-included offense of felony murder because a separate reckless conduct option was not required to be on the verdict form since there was no evidence of reckless conduct other than that which directly related to the death of the victim, thus, the reckless conduct charge had to be in the context of involuntary manslaughter. Banks v. State, 329 Ga. App. 174 , 764 S.E.2d 187 (2014).
Instruction on mistake of fact not warranted. - In a murder prosecution, the fact that the defendant testified to a belief that the defendant was required to defend self because the victim was about to drag the defendant down the street with a truck did not entitle the defendant to a mistake of fact defense under O.C.G.A. § 16-3-5 , because the trial court gave a complete charge on the principles of law relating to the asserted defenses of justification and self-defense. Bell v. State, 280 Ga. 562 , 629 S.E.2d 213 (2006).
"Flight" charge not warranted. - When the state's evidence in a murder case was that prior to trial, while the defendant was free on bond and before a trial date had been set, the defendant married a member of the armed services and went with the spouse for a period of time to West Germany, but the defendant made no attempt to evade trial nor failed to appear at trial, and the undisputed evidence showed that the defendant fully cooperated with the authorities in their investigation of the victim's death, there was no evidence of "flight" from which an inference of a consciousness of guilt might be drawn, and a flight charge should not have been given. Duke v. State, 256 Ga. 671 , 352 S.E.2d 561 (1987).
No harm from alleged error in instructions on murder where defendant convicted of manslaughter and thereby acquitted of murder. Chancellor v. State, 165 Ga. App. 365 , 301 S.E.2d 294 (1983).
Charge on lesser offense of voluntary manslaughter warranted. - See Wesley v. State, 166 Ga. App. 28 , 303 S.E.2d 124 (1983).
Lack of proper jury instruction resulted in improper conviction. - When an original indictment charged the defendant with murder and with possessing a firearm during the commission of that murder, but the jury found the defendant guilty of the lesser included offense of voluntary manslaughter, the defendant was improperly convicted of possession of a firearm during the commission of a crime as there was no instruction identifying voluntary manslaughter as a felony. Prather v. State, 259 Ga. App. 441 , 576 S.E.2d 904 (2003).
Failure to charge on lesser included offense of voluntary manslaughter not error absent written request made at or before close of evidence in trial for malice murder. Howe v. State, 250 Ga. 811 , 301 S.E.2d 280 (1983).
Court did not err in refusing to charge the jury on voluntary manslaughter when, even if the evidence had justified such a charge, absent a written request, it is not error to fail to so charge. Mosley v. State, 257 Ga. 382 , 359 S.E.2d 653 (1987).
Voluntary manslaughter charge is not warranted when the only alleged evidence of provocation is the victim resisting an armed robbery. Nance v. State, 272 Ga. 217 , 526 S.E.2d 560 , cert. denied, 531 U.S. 950, 121 S. Ct. 353 , 148 L. Ed. 2 d 284 (2000).
In a murder prosecution, a jury charge on voluntary manslaughter, as a lesser-included offense, was unwarranted, as the evidence showed that the defendant had the chance to walk away from a heated argument with the victim, but instead calmly retrieved a knife, concealed it, and deliberately re-initiated the argument before plunging the knife into the victim's abdomen. Ballard v. State, 281 Ga. 232 , 637 S.E.2d 401 (2006).
Trial court's refusal to charge the jury on voluntary manslaughter as a lesser included offense of murder was not erroneous when evidence of a sudden, violent, and irresistible passion resulting from serious provocation was lacking. Walker v. State, 281 Ga. 521 , 640 S.E.2d 274 (2007).
Failure to charge on involuntary manslaughter as a lesser included offense of felony murder. - Trial court did not err by refusing to charge the jury on involuntary manslaughter in the commission of a lawful act in an unlawful manner, O.C.G.A. § 16-5-3(b) , as a lesser included offense of a felony murder charge based on the underlying offense of cruelty to children: the defendant had not requested such a charge in writing; moreover, the evidence, including the defendant's claim that the child's death was caused by an accidental fall while the defendant was playing with the child, did not warrant a charge on lawful act-unlawful manner involuntary manslaughter. Moore v. State, 283 Ga. 151 , 656 S.E.2d 796 (2008).
Instruction on terroristic threats. - In a trial for murder of her husband, defendant's requested jury charge regarding terroristic threats was properly refused, where none of the alleged threats by the victim were corroborated as contemplated by O.C.G.A. § 16-11-37 . Chapman v. State, 258 Ga. 214 , 367 S.E.2d 541 (1988).
Instruction on concealing a death. - Concealing a death, O.C.G.A. § 16-10-31 , and felony murder, O.C.G.A. § 16-5-1 , have entirely different elements and require proof of totally different facts, and thus, the crime of concealing a death is not included, as a matter of fact or law, in felony murder during the commission of aggravated assault; a trial court's refusal to give a requested charge on concealing the death of another as a lesser included offense of felony murder was proper. Chapman v. State, 280 Ga. 560 , 629 S.E.2d 220 (2006).
Absent request, judge need not charge regarding turbulent or violent character of the deceased. Fudge v. State, 190 Ga. 340 , 9 S.E.2d 259 (1940) (decided under former Code 1933, §§ 26-1003, 26-1004).
Jury charge held harmless error. - See Stephens v. Kemp, 846 F.2d 642 (11th Cir.), cert. denied, 488 U.S. 872, 109 S. Ct. 189 , 102 L. Ed. 2 d 158 (1988).
Although the trial court erred in charging the jury that if a person of sound mind and discretion intentionally and without justification used a deadly weapon or instrumentality in the manner in which such weapon or instrumentality was ordinarily used and thereby caused the death of a human being, the jury could infer malice and the intent to kill, it was highly probable that the erroneous instruction did not contribute to the verdict because there was evidence that the defendant participated in two meetings to plan the murder, instructed a codefendant on how to perform the murder, was present at the victim's home on the morning the victim was killed, and accepted payment for the murder. Owens v. State, 286 Ga. 821 , 693 S.E.2d 490 , cert. denied, 131 S. Ct. 156 , 178 L. Ed. 2 d 93 (2010), overruled on other grounds by Shelton v. Lee, 2016 Ga. LEXIS 452 (Ga. 2016).
Sequential charge held reversible error. - Because trial court's recharge improperly emphasized malice murder and felony murder, preventing the jury from giving full consideration to voluntary manslaughter, this amounted to reversible error; thus, defendant's felony murder conviction had to be reversed. Lewis v. State, 283 Ga. 191 , 657 S.E.2d 854 (2008).
Court did not err in failing to recharge jury as to mutual combat when the jury requested a recharge on murder and voluntary manslaughter, but there was no request as to a recharge on mutual combat. Welch v. State, 257 Ga. 197 , 357 S.E.2d 70 (1987).
Erroneous failure to charge on mutual combat. - When one is on trial for murder and a verdict for voluntary manslaughter is returned, it is not reversible error for the court to fail to charge law of mutual combat as applied to self-defense, since a verdict for voluntary manslaughter is an acquittal of murder. Davis v. State, 76 Ga. App. 427 , 46 S.E.2d 520 (1948) (decided under former Code 1933, §§ 26-1003, 26-1004).
Erroneous charge on malice is harmless error where only issue is identity of accused. - When the only issue was as to the identity of the accused, it appearing without dispute that the persons who killed the deceased were guilty of the offense of murder, it was not cause for a new trial that the trial judge did not define express malice in the exact language of the statute, in that the judge omitted the word "unlawfully" as contained therein. Peeples v. State, 178 Ga. 675 , 173 S.E. 850 (1934) (decided under former 1933, Code §§ 26-1002, 26-1003, 26-1004).
Cruelty to children instruction not required in malice murder prosecution. - In a prosecution for malice murder, the trial court did not err in refusing to give an instruction on cruelty to children as an included offense. Loren v. State, 268 Ga. 792 , 493 S.E.2d 175 (1997).
Instruction on parental obligations under § 19-7-2 . - In a prosecution for malice murder of defendant's minor child, the trial court did not err in refusing to give an instruction on the parental obligation to provide for the maintenance, protection, and education of a minor child under O.C.G.A. § 19-7-2 . Loren v. State, 268 Ga. 792 , 493 S.E.2d 175 (1997).
Instruction that "a reckless disregard for human life may be equivalent to the specific intent to kill" was not error. Walden v. State, 251 Ga. 505 , 307 S.E.2d 474 (1983).
Charges in homicide prosecution that malice is presumed from intentional killing and that intent is presumed from use of deadly weapon are not unconstitutionally burden-shifting because the instruction does not shift any burden of proof or persuasion to defendant. Patterson v. State, 239 Ga. 409 , 238 S.E.2d 2 (1977).
No error in failing to charge on mere presence. - Evidence elicited at trial did not support a charge on mere presence because the defendant took an active role in the crime; the defendant drove the codefendants to the crime scene with the intent to rob, the defendant turned off the car's lights to assist in accosting the victims by surprise, the defendant drove the defendant's comrades away from the crime, and the defendant tried to get rid of the stolen car. Huckabee v. State, 287 Ga. 728 , 699 S.E.2d 531 (2010).
In a murder prosecution, the trial court did not err when the court refused to give the defendant's requested charge on mere presence as there was no evidence that the defendant was merely present when the victim was shot; instead, the uncontroverted evidence showed that the defendant took an active part in the victim's death. Flowers v. State, 291 Ga. 122 , 728 S.E.2d 196 (2012).
No error in failing to charge on accessory after the fact. - Because the defendant was not charged with being an accessory after the fact, the trial court did not err when the court refused to give a charge on accessory after the fact. Huckabee v. State, 287 Ga. 728 , 699 S.E.2d 531 (2010).
Instruction on inherent dangerousness not required. - Trial court did not err in refusing to instruct the jury regarding inherent dangerousness because an instruction on inherent dangerousness was not required. Chance v. State, 291 Ga. 241 , 728 S.E.2d 635 (2012).
Conflicts and credibility for jury's resolution. - There was sufficient evidence to show that the defendant was guilty of malice murder; all the matters that the defendant cited simply presented questions regarding conflicts in the evidence or credibility, which were properly for the jury's resolution. Conway v. State, 281 Ga. 685 , 642 S.E.2d 673 (2007).
Death Penalty
Punishment of death does not invariably violate the Constitution. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909 , 49 L. Ed. 2 d 859 (1976).
Death penalty statutes not racially discriminatory. - Petitioner, a death row inmate, in a federal habeas petition challenged the imposition of the death penalty, arguing that the death penalty was being administered in a racially discriminatory manner, the argument failed because the statistical evidence was not so strong as to permit no inference other than that the results were the product of a racially discriminatory intent or purpose in that the death penalty was sought in 58 percent of the possible death penalty cases where the defendant was black but in only 40 percent of the cases where the defendant was white, and sought in only 25 percent of the cases where the victim was black and 54 percent of the cases where the victim was white. Jefferson v. Terry, 490 F. Supp. 2d 1261 (N.D. Ga. 2007), aff'd in part and rev'd in part, 570 F.3d 1283 (11th Cir. Ga. 2009).
Prerequisite to involving death penalty. - Before convicted defendant may be sentenced to death, jury, or trial judge in cases tried without a jury, must find beyond a reasonable doubt one of ten aggravating circumstances specified in former Code 1933, § 27-2534.1. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909 , 49 L. Ed. 2 d 859 (1976) (see O.C.G.A, § 17-10-30 ).
Procedural safeguards to prevent abuse of death penalty are constitutionally adequate. - Imposition of death penalty on proof of felony murder does not lead to freakish and wanton executions because procedural safeguards were enacted in order to prevent such abuses and have been held to be constitutionally adequate in that regard. Collier v. State, 244 Ga. 553 , 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346 , 63 L. Ed. 2 d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538 , 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23 , 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819 , 561 S.E.2d 82 (2002).
Sentence not disproportionate where defendant active party to murder. - When the defendant was not only present at the scene of the murder and participated in the assault and rape of two girls, but also assisted the codefendant in stripping the girls and binding the girls' hands, then turned the defendant's car around in the road, presumably to facilitate a quick getaway, and stood by the codefendant in the road while the latter shot the victims, the jury reasonably found that the defendant was an active party in the murder, and the defendant's death sentence was not disproportionate to the crime. Johnson v. Kemp, 585 F. Supp. 1496 (S.D. Ga. 1984), rev'd on other grounds, 759 F.2d 1503 (11th Cir. 1985).
Defendant's death sentence for malice murder was affirmed as the sentence was neither excessive nor disproportionate to the penalties imposed in similar cases in Georgia as the defendant had murdered at least four people and had attempted or planned to murder several other people; the defendant's death sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor. Williams v. State, 281 Ga. 87 , 635 S.E.2d 146 (2006), cert. denied, 553 U.S. 1004, 128 S. Ct. 2046 , 170 L. Ed. 2 d 793 (2008).
Presentence hearing not required where death penalty not sought. - Since upon conviction for murder where death penalty is not sought, the only punishment to be lawfully imposed is that of life imprisonment, there is no necessity to conduct a presentence hearing on issue of punishment, as trial court possesses no discretion in such instance. Brown v. State, 246 Ga. 251 , 271 S.E.2d 163 (1980).
Life sentence automatic if death penalty not sought. - If defendant is found guilty of murder, defendant automatically receives a life sentence under the murder statute if death penalty had not been asked for by prosecution. Parks v. State, 230 Ga. 157 , 195 S.E.2d 911 (1973).
Death sentence for 17-year-old defendant prohibited. - Habeas court found as a matter of fact that the defendant was 17 years old at the time of the murders for which the defendant was convicted and vacated the defendant's death sentences in light of the holding of the U.S. Supreme Court in Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183 , 161 L. Ed. 2 d 1 (2005) (Eighth Amendment forbids imposition of death penalty on juvenile offenders under age 18), that death sentences for crimes committed by persons under the age of 18 violate the Constitution of the United States. Terry v. Jenkins, 280 Ga. 341 , 627 S.E.2d 7 (2006).
Rule of lenity did not apply in criminal attempt of murder. - Trial court did not err by not applying the rule of lenity in sentencing the defendant on criminal attempt to commit a felony, rather than on aggravated assault, because the statutory language and indictment showed that the two counts did not address the same criminal conduct as the criminal attempt (of murder) included the substantial step of pulling the trigger of the handgun aimed at the victim's head, which additional step was not required for the commission of aggravated assault. Gonzalez v. State, 352 Ga. App. 83 , 833 S.E.2d 727 (2019).
Merger
Because the General Assembly did not make the amendments to O.C.G.A. § 16-5-1 retroactive, the defendant was properly sentenced in conformity with the law as it was when the crime was committed, which provided that the sentences for causing a death, including a death caused by cruelty to children in the second degree, were imprisonment for life (with the possibility of parole), imprisonment for life without parole, or death. Jones v. State, 302 Ga. 488 , 807 S.E.2d 344 (2017).
Aggravated battery conviction merged into the malice murder conviction where the medical examiner's testimony established that the same act caused the aggravated battery and the victim's death; thus, the same evidence was used to prove both crimes. Fulton v. State, 278 Ga. 58 , 597 S.E.2d 396 (2004).
No merger of aggravated assault and murder. - A conviction for possession of a firearm during the commission of a felony (O.C.G.A. § 16-11-106 ) does not merge with a conviction for felony murder. Hawkins v. State, 262 Ga. 193 , 415 S.E.2d 636 (1992).
A conviction for discharging a gun within 50 yards of a public highway (O.C.G.A. § 16-11-103 ) does not merge into a felony murder conviction. Hawkins v. State, 262 Ga. 193 , 415 S.E.2d 636 (1992).
An aggravated assault conviction did not merge as a matter of fact with a murder conviction because the evidence presented at trial showed that the defendant inflicted a severe, but non-fatal, beating upon the victim that was separate and distinct from the choking and strangling which resulted in the victim's death. Starks v. State, 283 Ga. 164 , 656 S.E.2d 518 (2008).
Lesser offense held not to merge with conviction. - Because the jury could reasonably have concluded that the victim's first two injuries from two non-fatal shots resulted from a separate offense than the third, the earlier shots were sufficient to support the aggravated assault conviction, separate from the third and fatal shot, and there was no merger of the aggravated assault offense with a separate charge of malice murder. Parker v. State, 281 Ga. 490 , 640 S.E.2d 44 (2007).
Although both malice murder and cruelty to children required a malicious intent, O.C.G.A. §§ 16-5-1(a) and 16-5-70(b) , the fact that such intent supported an element in each crime did not warrant merging of the sentences when other mutually exclusive elements of the crimes remained, and the other elements of the two offenses had to be compared; malice murder, but not cruelty to children, required proof that defendant caused the death of another human being, O.C.G.A. § 16-5-1(a) , and cruelty to children, but not malice murder, required proof that the victim was a child under the age of 18 who was caused cruel or excessive physical or mental pain, O.C.G.A. § 16-5-70(b) . Each crime required proof of at least one additional element which the other did not and the crimes of malice murder and cruelty to children were not so closely related that multiple convictions were prohibited under other provisions of O.C.G.A. §§ 16-1-6 and 16-1-7 ; accordingly, even if the same conduct established the commission of both malice murder and cruelty to children, the two crimes did not merge. Linson v. State, 287 Ga. 881 , 700 S.E.2d 394 (2010).
Merger of cruelty to children, aggravated assault, and murder. - Because separate cruelty to children and aggravated assault counts were based upon acts committed by the defendant on the day preceding the death of the victim, neither of those convictions merged into the felony murder count also filed against the defendant and, accordingly, separate sentences for those crimes were authorized. Christian v. State, 281 Ga. 474 , 640 S.E.2d 21 (2007).
Merger doctrine is rejected with respect to felony-murder rule in Georgia. Baker v. State, 236 Ga. 754 , 225 S.E.2d 269 (1976).
Merger of manslaughter conviction. - When the defendant was engaged in a shoot-out with another and accidentally struck and killed an innocent third party, the defendant's conviction for voluntary manslaughter could be merged into a felony-murder conviction. Foster v. State, 264 Ga. 369 , 444 S.E.2d 296 (1994).
Defendant's conviction of voluntary manslaughter under O.C.G.A. § 16-5-2 was improper as the defendant was also convicted of felony murder under O.C.G.A. § 16-5-1(c) for the same transaction, and this would have subjected the defendant to multiple convictions and punishments for one crime, which would have placed the defendant in double jeopardy in violation of Ga. Const. 1983, Art. I, Sec. I, Para. XVIII and U.S. Const., amend. 5. Lawson v. State, 280 Ga. 881 , 635 S.E.2d 134 (2006).
Trial court properly refused to accept the jury's initial verdict finding the defendant guilty of both felony murder and voluntary manslaughter because the same aggravated assault charge was both the predicate felony for the felony murder charge and the act underlying the voluntary manslaughter charge; therefore, the jury could not find the defendant guilty of both felony murder and voluntary manslaughter because, as charged, the crimes were subject to the modified merger rule, and the first verdicts were ambiguous. Ingram v. State, 290 Ga. 500 , 722 S.E.2d 714 (2012).
Modified merger and double jeopardy. - Modified merger rule, which speaks to the validity of a verdict on a charge of felony murder when the jury also finds the accused guilty of voluntary manslaughter, is effective at the time the jury renders the jury's verdict and is not destroyed by the granting of a motion for new trial on the voluntary manslaughter charge; likewise, the presence or absence of a separate charge of aggravated assault in the indictment has no effect on a court's application of the modified merger rule because while the existence of a separate aggravated assault charge must be carefully considered in applying the rule and making determinations as to proper sentencing, its existence does not render the rule inapplicable. Williams v. State, 288 Ga. 7 , 700 S.E.2d 564 (2010).
Modified merger rule applies. - When the evidence would support a conviction for either felony murder or voluntary manslaughter, and the jury finds the defendant guilty of each offense, the modified merger rule applies if the underlying felony is directed against the homicide victim and is not independent, but rather is an integral part of the killing; under such rule, the defendant cannot be convicted and sentenced for felony murder because the voluntary manslaughter verdict indicates that the underlying felony is mitigated by provocation and passion. Sanders v. State, 281 Ga. 36 , 635 S.E.2d 772 (2006).
Merger of underlying felony. - Trial court erred in imposing a 20 year sentence for the burglary conviction since this conviction, as the underlying felony in the felony murder conviction, should have merged with the felony murder conviction. Sumrall v. State, 264 Ga. 148 , 442 S.E.2d 246 , cert. denied, 513 U.S. 1020, 115 S. Ct. 585 , 130 L. Ed. 2 d 499 (1994).
Defendant's conviction for felony fleeing and attempting to elude was vacated as the offense served as the underlying felony for a felony murder conviction and merged with the conviction for felony murder. Ferguson v. State, 280 Ga. 893 , 635 S.E.2d 144 (2006).
Judgment convicting a defendant of cruelty to a child in the first degree and the sentence entered thereon were vacated because the crime should have merged for sentencing purposes with the defendant's felony murder conviction based on the underlying felony of cruelty to a child in the second degree; the state agreed that the crimes merged in fact, and an examination of the evidence in the context of the trial court's instructions to the jury indicated that the judgment and sentence had to be vacated. White v. State, 281 Ga. 276 , 637 S.E.2d 645 (2006).
Defendant was incorrectly sentenced on the aggravated assault charge which was the underlying offense for one of the felony murder charges. Kipp v. State, 294 Ga. 55 , 751 S.E.2d 83 (2013).
Merger of the most severe. - When it is unclear which of two or more felonies is the underlying felony for a felony murder conviction, the trial court must merge only one, the most severe with respect to potential punishment, such that a court's conviction for rape warranted reversal in light of the lesser co-felony of burglary. Thompson v. State, 263 Ga. 23 , 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819 , 561 S.E.2d 82 (2002).
Merger of malice murder and aggravated assault. - When defendant fired a gun at a person and the bullet grazed that person, went through a wall, and killed another person, the aggravated assault and malice murder convictions did not merge for sentencing purposes. George v. State, 276 Ga. 564 , 580 S.E.2d 238 (2003).
Trial court erred in sentencing defendant for malice murder and aggravated assault as the victim's death was caused by a combination of blunt force trauma and strangulation and the aggravated assault merged into the malice murder as a matter of fact. Young v. State, 280 Ga. 65 , 623 S.E.2d 491 (2005).
Because the evidence the state used to prove that the defendant committed aggravated assault was the same that it used to prove that defendant committed malice murder, the aggravated assault offense merged into the malice murder as a matter of fact. Thus, the separate judgment of conviction and sentence for aggravated assault had to be vacated. Ludy v. State, 283 Ga. 322 , 658 S.E.2d 745 (2008).
Trial court did not err in failing to merge the aggravated assault for which the defendant was sentenced into defendant's malice murder conviction because the two crimes were not established by the same conduct; the defendant's conduct did not establish the commission of both the aggravated assault and the murder because the aggravated assault was established by evidence that the defendant and the codefendant beat and strangled the victim, whereas the murder was established by evidence that they killed the victim by stabbing the victim's body. Hall v. State, 286 Ga. 358 , 687 S.E.2d 819 (2010).
Separate judgments of conviction and sentences for aggravated assault were vacated because the defendant was convicted of and sentenced for both the malice murders of the two victims and the aggravated assaults of those victims, and although there was no merger of those crimes as a matter of law, the record established that the aggravated assault convictions merged into the malice murder convictions as a matter of fact. Vergara v. State, 287 Ga. 194 , 695 S.E.2d 215 (2010).
Defendant's conviction and sentence for aggravated assault was vacated and the case was remanded to the trial court for resentencing because the aggravated assault conviction merged into the defendant's malice murder conviction as a matter of fact even though there was no merger of those crimes as a matter of law. Sharpe v. State, 288 Ga. 565 , 707 S.E.2d 338 (2011).
Defendant's conviction for aggravated assault should have been merged into a malice murder conviction pursuant to O.C.G.A. § 16-1-7(a)(1), based on the "required evidence" test, as the aggravated assault, as pled, did not require proof of a fact not required to have been proved in the malice murder. Culpepper v. State, 289 Ga. 736 , 715 S.E.2d 155 (2011).
Defendant's conviction for aggravated assault of the victim merged into the conviction for malice murder of the victim because there was no evidence that the victim suffered a non-fatal injury prior to a deliberate interval in the attack and a fatal injury thereafter; the forensic pathologist who conducted the autopsy catalogued the victim's wounds as "chop injuries" that fractured the victim's skull and incapacitated the victim and were likely inflicted with a hatchet, punctures and superficial, deep, and very deep incisions and stab wounds that were inflicted by knives. Alvelo v. State, 290 Ga. 609 , 724 S.E.2d 377 (2012).
Defendant's conviction on a second aggravated assault should have merged into the malice murder conviction because the victim sustained two shots to the arm and one fatal shot to the back of the head, and the evidence did not authorize the finding of an additional "deliberate interval" between the second shot to the arm and the shot to the head; both were inflicted in close succession as the defendant confronted the victim. Ortiz v. State, 291 Ga. 3 , 727 S.E.2d 103 (2012).
Two felony murder counts were vacated by operation of law given the malice murder verdict because both the malice murder and the aggravated assault counts were premised on the act of shooting the victim with a firearm, the assault verdict merged as a matter of fact with the malice murder verdict for sentencing purposes. The burglary count, O.C.G.A. § 16-7-1 , did not merge with malice murder, O.C.G.A. § 16-5-1 , because each crime required proof of an element that the other did not. Favors v. State, 296 Ga. 842 , 770 S.E.2d 851 (2015).
Felony murder conviction merged with malice murder conviction; however, there was no merger of cruelty to children into malice murder. When the defendant was convicted of malice murder, felony murder, and cruelty to children, and there was a single victim, it was error to sentence the defendant to multiple life terms on the malice murder and felony murder counts; because the victim's age was an element of the crime of cruelty to children that was not included in malice murder, the underlying cruelty to children conviction did not merge into malice murder as a matter of fact. Collum v. State, 281 Ga. 719 , 642 S.E.2d 640 (2007).
Merger of lesser conviction into felony murder conviction. - When false imprisonment conviction was the underlying felony for defendant's conviction of felony murder, the false imprisonment conviction merged into the felony murder conviction and was vacated on appeal. Johnson v. State, 254 Ga. 591 , 331 S.E.2d 578 (1985).
When either of the defendant's two felony convictions could have served as the underlying felony for defendant's felony murder conviction, the initial felony, and not both felonies, was vacated as having merged with the felony murder conviction. Johnson v. State, 254 Ga. 591 , 331 S.E.2d 578 (1985).
Because the evidence that the defendant assaulted the victim with a shotgun was used to prove both an aggravated assault and malice murder, the aggravated assault conviction merged by fact into the malice murder conviction. Nix v. State, 280 Ga. 141 , 625 S.E.2d 746 (2006).
Aggravated battery merged with attempted murder. - Trial court erred in failing to merge the offense of family violence aggravated battery with attempted murder, as both convictions were established by the same conduct. Hernandez v. State, 317 Ga. App. 845 , 733 S.E.2d 30 (2012).
Most reasonable understanding of the conviction for lesser included offenses statute as applied to attempted murder and aggravated battery is that the aggravated battery merges into the greater offense of attempted murder when the crimes are predicated upon the same conduct. The Georgia Supreme Court overrules Hernandez v. State, 317 Ga. App. 845 (2012), Zamudio v. State, 332 Ga. App. 37 (2015), and Dobbs v. State, 2020 Ga. App. Lexis 279 (2020), to the extent that those cases hold otherwise. Priester v. State, Ga. , 845 S.E.2d 683 (2020).
No merger with weapons possession convictions. - Defendant's conviction for possession of a knife during the commission of a felony did not merge into the defendant's two convictions for malice murder. Hooks v. State, 284 Ga. 531 , 668 S.E.2d 718 (2008), overruled on other grounds, Williams v. State, 287 Ga. 192 , 695 S.E.2d 244 (2010).
Merged counts for sentencing. - Trial court had to vacate the defendant's conviction and sentence for armed robbery given that armed robbery was charged as the felony underlying the defendant's conviction for felony murder; a separate conviction and sentence for armed robbery was not authorized under such circumstances. Joyner v. State, 280 Ga. 37 , 622 S.E.2d 319 (2005).
Merger with armed robbery count proper. - When a defendant had been convicted of malice murder, felony murder, armed robbery, and other crimes, the trial court did not err by failing to merge the armed robbery counts into the felony murder count predicated on the underlying felony of armed robbery as the felony murder count was vacated by operation of O.C.G.A. § 16-1-7 , and the defendant could be sentenced for the felony conviction so long as the felony was not included in the murder as a matter of fact or law; here, the armed robbery was not included in the malice murder charge as a matter of fact or law; evidence showing the defendant's intent to rob the victim was not used in proving the murder, and evidence that the defendant shot the victim was not used to prove the armed robbery. Davis v. State, 281 Ga. 871 , 644 S.E.2d 113 (2007).
Merger with aggravated assault and not armed robbery. - Although an armed robbery served as the predicate felony for one count of felony murder, there was a separate felony murder count predicated on aggravated assault; hence, when the jury found the defendant guilty of both counts, it was within the trial court's discretion to choose to merge the aggravated assault rather than the armed robbery into the felony murder count for which appellant was sentenced. Hill v. State, 281 Ga. 795 , 642 S.E.2d 64 (2007).
Defendant's conviction for armed robbery was properly not merged into a malice murder conviction pursuant to O.C.G.A. § 16-1-7(a)(1), based on the "required evidence" test, as each offense required proof of an element that the other did not. Culpepper v. State, 289 Ga. 736 , 715 S.E.2d 155 (2011).
Aggravated assault with intent to rob did not merge with felony murder. - Because the crime of aggravated assault by shooting the victim with a gun was the underlying felony for the defendant's felony murder conviction, it should have merged for sentencing purposes; however, the conviction for aggravated assault with intent to rob, O.C.G.A. § 16-5-21(a)(1), did not merge into the felony murder conviction because the felony murder charge required proof that the defendant caused the victim's death and used a deadly weapon, O.C.G.A. §§ 16-5-1(c) and 16-5-21(a)(2). Norris v. State, 302 Ga. 802 , 809 S.E.2d 752 (2018).
Aggravated assault merged with malice murder. - Convictions against the defendant for both malice murder and aggravated assault were error under O.C.G.A. § 16-1-7(a)(1) as the aggravated assault was included within the malice murder conviction under O.C.G.A. § 16-1-6(1) because the same conduct established the commission of both offenses. Bell v. State, 284 Ga. 790 , 671 S.E.2d 815 (2009).
With regard to a defendant's malice murder conviction arising from the suffocation death of the defendant's newborn daughter, the defendant's conviction and sentence for aggravated assault was vacated inasmuch as the evidence showed that the aggravated assault merged as a matter of fact with the malice murder conviction. Wright v. State, 285 Ga. 428 , 677 S.E.2d 82 (2009), cert. denied, 558 U.S. 1123, 130 S. Ct. 1076 , 175 L. Ed. 2 d 903 (2010).
Malice murder and aggravated assault merged as a matter of fact. - Defendant's conviction and sentence for aggravated assault was vacated as the malice murder and the aggravated assault charges merged as a matter of fact because the same evidence to prove aggravated assault as indicted, stabbing the victim with a knife, was used to prove malice murder. Williams v. State, 279 Ga. 154 , 611 S.E.2d 19 (2005).
Underlying conspiracy conviction merged into felony murder conviction. - Defendant's separate conviction for conspiracy was vacated because the conspiracy conviction was the underlying felony that formed the basis for the defendant's felony murder conviction; because the underlying conspiracy merged into the felony murder conviction, the trial court erred in entering a separate judgment of conviction and sentence on the jury's verdict finding the defendant guilty of conspiracy. Higuera-Hernandez v. State, 289 Ga. 553 , 714 S.E.2d 236 (2011).
Conviction for apprehending criminal and malice murder. - Defendant's conviction for hindering the apprehension of a criminal in violation of O.C.G.A. § 16-10-50 had to be set aside because defendant could not be convicted for both malice murder and hindering the apprehension of a criminal, which was the equivalent of the common law crime of being an accessory after the fact; a party cannot be convicted both of being a principal to the crime and an accessory after the fact. Hampton v. State, 289 Ga. 621 , 713 S.E.2d 851 (2011), overruled on other grounds, Nalls v. State, 815 S.E.2d 38 , 2018 Ga. LEXIS 396 (Ga. 2018).
Merger of criminal gang activity convictions with felony murder conviction. - After the three defendants were properly found guilty of felony murder predicated upon criminal gang activity involving a simple battery, the trial court erred when the court failed to merge the defendants' criminal gang activity involving an aggravated assault and criminal gang activity involving an aggravated battery convictions into the felony murder conviction because all of the unlawful participation in criminal gang activity of which the three defendants were found guilty occurred at the same location, occurred at the same time, and was directed against the same victim. Anthony v. State, 303 Ga. 399 , 811 S.E.2d 399 (2018).
Sentence
Felony murder conviction vacated upon sentence for malice murder. - Inasmuch as the defendant's felony murder conviction was vacated by operation of law upon entry of the sentence for malice murder, a conviction for felony murder, and the life imprisonment imposed for that conviction, had to be vacated. Sanders v. State, 283 Ga. 372 , 659 S.E.2d 376 (2008).
Reconciling verdict. - Verdicts finding defendant guilty of voluntary manslaughter as a lesser included offense of each count of felony murder, O.C.G.A. § 16-5-2 , but not guilty of voluntary manslaughter as a lesser included offense of the alleged malice murder of the victim, were not repugnant and could be reconciled. Carter v. State, 298 Ga. 867 , 785 S.E.2d 274 (2016), cert. denied, 137 S. Ct. 646 , 196 L. Ed. 2 d 542 (U.S. 2017).
Sentence of life in prison plus years consecutive for convictions of felony murder and armed robbery did not exceed the statutorily authorized maximum and did not amount to cruel and unusual punishment; the felony murder statute, O.C.G.A. § 16-5-1 , authorized a sentence of life in prison on conviction for felony murder, and the armed robbery statute, O.C.G.A. § 16-8-41 , authorized a sentence of death or imprisonment for life or by imprisonment for not less than 10 nor more than 20 years. The trial court sentenced the defendant to life in prison for the felony murder conviction plus two 20-year terms, running concurrent to each other but consecutive to the felony murder sentence, for the two convictions for armed robbery, and thus the statutory maximum was not exceeded. Washington v. State, 285 Ga. 541 , 678 S.E.2d 900 (2009).
Trial court erred by sentencing defendant to separate life sentences for malice murder and felony murder since there was only one victim in the case. Accordingly, the defendant's conviction for felony murder was vacated by operation of law. Martinez v. State, 283 Ga. 122 , 657 S.E.2d 199 (2008).
Life sentence for felony-murder conviction based upon "status" offense. - See Hall v. State, 259 Ga. 243 , 378 S.E.2d 860 (1989).
Vacation of felony murder charge required vacation of sentence. - When the defendant was sentenced to life in prison for malice murder and a concurrent term of life in prison for felony murder, it was error to sentence the defendant for the felony murder inasmuch as it stood vacated by operation of law; accordingly, the judgment of conviction and sentence as to the felony murder count had to be vacated. Sampson v. State, 282 Ga. 82 , 646 S.E.2d 60 (2007).
Failure to find juvenile irreparably corrupt or permanently incorrigible. - Defendant's sentence of life without parole had to be vacated because the trial court did not make any sort of determination on the record that the defendant, who was 17 years old, was irreparably corrupt or permanently incorrigible. Veal v. State, 298 Ga. 691 , 784 S.E.2d 403 (2016).
Juvenile defendant not entitled to jury deterimation of life without possibility of parole. - In light of the court's previous holdings that O.C.G.A. § 16-5-1 comported with the Sixth Amendment and Apprendi, a Georgia defendant convicted of murder committed when the defendant was a juvenile does not have a federal constitutional right under the Sixth Amendment to have a jury make the determination required by the Eighth Amendment of whether the juvenile was irreparably corrupt or permanently incorrigible before the juvenile is sentenced to serve life without parole. Raines v. State, Ga. , 845 S.E.2d 613 (2020).
Sentence of youth not excessive. - Appellant's sentence of two consecutive terms of life imprisonment plus 85 years was not cruel and unusual punishment, despite being 17 years old at the time of the crimes, because the trial court followed the guidance offered in case law and explicitly considered the appellant's relatively young age and explained that the court balanced the appellant's youth against the vicious, mean, violent behavior and the adult conduct engaged in, which included the murder of not one but two innocent bystanders. Jones v. State, 296 Ga. 663 , 769 S.E.2d 901 (2015), overruled in part by Veal v. State, 298 Ga. 691 , 784 S.E.2d 403 (2016).
Sentence not excessive. - Sentence of life in prison plus years consecutive for convictions of felony murder and armed robbery did not exceed the statutorily authorized maximum; the felony murder statute, O.C.G.A. § 16-5-1 , authorized a sentence of life in prison on conviction for felony murder, and the armed robbery statute, O.C.G.A. § 16-8-41 , authorized a sentence of death or imprisonment for life or by imprisonment for not less than 10 nor more than 20 years. The trial court sentenced defendant to life in prison for the felony murder conviction plus two 20-year terms, running concurrent to each other but consecutive to the felony murder sentence, for the two convictions for armed robbery, and thus the statutory maximum was not exceeded. Washington v. State, 285 Ga. 541 , 678 S.E.2d 900 (2009).
Death penalty for murder conviction. - Trial court did not err in sentencing the defendant to death for murder because the death was not excessive or disproportionate punishment within the meaning of Georgia law and was not unconstitutional, and the evidence presented at the defendant's sentencing trial was clearly sufficient to authorize a rational trier of fact to find beyond a reasonable doubt the existence, pursuant to O.C.G.A. § 17-10-30(b)(2), of the statutory aggravating circumstances of kidnapping with bodily injury, that the murder was outrageously or wantonly vile, horrible, or inhuman, and that the defendant had a prior record of conviction for a capital felony; the defendant's crimes could be called "premeditated" because the defendant already knew what the defendant was going to do when the defendant took the victim away from home. Loyd v. State, 288 Ga. 481 , 705 S.E.2d 616 , cert. dismissed, 565 U.S. 971, 132 S. Ct. 474 , 181 L. Ed. 2 d 309 (U.S. 2011).
Life without parole sentence. - Defendant's sentence of life without parole did not amount to cruel and unusual punishment. Foster v. State, 294 Ga. 383 , 754 S.E.2d 33 (2014).
Defendant's age at sentencing did not make sentence excessive. - Fact that the defendant was 22 years old at the time the life sentence was imposed did not render the defendant's life sentence cruel and unusual punishment. Jessie v. State, 294 Ga. 375 , 754 S.E.2d 46 (2014).
Double life sentence erroneous. - Because sufficient evidence supported convictions for murder and possession of a knife during the commission of a crime, and the state met its burden in establishing an adequate chain of custody, two life sentences for the murder of one victim was improper, as the conviction for felony murder was simply surplusage; thus, the separate life sentence on the alternative felony murder count had to be vacated. Paschal v. State, 280 Ga. 430 , 628 S.E.2d 586 (2006).
Triple life sentence improper. - While the defendant's act of crashing into the victim's car, and killing the victim, while leading police on a high-speed chase through a residential neighborhood, supported a felony murder conviction, because there was only one victim, the defendant could only be convicted of one count of felony murder, and not three; hence, upon the state's concession, imposition of three life sentences was vacated, and the matter was remanded for resentencing. Turner v. State, 281 Ga. 487 , 640 S.E.2d 25 (2007).
Consecutive sentences for two counts of malice murder proper. - As a defendant was charged with the malice murder of two victims in different counts and was found guilty on each count, the defendant was properly sentenced separately on each count to run consecutively because the killing of different persons constituted separate crimes. Hooks v. State, 284 Ga. 531 , 668 S.E.2d 718 (2008), overruled on other grounds, Williams v. State, 287 Ga. 192 , 695 S.E.2d 244 (2010).
Life without parole could not be imposed upon conviction of malice murder. - Because O.C.G.A. § 17-10-7(c) expressly excluded capital felonies from the statute's coverage, and malice murder was a capital felony, a sentence of life imprisonment without parole could not be imposed upon a malice murder conviction. Miller v. State, 283 Ga. 412 , 658 S.E.2d 765 (2008).
Although the prosecutor and the trial court during the plea hearing erroneously told the defendant that the defendant would be subject to probation, the written sentence signed by the judge and the defendant and filed with the clerk showed that the trial court imposed a sentence of life with parole, not probation. Bell v. State, 294 Ga. 5 , 749 S.E.2d 672 (2013).
Two life sentences for murder of single victim. - Defendant's separate life sentence on an alternative felony murder count was vacated because the defendant was sentenced to life sentences for both malice and felony murder in the death of one victim. Newsome v. State, 288 Ga. 647 , 706 S.E.2d 436 (2011).
One life sentence for each malice murder count. - Defendant's three additional life sentences for felony murder were illegal and could not stand because the trial court erred in failing to sentence the defendant only on the two malice murder counts; the convictions for felony murder were simply surplusage, which should properly have been disposed of by the trial court's sentence of only one life sentence for each of the malice murder counts. Brown v. State, 289 Ga. 259 , 710 S.E.2d 751 , cert. denied, 132 S. Ct. 524 , 181 L. Ed. 2 d 368 (2011).
A life without parole sentence is permitted only in "exceptional circumstances," for the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible; for those rarest of juvenile offenders whose crimes reflect permanent incorrigibility; for those rare children whose crimes reflect irreparable corruption - and not for the vast majority of juvenile offenders; life without parole sentences may be constitutionally imposed only on the worst-of-the-worst juvenile murderers, much like the Supreme Court has long directed that the death penalty may be imposed only on the worst-of-the-worst adult murderers. To the extent the decisions in Jones v. State, 296 Ga. 663 (2015) and Bun v. Stat., 296 Ga. 549 (2015) suggested otherwise, they are hereby disapproved. Veal v. State, 298 Ga. 691 , 784 S.E.2d 403 (2016).
Because the state did not seek the death penalty, and the malice murder took place after April 29, 2009, the trial court was authorized to sentence the defendant to life without the possibility of parole for malice murder and was not required to recite that the court considered aggravating or mitigating circumstances in doing so. Parks v. State, 305 Ga. 712 , 827 S.E.2d 669 (2019).
Sentence for felony murder and felony criminal attempt to possess cocaine. - Separate judgment of conviction and sentence for criminal attempt to possess cocaine was vacated because after the jury found the defendant guilty of felony murder while in the commission of the felony of criminal attempt to possess cocaine, and also of the felony of criminal attempt to possess cocaine, the defendant was sentenced on each charge, but the defendant could not be sentenced on both felony murder and the underlying felony when found guilty of both. Sapp v. State, 290 Ga. 247 , 719 S.E.2d 434 (2011).
Sentence for felony murder and involuntary manslaughter prohibited. - Because the prohibition against double jeopardy does not permit a defendant to be punished on multiple murder counts for a single homicide, it was error for the trial court to sentence the defendant for involuntary manslaughter in light of the conviction for felony murder as there was only one homicide. Kipp v. State, 294 Ga. 55 , 751 S.E.2d 83 (2013).
Sentence of life in prison without parole did not require jury determination. - Because O.C.G.A. § 16-5-1 was amended to add life imprisonment without the possibility of parole as an authorized punishment for murder without regard to whether the state seeks the death penalty, life without parole fell within the statutory range, and counsel was not ineffective for failing to object to the defendant's sentence despite the absence of any jury determination that such punishment was appropriate. Babbage v. State, 296 Ga. 364 , 768 S.E.2d 461 (2015).
Life sentence with possibility of parole for murder upheld. - In the defendant's trial for murder, the trial court properly exercised the court's discretion to sentence the defendant to life in prison with the possibility of parole under O.C.G.A. §§ 16-5-1(e)(1), 17-9-2 , and 17-10-7(a) , rather than life without the possibility of parole, because parole did not extend the duration of the sentence. Blackwell v. State, 302 Ga. 820 , 809 S.E.2d 727 (2018).
Application
1. In General
Election between felony and malice murder. - It was not error for the trial court to refuse to require the state to elect between prosecuting defendant for malice murder or felony murder, where the trial court's charge to the jury made clear the fact that while the state was seeking a murder conviction under alternate theories of malice murder and felony murder, the defendant could be convicted of only one count of murder. Baty v. State, 257 Ga. 371 , 359 S.E.2d 655 (1987).
Effect of indictment alleging both malice murder and felony murder on guilty verdict. - When indictment alleged that the defendant committed murder "with malice aforethought . . . by means of arson," the count in effect alleged both malice murder and felony murder, rendering the jury's verdict of "guilty of Count 1 - murder" ambiguous and requiring the verdict to be construed as one for felony murder. Walker v. State, 254 Ga. 149 , 327 S.E.2d 475 , cert. denied, 474 U.S. 865, 106 S. Ct. 185 , 88 L. Ed. 2 d 154 (1985).
Intentional killing of mere trespasser with a deadly weapon is generally murder and not manslaughter. Hayes v. State, 58 Ga. 35 (1877) (decided under former Code 1873, §§ 4321, 4322).
Killing officer while the officer is legally arresting defendant in a legal manner constitutes murder. Brooks v. State, 114 Ga. 6 , 39 S.E. 877 (1901) (decided under former Penal Code 1895, §§ 61, 62); Harper v. State, 129 Ga. 770 , 59 S.E. 792 (1907) (decided under former Penal Code 1895, §§ 61, 62); Johnson v. State, 130 Ga. 27 , 60 S.E. 160 (1908) (decided under former Penal Code 1895, §§ 61, 62).
Slaying of officer to avoid what defendant believes is a lawful arrest. - Slaying of officer to avoid being taken into custody, while having reasonable grounds of belief that person is an arresting officer, and that the officer's object is to make a lawful arrest for a felony, constitutes murder. If homicide is committed without reasonable cause to know the officer's official character or purpose and without malice, it is manslaughter. Morton v. State, 190 Ga. 792 , 10 S.E.2d 836 (1940) (decided under former Code 1933, §§ 26-1003, 26-1004).
When infliction of unlawful injury shall be considered proximate cause of death. - An unlawful injury considered to be the efficient, proximate cause of death whenever it shall be made to appear either that: (1) the injury itself constituted the sole proximate cause of death; that (2) the injury directly and materially contributed to the subsequently accruing immediate cause of death; or that (3) the injury materially accelerated death, although proximately occasioned by a preexisting cause. Ward v. State, 238 Ga. 367 , 233 S.E.2d 175 (1977).
When one inflicts an unlawful injury, such injury is the proximate cause of death if it directly and materially contributed to happening of subsequently accruing immediate cause of death. Larkin v. State, 247 Ga. 586 , 278 S.E.2d 365 (1981).
Defendant was properly convicted of malice murder and other charges after the defendant shot an automatic weapon at two deputies who appeared at the defendant's house to serve the defendant with an arrest warrant, thus killing one deputy and injuring the other. Al-Amin v. State, 278 Ga. 74 , 597 S.E.2d 332 , cert. denied, 543 U.S. 992, 125 S. Ct. 509 , 160 L. Ed. 2 d 380 (2004), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Circumstantial evidence. - In prosecution for murder, cause of death may be shown by circumstantial evidence. McAllister v. State, 246 Ga. 246 , 271 S.E.2d 159 (1980).
Corpus delicti and cause of death may be proved by circumstantial evidence. West v. State, 251 Ga. 458 , 306 S.E.2d 909 (1983).
Despite the defendant's contention that the circumstantial evidence presented by the state was insufficient, both malice murder and kidnapping by bodily injury convictions were upheld on appeal as: (1) the plain error rule did not apply to the identification evidence admitted via the defendant's aggravated assault and armed robbery victim, and evidence of the gun used in that case was relevant in the instant prosecution because it connected the defendant to the identification documents presented to police in close proximity to the victim's body; (2) a due process claim regarding the admission of a purportedly impermissibly suggestive pre-trial identification, followed by an in-court identification, was waived due to failure to object at trial; and (3) trial counsel was not ineffective by failing to seek suppression of the identification evidence or attack the reliability of the evidence. Brooks v. State, 281 Ga. 514 , 640 S.E.2d 280 (2007).
Evidence, although circumstantial, was sufficient for a rational trier of fact to reject the defense theory that the victim's death was a suicide and to find the defendant guilty of malice murder beyond a reasonable doubt; the circumstantial evidence was substantial, including not only the nature of the victim's gunshot wound, but also the defendant's motive to harm the victim, and the defendant's prolonged cover-up and conflicting accounts of the victim's death. Walden v. State, 289 Ga. 845 , 717 S.E.2d 159 (2011).
Although circumstantial, the evidence was sufficient to convict the defendant of murder, armed robbery, and related crimes in connection with the death of the victim because the defendant was identified by a witness as the person the witness saw coming upstairs from the victim's apartment just before the witness discovered the crimes; the defendant's fingerprints were found on the car used in the crimes; and the defendant's own statements, both via text message and in person, corroborated the defendant's participation in the murder and robbery. Babbage v. State, 296 Ga. 364 , 768 S.E.2d 461 (2015).
Expert testimony on shell casing. - Expert testimony that a shell casing at the crime scene came from a pistol found in the defendant's apartment, along with two witnesses' identifications of the defendant, and expert testimony that a bullet extracted from a victim's head possibly came from the defendant's pistol, although it was too damaged to say with complete certainty, sufficiently supported the defendant's convictions for murder, armed robbery, and possession of a firearm during the commission of a felony. Escobar v. State, 279 Ga. 727 , 620 S.E.2d 812 (2005).
Expert's testimony on knife injuries. - Evidence in support of the state's theory that the defendant killed the victim in an unprovoked aggravated assault, based on expert testimony that the victim died from a deliberate and forceful strike with a knife, and evidence that discounted any possible accident or lack of intent, was sufficient to support the defendant's conviction for felony murder during the commission of an aggravated assault. Nichols v. State, 281 Ga. 483 , 640 S.E.2d 40 (2007).
Pre-autopsy photographs of victim admissible. - In a trial for malice murder it was not error to admit in evidence photographs of the victim's body prior to autopsy and of the crime scene which, though gruesome, were relevant and material to show the location of the wounds and to depict the crime scene, including the location of the victim. Sanders v. State, 257 Ga. 239 , 357 S.E.2d 66 (1987).
Pre-autopsy photographs which demonstrate the location and nature of the wounds are relevant to the issue of death, and may be introduced in evidence even though the photographs are duplicative of expert testimony relating to the cause of death. Baty v. State, 257 Ga. 371 , 359 S.E.2d 655 (1987).
When proof of armed robbery is essential to the conviction for felony murder, the armed robbery is a lesser included offense in the felony murder. Sanborn v. State, 251 Ga. 169 , 304 S.E.2d 377 (1983).
Crimes of voluntary manslaughter and malice murder require identical causation in that both sections speak of causing the death of another human being. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019 , 69 L. Ed. 2 d 398 (1981).
Distinction between crimes of voluntary manslaughter and malice murder is that latter crime requires either express or implied malice, while voluntary manslaughter requires that killer has acted solely from sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019 , 69 L. Ed. 2 d 398 (1981).
To reduce homicide from murder to voluntary manslaughter, as it relates to doctrine of mutual combat, it should affirmatively appear that at time of homicide both parties were in position and manifested intention to fight; mere threats on part of one party at time of fatal shot by the other will not suffice. Cornelious v. State, 193 Ga. 25 , 17 S.E.2d 156 (1941) (decided under former Code 1933, §§ 26-1003, 26-1004).
To reduce homicide from murder to voluntary manslaughter, on theory of mutual combat, it should affirmatively appear that at time of homicide both parties were in position and manifested an intention to fight. Cone v. State, 193 Ga. 420 , 18 S.E.2d 850 (1942) (decided under former Code 1933, §§ 26-1003, 26-1004).
Killing another with malice pursuant to mutual combat constitutes murder. - Although there may be mutual intention and agreement to fight, if one of disputants kills the other with malice, it is murder, since in such case killing would not be result of that sudden and violent heat of passion which by reason of its irresistibility would constitute voluntary manslaughter. Rivers v. State, 193 Ga. 133 , 17 S.E.2d 726 (1941) (decided under former Code 1933, §§ 26-1003, 26-1004).
Confession of mentally retarded defendant. - Introduction of the confession of a mentally retarded defendant who had not knowingly and intelligently waived the defendant's Miranda rights was harmless error as to the defendant's conviction but not as to defendant's death sentence. Smith v. Zant, 887 F.2d 1407 (11th Cir. 1989).
Former Code 1933, § 26-3201, together with substantive offense of murder, creates crime of "conspiracy to commit murder." Orkin v. State, 236 Ga. 176 , 223 S.E.2d 61 (1976) (see O.C.G.A. § 16-4-8 ).
When armed robbery is lesser included offense of malice murder, see Hoerner v. State, 246 Ga. 374 , 271 S.E.2d 458 (1980).
State does not have a reckless homicide statute; the state has only voluntary and involuntary manslaughter statutes which create degrees of homicide less than murder. A history of punishing recklessly caused homicide as murder simply has nothing to do with the deficiencies in the felony-murder scheme because it provides no category of homicide less culpable than murder. Malone v. State, 238 Ga. 251 , 232 S.E.2d 907 (1977).
Homicide during attempted robbery caused by unintentional discharge of gun. - When it is shown by the evidence, and admitted in defendant's statement, that homicide occurred by discharge of gun held by accused and used in attempt to rob deceased, even if discharge of gun was unintentional, the offense is murder; and in no view of such facts does it involve homicide by accident, or involuntary manslaughter. Ford v. State, 202 Ga. 599 , 44 S.E.2d 263 (1947) (decided under former Code 1933, §§ 26-1003, 26-1004).
Murder which is probable consequence of conspiracy is imputable. - When several persons conspire to rob a merchant in the merchant's store, and one of the conspirators remains in an automobile, in order that the others may speedily escape, while others in furtherance of common design to rob, kill the merchant intended to be robbed, such killing is the probable consequence of the unlawful design to rob, and all the conspirators are guilty of murder, including the one in the automobile. Jenkins v. State, 190 Ga. 556 , 9 S.E.2d 909 (1940) (decided under former Code 1933, §§ 26-1003, 26-1004).
When two people conspire to commit the crime of robbery and in furtherance of the common design, both being present and participating in the commission of a robbery, one of them shoots and kills the person robbed, such killing is the probable consequence of the unlawful design to rob, and both are guilty of murder. Simmons v. State, 181 Ga. 761 , 184 S.E. 291 (1936) (decided under former Code 1933, §§ 26-1003, 26-1004).
Murder which is incidental probable consequence of armed robbery is imputable. - It is not necessary that crime of murder should be part of original design; it is enough if it is an incidental probable consequence of execution of conspirators design, and should appear at the moment to one of the participants to be expedient for the common purpose. Intent of actual slayer is imputable to coconspirators. Burke v. State, 234 Ga. 512 , 216 S.E.2d 812 (1975).
Foreseeable consequence of drug trafficking conspiracy. - Jury authorized to find that victim's murder was probable and foreseeable consequence of underlying conspiracy to traffic in illegal drugs. Huffman v. State, 257 Ga. 390 , 359 S.E.2d 910 (1987).
Gun involved in drug possession and intent to distribute meant felony murder. - Evidence was sufficient to convict the defendant of felony murder because the defendant was guilty of the predicate felony of possession with intent to distribute cocaine; the defendant possessed a gun while dealing drugs; the defendant handed the gun to another individual while the defendant searched for the missing drugs; it was not unpredictable that the victim tried to disarm the other individual and was shot to death during the struggle; and the victim's violent death was a direct and foreseeable consequence of the felony the defendant committed as the fatal shooting occurred as the defendant possessed crack cocaine with intent to distribute and wanted to possess again the cocaine that the defendant believed the victim had stolen. Hood v. State, 303 Ga. 420 , 811 S.E.2d 392 (2018).
Co-builder of bomb guilty of felony-murder for builder's death. - Where defendant and deceased had acquired or constructed an explosive device and were going to detonate that device for the purpose of destroying public property in the course of which the device exploded killing deceased, the defendant was guilty of felony murder under O.C.G.A. § 16-5-1 . Scott v. State, 252 Ga. 251 , 313 S.E.2d 87 (1984).
Officer's negligence in making arrest is immaterial to defendant's guilt or innocence. - When defense counsel in murder trial asked about training procedures on proper method of arresting a subject who is deemed armed and dangerous, the trial court properly prohibited this line of questioning in guilt-innocence phase on grounds that negligence of officer in making arrest is not material to the guilt or innocence of the defendant. Collier v. State, 244 Ga. 553 , 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346 , 63 L. Ed. 2 d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538 , 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23 , 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819 , 561 S.E.2d 82 (2002).
Homicide resulting solely from resentment of provoking threats. - Provocation by threats will in no case be sufficient to free defendant from crime of murder, or reduce homicide from murder to manslaughter, when killing is done solely for purpose of resenting provocation thus given. Moore v. State, 228 Ga. 662 , 187 S.E.2d 277 (1972).
Evidence of acts carrying forward plan which included murder as supporting inference of malice. - Even if the defendant did not specifically state that the defendant intended to kill the murder victim, the fact that the defendant stated that the defendant had participated in first entry of victim's home as part of plan which included murder, and later, on same day, returned to the victim's house and killed the victim can readily be seen as carrying forward this intent at least to the extent of exhibiting an "abandoned and malignant heart"; similarly, the fact that the defendant carried a deadly weapon for specific, acknowledged purpose of meeting opposition can support inference of malice. Blake v. Zant, 513 F. Supp. 772 (S.D. Ga. 1981), rev'd on other grounds sub nom. Burger v. Zant, 718 F.2d 979 (11th Cir. 1983), vacated on other grounds sub nom. Burger v. Zant, 467 U.S. 1212, 104 S. Ct. 2652 , 81 L. Ed. 2 d 360 (1984), cert. denied, 474 U.S. 998, 106 S. Ct. 374 , 88 L. Ed. 2 d 367 (1985).
When act of victim in avoiding felonious assault causes victim's death, offense is murder. - When one commits a felonious assault upon another and the act of the other in avoidance of such felonious assault results in that person's death, the offense is murder, whether or not the act of avoidance was that of a reasonably prudent person under the circumstances. Patterson v. State, 181 Ga. 698 , 184 S.E. 309 (1936) (decided under former Code 1933, §§ 26-1003, 26-1004).
For defendant's advances leading to victim's fatal jump from car to render defendant guilty of murder, it must appear that reaction of deceased was: (1) in avoidance of a violent bodily injury, or in apprehension of immediate violent bodily injury; (2) if in apprehension of immediate bodily injury, it must have been well grounded; (3) steps of avoidance must be such as a reasonably prudent person might take under the circumstances; and (4) result must have been natural and probable consequence of the improper conduct. Patterson v. State, 181 Ga. 698 , 184 S.E. 309 (1936) (decided under former Code 1933, §§ 26-1003, 26-1004).
Self-defense based on battered woman syndrome. - In a trial for murder of her husband, a defendant claiming self-defense based on the battered woman syndrome may, by her own testimony, coupled with that of an expert, make the prima facie showing required for the admission of the victim's general character for violence. Chapman v. State, 258 Ga. 214 , 367 S.E.2d 541 (1988).
Felony murder conviction held reasonable despite accident contention. - Evidence that defendant had cocked a gun and pointed it at her husband's head in order to scare him, and that the gun discharged when the victim struck it with his arm, was sufficient to authorize a conviction for felony-murder and the defense of "accident" was inapplicable. Stiles v. State, 264 Ga. App. 446 , 448 S.E.2d 172 (1994).
Evidence of murdering parents. - Evidence adduced at trial was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of murder because: (1) the state introduced testimony that the defendant had said the defendant hated the defendant's parents and wanted to kill them; (2) a witness gave the police a statement to the effect that the defendant deliberately killed the victim, one of the defendant's parents, but refused to testify at trial on the crucial points; and (3) blood spatter evidence and other physical evidence suggested the blows to the victim were struck on the porch, not inside as the defendant claimed. Fincher v. State, 276 Ga. 480 , 578 S.E.2d 102 (2003).
Denial of defendant's motions for directed verdict of acquittal not error when there was evidence from which the jury could determine that defendant, while acting in the heat of passion, shot and killed a woman. Chancellor v. State, 165 Ga. App. 365 , 301 S.E.2d 294 (1983).
Medical examiner unable to pinpoint asphyxiation method. - Although the medical examiner was unable to explain the precise mechanism by which the adult victim was asphyxiated, the state nevertheless offered evidence sufficient to prove that the defendant was the cause of asphyxiation and that the defendant caused the adult victim's death unlawfully and with malice, which was enough to sustain the conviction for the murder of the adult victim. Walker v. State, 296 Ga. 161 , 766 S.E.2d 28 (2014).
Testimony of medical examiner. - Medical examiner should not have been permitted to testify as to the examiner's conclusion or opinion of the manner of death since the examiner's investigation did not lead to that conclusion, the examiner's expertise as a forensic pathologist was not needed or used in reaching that conclusion, and the factors which led the medical examiner to the examiner's conclusion that the victim's death was a homicide are factors well within the knowledge and understanding of the jury. Maxwell v. State, 262 Ga. 73 , 414 S.E.2d 470 (1992), overruled on other grounds, Wall v. State, 269 Ga. 506 , 500 S.E.2d 904 (1998), overruled on other grounds, Smith v. State, 270 Ga. 123 , 508 S.E.2d 173 (1998).
Medical testimony consistent with murder conviction. - See Hampton v. State, 250 Ga. 805 , 301 S.E.2d 274 (1983).
Defendant's admission sufficient. - Defendant's recorded admission to a co-worker that the defendant killed the victim with the assistance of a codefendant was sufficient to support convictions for murder and aggravated assault. Williams v. State, 280 Ga. 539 , 630 S.E.2d 410 (2006).
Link between tattoos and murder not established. - In a malice murder prosecution, the defendant did not show that it was error to grant the state's motion in limine regarding the exclusion of evidence of the victim's tattoos as the defendant failed to establish a link between the tattoos and the murder. Marshall v. State, 285 Ga. 351 , 676 S.E.2d 201 (2009).
Evidence sufficient for murder conviction. - See Board of Comm'rs v. Welch, 253 Ga. 682 , 324 S.E.2d 178 (1985); Houston v. State, 253 Ga. 696 , 324 S.E.2d 183 (1985); Moore v. State, 254 Ga. 525 , 330 S.E.2d 717 (1985); Davis v. State, 255 Ga. 588 , 340 S.E.2d 862 , cert. denied, 479 U.S. 871, 107 S. Ct. 243 , 93 L. Ed. 2 d 168 (1986); Smith v. State, 255 Ga. 654 , 341 S.E.2d 5 (1986); Johnson v. State, 255 Ga. 552 , 341 S.E.2d 220 (1986); Lewis v. State, 255 Ga. 681 , 341 S.E.2d 434 (1986); Black v. State, 255 Ga. 668 , 341 S.E.2d 436 (1986); Smith v. State, 255 Ga. 685 , 341 S.E.2d 451 (1986); Byrd v. State, 255 Ga. 674 , 341 S.E.2d 453 (1986); Cunningham v. State, 255 Ga. 727 , 342 S.E.2d 299 (1986); White v. State, 255 Ga. 731 , 342 S.E.2d 304 (1986); Scott v. State, 255 Ga. 701 , 342 S.E.2d 310 (1986); Johnson v. State, 255 Ga. 703 , 342 S.E.2d 312 (1986); Kitchens v. State, 256 Ga. 1 , 342 S.E.2d 320 (1986); Gilstrap v. State, 256 Ga. 20 , 342 S.E.2d 667 (1986); Chastain v. State, 255 Ga. 723 , 342 S.E.2d 678 (1986); Evans v. State, 256 Ga. 1 0, 342 S.E.2d 684 (1986); Hooten v. State, 256 Ga. 31 , 343 S.E.2d 481 (1986); Clenney v. State, 256 Ga. 123 , 344 S.E.2d 216 (1986); Edison v. State, 256 Ga. 67 , 344 S.E.2d 231 (1986); Cochran v. State, 256 Ga. 113 , 344 S.E.2d 402 (1986); Boddie v. State, 256 Ga. 84 , 344 S.E.2d 643 (1986); Rogers v. State, 256 Ga. 139 , 344 S.E.2d 644 (1986); Brantley v. State, 256 Ga. 136 , 345 S.E.2d 329 (1986); Bryant v. State, 256 Ga. 273 , 347 S.E.2d 567 (1986); Appleby v. State, 256 Ga. 304 , 348 S.E.2d 630 (1986); Noggle v. State, 256 Ga. 383 , 349 S.E.2d 175 (1986); Thornton v. State, 256 Ga. 333 , 349 S.E.2d 186 (1986); Ford v. State, 256 Ga. 375 , 349 S.E.2d 361 (1986); Parker v. State, 256 Ga. 363 , 349 S.E.2d 379 (1986); Raven v. State, 256 Ga. 366 , 349 S.E.2d 383 (1986); Barnes v. State, 256 Ga. 370 , 349 S.E.2d 387 (1986); Wansley v. State, 256 Ga. 624 , 352 S.E.2d 368 (1987); Dixon v. State, 256 Ga. 658 , 352 S.E.2d 572 (1987); Walter v. State, 256 Ga. 666 , 352 S.E.2d 570 (1987); Arthur v. State, 256 Ga. 738 , 353 S.E.2d 331 (1987); Patterson v. State, 256 Ga. 740 , 353 S.E.2d 338 (1987); Westbrook v. State, 256 Ga. 776 , 353 S.E.2d 504 (1987); Quick v. State, 256 Ga. 780 , 353 S.E.2d 497 (1987); Clay v. State, 256 Ga. 797 , 353 S.E.2d 517 (1987); Hendrick v. State, 257 Ga. 17 , 354 S.E.2d 433 (1987); Byrd v. State, 257 Ga. 36 , 354 S.E.2d 428 (1987); Booker v. State, 257 Ga. 37 , 354 S.E.2d 425 (1987); Slaughter v. State, 257 Ga. 104 , 355 S.E.2d 660 (1987), overruled on other grounds, Woodard v. State, 269 Ga. 317 , 496 S.E.2d 896 (1998); Wilcox v. Ford, 813 F.2d 1140 (11th Cir.), cert. denied, 484 U.S. 925, 108 S. Ct. 287 , 98 L. Ed. 2 d 247 (1987); McMillan v. State, 257 Ga. 17 3 , 356 S.E.2d 866 (1987); Williams v. State, 257 Ga. 186 , 356 S.E.2d 872 (1987); Welch v. State, 257 Ga. 197 , 357 S.E.2d 70 (1987); Strickland v. State, 257 Ga. 230 , 357 S.E.2d 85 (1987); Bowens v. State, 257 Ga. 347 , 359 S.E.2d 636 (1987) (judgment reversed for error in instructions); McDaniel v. State, 257 Ga. 345 , 359 S.E.2d 642 (1987); Mosley v. State, 257 Ga. 382 , 359 S.E.2d 653 (1987); Thompson v. State, 257 Ga. 386 , 359 S.E.2d 664 (1987), overruled on other grounds, McClellan v. State, 274 Ga. 819 , 561 S.E.2d 82 (2002); Rhodes v. State, 257 Ga. 36 8, 359 S.E.2d 670 (1987); Harris v. State, 257 Ga. 385 , 359 S.E.2d 675 (1987); Carter v. State, 257 Ga. 510 , 361 S.E.2d 175 (1987); Chapman v. State, 258 Ga. 214 , 367 S.E.2d 541 (1988); Pace v. State, 258 Ga. 225 , 367 S.E.2d 827 (1988); Phillips v. State, 258 Ga. 228 , 368 S.E.2d 91 (1988); Langley v. State, 258 Ga. 251 , 368 S.E.2d 316 (1988); Wade v. State, 258 Ga. 324 , 368 S.E.2d 482 (1988), cert. denied, 502 U.S. 1060, 112 S. Ct. 941 , 117 L. Ed. 2 d 111 (1992); Patillo v. State, 258 Ga. 255 , 368 S.E.2d 493 , cert. denied, 488 U.S. 948, 109 S. Ct. 378 , 102 L. Ed. 2 d 367 (1988); Conley v. State, 258 Ga. 339 , 368 S.E.2d 502 (1988); Savage v. Flagler Co., 258 Ga. 335 , 368 S.E.2d 504 (1988); Mapp v. State, 258 Ga. 273 , 368 S.E.2d 511 (1988); Williams v. State, 258 Ga. 281 , 368 S.E.2d 742 (1988); Cash v. State, 258 Ga. 460 , 368 S.E.2d 756 (1988); Jackson v. State, 258 Ga. 322 , 368 S.E.2d 771 (1988); Kinsman v. State, 259 Ga. 89 , 376 S.E.2d 845 , cert. denied, 493 U.S. 874, 110 S. Ct. 210 , 107 L. Ed. 2 d 163 (1989); Jewell v. State, 261 Ga. 861 , 413 S.E.2d 201 (1992); Brown v. State, 264 Ga. 48 , 441 S.E.2d 235 (1994); Palmore v. State, 264 Ga. 108 , 441 S.E.2d 405 (1994); Combs v. State, 268 Ga. 398 , 500 S.E.2d 328 (1997); Ford v. State, 269 Ga. 139 , 498 S.E.2d 58 (1998); Putman v. Turpin, 53 F. Supp. 2d 1285 (M.D. Ga. 1999); Jenkins v. Byrd, 103 F. Supp. 2d 1350 (S.D. Ga. 2000); Chinn v. State, 276 Ga. 387 , 578 S.E.2d 856 (2003); Hill v. State, 276 Ga. 220 , 576 S.E.2d 886 (2003); Sellers v. State, 277 Ga. 172 , 587 S.E.2d 35 (2003); Herring v. State, 277 Ga. 317 , 588 S.E.2d 711 (2003); Hewitt v. State, 277 Ga. 327 , 588 S.E.2d 722 (2003); Williams v. State, 284 Ga. 849 , 672 S.E.2d 619 (2009); Moore v. State, 288 Ga. 187 , 702 S.E.2d 176 (2010).
Debating whose turn it is to kill someone. - Defendant was properly convicted of felony murder after the codefendant shot and killed the victim because defendant held the victim at gunpoint, threatened to kill the victim, and debated with the codefendant about whose turn it was to kill someone. Strozier v. State, 277 Ga. 78 , 586 S.E.2d 309 (2003).
Witness's testimony supported murder conviction. - Evidence of a witness's testimony that the witness heard defendant and the victim arguing in a hallway of a rooming house and then heard a gunshot and found the victim's body in the hallway, along with testimony that a gun, which an expert testified was the murder weapon, was found under a carpet in defendant's room was sufficient to support the defendant's conviction. Jones v. State, 277 Ga. 36 , 586 S.E.2d 224 (2003).
Death of victim months after sufficient for murder conviction. - Since the trial court record reflected that defendant and another person demanded that a hotel guest give them the guest's wallet, and upon the guest's resistance and attempt to run the guest was shot, which ultimately resulted in the death of the guest from complications four months later, and further, when the other man had been positively identified and in turn testified that defendant had pulled the trigger, defendant's convictions for felony murder and murder in violation of O.C.G.A. § 16-5-1 were sufficiently supported by the evidence. Woodard v. State, 277 Ga. 49 , 586 S.E.2d 330 (2003).
Evidence that defendant was involved in killing the victim, including evidence that defendant shot the victim in the chest and helped load the victim, still alive, into a car for transportation to another location where another man shot the victim to death was sufficient to support defendant's conviction for murder. Conaway v. State, 277 Ga. 422 , 589 S.E.2d 108 (2003).
Evidence that the defendant was lying with someone on a couch at the apartment of the love interest of the defendant's sibling, that the defendant started telling people on the day the victim disappeared that the defendant had killed a young person and put the person's body in a closet in an apartment, and that a witness saw the dead person in the apartment and reported the death to police meant that the evidence was legally sufficient to support the defendant's conviction. Cain v. State, 277 Ga. 309 , 588 S.E.2d 707 (2003), overruled on other grounds by Dickens v. State, 280 Ga. 320 , 627 S.E.2d. 587 (2006).
After the defendant admitted that the defendant and the victim smoked crack cocaine, that the defendant bit the victim, tied the victim's wrists to the victim's ankles, stuffed a pillowcase in the victim's mouth, and left the victim in the bathtub, and that the victim was "near out of air," the evidence was sufficient to enable the jury to find the defendant guilty beyond a reasonable doubt of malice murder. Pittman v. State, 277 Ga. 475 , 592 S.E.2d 72 (2004).
Malice murder conviction was upheld as evidence provided through the testimony of the medical examiner, the defendant's admissions and confession, and seized items resulting from the execution of a search warrant at the defendant's home were all sufficient to authorize a rational trier of fact to find the defendant guilty; further, the defendant made a voluntary waiver of the defendant's right to a jury trial, and an alleged error regarding the admission of expert testimony by a witness for the state was unpreserved for appellate review. Brown v. State, 277 Ga. 573 , 592 S.E.2d 666 (2004).
Voluntary and willing participation in crimes as coconspirator. - Evidence of the defendant's voluntary and willing participation in the crimes, through providing the use of the defendant's car to transport the other three named in the indictment to and from the scene and waiting in the vehicle while two of them committed aggravated assault, burglary, murder, and aggravated robbery, supported the defendant's convictions for those offenses as a co-conspirator. Silvers v. State, 278 Ga. 45 , 597 S.E.2d 373 (2004).
Given the defendant's testimony that: (1) the defendant went to the victim's apartment to sell the victim cocaine; (2) after the defendant put the cocaine on the kitchen counter, the victim pulled out a gun and shot the defendant in the arm; (3) the defendant charged the victim to disarm the victim; (4) the defendant tried to push the victim on a sofa and the gun went off; and (5) the defendant did not intentionally pull the trigger and the shooting was an accident, but the contradictory testimony of several police officers that the victim's apartment showed no signs of a struggle, and having reviewed the evidence in the light most favorable to the verdict, a rational trier of fact could have found the defendant guilty of murder beyond a reasonable doubt. Dyer v. State, 278 Ga. 656 , 604 S.E.2d 756 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 95 , 163 L. Ed. 2 d 111 (2005).
Evidence was sufficient to support malice murder conviction because: (1) the defendant and the victim were seen together the night before the victim's partially clothed, bloody body was found in a dumpster; (2) the victim was stabbed 20 to 30 times and hit in the head with a hammer; (3) a trail of blood led from the dumpster to the defendant's apartment; (4) when the police came to the defendant's apartment, the defendant was cleaning the apartment, but blood was seen throughout the unit; (5) the defendant had a cut and abrasion on the defendant's hand; (6) the defendant's palm print matched a partial, latent palm print on the dumpster; and (7) initially, the defendant denied knowing the victim but later changed the story several times. Morris v. State, 278 Ga. 710 , 606 S.E.2d 258 (2004).
Evidence that the defendant approached a car, exchanged words with the victim, produced a rifle, and shot the victim two times at point-blank range, killing the victim as the victim's children watched, was sufficient to support the defendant's murder conviction. Lewis v. State, 279 Ga. 69 , 608 S.E.2d 602 , cert. denied, 546 U.S. 987, 126 S. Ct. 571 , 163 L. Ed. 2 d 478 (2005).
Sufficient evidence of murder committed at dance. - Evidence was sufficient to support the defendant's conviction of malice murder, felony murder, and aggravated assault because: (1) the defendant was in an altercation with the victim at a dance; (2) eyewitnesses saw the defendant make a stabbing motion at the victim; (3) the victim died of nine stab wounds, including one to the heart; (4) the defendant's burned blue jeans were found in the defendant's love interest's backyard; (5) the defendant provided an investigator with clean clothes the defendant allegedly wore at the dance; and (6) the victim's blood and DNA were found on the defendant's leather jacket and on the shirt the defendant's love interest wore to the dance. Rakestrau v. State, 278 Ga. 872 , 608 S.E.2d 216 (2005).
Murder over automobile rims. - When the evidence showed that the defendant went to recover the defendant's automobile rims from the victim, who was unable to produce all of them, and the defendant shot the victim, after which the victim ran away, and then found the victim and shot the victim again, after which the victim died of a gunshot wound to the abdomen, the evidence was sufficient to allow a rational trier of fact to find the defendant guilty of malice murder beyond a reasonable doubt. Morgan v. State, 279 Ga. 6 , 608 S.E.2d 619 (2005).
Evidence supported the defendant's conviction for malice murder and aggravated assault because the victim had defensive wounds on the hand, the victim's blood was found on the defendant's shoe, a mixture of the victim's and the defendant's blood was found on the defendant's shirt, and the victim planned to ask the defendant to leave the apartment. Williams v. State, 279 Ga. 154 , 611 S.E.2d 19 (2005).
Murder of security guard. - Evidence supported the defendant's conviction for malice murder because: (1) an accomplice testified that the accomplice and the defendant robbed a motel and that the defendant shot a police officer who was working as a security guard; (2) the officer died from the wounds; (3) the accomplice told an ex-spouse on the morning after the crime that the defendant shot a security guard during the robbery; (4) the defendant and the accomplice were seen on the street shortly after the robbery; and (5) a firearms examiner's testimony concerning the location of shell casings and bullets at the crime scene corroborated the accomplice's testimony. Jackson v. State, 279 Ga. 449 , 614 S.E.2d 781 (2005).
Evidence was sufficient to enable a rational trier of fact to find the defendant guilty of felony murder since the defendant initially did not claim self-defense and later admitted to stabbing the victim, and the forensic evidence contradicted the defendant's claim of how the victim wielded a knife. Price v. State, 280 Ga. 193 , 625 S.E.2d 397 (2006), overruled on other grounds, Patel v. State, 282 Ga. 412 , 651 S.E.2d 55 (2007).
Evidence was sufficient to support a malice murder conviction when witnesses saw the defendant arguing with the victim, go with the victim into an area behind a motel where the victim lived, heard shots from the area behind the motel, and later the victim's body was found in that area; also, the defendant was seen at a house with an item wrapped in cloth, and later, the defendant's gun, the murder weapon, was found in the yard of that house, wrapped in cloth. Smith v. State, 280 Ga. 161 , 625 S.E.2d 766 (2006).
Despite the defendant's claim that the gun which the defendant was holding discharged accidentally when the victim attacked the defendant, the defendant's conviction of malice murder was supported by sufficient evidence showing, among other things, that the defendant and the victim had a heated telephone conversation within two days of the shooting, that the night before the shooting, the victim went to a bar where the defendant worked, that when the victim entered the bar, the defendant threw a glass ashtray at the victim, that the defendant expressed no remorse on the day of the shooting, that several months later the defendant boasted that the defendant "blew the bitch away," that the defendant dispassionately said the defendant gleaned a leather jacket from the victim's death, and that, by the testimony of the state's experts, the trigger pull required six pounds of pressure, that the shotgun would not fire accidentally, that the shotgun spray pattern indicated that the victim was shot from a distance of 14 feet, and that the pattern was inconsistent with the defendant's version of events. Holton v. State, 280 Ga. 843 , 632 S.E.2d 90 (2006).
There was sufficient evidence to convict the defendant of malice murder under O.C.G.A. § 16-5-1 , burglary under O.C.G.A. § 16-7-1 , and possession of a firearm during the commission of a crime under O.C.G.A. § 16-11-106 ; the defendant was arrested in the white van seen at the scene of the crime, a person resembling the defendant was seen at the scene, the defendant's brother was tied by DNA evidence to the offense, and the defendant and the defendant's brother were known to commit burglaries together. Denny v. State, 281 Ga. 114 , 636 S.E.2d 500 (2006).
Murder of unarmed victim. - Evidence supported a defendant's conviction for malice murder as: (1) the defendant stated that the defendant was going to re-park the victim's car and became upset; (2) the defendant changed the defendant's mind, gave the victim the car keys, went back into the apartment, came outside with a .38 caliber revolver, and fatally shot the unarmed victim once in the head; (2) children who witnessed the shooting testified that the defendant and the victim were not "fussing"; (3) the children testified that the defendant fired the weapon from the doorway of the apartment as the victim sat on the porch; and (4) the children testified that the victim had no time to react. Bradley v. State, 281 Ga. 173 , 637 S.E.2d 19 (2006).
There was sufficient evidence to support a defendant's conviction of malice murder as the jury was authorized to find that the defendant, mistaking the victim for someone who had robbed the defendant, got out of a car and attacked the victim from behind, then forced the victim into the car, drove to a remote location, and shot the victim in the chest; fibers on the victim's body matched the carpeting in the defendant's car, and it was for the jury to determine the credibility of the witnesses as well as the weight to be accorded the expert's fiber testimony. Hamilton v. State, 281 Ga. 501 , 640 S.E.2d 28 (2007).
Defendant's malice murder conviction, as a party to the crime, was upheld on appeal as sufficient evidence was adduced at trial of the defendant's participation in the crime, including eyewitness testimony that the defendant encouraged the shooter to shoot the victim, that the defendant recently threatened to shoot the victim in the head, and testimony that the defendant joined the shooter and the codefendant in the confrontation and fled with them after the shooting. Sims v. State, 281 Ga. 541 , 640 S.E.2d 260 (2007).
There was sufficient evidence to support the defendant's convictions of malice murder and aggravated assault; after an argument at the victims' house over money, the defendant returned to the house with a concealed pistol, demanded money from the first victim, pulled out the pistol after the first victim said that the first victim was not afraid of the defendant, and shot the two victims. Shelton v. State, 281 Ga. 660 , 641 S.E.2d 536 (2007).
Confession supported conviction. - Evidence was sufficient to support the defendant's murder conviction where the victim was last seen alive at a bank where the victim received $10 bills; shortly afterward, a customer who came to the victim's store encountered the defendant, a store employee, who said that the victim was asleep; a dog led police from the crime scene to a nearby wooded area, where weapons were found, and then directly to the defendant's mobile home; the defendant approached police and made inculpatory statements containing details of the crime not known to the public; police then searched the trailer and found a wallet containing 25 $10 bills; and the defendant subsequently confessed to the crime. Height v. State, 281 Ga. 727 , 642 S.E.2d 812 (2007).
Conversations on murder sufficient. - There was sufficient evidence to show that a defendant was a party under O.C.G.A. § 16-2-20(b)(3) to malice murders since: there was testimony that the defendant had previously acted violently toward the victims and had expressed the desire that the first victim die; that the defendant participated in at least one conversation planning the murders; that the defendant was present at the murder scene; that the defendant washed brown stains off the defendant's shirt after the murders; and that the defendant told two people of the murders before the bodies were discovered. Conway v. State, 281 Ga. 685 , 642 S.E.2d 673 (2007).
There was sufficient evidence to support the defendant's convictions of malice murder and of felony murder when the defendant, who had been involved romantically with the victim, walked into the victim's apartment, looked around, left, approached the car where the victim and a friend were sitting, put a gun to the friend's head, and then turned the gun on the victim and shot the victim before speeding off; the friend, who had known the defendant for over a year, identified the defendant as the shooter. Sampson v. State, 282 Ga. 82 , 646 S.E.2d 60 (2007).
Based on the evidence explaining the circumstances and events leading up to the victim's death, including testimony from the medical examiner as to the cause of death, the weapon found, and the defendant's own statements, the appeals court concluded that overwhelming evidence existed to support the defendant's convictions of malice murder and possession of a firearm during the commission of a crime. Sturgis v. State, 282 Ga. 88 , 646 S.E.2d 233 (2007).
There was sufficient evidence to support the defendant's convictions of malice murder, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a felony; the defendant and the victim lived in the same rooming house where the defendant often intimidated the victim and demanded money from the victim, on the night of the crime the defendant sent the victim to buy crack cocaine and became angry when the victim returned empty-handed, the defendant argued with the victim and shot the victim in the eye, and at the hospital the victim repeatedly declined to say who shot the victim, except to say that a person with a first name other than the defendant's shot the victim accidentally. Jones v. State, 282 Ga. 306 , 647 S.E.2d 576 (2007).
Victim shot in front of victim's child. - There was sufficient evidence to support the defendant's convictions of malice murder, felony murder, aggravated assault, cruelty to children in the first degree, and possession of a firearm in the commission of a felony when the defendant waited for the victim at the victim's house, drove with the victim and the victim's 10-year-old child to a rural road and stopped, displayed a gun and refused to allow the victim to leave, and drove to the home of the defendant's child, where the defendant shot the victim in front of the victim's child. Dalton v. State, 282 Ga. 300 , 647 S.E.2d 580 (2007).
Evidence supported the defendant's convictions of malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of a felony; the two surviving victims testified that the defendant began shooting at the victims after arriving at an apartment, and the testimony of the victims, the location of shell casings, and the evidence showing that the deceased victim was shot from a distance of over three feet, significantly refuted the defendant's claim of self-defense. Jackson v. State, 282 Ga. 494 , 651 S.E.2d 702 (2007).
Delayed ignition devices used as part of murder cover-up. - Sufficient evidence supported the defendant's convictions of malice murder and first-degree arson since: the defendant, who owed money to the victim for a house and who delayed paying the money, was suppose to meet the victim at a bank to pay the victim on the day the victim's body was discovered in the victim's burned mobile home; a medical examiner testified that the victim died by strangulation; the defendant was seen at the mobile home twice that day and appeared agitated; there was fire-related activity in the defendant's home; the defendant completed firefighting classes for work that included training in delayed-ignition devices constructed from household items; there was similar transaction evidence about a fire in the defendant's home and the defendant's use of the insurance proceeds from that fire to pay debts; and the defendant's claim that the defendant was with the defendant's spouse at the time of the fire could be readily explained by the possibility of the use of a delayed-ignition device. Bryant v. State, 282 Ga. 631 , 651 S.E.2d 718 (2007).
Murder of a convenience store clerk. - There was sufficient evidence to support a defendant's convictions of malice murder, armed robbery, kidnapping, third-degree arson, burglary, and possession of a firearm during the commission of a crime when the evidence showed that the defendant made the defendant's accomplice shoot a convenience store clerk after the defendant forced the clerk at gunpoint into a wooded area, took money from a cash register in the store, and started a fire in the store. The accomplice's testimony was sufficiently corroborated by the defendant's admission that the defendant owned the shotgun that was used in the shooting, the defendant's admission that the defendant gave the shotgun to the accomplice, the testimony of a third person that the accomplice gave the third person the shotgun after the robbery, and the fact that shotgun shells found in the defendant's home matched shells taken from the clerk's body. Judkins v. State, 282 Ga. 580 , 652 S.E.2d 537 (2007).
Evidence was sufficient to support the defendant's convictions as a party to malice murder, felony murder, kidnapping with bodily injury, false imprisonment, and aggravated assault when: the victim, who claimed to have been robbed of money the defendant and a codefendant gave the victim for drugs, had been made to drive around while a codefendant pointed a gun at the victim; the victim was later taken to an apartment where the victim was threatened and pistol-whipped; the victim was taken out of the apartment, forced into some woods, and fatally shot; and following the killing, the defendant and a codefendant moved the victim's car from the apartment complex to a parking lot where the defendant and others had met the victim earlier that evening. John v. State, 282 Ga. 792 , 653 S.E.2d 435 (2007).
Evidence was sufficient to support the defendant's convictions of malice murder, felony murder, burglary, aggravated assault, and possession of a firearm during the commission of a felony. Two off-duty police officers who worked as security guards for the apartment building where the victim was shot heard a "pop" and saw two people running from the apartment where the victim was shot; the victim's friend testified that the defendant and the codefendant had been at the apartment in the days before the murder and had asked about a gun the victim had; and a neighbor testified that around the time of the shooting, the defendant and the codefendant had followed the victim to the apartment, then pushed open the door without knocking, and that the defendant had a weapon. Walker v. State, 282 Ga. 703 , 653 S.E.2d 468 (2007).
Knife used as murder weapon. - Sufficient evidence existed to support a defendant's convictions of malice murder and possession of a knife during the commission of a felony under O.C.G.A. § 16-11-106(b) : there was (1) eyewitness testimony that the defendant stabbed the victim, who was involved in a dispute with a relative of the defendant, in the chest with a knife; (2) evidence supporting a finding that the knife was three inches or longer; (3) the defendant's admission to "sticking" the victim; and (4) testimony that the defendant twice pulled a knife on the victim before. Stanley v. State, 283 Ga. 36 , 656 S.E.2d 806 (2008).
Defendant's malice murder conviction was upheld on appeal because: (1) the evidence presented by the state in support of the state's malice murder and other charges was sufficient; (2) the defendant's objection to the victims' parent's testimony as irrelevant and inflammatory was entirely too vague and general to present any question for determination by the trial court; (3) the defendant failed to support a requested instruction with the specific language sought to be included therein; (4) a challenged instruction on the murder count did not effectively direct a verdict of guilty on that charge as an inaccuracy was cleared up by the court, and the charge as a whole was not likely to confuse the jury; and (5) an involuntary manslaughter charge was not warranted by the evidence. Davenport v. State, 283 Ga. 171 , 656 S.E.2d 844 (2008).
More than mere presence shown. - Sufficient evidence supported a felony murder conviction because ample evidence, including the defendant's admission, showed more than a mere presence at the crime scene, and that the defendant participated in the felony murder of the victim as a party to the crime while in the commission of an armed robbery. Moreover, the defendant did not have to fire the fatal shot in order to be guilty as a principal because the offense of felony murder was accomplished when a defendant caused the death of another human being while in the commission of the underlying felony. Curinton v. State, 283 Ga. 226 , 657 S.E.2d 824 (2008).
Evidence supported the defendant's convictions of malice murder and two counts of aggravated assault; witnesses testified that a person wearing a red bandana went into a bar, pointed a pistol at one victim, left, and later returned and began shooting, and other witnesses testified that the defendant was the shooter and that the defendant was wearing a red bandana. Felton v. State, 283 Ga. 242 , 657 S.E.2d 850 (2008).
Evidence was sufficient to support convictions of malice murder, armed robbery, and aggravated assault when the defendant demanded that the victim "break bread", hit the victim three times with a metal flashlight, and rummaged through the victim's pockets after the victim refused, hit the victim again after the victim refused to turn over a ring, and then took the ring. Gibson v. State, 283 Ga. 377 , 659 S.E.2d 372 (2008).
Evidence supported a conviction of malice murder. The defendant was identified as one of the persons who fled to a hotel from the car where the victim had been shot; bloody clothes matching those worn by the defendant were found in a hotel room along with the defendant; genetic profiles of both the victim and the defendant were found on a sock in the room; a fingerprint removed from a vent cover in the room was that of the defendant; a bullet removed from the victim's body was fired from a pistol found in the vent; and the person found in the hotel room with the defendant testified that the defendant removed the vent cover and placed the pistol in the ductwork. Smith v. State, 284 Ga. 17 , 663 S.E.2d 142 (2008).
Defendant's convictions on charges of malice murder, aggravated assault, and obstruction were supported by evidence that showed, inter alia, that the defendant was upset because the victim owed the defendant money, that the defendant got into an argument with the victim that culminated in the defendant shooting the victim, that a shell casing from the gun used to shoot the victim was found in the defendant's room, and that when the defendant was arrested, the defendant lied about the defendant's identity. Williams v. State, 284 Ga. 94 , 663 S.E.2d 179 (2008).
Eyewitness testimony sufficient for conviction. - Testimony from two eyewitnesses that the defendant fatally shot the victim with an assault rifle and aimed the rifle at one of the witnesses, and evidence that the defendant then fled and tried to elude authorities was sufficient to convict the defendant of felony murder, aggravated assault with a deadly weapon, aggravated assault, and possession of a firearm during the commission of a felony. McKenzie v. State, 284 Ga. 342 , 667 S.E.2d 43 (2008).
Confession supported conviction. - Evidence supported a defendant's conviction for malice murder and rape. The victim had seminal fluid on her leg and buttocks and in her vagina, a massive wound in the back of the head caused by at least five individual blows that had driven pieces of her skull into her brain, and ligature marks on her neck; the defendant told a co-worker that he had hit a woman on the back of the head; DNA obtained from the defendant matched that found on the victim; and the defendant told a detective that the defendant had killed the victim. Holmes v. State, 284 Ga. 330 , 667 S.E.2d 71 (2008).
Evidence supported convictions of malice murder, concealing a death, and possession of a firearm during the commission of a crime. A codefendant testified that the defendant, who was jealous of one victim, shot the victims in the defendant's home, then put the bodies in the second victim's car, drove the car away, poured gasoline on the car, and set the car on fire; an officer who had known the defendant for years testified that the defendant called the officer twice about surrendering to authorities; police found blood, human tissue, shotgun pellets, part of a shotgun, and ammunition in the defendant's home, a trail of blood leading away from the house, and a shotgun shell casing and a gas can in the defendant's truck; and a cellmate testified that the defendant told the cellmate that the defendant shot two people, that the defendant inquired whether fingerprints could be retrieved from a burned vehicle, and that the defendant said that the defendant had soaked up blood on the defendant's carpet with cat litter. Hendrix v. State, 284 Ga. 420 , 667 S.E.2d 597 (2008).
Eyewitnesses testified that the defendant ordered a man to shoot the victim, who was wounded but escaped; later, eyewitnesses saw the defendant and an armed cohort encounter the unarmed victim, who was fatally shot. This evidence was sufficient to support the defendant's convictions for aggravated assault and murder. Wilcox v. State, 284 Ga. 414 , 667 S.E.2d 603 (2008).
Testimony from drug dealer supported conviction. - Evidence supported convictions of malice murder, possessing a firearm during the commission of that murder, and possession of a weapon by a convicted felon. A drug dealer told police that the drug dealer saw the defendant shoot the victim, although the drug dealer said at trial that the drug dealer did not see the shooting; the drug dealer's spouse testified as to a statement by the drug dealer that was inconsistent with the drug dealer's trial testimony; and another prosecution witness testified that before the shooting, the defendant said that the defendant was "going to get" the victim and that afterward, the defendant said, "I told you I was going to do" the victim. Broner v. State, 284 Ga. 402 , 667 S.E.2d 613 (2008).
Evidence was sufficient to support convictions of malice murder and of the possession of a firearm during the commission of a crime. Witnesses testified that after getting into a confrontation with a second person at a nightclub, the defendant threatened to kill the second person, that the defendant retrieved a gun and waited outside the club for the second person, and that after being wrestled to the ground, the defendant fired shots, one of which fatally wounded a bystander. Savior v. State, 284 Ga. 488 , 668 S.E.2d 695 (2008).
Mere presence at scene of murder rejected. - In a malice murder case, there was no merit to a defendant's argument that the evidence established only the defendant's mere presence at the scene; at the very least, the defendant was a party to the crime under O.C.G.A. § 16-2-20(a) . While it was not established that the defendant actually committed the physical act of stabbing the victim, the state presented evidence that the defendant took part in another murder the night before the victim was killed, that the victim threatened to disclose the earlier murder to police, that the victim was killed to silence the victim, and that the defendant assisted the codefendants in removing the victim from the trunk of a car and dragging the body into the woods. Metz v. State, 284 Ga. 614 , 669 S.E.2d 121 (2008), overruled on other grounds, State v. Kelly, 290 Ga. 29 , 718 S.E.2d 232 (2011).
Knife used as a murder weapon. - Despite defendant's testimony that the victim and the victim's friend attacked the defendant, that the defendant picked up a knife in self defense, and that the defendant stabbed the victim in self-defense, the testimony of the friend that defendant had been fighting and that the friend heard the victim yell that defendant had stabbed the victim was sufficient to convict defendant of malice murder and felony murder. Hooper v. State, 284 Ga. 824 , 672 S.E.2d 638 (2009).
Confession supported conviction. - Evidence was sufficient to support the defendant's convictions for malice murder, theft by taking an automobile, and possession of a firearm by a convicted felon as the defendant admitted to a cellmate and to a cousin's roommate that the defendant fatally shot the cousin when the cousin told the defendant to move out of a shared apartment; there was also physical evidence, the recovery of the gun used in the incident, and witness testimony that supported the conviction. Jackson v. State, 284 Ga. 826 , 672 S.E.2d 640 (2009).
Sufficient evidence supported a defendant's murder conviction as the defendant convinced the victim to pick the defendant up in the victim's car and, during an argument, produced a knife; as the two struggled, the defendant stabbed the victim six times. Cane v. State, 285 Ga. 19 , 673 S.E.2d 218 (2009).
Knife used as a murder weapon. - Evidence supported the defendant's conviction of malice murder. The defendant's roommate, who had been summoned by the second victim, found the first victim covered with blood in a bedroom; the defendant was also in the bedroom, holding a knife, and told the roommate that the first victim "had it coming"; police who surrounded the building entered the bedroom and found the first victim and the second victim, who had become separated from the roommate when the roommate ran from the scene; the defendant was found in a neighboring apartment, which the evidence showed that the defendant had entered through a connecting attic; the defendant's blood was found in both apartments; and the defendant's blood, along with the victims' blood, was found on the defendant's clothing, the knife, and numerous other items. Hurst v. State, 285 Ga. 294 , 676 S.E.2d 165 (2009).
Evidence was sufficient to support the defendant's conviction for malice murder as the defendant forced a former girlfriend to purchase a shotgun, and then had another girlfriend set up the victim under the pretense of having sex with him, whereupon the defendant entered the room and fatally shot the victim in the face; participants in various stages of the criminal conduct testified against the defendant at trial. Varner v. State, 285 Ga. 300 , 676 S.E.2d 189 (2009).
Following evidence was sufficient to support the defendant's murder conviction: (1) the victim's sibling heard the defendant and the victim arguing in a bedroom; (2) minutes later, the sibling heard a gunshot and found the victim with a gunshot wound to the head and the defendant kneeling on the floor; (3) the defendant made incriminating statements to police; and (4) an expert opined that the bullet taken from the victim had been fired from the gun found at the scene, which defendant had purchased. Watkins v. State, 285 Ga. 355 , 676 S.E.2d 196 (2009).
Victim shot twice in head. - Eyewitness testimony that the defendant argued with and later fatally shot the victim twice in the head was sufficient to convict the defendant of malice murder. Marshall v. State, 285 Ga. 351 , 676 S.E.2d 201 (2009).
There was sufficient evidence to support the defendant's conviction for, inter alia, malice murder of the defendant's roommate as the defendant gave conflicting statements to police regarding when the roommate was last seen, the defendant knew that the roommate had been stabbed to death although that information was not disclosed to the police, and blood stains in the defendant's home and on the defendant's furniture matched the roommate's blood. Carson v. State, 285 Ga. 337 , 676 S.E.2d 207 (2009).
Knife used as a murder weapon. - Evidence was sufficient to convict two defendants of malice murder: (1) a week after one defendant fought, and the other threatened, their roommate, the latter died in their house after being beaten with a guitar and stabbed; (2) the next day, a defendant, who had bruises on the defendant's arms, told a neighbor of finding the victim's body at their home; (3) the victim's blood was found on the other defendant's shorts; and (4) the knife handle and pieces of the guitar were found near the crime scene. Dixon v. State, 285 Ga. 312 , 677 S.E.2d 76 (2009), overruled on other grounds, 287 Ga. 242 , 695 S.E.2d 255 (2010).
Eyewitness testimony supported murder conviction. - Convictions of two defendants of, inter alia, malice murder and felony murder were supported by sufficient evidence because eyewitnesses saw the defendants point guns at the victim, shoot, and flee. Daniel v. State, 285 Ga. 406 , 677 S.E.2d 120 (2009).
Evidence supported the defendants' convictions of malice murder and possession of a firearm by a convicted felon. The first defendant told a driver to stop a car while the second defendant and the victim got out of another car; the second defendant held the victim at gunpoint with an AK-47; the first defendant jumped out of the car and approached the second car with a .45 caliber handgun; both defendants fired their weapons at the victim as the victim was running; after the victim fell, the second defendant stood over the victim with the rifle and fired several more times; the victim suffered five back-to-front bullet wounds; and shell casings from a .45 caliber handgun as well as an AK-47 were found at the scene. Anderson v. State, 285 Ga. 496 , 678 S.E.2d 84 (2009).
Malice murder conviction was supported by sufficient evidence under circumstances in which, among other things, an eyewitness observed the defendant and a companion approach the victim, saw the victim throw the victim's arms above the victim's head and remain in that position for about five seconds, and then turn and run, and then heard a single gunshot; a coworker of the victim heard a gunshot, heard the victim exclaim that the victim had been "hit," and saw evidence of the perpetrator in close proximity to the victim immediately after the shooting. Defendant claimed that the defendant's gun had accidentally discharged, striking the victim. Glover v. State, 285 Ga. 461 , 678 S.E.2d 476 (2009).
Convictions of felony murder, O.C.G.A. § 16-5-1 , and armed robbery, O.C.G.A. § 16-8-41 , were supported by sufficient evidence because, inter alia, the defendant acted as a lookout and deterred two potential customers while a codefendant entered the victim's restaurant, shot the victim to death, robbed the cash register, and stole the victim's wallet; after the shooting, the defendant and the codefendant fled the scene together and went to a friend's apartment, where the defendant changed the defendant's shirt to disguise the defendant's identity. Proof of the defendant's direct commission of the crimes was not required because the jury could infer the defendant's participation from conduct before, during, and after the crimes. Washington v. State, 285 Ga. 541 , 678 S.E.2d 900 (2009).
Killing of restaurant manager. - Restaurant was robbed, the manager was fatally shot, and the manager's car was stolen. As the defendant's accomplice, the defendant's cellmate, and an officer testified that the defendant admitted committing the murder, the evidence was sufficient to convict the defendant of malice murder, armed robbery, and theft by taking. Patterson v. State, 285 Ga. 597 , 679 S.E.2d 716 (2009), cert. denied, 558 U.S. 1117, 130 S. Ct. 1051 , 175 L. Ed. 2 d 892 (2010).
Sufficient evidence supported the defendant's conviction of malice murder under circumstances in which the victim's father received a call originating from the victim's cell phone, and, when that number was called back, all that could be heard were noises, including gasping, gurgling, and children screaming during the second call, before the line was disconnected; officers later found the victim lying on the kitchen floor with a cell phone in the victim's hand, dead from a single gunshot wound to the head, and a handgun retrieved on the premises was later determined to have fired the bullet that killed the victim. The defendant testified that the defendant and the victim were arguing inside the home, that the argument became physical, that the defendant took the children and a gun out to the defendant's truck, that the defendant returned to the house, and that the defendant did not know what happened after that. Paslay v. State, 285 Ga. 616 , 680 S.E.2d 853 (2009).
Sufficient evidence supported the defendant's convictions of murder, felony murder, and aggravated assault; the evidence revealed that the victim and the defendant got into a physical fight at a bar, and that the victim then left the bar and went to an apartment. The defendant then went home, retrieved a handgun, went to the apartment, knocked on the door, and when one of the people inside opened the door, the defendant shot the victim in the chest, killing the victim. Rector v. State, 285 Ga. 714 , 681 S.E.2d 157 , cert. denied, 558 U.S. 1081, 130 S. Ct. 807 , 175 L. Ed. 2 d 567 (2009).
Evidence was sufficient to authorize a rational trier of fact to find the defendant guilty of malice murder and felony murder beyond a reasonable doubt because a bloody fingerprint found at the crime scene matched the defendant's fingerprint, bloody boot impressions found at the scene were connected to the defendant's boots, and blood on the defendant's boots matched the victim's blood; a witness testified that the defendant had stated that the defendant attacked the victim in a bathroom, and the crime scene investigator testified that based on blood spatter pattern analysis, the victim's beating began in the bathroom. Arrington v. State, 286 Ga. 335 , 687 S.E.2d 438 (2009), cert. denied, 131 S. Ct. 112 , 178 L. Ed. 2 d 69 (U.S. 2010).
Evidence was ample for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of malice murder and possession of a firearm during the commission of a felony because a witness testified at trial that defendant was responsible for the shooting, and in addition to witness testimony implicating defendant, police found bullets of the same caliber used to shoot the victim in a codefendant's vehicle soon after the shooting; the jury was also shown transcripts and video recordings of statements given to the police by two witnesses in which the witnesses implicated defendant. Hicks v. State, 287 Ga. 260 , 695 S.E.2d 195 (2010), overruled on other grounds by McClure v. State, 306 Ga. 856 , 834 S.E.2d 96 (2019).
Murder with 9mm handgun. - Evidence was sufficient for a rational jury to find the defendant guilty beyond a reasonable doubt of malice murder because the defendant shot the victim with a 9mm handgun after entering the victim's house in order to take the victim's possessions; the defendant's girlfriend testified that the day before the shooting, she saw the defendant with a 9mm handgun. Fox v. State, 289 Ga. 34 , 709 S.E.2d 202 (2011).
Steering vehicle as criminal attempt to commit murder. - In view of the circumstances of the chase, in which the codefendant leaned the codefendant's upper body out the window of the moving vehicle while shooting at the trooper, the jury could have concluded that the defendant assisted the codefendant by steering the vehicle and the jury was free to reject as unreasonable the hypothesis that the defendant was a mere passenger who did not assist the codefendant. Best v. State, Ga. App. , 846 S.E.2d 157 (2020).
Admission to another inmate of killing someone. - Although there was conflicting evidence as to whether the defendant or the codefendant was the shooter, the evidence was more than sufficient to authorize a rational trier of fact to find the defendant guilty of malice murder beyond a reasonable doubt because the defendant confronted several people in a park, told the people that something was about to go down, and warned the people not to tell anyone; the defendant then confronted the victim and argued loudly with the victim, who was fatally shot twice in the head from close range, and while in jail, the defendant admitted to another inmate that the defendant killed somebody. Johnson v. State, 289 Ga. 106 , 709 S.E.2d 768 (2011).
Fingerprints and eyewitness identification sufficient for murder conviction. - Evidence was sufficient to enable a rational trier of fact to find the defendant guilty of malice murder, armed robbery, and aggravated assault beyond a reasonable doubt because although the defendant denied to police that the defendant had any contact with the silver car that was connected to the robbery, the defendant's fingerprints were found on the outside of the car and an eyewitness's physical description of the second gunman from the robbery matched the defendant. Carter v. State, 289 Ga. 51 , 709 S.E.2d 223 (2011).
Evidence supported the defendant's convictions for malice murder, felony murder, criminal attempt to commit armed robbery, armed robbery, aggravated assault, and possession of a firearm during the commission of a crime because: (1) the defendant participated in the armed robbery of three people, including the shooting victim, who were sitting in a car on a neighborhood street; (2) during the encounter, the co-indictee fatally shot the victim in the head with a shot gun; (3) one of the two other people in the car testified that, after the shooting, the defendant, with the defendant's hand in the defendant's pocket simulating that the defendant had a gun, took money and drugs from the witness; (4) the co-indictee also took money from the other person; and (5) the defendant and the co-indictee then fled the scene. Gilyard v. State, 288 Ga. 800 , 708 S.E.2d 329 (2011).
Jury choosing to believe state's witnesses. - Evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt of malice murder and possession of a firearm during the commission of a crime because although there were defense witnesses who testified that someone else, and not defendant, was the actual shooter, and there were inconsistencies and contradictions in the testimony of the state's witnesses, the jury, after considering all of the evidence, chose to believe the state's version and that defendant's witnesses were not credible. Martinez v. State, 289 Ga. 160 , 709 S.E.2d 797 (2011).
Evidence was sufficient to support the defendant's conviction for malice murder because evidence was presented that the defendant and a codefendant entered a restaurant to rob the restaurant and shot two employees of the restaurant. In a statement to the police, the defendant admitted that the defendant entered the restaurant with a handgun to rob the restaurant, but the defendant claimed that the defendant heard gunshots and left the restaurant, while the codefendant gave a similar statement to the police. Watkins v. State, 289 Ga. 359 , 711 S.E.2d 655 (2011).
Murder occurring during robbery. - Evidence was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of malice murder, aggravated assault, and possession of a firearm during the commission of a crime because the three men who were with the victim when the victim was shot identified the defendant as the person who fired shots at them; there was testimony that the defendant was the boyfriend of a woman who was the former girlfriend of one of the three men with the murder victim and that the defendant and the former boyfriend had exchanged heated words earlier on the day the victim was killed as well as the afternoon of the day before the shooting. Glass v. State, 289 Ga. 706 , 715 S.E.2d 85 (2011).
Murder occurring during pool hall fight. - Evidence presented at trial was sufficient to authorize a rational jury to reject the defendant's justification defense and find the defendant guilty of murder beyond a reasonable doubt because the defendant was involved in a pool hall fight, drew a pistol, and opened fire, killing the victim. Funes v. State, 289 Ga. 793 , 716 S.E.2d 183 (2011).
Evidence was sufficient to support convictions for malice murder because: (1) before the decedent's death, the decedent told a friend that the decedent had been beaten in a fight by one of the defendants; (2) the other defendant placed dozens of calls from the decedent's cell phone as the defendants traveled from Tampa to Atlanta in the decedent's pickup truck; (3) the truck was destroyed in an arson fire near an apartment complex where the defendants were staying with relatives; (4) the decedent's body was found in the bed of the truck; (5) the decedent had been dead for days before the fire; and (6) personal belongings of the decedent were found in the possession of the defendants. Miller v. State, 289 Ga. 854 , 717 S.E.2d 179 (2011).
Evidence was sufficient to enable a rational trier of fact to find the defendant guilty of malice murder beyond a reasonable doubt because police found the victim beaten, stabbed, and strangled in the living room, and blood evidence collected at the scene later connected the defendant to the crime. Wheeler v. State, 290 Ga. 817 , 725 S.E.2d 580 (2012).
Evidence was sufficient to authorize a rational trier of fact to find the defendant guilty of malice murder and possession of a firearm during the commission of a felony because the state's case rested on direct as well as circumstantial evidence; the direct evidence included testimony by an eyewitness that the defendant was the shooter, testimony by another witness who overheard the defendant discussing the shooting and laughing at the fact that the defendant killed the victim in front of the victim's children, and the confession of the defendant to police officers that the defendant shot the victim. Rockholt v. State, 291 Ga. 85 , 727 S.E.2d 492 (2012).
Evidence supported the defendant's convictions of felony murder during the commission of aggravated assault, aggravated assault, possession of marijuana, and possession of a firearm during the commission of a crime since: (1) after smoking marijuana, the defendant attacked the victim, pulled a gun from the defendant's pocket, and shot the victim four times; (2) the victim told the police that the defendant did it; (3) the victim died; (4) a knife was found near the victim, the defendant had a stab wound, and the defendant claimed self-defense; and (5) witnesses one and two saw the defendant pull the gun but did not see the victim with a knife. Hill v. State, 291 Ga. 160 , 728 S.E.2d 225 (2012).
State's physical evidence, including the victim's blood on the defendant's shirt, the defendant's unexplained possession of the victim's truck, watch, and other personal property, and the fact that the defendant was seen near the victim's residence and farm not long before the crimes were committed, supported the defendant's convictions for malice murder and armed robbery. Blevins v. State, 291 Ga. 814 , 733 S.E.2d 744 (2012).
Delayed complications supported murder conviction. - When the medical examiner determined that, although the autopsy revealed other medical conditions, the cause of the victim's death was delayed complications from the blunt force trauma to the victim's head, the evidence was sufficient to establish that the defendant's actions were the cause of the victim's subsequent death. Clarke v. State, 292 Ga. 305 , 737 S.E.2d 575 (2013).
Confession supported conviction. - Evidence that the victim's brother told an officer the brother thought the victim was dead because the defendant, the father, had killed the victim; that the defendant admitted to family members, while meeting in an interview room at the police station, that the defendant killed the victim; and that the victim had been strangled to death was sufficient to support the defendant's conviction for malice murder. Rashid v. State, 292 Ga. 414 , 737 S.E.2d 692 (2013).
Defendant's claim that the evidence was insufficient to support the convictions for malice murder and possession of a firearm during the commission of a felony because the state was unable to present evidence to disprove the earlier incident between the defendant and the victim or disprove that the defendant acted in self-defense when the defendant shot the victim failed because testimony from eyewitnesses to the shooting and forensic evidence belied the claim that the defendant acted in self-defense. Among other things, the defendant testified the defendant shot the victim because the victim pulled out a knife, claiming the defendant saw the blade; however, two closed pocket knives were found. Hoffler v. State, 292 Ga. 537 , 739 S.E.2d 362 (2013).
Testimony from two witnesses that the witnesses recognized the defendant from the defendant's distinctive walk and that one also recognized the defendant from the defendant's posture, shoulders, complexion, and nose; the fact that a dark fiber like one that could have been from the shooter's wig was found in the defendant's truck; and the defendant's admission to an inmate that the defendant shot the victim supported the defendant's convictions for malice murder and possession of a firearm during the commission of a felony. Hayes v. State, 292 Ga. 506 , 739 S.E.2d 313 (2013).
Evidence that the defendant's wallet was found on the victim's kitchen table, a plastic grocery bag containing the defendant's blood stained clothes was discovered, and DNA testing showed that the blood on the defendant's windbreaker came from the victim and the blood spatter was consistent with the wearer having struck the victim, was sufficient to support the defendant's convictions for malice murder and robbery. Hall v. State, 292 Ga. 701 , 743 S.E.2d 6 (2013).
Defendant's admission that the defendant helped the defendant's son hold down the victim as the son penetrated the victim, that the defendant rubbed the defendant's own penis against the victim and ejaculated on the victim, that the defendant put the defendant's hands over the son's hand as the son choked the victim, that the defendant helped dump the victim's body, and the testimony of the defendant's wife that the defendant helped undress the victim, the defendant put the defendant's mouth on the victim's penis, and the defendant attempted to put the defendant's penis in the victim's anus was sufficient to support the defendant's convictions for murder, false imprisonment, two counts of aggravated child molestation, child molestation, cruelty to children in the first degree, concealing the death of another, and tampering with evidence. Edenfield v. State, 293 Ga. 370 , 744 S.E.2d 738 (2013), overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018).
Although the jury heard the defendant's statement claiming that there was a struggle for the gun, the jury also heard evidence that the gunshot to the chest came after the victim had already been shot and that the gunshot to the chest likely did not occur during a struggle and, thus, the evidence was sufficient for the jury to find the defendant guilty of malice murder. Thomas v. State, 297 Ga. 750 , 778 S.E.2d 168 (2015).
Evidence supported the defendant's malice murder conviction when the defendant shot the victim because the defendant believed the victim took $400 and the defendant's phone, given that a witness saw the defendant meet the victim at the door of the defendant's house, call the victim a bitch, and yank the victim's arm, then the witness heard a gunshot, and the defendant admitted shooting the victim but claimed the shooting was accidental. Furthermore, the trial court did not err in denying a motion for new trial on general grounds. Smith v. State, 300 Ga. 532 , 796 S.E.2d 671 (2017).
After the jury heard testimony that the defendant physically assaulted the victim, held the victim at gunpoint, shot the victim as the victim tried to get away, and left the victim at the residence after shooting the victim, the evidence was sufficient to support a finding of malice murder. Benton v. State, 305 Ga. 242 , 824 S.E.2d 322 (2019).
Evidence sufficient for murder conviction in drug cases. - Evidence was sufficient to support the first defendant and the second defendant's convictions for murder, kidnapping, armed robbery, and burglary, as the evidence showed that the defendants were involved in a scheme to rob a person who they believed to be selling large amounts of marijuana from an apartment, that the defendants burst into the apartment brandishing guns, that one of the defendants fatally shot the victim, and that the other defendant forced two people present to lie on the ground and divulge the location of a safe in the apartment that held money and marijuana. Howard v. State, 279 Ga. 166 , 611 S.E.2d 3 (2005).
Evidence was sufficient to support a malice murder conviction after the defendant had approached the victim's car to sell drugs and leaned into the car, when a passenger grabbed the drugs, and the victim sped off, but the car stalled a few blocks down the street, and defendant ran to the car to retrieve the drugs, but discovered that all of the drugs had not been returned, ran back to the disabled car, and shot the victim in the leg and then the head. Collier v. State, 280 Ga. 148 , 625 S.E.2d 757 (2006).
Dying declaration of victim as evidence in murder conviction. - Evidence was sufficient to enable a rational trier of fact to find a defendant guilty of murder beyond a reasonable doubt as a result of the evidence establishing that the victim identified the defendant as the individual who caused the victim's gunshot wound via a dying declaration made before the victim died, and the defendant had earlier in the day accused the victim of stealing a gun from the defendant, which was a baseless claim. Ventura v. State, 284 Ga. 215 , 663 S.E.2d 149 (2008).
Evidence sufficient for malice murder as party to crime. - Evidence was sufficient to support the defendant's conviction for malice murder as a party to the crime under O.C.G.A. § 16-2-20(b)(3) as the defendant accompanied the defendant's son on two occasions to the victim's apartment, the defendant lied to gain entry into the victim's apartment, the defendant was present when the victim was fatally shot, and the defendant fled after the incident. Ashe v. State, 285 Ga. 359 , 676 S.E.2d 194 (2009).
Arguments over volume of stereo and television justifying murder. - Evidence was sufficient to support the defendant's conviction for, inter alia, malice murder as the defendant admitted to fatally shooting the victim in the chest with the victim's rifle after the two argued about the volume of the stereo and television. Jones v. State, 285 Ga. 328 , 676 S.E.2d 225 (2009).
Malice murder conviction following prescription drug use taken for injuries inflicted by defendant. - There was sufficient evidence to support a defendant's malice murder conviction as the jury was authorized to reject other possibilities of how the victim died as theoretical since the only cause of the victim's death supported by the evidence was that the death was the result of an intracerebral hemorrhage caused by the anticoagulant drug Coumadin, which the victim was taking as a result of being shot by the defendant and becoming paralyzed. Shields v. State, 285 Ga. 372 , 677 S.E.2d 100 (2009).
Doctor's prescription of controlled substances causing death. - Felony murder conviction was supported by evidence that the defendant illegally provided controlled substances through prescriptions, a dangerous felony, and that the victim's death was a foreseeable result within the meaning of the felony murder statute, O.C.G.A. § 16-5-1 . Chua v. State, 289 Ga. 220 , 710 S.E.2d 540 (2011).
Felony murder predicated on drug transaction. - Defendant was properly convicted of felony murder predicated on a drug transaction and attempted violation of the Georgia Controlled Substance Act (VGCSA), O.C.G.A. § 16-13-20 et seq., because there was a sufficient nexus between the VGCSA and the victim's death to show that the defendant's participation in the drug transaction was the proximate cause of the victim's death because four men met for a drug transaction and something went wrong; during the course of the events, the defendant shot and killed the victim; thus, the felony the defendant committed directly and materially contributed to the happening of a subsequent accruing immediate cause of the death. Davis v. State, 290 Ga. 757 , 725 S.E.2d 280 (2012).
Similar transaction evidence admissible. - Because the state adequately showed the connection between the murder of one victim, and the murder charged in the instant proceeding, specifically embedded in the defendant's proffered motive that the killing of the victim in the instant proceeding was committed to prevent evidence from being introduced against the defendant in the first killing, the similar transaction evidence was properly allowed; hence, the similar transaction did not amount to improper character evidence. Young v. State, 281 Ga. 750 , 642 S.E.2d 806 (2007).
Spontaneous inculpatory statements used as evidence. - Defendant's convictions of malice murder, armed robbery, and possession of a firearm during the commission of a felony were supported by the evidence, which included use of the murder weapon during a later robbery by the defendant's accomplices, a video that provided a corroborating account of the shooting, and the defendant's spontaneous inculpatory statements while being transported from Maryland to Georgia. Stokes v. State, 281 Ga. 825 , 642 S.E.2d 82 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
During the defendant's trial for malice murder and drug-related offenses, the trial court did not abuse the court's discretion in admitting as similar transaction evidence testimony regarding the defendant's previous arrest on a charge of possession of cocaine with intent to distribute and a prior shooting incident because a drug sting was similar to the cocaine trafficking in that both involved relatively recent arrangements for appellant to sell cocaine, and the shooting incident was probative of defendant's inclination towards unprovoked gun violence; the similar transactions were offered to prove, inter alia, intent and state of mind, the trial court admitted the evidence for those limited purposes only, and the trial court instructed the jury accordingly. Moore v. State, 288 Ga. 187 , 702 S.E.2d 176 (2010).
Evidence insufficient for murder conviction. - See Johnson v. State, 269 Ga. 840 , 506 S.E.2d 374 (1998).
Evidence sufficient for murder and armed robbery. - Although defendant was not the triggerman, since there was evidence which authorized findings that defendant was present with the triggerman for over two hours prior to the murder; that defendant drove the triggerman to the victim's house; that defendant was present in the room when the victim was shot; that the victim was shot with a gun of the same model and caliber that defendant owned; and that defendant destroyed evidence, assisted in the disposal of the decedent's body, fled from the jurisdiction where the crimes were committed, reaped benefits from the armed robbery, and at no time made any attempt to be disassociated from the criminal enterprise, a rational trier of fact could have found the defendant guilty of the crimes of murder and armed robbery beyond a reasonable doubt. Tho Van Huynh v. State, 257 Ga. 375 , 359 S.E.2d 667 (1987).
Evidence was sufficient to authorize a rational trier of fact to find defendant guilty beyond a reasonable doubt of murder and armed robbery. Cook v. State, 269 Ga. 460 , 499 S.E.2d 887 (1998).
Sufficient evidence supported convictions arising from the defendant's participation in a robbery which resulted in the death of a store clerk where, knowing that the cousin was going to commit a robbery, the defendant voluntarily went with the cousin, saw that the cousin had a gun, agreed to "stand over" the scene, and joined the cousin in using the victim's credit cards afterwards; contrary to the defendant's assertions, testimony showed that the defendant was not intimidated by the cousin. Scott v. State, 280 Ga. 466 , 629 S.E.2d 211 (2006).
Evidence was sufficient to authorize the jury to find the defendant guilty of armed robbery and malice murder because the victim went missing shortly after coming into a substantial amount of cash, the defendant had access to the victim's home, and the defendant was seen driving around in the victim's two vehicles, selling the victim's property, and with a large amount of cash; the victim died from blunt trauma to the head, a mallet with blood on the mallet was found inside the house, and a witness testified that the defendant confided to the witness that the defendant killed the victim, placed the victim's body in a freezer, and took the victim's money. Cutrer v. State, 287 Ga. 272 , 695 S.E.2d 597 (2010).
Because defendant admitted to police that defendant had planned the robbery that led to the victim's death, defendant was a willing participant in the robbery and shooting; consequently, the evidence was sufficient to find defendant guilty of felony murder, armed robbery, and possession of a firearm during the commission of a crime. Branchfield v. State, 287 Ga. 869 , 700 S.E.2d 576 (2010).
Evidence sufficient to support convictions of murder, aggravated assault, armed robbery, burglary, and possession of firearm in commission of felony. Baty v. State, 257 Ga. 371 , 359 S.E.2d 655 (1987).
Rational trier of fact could have found the defendant guilty of murder, aggravated assault and possession of a firearm during the commission of a crime beyond a reasonable doubt. Walden v. State, 264 Ga. 92 , 441 S.E.2d 247 (1994).
Evidence was sufficient to enable a rational trier of fact to find appellant guilty of malice murder, felony murder, aggravated assault and possession of a firearm by a convicted felon in the shooting deaths of two victims. Burtts v. State, 269 Ga. 402 , 499 S.E.2d 326 (1998).
Evidence was sufficient to convict defendant of malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of a crime against a person because: (1) the codefendant jumped out of the car defendant was driving and told the victim and two other men to empty their pockets as the codefendant was robbing the victims and then the codefendant began shooting; and (2) the victim was shot in the head and later died. Thomas v. State, 275 Ga. 882 , 572 S.E.2d 537 (2002).
Defendant found guilty of malice murder, aggravated assault, and possession of a firearm by a first offender probationer after the defendant fired a gun at a person, the bullet grazed the person, went through a wall, and killed another person. George v. State, 276 Ga. 564 , 580 S.E.2d 238 (2003).
Although defendant testified about the victim's aggressive and dangerous tendencies, there was sufficient evidence to convict defendant of felony murder since there was evidence that: (1) defendant stabbed the victim in the back and the chest during the altercation; (2) one or two days before the stabbing, defendant had stated that the victim owed defendant money and would be dead by dark; and (3) the victim was found with only a cigarette lighter for a weapon. Salyers v. State, 276 Ga. 568 , 580 S.E.2d 240 (2003).
When the evidence revealed that the defendant and others returned to a parking lot with the specific intent of ambushing a group of people who had earlier told the defendant not to speed and had thrown a beer bottle at the defendant's car, and when the defendant was found to be an accomplice of one who possessed a gun and fatally shot someone, there was sufficient evidence pursuant to the "party to a crime" law under O.C.G.A. § 16-2-20 to convict the defendant of felony murder in violation of O.C.G.A. § 16-5-1 and simple battery in violation of O.C.G.A. § 16-5-23.1 . Smith v. State, 277 Ga. 95 , 586 S.E.2d 629 (2003).
When the evidence established more than defendant's mere presence at the scene of the crimes, the evidence was sufficient to find defendant guilty beyond a reasonable doubt of felony murder and simple assault; although defendant was not indicted for conspiracy, the evidence also supported a conspiracy charge. Belsar v. State, 276 Ga. 261 , 577 S.E.2d 569 (2003).
Eyewitnesses saw defendant standing by the door of the barber shop shooting repeatedly at the victim, who died from those wounds, and the police recovered the pistol from defendant that shot the victim; thus, the evidence was sufficient to enable a rational trier of fact to find defendant guilty beyond a reasonable doubt of malice murder, felony murder, and aggravated assault with a deadly weapon under O.C.G.A. §§ 16-5-1 and 16-5-21 . Roberts v. State, 276 Ga. 258 , 577 S.E.2d 580 (2003).
Evidence that two defendants who were tried together chased a victim after an argument and that the victim died after one defendant shot the victim five times was sufficient to sustain both defendants' convictions for malice murder and other crimes. Jackson v. State, 278 Ga. 235 , 599 S.E.2d 129 (2004).
Evidence was sufficient to allow the jury to find the defendant guilty of malice murder and possession of a firearm during the commission of an aggravated assault because: (1) one eye-witness testified to seeing the victim speaking to an occupant of a car, then hearing a shot, seeing the victim try to peddle the bicycle away, and then falling to the ground; (2) another witness testified that on the night of the shooting, the defendant told the witness that the defendant shot a person on a bicycle and that the witness helped the defendant dispose of a gun in a lake; (3) a third witness testified that the defendant told the third witness that the defendant had shot and killed a person on a bicycle; and (4) the defendant made a videotaped statement during which the defendant admitted to shooting the victim. Roberts v. State, 278 Ga. 541 , 604 S.E.2d 500 (2004).
In addition to the second codefendant's testimony, the state showed that, shortly after the murder, the defendant was in possession of the victim's cab, that the victim's blood was found in the vehicle and on the defendant, and that the defendant made incriminating admissions to others; thus, the evidence was sufficient to authorize a rational trier of fact to find proof beyond a reasonable doubt of the defendant's guilt of malice murder, armed robbery, aggravated assault, hijacking a motor vehicle, and possession of a firearm during the commission of a felony. Wicks v. State, 278 Ga. 550 , 604 S.E.2d 768 (2004).
Defendant's convictions for malice murder and possession of a firearm during commission of a felony were supported by sufficient evidence, including identification of the defendant as the shooter by the victim's sibling, who was with the victim at the time of the incident, as well as the testimony of two witnesses who had spoken with the defendant and the codefendant immediately prior to the shooting and who identified the defendant. Hunt v. State, 279 Ga. 3 , 608 S.E.2d 616 (2005).
Sufficient evidence supported the defendant's convictions for malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of a felony where, inter alia: (1) the shooting victim was the love interest of the defendant's former love interest; (2) the victim had beaten the defendant earlier; (3) witnesses saw defendant at the scene of the killing, in daylight from about two feet away, saw the defendant draw a gun, and then heard shots; (4) a witness saw one perpetrator run from the scene; (5) the witnesses gave the police a description of the shooter, and within hours, independently identified the defendant as the perpetrator from a photo lineup; and (6) a few days later, the defendant admitted to a former love interest that the defendant was the shooter. Wallace v. State, 279 Ga. 26 , 608 S.E.2d 634 (2005).
Evidence was sufficient to support the defendant's convictions of malice murder and concealing the death of another because: (1) the defendant's nephew testified that the defendant asked for help with "a body"; (2) the nephew noticed blood stains, evidence of a struggle, and a smell of bleach at the defendant's home; (3) the victim's body was on a bed in the defendant's home; (4) the nephew helped the defendant roll the body in a rug and take the body to a nearby dumpster where they deposited it; (5) authorities later determined that the victim sustained blunt force trauma to the head and died of ligature strangulation; and (6) a search of the defendant's home revealed the victim's blood stains and evidence of a struggle. Ware v. State, 279 Ga. 17 , 608 S.E.2d 643 (2005).
Evidence supported the defendant's conviction for malice murder and robbery by force because the defendant strangled the victim while the defendant and codefendant were riding in the victim's car and put the body in the trunk; the defendant told a friend that there were three people in the car, the codefendant told the friend that the codefendant and the defendant killed the victim, and they showed the friend the body; the codefendant took money from the victim's sock, and the codefendant and the defendant hid the body, retrieved the body, and buried the body, and the defendant was driving the victim's car when the defendant was involved in an accident, which led to the discovery of the body. Shelton v. State, 279 Ga. 161 , 611 S.E.2d 11 (2005).
Evidence supported the defendant's conviction of malice murder, possession of a firearm during the commission of a crime, and concealing the death of another; the victim was shot in the back of the head with the defendant's gun in the woods behind the defendant's family's property, the victim's body was found in a landfill two days later, the defendant's friend confided to a friend that the defendant shot the victim and then called the friend to help dispose of the body, the friend confessed to the friend's role in the concealment and secretly videotaped a conversation with the defendant about the shooting and, on the tape, the defendant bragged about killing the victim and demonstrated how the defendant did it. Bragg v. State, 279 Ga. 156 , 611 S.E.2d 17 (2005).
Evidence supported the defendant's conviction for malice murder and possession of a firearm during the commission of a felony because the defendant admitted taking money from the victim, arranging for a meeting with the victim, and not returning the money before shooting the victim. Flanders v. State, 279 Ga. 35 , 609 S.E.2d 346 (2005).
Evidence was sufficient to support a conviction for felony murder, voluntary manslaughter, and aggravated assault, as an eyewitness testified that the defendant was the only person to pull out a weapon in a confrontation at a nightclub, that the defendant fired a weapon at the victim, who had previously struck the defendant's love interest, and at two other victims who were attempting to leave. Rodriguez v. State, 274 Ga. App. 549 , 618 S.E.2d 177 (2005).
Evidence was sufficient to support the defendant's convictions for malice murder and aggravated assault, in violation of O.C.G.A. §§ 16-5-1 and 16-5-21 , respectively, as well as for possession of a firearm during a felony, because the defendant was identified by multiple witnesses as having fatally shot the victim; the defendant and some friends joined the victim's basketball game and when their team lost, the defendant took the bet money, pulled out a gun, and started firing at the victim and the teammates. Agee v. State, 279 Ga. 774 , 621 S.E.2d 434 (2005).
Evidence was sufficient to support the defendant's conviction for felony and malice murder, and aggravated assault, in violation of O.C.G.A. §§ 16-5-1 and 16-5-21 , as well as possession of a firearm conviction, because the defendant helped a sibling retaliate against the victim, who had previously sold the sibling fake drugs, by going to the victim's place of work, fatally shooting the victim multiple times, and planting fake drugs on the body; the defendant's claim that the defendant was in another state at the time of the incident was refuted by a copy of the defendant's criminal history which showed that the defendant was out on bail just days before the incident, as well as testimony from the victim's roommate. Copprue v. State, 279 Ga. 771 , 621 S.E.2d 457 (2005).
Defendant's convictions for malice murder, burglary, robbery, aggravated assault, and concealing the death of another were supported by sufficient evidence because: (1) the defendant broke into the office where the victim was living; (2) the defendant hit the victim several times on the head and body with a pair of pliers; (3) the defendant choked the victim until the victim was dead; (4) the defendant took the victim's credit card and driver's license; and (5) the defendant disposed of the victim's body. Young v. State, 280 Ga. 65 , 623 S.E.2d 491 (2005).
When a bloody jogging suit belonging to the defendant was found at the defendant's love interest's house with the victim's blood on the suit, witnesses described the defendant wearing that same jogging suit after the shooting, and a .380 pistol was found hidden in a cinder block at the defendant's love interest's house that matched the type of gun used to kill the victim, the defendant's convictions for malice murder and other related crimes with regard to the killing of the defendant's love interest's neighbor was upheld on appeal since such circumstantial evidence was sufficient to allow the jury to have found the defendant guilty beyond a reasonable doubt. Hooks v. State, 280 Ga. 164 , 626 S.E.2d 114 (2006).
Convictions for kidnapping, aggravated assault, and malice murder, in violation of O.C.G.A. §§ 16-5-40 , 16-5-21 , and 16-5-1 , respectively, were supported by sufficient evidence after the defendant got into a dispute with the victim over a drug deal, the defendant and the codefendants kidnapped the victim, drove the victim to a remote area, and shot the victim several times. Morris v. State, 280 Ga. 179 , 626 S.E.2d 123 (2006).
Evidence that three unarmed people went to talk to that defendant about rumors that the defendant wanted to harm them, and that, when one approached the defendant, the defendant fired five shots in their direction, killing one of them, was sufficient to support convictions for felony murder and aggravated assault. Traylor v. State, 280 Ga. 400 , 627 S.E.2d 594 (2006).
Malice murder and attempted arson convictions were upheld as: (1) the evidence presented showed that an attempted arson was inextricably linked to the victim's murder, and the jury was authorized to find beyond a reasonable doubt that the defendant was guilty; (2) the admission of two handwritten documents that the defendant had penned was proper as their prejudicial impact did not outweigh their probative value; and (3) the trial court did not abuse the court's discretion in determining that any prejudicial impact of a religious prayer asking for strength, and an expression of uncertainty as to what "makes me tick," did not outweigh the probative value of the evidence. Fortson v. State, 280 Ga. 376 , 628 S.E.2d 104 (2006).
Convictions of malice murder and possession of a firearm during the commission of a felony were supported by sufficient evidence, including the proper introduction of the pretrial statement of a witness who identified the defendant as the shooter in the murder, and the pretrial statement of a second witness who claimed that the defendant had admitted that the defendant had killed someone five hours after the fatal shooting and that the witness had frequently seen the defendant carrying the sort of pistol that fired the fatal shots. Cummings v. State, 280 Ga. 831 , 632 S.E.2d 152 (2006).
Convictions of murder, aggravated assault, and possession of a firearm by a convicted felon were supported by sufficient evidence showing that while the victim was in the process of buying drugs from a third party, the defendant approached the driver's side of the victim's car, demanded the victim's money, and shot the victim several times; the seller of the drugs testified that the seller had observed the defendant carrying a gun, and both the codefendant and another witness identified the defendant as the shooter. Major v. State, 280 Ga. 746 , 632 S.E.2d 661 (2006).
Evidence supported a defendant's conviction for malice murder and aggravated assault as: (1) when a cab driver arrived to pick up a passenger at the defendant's apartment, the defendant was waiting outside and told the cab driver to wait while the defendant returned to the apartment; (2) the cab driver heard several gunshots immediately before the defendant ran to the cab and told the cab driver to "go"; (3) during the ride, the cab driver observed drops of blood on the defendant's clothing and overheard the defendant state in a cell phone call that the defendant "got the guy who owed (the defendant) money"; (4) the police traced the phone call to the defendant's relative; and (5) the defendant later confided to a friend that the defendant shot and killed someone, that the defendant left in a cab, and that the defendant made a phone call with the cab driver's phone. Puga-Cerantes v. State, 281 Ga. 78 , 635 S.E.2d 118 (2006).
Evidence supported a defendant's convictions for malice murder, felony murder, aggravated assault with a deadly weapon, and possession of a firearm during the commission of a felony as: (1) the defendant repeatedly followed the victim in and out of a restaurant, and eventually chased the victim from the restaurant, firing at the victim at least nine times; (2) after the shooting, the defendant jumped into a silver truck and sped away; (3) the victim died as a result of the gunshot wounds; and (4) two witnesses identified the defendant from photographic lineups. Waters v. State, 281 Ga. 119 , 636 S.E.2d 538 (2006).
Evidence supported a defendant's conviction of malice murder and possession of a firearm during the commission of a felony as: (1) believing that the victim was involved in the murder of the defendant's brother five months before the incident, the defendant told a first witness that the defendant intended to kill the victim and offered to pay the first witness for information as to the victim's whereabouts; (2) a second witness saw the defendant and two other men approach the victim, call out the victim's name, and open fire on the victim as the victim ran away; (3) the victim died from gunshot wounds; (4) the second witness had met the defendant and, after the shooting, the second victim noticed the defendant's gold teeth, and identified the defendant by the defendant's street name from a photographic lineup and in court; and (5) the defendant threatened to kill the second witness if the second witness testified against the defendant. Woodruff v. State, 281 Ga. 235 , 637 S.E.2d 391 (2006).
Evidence supported a defendant's conviction for malice murder, aggravated assault, and possession of a firearm in the commission of a felony as: (1) during a van ride, the defendant fought with an assault victim, striking the assault victim in the head with a gun, and was told to stop hitting the assault victim; (2) a gunshot was heard and the passengers saw a murder victim lying dead and the defendant holding the gun; (3) the gun was inside the murder victim's mouth when the gun was fired; (4) the assault victim and another passenger fled; and (5) the defendant and an accomplice dumped the body in an industrial area. Johnson v. State, 281 Ga. 229 , 637 S.E.2d 393 (2006).
Evidence supported a defendant's conviction for malice murder and assault as: (1) the defendant told a first witness that the defendant had killed a man; (2) the defendant had tried to sell the victim's car; (3) the defendant admitted to police that the defendant had the key to the victim's car; and (4) the defendant told a fellow prisoner that the defendant and an accomplice strangled the victim, beat the victim, stabbed the victim, cut the victim's throat, and tore out the victim's fingernails. Richard v. State, 281 Ga. 401 , 637 S.E.2d 406 (2006).
Defendant's malice murder and aggravated assault convictions were upheld on appeal, as supported by sufficient evidence, including that: (1) the defendant, along with two codefendants, fired numerous shots into a crowd in an attempt to shoot several men with whom they had been feuding; (2) one of the codefendants later told a friend that the three committed the crimes; (3) one of the defendant's friends saw the defendant with a shotgun shortly after the shooting, the shotgun had red shells, and the defendant told the friend that the gun had been used in the shootings; and (4) forensic evidence later confirmed that red shotgun shells were found at the scene. Adkins v. State, 281 Ga. 301 , 637 S.E.2d 714 (2006).
Evidence was sufficient to support the convictions of murder, armed robbery, aggravated assault, burglary, and a statutory violation, all in violation of O.C.G.A. §§ 16-5-1 , 16-8-41 , 16-5-21 , 16-7-1 , and 16-11-106 , respectively, when the defendant and the codefendant went to a club with the intention of robbing someone, met the victim and drove the victim back to the victim's home, beat and fatally stabbed the victim, and upon leaving the victim's apartment, took some of the victim's belongings. Willoughby v. State, 280 Ga. 176 , 626 S.E.2d 112 (2006).
Sufficient evidence supported convictions of felony murder, armed robbery, aggravated assault, possession of a firearm by a convicted felon, and possession of a firearm in the commission of a felony when, upon pulling into an apartment complex to turn around and ask for directions, the victims were approached by the defendant and another man, defendant pulled out a gun and told the victims to "give it up," when one of the victims hesitated, defendant shot the victim, defendant then stole that victim's money and jewelry, and later, the gunshot victim died; the second victim described defendant, who was wearing a specific jersey at the time of the crimes, and two witnesses who knew defendant testified that defendant robbed and shot the victim while wearing that jersey. Davis v. State, 280 Ga. 442 , 629 S.E.2d 238 (2006).
Defendant's conviction for malice murder, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon was supported by the evidence as: (1) the defendant told the defendant's love interest that the defendant knew who had taken the defendant's drugs from a motel room and that the defendant was going to get the drugs; (2) the defendant and an accomplice forced someone with something "glossy" on the person's forehead; (3) the defendant told the driver to stop at a secluded area so that the defendant could put the person "somewhere safe"; (4) the defendant threw a gun from a bridge on the return; (5) the defendant instructed the driver to clean blood from the car's backseat; and (6) the defendant told the defendant's love interest that the defendant had killed the person who had the defendant's drugs and told a cell mate that the defendant had shot a person. Walker v. State, 281 Ga. 157 , 635 S.E.2d 740 (2006), cert. denied, 552 U.S. 833, 128 S. Ct. 60 , 169 L. Ed. 2 d 50 (2007).
Defendant's convictions for malice murder, aggravated battery, burglary, and violation of the Georgia Controlled Substances Act by unlawfully possessing cocaine and marijuana were supported by sufficient evidence; the defendant walked into a neighbor's house with a butcher knife in each hand and stabbed two people, knives found in the woods behind the defendant's apartment matched the descriptions of those used in the stabbings and had deoxyribonucleic acid matching the defendant's, two knives were missing from a knife block in the defendant's apartment, marijuana and cocaine were found in the apartment, the defendant told a friend that the defendant had "hurt some people really bad," and three eyewitnesses identified the defendant as the assailant. Swanson v. State, 282 Ga. 39 , 644 S.E.2d 845 (2007).
Evidence was sufficient to support the three defendants' convictions of malice murder, aggravated assault, and possession of a firearm during the commission of a felony since: the victims were shot from a gold SUV and the first defendant owned a gold SUV; the first defendant, who had been robbed the day before, stated that the first defendant "wanted to straighten about the money"; the third defendant met the first two defendants at a hotel and transferred weapons into the gold SUV; the first defendant pointed to a person outside the hotel and said "Let him have it"; and the third defendant later wondered if one of the victims was dead. Stokes v. State, 281 Ga. 875 , 644 S.E.2d 116 (2007).
Evidence supported the defendant's convictions of malice murder, two counts of felony murder, kidnapping with bodily injury, two counts of armed robbery, and aggravated battery after: the defendant had been seen fleeing the victim's home in a car registered to the defendant; the defendant told the defendant's spouse to discard the defendant's bloody clothing; the defendant sought treatment at a hospital after being shot during the crimes; and the defendant had initiated conversations in which the defendant described the actions of the defendant's companions in discarding guns used in the crimes and offered to reveal the names of the companions in exchange for not being charged with murder. Davis v. State, 281 Ga. 871 , 644 S.E.2d 113 (2007).
Evidence supported the defendant's convictions of malice murder, felony murder, armed robbery, aggravated assault, and possession of a firearm during the commission of a felony after the defendant went to the victim's laundromat and waited until the victim opened a change machine, pointed a gun at the victim's head and ordered the victim to put the money in a bag, told the victim, "Hell, yeah, I'll kill you," and shot the victim multiple times; eyewitnesses, including two who knew the defendant, identified the defendant as the perpetrator. Cooper v. State, 281 Ga. 760 , 642 S.E.2d 817 (2007).
Evidence, which included uncontroverted testimony from an eyewitness who saw a defendant order a store employee into the street shortly before the employee was shot, the testimony of two other eyewitnesses, and the fact that calls had been made from the employee's stolen cellular phone to the defendant's mother was sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of malice murder, armed robbery, and a number of other associated crimes. Horne v. State, 281 Ga. 799 , 642 S.E.2d 659 (2007).
Evidence sufficient to support convictions of malice murder, felony murder, and possession of a knife during the commission of a felony, based on the defendant's telephone call to a friend admitting to the murder; and expert medical testimony which explained how the killing was committed and how the defendant "worked up the courage" to inflict the deep cut that stretched across the victim's throat, severing the victim's left carotid artery and right internal jugular vein, causing the victim to bleed to death; further, the defendant had sufficient notice of the specific deadly weapon allegedly used for purposes of the felony murder charge by the language in count three. Jones v. State, 282 Ga. 47 , 644 S.E.2d 853 (2007).
Knife used as murder weapon. - There was sufficient evidence to support a defendant's convictions of malice murder, felony murder, armed robbery, aggravated assault, attempted burglary, and possession of a firearm by a convicted felon; in addition to testimony by a codefendant and eyewitness testimony by the victim's spouse, the victim's blood was on the defendant's clothes, the defendant had the victim's keys, and the knife used to kill the victim and a pistol were discovered near the site of the defendant's arrest in some woods near the scene of the crime. Walker v. State, 282 Ga. 774 , 653 S.E.2d 439 (2007), cert. denied, 129 S. Ct. 481 , 172 L. Ed. 2 d 344 (2008), overruled on other grounds, No. S10P1859, 2011 Ga. LEXIS 267 (Ga. 2011).
Because sufficient evidence was presented to support the defendant's aggravated assault and felony murder convictions, and there was plenty of evidence to authorize the jury to find that the defendant lied in order to support a self-defense claim, sufficient evidence was presented to uphold the convictions on appeal. Bradley v. State, 283 Ga. 45 , 656 S.E.2d 842 (2008).
Defendant's convictions were upheld on appeal because sufficient testimonial, identification, and physical evidence was presented to support the defendant's convictions of malice murder, felony murder, and possession of a firearm during the commission of a crime so that the jury could reject the defendant's self-defense claim. Rivers v. State, 283 Ga. 1 , 655 S.E.2d 594 (2008).
Evidence supported convictions of malice murder, aggravated assault, burglary, and possession of a firearm during the commission of a crime. The victim had been struck twice in the head with a pistol, strangled, and shot twice in the head; the victim's wallet and keys were missing; and the defendant, who told police where the wallet could be found, admitted shooting the victim and claimed that the defendant had done so after the victim tried to hug and kiss the defendant and things got "ugly." Brown v. State, 283 Ga. 327 , 658 S.E.2d 740 (2008).
Evidence supported the defendant's convictions for malice murder, felony murder, aggravated assault, armed robbery, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a crime. The four victims were found dead in two hotel rooms from gunshot wounds to the back of their heads; identification documents belonging to the four victims were found in the defendant's car; there was expert testimony that the defendant's gun had been used to kill the victims; the defendant's baseball cap contained one victim's deoxyribonucleic acid; there was evidence that the defendant and two friends used three victims' tickets to attend a football game after the victims were murdered; the defendant was identified as being in an elevator with one victim; the defendant was seen leaving the hotel with one victim's cooler; and a duffle bag belonging to one victim was in the defendant's car when the defendant was arrested on weapons charges. Dawson v. State, 283 Ga. 315 , 658 S.E.2d 755 (2008), cert. denied, 129 S. Ct. 169 , 172 L. Ed. 2 d 122 (2008).
Evidence was sufficient to enable a rational trier of fact to find the defendant guilty of malice murder and possession of a firearm during the commission of a crime because both of the defendant's accomplices placed the defendant at the scene of the crime and provided a detailed account of the murder. Lawrence v. State, 286 Ga. 533 , 690 S.E.2d 801 (2010).
Exclusion of victim's prior bad acts. - Defendant's felony murder and aggravated assault convictions were both upheld on appeal, as evidence of the victim's prior violent acts was properly excluded, given that at the time of the confrontation with the defendant, the victim was no longer the aggressor, and the defendant failed to show prejudice resulting from the admission of a knife that was not used in the altercation, into evidence, and in fact, the knife had been removed from the scene by police before the incident involving the defendant and the victim occurred. Milner v. State, 281 Ga. 612 , 641 S.E.2d 517 (2007).
Felony murder based on arson. - Sufficient evidence was presented to support a finding of felony murder based on arson in the first degree as O.C.G.A. § 16-7-60(a) did not require that a defendant personally set the fire or possess ignitable materials and the defendant knowingly damaged property by adding tires to the fire; additionally, based on the defendant's statements at the scene, the defendant was aware that human life might be endangered under § 16-7-60(a) (5) because the defendant indicated that the defendant knew someone was inside the building. Vega v. State, 285 Ga. 32 , 673 S.E.2d 223 (2009).
Conviction of murder, aggravated assault, and possession of firearm by convicted felon justified. - See Brooks v. State, 250 Ga. 739 , 300 S.E.2d 810 (1983).
Evidence was sufficient to enable a rational trier of fact to find appellant guilty of murder, aggravated assault with a deadly weapon, and possession of a firearm by a convicted felon beyond a reasonable doubt. Hall v. State, 264 Ga. 85 , 441 S.E.2d 245 (1994).
Conviction of murder rather than voluntary manslaughter justified. - See Bryant v. State, 250 Ga. 874 , 301 S.E.2d 881 (1983).
Evidence sufficient to support conviction for offense of felony murder. - See Bethea v. State, 251 Ga. 328 , 304 S.E.2d 713 (1983); Middlebrooks v. State, 253 Ga. 707 , 324 S.E.2d 192 (1985); Appling v. State, 256 Ga. 36 , 343 S.E.2d 684 (1986); Thomas v. State, 256 Ga. 176 , 345 S.E.2d 350 (1986); Huston v. State, 256 Ga. 276 , 347 S.E.2d 556 (1986); Hunter v. State, 256 Ga. 372 , 349 S.E.2d 389 (1986); Jefferson v. State, 256 Ga. 821 , 353 S.E.2d 468 (1987), cert. denied, 511 U.S. 1046, 114 S. Ct. 1577 , 128 L. Ed. 2 d 220 (1994); Shealey v. State, 257 Ga. 437 , 360 S.E.2d 266 (1987); Zackery v. State, 257 Ga. 442 , 360 S.E.2d 269 (1987); Webber v. State, 257 Ga. 533 , 361 S.E.2d 145 (1987); Delay v. State, 258 Ga. 229 , 367 S.E.2d 806 , cert. denied, 488 U.S. 850, 109 S. Ct. 132 , 102 L. Ed. 2 d 105 (1988); Jones v. State, 258 Ga. 249 , 368 S.E.2d 313 (1988); Anderson v. State, 258 Ga. 278 , 368 S.E.2d 508 (1988); Martin v. State, 258 Ga. 300 , 368 S.E.2d 515 (1988); Blackwell v. State, 259 Ga. 810 , 388 S.E.2d 515 (1990); Stoudemire v. State, 261 Ga. 49 , 401 S.E.2d 482 (1991); Griffin v. State, 199 Ga. App. 646 , 405 S.E.2d 877 (1991), cert. denied, 199 Ga. App. 906 , 405 S.E.2d 877 (1991); Weaver v. State, 262 Ga. 196 , 415 S.E.2d 640 (1992); Jackson v. State, 263 Ga. 468 , 435 S.E.2d 442 (1993); Lark v. State, 263 Ga. 573 , 436 S.E.2d 1 (1993); Smiley v. State, 263 Ga. 716 , 438 S.E.2d 75 (1994); Scott v. State, 276 Ga. 195 , 576 S.E.2d 860 (2003); Edwards v. State, 282 Ga. 259 , 646 S.E.2d 663 (2007); Spiller v. State, 282 Ga. 351 , 647 S.E.2d 64 (2007), cert. denied, 552 U.S. 1079, 128 S. Ct. 812 , 169 L. Ed. 2 d 612 (2007); Curinton v. State, 283 Ga. 226 , 657 S.E.2d 824 (2008); Carter v. State, 283 Ga. 76 , 656 S.E.2d 524 (2008).
The state's evidence was sufficient to authorize a rational trier of fact to find proof of appellant's guilt of felony murder beyond a reasonable doubt. Leavitt v. State, 264 Ga. 178 , 442 S.E.2d 457 (1994).
Evidence was sufficient to enable a rational trier of fact to find each defendant guilty of malice murder, felony murder predicated on aggravated assault, and aggravated assault. Whitaker v. State, 269 Ga. 462 , 499 S.E.2d 888 (1998).
Evidence was sufficient to support the defendant's conviction of felony murder of the defendant's spouse, where the record revealed that the spouse had seen the defendant's car at the defendant's paramour's house and let the defendant know that the spouse was aware the defendant was there, that the spouse never carried a gun, that the defendant had repeatedly physically abused the spouse and had pointed a gun at the spouse previously, and that the defendant's explanation that when the defendant entered their home the spouse was pointing a gun at the defendant which accidentally went off was contradicted by the fact that the gun had to be cocked in order to be shot and that the spouse had never owned a gun nor been the aggressor in their disputes. Jones v. State, 276 Ga. 253 , 577 S.E.2d 560 (2003).
Evidence was sufficient to support conviction of malice murder, felony murder, burglary, aggravated assault, kidnapping with bodily injury, and possession of a firearm during the commission of a felony after the defendant: (1) planned the crimes, and armed the defendant with a gun and handcuffs; (2) broke into the defendant's in-laws' house after severing their phone line; (3) shot and killed the defendant's father-in-law and wounded the defendant's mother-in-law while they lay in bed; (4) handcuffed the defendant's bleeding mother-in-law to the mother-in-law's nine-year-old child and left them tethered to a bed rail in a room with the mother-in-law's dead spouse and the defendant's two-year-old child; and (5) abducted the defendant's estranged spouse and the spouse's 17-year-old sibling to a mobile home where the defendant made them take showers while the defendant watched, and then raped them both. Sallie v. State, 276 Ga. 506 , 578 S.E.2d 444 , cert. denied, 540 U.S. 902, 124 S. Ct. 251 , 157 L. Ed. 2 d 185 (2003).
Evidence was legally sufficient to support the defendant's felony murder conviction, as it showed that the defendant and an accomplice entered a convenience store, that one of them shot the clerk to death while the other stole cigarettes, that police received a tip leading to the arrest of the defendant and an accomplice, and that the defendant admitted going to the store to rob it and to being present while the accomplice shot the clerk. Williams v. State, 276 Ga. 384 , 578 S.E.2d 858 (2003).
Evidence was sufficient to convict defendant of causing the victim's death while committing an aggravated battery against the victim, in violation of O.C.G.A. §§ 16-5-1(c) and 16-5-24 , because defendant was seen walking toward the residence defendant shared with the victim, after a neighbor had called the police to report a disturbance there, carrying a gas can that appeared to be heavy, and, therefore, not empty, after which the victim was seen on the porch of the residence, in flames, and defendant, who was sitting on the porch, refused the requests of passersby attempting to give the victim assistance by providing a blanket to smother the flames, which caused the victim's death shortly thereafter. Lowe v. State, 276 Ga. 538 , 579 S.E.2d 728 (2003).
Evidence that showed that a victim died from a gunshot wound to the chest, that police found the victim's property on the defendant when the defendant was arrested, and that witnesses heard the shots and saw the defendant running away from the scene of the shooting was sufficient to sustain the defendant's convictions for malice murder, armed robbery, and possession of a firearm during the commission of a crime, and the trial court did not err when it gave the jury an Allen charge during the defendant's trial or because it did not instruct the jury on involuntary manslaughter as a lesser included offense. Johnson v. State, 278 Ga. 136 , 598 S.E.2d 502 (2004).
Evidence that the defendant fatally shot the victim during a scuffle in a robbery attempt and told the police that the defendant was shot by a robber was sufficient to support the defendant's conviction for felony murder, aggravated assault, making a false statement to law enforcement officers, and giving a false name to law enforcement officers. Sampson v. State, 279 Ga. 8 , 608 S.E.2d 621 (2005).
Evidence was sufficient to support the defendant's conviction for malice murder, felony murder during the commission of a kidnapping, and kidnapping because the defendant refused to turn a car around or to stop and let the victim exit the car; after the victim grabbed the steering wheel and fled the car, the defendant fatally shot the victim. Pruitt v. State, 279 Ga. 140 , 611 S.E.2d 47 , cert. denied, 546 U.S. 866, 126 S. Ct. 165 , 163 L. Ed. 2 d 152 (2005).
There was sufficient evidence to support a conviction of felony murder in violation of O.C.G.A. § 16-5-1 , as well as possession of a weapon in the commission of a crime when the defendant purchased the gun three months earlier from a man the defendant did not know, told the man that the defendant should not have been in possession of the firearm because of the defendant's status as a convicted felon, and later fatally shot the victim with the gun. Shepherd v. State, 280 Ga. 245 , 626 S.E.2d 96 (2006), overruled on other grounds by McElrath v. State, 2020 Ga. LEXIS 127 (Ga. 2020).
Felony murder conviction was supported by sufficient evidence that, after the victim confronted the defendant about a comment made to the victim's wife, the defendant stabbed the victim to death; witnesses saw the defendant fighting with the victim, saw the defendant fold up a knife after the victim fell, and the defendant admitted to stabbing the victim. Williams v. State, 280 Ga. 297 , 627 S.E.2d 32 (2006).
Sufficient evidence supported convictions of murder, felony murder, and possession of a firearm during the commission of a crime after the defendant confessed to an officer that the defendant shot and killed the victim and expert testing of blood on one of the defendant's shoes established that the blood matched the victim's DNA; the jury was free to reject the defendant's claim at trial that a third party shot the victim in the course of an unprovoked attack on the defendant. Glover v. State, 280 Ga. 476 , 629 S.E.2d 249 (2006).
Defendant's convictions of murder, felony murder, armed robbery, burglary, possession of a firearm during the commission of an armed robbery, and possession of a firearm during the commission of a burglary were supported by sufficient evidence that, the day before the three murder victims were found shot in the head, the defendant borrowed the defendant's sibling's car to visit one of the victims, who owed the defendant money, the defendant admitted going to the victims' home twice on the day of the murders, but stated that the victims were not home during either visit, neighbors heard gunshots around the home at approximately 7:30 P.M., near the last time that the two younger victims were heard from, and again at 10:00 P.M. that evening, when the older victim returned home for the day, a number of items stolen from the victims' home at the time of the murders were subsequently found in a dumpster next to a storage locker the defendant shared with a love interest, the items were contained in plastic bags which had the defendant's fingerprints on them, and the plastic bags came from a roll of trash bags found in the trunk of the car which the defendant borrowed on the day of the murders. Griffin v. State, 280 Ga. 683 , 631 S.E.2d 671 (2006).
Felony murder conviction was upheld on appeal as supported by: (1) the admission of sufficient evidence; (2) a photo of the victim which was not overly gruesome and inflammatory; (3) the trial court's proper denial of evidence of the victim's character; and (4) despite an error in denying admission of provocation evidence that error was deemed harmless and did not contribute to the verdict. McWilliams v. State, 280 Ga. 724 , 632 S.E.2d 127 (2006).
Convictions of felony murder, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon were supported by sufficient evidence showing that, during an argument involving the defendant and the two victims, the defendant told one of the victims to go get the victim's guns, adding that the defendant had guns, the victim went to the victim's vehicle and retrieved two handguns, approached with arms crossed and a gun in each hand, and the defendant took a gun out of the waistband of the defendant's pants and started shooting, wounding one victim and killing the other victim. McKee v. State, 280 Ga. 755 , 632 S.E.2d 636 (2006).
Defendant's conviction for felony murder was affirmed as the evidence supported the conviction since: (1) the victim was fatally shot in the eye during an argument with the defendant; (2) the defendant threw the gun into a lake while taking the victim to the hospital; and (3) the defendant initially blamed the victim's injury on a drive-by shooting and then on a family acquaintance, but ultimately, at trial, claimed the shooting was due to an accident that occurred when the defendant was trying to un-jam a handgun. Peterson v. State, 280 Ga. 875 , 635 S.E.2d 132 (2006).
Sufficient evidence supported the defendant's convictions of two counts of felony murder under O.C.G.A. § 16-5-1 , armed robbery under O.C.G.A. § 16-8-41 , aggravated assault under O.C.G.A. § 16-5-21 , possession of a firearm during the commission of a felony under O.C.G.A. § 16-11-106 , and possession of a firearm by a first offender probationer under O.C.G.A. § 16-11-131 ; two witnesses testified that the defendant had told them that the defendant shot the victim, and one of the witnesses testified that the defendant stated that the shooting occurred during a robbery, the defendant discarded a gun that was later found to be the murder weapon while fleeing police on another crime, and the defendant admitted to police that the murder weapon was the defendant's, that the defendant stole $100 from the victims, and that the defendant shot the murder victim. Chenoweth v. State, 281 Ga. 7 , 635 S.E.2d 730 (2006).
Evidence supported a defendant's conviction of felony murder, aggravated assault, and possession of a firearm during the commission of a felony as: (1) the defendant told the victim that the defendant was going to shoot the victim and then the defendant shot the victim in the stomach, argued with the victim some more, and shot the victim again; (2) the victim never admitted cheating on the defendant; (3) after the second shot, the defendant and a friend took the victim to a hospital in a car; (4) while en route, the defendant persisted in the defendant's efforts to get the victim to admit to cheating on the defendant; and (5) the defendant wiped down the revolver and threw it out of the car. Durham v. State, 281 Ga. 208 , 636 S.E.2d 513 (2006).
Defendant's felony murder conviction was upheld on appeal, given: (1) the sufficiency of the state's testimonial evidence; (2) that trial counsel was not ineffective in failing to properly advise the defendant of a plea offer or by failing to make meritless objections; and (3) the trial court's prompt and pointed curative instruction after an inadvertent placement of the defendant's character into evidence did not warrant a mistrial. Hunter v. State, 281 Ga. 526 , 640 S.E.2d 271 (2007).
Because a sufficient foundation was presented to support the admission of a witness's voice identification testimony, and "prior difficulties" evidence was properly admitted, the defendant's felony murder and possession of a firearm during the commission of a crime convictions were upheld on appeal. Withers v. State, 282 Ga. 656 , 653 S.E.2d 40 (2007).
Evidence was sufficient to support the defendant's felony conviction murder under circumstances in which, after an argument between the victim, who was the defendant's brother, and their father, the defendant was called to come to the father's home, the defendant and the victim argued outside the house in the street, the defendant threatened the victim, and then hit the victim, knocking the victim to the ground; the victim next got up and began running away from the defendant towards a stop sign at the end of the street, and the defendant shot the victim as the victim ran away, hitting the victim in the back of the head and killing the victim. Carter v. State, 285 Ga. 565 , 678 S.E.2d 909 (2009).
Right to counsel for re-sentencing. - Defendant's re-sentencing without court-appointed counsel to represent the defendant was affirmed as the trial court was simply instructed to merge the defendant's armed robbery conviction into the defendant's felony murder conviction; as the trial court had no discretion in the matter and its re-sentencing of the defendant was a ministerial act, the re-sentencing was proper. Robertson v. State, 280 Ga. 885 , 635 S.E.2d 138 (2006).
Felony murder conviction held reasonable despite self-defense contention. - After the victim threw the hot contents of a frying pan at the defendant and the defendant then drew a knife from the defendant's blouse and stabbed the victim numerous times, but there were no eyewitnesses to the stabbing other than the victim and defendant, and the defendant testified the defendant stabbed the victim in self-defense in the belief that the victim was reaching into the victim's pocket for a weapon and that, while the defendant had meant to "hurt" the victim, the defendant had not intended to kill the victim, a rational trier of fact could have found the defendant guilty of the crime of felony murder beyond a reasonable doubt by causing the victim's death while committing the felony of aggravated assault. Henderson v. State, 256 Ga. 486 , 350 S.E.2d 236 (1986).
Though the victim was approaching the defendant when the defendant fatally shot the victim at a distance of three feet, the evidence was sufficient to convict the defendant of aggravated assault and felony murder despite the defendant's claim of self-defense as the defendant decided to confront the victim and beat the victim up, retrieved a gun from a car, and lied to police about the victim's pulling a knife before the shooting. McNeil v. State, 284 Ga. 586 , 669 S.E.2d 111 (2008).
Evidence sufficient for establishing malice. - Evidence showing that defendant took a perverse and sadistic pleasure in the killing of other human beings was clearly sufficient for finding malice aforethought. Harper v. State, 251 Ga. 183 , 304 S.E.2d 693 (1983), appeal dismissed, 286 Ga. 216 , 686 S.E.2d 786 (2009).
Rational trier of fact could have found defendant guilty of malice murder beyond a reasonable doubt. Massengale v. State, 264 Ga. 51 , 441 S.E.2d 238 (1994).
Evidence, including money, a weapon and the victim's personal effects and testimony as to defendant's behavior, was sufficient to support defendant's conviction for malice murder. Jenkins v. State, 269 Ga. 282 , 498 S.E.2d 502 , cert. denied, 525 U.S. 968, 119 S. Ct. 416 , 142 L. Ed. 2 d 338 (1998).
Conspirator liability. - Defendant's conviction of malice murder, O.C.G.A. § 16-5-1 , was supported by sufficient evidence; the state did not have to show that the defendant actually shot the victims, as the fact that the defendant and others conspired to commit the crime allowed any of the conspirators to be found guilty of the murders. Jones v. State, 279 Ga. 854 , 622 S.E.2d 1 (2005).
Evidence sufficient for conviction of voluntary manslaughter. - See Harper v. State, 182 Ga. App. 760 , 357 S.E.2d 117 (1987).
Double jeopardy did not prohibit retrial of kidnapping. - Defendant could be retried on a kidnapping charge under O.C.G.A. § 16-5-40(b) after the defendant was acquitted of felony murder under O.C.G.A. § 16-5-1(c) and a mistrial was declared on the underlying felony of kidnapping; the jury could have based its acquittal on the felony murder charge on factors other than the defendant's participation in the crimes that preceded the homicide. State v. Lambert, 276 Ga. App. 668 , 624 S.E.2d 174 (2005).
Double jeopardy not found when one conviction based on federal charges. - Fact that the defendant had been convicted in federal court of possession of a firearm under 18 U.S.C. § 922 did not bar a felony murder prosecution in state court on double jeopardy grounds as the state had to prove facts in the felony murder case that were not required to be proved in the federal case. Moreover, the federal offense, which required that a firearm be possessed in and affecting interstate commerce, was not within the concurrent jurisdiction of Georgia and under O.C.G.A. § 16-1-8(c) did not bar a subsequent prosecution for felony murder predicated on the underlying firearm possession charge. Marshall v. State, 286 Ga. 446 , 689 S.E.2d 283 (2010).
Subsequent prosecution barred by double jeopardy. - State's re-prosecution of the defendant for felony murder was barred by double jeopardy after the jury found the defendant guilty of the voluntary manslaughter of the same victim because the jury was given a full opportunity to return a verdict on the felony murder charge, which the jury did; although no judgment of conviction or sentence was entered on the jury's verdict of guilt on the felony murder charge, the defendant was placed in jeopardy of conviction of that charge in the first trial and could not, consistent with the Fifth Amendment's double jeopardy clause, be placed at risk of conviction again. Williams v. State, 288 Ga. 7 , 700 S.E.2d 564 (2010).
Evidence sufficient for murder and rape conviction. - See Robinson v. State, 258 Ga. 279 , 368 S.E.2d 513 (1988).
Evidence was sufficient to convict the defendant of the rape and murder of a victim found next to a truck parked at a tire store because the defendant, who was homeless, lived and slept in the truck and had slept there the night before, DNA evidence confirmed the defendant had sex with the victim within 48 hours of the victim's death, and the defendant had raped other women in motor vehicles, including the truck at the tire store. Willis v. State, 304 Ga. 122 , 816 S.E.2d 656 (2018).
Convictions as aider and abettor proper despite lack of personal involvement. - Despite the defendant's contention that the crimes against a stabbing victim were solely committed by the codefendant, pursuant to O.C.G.A. § 16-2-20(a) ample evidence existed to conclude that the defendant either committed the crimes or was a party to the crimes, including that both the defendant and the codefendant drove to the stabbing victim's home, that victim was stabbed to death, and the victim's wallet and checkbook were stolen so that both the defendants could have money to buy more drugs. Odom v. State, 279 Ga. 599 , 619 S.E.2d 636 (2005).
Rule against mutually exclusive verdicts did not apply. - The rule against mutually exclusive verdicts did not apply to the verdicts returned by the jury of guilty on a charge of malice murder, but not guilty by reason of insanity, on a charge of aggravated assault. Taylor v. State, 282 Ga. 502 , 651 S.E.2d 715 (2007).
Guilty verdicts for involuntary manslaughter and as a party to the felony murder of the victim while in the commission of aggravated assault of the victim with a blunt object were not mutually exclusive as the verdicts were supported by evidence of separate acts, committed at separate moments during the night the victim was killed. Kipp v. State, 294 Ga. 55 , 751 S.E.2d 83 (2013).
Because conspiracy was a continuing crime and because defendant continued the defendant's gang activities after turning 18 years old, 18 U.S.C. § 1963(a) allowed an enhancement to a life sentence due to a jury finding that, when defendant was 16 years old, defendant also committed a murder in connection with the Racketeer Influenced and Corrupt Organizations Act (RICO) violations, even though the murder charge had been dismissed because the Attorney General had not certified the case to be tried in federal court as would have been required under 18 U.S.C. § 5032 of the Juvenile Delinquency Act; under O.C.G.A. § 16-5-1(d) , the murder was "racketeering activity" for purposes of 18 U.S.C. 1961(1) and in the context of a RICO conspiracy, because defendant continued the defendant's participation in the activities of the conspiracy past the age of majority, the crimes committed while the defendant was a minor could be considered for both determining guilt and the defendant's sentence. United States v. Flores, 572 F.3d 1254 (11th Cir. 2009), cert. denied, U.S. , 130 S. Ct. 1108 , 175 L. Ed. 2 d 921 (2010).
Aggravating circumstance found beyond a reasonable doubt. - Evidence adduced at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt the existence of statutory aggravating circumstances because the jury found the existence of the following statutory aggravating circumstances beyond a reasonable doubt; the murder was committed while the defendant was engaged in the commission of the capital felony of armed robbery, and the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved depravity of mind: (1) the defendant initially attacked the victim, who was disabled, in the confined area of a bathroom, where the defendant struck the victim multiple times shortly after the victim emerged from the shower; (2) the defendant continued the attack on the victim even as the victim fell to the floor; (3) the evidence showed that the defendant struck the victim in the head with a hammer and a metal stool at least 12 to 14 times; and (4) the defendant acted for the purpose of obtaining money the victim had just received from cashing the victim's disability check. Arrington v. State, 286 Ga. 335 , 687 S.E.2d 438 (2009), cert. denied, 131 S. Ct. 112 , 178 L. Ed. 2 d 69 (U.S. 2010).
2. Children as Victims
When a child born alive afterward dies by reason of bruises inflicted on the child, before birth, by the beating of the child's mother, the offense is murder. Ranger v. State, 249 Ga. 315 , 290 S.E.2d 63 (1982).
Evidence insufficient for murder of baby. - Defendant's conviction for felony murder of the baby was not supported by sufficient evidence as there was no proof that the murder of the adult victim proximately caused the baby's death. Walker v. State, 296 Ga. 161 , 766 S.E.2d 28 (2014).
Evidence sufficient for murder of infant child. - Evidence was sufficient to permit a rational trier of fact to find that a female defendant's infant son was born alive, had a separate and independent existence from the defendant, was murdered by the defendant, and the body subsequently concealed by the defendant, all beyond a reasonable doubt. Life v. State, 261 Ga. 709 , 410 S.E.2d 421 (1991).
Trial court did not err in denying the codefendant's motion for a directed verdict of acquittal because the circumstantial evidence the state presented was sufficient to authorize a rational trier of fact to find the codefendant guilty beyond a reasonable doubt of the malice murder of a girlfriend's child; both the girlfriend and the codefendant were with the child during the time period within which the fatal injuries were believed to have been inflicted upon the child. Smith v. State, 290 Ga. 428 , 721 S.E.2d 892 (2012).
Sufficient evidence of malice in death of a child. - Sufficient evidence supported a malice murder conviction arising from the death of an 18-month-old child because: (1) the defendant took the child into a bathroom of a house; (2) a witness testified that the child was fine before the defendant took the child into the bathroom; (3) after 10 minutes, the defendant came out and asked the witnesses to call 9-1-1; (4) the child was taken to a hospital and pronounced dead; (5) a paramedic testified, inter alia, that the child had large, unusual bruises on the child's abdomen, chest, and back; and (6) a doctor concluded that the child's death was caused by severe internal injuries that could only have been caused by significant blunt force. McMiller v. State, 278 Ga. 706 , 606 S.E.2d 247 (2004).
Cruelty to child as underlying felony in felony murder. - There was sufficient evidence to support a conviction of felony murder, with cruelty to a child in the first degree as the underlying felony. The defendant was the child's sole caregiver from 9:30 A.M. to 3:30 P.M. on October 30, the date that the child's parent came to pick up the child and found the child unresponsive; a neighbor denied the defendant's claim that the neighbor had said that the child's other parent had shaken the child the day before; and a forensic pathologist testified that had the injuries been inflicted before 7:00 A.M. on October 30, the child would not have been acting normally when the child was dropped off at the defendant's home, as testified to by the child's relatives. Bostic v. State, 284 Ga. 864 , 672 S.E.2d 630 (2009).
Death of a baby. - Evidence was sufficient to enable a jury to find the defendant guilty of murder, felony murder, cruelty to children, and aggravated battery for the death of the defendant's baby because the defendant admitted to a number of actions consistent with the fatal injuries suffered by the baby; the actions the defendant took against the baby and the resulting injuries were reflected in the autopsy findings. Stokes v. State, 289 Ga. 702 , 715 S.E.2d 81 (2011).
Testimony by the state's medical expert that the child's malnutrition materially contributed to the child's death from battered child syndrome, the defendant's testimony that the defendant made sure there was food because the defendant believed it was the defendant's duty to provide food for the family, and the evidence that there was no food suitable for the child other than oatmeal in the house supported the jury's finding that the defendant was guilty of felony murder based on child cruelty. Brown v. State, 297 Ga. 685 , 777 S.E.2d 466 (2015).
Beating child to death. - Evidence showed the defendant was guilty of felony murder under O.C.G.A. § 16-5-1 and involuntary manslaughter under O.C.G.A. § 16-5-3 after beating the defendant's child to death together with the defendant's love interest where the defendant's child was struck at least 100 times and with such force that the fat beneath the child's skin was emulsified, entered broken capillaries, and clogged the vessels leading to the child's lungs, a process called fat embolization. Marshall v. State, 276 Ga. 854 , 583 S.E.2d 884 (2003).
Striking a child resulting in death. - Sufficient evidence supported a defendant's convictions of felony murder and cruelty to children where the defendant admitted striking the child multiple times on the night in question, causing the child to bleed, but denied striking the child with sufficient force to cause the injuries the child sustained; the child's parent testified that the bruises the parent found on the child's head and body in the morning had not been present the previous evening. Sauerwein v. State, 280 Ga. 438 , 629 S.E.2d 235 (2006).
Post-autopsy photographs of children admitted. - Defendant's malice murder and cruelty to children convictions were affirmed on appeal as post-autopsy photographs were properly admitted to assist the jury in understanding both the internal injuries and the cause of the victim's death, and sufficient and overwhelming evidence was presented that the victim's injuries were not accidental. Thomas v. State, 281 Ga. 550 , 640 S.E.2d 255 (2007).
Evidence sufficient for malice murder, felony murder, and cruelty to children conviction. - Evidence supported the defendant's convictions of malice murder, felony murder, and cruelty to children since: the victim had not experienced any unusual injuries prior to the time the defendant moved in with the victim's mother; the defendant was alone in the house with the victim and the victim's young brothers prior to the time the victim's head began to swell and at various times on the night the victim died; the defendant told a co-worker that the defendant was beating the victim and the victim's brothers; and the defendant also told an uncle that the defendant could not do anything with the victim and felt like punching the victim in the head as hard as the defendant could. Collum v. State, 281 Ga. 719 , 642 S.E.2d 640 (2007).
Death of 15 month old child. - Evidence supported the defendant's convictions of malice murder, felony murder, and cruelty to children with regard to the death of the defendant's 15-month-old child; although the defendant claimed to have not noticed anything wrong with the child until a codefendant said that the child was having difficulty breathing, the evidence authorized the jury to find that the victim was beaten so severely that the victim's pancreas and duodenum were ruptured, that two to four hours was the maximum time that occurred between the injuries and the victim's death, that the victim would have begun vomiting immediately after the fatal injuries were inflicted, and that the victim would have been in extreme pain. Jackson v. State, 281 Ga. 705 , 642 S.E.2d 656 (2007).
Death of 18 month old child. - Evidence was sufficient to convict the defendant of, inter alia, four counts of felony murder, one count of involuntary manslaughter, and one count of aggravated assault in connection with the abuse and resulting death of the 18-month-old victim because a forensic child pathologist reviewed the findings of the victim's autopsy and opined that the pooling of blood on the front of the victim's body was consistent with the victim's belly being pressed against an object like the mattress or pad of a crib; and the defendant saw the boyfriend spank the children on the night of the victim's murder and watched as the boyfriend pushed the victim's face into the crib. Kipp v. State, 294 Ga. 55 , 751 S.E.2d 83 (2013).
Guilty of felony murder but not guilty of cruelty to children. - In a trial for the murder of a five-year-old child, the felony murder conviction need not be set aside because a finding of not guilty of cruelty to children is allegedly inconsistent with a finding of guilty of felony murder when the underlying felony is cruelty to children, where there is no doubt that the evidence showed the elements of the underlying felony, cruelty to a child, and that the jury was authorized to find the defendant guilty of a felony murder. Robinson v. State, 257 Ga. 194 , 357 S.E.2d 74 (1987).
Death of 3 year old child resulting from arson. - Evidence was sufficient to support defendant's conviction for arson, felony murder, and aggravated assault, resulting from a fire set at a residence occupied by the defendant's sister-in-law, the sister-in-law's four children, and the sister-in-law's 12-year-old sibling where: (1) the defendant confronted the defendant's sister-in-law at the sister-in-law's home, alleging that the sister-in-law had stolen items from the defendant's mobile home; (2) a physical altercation ensued between the defendant and the sister-in-law; (3) the defendant retrieved a gasoline can from the defendant's car, poured gasoline onto the back door of the sister-in-law's home, and ignited it; and (4) the sister-in-law's three-year-old child died from the injuries sustained in the fire. Tarvin v. State, 277 Ga. 509 , 591 S.E.2d 777 (2004).
Death of infant from shaking. - The following evidence was sufficient to establish that the defendant acted with malice and thus supported the defendant's convictions of felony murder and the predicate felonies of aggravated battery, O.C.G.A. § 16-5-24(a) , and first-degree child cruelty, O.C.G.A. § 16-5-70 : 1) the defendant claimed the victim, a 16-month-old child who had been left in the defendant's care, became unresponsive and that the defendant shook the child in an attempt to revive the child; 2) a medical examiner testified that the victim died from head trauma; 3) the victim's 10-year-old sibling testified that the defendant had struck the victim in the past and had been yelling at the victim before the victim lost consciousness. Sears v. State, 290 Ga. 1 , 717 S.E.2d 453 (2011).
3. The Elderly as Victims
Victim 74 years old. - Malice murder conviction was supported by sufficient evidence that on the day of the crime, the defendant left work at 10:34 A.M., that the victim, who was a 74-year-old dental technician, was found beaten to death by police who responded to a 9-1-1 call placed by the defendant at 4:53 P.M., that, based on sightings of the victim and telephone calls made to victim, the jury was authorized to find that the victim was murdered between 1:10 P.M. and 2 P.M., that the defendant was seen in the area wearing work clothes around noon and seen after 2 P.M. wearing shorts and sneakers, that the defendant was also seen carrying a trash bag that appeared to contain clothing, that a pair of work boots, spattered with the victim's blood, was discovered in the restroom at the plumbing company where the defendant worked, that, based on the testimony of two employees, the boots belonged to the defendant, and that the victim had been agitated because the defendant had failed to pay for dental plates the victim had made for the defendant. Kell v. State, 280 Ga. 669 , 631 S.E.2d 679 (2006).
Evidence sufficient for killing elderly victim. - Sufficient evidence supported convictions of malice murder and armed robbery when during an argument with the 79-year-old victim, the defendant struck the victim in the head several times with the victim's cane, causing the cane to break and an edge of the cane to cut the victim's neck, after which the defendant took the victim's wallet and car and drove to Atlanta. Harvey v. State, 284 Ga. 8 , 660 S.E.2d 528 (2008).
Evidence was presented to the jury that elderly and bedridden patients such as the 82 year old victim often die as a result of pneumonia or infections that the patients develop during treatment, such as infections from a dislodged feeding tube. While the defendant blames the victim's caregivers for failing to notice in a timely manner that the victim's feeding tube had become dislodged, the evidence shows that it was because of the brain injuries inflicted upon the victim by the defendant that a feeding tube was required and that the victim was unable to inform anyone when the tube became dislodged. As a result, the evidence is sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of felony murder. Dodson v. State, 292 Ga. 790 , 741 S.E.2d 639 (2013).
4. Spouses or Lovers as Victims
Evidence sufficient for murder of lover/spouse. - Denial of a motion for a directed verdict was not error since there was evidence which would authorize a rational trier of fact to find beyond a reasonable doubt that defendant, angered by the fact that defendant's lover was leaving, maliciously shot the lover in the back, thereby committing malice murder. Sanders v. State, 257 Ga. 239 , 357 S.E.2d 66 (1987).
Evidence was legally sufficient to sustain defendant's conviction for malice murder as the evidence showed that defendant, who was romantically involved with the victim, was seen with the victim on the day of the murder, that defendant was seen by a neighbor running from the victim's home at a time when the neighbor smelled smoke, that the victim had been shot twice in the head at close range, that a gun defendant possessed on the day of the murder was the murder weapon, that defendant had asked a witness to hide or sell the gun, and that defendant admitted shooting someone and burning the person's house down. Parker v. State, 277 Ga. 439 , 588 S.E.2d 683 (2003).
Hired to kill spouse. - Evidence that a defendant was hired by a spouse to kill the other spouse, accepted a payment, acquired a gun, recruited a shooter, and drove the shooter to the victim's workplace, where the shooter shot the victim to death, was sufficient to support a jury verdict convicting the defendant of malice murder; the other participants in the plot pled guilty to charges arising from their roles and testified against the defendant at the trial. Green v. State, 281 Ga. 322 , 638 S.E.2d 288 (2006).
Evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of malice murder because the jury was authorized to find that the defendant met with the victim's husband and other codefendants on at least two occasions to discuss the murder of the victim, that the defendant accepted money from the husband prior to the murder, that the defendant instructed one of the codefendants on how to kill the victim, that the defendant drove to the victim's home with the husband and another codefendant on the morning of the murder, and that the defendant demanded and accepted money from the husband as compensation for the murder. Owens v. State, 286 Ga. 821 , 693 S.E.2d 490 , cert. denied, 131 S. Ct. 156 , 178 L. Ed. 2 d 93 (2010), overruled on other grounds by Shelton v. Lee, 2016 Ga. LEXIS 452 (Ga. 2016).
Evidence sufficient for death of lover. - There was sufficient evidence to support the defendant's conviction of malice murder after the victim, the mother of the defendant's child, was shot in the head while riding in a truck with the defendant and the victim's adult son by another man; the son, who was driving, testified that he heard a loud click and a popping noise, and the victim rested her head on his shoulder and did not speak again, and the son continued to drive until the defendant told him to pull off the road. Lowery v. State, 282 Ga. 68 , 646 S.E.2d 67 , cert. denied, 552 U.S. 999, 128 S. Ct. 508 , 169 L. Ed. 2 d 355 (2007).
Death of spouse and spouse's new lover. - Defendant's malice murder convictions, resulting from the death of the defendant's estranged wife and the wife's lover, were upheld on appeal as the state presented sufficient evidence as to the history of abuse between the defendant and the wife, the jury was not required to believe the defendant's alibi, and any objection to the state's alleged failure to show the required nexus between the existence of the wife's life insurance policies and a possible motive for the murders was waived. Tolbert v. State, 282 Ga. 254 , 647 S.E.2d 555 (2007).
Self defense claim rejected in death of lover. - There was sufficient evidence for the jury to find the defendant guilty of felony murder and of aggravated assault and to reject the defendant's self-defense claim; the defendant, who had broken up with the victim, followed the victim as the victim left defendant's apartment, stabbed the victim twice with a nine-inch knife when the victim turned to face defendant without the victim striking the defendant, pulling a weapon, or yelling at the defendant, and the defendant claimed that the defendant had retrieved the knife in self-defense, then followed the victim out of the apartment, down the stairs, and into a parking lot where the defendant stabbed the victim. Ganaway v. State, 282 Ga. 297 , 647 S.E.2d 590 (2007).
Evidence sufficient for malice murder of spouse. - Evidence supported a defendant's conviction of the malice murder of the defendant's spouse. The defendant admitted shooting the victim and stated that the victim shot at the defendant twice; a pistol found under the bed was too far from the victim for the victim to reach the pistol; there was minimal evidence of a struggle; the defendant showed no emotion when the victim was carried out and displayed other inappropriate behavior; and expert testimony showed that the victim was shot from at least three feet away while the victim was either kneeling or bent over. Muller v. State, 284 Ga. 70 , 663 S.E.2d 206 (2008).
Evidence that the victim, the defendant's wife, was killed in the victim's bed, the defendant reported the shooting but was not at the house when police arrived, the gun was found under the pillow next to the victim, a crime scene technician testified that the shooter folded a pillow around the victim's head and shot the victim through the pillow, and testimony that the defendant was physically and emotionally abusive toward the victim was sufficient to support the defendant's conviction for malice murder. Smith v. State, 292 Ga. 620 , 740 S.E.2d 158 (2013).
Accusations of an affair. - Evidence was sufficient to convict the defendant of murder, felony murder, and possession of a knife during the commission of a crime when the defendant stabbed the victim, the defendant's spouse, in the chest with a butcher knife after the victim accused the defendant of having an affair. Although the defendant claimed at the scene that the defendant did not mean for the knife to go so far into the victim's body and that the stabbing had occurred by accident, the defendant later admitted at trial that the defendant tried to force the victim back with the knife when the defendant felt the knife penetrate the victim's body. Hudson v. State, 284 Ga. 595 , 669 S.E.2d 94 (2008).
Shooting of paramour. - There was sufficient evidence to convict defendant of felony murder after defendant was seen at a paramour's apartment with a gun in a book bag, a witness stated that defendant pointed the gun at the paramour's head and threatened to kill the paramour, the paramour was found shot dead a short time later, and defendant admitted firing the gun but claimed that the shooting was accidental. Jackson v. State, 276 Ga. 408 , 577 S.E.2d 570 (2003), overruled by State v. Springer, 297 Ga. 376 , 774 S.E.2d 106 , 2015 Ga. LEXIS 487 (2015).
Prostitute as victim. - Convictions for felony murder and aggravated assault with a deadly weapon, in violation of O.C.G.A. §§ 16-5-1 and 16-5-21 , were supported by sufficient evidence, including that the defendant and the codefendant were acting in concert, and the denial of the defendant's motion for a judgment of acquittal pursuant to O.C.G.A. § 17-9-1 was proper; the defendant argued with the victim, a prostitute, and refused to pay for the victim's services, prompting the victim to get a gun and fire a shot into the air, whereupon the defendant and a codefendant fired their guns back at the victim in a car leaving the area, and a bullet from the codefendant's gun killed the victim. Stinchcomb v. State, 280 Ga. 170 , 626 S.E.2d 88 (2006).
Evidence sufficient for malice murder and other crimes in death of spouse. - Evidence supported a defendant's conviction for malice murder, aggravated battery, and possession of a firearm during the commission of a felony as: (1) the defendant had threatened to kill the victim, who was seeking a divorce from the defendant; (2) the defendant shot the victim eight times with an AK-47 assault rifle, killing the victim; (3) in woods located approximately 10 miles from the crime scene, investigators found the defendant's car, a bag of the defendant's personal items, some of which had the defendant's name written on the items, and the defendant's AK-47 rifle and ammunition; and (4) the defendant admitted to firing this AK-47 many times at the victim's home at what the defendant described as an unknown assailant who shot at the defendant first. Thomason v. State, 281 Ga. 429 , 637 S.E.2d 639 (2006).
One is never justified in taking life of an adulterous spouse or illicit lover. - This is murder, and an instruction on justifiable homicide may not be given. Such homicides stand on same footing as any other homicides. However, the peculiar facts of a given case may suggest "passion" and "provocation" within the meaning of the voluntary manslaughter statute. Burger v. State, 238 Ga. 171 , 231 S.E.2d 769 (1977); Phillips v. State, 255 Ga. 539 , 340 S.E.2d 919 (1986).
RESEARCH REFERENCES
Am. Jur. 2d. - 40A Am. Jur. 2d, Homicide, §§ 1 et seq., 36 et seq., 63 et seq.
C.J.S. - 40 C.J.S., Homicide, § 2 et seq.
ALR. - Acquittal on charge as to one as bar to charge as to the other, where one person is killed or assaulted by acts directed at another, 2 A.L.R. 606 .
Responsibility of persons participating in jail delivery for homicide committed by one of their number, 15 A.L.R. 456 .
Homicide by unlawful act aimed at another, 18 A.L.R. 917 .
Homicide by companion of defendant while attempting to escape from scene of crime as murder in first degree, 22 A.L.R. 850 ; 108 A.L.R. 847 .
Homicide as affected by humanitarian motives, 25 A.L.R. 1007 .
Death resulting from arson as within contemplation of statute which makes homicide in perpetration of felony murder in first degree, 87 A.L.R. 414 .
Corpus delicti in prosecution for killing of newborn child, 159 A.L.R. 523 .
Homicide: causing one, by threats or fright, to leap or fall to his death, 25 A.L.R.2d 1186.
Admissibility on behalf of accused in homicide case of evidence that killing was committed at victim's request, 71 A.L.R.2d 617.
Homicide: what constitutes "lying in wait,", 89 A.L.R.2d 1140.
Homicide: presumption of deliberation or premeditation from the circumstances attending the killing, 96 A.L.R.2d 1435.
Homicide by automobile as murder, 21 A.L.R.3d 116.
Mental or emotional condition as diminishing responsibility for crime, 22 A.L.R.3d 1228.
Homicide: criminal liability for death resulting from unlawfully furnishing intoxicating liquor or drugs to another, 32 A.L.R.3d 589.
Homicide based on killing of unborn child, 40 A.L.R.3d 444, 64 A.L.R.5th 671.
Application of felony-murder doctrine where the felony relied upon is an includible offense with the homicide, 40 A.L.R.3d 1341.
Homicide predicated on improper treatment of disease or injury, 45 A.L.R.3d 114.
Use of set gun, trap, or similar device on defendant's own property, 47 A.L.R.3d 646.
What felonies are inherently or foreseeably dangerous to human life for purposes of felony-murder doctrine, 50 A.L.R.3d 397.
What constitutes attempted murder, 54 A.L.R.3d 612.
Criminal liability where act of killing is done by one resisting felony or other unlawful act committed by defendant, 56 A.L.R.3d 239.
What constitutes termination of felony for purpose of felony-murder rule, 58 A.L.R.3d 851.
Homicide by withholding food, clothing, or shelter, 61 A.L.R.3d 1207.
What constitutes murder by torture, 83 A.L.R.3d 1222.
Spouse's confession of adultery as affecting degree of homicide involved in killing spouse or his or her paramour, 93 A.L.R.3d 925.
What constitutes such discriminatory prosecution or enforcement of laws as to provide valid defense in state criminal proceedings, 95 A.L.R.3d 280.
Judicial abrogation of felony-murder doctrine, 13 A.L.R.4th 1226.
Accused's right, in homicide case, to have jury instructed as to both unintentional shooting and self-defense, 15 A.L.R.4th 983.
Modern status of the rules requiring malice "aforethought," "deliberation," or "premeditation," as elements of murder in the first degree, 18 A.L.R.4th 961.
Propriety of manslaughter conviction in prosecution for murder, absent proof of necessary elements of manslaughter, 19 A.L.R.4th 861.
Validity and construction of statute defining homicide by conduct manifesting "depraved indifference,", 25 A.L.R.4th 311.
Admissibility of expert opinion stating whether a particular knife was, or could have been, the weapon used in a crime, 83 A.L.R.4th 660.
Application of felony-murder doctrine where person killed was co-felon, 89 A.L.R.4th 683.
Validity and construction of "extreme indifference" murder statute, 7 A.L.R.5th 758.
Admissibility, in homicide prosecution, of evidence as to tests made to ascertain distance from gun to victim when gun was fired, 11 A.L.R.5th 497.
Ineffective assistance of counsel: battered spouse syndrome as defense to homicide or other criminal offense, 11 A.L.R.5th 871.
Admissibility of evidence of prior physical acts of spousal abuse committed by defendant accused of murdering spouse or former spouse, 24 A.L.R.5th 465.
Homicide: liability where death immediately results from treatment or mistreatment of injury inflicted by defendant, 50 A.L.R.5th 467.
Admissibility of expert or opinion evidence of battered-woman syndrome on issue of self-defense, 58 A.L.R.5th 749.
Propriety of lesser-included-offense charge of voluntary manslaughter to jury in state murder prosecution - Twenty-first century cases, 3 A.L.R.6th 543.
Sufficiency of evidence to support homicide conviction where no body was produced, 65 A.L.R.6th 359.
Admissibility of suicide note in criminal proceedings, 13 A.L.R.7th 6.
Construction and application of "crime of violence" provision of U.S.S.G. § 2L1.2 pertaining to unlawfully entering or remaining in the united states after commission of felony offense, 68 A.L.R. Fed. 2d 55.
Offense of Committing Murder In Aid of Racketeering (VICAR) in Drug Enterprise under 18 U.S.C.A. § 1959, 47 A.L.R. Fed. 3d Art. 5.
16-5-2. Voluntary manslaughter.
- A person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person; however, if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury in all cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder.
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A person who commits the offense of voluntary manslaughter, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than 20 years.
(Laws 1833, Cobb's 1851 Digest, pp. 783, 784; Ga. L. 1858, p. 99, § 1; Code 1863, §§ 4222, 4223; Code 1868, §§ 4259, 4260; Code 1873, §§ 4325, 4326; Code 1882, §§ 4325, 4326; Penal Code 1895, §§ 65, 66; Penal Code 1910, §§ 65, 66; Code 1933, §§ 26-1007, 26-1008; Code 1933, § 26-1102, enacted by Ga. L. 1968, p. 1249, § 1.)
Law reviews. - For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B. J. 189 (1969). For annual survey of criminal law and procedure, see 35 Mercer L. Rev. 103 (1983). For note, "Edge v. State: The Modified Merger Rule Comes Up Short," see 44 Mercer L. Rev. 697 (1993). For comment on Gaines v. Wolcott, 119 Ga. App. 313 , 167 S.E.2d 366 (1969), see 21 Mercer L. Rev. 325 (1969).
JUDICIAL DECISIONS
ANALYSIS
General Consideration
Evidence was sufficient to prove charges of aggravated battery and voluntary manslaughter. - Defendant admitted shooting the gun found at the crime scene, a firearms examiner testified that a bullet fired from that gun was consistent with the one that killed the victim, and the evidence showed that a metal jacket fragment removed from another victim's arm was fired from the same gun. Pennymon v. State, 261 Ga. App. 450 , 582 S.E.2d 582 (2003).
Evidence sufficient to support aggravated assault conviction. - Because there was testimony that the codefendant struck a 66-year-old victim with a brick, and since the indictment against a defendant properly alleged that the aggravated assault was committed with objects likely to cause serious bodily injury, there was sufficient evidence to convict both defendants of aggravated assault under O.C.G.A. § 16-5-21 . Anthony v. State, 275 Ga. App. 274 , 620 S.E.2d 491 (2005).
O.C.G.A. § 16-5-2 constitutional. - Argument that O.C.G.A. § 16-5-2 is unconstitutionally vague is without merit as the words "sudden, violent, and irresistible passion" and "serious provocation" are capable of common understanding. Logue v. State, 251 Ga. 602 , 308 S.E.2d 189 (1983).
Constitutional challenge must be raised before guilty verdict. - Felony murder defendant's constitutional challenge to Georgia's homicide statutes, O.C.G.A. §§ 16-5-1 and 16-5-2 , could not be reviewed because the challenge was raised for the first time in the defendant's amended motion for new trial. Such challenges could not be raised after a guilty verdict. Brown v. State, 285 Ga. 772 , 683 S.E.2d 581 (2009), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
When homicide is neither justifiable nor malicious, it is manslaughter. Conley v. State, 21 Ga. App. 134 , 94 S.E. 261 (1917).
Killing must be unlawful to constitute manslaughter. Darby v. State, 16 Ga. App. 171 , 84 S.E. 724 (1915), later appeal, 22 Ga. App. 606 , 96 S.E. 707 (1918).
Distinguishing feature of voluntary manslaughter is that it must be done in hot blood, without malice or deliberation. Goldsmith v. State, 54 Ga. App. 268 , 187 S.E. 694 (1936).
It is absence of malice which differentiates manslaughter from murder. If at time of killing circumstances are such as to exclude malice, then homicide cannot be murder. Parker v. State, 218 Ga. 654 , 129 S.E.2d 850 (1963).
Murder and manslaughter, both voluntary and involuntary, are grades of unlawful homicide. Perry v. State, 78 Ga. App. 273 , 50 S.E.2d 709 (1948).
Verdicts of voluntary manslaughter and felony murder were not mutually exclusive. Smith v. State, 272 Ga. 874 , 536 S.E.2d 514 (2000).
Doctrine of reasonable fears has no application in manslaughter case. Jones v. State, 193 Ga. 449 , 18 S.E.2d 844 (1942); Wilcox v. State, 77 Ga. App. 786 , 50 S.E.2d 29 (1948).
Act actually committed is judged according to act intended. - If a person shoots at another under circumstances that, if death had ensued, offense would be reduced from murder to voluntary manslaughter, and by accident the shot hits and kills another person standing by, for whom shot was not intended, offense would be voluntary manslaughter. McLendon v. State, 172 Ga. 267 , 157 S.E. 475 (1931).
Substantive elements of voluntary manslaughter are: (1) intentional killing, which was; (2) unlawful; and (3) prompted solely by sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. Woods v. Linahan, 648 F.2d 973 (5th Cir. 1981).
Homicide which is neither justifiable nor malicious, constitutes manslaughter, and if intentional, constitutes voluntary manslaughter. Cochran v. State, 146 Ga. App. 414 , 246 S.E.2d 431 (1978); Shields v. State, 147 Ga. App. 96 , 248 S.E.2d 171 (1978); Ward v. State, 151 Ga. App. 36 , 258 S.E.2d 699 (1979); Tew v. State, 179 Ga. App. 369 , 346 S.E.2d 833 (1986).
Crimes of voluntary manslaughter and malice murder require identical causation in that both sections speak of causing the death of another human being. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019 , 69 L. Ed. 2 d 398 (1981).
Difference between crimes of voluntary manslaughter and malice murder is that latter crime requires either express or implied malice, while voluntary manslaughter requires that killer has acted solely from a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019 , 69 L. Ed. 2 d 398 (1981).
Merger of conviction into felony murder. - After the defendant was engaged in a shoot-out with another and accidentally struck and killed an innocent third party, the defendant's conviction for voluntary manslaughter could be merged into a felony-murder conviction. Foster v. State, 264 Ga. 369 , 444 S.E.2d 296 (1994).
Trial court properly refused to accept the jury's initial verdict finding the defendant guilty of both felony murder and voluntary manslaughter because the same aggravated assault charge was both the predicate felony for the felony murder charge and the act underlying the voluntary manslaughter charge; therefore, the jury could not find the defendant guilty of both felony murder and voluntary manslaughter because, as charged, the crimes were subject to the modified merger rule, and the first verdicts were ambiguous. Ingram v. State, 290 Ga. 500 , 722 S.E.2d 714 (2012).
Merger of aggravated assault conviction into voluntary manslaughter conviction. - Trial court erred in entering a judgment of conviction against the defendant for aggravated assault, O.C.G.A. § 16-5-21(a)(2), because that conviction should have been merged into the defendant's conviction for voluntary manslaughter, O.C.G.A. § 16-5-2(a) ; the defendant was charged in the indictment with voluntary manslaughter and aggravated assault for the stabbing of the victim, and the undisputed evidence at trial showed that the victim was stabbed one time in the chest, causing the victim's death. Muckle v. State, 307 Ga. App. 634 , 705 S.E.2d 721 (2011).
"Hot blood" requirement for voluntary manslaughter is inconsistent with malice. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019 , 69 L. Ed. 2 d 398 (1981).
Distinguishing characteristic between voluntary manslaughter and justifiable homicide is whether accused was so influenced and excited that the accused reacted passionately or whether defendant acted simply in self defense. Gregg v. State, 233 Ga. 117 , 210 S.E.2d 659 (1974), aff'd, 428 U.S. 153, 96 S. Ct. 2909 , 49 L. Ed. 2 d 859 (1976); Syms v. State, 175 Ga. App. 179 , 332 S.E.2d 689 (1985).
Evidentiary circumstances necessary to show voluntary manslaughter, as opposed to circumstances showing justifiable homicide, relate to a situation which arouses sudden passion in person killing so that, rather than defending self, the person willfully kills the attacker, albeit without malice aforethought, when it was not necessary for the person to do so in order to protect self. Williams v. State, 232 Ga. 203 , 206 S.E.2d 37 (1974), overruled on other grounds, Jackson v. State, 239 Ga. 40 , 235 S.E.2d 477 (1977).
Voluntary manslaughter by definition denotes one acting out of anger or passion; self-defense denotes one acting with a motive to prevent injury. Murff v. State, 251 Ga. 478 , 306 S.E.2d 267 (1983).
Murder distinguished. - Intent to kill is an essential element of both murder and voluntary manslaughter; provocation, or the lack thereof, is what distinguishes the two offenses. Parks v. State, 254 Ga. 403 , 330 S.E.2d 686 (1985).
Intent need not be directed toward person actually killed. - Offenses of murder, voluntary manslaughter, and aggravated assault do not require that the necessary element of intent, to kill or injure as the case may be, must have been directed toward the person who actually was killed or injured. Cook v. State, 255 Ga. 565 , 340 S.E.2d 843 , cert. denied, 479 U.S. 871, 107 S. Ct. 241 , 93 L. Ed. 2 d 166 (1986).
This state does not have a reckless homicide statute; it has only voluntary and involuntary manslaughter statutes which create degrees of homicide less than murder. A history of punishing recklessly caused homicide as murder has nothing to do with deficiencies in felony murder scheme because it provides no category of homicide less culpable than murder. Malone v. State, 238 Ga. 251 , 232 S.E.2d 907 (1977).
To sustain voluntary manslaughter conviction, state must prove every element of offense beyond reasonable doubt. Woods v. Linahan, 648 F.2d 973 (5th Cir. 1981).
State has burden of proof on issue of unlawfulness or absence of self-defense when raised by evidence. Woods v. Linahan, 648 F.2d 973 (5th Cir. 1981).
Modified merger rule applies. - When the evidence would support a conviction for either felony murder or voluntary manslaughter, and the jury finds the defendant guilty of each offense, the modified merger rule applies if the underlying felony is directed against the homicide victim and is not independent, but rather is an integral part of the killing; under such rule, the defendant cannot be convicted and sentenced for felony murder because the voluntary manslaughter verdict indicates that the underlying felony is mitigated by provocation and passion. Sanders v. State, 281 Ga. 36 , 635 S.E.2d 772 (2006).
Double jeopardy did not bar retrial. - Defendant's acquittal on felony murder under O.C.G.A. § 16-5-1(c) and aggravated assault under O.C.G.A. § 16-5-21 did not bar retrial on a voluntary manslaughter charge under O.C.G.A. § 16-5-2(a) as the collateral estoppel doctrine under the Double Jeopardy Clause, U.S. Const., amend. 5, and Ga. Const. 1983, Art. I, Sec. I, Para. XVIII, did not apply because voluntary manslaughter required proof of an element not found in felony murder or aggravated assault, and aggravated assault with a deadly weapon and voluntary manslaughter were mutually exclusive. Roesser v. State, 316 Ga. App. 850 , 730 S.E.2d 641 (2012).
Reconciling verdicts. - Verdicts finding the defendant guilty of voluntary manslaughter as a lesser included offense of each count of felony murder, O.C.G.A. § 16-5-2 , but not guilty of voluntary manslaughter as a lesser included offense of the alleged malice murder of the victim, were not repugnant and could be reconciled. Carter v. State, 298 Ga. 867 , 785 S.E.2d 274 (2016), cert. denied, 137 S. Ct. 646 , 196 L. Ed. 2 d 542 (U.S. 2017).
Cited in Gaines v. Wolcott, 119 Ga. App. 313 , 167 S.E.2d 366 (1969); Henderson v. State, 227 Ga. 68 , 179 S.E.2d 76 (1970); Kemp v. State, 227 Ga. 251 , 179 S.E.2d 920 (1971); Brooks v. State, 227 Ga. 339 , 180 S.E.2d 721 (1971); Nolen v. State, 124 Ga. App. 593 , 184 S.E.2d 674 (1971); Witt v. State, 124 Ga. App. 535 , 184 S.E.2d 517 (1971); Butts v. State, 126 Ga. App. 512 , 191 S.E.2d 329 (1972); Green v. State, 230 Ga. 756 , 199 S.E.2d 199 (1973); Cornog v. State, 130 Ga. App. 46 , 202 S.E.2d 257 (1973); Powell v. State, 130 Ga. App. 588 , 203 S.E.2d 893 (1974); Reynolds v. State, 131 Ga. App. 247 , 205 S.E.2d 536 (1974); Young v. State, 232 Ga. 285 , 206 S.E.2d 439 (1974); Davis v. State, 233 Ga. 638 , 212 S.E.2d 814 (1975); Beckman v. State, 134 Ga. App. 118 , 213 S.E.2d 527 (1975); Barker v. State, 233 Ga. 781 , 213 S.E.2d 624 (1975); Cook v. State, 134 Ga. App. 357 , 214 S.E.2d 423 (1975); Hobbs v. State, 134 Ga. App. 850 , 216 S.E.2d 674 (1975); Lindsey v. State, 135 Ga. 122 , 218 S.E.2d 30 (1975); Carrindine v. Ricketts, 236 Ga. 283 , 223 S.E.2d 627 (1976); Baker v. State, 236 Ga. 754 , 225 S.E.2d 269 (1976); Gillespie v. State, 236 Ga. 845 , 225 S.E.2d 296 (1976); Colson v. State, 138 Ga. App. 366 , 226 S.E.2d 154 (1976); Strickland v. State, 138 Ga. App. 842 , 227 S.E.2d 396 (1976); Murray v. State, 138 Ga. App. 776 , 227 S.E.2d 428 (1976); Anderson v. State, 138 Ga. App. 871 , 227 S.E.2d 783 (1976); Copeland v. State, 139 Ga. App. 55 , 227 S.E.2d 850 (1976); Brown v. State, 139 Ga. App. 846 , 229 S.E.2d 798 (1976); Ramey v. State, 238 Ga. 111 , 230 S.E.2d 891 (1976); Curtis v. State, 141 Ga. App. 36 , 232 S.E.2d 382 (1977); Bailey v. State, 240 Ga. 112 , 239 S.E.2d 521 (1977); Gaines v. Hopper, 430 F. Supp. 1173 (M.D. Ga. 1977); Bouttry v. State, 242 Ga. 60 , 247 S.E.2d 859 (1978); Conley v. State, 146 Ga. App. 739 , 247 S.E.2d 562 (1978); King v. State, 148 Ga. App. 310 , 251 S.E.2d 161 (1978); Gaines v. Hopper, 575 F.2d 1147 (5th Cir. 1978); Curtis v. State, 243 Ga. 50 , 252 S.E.2d 614 (1979); Godfrey v. State, 243 Ga. 302 , 253 S.E.2d 710 (1979); Newsome v. State, 149 Ga. App. 415 , 254 S.E.2d 381 (1979); Ballard v. State, 150 Ga. App. 704 , 258 S.E.2d 331 (1979); Driggers v. State, 244 Ga. 160 , 259 S.E.2d 133 (1979); Crawford v. State, 245 Ga. 89 , 263 S.E.2d 131 (1980); Hardy v. State, 245 Ga. 272 , 264 S.E.2d 209 (1980); Arnett v. State, 245 Ga. 470 , 265 S.E.2d 771 (1980); Jones v. State, 245 Ga. 592 , 266 S.E.2d 201 (1980); Lane v. State, 153 Ga. App. 622 , 266 S.E.2d 298 (1980); Jones v. State, 246 Ga. 109 , 269 S.E.2d 6 (1980); Jones v. State, 247 Ga. 268 , 275 S.E.2d 67 (1981); Comer v. State, 247 Ga. 167 , 275 S.E.2d 309 (1981); Gilreath v. State, 247 Ga. 814 , 279 S.E.2d 650 (1981); McCorquodale v. Balkcom, 525 F. Supp. 408 (N.D. Ga. 1981); Krier v. State, 249 Ga. 80 , 287 S.E.2d 531 (1982); Clay v. State, 162 Ga. App. 346 , 291 S.E.2d 432 (1982); Miller v. State, 162 Ga. App. 759 , 292 S.E.2d 481 (1982); Brooks v. State, 249 Ga. 583 , 292 S.E.2d 694 (1982); Johnson v. State, 249 Ga. 621 , 292 S.E.2d 696 (1982); Washington v. State, 249 Ga. 728 , 292 S.E.2d 836 (1982); Perez v. State, 249 Ga. 767 , 294 S.E.2d 498 (1982); Smith v. State, 249 Ga. 80 1, 294 S.E.2d 525 (1982); Byrd v. State, 163 Ga. App. 718 , 294 S.E.2d 686 (1982); Anderson v. State, 163 Ga. App. 571 , 295 S.E.2d 748 (1982); Goins v. State, 164 Ga. App. 37 , 296 S.E.2d 229 (1982); Young v. Zant, 677 F.2d 792 (11th Cir. 1982); Hearn v. James, 677 F.2d 841 (11th Cir. 1982); Maynor v. Green, 547 F. Supp. 264 (S.D. Ga. 1982); McClain v. State, 165 Ga. App. 264 , 299 S.E.2d 55 (1983); Howe v. State, 250 Ga. 811 , 301 S.E.2d 280 (1983); Bryant v. State, 250 Ga. 874 , 301 S.E.2d 881 (1983); Wesley v. State, 166 Ga. App. 28 , 303 S.E.2d 124 (1983); Harper v. State, 251 Ga. 183 , 304 S.E.2d 693 (1983); Heath v. McGuire, 167 Ga. App. 489 , 306 S.E.2d 741 (1983); Dollar v. State, 168 Ga. App. 726 , 310 S.E.2d 236 (1983); Wright v. State, 253 Ga. 1 , 316 S.E.2d 445 (1984); Denson v. State, 253 Ga. 93 , 316 S.E.2d 469 (1984); Brooks v. State, 170 Ga. App. 171 , 316 S.E.2d 815 (1984); Childs v. State, 171 Ga. App. 398 , 319 S.E.2d 549 (1984); Brennon v. State, 253 Ga. 240 , 319 S.E.2d 841 (1984); Ross v. State, 255 Ga. 1 , 334 S.E.2d 300 (1985); Swint v. State, 173 Ga. App. 762 , 328 S.E.2d 373 (1985); White v. State, 179 Ga. App. 276 , 346 S.E.2d 91 (1986); Huston v. State, 256 Ga. 276 , 347 S.E.2d 556 (1986); Partridge v. State, 256 Ga. 602 , 351 S.E.2d 635 (1987); McDonald v. State, 182 Ga. App. 509 , 356 S.E.2d 264 (1987); Harris v. State, 183 Ga. App. 219 , 358 S.E.2d 634 (1987); Brown v. State, 258 Ga. 152 , 366 S.E.2d 668 (1988); Wadley v. State, 258 Ga. 465 , 369 S.E.2d 734 (1988); Smith v. Zant, 855 F.2d 712 (11th Cir. 1988); Griffin v. State, 199 Ga. App. 646 , 405 S.E.2d 877 (1991); Scott v. State, 261 Ga. 611 , 409 S.E.2d 511 (1991); Borders v. State, 201 Ga. App. 754 , 412 S.E.2d 284 (1991); Barron v. State, 261 Ga. 814 , 411 S.E.2d 494 (1992); Polley v. State, 203 Ga. App. 825 , 418 S.E.2d 107 (1992); Nelson v. State, 262 Ga. 763 , 426 S.E.2d 357 (1993); Duquette v. State, 265 Ga. 152 , 454 S.E.2d 500 (1995); Willingham v. State, 268 Ga. 64 , 485 S.E.2d 735 (1997); Hall v. State, 235 Ga. App. 44 , 508 S.E.2d 703 (1998); Hodo v. State, 272 Ga. 272 , 528 S.E.2d 250 (2000); Blackford v. State, 251 Ga. App. 324 , 554 S.E.2d 290 (2001); Wigfall v. State, 274 Ga. 672 , 558 S.E.2d 389 (2002); Anderson v. State, 274 Ga. 871 , 560 S.E.2d 659 (2002); Ford v. Schofield, 488 F. Supp. 2d 1258 (N.D. Ga. 2007); Wells v. State, 294 Ga. App. 277 , 668 S.E.2d 881 (2008); Bradshaw v. State, 284 Ga. 675 , 671 S.E.2d 485 (2008); Darville v. State, 289 Ga. 698 , 715 S.E.2d 110 (2011); Nazario v. State, 293 Ga. 480 , 746 S.E.2d 109 (2013); DuBose v. State, 299 Ga. 652 , 791 S.E.2d 9 (2016); Patterson v. State, 347 Ga. App. 105 , 817 S.E.2d 557 (2018).
Unlawfulness
Phrase "under circumstances which would otherwise be murder" imports requirement of unlawfulness from definition of murder into definition of manslaughter. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019 , 69 L. Ed. 2 d 398 (1981).
Crime of voluntary manslaughter includes as an essential element the ingredient of unlawfulness. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019 , 69 L. Ed. 2 d 398 (1981).
Unlawfulness, in sense of absence of excuse or justification, is an essential element of voluntary manslaughter. Tennon v. Ricketts, 642 F.2d 161 (5th Cir. 1981).
Unlawfulness as absence of self-defense. - Element of unlawfulness has been construed to mean absence of self-defense where self-defense is raised by evidence. Woods v. Linahan, 648 F.2d 973 (5th Cir. 1981).
Unlawfulness, including absence of self-defense, is an essential element of offense of voluntary manslaughter and state bears burden of persuasion in seeking to negate presence of self-defense. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019 , 69 L. Ed. 2 d 398 (1981).
State must prove unlawfulness in voluntary manslaughter prosecution. - If state includes unlawfulness within its murder and manslaughter laws as an element of those crimes, while at the same time state courts require the defendant to prove lawfulness by virtue of self-defense, such construction makes the statutes' operation run contrary to Constitution in violation of due process. Tennon v. Ricketts, 642 F.2d 161 (5th Cir. 1981).
Unlawfulness requirement does not refer to acts that are unlawful under some other criminal statute, since O.C.G.A. §§ 16-5-1(c) and 16-5-3(a) deal with deaths caused during commission of felonies and other unlawful acts. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019 , 69 L. Ed. 2 d 398 (1981).
Lawfulness is proved by establishing self-defense. Tennon v. Ricketts, 642 F.2d 161 (5th Cir. 1981).
Provocation
An essential element of voluntary manslaughter is passion on part of slayer. Rentfrow v. State, 123 Ga. 539 , 51 S.E. 596 (1905); Battle v. State, 133 Ga. 182 , 65 S.E. 382 (1909); Deal v. State, 145 Ga. 33 , 88 S.E. 573 (1916); Frazier v. State, 194 Ga. 657 , 22 S.E.2d 404 (1942); Green v. State, 195 Ga. 759 , 25 S.E.2d 502 (1943).
Defendant, who shot the victim in the abdomen, should not have been convicted of both voluntary manslaughter in violation of O.C.G.A. § 16-5-2 and felony murder while in the commission of an aggravated assault in violation of O.C.G.A. § 16-5-1(c) ; there was one assault, and the jury found that the fatal assault was mitigated by provocation and passion, so only the voluntary manslaughter conviction was proper. Lawson v. State, 280 Ga. 881 , 635 S.E.2d 134 (2006).
Provocation as element. - Provocation is relevant, among other things, as an element of voluntary manslaughter. Anderson v. State, 262 Ga. 331 , 418 S.E.2d 39 (1992).
Mental state of accused, not that of deceased, is relevant in determining whether homicide is manslaughter. Rentfrow v. State, 123 Ga. 539 , 51 S.E. 596 (1905).
Passion is not same as ill will. Brown v. State, 144 Ga. 216 , 87 S.E. 4 (1915).
If killing was the result of passion, it is immaterial who provoked the difficulty or how justifiably passion may have been aroused on conviction of manslaughter. Anderson v. State, 14 Ga. App. 607 , 81 S.E. 802 (1914).
Death caused by felony cannot constitute manslaughter unless done with passion. - No death caused by a felony can possibly fall within either branch of involuntary manslaughter, and can only fall within voluntary manslaughter if done with passion. Baker v. State, 236 Ga. 754 , 225 S.E.2d 269 (1976).
Provocation must be such as to excite violent passion in a reasonable person. - To warrant a charge on voluntary manslaughter, evidence must not only show an act of violent passion, but also some serious provocation sufficient to excite such passion in a reasonable person. Swett v. State, 242 Ga. 228 , 248 S.E.2d 629 (1978); Isaac v. State, 263 Ga. 872 , 440 S.E.2d 175 (1994).
When the evidence raises the offense of voluntary manslaughter, the question is whether defendant acted out of passion resulting from provocation sufficient to excite such passion in a reasonable person, and it is of no moment whether the provocation was sufficient to raise the deadly passion in the particular defendant. Lewandowski v. State, 267 Ga. 831 , 483 S.E.2d 582 (1997).
With regard to defendant's conviction for voluntary manslaughter, the evidence was sufficient to authorize the jury to find beyond a reasonable doubt that defendant caused the death of defendant's romantic friend by striking the friend with a brick as the result of a sudden, violent, and irresistible passion arising from defendant having seen the friend engaged in sexual contact with another. Gilstrap v. State, 291 Ga. App. 647 , 662 S.E.2d 755 (2008).
After the defendant was convicted of, inter alia, malice murder, trial counsel was not ineffective for waiting until the eve of trial to file a motion for the assistance of a forensic psychologist at trial as the defendant did not show that the requested expert's proffered testimony would have led the trier of fact to find the defendant guilty of voluntary manslaughter rather than murder because the trial court specifically stated that the court had considered the evidence and arguments about provocation and did not believe that killing the victim because the defendant was not able to get money to buy drugs fit within the objective reasonable person standard for voluntary manslaughter. Prothro v. State, 302 Ga. 769 , 809 S.E.2d 787 (2018).
"Passion" referred to in O.C.G.A § 16-5-2(a) is not sexual desire. Hardeman v. State, 252 Ga. 286 , 313 S.E.2d 95 (1984).
Sudden, violent and irresistible passion. - Evidence was sufficient to show beyond a reasonable doubt that defendant was guilty of voluntary manslaughter when defendant shot and killed the victim out of "a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person." Brown v. State, 242 Ga. App. 106 , 528 S.E.2d 868 (2000).
Doctrine of reasonable fears may be relevant as regards provocation of accused. - Doctrine of reasonable fears, as related to assault upon accused may be applicable in determining whether homicide was voluntary manslaughter. However, it has no connection with defense of voluntary manslaughter which would authorize acquittal of defendant. Gresham v. State, 70 Ga. App. 80 , 27 S.E.2d 463 (1943).
Serious provocation includes fears of reasonable man of being in danger of offense less than felony. White v. State, 129 Ga. App. 353 , 199 S.E.2d 624 (1973).
"Fear of danger" prompting attack as not requiring self-defense finding. - Fear raised in assailant's mind by victim's menacing words, physical aggression by pushing, and gesturing toward assailant with a pistol did not, under the circumstances, require a finding that the assailant acted out of self-defense, since the fear of some danger can be sufficient provocation to excite the passion necessary for voluntary manslaughter. Syms v. State, 175 Ga. App. 179 , 332 S.E.2d 689 (1985).
Victim's conduct in beating defendant, engaging the defendant in a dangerous road race, threatening to kill the defendant, demanding that defendant get out of defendant's truck while forcibly striking the window two or three times, and taunting defendant to shoot the victim, supplied sufficient provocation for a finding of voluntary manslaughter under O.C.G.A. § 16-5-2 . The jury was free to reject defendant's argument that the defendant acted in self-defense against the unarmed victim. Crane v. State, 300 Ga. App. 450 , 685 S.E.2d 314 (2009).
Provocation by words is inadequate to reduce murder to manslaughter. Aguilar v. State, 240 Ga. 830 , 242 S.E.2d 620 (1978).
Trial court did not err when it declined to charge the jury on voluntary manslaughter, despite the defendant's claim of provocation by the victim's backtalk and lying; words alone were not as a matter of law sufficient provocation to reduce the crime from murder to manslaughter. Paul v. State, 274 Ga. 601 , 555 S.E.2d 716 (2001), cert. denied, 537 U.S. 828, 123 S. Ct. 123 , 154 L. Ed. 2 d 41 (2002).
Trial court did not err in refusing to give the defendant's requested charge on voluntary manslaughter because the record supported the trial court's conclusion that there was no evidence that the attack on the victim was solely as a result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person as the evidence showed that the defendant and the victim argued briefly after the defendant accused the victim of being a thief, and such angry words alone were insufficient to incite serious provocation. Dailey v. State, 297 Ga. 442 , 774 S.E.2d 672 (2015).
Words alone, regardless of degree of their insulting nature, will not in any case justify excitement of passion so as to reduce crime from murder to manslaughter where killing is done solely on account of the indignation aroused by use of opprobrious words. Brooks v. State, 249 Ga. 583 , 292 S.E.2d 694 (1982).
Testimony that defendant and another "had words" insufficient provocation. - Defendant's testimony that defendant was backing up and trying to leave when defendant's friend was pushed into the defendant and that the friend tried to catch oneself by grabbing the defendant's arm, which caused the gun to discharge, killing the friend, did not authorize a charge on voluntary manslaughter under O.C.G.A. § 16-5-2 because the evidence did not show that the defendant was impassioned when the killing occurred. Although there was testimony that the defendant and another at the scene "had words," this was insufficient to establish that the defendant was seriously provoked. Finley v. State, 286 Ga. 47 , 685 S.E.2d 258 (2009).
Profane language not sufficient provocation. - Where the defendant showed no provocative conduct on behalf of the intended victim of the defendant's shot except for a salvo of curse words directed at the appellant, this does not constitute provocation sufficient to demand a charge on voluntary manslaughter. Hunter v. State, 256 Ga. 372 , 349 S.E.2d 389 (1986).
Homicide resulting solely from resentment of provoking threats constitutes murder. - Provocation by threats will in no case be sufficient to free defendant from crime of murder, or reduce homicide from murder to manslaughter, when killing is done solely for purpose of resenting provocation thus given. Moore v. State, 228 Ga. 662 , 187 S.E.2d 277 (1972).
In cases of provocation by threats, motive with which slayer acted is for jury determination, and if it be claimed that homicide was committed, not in a spirit of revenge, but under fears of a reasonable man, it is for jury to decide whether or not circumstances were sufficient to justify existence of such fear. Moore v. State, 228 Ga. 662 , 187 S.E.2d 277 (1972).
Threat plus threatening movements. - When the defendant said the victim told the defendant that the victim was "going to get [the defendant]," and then reached into the defendant's car and grabbed the defendant by the wrist, the statement by the victim, when connected to the victim's movement toward, and close proximity to, the defendant's car, could be sufficient provocation. Tew v. State, 179 Ga. App. 369 , 346 S.E.2d 833 (1986).
Defendant's testimony regarding prior rape irrelevant. - Defendant's testimony that the defendant was raped at age 11 was barred because it was not relevant to the jury's determination regarding voluntary manslaughter; to support a claim of justification or self-defense as the defendant did not contend that the victim sexually abused the defendant as a child, and the defendant withdrew the requested charges on justification and self-defense; or to show the defendant's alleged subjective mental state in the absence of an insanity defense, which was withdrawn from consideration by the jury. Furthermore, the jury heard the defendant's testimony that the defendant feared both for the defendant's life and that the defendant was about to be raped, and the trial court did instruct the jury on the definition of voluntary manslaughter. Riggs v. State, 306 Ga. 759 , 833 S.E.2d 112 (2019).
Existence of passion is a jury question. Mattox v. State, 9 Ga. App. 292 , 70 S.E. 1120 (1911).
Issue of cooling time between provocation and homicide is for jury determination. Ross v. State, 59 Ga. 248 (1877); White v. State, 118 Ga. 787 , 45 S.E. 595 (1903); Robinson v. State, 128 Ga. 254 , 57 S.E. 315 (1907); Barney v. State, 5 Ga. App. 301 , 63 S.E. 28 (1908); Hightower v. State, 14 Ga. App. 246 , 80 S.E. 684 (1914); Booker v. State, 16 Ga. App. 280 , 85 S.E. 255 (1915); Burke v. State, 196 Ga. 702 , 27 S.E.2d 313 (1943).
Cooling time and circumstances construed. - What is said in section regarding cooling time is also reasonably referable to cooling circumstances, because one necessarily involves the other. Cooling time, in the very nature of things, must vary and be governed by circumstances in each case. Therefore it is proper in murder prosecution for jury to consider all conduct of defendant from time of first difficulty until fatal encounter, and construe that conduct in light of all attendant circumstances and conditions, with a view of ascertaining what impulses, motives or passions influenced defendant. Hamby v. State, 71 Ga. App. 817 , 32 S.E.2d 546 (1944).
Sufficiency of provocation and question of cooling time are in all cases for jury. Ward v. State, 151 Ga. App. 36 , 258 S.E.2d 699 (1979).
Beating one month earlier not provocation. - Trial court properly refused to charge the jury on voluntary manslaughter when the defendant shot the victim to death, but claimed provocation by a beating administered to the defendant by the victim, and others, one month earlier; the fact that the defendant had not seen the victim in the month since the beating was irrelevant. Harris v. State, 280 Ga. 372 , 627 S.E.2d 562 (2006).
When evidence insufficient to raise question for jury. - Although the jury is the judge of whether there was an interval between the provocation and killing sufficient for the voice of reason and humanity to be heard, it is a question of law for the courts to determine whether there is slight evidence that the defendant acted as the result of sudden, violent, and irresistible passion resulting from serious provocation. The court could conclude as a matter of law that the incident did not constitute even slight evidence of provocation because of the three and a half day cooling off period between the incident and the killing. Aldridge v. State, 258 Ga. 75 , 365 S.E.2d 111 (1988).
In the defendant's murder trial, a jury charge on voluntary manslaughter was not required because there was no evidence that the defendant acted as a result of passion arising from serious provocation, O.C.G.A. § 16-5-2(a) ; there was no evidence that the victim (a family friend, unarmed and naked in the bathroom) said or did anything to provoke the defendant. Plez v. State, 300 Ga. 505 , 796 S.E.2d 704 (2017).
Beating and kicking is sufficient provocation to bring one's actions within the ambit of the definition of voluntary manslaughter. Ellis v. State, 168 Ga. App. 757 , 309 S.E.2d 924 (1983).
"Boxing" or fighting prior to the homicide does not constitute the kind of provocation which would warrant a charge of voluntary manslaughter in a trial for murder. Byrd v. State, 257 Ga. 36 , 354 S.E.2d 428 (1987).
Adulterous conduct deemed sufficient provocation. - Fact that in their last conversation, the victim, defendant's wife, recounted her adulterous history in a nonprovocative manner is not determinative of the issue of whether there was sufficient provocation to require a charge of voluntary manslaughter. Her adulterous conduct, and the relating of it to the defendant under these circumstances, clearly authorized the trial court's implicit determination that sufficient provocation existed to warrant a charge on voluntary manslaughter. Strickland v. State, 257 Ga. 230 , 357 S.E.2d 85 (1987).
Adulterous conduct can serve as sufficient provocation authorizing a charge on voluntary manslaughter even though the parties to the relationship are not married to each other. Murray v. State, 247 Ga. App. 139 , 543 S.E.2d 428 (2000).
In the defendant's murder trial, the trial court erred in excluding evidence that the defendant's spouse was having two extramarital affairs; evidence that the spouse was having the affairs was relevant to prove that the spouse told the defendant about the affairs at the time of the murder and such a conversation might be sufficient provocation to reduce the crime to voluntary manslaughter under O.C.G.A. § 16-5-2(a) . Lynn v. State, 296 Ga. 109 , 765 S.E.2d 322 (2014).
No adulterous conduct to provoke murder. - Because none of the parties were married, an instruction regarding adultery as a provocation for voluntary manslaughter was not warranted. Tepanca v. State, 297 Ga. 47 , 771 S.E.2d 879 (2015).
Finding old girlfriend and her new boyfriend on sofa. - Merely finding old girlfriend and her new boyfriend together on sofa is not evidence of anything approaching sufficient passion or provocation to warrant a charge on the law of voluntary manslaughter. Parks v. State, 234 Ga. 579 , 216 S.E.2d 804 (1975).
Sexual jealousy. - Because the defendant was not provoked by sexual jealousy at the time the defendant shot the victim, and because the defendant testified that the defendant shot at the victim because the defendant was afraid that the victim could have been reaching for a weapon, an instruction on sexual jealousy as a provocation for voluntary manslaughter would have been improper; furthermore, even if the woman the defendant had been seeing had told the defendant that the woman had gone out with the victim, it would not be sufficient to excite sudden, violent, and irresistible passion in a reasonable person. Tepanca v. State, 297 Ga. 47 , 771 S.E.2d 879 (2015).
Victim's alleged statement that she was out with another man was not sufficient to excite sudden, violent, and irresistible passion in a reasonable person. Mayweather v. State, 254 Ga. 660 , 333 S.E.2d 597 (1985).
Victim's stated intention to attend a party at which victim expected to use illegal drugs was not sufficient provocation to reduce stepfather's murder count to voluntary manslaughter. Cole v. State, 254 Ga. 286 , 329 S.E.2d 146 (1985).
Evidence of defendant's intoxication and determination to end it. - Evidence that the defendant was intoxicated, agitated, and determined to "put a stop to it" (her husband's inebriation) is insufficient to support finding of sudden, violent and irresistible passion. Clay v. State, 160 Ga. App. 178 , 286 S.E.2d 476 (1981), rev'd on other grounds, 249 Ga. 250 , 290 S.E.2d 84 (1982).
Evidence of victim's cocaine use. - Despite the fact that the defendant produced proper evidence of a causal connection between the presence of cocaine and alcohol in the victim's body and the victim's potential behavior, as that connection was relevant to the issue of provocation and should have been admitted, any error by the trial court was deemed harmless, given that the error did not contribute to the verdict. McWilliams v. State, 280 Ga. 724 , 632 S.E.2d 127 (2006).
Victim's tossing cup toward defendant insufficient. - In a prosecution for malice murder, there was no evidence to authorize a charge on voluntary manslaughter, and the fact that the victim may have tossed a soft drink cup in the direction of the defendant was insufficient to create a serious provocation. Burgess v. State, 264 Ga. 777 , 450 S.E.2d 680 (1994), cert. denied, 515 U.S. 1133, 115 S. Ct. 2559 , 132 L. Ed. 2 d 813 (1995).
Serious act of provocation not shown. - In a conviction based on the shooting death of a taxi driver, defendant was not entitled to a voluntary manslaughter charge because there was no evidence that the taxi driver, while unarmed and driving the cab, committed a serious act of provocation warranting such a charge. Keita v. State, 285 Ga. 767 , 684 S.E.2d 233 (2009).
No evidence of fit of passion. - Habeas court erred in granting relief to a petitioner on a malice murder conviction on the basis of ineffective assistance of counsel because counsel's defense theory of innocence was not unsupported by the evidence, and there was no evidence of sudden passion supporting a proposed theory of voluntary manslaughter under O.C.G.A. § 16-5-2(a) . Petitioner's intoxication and alleged mental retardation did not support a theory of voluntary manslaughter. Hall v. Lewis, 286 Ga. 767 , 692 S.E.2d 580 (2010).
Sudden passion not shown given evidence of strained relationship. - At the defendant's murder trial, trial counsel was not ineffective in failing to request an instruction on voluntary manslaughter based on evidence at trial that the defendant's relationship with the victim was strained and that the couple engaged in erratic behavior towards one another; such testimony was insufficient to show sudden passion. Cochran v. State, 305 Ga. 827 , 828 S.E.2d 338 (2019).
Five to 15 minutes not sufficient "cooling off" as matter of law. - Five to 15 minute period for "cooling off" does not render act of killing murder rather than voluntary manslaughter as a matter of law. Davis v. State, 140 Ga. App. 890 , 232 S.E.2d 164 (1977).
Mutual Combat
Voluntary manslaughter includes killing in course of mutual combat. Cooper v. State, 212 Ga. 367 , 92 S.E.2d 864 (1956).
Homicide pursuant to mutual combat generally constitutes manslaughter. - When homicide is committed during mutual combat, since the defendant willingly engaged in an affray, the defendant is in equal fault with the deceased, and, under such circumstances, it is not justifiable for the defendant to slay adversary without more. Accordingly, a killing under such circumstances is voluntary manslaughter. Cribb v. State, 71 Ga. App. 539 , 31 S.E.2d 248 (1944).
To reduce homicide from murder to voluntary manslaughter, on theory of mutual combat, it should affirmatively appear that at time of homicide both parties were in position and manifested intention to fight. Cornelious v. State, 193 Ga. 25 , 17 S.E.2d 156 (1941); Cone v. State, 193 Ga. 420 , 18 S.E.2d 850 (1942); Joyner v. State, 208 Ga. 435 , 67 S.E.2d 221 (1951).
Essential ingredient, mutual intent, in order to constitute mutual combat, must be a willingness, a readiness, and intention upon part of both parties to fight. Mathis v. State, 196 Ga. 288 , 26 S.E.2d 606 (1943); McDaniel v. State, 197 Ga. 757 , 30 S.E.2d 612 (1944).
Mutual combat exists where there is a fight and both parties are willing to fight. Harris v. State, 184 Ga. 382 , 191 S.E. 439 (1937).
It does not matter who strikes first blow in mutual combat. - If upon a sudden quarrel, parties fight upon spot, or presently agree and fetch their weapons and fight, and one of them is killed, such killing constitutes voluntary manslaughter, no matter who strikes first blow. Cotton v. State, 201 Ga. 285 , 39 S.E.2d 530 (1946); Joyner v. State, 208 Ga. 435 , 67 S.E.2d 221 (1951).
Principles of mutual combat, applied to voluntary manslaughter, do not require that both strike blows. Watson v. State, 66 Ga. App. 242 , 17 S.E.2d 559 (1941).
There need not be mutual blows in order to constitute mutual combat; but when there exists intention on part of both parties to fight, mutual combat exists, although first blow kills or disables one of the parties. Mathis v. State, 196 Ga. 288 , 26 S.E.2d 606 (1943).
Waiver on appeal when defendant requested charge. - Because the defendant requested a jury charge on mutual combat, the defendant waived the right to appeal on this point. Gonzales v. State, 261 Ga. App. 366 , 582 S.E.2d 524 (2003).
Theory of mutual combat inapplicable where victim had no desire to fight. - Aggressor will not be allowed to mitigate crime on theory of mutual combat when it appears that the victim had no desire to fight, and intended to fight only to the extent that a defense of the victim's person against an unprovoked attack was necessary. Mathis v. State, 196 Ga. 288 , 26 S.E.2d 606 (1943); Joyner v. State, 208 Ga. 435 , 67 S.E.2d 221 (1951).
Mutual intent to fight, where malice present. - Although there is mutual intention to fight, if one disputant kills other with malice, it is murder, since in such case killing would not be result of sudden and violent heat of passion which by reason of its irresistibility would constitute voluntary manslaughter. Rivers v. State, 193 Ga. 133 , 17 S.E.2d 726 (1941).
Words, threats, menaces, or contemptuous gestures. - Unlawful killing of one who has given slayer no provocation other than use of words, threats, menaces, or contemptuous gestures cannot be graded to voluntary manslaughter, under doctrine of mutual combat. Cone v. State, 193 Ga. 420 , 18 S.E.2d 850 (1942); Green v. State, 195 Ga. 759 , 25 S.E.2d 502 (1943); Joyner v. State, 208 Ga. 435 , 67 S.E.2d 221 (1951).
Mere threats by one party to other prior to killing do not establish mutual combat. Cornelious v. State, 193 Ga. 25 , 17 S.E.2d 156 (1941).
No charge on mutual combat authorized when defendant testified to acting in self-defense. - In the defendant's trial for murder of another inmate, no evidence warranted instructions on voluntary manslaughter and mutual combat because the defendant testified the defendant acted in self-defense in the fight and did not intend to kill the victim, while eyewitnesses described the defendant as chasing the victim. Ruffin v. State, 296 Ga. 262 , 765 S.E.2d 913 (2014).
Defenses
Defense of justification. - When relying on the defense of justification in a homicide case, in order to introduce evidence of the violent nature of the deceased victim, the defendant must make a prima facie showing that the victim was the aggressor, was assailing the defendant, and the defendant was honestly seeking to defend self. Hagans v. State, 187 Ga. App. 216 , 369 S.E.2d 536 (1988).
Self-defense distinguished. - Provocation necessary to support a charge of voluntary manslaughter is markedly different from that which will support a self-defense claim; the distinguishing characteristic between the two claims is whether the accused was so influenced and excited that the accused reacted passionately rather than simply in an attempt at self defense. Worthem v. State, 270 Ga. 469 , 509 S.E.2d 922 (1999).
Defenses of self-defense and accident are inconsistent. Wilkerson v. State, 183 Ga. App. 26 , 357 S.E.2d 814 , cert. denied, 183 Ga. App. 907 , 357 S.E.2d 814 (1987).
Self-defense. - When the defendant testified that the victim was shot because the defendant feared the victim was about to attack the defendant, the trial court properly charged the jury regarding self-defense; there was no evidence that the defendant shot the victim as the result of passion arising from a serious provocation, nor was there any evidence that the defendant was so influenced and excited that the defendant reacted passionately rather than simply in an attempt at self-defense. Morgan v. State, 276 Ga. 72 , 575 S.E.2d 468 (2003).
Self defense argument rejected when victim eating when murdered. - Evidence was sufficient to find that the defendant shot the victim as a result of sudden, violent, and irresistible passion resulting from serious provocation for the voluntary manslaughter conviction. The evidence did not establish self-defense as the victim was significantly smaller than the defendant and the victim was eating a hamburger when the defendant shot the victim. Stanley v. State, 267 Ga. App. 656 , 601 S.E.2d 141 (2004).
Continuing to strike victim after victim down impacted self defense. - While the defendant contended that the act of repeatedly striking the victim with a piece of wood was done in self-defense, the jury could have found either that the defendant's actions were not justified because the defendant used excessive force or that the defendant did not act in self-defense after the first blow in light of testimony that the defendant continued to strike the victim after the victim had fallen to the ground and was no longer a threat. Linzy v. State, 277 Ga. App. 673 , 627 S.E.2d 411 (2006).
Self defense argument rejected. - Defendant was not entitled to a directed verdict of acquittal on a voluntary manslaughter count predicated on the defendant's claim of self-defense, O.C.G.A. § 16-3-21(a) , because the evidence was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of voluntary manslaughter in violation of O.C.G.A. § 16-5-2(a) and to enable a rational trier of fact to find that the defendant's stabbing of the victim was not justified as an act of self-defense; under former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8 ), a neighbor's eyewitness testimony, standing alone, was sufficient to support a finding that the defendant was the aggressor, continued to use force after any imminent danger posed by the victim had passed, or used excessive force, and the jury also was entitled to rely upon evidence that the defendant lied to the police about the stabbing and hid the knife. Muckle v. State, 307 Ga. App. 634 , 705 S.E.2d 721 (2011).
Self defense argument rejected. - Evidence was sufficient to support the defendant's conviction for voluntary manslaughter because the defendant's testimony that the initial shot to the victim's head was an accident and that the defendant kept shooting because the victim threatened to kill the defendant was sufficient to allow the jury to conclude beyond a reasonable doubt that the defendant did not justifiably use deadly force to protect oneself, after the victim already had been shot in the head, from the victim's assault pursuant to O.C.G.A. § 16-3-21(a) ; or the jury simply could have disbelieved the defendant's claim of self-defense, given the number of gunshots fired. Davis v. State, 309 Ga. App. 831 , 711 S.E.2d 324 (2011).
Trial court did not err in refusing to grant the defendant's motion for a new trial under O.C.G.A. § 5-5-21 because the evidence establishing that the defendant and the victims had engaged in a heated argument, which escalated to preparations for a physical altercation, was sufficient to sustain the defendant's voluntary manslaughter conviction, O.C.G.A. § 16-5-2(a) ; given the heated exchange and the defendant's belief that the defendant was in serious danger, there was sufficient provocation to excite the passion necessary for voluntary manslaughter, and the jury was authorized to reject the defendant's claim of self-defense under O.C.G.A. § 16-3-21(a) and conclude that the defendant was so influenced and excited that the defendant reacted passionately, rather than simply in self defense, when the defendant shot an unarmed victim. White v. State, 312 Ga. App. 421 , 718 S.E.2d 335 (2011).
Validity of defense a jury question. - When the jury was authorized to conclude that the defendant intentionally shot the victim after the victim's actions earlier in the day provoked the defendant, and to reject the defendant's theory that the defendant feared being shot, the defendant's voluntary manslaughter conviction was affirmed. Gonzales v. State, 261 Ga. App. 366 , 582 S.E.2d 524 (2003).
Sufficient evidence supported the defendant's conviction of voluntary manslaughter in violation of O.C.G.A. § 16-5-2 ; there was conflicting evidence as to whether the defendant acted in self-defense in shooting the victim, and it was for the jury to resolve the dispute between the defendant and the state's witnesses, who contradicted the defendant's testimony that the defendant had acted in self-defense. Parks v. State, 281 Ga. App. 679 , 637 S.E.2d 46 (2006).
Evidence was sufficient to support a jury's determination that the defendant's fatal shooting of a victim following the parties' altercation and the victim's subsequent punch in the defendant's face constituted voluntary manslaughter, in violation of O.C.G.A. § 16-5-2(a) , as there was no evidence that the victim had a gun at the time of the shooting incident and the defendant gave conflicting versions of the incident; the jury acted within the jury's province in rejecting the defendant's claim of self-defense pursuant to O.C.G.A. § 16-3-21(a) . Thomas v. State, 296 Ga. App. 231 , 674 S.E.2d 96 (2009).
Jury Charge
Charge based on 1933 law. - Trial court did not err in instructing the jury that "in all cases of voluntary manslaughter there must be some actual assault upon the person killing or an attempt by the person killed to commit a serious personal injury on the person killing or other equivalent circumstances to justify the excitement of passion and to exclude all idea of deliberation or malice either express or implied," although the requirements concerning an actual assault upon the defendant, or an attempt on the part of the victim to commit a serious personal injury on the defendant, that were contained in § 26-1102 of the 1933 Code of Georgia were not adopted in the enactment of the Criminal Code of Georgia of 1968, as currently codified at O.C.G.A. § 16-5-2 . Cash v. State, 258 Ga. 460 , 368 S.E.2d 756 (1988).
Charge placing burden of persuasion of self-defense on defendant violates due process. - When absence of self-defense is an essential element of the crime of voluntary manslaughter, and the trial court's charge operates to place the burden of persuasion on the defendant on this issue, defendant's conviction violated the defendant's due process rights under the United States Constitution. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019 , 69 L. Ed. 2 d 398 (1981).
An instruction which tracked the language of O.C.G.A. § 16-5-2(a) was not unconstitutionally burden-shifting in that it required the jury to find defendant guilty of murder if it determined that a sufficient cooling-off period intervened between the provocation and the homicide. Parents Against Realignment v. Georgia High School Association, 271 Ga. 114 , 515 S.E.2d 528 (1999).
Court should charge voluntary manslaughter whenever requested by defendant. - Better practice on the part of trial courts would be to charge voluntary manslaughter in all instances when requested by the defendant. Such a charge, on request, cannot be reversible error, and, if routinely given, would vastly reduce the expense and delay involved on appeal of the sometimes difficult questions of whether there is sufficient evidence to support such a charge as a matter of law. Gooch v. State, 259 Ga. 301 , 379 S.E.2d 522 (1989).
When there is doubt whether manslaughter is involved, trial judge must submit question to jury. Todd v. State, 75 Ga. App. 711 , 44 S.E.2d 275 (1947).
Court should charge regarding both murder and manslaughter when doubt exists. If there exists any evidence to create doubt, however slight, as to whether offense is murder or voluntary manslaughter, instructions as to law of both of these offenses should be given. Thomas v. State, 47 Ga. App. 237 , 170 S.E. 303 (1933); Thomas v. State, 51 Ga. App. 455 , 180 S.E. 760 (1935); Hayes v. State, 51 Ga. App. 462 , 180 S.E. 762 (1935); Dickey v. State, 60 Ga. App. 199 , 3 S.E.2d 238 (1939); Harris v. State, 77 Ga. App. 842 , 50 S.E.2d 152 (1948); McDaniel v. State, 91 Ga. App. 196 , 85 S.E.2d 490 (1954).
When evidence, or defendant's statement, or portions of evidence and portions of statement combined, raise doubt, however slight, as to whether homicide was murder or voluntary manslaughter, it is not error for court to instruct jury upon law of voluntary manslaughter. Tucker v. State, 61 Ga. App. 661 , 7 S.E.2d 193 (1940).
When there is evidence sufficient to raise doubt, however slight, upon point, whether crime is murder or manslaughter, voluntary or involuntary, court should instruct jury upon these grades of manslaughter as well as murder. Freeman v. State, 158 Ga. 369 , 123 S.E. 126 (1924); Goldsmith v. State, 54 Ga. App. 268 , 187 S.E. 694 (1936).
Law of voluntary manslaughter may properly be given in charge to jury on trial of one indicted for murder, where, from evidence or from defendant's statement at trial, there is anything deducible which would tend to show that defendant was guilty of voluntary manslaughter, or which would be sufficient to raise a doubt as to which of these grades of homicide was committed. Sumner v. State, 109 Ga. 142 , 34 S.E. 293 (1899); Futch v. State, 137 Ga. 75 , 72 S.E. 911 (1911); Reeves v. State, 22 Ga. App. 628 , 97 S.E. 115 (1918); Amerson v. State, 26 Ga. App. 628 , 105 S.E. 378 (1920); Green v. State, 52 Ga. App. 290 , 183 S.E. 204 (1935); Dickey v. State, 60 Ga. App. 199 , 3 S.E.2d 238 (1939); Hamby v. State, 71 Ga. App. 817 , 32 S.E.2d 546 (1944); Goings v. State, 91 Ga. App. 146 , 85 S.E.2d 98 (1954).
When applicable, law of voluntary manslaughter should be charged, even absent request. - When under one phase of evidence, law of voluntary manslaughter is involved in case, judge errs when the judge omits to charge upon that subject and this charge is required even without any request. Parker v. State, 218 Ga. 654 , 129 S.E.2d 850 (1963).
When testimony as to voluntary manslaughter is sufficient, it is duty of court to charge thereon, whether or not request to charge thereon was made. Bell v. State, 130 Ga. 865 , 61 S.E. 996 (1908); Andrews v. State, 134 Ga. 71 , 67 S.E. 422 (1910); Hill v. State, 147 Ga. 650 , 95 S.E. 213 (1918); Booker v. State, 153 Ga. 117 , 111 S.E. 418 (1922).
Even in the face of an objection by the defendant, the court properly charged the jury with respect to voluntary manslaughter in a prosecution for murder where the evidence showed adulterous conduct of the defendant's wife with the victim. Boone v. State, 234 Ga. App. 373 , 506 S.E.2d 884 (1998).
Absent request, failure to charge on manslaughter not error when raised only by defendant's statement. Taylor v. State, 199 Ga. 512 , 34 S.E.2d 701 (1945).
Defense counsel was entitled to rely on defendant's claim that defendant was not present when a victim was killed, counsel acted reasonably when counsel decided to defend charges of malice murder and felony murder by attacking the credibility of defendant's co-conspirators and when counsel decided not to ask that the jury be instructed on voluntary manslaughter as a lesser included offense of murder, and the trial court did not err because it did not give the jury an instruction on voluntary manslaughter, sua sponte. Sparks v. State, 277 Ga. 72 , 586 S.E.2d 645 (2003).
At least some evidence must support charge of voluntary manslaughter. before the charge is required. Gregg v. State, 233 Ga. 117 , 210 S.E.2d 659 (1974), aff'd, 428 U.S. 153, 96 S. Ct. 2909 , 49 L. Ed. 2 d 859 (1976).
Victim's suspected involvement in the death of a defendant's brother did not constitute even slight evidence of provocation to support a voluntary manslaughter jury charge since five months had passed between the brother's murder and the murder of the victim. Woodruff v. State, 281 Ga. 235 , 637 S.E.2d 391 (2006).
Because the evidence presented showed that the defendant acted in a rational and calculating fashion in retrieving a car jack, breaking out the exterior light to darken the scene, and then quietly snuck into and through the victim's house in search of the victim, and did not show that the defendant's actions were the result of a sudden, violent, and irresistible passion, the defendant was not entitled to a charge on voluntary manslaughter, and a malice murder conviction was upheld on appeal. Taylor v. State, 282 Ga. 502 , 651 S.E.2d 715 (2007).
Trial court did not err by refusing to give a jury charge on voluntary manslaughter because there was no evidence that following arrival the appellant was taunted by the victim or subjected to any conduct that would excite the passions of a reasonable person; rather, the evidence showed that the prior altercation and fighting involving the appellant's relatives occurred some 30 or 40 minutes before the appellant arrived at the apartment complex. Smith v. State, 296 Ga. 731 , 770 S.E.2d 610 (2015).
Instruction requiring jury to consider malice murder, felony murder, and voluntary manslaughter simultaneously. - Defendant failed to establish plain error in the trial court's charge pursuant to O.C.G.A. § 17-8-58 because the trial court clearly instructed the jury that before it was authorized to return a verdict of guilty of malice murder or felony murder, it had to first determine whether mitigating circumstances would cause the offense to be reduced to voluntary manslaughter; the structure of the actual verdict form made it clear that, as to each victim, the jury was required to consider malice murder, felony murder, and voluntary manslaughter simultaneously. Ortiz v. State, 291 Ga. 3 , 727 S.E.2d 103 (2012).
Instruction on when exculpatory matter in defendant's statement cannot be rejected unwarranted. - Trial court did not err when the court declined to give the defendant's requested charge as to when a jury could not reject exculpatory matter in the defendant's statement because anything in the defendant's statement that could support a defense of voluntary manslaughter was contradicted by other evidence that the defendant's attack on the victim was of significant length and involved a number of different deliberate and cruel actions; that the defendant's mind was changed about whether and how to kill the victim; and that the victim sustained numerous injuries. Rodriguez-Nova v. State, 295 Ga. 868 , 763 S.E.2d 698 (2014).
Whether charge warranted is question of law. - It is a question of law for courts to determine whether there is slight evidence that defendant acted as result of sudden, violent and irresistible passion resulting from serious provocation. Henderson v. State, 234 Ga. 827 , 218 S.E.2d 612 (1975).
Absent evidence of requisite provocation, it is not error to refuse charge on voluntary manslaughter. Bowen v. State, 241 Ga. 492 , 246 S.E.2d 322 (1978).
Exchange of gunfire. - While being fired upon may be "serious provocation," it does not follow that a charge of voluntary manslaughter will be warranted in every case involving an exchange of gunfire. Worthem v. State, 270 Ga. 469 , 509 S.E.2d 922 (1999).
Instruction that words alone did not constitute sufficient provocation to reduce murder to voluntary manslaughter was not error since there was no evidence to support a finding that the victim had taunted defendant with the victim's extra-marital sexual exploits. Mack v. State, 272 Ga. 415 , 529 S.E.2d 132 (2000).
Trial court's charge that provocation by words alone would not justify manslaughter was not erroneous because it was implicit in the statutory voluntary manslaughter instruction that was given pursuant to the defendant's request; and it was consistent with the defense theory that the defendant was provoked by the conduct of the victim, the defendant's girlfriend, with the customer from the dance club where the victim worked and not the victim's words alone. Rodriguez-Nova v. State, 295 Ga. 868 , 763 S.E.2d 698 (2014).
Nonthreatening words combined with harmless physical contact did not support a charge on voluntary manslaughter. Veal v. State, 250 Ga. 384 , 297 S.E.2d 485 (1982).
Evidence held sufficient to authorize a charge on voluntary manslaughter. - See Dyer v. State, 167 Ga. App. 310 , 306 S.E.2d 313 (1983); Washington v. State, 228 Ga. App. 490 , 491 S.E.2d 925 (1997).
Trial court did not err in giving the state's requested charge on voluntary manslaughter in the defendant's trial, based on the defendant's fatal drive-by shooting into an occupied car, when there was some slight evidence to support such a charge; the fact that a defendant in a murder trial relied on self-defense did not preclude such instructions, and based on the fact that the defendant was goaded by the victim's sibling earlier in the day, as well as shot at by the victim's sibling, giving the instruction fit within the circumstances of the defendant then firing shots in the car as the victim drove by, based on the defendant's alleged belief that the defendant was going to be fired on by the car occupants. Mullins v. State, 270 Ga. App. 271 , 605 S.E.2d 913 (2004).
Voluntary manslaughter instruction was supported by evidence of sufficient provocation as there was evidence that the victim assaulted the defendant, but turned away to leave the scene; after the victim turned away, the defendant shot the victim in the back from two-and-one-half feet away. Nelloms v. State, 273 Ga. App. 448 , 615 S.E.2d 153 (2005).
Trial court erred in failing to instruct the jury on the lesser-included offense of voluntary manslaughter under O.C.G.A. § 16-5-2(a) and in ruling that defendant could not introduce evidence relevant under former O.C.G.A. § 24-2-1 (see now O.C.G.A. § 24-4-401 et seq.) based on the cumulative effect of the victim's alleged molestation of defendant's niece, defendant's discovery thereof, and the victim's taunt. Scott v. State, 291 Ga. 156 , 728 S.E.2d 238 (2012).
Trial court erred when the court failed to give a requested charge on voluntary manslaughter as there was evidence the defendant acted out of irresistible passion when the defendant came upon the wife and paramour and stabbed the paramour while yelling "This is what you get for f***ing somebody's wife," after they had been married for 15 years, and the fact that the crime occurred at the wife's mother's house was of no consequence as there was no territorial restrictions under O.C.G.A. § 16-5-2(a) . Clough v. State, 298 Ga. 594 , 783 S.E.2d 637 (2016).
Trial court erred in failing to merge both defendants' convictions for voluntary manslaughter and aggravated assault with a deadly weapon because the indictments charged the defendants with felony murder by alleging that the defendants committed aggravated assault, but the court then charged the defendants with aggravated assault based on the exact same conduct; and, although the jury convicted the defendants of voluntary manslaughter as a lesser-included offense of felony murder, it, nevertheless, followed that the defendants' convictions for aggravated assault merged as a matter of fact into the defendants convictions for voluntary manslaughter. Hamlette v. State (two cases), 353 Ga. App. 640 , 839 S.E.2d 161 (2020).
Trial court did not plainly err by instructing the jury on voluntary manslaughter as a lesser-included offense of felony murder because such instruction was applicable to both defendants as the state presented evidence that immediately following a fight, in which both defendants were involved and in which the victim cut the second defendant, both defendants fired handguns at the victim. Hamlette v. State (two cases), 353 Ga. App. 640 , 839 S.E.2d 161 (2020).
Failure to instruct on voluntary manslaughter not error. - See Kitchens v. State, 251 Ga. 36 , 302 S.E.2d 569 (1983); Elliott v. State, 253 Ga. 417 , 320 S.E.2d 361 (1984).
Where there was no evidence beyond, perhaps, mere words, of provocation or of a mutual intent to fight, as a matter of law these facts did not present the necessary evidence of sufficient provocation to excite the passions of a reasonable person which would have entitled the defendant to a charge on voluntary manslaughter. Pace v. State, 258 Ga. 225 , 367 S.E.2d 827 (1988).
Voluntary manslaughter charge is not warranted when the only alleged evidence of provocation is the victim resisting an armed robbery. Nance v. State, 272 Ga. 217 , 526 S.E.2d 560 , cert. denied, 531 U.S. 950, 121 S. Ct. 353 , 148 L. Ed. 2 d 284 (2000); Chapman v. State, 275 Ga. 314 , 565 S.E.2d 442 (2002), overruled on other grounds, Worthen v. State, 304 Ga. 862 , 823 S.E.2d 291 (2019).
Court in a murder prosecution did not err in refusing to charge voluntary manslaughter since there was no evidence of provocation or passion since the defendant did not testify that the defendant was angry when the defendant shot the victim but that the defendant was trying to calm the victim down by demonstrating that the defendant's gun would not fire, that the defendant pointed the gun at the windshield and pulled the trigger, thinking the gun would not fire until the trigger was pulled a second time, and that the victim jerked the defendant's hand toward the victim as the gun fired. Alexis v. State, 273 Ga. 423 , 541 S.E.2d 636 (2001).
Trial court did not err by failing to give a jury charge on voluntary manslaughter as the evidence showed that the defendant initiated the conflict by aggressively assaulting the victims with deadly force, and that one victim only threw a radio at the defendant in an effort to protect the victim's nephew from threatened deadly harm. Johnson v. State, 275 Ga. 630 , 570 S.E.2d 309 (2002).
Trial court did not err in refusing to charge the jury on voluntary manslaughter in a case in which the defendant was dating someone who decided to end their relationship and date someone else, the murder victim, as the defendant did not show that the murder victim seriously provoked the defendant and that the defendant reacted passionately when the murder victim tried to escort the defendant from the apartment after the defendant went there after the breakup, and the defendant suddenly stabbed the murder victim to death. Daniels v. State, 276 Ga. 632 , 580 S.E.2d 221 (2003).
When, in a murder prosecution, the trial court did not charge the jury on voluntary manslaughter, this was not error because there was no evidence to show that the defendant acted solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. Morgan v. State, 279 Ga. 6 , 608 S.E.2d 619 (2005).
In a murder prosecution, a defendant was not entitled to an instruction on voluntary manslaughter because testimony that the defendant shot the victim because the defendant panicked and was frightened showed, at best, that the defendant was attempting to repel an attack, not that there was sufficient anger to invoke passion. Bell v. State, 280 Ga. 562 , 629 S.E.2d 213 (2006).
In a murder prosecution, a jury charge on voluntary manslaughter, as a lesser-included offense, was unwarranted, as the evidence showed that the defendant had the chance to walk away from a heated argument with the victim, but instead calmly retrieved a knife, concealed it, and deliberately re-initiated the argument before plunging the knife into the victim's abdomen. Ballard v. State, 281 Ga. 232 , 637 S.E.2d 401 (2006).
Trial court did not err by failing to give a defendant's requested jury instruction on voluntary manslaughter, and by rejecting the defendant's claim that the jury could have inferred that the defendant "snapped" emotionally and killed the victim in the heat of passion; the defendant testified that the shooting was an accident. Thomason v. State, 281 Ga. 429 , 637 S.E.2d 639 (2006).
Trial court's refusal to charge the jury on voluntary manslaughter as a lesser included offense of murder was not erroneous when evidence of a sudden, violent, and irresistible passion resulting from serious provocation was lacking. Walker v. State, 281 Ga. 521 , 640 S.E.2d 274 (2007).
Since there existed no evidence that, at the time the fatal shots were fired into a victim, the defendant was acting with the sort of anger or passion which would support the requested charge on the lesser included offense of voluntary manslaughter to malice murder, the trial court did not err when the court denied the defendant's request for the charge on the lesser included offense. Hunter v. State, 281 Ga. 693 , 642 S.E.2d 668 (2007).
Since the state's evidence did not show a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person, and since the defendant's evidence that the defendant was not present when the victim was killed did not show a killing arising from such passion, a trial court did not err in refusing to give a requested charge on the offense of voluntary manslaughter. Culmer v. State, 282 Ga. 330 , 647 S.E.2d 30 (2007).
In a murder prosecution, the trial court properly refused to give jury instructions on voluntary manslaughter, involuntary manslaughter, pointing a pistol at another, and accident as no evidence of provocation was presented and the evidence showed that the victim was killed during the defendant's effort to rob the victim at gunpoint. Roberts v. State, 282 Ga. 548 , 651 S.E.2d 689 (2007).
In a murder trial, the trial court did not err in not giving an instruction on voluntary manslaughter; the state's evidence did not warrant such a charge, and the defendant's testimony that the defendant shot the victim in self-defense at best showed that the defendant was attempting to repel an attack, not that the defendant reacted passionately. Jackson v. State, 282 Ga. 494 , 651 S.E.2d 702 (2007).
With regard to a defendant's conviction for felony murder arising out of the stabbing death of the love interest of the defendant's spouse, the trial court properly refused the defendant's request for a jury instruction on adulterous conduct as provocation for voluntary manslaughter because the evidence in the case did not warrant the instruction in as much as there was no evidence that the defendant acted solely as the result of a serious provocation, adultery, or otherwise, that excited the defendant in a sudden, violent, and irresistible passion, so as to authorize a finding of voluntary manslaughter. In fact, the defendant testified that the defendant was angry with the victim because the victim owed the defendant money and that the defendant went to see the victim in order to reach an agreement about the money. Velazquez v. State, 282 Ga. 871 , 655 S.E.2d 806 (2008).
In a malice murder prosecution, as the evidence did not show the defendant was provoked seriously enough to cause a reasonable person to fatally stab the victim, the defendant was not entitled to a voluntary manslaughter instruction under O.C.G.A. § 16-5-2(a) . Boyd v. State, 284 Ga. 46 , 663 S.E.2d 218 (2008).
In defendant's prosecution for malice murder, the defendant was not entitled to a jury instruction on voluntary manslaughter as no sudden, violent, and irresistible passion under O.C.G.A. § 16-5-2(a) was shown because the divorce from the defendant's spouse, who was the victim, had been pending for over a year and the murder was the result of a carefully planned hit. Sullivan v. State, 284 Ga. 358 , 667 S.E.2d 32 (2008).
Evidence was insufficient to establish a reasonable probability that the jury would have found defendant guilty of voluntary manslaughter and thus trial counsel was not ineffective in requesting this instruction since the evidence demonstrated that the victim and defendant were in rival gangs; that the victim and others drove into an apartment complex to pick up a friend; that an occupant in the victim's vehicle poked a gun out of a window; and that defendant and the defendant's codefendant shot at the vehicle, killing the victim and wounding others. Hung v. State, 284 Ga. 796 , 671 S.E.2d 811 (2009).
Trial court did not err in refusing to give a jury instruction on voluntary manslaughter in the defendant's criminal trial on a charge of, inter alia, malice murder as the evidence did not reflect that the defendant's use of a gun to fatally shoot the victim amounted to reckless conduct or another misdemeanor. Jones v. State, 285 Ga. 328 , 676 S.E.2d 225 (2009).
Trial court did not err by refusing to give the defendant's request for a jury instruction on voluntary manslaughter because the record failed to reveal any evidence that would support a voluntary manslaughter charge; the evidence and testimony at trial revealed that although a gun was in the victim's car at the time of the murder, the victim did not say or do anything before the defendant shot the victim, let alone do anything that would constitute the "serious provocation" necessary to warrant a charge on voluntary manslaughter. Lawrence v. State, 286 Ga. 533 , 690 S.E.2d 801 (2010).
Trial court did not err in refusing to instruct the jury on voluntary manslaughter as a lesser included crime of malice murder because a charge on voluntary manslaughter was precluded by the evidence when there was no evidence to illustrate the existence of provocation before the fatal shots were fired; the defendant assaulted the victim with a deadly weapon and then fired the fatal shots into the victim's back, and there was no evidence that the defendant had any type of relationship with the friend who was arguing with the victim that would explain an impassioned attack. Hicks v. State, 287 Ga. 260 , 695 S.E.2d 195 (2010), overruled on other grounds by McClure v. State, 306 Ga. 856 , 834 S.E.2d 96 (2019).
Trial court did not err in ruling that because the court was instructing the jury on self-defense, the court would not give the defendant's requested charge on voluntary manslaughter since any evidence showing that the defendant was fearful that the victim or the defendant's friend had a gun and was about to draw the gun without more, did not show the serious provocation and the sudden, violent, and irresistible passion required to warrant an instruction on voluntary manslaughter. White v. State, 287 Ga. 208 , 695 S.E.2d 222 (2010).
Trial court did not err in refusing to charge a jury on voluntary manslaughter as a lesser included offense of malice murder because, as a matter of law, the defendant's former girlfriend's statement that she was out with another man was not sufficient to excite sudden, violent, and irresistible passion in a reasonable person pursuant to O.C.G.A. § 16-5-2 . Foster v. State, 288 Ga. 98 , 701 S.E.2d 189 (2010).
Trial court did not err by failing to give the defendant's requested charges on voluntary manslaughter because there was not even slight evidence of the passion or provocation needed to authorize a charge on voluntary manslaughter since the victim was not intoxicated, and the victim's behavior was not belligerent or provocative; the victim was shot from a considerable distance as the victim was peacefully leaving a party. Allen v. State, 288 Ga. 263 , 702 S.E.2d 869 (2010).
After the defendant killed the male victim during an altercation but then killed the male victim's female companion without provocation, the trial court did not err in refusing to instruct the jury on the lesser offense of voluntary manslaughter regarding the murder of the female victim because there was no showing that the female victim was involved in the argument or the struggle between the male combatants; thus, the second murder could not be said to have resulted from a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite passion in a reasonable person. Bryant v. State, 288 Ga. 876 , 708 S.E.2d 362 (2011).
Failure to instruct on voluntary manslaughter of officer not error. - When the defendant was convicted of felony murder and other crimes in connection with the shooting death of the victim, the trial court erred in denying the defendant's request to charge the jury on voluntary manslaughter as the evidence was insufficient to warrant a charge on voluntary manslaughter because the defendant testified that, when the defendant heard the gunshots, the defendant fired the shots like a warning, and that, after hearing gunshots, the defendant removed the defendant's gun and fired two shots in the air; and, at best, that evidence showed that the defendant was attempting to repel an attack, not that the defendant was so angered that the defendant reacted passionately. Williams v. State, 306 Ga. 717 , 832 S.E.2d 805 (2019).
When the evidence showed that after the deputies called out the defendant's name, the defendant stood up from a chair and immediately shot and killed a deputy and there was no evidence that the defendant knew the deputies, that they struggled or exchanged words, or that the deputies did anything to provoke the defendant, the evidence did not support an inference that the defendant was acting passionately in response to a serious provocation and, thus, the trial court did not err in refusing to charge on voluntary manslaughter. Calmer v. State, Ga. , 846 S.E.2d 40 (2020).
In an action for malice murder and a possession of a firearm during a felony, even if the defendant reacted as a result of a sudden and violent passion, any error in failing to give a voluntary manslaughter charge was harmless because there was substantial evidence of the defendant's guilt, and it was highly probable that a jury instructed on voluntary manslaughter nonetheless would have rejected such a claim in the light of the trial evidence other than the defendant's self-serving story. Heyward v. State, 308 Ga. 570 , 842 S.E.2d 293 (2020).
Trial court did not err in denying the defendant's request for a jury instruction on voluntary manslaughter because the only evidence that the defendant cited to support such a charge was that the defendant became very angry when the victim called the defendant a name and there was no evidence whatsoever of provocation sufficient to excite the passions of a reasonable person that would have entitled the defendant to a charge on voluntary manslaughter. Hudson v. State, 308 Ga. 443 , 841 S.E.2d 696 (2020).
Voluntary manslaughter instruction rejected when committed during assault of female. - In defendant's trial on charges of malice murder, three counts of aggravated battery, aggravated sodomy, kidnapping with bodily injury, and aggravated assault after the defendant grabbed a woman who was riding a bike, dragged her to a concealed area, and sexually assaulted, beat, and killed her, the trial court did not err in refusing to instruct the jury on voluntary manslaughter as a lesser-included offense of malice murder because there was not even slight evidence to suggest that the victim was killed for any reason other than she bit defendant's penis after he forced it into her mouth in an attempt to commit aggravated sodomy against her, facts that could not form the basis of a charge on voluntary manslaughter. Ledford v. State, 289 Ga. 70 , 709 S.E.2d 239 , cert. denied, 565 U.S. 1017, 132 S. Ct. 556 , 181 L. Ed. 2 d 401 (2011), overruled on other grounds by Willis v. State, 394 Ga. 686 , 820 S.E.2d 640 (2018).
Voluntary manslaughter charge rejected in absence of romantic relationship. - During the defendant's trial for murder, the trial court did not err by refusing the defendant's request to charge the jury on voluntary manslaughter because in the absence of any evidence of a romantic relationship between the defendant and the teenaged victim, there could be no serious provocation created by the victim's call to her ex-boyfriend that could have aroused passion in a reasonable person pursuant to O.C.G.A. § 16-5-2(a) . Crawford v. State, 288 Ga. 425 , 704 S.E.2d 772 (2011).
Trial court did not err in failing to give the codefendant's requested charge on voluntary manslaughter because the threat against the defendant did not rise to the level of a serious provocation of the codefendant sufficient to excite sudden, violent, and irresistible passion in a reasonable person that would require a charge on voluntary manslaughter; although more than mere words were used against the defendant, the codefendant was not present during the alleged provocation, but instead, the evidence showed, at most, that the incident was subsequently communicated to the codefendant and, thus, objectively, the codefendant's response to the provoking incident was unreasonable. Howard v. State, 288 Ga. 741 , 707 S.E.2d 80 (2011).
Voluntary manslaughter instruction rejected when defendant claimed to "snap". - Trial court did not err in refusing to give a voluntary manslaughter charge because the evidence was insufficient to show that the defendant acted solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person pursuant to O.C.G.A. § 16-5-2(a) ; the defendant testified that the defendant and the victim were having an argument about money, the defendant was getting agitated and angry, the victim stated "remember what happened to your ass the last time and I will do it again," and the defendant snapped. Gresham v. State, 289 Ga. 103 , 709 S.E.2d 780 (2011).
Absence of "serious provocation" meant no voluntary manslaughter charge. - Trial court did not err by refusing to charge the jury on voluntary manslaughter because the defendant's testimony that the defendant was not upset but fired a gun out of fear, in self-defense, and in defense of the defendant's parent showed that the defendant did not shoot a child in the heat of passion, and the other evidence was not to the contrary; rather, the testimony of the neighbors, who were the child's parents and the only other trial witnesses present during the shooting demonstrated, at most, that the defendant could have opened fire in response to the neighbors' heated or angry statements, which, as a matter of law, could not constitute "serious provocation" within the meaning of O.C.G.A. § 16-5-2(a) . Davidson v. State, 289 Ga. 194 , 709 S.E.2d 814 (2011).
Trial court's failure to instruct a jury on the lesser included offense of voluntary manslaughter was not error since there was no evidence that the defendant acted in response to a sudden, violent passion resulting from serious provocation. The victim's death was either the cold, calculated method by which defendant intended to profit or, at best, the unfortunate result of resisting an armed robbery. McNeal v. State, 289 Ga. 711 , 715 S.E.2d 95 (2011).
Acting out of fear not justification for voluntary manslaughter charge. - During the defendant's murder trial, the trial court did not err by denying the defendant's request to charge on the lesser included offense of voluntary manslaughter, O.C.G.A. § 16-5-2 , since the defendant testified that the defendant fired a pistol because the defendant was "just scared," and acting out of fear was not the same as acting in the heat of a sudden irresistible passion. Funes v. State, 289 Ga. 793 , 716 S.E.2d 183 (2011).
Defendant was not entitled to an instruction on voluntary manslaughter because, while the testimony provided some evidence that the defendant might have acted in self-defense, there was no evidence that the defendant acted passionately. Allen v. State, 290 Ga. 743 , 723 S.E.2d 684 (2012).
Trial court did not give the jury an incomplete charge regarding the lesser included offense of voluntary manslaughter because the instruction did not prevent the jury from fully considering voluntary manslaughter and was adequate to inform the jury that, before the jury could convict defendant of malice or felony murder, the jury had to first consider whether there was sufficient evidence of passion or provocation to support a conviction for voluntary manslaughter. Kendrick v. State, 290 Ga. 873 , 725 S.E.2d 296 (2012).
Habeas court erred in granting a petitioner relief on the ground that the trial court erred when the court refused to instruct the jury on the offense of voluntary manslaughter under O.C.G.A. § 16-5-2(a) when appellate counsel failed to present the question on direct appeal, and neither the petitioner's nor the state's evidence tended to show a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. Humphrey v. Lewis, 291 Ga. 202 , 728 S.E.2d 603 (2012), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
In a case in which the defendant was convicted of felony murder and armed robbery, the trial court did not err by failing to charge the jury on the lesser included offense of voluntary manslaughter when the defendant took the victim's bicycle at gunpoint, and when the defendant saw the victim on the telephone, the defendant began chasing the victim and shot the victim in the throat; this evidence did not show the sudden, violent, and irresistible passion required to warrant an instruction on voluntary manslaughter. Milford v. State, 291 Ga. 347 , 729 S.E.2d 352 (2012).
Evidence did not support a jury instruction on voluntary manslaughter as the evidence showed, at most, that the defendant and the victim, the defendant's wife, argued about the defendant's infidelity and that the defendant choked the victim the next morning. It appeared that a few hours had passed between the argument and the killing. Merritt v. State, 292 Ga. 327 , 737 S.E.2d 673 (2013).
In an action charging the defendant with felony murder, the defendant was not entitled to a jury instruction on voluntary manslaughter and there was no evidence of provocative conduct by the victim sufficient to warrant such an instruction. Brockman v. State, 292 Ga. 707 , 739 S.E.2d 332 (2013).
Trial court did not err in refusing to instruct the jury on voluntary manslaughter as a lesser included offense of malice murder because there was no serious provocation that would have elicited a violent and irresistible passion in a reasonable person. Campbell v. State, 292 Ga. 766 , 740 S.E.2d 115 (2013).
Defendant was not entitled to a jury instruction on voluntary manslaughter as there was no evidence of irresistible passion of provocation or any factual basis to support a finding of voluntary manslaughter given that the defendant shot into an unsuspecting crowd of strangers. Foster v. State, 294 Ga. 383 , 754 S.E.2d 33 (2014).
Trial court's failure to give a jury instruction on voluntary manslaughter was not error, because the mere fact that the defendant and the victim argued before the defendant left the house, retrieved an axe, and began the attack did not support such an instruction, and there was no evidence that the victim had recently engaged in sexual relations with the victim's out-of-state spouse or taunted the defendant with such conduct. Brown v. State, 294 Ga. 677 , 755 S.E.2d 699 (2014).
Evidence did not support a jury instruction on involuntary manslaughter as there was no evidence that the defendant killed the victim as a result of a sudden, violent, and irresistible passion or that the victims provoked the defendant, who shot unarmed victims from behind and chased the victims as the victims tried to flee. Moore v. State, 295 Ga. 709 , 763 S.E.2d 670 (2014).
In defendant's trial for the murder of the defendant's estranged spouse and housemate, the trial court properly declined to instruct the jury on voluntary manslaughter because, although the defendant and the spouse had ongoing difficulties, there was no evidence of any specific provocation at the time of the murders to generate a sudden and irresistible passion. Russell v. State, 295 Ga. 899 , 764 S.E.2d 812 (2014).
Trial court's failure to charge on voluntary manslaughter was not plain error because there was no evidence that the other gang members had guns or shot at the appellant and the only shell casings at the scene were found where appellant was seen firing a gun, plus, even if words were exchanged prior to the event, as a matter of law, angry statements alone ordinarily did not amount to serious provocation within the meaning of a voluntary manslaughter charge. Jones v. State, 296 Ga. 663 , 769 S.E.2d 901 (2015), overruled in part by Veal v. State, 298 Ga. 691 , 784 S.E.2d 403 (2016).
In a felony murder conviction, the trial court did not err in refusing to instruct the jury on the lesser charge of voluntary manslaughter because no plain error existed as the evidence showed that the defendant had substantial time to cool down after the defendant learned that the victim was not going to procure the cigarettes for the defendant and before the defendant intentionally sought out the victim because the fact that the defendant discussed the matter with a cellmate, procured the shank, and then later went in search of the victim was evidence that the defendant acted in a rational and calculated fashion rather than solely as a result of a sudden, violent, and irresistible passion. Barron v. State, 297 Ga. 706 , 777 S.E.2d 435 (2015).
There was no evidence to support a voluntary manslaughter charge because the defendant's antagonistic relationship with the victim, the family's financial problems, and the victim's laughter when the defendant arrived home on the evening of the shooting were not the sorts of provocations that were sufficiently serious to provoke a sudden, violent, and irresistible passion that would compel a reasonable person to kill; and the defendant's anger was not triggered by an immediate argument and instead of just pulling out a gun and shooting, the defendant had to go to the defendant's bedroom to get a gun, unlock the hammer, load the gun, return with the gun to the living room, and shoot the unarmed, television-watching victim in the back of head. Johnson v. State, 297 Ga. 839 , 778 S.E.2d 769 (2015).
Defendant was convicted of malice murder in connection with the fatal shooting of the defendant's spouse; the trial court did not err when the court refused to charge the jury on voluntary manslaughter because, although the defendant pointed to some proof of potential provocation, the defendant's case presented not even a pretense of passion, much less that the defendant acted solely as the result of a passion that was sudden and irresistible. Harris v. State, 299 Ga. 642 , 791 S.E.2d 32 (2016).
Trial court did not err in refusing the defendant's request to charge the jury on voluntary manslaughter as a lesser included offense of murder, because there was no evidence presented that the defendant shot the victim due to an irresistible passion. Wright v. State, 300 Ga. 185 , 794 S.E.2d 105 (2016).
When the defendant was convicted of the murder of the defendant's sister, the victim, the defendant's request to instruct the jury on the lesser included offense of voluntary manslaughter was properly denied because the defendant's testimony did not provide evidence that the defendant stabbed the victim due to a sudden, irresistible passion as the defendant stated repeatedly that the defendant stabbed the victim because the defendant believed that the victim had stolen the defendant's Social Security check; about an hour before the murder, the defendant stated the defendant's intention to kill the victim; and the defendant testified that the defendant was not angry with the victim when the defendant confronted the victim. Jackson v. State, 301 Ga. 878 , 804 S.E.2d 357 (2017).
Trial court did not commit plain error by limiting the jury's consideration of voluntary manslaughter such that the jury could find it a lesser-included offense of only malice murder, and not felony murder, as a voluntary manslaughter instruction was not warranted at all because, although the defendant was distraught and angry on the night of the shooting for various reasons, including the death of the defendant's ex-wife and the defendant's argument with the ex-girlfriend, the victim's angry statements alone did not amount to serious provocation; and the defendant's acting out of fear of bodily harm from the victim was not the same as acting in the heat of passion, and only evidence of the latter supported a voluntary manslaughter conviction. Burke v. State, 302 Ga. 786 , 809 S.E.2d 765 (2018), cert. denied, 139 S. Ct. 294 , 2018 U.S. LEXIS 4842, 202 L. Ed. 2 d 194 (U.S. 2018).
No jury charge on voluntary manslaughter was required as there was no evidence of sufficient provocation to excite the passions of a reasonable person because the victim's statements that the victim was in love with someone else and that the victim did not love the defendant any more were not sufficiently provocative to excite sudden, violent, and irresistible passion necessary for voluntary manslaughter as the statements did not disclose adulterous, sexual conduct; and there was no evidence that the victim taunted the defendant with, bragged about, or even recounted to the defendant any sexual relations with another man. Ware v. State, 303 Ga. 847 , 815 S.E.2d 837 (2018).
When the defendant allegedly rejected a plea offer on voluntary manslaughter based on counsel's alleged advice to the defendant that the trial court would definitely charge the jury on voluntary manslaughter, counsel was not ineffective because, even if an instruction on voluntary manslaughter had been given at trial as counsel requested, there was no guarantee and no allegation that counsel promised that the jury would return a verdict on the lesser included offense; and the defendant failed to show there was a reasonable probability that the defendant would have accepted the plea offer but for counsel's advice. Johnson v. State, 305 Ga. 475 , 826 S.E.2d 89 (2019).
Trial court need not charge on involuntary manslaughter in course of lawful act, where the defense is based upon self-defense, which is fully charged to the jury. King v. State, 177 Ga. App. 788 , 341 S.E.2d 307 (1986).
Instruction on involuntary manslaughter unwarranted. - In a trial for voluntary manslaughter, aggravated assault, and battery, it was not error to refuse to charge on the lesser included offense of involuntary manslaughter under O.C.G.A. § 16-5-3(a) . Such a charge required an unlawful act that was not a felony, and the only such act supported by the evidence was the striking of the victim with a gun, which constituted the felony of aggravated assault under O.C.G.A. § 16-5-21 . Moon v. State, 291 Ga. App. 499 , 662 S.E.2d 283 (2008).
Trial court did not err by refusing to charge the jury on involuntary manslaughter, O.C.G.A. § 16-5-3 , because a charge on involuntary manslaughter was not generally allowed when the defendant alleged self-defense as the defendant did regarding the shots the defendant fired at the victim after the first shot, and under the facts, the defense of accident as to the first shot did not require such a charge; a charge on involuntary manslaughter in the commission of an unlawful act other than a felony was not required, given that the evidence relied upon by the defendant established either that the pistol discharged accidentally when the victim wrestled for the pistol's control or that the defendant intentionally fired the weapon. Davis v. State, 309 Ga. App. 831 , 711 S.E.2d 324 (2011).
At defendant's trial for the murder of the defendant's spouse, an instruction on voluntary manslaughter was not required because words alone generally were not sufficient provocation, and several hours had passed between the spouse's confrontation and the shooting. Francis v. State, 296 Ga. 190 , 766 S.E.2d 52 (2014).
Instruction on voluntary manslaughter unwarranted. - Defendant, convicted of felony murder in the beating death of defendant's girlfriend's 17-month-old daughter, was not entitled to a jury charge on voluntary manslaughter under O.C.G.A. § 16-5-2(a) because the defendant denied inflicting any injury on the child, much less the fatal harm. Bowie v. State, 286 Ga. 880 , 692 S.E.2d 371 (2010).
Evidence did not support a charge on voluntary manslaughter as the defendant was admittedly upset after the defendant's dog died in the victim's care, but rather than acting on the news suddenly, the defendant sat around for a day drinking and making threats and, thus, the shooting was more akin to an act of revenge than an act of sudden, violent, and irresistible passion. Brett v. State, 294 Ga. 30 , 751 S.E.2d 59 (2013).
Trial court did not commit plain error by failing to sua sponte charge the jury on voluntary manslaughter because the defendant testified adamantly that the defendant shot the victim in self-defense; and there was no evidence that the defendant acted solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation. Martin v. State, 306 Ga. 538 , 832 S.E.2d 402 (2019).
When killing is either murder or justifiable homicide, voluntary manslaughter should not be charged. McDaniel v. State, 209 Ga. 827 , 76 S.E.2d 500 (1953).
When evidence of state would demand finding that homicide constituted murder, and evidence of defendant would demand finding that it constituted justifiable homicide, it is error for trial court to charge on subject of voluntary manslaughter. Landers v. State, 87 Ga. App. 446 , 74 S.E.2d 383 (1953).
Trial court properly granted the state's requested charge on revenge for a past wrong based on the contention that defendant was motivated to shoot the victim as a result of the earlier altercations with the victim, and that such a shooting would lack justification and constitute murder; no harm resulted from the charge since the jury found defendant guilty of the lesser included offense of voluntary manslaughter, not murder. Gonzales v. State, 261 Ga. App. 366 , 582 S.E.2d 524 (2003).
Justifiable homicide need not be charged in immediate connection with voluntary manslaughter. - When law of voluntary manslaughter and law of justifiable homicide is involved, and instructions are given as to these legal rules, it is not error to fail to charge law of justifiable homicide in immediate connection with charge on general law of voluntary manslaughter. Fann v. State, 195 Ga. 368 , 23 S.E.2d 399 (1942).
Failure to charge jury on justification and duty to retreat. - Defendant's convictions for voluntary manslaughter, aggravated assault, and two related counts of possession of a firearm in the commission of a crime required reversal because the trial court erred by not charging the jury on the principle of no duty to retreat since the defense of justification was raised by the evidence, via defendant's testimony that the victim tried to stab defendant, and the state placed the issue of retreat before the jury. As a result of defendant making out a prima facie case of justification, the trial court erred by concluding otherwise. Lewis v. State, 292 Ga. App. 257 , 663 S.E.2d 721 (2008), cert. denied, No. S08C1869, 2008 Ga. LEXIS 885 (Ga. 2008).
Cooling off period. - In defendant's trial for felony murder in relation to the stabbing death of the victim during an altercation, the trial court adequately instructed the jury on "cooling time" in connection with its charge on voluntary manslaughter where it instructed the jury that the killing could be attributed to murder if there was an interval between the provocation and the killing "sufficient for the voice of reason and humanity to be heard"; the trial court was not required to charge the precise language of defendant's request as long as the charge that was given adequately covered the legal principle in question. Salyers v. State, 276 Ga. 568 , 580 S.E.2d 240 (2003).
Conviction of voluntary manslaughter constitutes acquittal of murder. - When one is charged with murder, in which malice must exist express or implied, but is convicted of voluntary manslaughter, in which malice is not an element, an erroneous charge on the question of malice is prima facie harmless to the accused and a new trial will not be granted therefor unless it is plainly shown that the erroneous charge wrongfully led to or influenced the verdict rendered. Jones v. State, 52 Ga. App. 83 , 182 S.E. 527 (1935).
Refusal to charge upon principle of law which is solely applicable to crime of murder cannot be ground for reversing judgment where conviction is of voluntary manslaughter, which is tantamount to an acquittal of charge of murder. Goldsmith v. State, 54 Ga. App. 268 , 187 S.E. 694 (1936).
Having been indicted for murder and convicted of voluntary manslaughter, verdict was an acquittal of charge of murder and defendant cannot complain of alleged errors in court's instructions upon law of murder. Cook v. State, 56 Ga. App. 375 , 192 S.E. 631 (1937).
Lack of proper jury instruction resulted in improper conviction. - When the original indictment charged the defendant with murder and with possessing a firearm during the commission of that murder, but the jury found defendant guilty of the lesser included offense of voluntary manslaughter, defendant was improperly convicted of possession of a firearm during the commission of a crime, as there was no instruction identifying voluntary manslaughter as a felony. Prather v. State, 259 Ga. App. 441 , 576 S.E.2d 904 (2003).
It is not error to charge entire section even though part of the section may be inapplicable. Morrison v. State, 147 Ga. App. 410 , 249 S.E.2d 131 (1978).
Evidence of good character alone does not require charge on voluntary manslaughter in murder case, although good character may of itself constitute a defense in behalf of an accused so as to generate reasonable doubt of guilt. Swett v. State, 242 Ga. 228 , 248 S.E.2d 629 (1978).
Unwarranted charge on manslaughter not ground for new trial unless evidence authorizes acquittal. Linder v. State, 132 Ga. App. 624 , 208 S.E.2d 630 (1974), overruled on other grounds, Woodard v. State, 234 Ga. 901 , 218 S.E.2d 629 (1975).
New trial cannot be for offense greater than convicted offense. - If, in trial for murder, evidence does not involve voluntary manslaughter, but trial judge instructs on voluntary manslaughter and jury convicts on voluntary manslaughter, it is not cause for new trial if evidence demanded verdict of murder. If there is evidence, however, which would authorize acquittal, defendant is entitled to a new trial but only for offense of degree or lesser than that for which defendant stands convicted. Varnum v. State, 125 Ga. App. 57 , 186 S.E.2d 485 (1971).
Voluntary manslaughter instruction unwarranted. - When there is no evidence of appellant being in heat of passion, and there is evidence of self-defense which would authorize acquittal, it is reversible error to instruct jury in murder trial on law of voluntary manslaughter. Parham v. State, 135 Ga. App. 315 , 217 S.E.2d 493 (1975).
Defendant was not entitled to a jury instruction on voluntary manslaughter as the defendant was not entitled to the jury's consideration of a voluntary manslaughter verdict at all because there was no evidence that the victim ever engaged in or recounted to the defendant any sexual conduct with others, and the victim's statement that the victim wanted to end the victim's relationship with the defendant was insufficient provocation to support a voluntary manslaughter charge. Rigsby v. State, 306 Ga. 38 , 829 S.E.2d 93 (2019).
Jury instruction on voluntary manslaughter was inappropriate as the defendant was not entitled to the jury's consideration of a voluntary manslaughter verdict at all because, even accepting the defendant's dubious assertion that slight evidence indicated that the victim attempted suicide, and even assuming that witnessing someone's suicide attempt could - under some exceptional circumstances - provoke a reasonable person to kill the victim (rather than render the victim aid), there was no evidence that the circumstances in the defendant's case would have provoked a reasonable person to kill the victim. Rigsby v. State, 306 Ga. 38 , 829 S.E.2d 93 (2019).
Voluntary manslaughter charge not erroneous. - Trial court did not err in charging the jury that words alone were insufficient provocation to support a verdict of voluntary manslaughter and that the jury had to find that words were accompanied by menaces in order to sustain a manslaughter verdict because there was no evidence that the victim recounted, taunted, or bragged about sexual involvement with other men; therefore, the circumstances regarding the victim's alleged adulterous conduct did not suffice to replace the requirement of menaces. Davis v. State, 290 Ga. 421 , 721 S.E.2d 886 (2012).
Instruction allowed consideration of voluntary manslaughter. - Trial court did not plainly err by instructing the jury because, per the instructions, the jury could not find defendant guilty of murder without considering evidence of provocation or passion which might authorize a verdict of voluntary manslaughter. Aeger v. State, Ga. App. , S.E.2d (Sept. 11, 2020).
Court should charge regarding both murder and voluntary manslaughter where doubt exists. - On trial of murder case, if there is any evidence, however slight as to whether offense is murder or voluntary manslaughter, instruction as to law of both offenses should be given to jury. Henderson v. State, 234 Ga. 827 , 218 S.E.2d 612 (1975); Birdsong v. State, 140 Ga. App. 719 , 231 S.E.2d 813 (1976); Cochran v. State, 146 Ga. App. 414 , 246 S.E.2d 431 (1978); Swett v. State, 242 Ga. 228 , 248 S.E.2d 629 (1978); Powell v. State, 154 Ga. App. 674 , 270 S.E.2d 6 (1980); Raines v. State, 247 Ga. 504 , 277 S.E.2d 47 (1981); Tew v. State, 179 Ga. App. 369 , 346 S.E.2d 833 (1986); Coleman v. State, 256 Ga. 306 , 348 S.E.2d 632 (1986); Wright v. State, 182 Ga. App. 570 , 356 S.E.2d 531 (1987).
Charging both murder and manslaughter. - Since the defendant was convicted of voluntary manslaughter, error in charge of an essential element of murder was harmless. Reid v. Green, 549 F. Supp. 418 (N.D. Ga. 1982).
Jury was properly charged that the jury could not find the defendant guilty of felony murder if the jury concluded the underlying felony of aggravated assault was the result of passion and provocation, but it would be authorized to find the defendant guilty of voluntary manslaughter. Williams v. State, 279 Ga. 154 , 611 S.E.2d 19 (2005).
Charging that provocation by words alone will not excuse a person from the crime of murder did not confuse jury and was not improper, since the crime of murder is by statute part of the explanation of what constitutes voluntary manslaughter, where the court clearly explained that defendant was not charged with murder and gave a separate instruction on self-defense. Syms v. State, 175 Ga. App. 179 , 332 S.E.2d 689 (1985).
Charging that homicidal act was "uncivilized" and constituted "murder." - Jury charge on murder which incorporated language of a judicial decision to the effect that killing to prevent adultery "is uncivilized - this is murder" would have been harmful error only had jury been led thereby to believe that adultery could not be a factor in reducing the offense to voluntary manslaughter, which was the eventual verdict. Gibbs v. State, 174 Ga. App. 19 , 329 S.E.2d 224 (1985).
Charge on physical disparity of defendant and victim properly refused. - Trial court did not err in refusing to charge, as requested, on the physical disparity between the victim and the defendant as physical disparity would not generally be relevant when a defendant relies upon a defense of accident, and when self-defense was not placed in issue. Tew v. State, 179 Ga. App. 369 , 346 S.E.2d 833 (1986).
Battered person syndrome. - Because evidence established that defendant suffered from battered person syndrome, she was entitled to a requested instruction to explain to the jury the relevancy of such evidence as it related to the reasonableness of her belief that the use of deadly force was immediately necessary to defend herself against her husband's imminent use of unlawful force, and failure to give the instruction was reversible error. Smith v. State, 268 Ga. 196 , 486 S.E.2d 819 (1997), reversing Smith v. State, 222 Ga. App. 412 , 474 S.E.2d 291 (1996).
Erroneous charge on murder is harmless where jury does not find murder. - Even if it was error to explain "murder" for jury's better understanding when defendant was indicted only for voluntary manslaughter, it was harmless, since jury did not find murder. McMillan v. State, 157 Ga. App. 694 , 278 S.E.2d 478 (1981).
Instructions as to malice murder and felony murder. - It is permissible for the court to instruct the jury that it might consider voluntary manslaughter if it did not believe that the defendant was guilty of malice murder and if it did not believe that defendant was guilty of felony murder. This is not a "sequential" charge of the type disallowed by the holding in Edge v. State, 261 Ga. 865 , 414 S.E.2d 463 (1992). Shaw v. State, 263 Ga. 88 , 428 S.E.2d 566 (1993).
In a prosecution for malice murder, felony murder, and aggravated assault, although no error resulted from the trial court's issuance of a sequential jury charge, because the jury found in the defendant's favor on the defense of justification as to the malice murder count, the finding also applied to the felony murder charge. Thus, the trial court erred in finding the defendant guilty of both felony murder and the underlying felony of aggravated assault. Turner v. State, 283 Ga. 17 , 655 S.E.2d 589 (2008).
Trial court did not plainly err as the trial court was not required to charge the jury on the lesser included offense of voluntary manslaughter after each count of felony murder because, in the defendant's case, there was no evidence of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. Dent v. State, 303 Ga. 110 , 810 S.E.2d 527 (2018).
Defendant could not challenge murder conviction where jury charge also included voluntary manslaughter. - When the defendant requested a charge on voluntary manslaughter and when any rational trier of fact could have found the defendant guilty of murder beyond a reasonable doubt, the defendant could not successfully contend that evidence did not support the defendant's conviction, inasmuch as the defendant affirmatively offered the alternative theory of voluntary manslaughter to the jury. Speights v. State, 163 Ga. App. 738 , 294 S.E.2d 650 (1982).
Spouse's confession of adultery is insufficient to authorize charge on voluntary manslaughter. - When the wife had been suspected by her husband of infidelity, and stated to him she had been guilty of adultery, and expressed an intention to see her paramour again, and if thereupon her husband seized a gun and killed her, such facts are not sufficient to authorize submission to jury of theory of voluntary manslaughter, though charge on that subject was requested. Humphreys v. State, 175 Ga. 705 , 165 S.E. 733 (1932).
Commission of homicide to prevent nonfelonious assault upon self. - Facts and circumstances surrounding accused at time of homicide such as would excite fears of a reasonable man that some bodily harm, less than a felony, was imminent and impending, do not establish defense to voluntary manslaughter; but, on contrary, tend to establish fact that offense committed was voluntary manslaughter. Gresham v. State, 70 Ga. App. 80 , 27 S.E.2d 463 (1943).
Harmless error. - Defendant's conviction of voluntary manslaughter in violation of O.C.G.A. § 16-5-2 was proper; although the trial court erred in instructing the jury that it could infer the intent to kill from the use of a deadly weapon, the evidence of malice in the instant case was not weak and it was highly probable that the error the trial judge committed in charging the jury did not contribute to the judgment, and therefore the error was harmless. Shirley v. State, 259 Ga. App. 503 , 578 S.E.2d 163 (2003).
Since the defendant was convicted of malice murder, any error in charging the jury to consider voluntary manslaughter only after finding a reasonable doubt as to the existence of malice murder was harmless. Williams v. State, 279 Ga. 154 , 611 S.E.2d 19 (2005).
Even if the evidence warranted a jury instruction on voluntary manslaughter, any error in failing to give the requested instruction was harmless because, even if the jury had found that the victim's conduct in the shower area was enough to provoke a sudden, violent, and irresistible passion in a reasonable person, the evidence presented, including the defendant's own statements, showed that a significant period of time elapsed between the alleged provocation and the beating. Hatney v. State, 308 Ga. 438 , 841 S.E.2d 702 (2020).
Sequential charge held reversible error. - Because trial court's recharge improperly emphasized malice murder and felony murder, preventing the jury from giving full consideration to voluntary manslaughter, this amounted to reversible error; thus, defendant's felony murder conviction had to be reversed. Lewis v. State, 283 Ga. 191 , 657 S.E.2d 854 (2008).
Application of forcible felony instruction. - On appeal from a conviction for voluntary manslaughter as a lesser-included offense of malice murder, the appeals court found that no error or prejudice resulted from the trial court's denial of the defendant's request for an aggravated battery charge as a forcible felony in support of the defendant's justification claim, and affirmed the trial court's choice to charge on aggravated assault and rape, as the defendant failed to present evidence of any reasonable belief that the use of force was necessary to prevent the commission of an aggravated battery. Wicker v. State, 285 Ga. App. 294 , 645 S.E.2d 712 (2007).
Charge should cover mutual combat where supported by any facts or circumstances. Harris v. State, 184 Ga. 382 , 191 S.E. 439 (1937).
Failure to charge regarding mutual combat where warranted by testimony. - When there is testimony as to facts and circumstances tending to show mutual combat, or mutual intention to fight, the court should charge law of voluntary manslaughter as related to mutual combat. A failure so to charge will require the grant of the new trial. Cotton v. State, 201 Ga. 285 , 39 S.E.2d 530 (1946).
Defendant's claim of error in mutual combat charge was rejected, as the charge redounded to the defendant's advantage as the charge enabled the jury to find a criminal defendant guilty of voluntary manslaughter in lieu of murder. Hall v. State, 273 Ga. App. 203 , 614 S.E.2d 844 (2005).
Charge on mutual combat improper when sole defense was self-defense. - When evidence supports defense that accused shot in self-defense, under fears of a reasonable man, but does not support theory of voluntary manslaughter as related to mutual combat, and defense is based largely, if not exclusively, upon principle of killing under fears of a reasonable man, charge on law of mutual combat would be reversible error. Dudley v. State, 67 Ga. App. 256 , 19 S.E.2d 833 (1942).
Distinction between mutual combat and self-defense. - Essential ingredient, mutual intent, in order to constitute mutual combat, must be a willingness, readiness, and intention upon part of both parties to fight. Reluctance, or fighting to repel unprovoked attack, is self-defense, and is authorized by law, and should not be confused with mutual combat. Odom v. State, 106 Ga. App. 60 , 126 S.E.2d 472 (1962).
No error in failing to charge on mutual combat. - When a murder defendant specifically requested the trial court not to charge the jury on voluntary manslaughter, the defendant could not be heard to complain on appeal that the trial court erred by failing to charge on mutual combat. Savior v. State, 284 Ga. 488 , 668 S.E.2d 695 (2008).
Because the homeowner's testimony supported an instruction on defense of self or others, not an instruction on mutual combat or voluntary manslaughter, trial counsel was not ineffective in declining to pursue instructions on mutual combat or voluntary manslaughter. Bannister v. State, 306 Ga. 289 , 830 S.E.2d 79 (2019).
Charge requested by defendant properly given. - When a defendant was charged with felony murder, the trial court properly gave a charge on voluntary manslaughter under O.C.G.A. § 16-5-2(a) ; the defendant had requested the charge, and the evidence supported the charge in that the evidence supported a finding that the defendant shot the victim in a fit of jealousy stemming from the defendant's romantic relationship with the victim's friend. Hayles v. State, 287 Ga. App. 601 , 651 S.E.2d 860 (2007).
Whether evidence showed voluntary manslaughter and not murder is question for jury. - Evidence was sufficient to convict the defendant of malice murder as well as the felony murder counts of the indictment because a witness saw the victim's empty hands in the air just as the defendant shot the victim; the jury was not required to find that the defendant acted in self-defense; and, although the defendant argued that the evidence showed that the defendant feared for the defendant's safety, and that such fear could be a circumstance sufficient to show voluntary manslaughter even if the jury rejected the defendant's claim of self-defense, the jury was instructed on voluntary manslaughter, and whether the evidence showed only voluntary manslaughter and not murder was a question for the jury. Dupree v. State, 295 Ga. 655 , 763 S.E.2d 459 (2014).
Failure to charge jury on accident. - Defendant's convictions for voluntary manslaughter, aggravated assault, and possession of a knife during the commission of a felony were reversed because the trial court erred in failing to charge the jury on the defense of accident as requested when that defense was raised by the evidence, and the Court of Appeals could not find that it was highly probable that the failure to give the requested charge did not contribute to the verdict; at least slight evidence supported the theory that the defendant armed oneself with a knife in order to fend off the victim's attack with a pipe wrench and that although the defendant was prepared to intentionally stab the victim in self-defense, the defendant did not do so, but the victim lunged at the defendant and impaled oneself on the knife. Hill v. State, 300 Ga. App. 210 , 684 S.E.2d 356 (2009).
Failure to sua sponte charge self-defense and justification not error. - Failure to sua sponte charge self-defense and justification was not error because the evidence established that the defendant shot the victim repeatedly after initially wounding the victim and while the victim begged for the victim's life. Cantera v. State, 304 Ga. App. 289 , 696 S.E.2d 354 (2010).
Application
Mere words, however vile, will not justify taking of human life. Vun Cannon v. State, 208 Ga. 608 , 68 S.E.2d 586 (1952).
Mere words will not authorize use of deadly weapon, nor reduce murder to voluntary manslaughter. Brown v. State, 175 Ga. 329 , 165 S.E. 252 (1932).
Words, threats, menaces or contemptuous gestures of themselves will not reduce homicide from murder to manslaughter. Hawkins v. State, 25 Ga. 207 , 71 Am. Dec. 166 (1858); Ross v. State, 59 Ga. 248 (1877); Robinson v. State, 118 Ga. 198 , 44 S.E. 985 (1903); Bird v. State, 128 Ga. 253 , 57 S.E. 320 (1907); Slocumb v. State, 157 Ga. 131 , 121 S.E. 116 (1923); Cotton v. State, 201 Ga. 285 , 39 S.E.2d 530 (1946); Yearwood v. State, 201 Ga. 247 , 39 S.E.2d 684 (1946); Vun Cannon v. State, 208 Ga. 608 , 68 S.E.2d 586 (1952).
That killing is done in passion is not sufficient to make offense voluntary manslaughter; existence of passion must be justified. Allen v. State, 187 Ga. 178 , 200 S.E. 109 (1938).
When the killing was not the result of sudden and irresistible passion, but rather was attributable to a deliberate act of aggression committed after a sufficient "cooling off" period, the jury was authorized to convict defendant of murder. Walden v. State, 268 Ga. 440 , 491 S.E.2d 64 (1997).
Simply proving that accused was drunk, and killed another in passion, cannot reduce murder to manslaughter. Allen v. State, 187 Ga. 178 , 200 S.E. 109 (1938).
Passion enough for voluntary manslaughter. - To be entitled to a charge on voluntary manslaughter under O.C.G.A. § 16-5-2 the evidence had to support the jury's finding that defendant was so influenced and excited that defendant reacted passionately in killing the victim. Oliver v. State, 274 Ga. 539 , 554 S.E.2d 474 (2001).
Whether homicide was done with or without malice depends upon weapon used. Smith v. State, 73 Ga. 31 (1884).
Intent to kill presumed where defendant stabbed deceased in neck with pocketknife. - While there can be neither murder nor voluntary manslaughter without intent to kill, where weapon used was a pocketknife, and defendant stabbed deceased in neck with it, intent to kill may be presumed. Wims v. State, 60 Ga. App. 551 , 4 S.E.2d 418 (1939).
Stabbing a robber. - Defendant's convictions for voluntary manslaughter, O.C.G.A. § 16-5-2(a) , and simple assault, O.C.G.A. § 16-5-20(a) , were supported by evidence that the defendant and others chased down a robber in an unsavory part of town and the defendant stabbed the robber with a knife while the robbery victim shot the robber; under O.C.G.A. § 24-4-8, the testimony of the defendant's accomplices about the defendant's participation in the crimes was adequately corroborated by each other's testimony and another eye witness. Woods v. State, 342 Ga. App. 301 , 802 S.E.2d 822 (2017).
Under indictment for murder, jury may find prisoner guilty of lesser offense of manslaughter, either voluntary or involuntary, and verdict will be legal, although there is no count for manslaughter in indictment. Perry v. State, 78 Ga. App. 273 , 50 S.E.2d 709 (1948).
Commission of homicide to avoid unlawful arrest constitutes manslaughter. - Generally, to slay a person who without authority of law seeks to make an arrest for a misdemeanor, when motive of slayer is merely to avoid arrest, constitutes manslaughter and not murder. Plemmons v. State, 43 Ga. App. 344 , 158 S.E. 630 (1931).
An illegal arrest is in law an assault by arresting officer upon person arrested, and constitutes legal justification for employment by person arrested of force sufficient in amount to avoid arrest and repel assault. If force employed in resisting such illegal arrest is in excess of that necessary, accused is accountable under the law for the excess; and if death results therefrom, the accused is guilty of manslaughter, unless there was an interval between officer's assault and application of excessive force which caused death sufficient for voice of reason and humanity to be heard, of which jury in all cases shall be the judges, in which latter case the killing shall be attributed to deliberate revenge, and be punished as murder. Napier v. State, 200 Ga. 626 , 38 S.E.2d 269 (1946).
Commission of homicide to prevent nonfelonious assault upon self. - If circumstances were such as to excite fear of a reasonable man that a nonfelonious assault was being made on that person, offense would be manslaughter. Johnson v. State, 72 Ga. 679 (1884).
Facts and circumstances surrounding accused at time of homicide such as would excite fears of a reasonable man that some bodily harm, less than a felony, was imminent and impending, do not establish defense to voluntary manslaughter; but, on contrary, tend to establish fact that offense committed was voluntary manslaughter. Gresham v. State, 70 Ga. App. 80 , 27 S.E.2d 463 (1943).
If facts and circumstances at time accused killed deceased were such only as would excite fears of a reasonable man that some bodily harm, less than a felony, was imminent and impending, offense would be voluntary manslaughter. Henry v. State, 76 Ga. App. 139 , 45 S.E.2d 230 (1947).
If one kills another under fears of reasonable man that deceased was manifestly intending to commit personal injury upon that person, amounting to felony, killing is justifiable homicide; if prisoner is under similar fears of some injury less than a felony, offense is manslaughter, and not murder. McDaniel v. State, 209 Ga. 827 , 76 S.E.2d 500 (1953).
Admission of adultery coupled with conduct, or conduct alone may reduce homicide to manslaughter. Campbell v. State, 204 Ga. 399 , 49 S.E.2d 867 (1948).
Admission of adulterous conduct, without more, will not reduce homicide to manslaughter. Campbell v. State, 204 Ga. 399 , 49 S.E.2d 867 (1948).
Admission of prejudicial hearsay testimony held harmless error. - Because the trial court's admission of prejudicial hearsay testimony regarding the victim's ministry ordination certificates was harmless error, given the overwhelming evidence of the defendant's guilt, a voluntary manslaughter conviction, as a lesser-included offense of murder, was upheld on appeal. Smith v. State, 283 Ga. App. 722 , 642 S.E.2d 399 (2007).
Refusal to give charge on provocation caused by the victim's adulterous conduct was not error because defendant and the victim were not married and, in order to prove adultery, a marriage must be shown. Somchith v. State, 272 Ga. 261 , 527 S.E.2d 546 (2000).
Circumstantial evidence. - When the testimony was that the defendant fired the fatal shot after an argument with the man with whom the defendant was living, even assuming that the verdict of guilty of voluntary manslaughter was based solely on circumstantial evidence, the jury was authorized by the evidence presented to exclude other possible hypotheses as unreasonable. Johnson v. State, 236 Ga. App. 61 , 510 S.E.2d 918 (1999), overruled on other grounds by Schofield v. Holsey, 281 Ga. 809 , 642 S.E.2d 56 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Jury entitled to consider facts tending to establish voluntary manslaughter. - In prosecution for murder it is the right of the jury to consider all of facts and circumstances, including those brought out solely in defendant's statement, in determining whether there would have been sufficient justification for excitement of passion as to reduce crime to voluntary manslaughter. Jackson v. State, 192 Ga. 373 , 15 S.E.2d 484 (1941).
Questions of witness credibility are for the jury to decide. - Whether defendant shot the victim with malice aforethought, out of passion, or out of justification in self-defense depended heavily on the credibility of the witnesses and decisions regarding credibility are exclusively for the jury. Lee v. State, 202 Ga. App. 708 , 415 S.E.2d 290 , cert. denied, 202 Ga. App. 906 , 415 S.E.2d 290 (1992).
Verdict of voluntary manslaughter authorized if supported. - Whenever in trial of one charged with murder there is any evidence, or anything in defendant's statement to jury, tending to show that homicide is voluntary manslaughter, a verdict finding defendant guilty of that offense is authorized. Plemmons v. State, 43 Ga. App. 344 , 158 S.E. 630 (1931).
On trial of one indicted for murder, verdict finding accused guilty of voluntary manslaughter is authorized where, from evidence or from defendant's statement to jury, there is anything deducible which would tend to show that defendant was guilty of voluntary manslaughter, or which would be sufficient to raise doubt as to whether homicide was murder or voluntary manslaughter. Cobb v. State, 60 Ga. App. 194 , 3 S.E.2d 212 (1939); Jones v. State, 71 Ga. App. 56 , 30 S.E.2d 284 (1944); Culverson v. State, 73 Ga. App. 93 , 35 S.E.2d 583 (1945).
Testimony of a witness that the defendant picked up a cinder block and threw it at the victim who was talking, but not fighting, with the defendant's parent, along with evidence that the victim died as a result of the block hitting the victim in the head was sufficient to support conviction of voluntary manslaughter. Smith v. State, 261 Ga. App. 781 , 584 S.E.2d 29 (2003).
There was sufficient credible evidence to support a jury's verdict finding the defendant guilty of committing voluntary manslaughter and aggravated assault in violation of O.C.G.A. §§ 16-5-2 and 16-5-21 , respectively, because there was testimony from three surviving witnesses that the defendant shot at their car as they drove by, killing one of the occupants; there was further testimony that the parties had a history of disputes between themselves, that the victim's sibling had fired a shot at the defendant earlier in the day, and the defendant's claim that the defendant thought that as the car drove by, the victim was reaching for a gun, was not found credible. Mullins v. State, 270 Ga. App. 271 , 605 S.E.2d 913 (2004).
Evidence supported the defendant's conviction for aggravated assault and voluntary manslaughter because: (1) the defendant and the victim had threatened to kill each other; (2) the victim died from a gunshot wound inflicted when the victim "stepped in" to a fight between the defendant and another person; (3) the victim did not have a gun or own a gun; and (4) the fatal head wound was inflicted from at least two-and-a-half to three feet away and rendered the victim unconscious. Hall v. State, 273 Ga. App. 203 , 614 S.E.2d 844 (2005).
Evidence supported a defendant's conviction for voluntary manslaughter as: (1) the defendant, who was worried that the victim might cause trouble, got out a gun and set the gun in the bathroom stall; (2) when the victim returned, the defendant told the victim to leave; (3) eventually, the defendant told the victim to go away or the defendant would shoot the victim; (4) the defendant then got the gun, and when the victim opened the door and began to enter, the defendant shot the victim in the stomach; and (5) the victim fell to the ground, and the defendant shot the victim two more times; the jury was free to reject the defendant's claim that the defendant was merely protecting the defendant from the victim and that the use of deadly force was authorized. Lott v. State, 281 Ga. App. 373 , 636 S.E.2d 102 (2006).
Reducing murder to voluntary manslaughter based on victim's alcohol use. - With regard to the defendant's murder conviction for killing his wife, the trial court properly excluded evidence of the victim's alcohol use to show the provocation necessary to reduce murder to voluntary manslaughter because the defendant failed to present any evidence of the effect the victim's alcohol consumption had on her behavior on the day she was stabbed. Dunn v. State, 292 Ga. 359 , 736 S.E.2d 392 (2013).
Voluntary manslaughter as lesser included offense of felony murder. - Verdict was not legally repugnant and the defendant's acquittal for voluntary manslaughter as a lesser included offense of malice murder did not bar the defendant's conviction for voluntary manslaughter as a lesser included offense of felony murder as the jury could have determined that the defendant fired at the codefendants as the result of sudden passion resulting from the codefendants' provocative act of shooting at the defendant and that the defendant was not guilty of malice murder because the defendant did not intend to kill the victim. Carter v. State, 331 Ga. App. 212 , 770 S.E.2d 295 (2015), aff'd, 298 Ga. 867 , 785 S.E.2d 274 (Ga. 2016).
Voluntary manslaughter conviction valid despite jurors knowledge that victim was minister. - Defendant's conviction of the lesser charge of voluntary manslaughter, rather than murder and felony murder, strongly supported the appellate court's conclusion that the jury was not unduly prejudiced by knowledge that the victim was a minister. Smith v. State, 283 Ga. App. 722 , 642 S.E.2d 399 (2007).
Verdict of guilty of manslaughter means voluntary manslaughter. - When upon trial on indictment for offense of murder, jury returns verdict of manslaughter, legal effect of such verdict is to find defendant guilty of highest grade of manslaughter, to-wit: voluntary manslaughter. Welch v. State, 50 Ga. 128 , 15 Am. R. 690 (1873).
Verdict of voluntary manslaughter in murder trial is tantamount to acquittal of charge of murder. Cribb v. State, 71 Ga. App. 539 , 31 S.E.2d 248 (1944).
Mutual combat. - When participants engage with mutual intention to fight, offense may be voluntary manslaughter as related to mutual combat. If evidence authorizes inference that killing occurred in such circumstances, it is the duty of the judge, even without request, to give in charge the law of voluntary manslaughter as related to mutual combat. Hewitt v. State, 127 Ga. App. 180 , 193 S.E.2d 47 (1972).
The "sudden, violent and irresistible passion" referred to in statute is often discussed as a theory of mutual combat in situations involving physical confrontations between defendant and deceased. The essential ingredient, mutual intent, in order to constitute mutual combat, must be a willingness, readiness, and intention by both parties to fight. Williams v. State, 232 Ga. 203 , 206 S.E.2d 37 (1974), overruled on other grounds, Jackson v. State, 239 Ga. 40 , 235 S.E.2d 477 (1977).
Theory of mutual combat inapplicable when defendant had no desire to fight. - Because the defendant testified that the defendant did not want to fight, and the defendant testified that the defendant acted in self-defense in the fight and did not intend to kill the victim, the evidence did not warrant an instruction regarding the law of mutual combat as a basis for finding the defendant committed only voluntary manslaughter. Tepanca v. State, 297 Ga. 47 , 771 S.E.2d 879 (2015).
Killing adulterous spouse or illicit lover. - Spouse is never justified in taking life of adulterous spouse or illicit lover. This is murder and an instruction on justifiable homicide may not be given. Such homicides stand on the same footing as any other homicides. However, peculiar facts of given case may suggest passion and provocation within meaning of the voluntary manslaughter statute. Burger v. State, 238 Ga. 171 , 231 S.E.2d 769 (1977); Gibbs v. State, 174 Ga. App. 19 , 329 S.E.2d 224 (1985).
Intentionally shooting towards another. - Notion that when one intentionally fires a gun at another and kills the other, defendant's contention that defendant did not aim at victim and did not intend to kill, or to shoot the victim, makes killing involuntary manslaughter is rejected. McMillan v. State, 157 Ga. App. 694 , 278 S.E.2d 478 (1981).
Defendant's assertion that defendant did not appreciate or remember what defendant did. - Defendant's contention that defendant did not appreciate what defendant was doing and does not remember doing it does not expiate the act when evidence shows the defendant intentionally fired a gun at or towards defendant's spouse. McMillan v. State, 157 Ga. App. 694 , 278 S.E.2d 478 (1981).
When the entire thrust of defendant's defense was that of accident and defendant testified that defendant did not want to fight, defendant's claim that defendant was engaged in mutual combat was rejected. Gladson v. State, 253 Ga. 489 , 322 S.E.2d 45 (1984).
Manslaughter does not invoke felony-murder rule. - Voluntary manslaughter, and felony of involuntary manslaughter where it applies, are not themselves felonies which will invoke felony murder rule as to death of main victim. Therefore, if a jury finds felonious manslaughter, they should not go on to reason that this offense, being itself a felony, turns the killing into a felony murder. The jury should be instructed in accordance with this principle. Malone v. State, 238 Ga. 251 , 232 S.E.2d 907 (1977).
Voluntary manslaughter is lesser included offense of felony murder. Young v. State, 141 Ga. App. 261 , 233 S.E.2d 221 (1977).
With respect to jury instructions, voluntary manslaughter is a lesser included offense of felony murder under former Code 1933, §§ 26-1101 and 26-505 because an act done in passion involves a less culpable mental state than the state of real or imputed malice which is the foundation of the felony murder rule. Therefore, where facts warrant it, a charge on voluntary manslaughter may indeed be given in a felony-murder trial. Malone v. State, 238 Ga. 251 , 232 S.E.2d 907 (1977) (see O.C.G.A. §§ 16-1-6 and 16-5-1(c) ).
Defendant's conviction of voluntary manslaughter under O.C.G.A. § 16-5-2 was improper as the defendant was also convicted of felony murder under O.C.G.A. § 16-5-1(c) for the same transaction, and this would have subjected the defendant to multiple convictions and punishments for one crime, which would have placed the defendant in double jeopardy in violation of Ga. Const. 1983, Art. I, Sec. I, Para. XVIII and U.S. Const., amend. 5. Lawson v. State, 280 Ga. 881 , 635 S.E.2d 134 (2006).
Defendant's conviction of voluntary manslaughter under O.C.G.A. § 16-5-2 did not require reversal of the defendant's conviction of felony murder under O.C.G.A. § 16-5-1(c) when the underlying felony was possession of a firearm by a convicted felon, as those offenses did not merge. Lawson v. State, 280 Ga. 881 , 635 S.E.2d 134 (2006).
Burglary and voluntary manslaughter are not included within each other within the meaning of the former Code 1933, § 26-1601. Oglesby v. State, 243 Ga. 690 , 256 S.E.2d 371 (1979) (see O.C.G.A. § 16-1-7(a)(1)).
Finding defendant guilty of manslaughter has legal effect of finding accused guilty of voluntary manslaughter. Demps v. State, 140 Ga. App. 90 , 230 S.E.2d 97 (1976).
Denial of defendant's motion for directed verdict of acquittal not error where there was evidence from which the jury could determine that defendant, while acting in the heat of passion, shot and killed a woman. Chancellor v. State, 165 Ga. App. 365 , 301 S.E.2d 294 (1983).
Evidence sufficient for voluntary manslaughter conviction. - See Miller v. State, 166 Ga. App. 639 , 305 S.E.2d 172 (1983); Rogers v. State, 251 Ga. 408 , 306 S.E.2d 652 (1983); Shackelford v. State, 172 Ga. App. 577 , 323 S.E.2d 874 (1984); King v. State, 177 Ga. App. 788 , 341 S.E.2d 307 (1986); Luther v. State, 255 Ga. 706 , 342 S.E.2d 316 (1986); Trenor v. State, 178 Ga. App. 351 , 343 S.E.2d 408 (1986); Tew v. State, 179 Ga. App. 369 , 346 S.E.2d 833 (1986); Mims v. State, 180 Ga. App. 3 , 348 S.E.2d 498 (1986); Thompkins v. State, 180 Ga. App. 473 , 349 S.E.2d 768 (1986); Hardeman v. State, 180 Ga. App. 632 , 349 S.E.2d 839 (1986); Wright v. State, 182 Ga. App. 580 , 356 S.E.2d 681 (1987); Yarborough v. State, 183 Ga. App. 198 , 358 S.E.2d 484 (1987); Beal v. State, 186 Ga. App. 806 , 368 S.E.2d 567 (1988); Jackson v. State, 186 Ga. App. 847 , 368 S.E.2d 771 (1988); Swailes v. State, 188 Ga. App. 553 , 373 S.E.2d 825 (1988); Gerald v. State, 189 Ga. App. 155 , 375 S.E.2d 134 (1988); Thomas v. State, 189 Ga. App. 774 , 377 S.E.2d 539 (1989); Watkins v. State, 191 Ga. App. 325 , 382 S.E.2d 107 , cert. denied, 191 Ga. App. 923 , 382 S.E.2d 107 (1989); Nelson v. State, 213 Ga. App. 641 , 445 S.E.2d 543 (1994). Miller v. State, 223 Ga. App. 311 , 477 S.E.2d 430 (1996); Brown v. State, 225 Ga. App. 218 , 483 S.E.2d 633 (1997); Young v. State, 229 Ga. App. 497 , 494 S.E.2d 226 (1997); Johnson v. State, 229 Ga. App. 586 , 494 S.E.2d 382 (1997); Smith v. State, 231 Ga. App. 677 , 499 S.E.2d 663 (1998); Goforth v. State, 271 Ga. 700 , 523 S.E.2d 868 (1999); McGuire v. State, 243 Ga. App. 899 , 534 S.E.2d 549 (2000); Williams v. State, 245 Ga. App. 670 , 538 S.E.2d 544 (2000); Leggon v. State, 249 Ga. App. 467 , 549 S.E.2d 137 (2001).
Evidence was sufficient to warrant a charge on voluntary manslaughter where eyewitness testimony showed that deceased had beaten defendant to the point where defendant twice begged for defendant's life. In addition, although the fatal shooting occurred after deceased had retreated, it nonetheless occurred within seconds of the fight and was sufficiently within the nexus of the altercation that it cannot be concluded a reasonable "cooling off" period had occurred. Woody v. State, 262 Ga. 327 , 418 S.E.2d 35 (1992).
Evidence that armed defendant stood ground to engage in mutual combat supported defendant's conviction for voluntary manslaughter as a party to the crime where the actual homicide resulted when a shot fired by someone other than defendant strayed and killed a bystander. Coker v. State, 209 Ga. App. 142 , 433 S.E.2d 637 (1993).
Evidence that defendant argued with the victim and followed the victim from the bar, that the victim's body was found near the bar, that defendant owned knives whose dimensions were consistent with the fatal stab wound, and that the victim's blood was found on defendant's clothes was sufficient to convict defendant of voluntary manslaughter. Barrera-Palamin v. State, 250 Ga. App. 580 , 551 S.E.2d 76 (2001).
Evidence was sufficient to support defendant's conviction for voluntary manslaughter, a violation of O.C.G.A. § 16-5-2(a) , where defendant and the victim argued, the victim moved toward defendant and motioned as if the victim was going to throw a can of ravioli, and defendant then shot the victim in the neck; the jury was not required to believe defendant's self-serving testimony that the gun discharged accidentally. Gibbs v. State, 257 Ga. App. 38 , 570 S.E.2d 360 (2002).
Evidence was sufficient to support voluntary manslaughter conviction after four witnesses testified: (1) defendant became angry when his brother approached him about mud defendant splattered on a truck his brother was going to drive; (2) defendant threatened his brother; and defendant shot his brother. Also the medical examiner testified that two gunshot wounds caused the brother's death, and that the bullets recovered from the body were of .22 to .25 caliber, defendant admitted firing his .22 caliber semi-automatic rifle while his brother was in the vicinity, defendant's rifle was not recovered after he admittedly disposed of it in the woods near his residence, and one of the witnesses denied having fired first at defendant. Lamar v. State, 256 Ga. App. 567 , 568 S.E.2d 837 (2002).
Evidence that the defendant loaded the defendant's gun, approached the victim as the defendant arrived home, and shot the victim after stating "bye, bye" was sufficient to sustain the defendant's conviction for voluntary manslaughter. Carter v. State, 265 Ga. App. 44 , 593 S.E.2d 69 (2004).
Evidence supported the defendant's conviction for voluntary manslaughter as: (1) the victim assaulted the defendant, but turned away to leave the scene; (2) after the victim turned away, the defendant shot the victim in the back from two and one-half feet away; (3) the jury could reject the defendant's justification defense; (4) the defendant was identified as the assailant on the night of the shooting; and (5) the defendant admitted firing a gun at the victim. Nelloms v. State, 273 Ga. App. 448 , 615 S.E.2d 153 (2005).
Sufficient evidence supported the defendant's conviction for voluntary manslaughter; evidence that the victim's love interest pointed a rifle toward the defendant's vehicle, as well as that the victim earlier acted aggressively toward the codefendants, could be considered sufficient provocation to excite the passion necessary for voluntary manslaughter. Morris v. State, 276 Ga. App. 775 , 624 S.E.2d 281 (2005).
Evidence was sufficient to support a conviction for felony murder, voluntary manslaughter, and aggravated assault, as an eyewitness testified that the defendant was the only person to pull out a weapon in a confrontation at a nightclub, that the defendant fired a weapon at the victim, who had previously struck the defendant's love interest, and at two other victims who were attempting to leave. Rodriguez v. State, 274 Ga. App. 549 , 618 S.E.2d 177 (2005).
Defendant's voluntary manslaughter conviction, as a lesser included offense of malice murder, was upheld on appeal, as: (1) the evidence presented supported an instruction on voluntary manslaughter; (2) the defendant waived any objection to the expert's testimony, and no inquiry into the number of jurisdictions recognizing the scientific principles on which such testimony was based was required; (3) by denying the defendant a new trial, the trial court implicitly concluded that no agreement existed with the defendant's cell mate; (4) the alleged hearsay challenged was not hearsay because it did not rely mainly on the veracity and competency of other persons; (5) any issue as to the erroneous admission of the victim's bones into evidence was waived on appeal; and (6) the trial court properly instructed the jury as to venue, and the jury was authorized to find, that if it could not determine where the crime was committed, proper venue was Jones County, Georgia, because the evidence showed that the crime might have been committed there. Glidewell v. State, 279 Ga. App. 114 , 630 S.E.2d 621 (2006), overruled on other grounds, Reynolds v. State, 285 Ga. 70 , 673 S.E.2d 854 (2009).
Evidence was sufficient to find the defendant guilty of voluntary manslaughter in violation of O.C.G.A. § 16-5-2 , felony murder predicated on possession of a firearm by a convicted felon in violation of O.C.G.A. § 16-5-1 , two counts of aggravated assault in violation of O.C.G.A. § 16-5-21 , possession of a firearm by a convicted felon in violation of O.C.G.A. § 16-11-131 , and possession of a firearm during the commission of a felony murder in violation of O.C.G.A. § 16-11-106 , as the defendant was angered by the victim's presence in the residence, the defendant assaulted the victim with a baseball bat and threatened to kill the victim if the victim did not leave the residence, and when the victim returned to the residence, the defendant fatally shot the victim in the stomach. Lawson v. State, 280 Ga. 881 , 635 S.E.2d 134 (2006).
Because sufficient evidence was presented that the defendant was provoked by an attack on a sibling, and that the defendant had a history of abusive relationships with several men, the defendant's voluntary manslaughter conviction of the male victim was supported by the evidence; moreover, the jury was entitled to reject the defendant's self-defense claim given evidence that the defendant chased and stabbed the victim after the victim fell. Breland v. State, 285 Ga. App. 251 , 648 S.E.2d 389 (2007).
When the defendant engaged in a five-minute gun battle in an occupied apartment complex, resulting in the victim's death after a bullet passed through a wall and struck the victim, the defendant was properly convicted of voluntary manslaughter as a lesser included offense of felony murder; the battle was clearly dangerous and life-threatening and connected to the homicide, and because Georgia has abolished the inconsistent verdict rule, the defendant's acquittal of aggravated assault charges did not require reversal. Smith v. State, 284 Ga. App. 845 , 644 S.E.2d 913 (2007).
Evidence supported a conviction of voluntary manslaughter. The defendant received a call from defendant's cousin's friend, who said that the victim had sexually harassed the friend and stolen clothing and other items; the defendant shot the victim after seeing the victim wearing some of the friend's clothing and confronting the victim; an eyewitness identified the shooter as "Dee," the defendant's street name; the friend identified defendant as the shooter; a bullet found in the defendant's apartment matched the bullet removed from the victim's body; and that type of bullet had not been made since 1998 and was no longer available for purchase. Smith v. State, 291 Ga. App. 725 , 662 S.E.2d 817 (2008).
Testimony of a defendant's child that the child saw the defendant stab the child's step-parent in the chest with a knife was sufficient to support the defendant's voluntary manslaughter conviction. McKenzie v. State, 294 Ga. App. 376 , 670 S.E.2d 158 (2008).
Evidence did not support a conviction for involuntary manslaughter as opposed to voluntary manslaughter under O.C.G.A. § 16-5-2(a) because whether the defendant intended to kill the victim was a question for the jury and the evidence was sufficient to support a verdict of voluntary manslaughter based on the defendant's agitation when the victim would not return the defendant's money. Hamilton v. State, 297 Ga. App. 47 , 676 S.E.2d 773 (2009).
Voluntary manslaughter conviction was supported by sufficient evidence under circumstances in which the defendant shot the victim seven times; among other things, there was evidence of the defendant's threats, and a witness testified that the victim walked away from the defendant and sat down in a car, and that the defendant shot into the car. Based on the location of the bullet holes in the car and the shell casings in the street, a police sergeant testified that the investigation revealed that the shooter was either standing at the window firing down or that the driver's door was open when the shooting occurred. Harris v. State, 298 Ga. App. 708 , 680 S.E.2d 693 (2009).
Evidence was sufficient to support the defendant's conviction of voluntary manslaughter as a lesser included offense of murder. After the defendant and the victim got into a fight, the victim assaulted the defendant and stole the defendant's watch; the defendant left the scene and returned with a hidden screwdriver; and when the victim hit the defendant with a stick and a rake, the defendant stabbed the victim with the screwdriver in the neck, then chased the victim until the victim collapsed and died. Branford v. State, 299 Ga. App. 890 , 685 S.E.2d 731 (2009).
Rational trier of fact could have found beyond a reasonable doubt that the defendant committed voluntary manslaughter, O.C.G.A. § 16-5-2 , possession of a firearm during the commission of a crime (voluntary manslaughter), O.C.G.A. § 16-11-106 , aggravated assault, O.C.G.A. § 16-5-2 1, and possession of a firearm during the commission of a crime (aggravated assault), O.C.G.A. § 16-11-106 , because the defendant's explanation of the killing was inconsistent with and not explanatory of the other direct and circumstantial evidence, and, therefore, the jury was permitted to reject such explanation and convict on the remaining evidence; the defendant's son testified on direct that the defendant told the son that the defendant shot the victim once, that the victim ran, that the defendant pursued, and that although the victim begged for the victim's life, the defendant shot the victim again, and there also was forensic evidence indicating that the defendant fired three more rounds into the victim's body. Cantera v. State, 304 Ga. App. 289 , 696 S.E.2d 354 (2010).
Evidence was sufficient to show beyond a reasonable doubt that the defendant was guilty of voluntary manslaughter in that the defendant shot and killed the victim out of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person under O.C.G.A. § 16-5-2(a) . Davis v. State, 309 Ga. App. 831 , 711 S.E.2d 324 (2011).
Although a witness testified at trial that the defendant fired the first shot and that statement was contradicted by the statement the witness gave to police shortly after the incident, in which the witness stated that the victim attempted to sneak up on the defendant and fired the first shot at the defendant, who then fired back, evidence that the defendant pursued the victim and then laid in wait for the victim supported a voluntary manslaughter conviction. Mingledolph v. State, 324 Ga. App. 157 , 749 S.E.2d 757 (2013).
Witness's testimony that the witness and the defendant had been smoking crack cocaine down the street from the victim's apartment, the defendant left the house to get more drugs, and the defendant returned agitated and told the witness an old man stole the defendant's crack but the defendant "took care of him," and testimony the victim went head first through a window after being burned supported convictions for voluntary manslaughter and aggravated assault. Haymer v. State, 323 Ga. App. 874 , 747 S.E.2d 512 (2013).
Evidence that the defendant supplied a car stocked with ammunition, accompanied others to the apartment in another car, remained parked outside while maintaining phone contact with the others after they went inside, and served as the getaway driver for a wounded individual was sufficient for a jury to find the defendant guilty beyond a reasonable doubt as a party to the crime of voluntary manslaughter. Platt v. State, 335 Ga. App. 49 , 778 S.E.2d 416 (2015).
Evidence that the defendant admitted shooting a gun on the night in question in the area of the fight, witnesses observed the defendant shooting the gun, and the defendant was the only person identified as shooting a gun near the ballistic evidence matching the fatal bullet was sufficient to support the defendant's conviction for voluntary manslaughter. Nixon v. State, 349 Ga. App. 277 , 826 S.E.2d 150 (2019).
Evidence was sufficient to convict the second defendant of voluntary manslaughter and aggravated assault because the second defendant, the first defendant, and some of their friends engaged in a heated argument with the victim that escalated into a physical altercation, in which the defendants knocked the victim to the ground; the victim escaped from the fight by pulling a knife and cutting the second defendant; and the second defendant and the first defendant pulled handguns and fired at the victim as the victim tried to walk away with three bullets striking and ultimately killing the victim. Hamlette v. State (two cases), 353 Ga. App. 640 , 839 S.E.2d 161 (2020).
Evidence was sufficient to support the defendant's conviction of voluntary manslaughter because the jury was authorized to conclude from the evidence that the defendant was not justified in using deadly force to protect the defendant from the victim, who was intoxicated, unarmed, and outside of the locked bedroom. Aeger v. State, Ga. App. , S.E.2d (Sept. 11, 2020).
Adequate factual basis for guilty plea. - Evidence that a defendant and the defendant's spouse had a violent relationship; that shortly before the spouse's death, the defendant told a witness the defendant was going to kill the spouse; that the defendant admitted being in the spouse's home on the day of the spouse's death; and that the defendant fled the state after the slaying, supported a finding under Ga. Unif. Super. Ct. R. 33.9 of an adequate factual basis for the defendant's Alford plea to the offense of voluntary manslaughter. Tomlin v. State, 295 Ga. App. 369 , 671 S.E.2d 865 (2008).
Edge rule did not apply to possession of firearm. - Although the defendant was found guilty of felony murder and voluntary manslaughter, the rule in Edge v. State, 261 Ga. 865 (1992) did not require that the defendant be convicted only of voluntary manslaughter because the defendant was also found guilty of unlawful possession of a firearm, and although the defendant acquired the gun several days before the murder for self defense against the victim, there was no evidence that the defendant possessed the gun as a result of a sudden, violent, and irresistible passion. Griggs v. State, 304 Ga. 806 , 822 S.E.2d 246 (2018).
Sentence vacated and resentencing ordered when the trial court erred by increasing a juvenile defendant's voluntary manslaughter sentence after the defendant had already begun serving the same, because the original sentence was final at the time it was imposed, and the defendant had no reason to believe otherwise; hence, the trial court's increased sentence constituted double jeopardy and could not stand. Williams v. State, 273 Ga. App. 42 , 614 S.E.2d 146 (2005).
While the evidence presented at trial was sufficient to find the defendant guilty of the three felony murder counts, the same act resulted in commission of all three of the underlying felonies and caused the victim's death, and the same evidence used to prove those felonies was also used to prove voluntary manslaughter; hence, because each underlying felony was integral to the killing and, indeed, could be merged into the voluntary manslaughter, the felony murder convictions had to be reversed, and the case remanded for resentencing on the voluntary manslaughter count. Sanders v. State, 281 Ga. 36 , 635 S.E.2d 772 (2006).
Jury found voluntary manslaughter, guilty verdict for felony murder should have been vacated. - In the defendant's trial for voluntary manslaughter, felony murder, and a firearm charge, in light of the jury's verdict of guilty of voluntary manslaughter, the trial court should have vacated the jury's guilty verdict on the felony murder charge; the court directed various officials, offices, and organizations to come up with a plan addressing the long delays in appeals (in this case 20 years); here, the defendant had already served the maximum sentence for voluntary manslaughter under O.C.G.A. § 16-5-2(b) . Owens v. State, 303 Ga. 254 , 811 S.E.2d 420 (2018).
Because there was no reason to believe that the jury actually found the defendant guilty of voluntary manslaughter and felony murder based on distinct conduct causing the victim's death, the trial court did not err in applying the case law to vacate the felony murder count and to sentence the defendant for voluntary manslaughter. Gardhigh v. State, Ga. , 844 S.E.2d 821 (2020).
Evidence sufficient for malice murder, not voluntary manslaughter. - Despite the defendant's contention that a voluntary manslaughter verdict should have been returned, given that the victim invited a violent confrontation, eyewitness testimony which established that the defendant was driving recklessly before confronting the victim with a knife, which led to the fatal stabbing, supported a malice murder conviction. Lonergan v. State, 281 Ga. 637 , 641 S.E.2d 792 (2007).
Sufficient evidence existed to support the defendant's conviction for malice murder as the jury was instructed on malice murder, felony murder, and voluntary manslaughter and the evidence was sufficient to enable a rational trier of fact to find that the defendant retrieved a pistol from the defendant's car and secreted the gun under the defendant's shirt; when the gun was pointed at the victim, the victim retreated, but the defendant shot the victim anyway; and when the victim was lying on the ground, the defendant walked to the victim and shot the victim until the pistol was empty. Taylor v. State, 282 Ga. 693 , 653 S.E.2d 477 (2007).
Sufficient evidence supported the defendant's malice murder conviction. The jury was free to reject the defendant's claim that one of the victims fired the first shot, and evidence of a struggle between the defendant and one victim over control of a handgun did not require that there be a finding of voluntary manslaughter. As for intent, malice murder could be shown by evidence that the defendant acted when no considerable provocation appeared and when all the circumstances of the killing showed an abandoned and malignant heart. Allen v. State, 284 Ga. 310 , 667 S.E.2d 54 (2008).
Evidence was sufficient to convict the defendant of malice murder, instead of voluntary manslaughter, because, after the victim helped the victim's niece escape a fight with the defendant and tried to leave with the victim's niece, the defendant chased after the victim and the victim's fiance; the defendant used a bolt-action rifle to fire four shots into the victim from close range, killing the victim; the defendant was not acting solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person; and there was an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard. Sears v. State, 298 Ga. 400 , 782 S.E.2d 259 (2016).
Evidence was sufficient to convict the defendant of malice murder and possession of a firearm by a convicted felon because the defendant told the victim that the defendant did not have any drugs to sell; the victim hit the defendant in the head with a brick; when the defendant and the defendant's cohorts later caught the victim, they took turns hitting, kicking, and stomping on the victim; the defendant pistol-whipped the victim before shooting the victim in the back; and there was an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, requiring that the killing be attributed to deliberate revenge and be punished as murder. Robinson v. State, 299 Ga. 648 , 791 S.E.2d 13 (2016).
Evidence insufficient to support convictions. - Defendant was entitled to reversal of the convictions for voluntary manslaughter because there was no evidence of sudden provocation by the baby, nor was there evidence to support the inference that the defendant was so angry at the baby's father that the defendant acted out of an irresistible passion and killed the baby, permitting conviction based on the doctrine of transferred intent. Graham v. State, 320 Ga. App. 714 , 740 S.E.2d 649 (2013).
RESEARCH REFERENCES
Am. Jur. 2d. - 40A Am. Jur. 2d, Homicide, § 48 et seq.
C.J.S. - 40 C.J.S., Homicide, § 112 et seq.
ALR. - Acquittal on charge as to one as bar to charge as to the other, where one person is killed or assaulted by acts directed at another, 2 A.L.R. 606 .
Homicide by wanton or reckless use of firearm without express intent to inflict injury, 5 A.L.R. 603 ; 23 A.L.R. 1554 .
Drunkenness as affecting existence of elements essential to murder in second degree, 8 A.L.R. 1052 .
Homicide by unlawful act aimed at another, 18 A.L.R. 917 .
Homicide as affected by humanitarian motives, 25 A.L.R. 1007 .
Absence of evidence supporting charge of lesser degree of homicide as affecting duty of court to instruct as to, or right of jury to convict of, lesser degree, 102 A.L.R. 1019 .
Corpus delicti in prosecution for killing of newborn child, 159 A.L.R. 523 .
Test or criterion of term "culpable negligence," "criminal negligence," or "gross negligence," appearing in statute defining or governing manslaughter, 161 A.L.R. 10 .
Homicide: causing one, by threats or fright, to leap or fall to his death, 25 A.L.R.2d 1186.
Who other than actor is liable for manslaughter, 95 A.L.R.2d 175.
Homicide based on killing of unborn child, 40 A.L.R.3d 444, 64 A.L.R.5th 671.
Homicide predicated on improper treatment of disease or injury, 45 A.L.R.3d 114.
Homicide by withholding food, clothing, or shelter, 61 A.L.R.3d 1207.
Spouse's confession of adultery as affecting degree of homicide involved in killing spouse or his or her paramour, 93 A.L.R.3d 925.
Judicial abrogation of felony-murder doctrine, 13 A.L.R.4th 1226.
Accused's right, in homicide case, to have jury instructed as to both unintentional shooting and self-defense, 15 A.L.R.4th 983.
Propriety of manslaughter conviction in prosecution for murder, absent proof of necessary elements of manslaughter, 19 A.L.R.4th 861.
Propriety of lesser-included-offense charge of voluntary manslaughter to jury in state murder prosecution - Twenty-first century cases, 3 A.L.R.6th 543.
Sufficiency of evidence to support homicide conviction where no body was produced, 65 A.L.R.6th 359.
16-5-3. Involuntary manslaughter.
- A person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony. A person who commits the offense of involuntary manslaughter in the commission of an unlawful act, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than ten years.
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A person commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner when he causes the death of another human being without any intention to do so, by the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm. A person who commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner, upon conviction thereof, shall be punished as for a misdemeanor.
(Laws 1833, Cobb's 1851 Digest, p. 784; Code 1863, §§ 4224, 4225, 4226; Code 1868, §§ 4261, 4262, 4263; Code 1873, §§ 4327, 4328, 4329; Code 1882, §§ 4327, 4328, 4329; Penal Code 1895, §§ 67, 68, 69; Penal Code 1910, §§ 67, 68, 69; Code 1933, §§ 26-1009, 26-1010; Ga. L. 1951, p. 737, § 1; Code 1933, § 26-1103, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1984, p. 397, § 1.)
Law reviews. - For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For annual survey on criminal law and procedure, 42 Mercer L. Rev. 141 (1990). For article, "New Challenges for the Georgia General Assembly: Survey of Child Endangerment Statutes," see 7 Ga. St. B. J. 8 (2001). For note discussing the felony-murder rule, and proposing legislation to place limitations on Georgia's felony-murder statute, see 9 Ga. St. B. J. 462 (1973).
JUDICIAL DECISIONS
ANALYSIS
- General Consideration
- Intent
- Causation
- Unlawful Act Involuntary Manslaughter
- Lawful Act - Unlawful Manner Involuntary Manslaughter
- Criminal Negligence
- Indictment
- Jury Instructions
- Indictment
- Application Generally
General Consideration
Editor's notes. - In light of the similarity of the provisions, decisions under former Code 1863, § 4222, former Code 1868, § 4258, former Code 1873, § 4327, former Code 1882, § 4327, former Penal Code 1895, §§ 65, 67, former Penal Code 1910, § 67, and former Code 1933, § 26-1009, as they read prior to revision of title by Ga. L. 1968, p. 1249, are included in the annotations for this Code section.
Former Code 1933, § 26-1103 was not unconstitutional for classifying improperly. State v. Edwards, 236 Ga. 104 , 222 S.E.2d 385 (1976) (see O.C.G.A. § 16-5-3 ).
First element of the corpus delicti is that the person alleged to have been killed is actually dead. Vassy v. State, 166 Ga. App. 854 , 305 S.E.2d 664 (1983).
Involuntary manslaughter requires intent to do act from which death results, but does not require intent to kill. Hardrick v. State, 96 Ga. App. 670 , 101 S.E.2d 99 (1957) (decided under former Code 1933, § 26-1007).
There can be no involuntary manslaughter where intention is to kill. Jackson v. State, 69 Ga. App. 707 , 26 S.E.2d 485 (1943) (decided under former Code 1933, § 26-1007).
When one voluntarily shoots at another and the shot kills, the homicide cannot be involuntary; and where, under no rational view of the facts, the killing can be involuntary homicide, judge should not confuse jury by charge on law concerning that offense. Harris v. State, 55 Ga. App. 189 , 189 S.E. 680 (1937) (decided under former Code 1933, § 26-1007).
Everyone is presumed to intend natural, probable consequences of conduct, particularly if unlawful and dangerous to safety and lives of others. Jackson v. State, 204 Ga. 47 , 48 S.E.2d 864 (1984) (decided under former Code 1933, § 26-1007).
Involuntary manslaughter is an unintentional homicide. Coggins v. State, 227 Ga. 426 , 181 S.E.2d 47 (1971).
There are two types of involuntary manslaughter, both involving death of another human being without any intention to do so; former Code 1933, § 26-1103 concerned itself with type of involuntary manslaughter which was applicable only to those cases wherein death results by commission of unlawful act other than a felony. Ruff v. State, 150 Ga. App. 238 , 257 S.E.2d 203 (1979) (see O.C.G.A. § 16-5-3(a) ).
Involuntary manslaughter in the commission of a lawful act is a lesser included offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner. Maloof v. State, 139 Ga. App. 787 , 229 S.E.2d 560 (1976).
Mislabeled count. - Trial court erred in entering judgment and imposing a sentence on an allegedly mislabeled count under the guise that the jury found the defendant guilty of homicide by vehicle in the first degree instead of involuntary manslaughter when the jury specifically acquitted the defendant on another charge of homicide by vehicle in the first degree based upon the same act and against the same victim. Taylor v. State, 295 Ga. App. 689 , 673 S.E.2d 7 , aff'd, 286 Ga. 328 , 687 S.E.2d 409 (2009).
Vehicular deaths have been excepted from other forms of involuntary manslaughter and established as misdemeanors except in cases of reckless driving or vehicular offenses connected with police vehicles. Berrian v. State, 139 Ga. App. 571 , 228 S.E.2d 737 (1976).
Trial court did not err in failing to compel the state to prosecute the defendant under the involuntary manslaughter statute rather than the vehicular homicide statute for the General Assembly made a rational distinction between the two offenses. Williams v. State, 171 Ga. App. 546 , 320 S.E.2d 389 (1984).
Cited in Byars v. State, 92 Ga. App. 511 , 88 S.E.2d 818 (1955); Teal v. State, 122 Ga. App. 532 , 177 S.E.2d 840 (1970); Henderson v. State, 227 Ga. 68 , 179 S.E.2d 76 (1970); Tate v. State, 123 Ga. App. 18 , 179 S.E.2d 307 (1970); Teasley v. State, 228 Ga. 107 , 184 S.E.2d 179 (1971); Addison v. State, 124 Ga. App. 467 , 184 S.E.2d 186 (1971); Summerour v. State, 124 Ga. App. 484 , 184 S.E.2d 365 (1971); Witt v. State, 124 Ga. App. 535 , 184 S.E.2d 517 (1971); Garrett v. State, 126 Ga. App. 83 , 189 S.E.2d 860 (1972); Rowell v. State, 128 Ga. App. 138 , 195 S.E.2d 790 (1973); Parks v. State, 230 Ga. 157 , 195 S.E.2d 911 (1973); Owens v. State, 130 Ga. App. 25 , 202 S.E.2d 211 (1973); Powell v. State, 130 Ga. App. 588 , 203 S.E.2d 893 (1974); Elsasser v. State, 132 Ga. App. 868 , 209 S.E.2d 686 (1974); Davis v. State, 233 Ga. 638 , 212 S.E.2d 814 (1975); Barker v. State, 233 Ga. 781 , 213 S.E.2d 624 (1975); Chappell v. State, 134 Ga. App. 375 , 214 S.E.2d 392 (1975); Parks v. State, 234 Ga. 579 , 216 S.E.2d 804 (1975); Jones v. State, 234 Ga. 648 , 217 S.E.2d 597 (1975); Ray v. State, 235 Ga. 467 , 219 S.E.2d 761 (1975); Tennon v. State, 235 Ga. 594 , 220 S.E.2d 914 (1975); Whitley v. State, 137 Ga. App. 245 , 223 S.E.2d 279 (1976); Baker v. State, 236 Ga. 754 , 225 S.E.2d 269 (1976); Jones v. State, 138 Ga. App. 828 , 227 S.E.2d 519 (1976); Robertson v. State, 140 Ga. App. 506 , 231 S.E.2d 367 (1976); Price v. State, 141 Ga. App. 335 , 233 S.E.2d 462 (1977); Torley v. State, 141 Ga. App. 366 , 233 S.E.2d 476 (1977); Hixson v. State, 239 Ga. 134 , 236 S.E.2d 78 (1977); Prince v. State, 142 Ga. App. 734 , 236 S.E.2d 918 (1977); Smith v. State, 142 Ga. App. 810 , 237 S.E.2d 216 (1977); Buckner v. State, 239 Ga. 838 , 239 S.E.2d 22 (1977); Braxton v. State, 240 Ga. 10 , 239 S.E.2d 339 (1977); Maloof v. State, 145 Ga. App. 408 , 243 S.E.2d 634 (1978); Reid v. State, 145 Ga. App. 302 , 243 S.E.2d 700 (1978); Morrison v. State, 147 Ga. App. 410 , 249 S.E.2d 131 (1978); Wilson v. State, 147 Ga. App. 560 , 249 S.E.2d 361 (1978); Newsome v. State, 149 Ga. App. 415 , 254 S.E.2d 381 (1979); State v. Allen, 243 Ga. 508 , 256 S.E.2d 381 (1979); Cross v. State, 150 Ga. App. 206 , 257 S.E.2d 330 (1979); Ballard v. State, 150 Ga. App. 704 , 258 S.E.2d 331 (1979); Simpson v. State, 150 Ga. App. 84 , 258 S.E.2d 634 (1979); Spradlin v. State, 151 Ga. App. 585 , 260 S.E.2d 517 (1979); Futch v. State, 151 Ga. App. 519 , 260 S.E.2d 520 (1979); Boling v. State, 244 Ga. 825 , 262 S.E.2d 123 (1979); Phelps v. State, 245 Ga. 338 , 265 S.E.2d 53 (1980); Arnett v. State, 245 Ga. 470 , 265 S.E.2d 771 (1980); Dean v. State, 245 Ga. 503 , 265 S.E.2d 805 (1980); Henderson v. State, 53 Ga. App. 801 , 266 S.E.2d 522 (1980); Head v. State, 246 Ga. 360 , 271 S.E.2d 452 (1980); Horne v. State, 155 Ga. App. 851 , 273 S.E.2d 193 (1980); Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980); Truitt v. State, 158 Ga. App. 337 , 280 S.E.2d 384 (1981); Stewart v. State, 158 Ga. App. 378 , 280 S.E.2d 403 (1981); Cervi v. State, 248 Ga. 325 , 282 S.E.2d 629 (1981); Martin v. State, 159 Ga. App. 31 , 282 S.E.2d 656 (1981); Nutt v. State, 159 Ga. App. 46 , 282 S.E.2d 696 (1981); McCorquodale v. Balkcom, 525 F. Supp. 408 (N.D. Ga. 1981); Neal v. State, 160 Ga. App. 498 , 287 S.E.2d 399 (1981); Williams v. State, 249 Ga. 6 , 287 S.E.2d 31 (1982); Billings v. State, 161 Ga. App. 500 , 288 S.E.2d 622 (1982); Donaldson v. State, 249 Ga. 186 , 289 S.E.2d 242 (1982); Anderson v. State, 249 Ga. 238 , 290 S.E.2d 40 (1982); Green v. State, 249 Ga. 369 , 290 S.E.2d 466 (1982); Perault v. State, 162 Ga. App. 294 , 291 S.E.2d 122 (1982); Miller v. State, 162 Ga. App. 759 , 292 S.E.2d 481 (1982); Washington v. State, 249 Ga. 728 , 292 S.E.2d 836 (1982); Smith v. State, 249 Ga. 801 , 294 S.E.2d 525 (1982); Stewart v. State, 163 Ga. App. 735 , 295 S.E.2d 112 (1982); Williams v. State, 249 Ga. 822 , 295 S.E.2d 293 (1982); Rucker v. State, 250 Ga. 371 , 297 S.E.2d 481 (1982); McClain v. State, 165 Ga. App. 264 , 299 S.E.2d 55 (1983); Dollar v. State, 168 Ga. App. 726 , 310 S.E.2d 236 (1983); Ward v. State, 252 Ga. 85 , 311 S.E.2d 449 (1984); Wilson v. State, 171 Ga. App. 120 , 318 S.E.2d 705 (1984); Keller v. State, 253 Ga. 512 , 322 S.E.2d 243 (1984); Boyd v. State, 253 Ga. 515 , 322 S.E.2d 256 (1984); Bennett v. State, 254 Ga. 162 , 326 S.E.2d 438 (1985); Buie v. State, 254 Ga. 167 , 326 S.E.2d 458 (1985); Wigfall v. State, 257 Ga. 585 , 361 S.E.2d 376 (1987); Laney v. State, 184 Ga. App. 463 , 361 S.E.2d 841 (1987); Binns v. State, 258 Ga. 23 , 364 S.E.2d 871 (1988); Griffin v. State, 199 Ga. App. 646 , 405 S.E.2d 877 (1991); Dye v. State, 202 Ga. App. 31 , 413 S.E.2d 500 (1991); Nelson v. State, 262 Ga. 763 , 426 S.E.2d 357 (1993); Alexander v. State, 263 Ga. 474 , 435 S.E.2d 187 (1993); Powell v. State, 228 Ga. App. 56 , 491 S.E.2d 135 (1997); Walker v. State, 234 Ga. App. 295 , 507 S.E.2d 15 (1998); Cox v. State, 243 Ga. App. 668 , 533 S.E.2d 435 (2000); Vasser v. State, 273 Ga. 747 , 545 S.E.2d 906 (2001); Rhode v. State, 274 Ga. 377 , 552 S.E.2d 855 (2001); Reddick v. State, 264 Ga. App. 487 , 591 S.E.2d 392 (2003), overruled on other grounds by State v. Springer, 297 Ga. 376 , 774 S.E.2d 106 (2015); Ford v. Schofield, 488 F. Supp. 2d 1258 (N.D. Ga. 2007); In the Interest of D. D., 335 Ga. App. 676 , 782 S.E.2d 728 (2016); Lang v. State, 344 Ga. App. 623 , 812 S.E.2d 16 (2018); Parks v. State, 304 Ga. 313 , 818 S.E.2d 502 (2018).
Intent
When doubt exists as to intention to kill, court should charge involuntary manslaughter. - If there is any evidence to raise doubt, even though slight, as to intention to kill, court should give in charge the law of involuntary manslaughter, but if there is nothing to raise such a doubt, failure to charge on that subject will not require new trial. Warnack v. State, 3 Ga. App. 590 , 60 S.E. 288 (1908), later appeal, 5 Ga. App. 816 , 63 S.E. 935 (1909) (decided under former Penal Code 1895, §§ 65, 67) Warnack v. State, 7 Ga. App. 73 , 66 S.E. 393 (1909), , Hilburn v. State, 57 Ga. App. 854 , 197 S.E. 73 (1938);later appeal (decided under former Code 1933, § 26-1009).
Court should charge on both murder and manslaughter when there is doubt. - When there is evidence sufficient to raise a doubt, however slight, whether offense is murder or manslaughter, voluntary or involuntary, court should instruct jury upon these grades of manslaughter as well as murder. Ivey v. State, 42 Ga. App. 357 , 156 S.E. 290 (1930) (decided under former Penal Code 1910, § 65); Goldsmith v. State, 54 Ga. App. 268 , 187 S.E. 694 (1936) (decided under former Code 1933, § 26-1007).
One intentionally shooting another in self-defense. - Defendant who causes death of another person by intentional firing of gun, allegedly in self-defense, cannot then claim that the death was unintentional. Mullins v. State, 157 Ga. App. 204 , 276 S.E.2d 877 (1981), overruled on other grounds, Bangs v. State, 198 Ga. App. 404 , 401 S.E.2d 599 (1991).
It is not error to refuse a request to charge lawful act - unlawful manner - involuntary manslaughter when defendant asserts that he or she acted in self-defense by use of a pistol, rifle, or shotgun. One who causes death of another human being by use of a gun allegedly in self-defense will not be heard to assert that although he or she used excessive force, death was not intended and act was lawful. Farmer v. State, 246 Ga. 253 , 271 S.E.2d 166 (1980).
It is not necessary to give request to charge law as to involuntary manslaughter, where defendant asserts that he or she fired a gun in self-defense. Crawford v. State, 245 Ga. 89 , 263 S.E.2d 131 (1980); Colbert v. State, 250 Ga. 126 , 296 S.E.2d 588 (1982).
One who causes death of another by use of gun, allegedly in self-defense, will not be heard to assert that, although he or she used excessive force, death was not intended and act was lawful. Appleby v. State, 247 Ga. 587 , 278 S.E.2d 366 (1981).
Presumption of malice may arise from reckless disregard for human life. - Wanton and reckless state of mind is sometimes equivalent of specific intent to kill, and such state of mind may be treated by jury as amounting to such intention when willful and intentional performance of an act is productive of violence resulting in destruction of human life. Biegun v. State, 206 Ga. 618 , 58 S.E.2d 149 (1950) (decided under former Code 1933, § 26-1007).
Deadly character and manner in which weapon is used is not conclusive of intent to kill, but is only illustrative of such intent, and where from any circumstance there is doubt of accused's intention to kill, trial court must not exclude question of such intent from consideration of jury by failure to charge lesser offenses included in charge of murder, where from evidence and reasonable inferences to be drawn therefrom the jury would be authorized to find that no intention to kill existed. Jenkins v. State, 86 Ga. App. 800 , 72 S.E.2d 541 (1952) (decided under former Code 1933, § 26-1007).
Deadly weapon may be used so as not to raise presumption of malice, but to leave intent as question of fact for jury. Thus, to strike one with barrel of a pistol, instead of shooting the victim with the weapon, or to strike with handle of a dirk, instead of with the blade, would not be the ordinary way of using such weapon to kill, and the intention to kill would be a question of fact rather than of presumption. Huntsinger v. State, 200 Ga. 127 , 36 S.E.2d 92 (1945) (decided under former Code 1933, § 26-1007).
Where gun is fired deliberately and death results, court may refuse to charge involuntary manslaughter. Benford v. State, 158 Ga. App. 43 , 279 S.E.2d 236 (1981), overruled on other grounds, Bangs v. State, 198 Ga. App. 404 , 401 S.E.2d 599 (1991).
Shooting victim nine times in back. - Evidence showing victim had been shot nine times in back by defendant defies conclusion that there was no intention to cause death; such evidence authorizes jury to convict for murder or voluntary manslaughter, each of which requires intentional killing, or to acquit as self-defense, in which killing might or might be intentional, but simply does not support finding of unintentional killing. Hudson v. State, 146 Ga. App. 463 , 246 S.E.2d 470 (1978).
When defendant admittedly intended to shoot close to victim. - In murder prosecution, court did not err in refusing to charge on involuntary manslaughter after the defendant stated that the defendant had intended to shoot close to the victim, a 12-year-old boy who was leaning against defendant's car, but not to hit the boy. Moody v. State, 244 Ga. 247 , 260 S.E.2d 11 (1979).
When seventy-five knife wounds were inflicted upon victim. - Seventy-five knife wounds inflicted leaves no doubt on question of intent or voluntariness and failure of trial court to charge involuntary manslaughter was warranted. Anderson v. State, 248 Ga. 682 , 285 S.E.2d 533 (1982).
Causation
Independent, intervening, unforeseeable cause of death. - In every case of involuntary manslaughter, death must be due to unlawful act of defendant, and not to intervening act or negligence of a third person; or to an independent intervening cause in which defendant did not participate and which defendant could not foresee, and death must have been the natural and probable consequence of such unlawful act and the act the proximate cause. Fair v. State, 171 Ga. 112 , 155 S.E. 329 (1930) (decided under former Penal Code 1910, § 65); Thomas v. State, 91 Ga. App. 382 , 85 S.E.2d 644 (1955) (decided under former Code 1933, § 26-1007).
Wound leaving victim more susceptible to disease or other intervening agencies. - When one commits a battery upon another, or inflicts a wound, which battery or wound is not likely in itself to produce death, but which renders the other person more susceptible to disease, or leaves the other person at mercy of elements or some other intervening agency, which brings about the person's death, the original wounding or battery of deceased is in a legal sense the cause of death. Wyrick v. State, 96 Ga. App. 847 , 102 S.E.2d 53 (1958) (decided under former Code 1933, § 26-1007).
Death from combined effects of injury and disease attributed to former. - If deceased was in feeble health and died from combined effects of injury and of disease, the person who inflicted injury is liable, although injury alone would not have been fatal. Wells v. State, 46 Ga. App. 412 , 167 S.E. 709 (1933) (decided under former Penal Code 1910, § 65).
One inflicting injury which accelerates death from disease. - If deceased was in feeble health and injury inflicted accelerated death from disease, even if disease itself would probably have been fatal, he who inflicted injury is liable, although injury alone would not have been fatal. Wells v. State, 46 Ga. App. 412 , 167 S.E. 709 (1933).
Insufficient evidence for involuntary manslaughter conviction in death of inmate. - Evidence was insufficient to convict the defendant, the supervisor for the medical department for the county sheriff's office, of involuntary manslaughter based on the death of the victim, an inmate who died while incarcerated, because the state did not show that the defendant's reckless conduct in failing to provide proper medical care and treatment for the victim's kidney disorder was the proximate cause of the victim's death as the prosecution did not present evidence showing that the defendant's reckless conduct played a substantial part in bringing about or actually causing the victim's death, and the state did not show that the victim's death was a direct or reasonably probable consequence of the defendant's actions or inactions. Evans v. State, 346 Ga. App. 739 , 816 S.E.2d 843 (2018).
Death resulting from injuries sustained in escaping assault. - When one perpetrates an assault upon another, and the other, in an effort to escape, runs into a place of danger, and there sustains injuries which result in death, in a legal sense, death resulted from assault, though such assault taken by itself would not likely have produced death. Wyrick v. State, 96 Ga. App. 847 , 102 S.E.2d 53 (1958) (decided under former Code 1933, § 26-1007).
Unlawful Act Involuntary Manslaughter
Essential elements of involuntary manslaughter in commission of an unlawful act are, first, intentional commission of an unlawful act, and, second, killing of a human being without having so intended, but as proximate result of such intended act. Wells v. State, 44 Ga. App. 760 , 162 S.E. 835 (1932) (decided under former Penal Code 1910, § 65); Passley v. State, 62 Ga. App. 88 , 8 S.E.2d 131 (1940) (decided under former Code 1933, § 26-1007); Williams v. State, 96 Ga. App. 833 , 101 S.E.2d 747 (1958) (decided under former Code 1933, § 26-1007); Thacker v. State, 103 Ga. App. 36 , 117 S.E.2d 913 (1961) (decided under former Code 1933, § 26-1007); Bond v. State, 104 Ga. App. 627 , 122 S.E.2d 310 (1961) (decided under former Code 1933, § 26-1007).
Essential elements of involuntary manslaughter in commission of unlawful act are, first, intent to commit unlawful act, and secondly, killing of human being without having so intended, but as proximate result of such intended unlawful act. Paulhill v. State, 229 Ga. 415 , 191 S.E.2d 842 (1972).
An unlawful act within meaning of section is an act prohibited by law; that is to say, an act condemned by some statute or valid municipal ordinance of this state. Silver v. State, 13 Ga. App. 722 , 79 S.E. 919 (1913) (decided under former Penal Code 1910, § 65); Perry v. State, 78 Ga. App. 273 , 50 S.E.2d 709 (1948) (decided under former Code 1933, § 26-1007); Walters v. State, 90 Ga. App. 360 , 83 S.E.2d 48 (1954) (decided under former Code 1933, § 26-1007).
Unlawful act involuntary manslaughter can stem from acts malum prohibitum or acts malum in se. Silver v. State, 13 Ga. App. 722 , 79 S.E. 919 (1913) (decided under former Penal Code 1910, § 65); Perry v. State, 78 Ga. App. 273 , 50 S.E.2d 709 (1948) (decided under former Code 1933, § 26-1007).
Involuntary manslaughter in commission of an unlawful act is not a reducible felony. Hardrick v. State, 96 Ga. App. 670 , 101 S.E.2d 99 (1957) (decided under former Code 1933, § 26-1007).
To be entitled to a charge on involuntary manslaughter under O.C.G.A. § 16-5-3 , the evidence had to support the conclusion that the killing resulted unintentionally from an unlawful act other than a felony. Oliver v. State, 274 Ga. 539 , 554 S.E.2d 474 (2001).
In defining involuntary manslaughter, court should give rules. - In defining involuntary manslaughter it is error for court to fail to give in charge to jury, even without request, rules of law applicable in determining what is an unlawful act. Pope v. State, 52 Ga. App. 411 , 183 S.E. 630 (1936) (decided under former Code 1933, § 26-1007).
Unlawful act involuntary manslaughter requires intentional commission of unlawful act. Solomon v. State, 113 Ga. App. 116 , 147 S.E.2d 467 (1966) (decided under former Code 1933, § 26-1007).
When involuntary manslaughter may be established by unlawful act committed unintentionally. - Involuntary manslaughter may be proved by evidence showing that an unlawful act was committed unintentionally, but as a result of conduct so reckless that it imports a thoughtless disregard for consequences or indifference to safety to others and reasonable foresight that death or bodily harm will result. Solomon v. State, 113 Ga. App. 116 , 147 S.E.2d 467 (1966) (decided under former Code 1933, § 26-1007).
Subsection (a) construed. - O.C.G.A. § 16-5-3(a) is properly not charged when defendant's action would constitute a felony (assault with a deadly weapon). Lancaster v. State, 250 Ga. 871 , 301 S.E.2d 882 (1983); Smith v. State, 253 Ga. 476 , 322 S.E.2d 58 (1984).
Not unlawful act of victim. - Unlawful act referred to in statute was act of person committing manslaughter, not act of victim. McManus v. State, 130 Ga. App. 840 , 204 S.E.2d 813 (1974).
Cause in fact of death. - Statute requires that unlawful act be cause in fact of victim's death. Burns v. State, 240 Ga. 827 , 242 S.E.2d 579 (1978).
Intentionally pointing a pistol at another in fun or otherwise. - Intentionally to point a pistol or gun at another, not intending to shoot is unlawful, and if the weapon is accidentally discharged, the crime would be involuntary manslaughter. Leonard v. State, 133 Ga. 435 , 66 S.E. 251 (1909) (decided under former Penal Code 1895, §§ 65, 67); Baker v. State, 12 Ga. App. 553 , 77 S.E. 884 (1913) (decided under former Penal Code 1910, §§ 65, 67).
Intentionally to point a pistol at another, in fun or otherwise, save in instances excepted by statute, is unlawful; and if, while performing such unlawful act, the pistol is accidentally discharged, the person so acting, if not guilty of murder, would be guilty of involuntary manslaughter in commission of an unlawful act. Delegal v. State, 92 Ga. App. 744 , 90 S.E.2d 32 (1955) (decided under former Code 1933, § 26-1007).
Evidence was sufficient to sustain defendant's conviction when testimony showed that the defendant, a minor, was unlawfully in possession of a handgun which defendant had cocked and recklessly pointed at another causing that person's death. Smith v. State, 234 Ga. App. 314 , 506 S.E.2d 659 (1998).
Russian Roulette. - Involuntary manslaughter conviction was supported by sufficient evidence after a witness saw the defendant pull a handgun from a pocket, pull the gun's handle back, and make a downward motion, after which the gun fired, injuring the victim, who died of the wound two days later; additionally, the defendant twice contacted the witness after the shooting and asked the witness to lie and implicate another person as the perpetrator, and admitted to an agent that the victim was shot during a game of "Russian Roulette." Kelly v. State, 277 Ga. App. 762 , 627 S.E.2d 458 (2006).
Carrying of a concealed weapon was not an "unlawful act other than a felony" that justified a charge on felony involuntary manslaughter in a prosecution for voluntary manslaughter; the concealment, while unlawful, did not cause the death, defendant's firing of the gun did so. Carlton v. State, 224 Ga. App. 315 , 480 S.E.2d 336 (1997).
Accidental discharge of pistol killing bystander. - Assault upon officer, causing accidental discharge of the officer's pistol, thereby killing bystander constitutes involuntary manslaughter. Grey v. State, 126 Ga. App. 357 , 190 S.E.2d 557 (1972).
Death of a child resulting from a negligent omission to comply with the parental duty stated in O.C.G.A. § 19-7-2 would amount to involuntary manslaughter by the commission of an unlawful act. Lewis v. State, 180 Ga. App. 369 , 349 S.E.2d 257 (1986).
Lesser included offense of murder. - Rational trier of fact could reasonably have found the defendant guilty beyond a reasonable doubt of murder. Under such circumstances, the jury was certainly authorized to find defendant guilty of felony-grade involuntary manslaughter as a lesser included offense. Thomas v. State, 183 Ga. App. 819 , 360 S.E.2d 75 (1987).
In homicide trial, defendant's act was clearly felony of aggravated assault, not the misdemeanor of pointing a weapon at another, where the testimony showed that victim, as well as the three passengers in the victim's car, were aware of and understandably apprehensive of immediate violent injury, and defendant's own testimony ("I was showing the gun to him so he would leave me alone.") revealed that defendant's purpose in pointing the weapon was to place the victim in apprehension of immediate violent injury, and the request for a charge on misdemeanor manslaughter was properly denied. Rhodes v. State, 257 Ga. 368 , 359 S.E.2d 670 (1987); Rameau v. State, 267 Ga. 261 , 477 S.E.2d 118 (1996).
Because the unlawful use of a knife, a deadly weapon, while repeatedly stabbing the victim constituted the felony of aggravated assault, a charge on involuntary manslaughter would have been improper. Harris v. State, 257 Ga. 385 , 359 S.E.2d 675 (1987).
Defendant was, at the very least, engaged in the commission of an aggravated assault when defendant pointed the gun at the victim and the gun fired, since aggravated assault is a felony, the trial court did not err by refusing to charge on felony involuntary manslaughter. Brooks v. State, 262 Ga. 187 , 415 S.E.2d 903 (1992).
Driving under influence of whiskey on wrong side of road supports conviction of involuntary manslaughter in commission of unlawful act. Tillman v. State, 61 Ga. App. 724 , 7 S.E.2d 285 (1940) (decided under former Code 1933, § 26-1007).
Intent to harm victim not inconsistent with conscious disregard of risk of harming another. - Multiple guilty verdicts for the same conduct that are based on varying levels of mens rea are not mutually exclusive; therefore, the jury's verdicts that the defendant, by shooting a gun in a parking lot and killing a bystander, was guilty of aggravated assault under O.C.G.A. § 16-5-21 and involuntary manslaughter predicated on reckless conduct, O.C.G.A. §§ 16-5-3(a) and 16-5-60(b) , were not inconsistent because the defendant could both commit assault with the intent to harm the victim and, at the same time, consciously disregard a substantial risk of harming another. State v. Springer, 297 Ga. 376 , 774 S.E.2d 106 (2015).
Underlying misdemeanor of reckless conduct. - An indictment against a defendant is not defective where the felony of involuntary manslaughter is based on an underlying misdemeanor of reckless conduct. Turnipseed v. State, 186 Ga. App. 278 , 367 S.E.2d 259 (1988).
Verdicts for aggravated assault and involuntary manslaughter/reckless conduct not inconsistent. - Multiple guilty verdicts for the same conduct that are based on varying levels of mens rea are not mutually exclusive; therefore, the jury's verdicts that the defendant, by shooting a gun in a parking lot and killing a bystander, was guilty of aggravated assault under O.C.G.A. § 16-5-21 and involuntary manslaughter predicated on reckless conduct, O.C.G.A. §§ 16-5-3(a) and 16-5-60(b) , were not inconsistent because the defendant could both commit assault with the intent to harm the victim and, at the same time, consciously disregard a substantial risk of harming another. State v. Springer, 297 Ga. 376 , 774 S.E.2d 106 (2015).
Evidence insufficient. - In a prosecution for malice murder, where the jury was not authorized by the evidence to find that the death occurred as a result of an unlawful act other than a felony, the trial court correctly refused to give a charge on involuntary manslaughter. Smith v. State, 267 Ga. 838 , 483 S.E.2d 589 (1997).
Lawful Act - Unlawful Manner Involuntary Manslaughter
Essential elements of offense of involuntary manslaughter in commission of a lawful act, are: (1) killing of a human being; (2) without any intention to do so; (3) in commission of a lawful act; (4) which might probably produce death; and (5) in a manner not justified by law. Roughlin v. State, 17 Ga. App. 205 , 86 S.E. 452 (1915) (decided under former Penal Code 1910, § 65).
In defining lawful act - unlawful manner involuntary manslaughter, it is best to address criminal negligence. - In absence of timely written request for broader instruction, it is sufficient to define offense of involuntary manslaughter in the commission of a lawful act without due caution and circumspection in language of section, although it is better to charge that it must result from criminal negligence, which is something more than ordinary negligence which would authorize a recovery in a civil action. Jordan v. State, 103 Ga. App. 493 , 120 S.E.2d 30 (1961) (decided under former Code 1933, § 26-1007).
To render lawful act carelessly performed, resulting in death criminal, carelessness must have been gross, implying indifference to consequences. Collins v. State, 66 Ga. App. 325 , 18 S.E.2d 24 (1941) (decided under former Code 1933, § 26-1007).
Lawful act - unlawful manner involuntary manslaughter need not be charged absent request. - There was no error in failing to charge on involuntary manslaughter by committing a lawful act in an unlawful manner where there was no request for such charge. Hart v. State, 157 Ga. App. 716 , 278 S.E.2d 419 (1981).
Use of excessive force in self defense as involuntary manslaughter. - Self-defense is a lawful act which can be performed in an unlawful manner should jury conclude that more force was utilized than necessary. Hodge v. State, 153 Ga. App. 553 , 265 S.E.2d 878 (1980), overruled on other grounds, Bangs v. State, 198 Ga. App. 404 , 401 S.E.2d 599 (1991).
When there is issue of excessive force in act of self-defense and denial of intent to kill, a jury is authorized to find that death was caused unintentionally by commission of a lawful act (self-defense) in an unlawful manner (use of excessive force). Mullins v. State, 157 Ga. App. 204 , 276 S.E.2d 877 (1981), overruled on other grounds, Bangs v. State, 198 Ga. App. 404 , 401 S.E.2d 599 (1991).
Provisions on involuntary manslaughter in the commission of a lawful act in an unlawful manner are applicable when evidence would authorize the jury to find that the defendant caused the death unintentionally while acting in self-defense but that defendant used excessive force. Facison v. State, 152 Ga. App. 645 , 263 S.E.2d 523 (1979).
When force used exceeds that necessary for self-defense, the law will consider defender the aggressor and if the defender's act results in a homicide, the offense is at least manslaughter. Spradlin v. State, 151 Ga. App. 585 , 260 S.E.2d 517 (1979), overruled on other grounds, Bangs v. State, 198 Ga. App. 404 , 401 S.E.2d 599 (1991).
Clearly reckless conduct. - Since the defendant's act of repeatedly striking a child over 100 times with a belt was so clearly reckless conduct that it could not qualify as a lawful act, the defendant was not entitled to a jury instruction on lawful act-unlawful manner involuntary manslaughter. Paul v. State, 274 Ga. 601 , 555 S.E.2d 716 (2001), cert. denied, 537 U.S. 828, 123 S. Ct. 123 , 154 L. Ed. 2 d 41 (2002).
Involuntary manslaughter based on use of excessive force is inapplicable where defendant used gun. - Although a defendant who uses a gun in self-defense is entitled to a charge on the law of self-defense, the defendant is not also entitled to the charge on the law of lawful act - unlawful manner involuntary manslaughter on the theory that force used was excessive. Appleby v. State, 247 Ga. 587 , 278 S.E.2d 366 (1981).
One who causes death of another by deliberate use, as opposed to accidental discharge, of a gun, allegedly in self-defense, will not be heard to assert that, although he or she used excessive force, death was not intended and the act was lawful; since the deadly force of a gun is known to all, and it cannot be argued that the excessive force of a gun was unintentional. Benford v. State, 158 Ga. App. 43 , 279 S.E.2d 236 (1981), overruled on other grounds, Bangs v. State, 198 Ga. App. 404 , 401 S.E.2d 599 (1991).
It is unnecessary to give instruction as to involuntary manslaughter where defendant asserts that he or she fired gun in self-defense. Pass v. State, 160 Ga. App. 64 , 286 S.E.2d 53 (1981).
Use of gun in self-defense in an unlawful manner constitutes crime of reckless conduct, under O.C.G.A. § 16-5-60 , and thus is not a lawful act within meaning of O.C.G.A. § 16-5-3(b) . Crawford v. State, 245 Ga. 89 , 263 S.E.2d 131 (1980); Farmer v. State, 246 Ga. 253 , 271 S.E.2d 166 (1980); Appleby v. State, 247 Ga. 587 , 278 S.E.2d 366 (1981); Pass v. State, 160 Ga. App. 64 , 286 S.E.2d 53 (1981).
Although excessive force by use of gun in self-defense will not authorize O.C.G.A. § 16-5-3(b) charge, excessive force by use of knife may; it can be error not to charge on O.C.G.A. § 16-5-3(b) if a knife was used in self-defense. Lancaster v. State, 250 Ga. 871 , 301 S.E.2d 882 (1983).
Effect of manslaughter conviction when charge requested and evidence supported murder conviction. - When there is evidence which supports a verdict of guilty of the more serious offense of murder, and there is slight evidence of the lesser included offense of manslaughter, the appellant, who requested a charge on and was convicted of the lesser offense, may not successfully urge that the evidence was insufficient. Vick v. State, 166 Ga. App. 572 , 305 S.E.2d 17 (1983).
Criminal Negligence
Element differentiating lowest grade of involuntary manslaughter from noncriminal killing is that in former, negligence must be more than ordinary negligence which would be sufficient to authorize recovery in civil action, and must go to extent of being gross or culpable negligence, whereas in latter there is absence of culpable negligence in performance of lawful act which resulted in death of human being. Collins v. State, 66 Ga. App. 325 , 18 S.E.2d 24 (1941) (decided under former Code 1933, § 26-1007).
Mere negligent killing, without more, may not amount to murder. Patterson v. State, 181 Ga. 698 , 184 S.E. 309 (1936) (decided under former Code 1933, § 26-1007).
Negligence which will render unintentional homicide criminal is such carelessness or recklessness as is incompatible with a proper regard for human life. An act of omission, as well as commission, may be so criminal as to render death resulting therefrom manslaughter; but the omission must be one likely to cause death. Foy v. State, 40 Ga. App. 617 , 150 S.E. 917 (1929) (decided under former Penal Code 1910, § 65).
Criminal negligence implies knowledge of willful or wanton disregard of probable effects. - Criminal negligence necessarily implies not only knowledge of probable consequences which may result from use of a given instrumentality, but also willful or wanton disregard of probable effects of such instrumentality upon others likely to be affected thereby. Consequently, criminal negligence is not shown as against a defendant who uses every means in the defendant's power for the safety of those whom it is alleged defendant's negligence has affected. Foy v. State, 40 Ga. App. 617 , 150 S.E. 917 (1929) (decided under former Penal Code 1910, § 65); Thomas v. State, 91 Ga. App. 382 , 85 S.E.2d 644 (1955) (decided under former Code 1933, § 26-1007).
Criminal negligence must be such as shows an indifference to injurious results of negligent acts and must be inconsiderate of others. In order for one to be held to have been indifferent to the safety of others or inconsiderate of their welfare, it must appear that the person knew, or that an ordinarily prudent person under similar circumstances would have known, that the person's act would probably endanger others. It seems obvious that, for an act thus to appear dangerous, there must of necessity be some commonly recognized danger inherent in it. The instrumentality in connection with which there is negligence must be of a kind that is dangerous because of the manner in which it is handled. Geele v. State, 203 Ga. 369 , 47 S.E.2d 283 (1948) (decided under former Code 1933, § 26-1007).
Negligence necessary to constitute crime is equivalent of and, in fact, is recklessness. Geele v. State, 203 Ga. 369 , 47 S.E.2d 283 (1948) (decided under former Code 1933, § 26-1007).
Indictment
Indictment defective. - State failed to allege that the defendant committed an unlawful act which under any circumstances could be the proximate cause of the unintentional death, thus the defendant's general demurrer should have been granted. Scraders v. State, 263 Ga. App. 754 , 589 S.E.2d 315 (2003).
Jury Instructions
Charge should cover involuntary manslaughter where there is doubt as to intention. - When evidence and statement, taken together or separately, raise doubt, although slight, as to intention to kill, law of involuntary manslaughter should be given in charge. Kerbo v. State, 230 Ga. 241 , 196 S.E.2d 424 (1973).
Charge on involuntary manslaughter unwarranted where killing was intentional. - Charge on involuntary manslaughter is not warranted where evidence establishes without conflict that killing was intentional rather than unintentional. Bullock v. State, 150 Ga. App. 824 , 258 S.E.2d 610 (1979); Ward v. State, 151 Ga. App. 36 , 258 S.E.2d 699 (1979); Ward v. State, 153 Ga. App. 743 , 266 S.E.2d 556 (1980).
Because the defendant conceded that the defendant shot at the victims intentionally, albeit in self defense, a charge on the lesser offense of involuntary manslaughter, which requires a lack of intent, was not warranted. Harris v. State, 272 Ga. 455 , 532 S.E.2d 76 (2000).
If jury authorized to find only intentional pointing of pistol, charge on involuntary manslaughter required. - If from testimony jury would have been authorized to find only an intentional pointing of a pistol, a misdemeanor, justifying a conviction of involuntary manslaughter in commission of unlawful act other than a felony, it was error not to charge the jury on involuntary manslaughter. Kerbo v. State, 230 Ga. 241 , 196 S.E.2d 424 (1973).
Charge on involuntary manslaughter not required when defendant testifies victim struck first blow. - While charge of involuntary manslaughter in commission of unlawful act might be required if defendant were guilty of a simple assault, such a charge is not required when defendant testifies that victim struck first blow by knocking defendant down. McManus v. State, 130 Ga. App. 840 , 204 S.E.2d 813 (1974).
Felonious involuntary manslaughter does not invoke felony-murder rule. - Voluntary manslaughter, and felony of involuntary manslaughter where it applies, are not themselves felonies which will invoke felony-murder rule as to death of main victim. Therefore, if jury finds felonious manslaughter, it should not go on to reason that this offense, being itself a felony, turns killing into a felony murder. The jury should be instructed in accordance with this principle. Malone v. State, 238 Ga. 251 , 232 S.E.2d 907 (1977).
Error in failure to charge on involuntary manslaughter. - Given evidence at trial that the defendant, age 15, may have been "playing with" a gun near the back of the defendant's father's head when the defendant shot the defendant's father, the trial court erred in refusing the defendant's request for a charge on involuntary manslaughter as a lesser included offense of malice murder, not just as a lesser included offense of felony murder, and appellate counsel was ineffective in failing to make this argument. Seabolt v. Norris, 298 Ga. 583 , 783 S.E.2d 913 (2016).
Felony or misdemeanor status, not jury consideration. - Even though the jurors indicated they would not have voted defendant guilty of involuntary manslaughter had they known it was punishable as a felony, the legal status of the crime (felony or misdemeanor) and the resulting punishment when a guilty verdict is returned, is of absolutely no concern to the jury. The juror's testimony clearly showed correct application of law to facts, so even if the charge confused the jury and was thus error despite being a correct statement of the law, any such error was harmless. Howard v. State, 213 Ga. App. 542 , 445 S.E.2d 532 (1994).
Jury instruction properly defining criminal negligence. - Court did not err in charging that "if you find that the death of the child occurred as a result of negligent omission of the defendant, then this negligent omission would be involuntary manslaughter by an unlawful act," since the court charged that, in order for the accused to be found guilty of any crime, the jury must determine beyond a reasonable doubt that the alleged criminal act or omission was committed with criminal intent or criminal negligence, and properly defined criminal negligence as "reckless conduct such as shows an indifference to the injurious results of a negligent act, and indifference to the safety of others, and a lack of consideration for their welfare." Lewis v. State, 180 Ga. App. 369 , 349 S.E.2d 257 (1986).
Charge on unlawful act involuntary manslaughter upheld where no reasonable view would support contrary finding. - When the court did not instruct on involuntary manslaughter in the commission of a lawful act in an unlawful manner, a misdemeanor, but instructed only on involuntary manslaughter in the commission of an unlawful act, a felony, and no reasonable view of the evidence would have authorized a finding that the death resulted from the commission of a lawful act, the charge was not defective. Lewis v. State, 180 Ga. App. 369 , 349 S.E.2d 257 (1986).
Instruction on involuntary manslaughter unwarranted. - Because the state did not allege that the felony murder victim died as a result of non-felony conduct, but the victim's death occurred as a result of the defendant's commission of a felony in the course of fleeing and attempting to elude the police, an involuntary manslaughter instruction was not warranted. Turner v. State, 281 Ga. 487 , 640 S.E.2d 25 (2007).
When the defendant was charged with felony murder, with cruelty to a child in the first degree as the underlying felony, the trial court properly denied the defendant's request for a jury instruction on felony involuntary manslaughter under O.C.G.A. § 16-5-3(a) as a lesser included offense. Contrary to the defendant's argument, the state did not present any evidence that the child died as a result of lack of medical care; furthermore, because the defendant argued that it was the child's parent who shook the child and that the defendant only tried to revive the child, such an instruction was not necessary because the evidence showed either the charged crime or no crime. Bostic v. State, 284 Ga. 864 , 672 S.E.2d 630 (2009).
In a murder prosecution, as defendant claimed the defendant killed the victim in self-defense, the defendant was not entitled to an additional instruction on involuntary manslaughter in the course of a lawful act under O.C.G.A. § 16-5-3(b) since if the defendant was justified in killing under the self-defense statute, O.C.G.A. § 16-3-21 , the defendant was guilty of no crime at all; but if the defendant was not so justified, the homicide did not occur in the course of a lawful act. Hooper v. State, 284 Ga. 824 , 672 S.E.2d 638 (2009).
With regard to a defendant's convictions for felony murder, with the underlying felony being rape, among other crimes, and although the defendant filed a written request for a jury charge on involuntary manslaughter, the defendant was not entitled to a jury charge on statutory rape as the defendant failed to specify statutory rape as the underlying misdemeanor. Further, the defendant was not entitled to such a jury charge as statutory rape was not a lesser included offense to forcible rape. Mangrum v. State, 285 Ga. 676 , 681 S.E.2d 130 (2009).
Uncontroverted forensic evidence that a four-year-old homicide victim had suffered repeated blows to the head, approximately 15, consistent with those inflicted in boxing, did not warrant an instruction on involuntary manslaughter under O.C.G.A. § 16-5-3(a) . This evidence was inconsistent with the commission of an unlawful act, such as battery or reckless conduct, other than a felony. Boyd v. State, 286 Ga. 166 , 686 S.E.2d 109 (2009).
Trial court did not err in refusing to charge a jury on involuntary manslaughter under O.C.G.A. § 16-5-3(a) because the defendant shot the victim, the defendant's spouse, three times in the chest, thigh, and the back of the victim's left arm, and the arm wound was sustained while the victim was either lying prone on the floor or crawling on the victim's hands and knees. These injuries were inconsistent with the commission of an unlawful act other than a felony, and certainly not consistent with the defendant's claimed misdemeanor of reckless conduct. Hall v. State, 287 Ga. 755 , 699 S.E.2d 321 (2010).
Trial court did not err by failing to give the defendant's requested charge on the lesser included offense of involuntary manslaughter, O.C.G.A. § 16-5-3 , because the defendant's admitted act of purposefully putting a gun to the fearful victim's head and pulling the trigger constituted the felony offense of aggravated assault, O.C.G.A. § 16-5-21 , not reckless conduct, O.C.G.A. § 16-5-60(b) ; the defendant's testimony that the victim began crying when the victim saw the gun provided evidence that the victim perceived the gun to be a loaded weapon that could be used to inflict a violent injury, which was a reasonable perception, and the jury's verdict of guilty on the felony murder charge established the existence of all the elements of the underlying felony offense of aggravated assault. Jones v. State, 289 Ga. 145 , 710 S.E.2d 127 (2011).
Trial court did not err by refusing to charge the jury on involuntary manslaughter, O.C.G.A. § 16-5-3 , because a charge on involuntary manslaughter was not generally allowed when the defendant alleged self-defense as the defendant did regarding the shots the defendant fired at the victim after the first shot, and under the facts, the defense of accident as to the first shot did not require such a charge; a charge on involuntary manslaughter in the commission of an unlawful act other than a felony was not required, given that the evidence relied upon by the defendant established either that the pistol discharged accidentally when the victim wrestled for the pistol's control or that the defendant intentionally fired the weapon. Davis v. State, 309 Ga. App. 831 , 711 S.E.2d 324 (2011).
Trial court did not err by denying the defendant's request to charge the jury on involuntary manslaughter as a lesser included offense of the felony murder charge because the defendant's admitted act of purposefully firing a gun at the victim constituted the felony offense of aggravated assault, not reckless conduct; the jury's verdict of guilty on the felony murder charge established the existence of all the elements of the underlying felony offense of aggravated assault. Kendrick v. State, 290 Ga. 873 , 725 S.E.2d 296 (2012).
In an action charging the defendant with felony murder while in the commission of aggravated battery, felony murder while in the commission of aggravated assault, felony murder while in the commission of cruelty to a child, two counts of aggravated battery, aggravated assault, cruelty to a child, and battery, the defendant was not entitled to a jury instruction on involuntary manslaughter as there was no evidence to find that the defendant committed the misdemeanor of reckless conduct or failure to seek medical care. Mathis v. State, 293 Ga. 35 , 743 S.E.2d 393 (2013).
Evidence did not support a charge for involuntary manslaughter as the defendant's act of firing from the car clearly established the felony of aggravated assault and not mere reckless conduct. Browder v. State, 294 Ga. 188 , 751 S.E.2d 354 (2013).
Trial counsel was not ineffective for failing to argue for involuntary manslaughter as a lesser included offense of murder, pursuant to O.C.G.A. § 16-5-3(a) , because the jury would have had to believe that the use of a loaded gun to strike the victim was not used as a deadly weapon, and the theory of the defense was that the defendant was not present. Wells v. State, 295 Ga. 161 , 758 S.E.2d 598 (2014).
Trial court did not err in denying the defendant's request to instruct the jury on involuntary manslaughter as a lesser included offense of malice murder as the evidence established either that the defendant intentionally shot and killed the victim or that the handgun discharged accidentally and, thus, there was no evidence to support such an instruction. Schmidt v. State, 297 Ga. 692 , 778 S.E.2d 152 (2015).
To the extent that the evidence showed that the defendant and the shooter shared a criminal intent to commit an assault upon the first victim, the defendant was chargeable with the foreseeable acts undertaken by the shooter in the furtherance of that shared intent, even if the shooter did something or employed some instrument that the defendant subjectively did not expect; thus, when the shooter employed a deadly weapon to assault the first victim, the defendant was chargeable with the use of a deadly weapon. Accordingly, the defendant either was a party to felony murder and aggravated assault, or the defendant was guilty of no crime at all, and the trial court did not err when the court decided not to charge the jury on involuntary manslaughter. Cash v. State, 297 Ga. 859 , 778 S.E.2d 785 (2015), cert. denied, 137 S. Ct. 137 , 196 L. Ed. 2 d 106 (U.S. 2016).
When the defendant was convicted of malice murder and cruelty to children arising out of the death of the 17-month-old victim, the defendant's request to charge on involuntary manslaughter by committing a lawful act in an unlawful manner based on the witnesses' testimony that the defendant told them that the defendant had been playing and throwing the victim on the bed before the defendant later discovered the victim in distress was properly denied because the undisputed evidence established that the victim's injuries could not have been sustained in the manner the defendant related, and the injuries were so severe that the injuries could only have been inflicted by something akin to a blow from a fist or a kick with tremendous force. Kellam v. State, 298 Ga. 520 , 783 S.E.2d 117 (2016).
Appellant's conviction for murder was affirmed because the trial court did not err in refusing to give a requested jury charge on the lesser included offense of involuntary manslaughter as any error was harmless since the evidence showed that the appellant brought the gun along at the request of another, and the only witness who saw the fatal shots fired refuted that the shots were shot in the air, thus, the evidence did not support the lesser included offense charge. Reddick v. State, 301 Ga. 90 , 799 S.E.2d 754 (2017).
In a felony murder and cruelty to a person age 65 or older case, trial counsel was not ineffective for failing to submit jury instructions on involuntary manslaughter and reckless conduct as counsel's theory of the case was that the victim's death was the result of an accident because there was no conclusive evidence that the defendant knew that the daycare van did not pick up the victim or that the daycare was closed; the defendant denied intentionally locking the victim out of the house; counsel's whole focus was on a not guilty strategy, and counsel sought to avoid admitting even to any negligent, much less reckless, intent; and counsel's decision to pursue an "all or nothing" defense did not fall below a reasonable standard of attorney conduct. Smith v. State, 301 Ga. 348 , 801 S.E.2d 18 (2017).
Trial court did not plainly err in failing to instruct the jury on involuntary manslaughter based on reckless conduct as a lesser included offense of the murder charges because the defendant's possession of cocaine with intent to distribute, the defendant's aggravated assault of the victims as part of the defendant's effort to regain the drugs, and the defendant's possession of the gun as a convicted felon were themselves felonies; and to support a jury charge on involuntary manslaughter, the unlawful act underlying the unintentional death of the victim had to be an act other than a felony. Hood v. State, 303 Ga. 420 , 811 S.E.2d 392 (2018).
When the rightful owner of the parcel on which the defendant resided hired a tow truck company to enter the property to remove old vehicles parked on the parcel, and the defendant shot and killed one of the tow truck company employees, the trial court did not plainly err in refusing to give the defendant's requested charges on criminal negligence and on involuntary manslaughter as a lesser included offense of murder because, by finding the defendant guilty of malice murder, the jury found beyond a reasonable doubt that the defendant shot at the victim with malice aforethought; and the defendant did not show that the failure of the trial court to give the charges at issue likely affected the outcome of the trial. Reed v. State, 304 Ga. 400 , 819 S.E.2d 44 (2018).
In a murder case, the trial court did not err when the court failed to give charges related to involuntary manslaughter because, according to the defendant's testimony at trial, the defendant intentionally pointed a gun at the victim's leg prior to the gun going off during a subsequent struggle with the victim; the record supported the crime of aggravated assault inasmuch as the defendant intentionally pointed a gun at the victim, eliminating any entitlement to charges of involuntary manslaughter and pointing a gun; and the defendant was not entitled to charges on involuntary manslaughter and reckless conduct since the defendant approached the victim with an intent to fight and intentionally pointed a gun at the victim. Overton v. State, 305 Ga. 597 , 825 S.E.2d 159 (2019).
Trial court did not commit plain error by failing to sua sponte charge the jury on involuntary manslaughter because the defendant admitted that the defendant shot the victim intentionally, albeit in self-defense. Martin v. State, 306 Ga. 538 , 832 S.E.2d 402 (2019).
Instruction on reckless conduct unwarranted. - Trial court did not err by failing to include reckless conduct on the verdict form as a lesser-included offense of felony murder because a separate reckless conduct option was not required to be on the verdict form since there was no evidence of reckless conduct other than that which directly related to the death of the victim; thus, the reckless conduct charge had to be in the context of involuntary manslaughter. Banks v. State, 329 Ga. App. 174 , 764 S.E.2d 187 (2014).
Charge on involuntary manslaughter as lesser included offense. - Habeas court properly granted relief to the inmate on the claim that appellate counsel was ineffective for failing to argue that the trial court erred by not giving a charge on involuntary manslaughter as a lesser included offense of malice murder based on the inmate's statement to police that the inmate did not know the gun was loaded when the inmate pointed the gun at the inmate's father and the fact that the evidence was not overwhelming. Seabolt v. Norris, Ga. , 782 S.E.2d 264 (2016).
In an action for felony murder and cruelty to children, the trial court erred by failing to charge the jury on the lesser included offense of involuntary manslaughter because there was some evidence that the defendant was guilty of the lesser offense, including that a nurse practitioner told the defendant the child needed to go to the emergency room and the defendant took the child to the emergency room but refused treatment due to financial concerns, allowing a jury to conclude that the defendant endangered the child. Castro-Moran v. State, Ga. App. , 845 S.E.2d 708 (2020).
Charge on O.C.G.A. § 16-5-3(b) unwarranted if killing results from unlawful act. - When killing decedent, even if unintended, was done as incident to unlawful, criminally negligent act of brandishing knife at others, failure to charge provisions of statute was not error. Keye v. State, 136 Ga. App. 707 , 222 S.E.2d 172 (1975).
When firing pistol was not lawful, defendant is not entitled to charge of involuntary manslaughter. Truitt v. State, 156 Ga. App. 156 , 274 S.E.2d 42 (1980).
Evidence adduced at trial did not reflect that defendant's use of a gun amounted to reckless conduct or any other misdemeanor, and although the trial court properly charged the jury on self-defense and accident, it did not err by refusing to charge the jury on involuntary manslaughter as a lesser included offense of murder. Brown v. State, 277 Ga. 53 , 586 S.E.2d 323 (2003).
Requested jury instruction on involuntary manslaughter was properly denied because the defendant's conduct in producing and displaying a loaded revolver in close proximity to the defendant's victim, who allegedly was under the influence of drugs, and the victim's young child, with the defendant's finger inside the trigger guard while the defendant was watching the road and trying to drive, constituted the crime of crime of reckless conduct under O.C.G.A. § 16-5-60(b) . Reed v. State, 279 Ga. 81 , 610 S.E.2d 35 (2005).
In a trial for voluntary manslaughter, aggravated assault, and battery, it was not error to refuse to charge on the lesser included offense of involuntary manslaughter under O.C.G.A. § 16-5-3(a) . Such a charge required an unlawful act that was not a felony, and the only such act supported by the evidence was the striking of the victim with a gun, which constituted the felony of aggravated assault under O.C.G.A. § 16-5-21 . Moon v. State, 291 Ga. App. 499 , 662 S.E.2d 283 (2008).
Charge where evidence authorizes finding of excessive force in self-defense. - Trial court charged jury on law of self-defense and the evidence would have authorized the jury to find that defendant caused the death of another unintentionally while acting in self-defense, a lawful act, but that the defendant used excessive force, in an unlawful manner; the trial court erred in failing to charge the jury on involuntary manslaughter since the charge on self-defense left open the issue of application of involuntary manslaughter. Allen v. State, 147 Ga. App. 701 , 250 S.E.2d 5 (1978).
Defendant is entitled to instruction on involuntary manslaughter when such instruction is timely requested and when there is evidence that homicide was caused by use of excessive force in self-defense. Jackson v. State, 143 Ga. App. 734 , 240 S.E.2d 180 (1977), overruled on other grounds, Bangs v. State, 198 Ga. App. 404 , 401 S.E.2d 599 (1991).
Charge on O.C.G.A. § 16-5-3(b) not required. - Evidence does not require a charge of involuntary manslaughter for the commission of a "lawful act" in an "unlawful manner," that is, self-defense (lawful act) with use of excessive force (unlawful manner), after the defendant confronted the victim with a hidden, extremely long knife, the deadly force of which is known to all. Fitzhugh v. State, 166 Ga. App. 320 , 304 S.E.2d 127 (1983).
Defendant is not entitled to an instruction on involuntary manslaughter in a prosecution for felony-murder when the defendant bases the defense upon a claim of justification and the court charges the jury as to self defense and accident. Willis v. State, 258 Ga. 477 , 371 S.E.2d 376 (1988); Lee v. State, 259 Ga. 230 , 378 S.E.2d 855 (1989); Clark v. State, 271 Ga. 27 , 518 S.E.2d 117 (1999).
Charge on O.C.G.A. § 16-5-3(b) unwarranted where aggravated assault committed. - When a person deliberately gets a gun and brandishes the gun at another in order to scare the other, thus committing an aggravated assault, such circumstances do not give rise to a charge on lawful act - unlawful manner involuntary manslaughter. Brown v. State, 166 Ga. App. 765 , 305 S.E.2d 386 (1983).
Instruction on involuntary manslaughter unwarranted where self-defense asserted. - Defendant was not entitled to an instruction on the law of involuntary manslaughter where defendant asserted that defendant was attacked by the victim and drew the gun and fired in self-defense. Smith v. State, 251 Ga. 229 , 304 S.E.2d 716 (1983); Johnson v. State, 259 Ga. 235 , 378 S.E.2d 859 (1989).
Defendant who seeks to justify homicide under the "self-defense" statute, O.C.G.A. § 16-3-21 , is not entitled to an additional instruction on involuntary manslaughter in the course of a lawful act, whatever the implement of death. For if defendant is justified in killing under O.C.G.A. § 16-3-21 , defendant is guilty of no crime at all. If defendant is not so justified, the homicide does not fall within the "lawful act" predicate of O.C.G.A. § 16-5-3(b) , for the jury, in rejecting defendant's claim of justification, has of necessity determined thereby that the act is not lawful. Saylors v. State, 251 Ga. 735 , 309 S.E.2d 796 (1983); Moore v. State, 177 Ga. App. 569 , 340 S.E.2d 222 (1986); Mims v. State, 180 Ga. App. 3 , 348 S.E.2d 498 (1986); Stewart v. State, 182 Ga. App. 576 , 356 S.E.2d 535 (1987); Thompson v. State, 257 Ga. 481 , 361 S.E.2d 154 (1987); Kennedy v. State, 193 Ga. App. 784 , 389 S.E.2d 350 , cert. denied, 193 Ga. App. 910 , 389 S.E.2d 350 (1989); Nobles v. State, 201 Ga. App. 483 , 411 S.E.2d 294 , cert. denied, 201 Ga. App. 904 , 411 S.E.2d 294 (1991).
Defendant in a murder trial who argued that actions were lawful in defending self with an ax but did so in an unlawful manner, in that the force used was excessive, and who received a self-defense instruction, was not entitled to an additional charge on the lesser included offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner. Jordan v. State, 171 Ga. App. 558 , 320 S.E.2d 395 (1984).
Trial court did not err in failing to charge on involuntary manslaughter in the course of a lawful act, where the defense was based upon self-defense, which was fully charged to the jury. King v. State, 177 Ga. App. 788 , 341 S.E.2d 307 (1986).
Although the defendant who uses a gun in self-defense is entitled to a charge on the law of self-defense, that defendant is not also entitled to a charge on the law of lawful act-unlawful manner-involuntary manslaughter on the theory that the use of the gun was unnecessary (i.e., the force used was excessive). Pullin v. State, 257 Ga. 815 , 364 S.E.2d 848 (1988); Reid v. State, 206 Ga. App. 367 , 425 S.E.2d 315 (1992).
Charge on involuntary manslaughter is not required when the defendant asserts using a gun in self-defense. Lamon v. State, 260 Ga. 119 , 390 S.E.2d 582 (1990).
Trial court acted properly in not giving the jury a requested instruction on involuntary manslaughter in the commission of a lawful act in an unlawful manner, pursuant to O.C.G.A. § 16-5-3(b) , because defendant asserted self-defense in the fatal shooting of the victim and the jury was instructed on the issues of self-defense and accident. Mize v. State, 277 Ga. 148 , 586 S.E.2d 648 (2003).
It was not error to fail to give an instruction on involuntary manslaughter when the defendant claimed that the killing of the victim was done in self-defense. Shipman v. State, 288 Ga. App. 134 , 653 S.E.2d 383 (2007).
Charge on involuntary manslaughter was not authorized in a case in which the defendant alleged self-defense. Similarly, as to the defendant's claim of accident, a charge on involuntary manslaughter in the commission of a lawful act was not warranted because, under the definition of involuntary manslaughter in O.C.G.A. § 16-5-3(b) , no crime would have occurred. Finley v. State, 286 Ga. 47 , 685 S.E.2d 258 (2009).
Defendant's requested charge on misdemeanor involuntary manslaughter was not justified by the defendant's statement to police that the victim attacked the defendant and that the defendant accidentally strangled the victim in an attempt to restrain the victim because one who sought to justify homicide as having been committed in self-defense was not entitled to an additional instruction on involuntary manslaughter resulting from the commission of a lawful act in an unlawful manner. Moore v. State, 325 Ga. App. 749 , 754 S.E.2d 792 (2014).
Trial court did not err in refusing to give the defendant's requested charge on involuntary manslaughter because all the evidence presented showed that the defendant intentionally shot the victim, and by the defendant's account, no crime happened because the defendant was shooting in self-defense. Therefore, the crimes were either committed as charged or not committed at all, and there was no evidence that the defendant was committing a non-felonious unlawful act. Stepp-McCommons v. State, Ga. , 845 S.E.2d 643 (2020).
Instruction on involuntary manslaughter unwarranted when battered person syndrome asserted. - Defendant who sought to justify killing a victim by battered person syndrome was not entitled to an additional instruction on involuntary manslaughter resulting from the commission of a lawful act in an unlawful manner under O.C.G.A. § 16-5-3(b) because if the act was justified, it was not a crime, and if not justified, it was not a lawful act. Demery v. State, 287 Ga. 805 , 700 S.E.2d 373 (2010).
Failure to charge jury was not prejudicial. - Failure to charge the jury on involuntary manslaughter in the commission of a lawful act was not so blatantly apparent and prejudicial that it raised a question whether defendant was deprived of a fair trial because of it, especially when the evidence adduced by the state authorized the jury to find beyond a reasonable doubt that defendant was guilty of voluntary manslaughter, the offense upon which the jury was instructed under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 , 61 L. Ed. 2 d 560 (1979). Chambers v. State, 205 Ga. App. 16 , 421 S.E.2d 88 , cert. denied, 205 Ga. App. 899 , 421 S.E.2d 88 (1992).
Failure to charge on unlawful act involuntary manslaughter. - While the trial court erred in rejecting the defendant's written request to charge the jury on unlawful act involuntary manslaughter, pursuant to O.C.G.A. § 16-5-3(a) , as a lesser included offense of the crime of murder, the error was harmless because there was overwhelming evidence inconsistent with the defendant's version of events, but supportive of the jury's finding the defendant guilty of malice murder. Rogers v. State, 289 Ga. 675 , 715 S.E.2d 68 (2011).
In the defendant's murder trial, even if failure to give a requested charge on involuntary manslaughter under O.C.G.A. § 16-5-3(a) based on the defendant's statement that the defendant shot into the air was error, it was harmless based on the testimony of multiple witnesses and the defendant's own statement to police that the victim was shot at close range by two people standing over the victim. Bonman v. State, 298 Ga. 839 , 785 S.E.2d 288 (2016).
If state's evidence raises issue of manslaughter court should charge thereon, even without request. - If jury can find from state's evidence that accused unintentionally killed deceased in commission of an unlawful act, or without due caution and circumspection during a lawful act resulting in culpable negligence, the state's evidence places lesser crime of manslaughter in the case and requires charge thereon without request. Drake v. State, 221 Ga. 347 , 144 S.E.2d 519 (1965) (decided under former Code 1933, § 26-1007).
When act may or may not be lawful, both grades should be charged. - When act from which death results may or may not be lawful under facts, both grades of law of involuntary manslaughter should be given in charge. Warnack v. State, 3 Ga. App. 590 , 60 S.E. 288 (1908), later appeal, 5 Ga. App. 816 , 63 S.E. 935 ; 7 Ga. App. 73 , 66 S.E. 393 (1909) (decided under former Penal Code 1895, § 65).
Court may charge on both accident and involuntary manslaughter. - Despite fact that defenses of accident and involuntary manslaughter may be inconsistent, since jury, upon finding presence of one, would be precluded from finding the other, a court may properly charge on both theories of law. Benford v. State, 158 Ga. App. 43 , 279 S.E.2d 236 (1981), overruled on other grounds, Bangs v. State, 198 Ga. App. 404 , 401 S.E.2d 599 (1991).
Charge on manslaughter not misleading when evidence authorizes finding of mistake. - It is not misleading to charge on voluntary manslaughter in a case when the jury might be authorized to find that defendant shot deceased by mistake, intending to shoot a person making an assault on the defendant. Sinkfield v. State, 222 Ga. 51 , 148 S.E.2d 409 (1966) (decided under former Code 1933, § 26-1009).
Failure to charge on manslaughter not erroneous. - In a prosecution for felony murder, defendant's "catchall" request to charge on "murder, manslaughter, and aggravated assault," pursuant to the pattern charges "Part 4B (as applicable)" was not precisely adjusted to the principles of the case, and the failure to charge on manslaughter was not erroneous. Lane v. State, 268 Ga. 678 , 492 S.E.2d 230 (1997).
There was sufficient evidence to convict a defendant of felony murder under O.C.G.A. § 16-5-1 based upon the actions of participating in the attack by hitting the victim with the bat even though the defendant did not actually shoot the victim; thus, instructions tracking O.C.G.A. § 16-5-21(a)(2) aggravated assault could properly be based on another perpetrator's use of a gun but the victim's acts of self-defense were not provocation that justified an O.C.G.A. § 16-5-3(a) involuntary manslaughter instruction. Ros v. State, 279 Ga. 604 , 619 S.E.2d 644 (2005).
Trial court did not err in refusing to give the defendant's two requested jury charges on involuntary manslaughter because the defendant's own testimony that the gun the defendant was holding made contact with the victim, and when the gun did the defendant gave a push and told the victim to get back, revealed that the defendant's purpose in pointing the weapon was to place the victim in apprehension of immediate violent injury so that there was no basis for a charge on involuntary manslaughter. Boatright v. State, 289 Ga. 597 , 713 S.E.2d 829 (2011).
Court refusal to give misdemeanor grade involuntary manslaughter charge. - It is not error to refuse to give a requested charge on misdemeanor grade involuntary manslaughter where the defendant asserts that he or she caused the death of another by the use of a gun in self-defense. Moore v. State, 251 Ga. 499 , 307 S.E.2d 476 (1983).
In a prosecution for felony involuntary manslaughter, the trial court did not err in refusing the defendant's requested jury charge on unlawful-act involuntary manslaughter, because the jury considered the defendant's theories of self-defense and accident and rejected them, and evidence in opposition to these defenses showed that the defendant struck the victim with the barrel of the gun, which went off, killing the victim, and the evidence presumed that the defendant committed an aggravated assault under O.C.G.A. § 16-5-21(a)(2). Gore v. State, 272 Ga. App. 156 , 611 S.E.2d 764 (2005).
Erroneous instructions regarding murder or voluntary manslaughter were harmless where conviction was of involuntary manslaughter. McGraw v. State, 85 Ga. App. 857 , 70 S.E.2d 141 (1952) (decided under former Code 1933, § 26-1009).
To warrant instructions on involuntary manslaughter evidence must authorize determination that death occurred unintentionally from commission of unlawful act other than a felony, or from commission of lawful act in unlawful manner likely to produce death or great bodily harm. Hewitt v. State, 127 Ga. App. 180 , 193 S.E.2d 47 (1972); Trask v. State, 132 Ga. App. 645 , 208 S.E.2d 591 (1974); Henderson v. State, 153 Ga. App. 801 , 266 S.E.2d 522 (1980).
Decision to charge on involuntary manslaughter is a fact question which must be decided on a case-by-case basis. Byrer v. State, 260 Ga. 484 , 397 S.E.2d 120 (1990).
To warrant instruction on involuntary manslaughter, there must be evidence to authorize a determination that death occurred unintentionally from the commission of an unlawful act other than a felony. Byrer v. State, 260 Ga. 484 , 397 S.E.2d 120 (1990).
Trial court's instruction on felony involuntary manslaughter as a lesser included offense of felony murder was not improper when there was evidence that the defendant intentionally pointed a gun at the victim in violation of O.C.G.A. § 16-11-102 just before the gun fired. Moore v. State, 286 Ga. App. 313 , 649 S.E.2d 337 (2007).
Involuntary manslaughter should be charged, upon request, where there is "slight evidence" to support the charge. Richardson v. State, 250 Ga. 506 , 299 S.E.2d 715 (1983).
Involuntary manslaughter charge warranted in arson prosecution. - In a prosecution for felony murder and arson, the trial court erred in refusing to grant defendant's charge on involuntary manslaughter where despite defendant's concession that defendant intentionally set the fire, there was sufficient evidence from which the jury could conclude that the defendant set the fire without intending to burn down the motel building. Reinhardt v. State, 263 Ga. 113 , 428 S.E.2d 333 (1993), overruled on other grounds, Vergara v. State, 283 Ga. 175 , 657 S.E.2d 863 (2008).
If evidence authorizes finding of involuntary manslaughter failure to charge thereon is error. Johnston v. State, 232 Ga. 268 , 206 S.E.2d 468 (1974).
When there is evidence from which jury would be authorized to find accused guilty of involuntary manslaughter in commission of a lawful act without due caution and circumspection, it is error for judge to omit to instruct jury on law relating to that grade of manslaughter. Maloof v. State, 139 Ga. App. 787 , 229 S.E.2d 560 (1976).
Charge on involuntary manslaughter unwarranted. See Lancaster v. State, 250 Ga. 871 , 301 S.E.2d 882 (1983); Moses v. State, 264 Ga. 313 , 444 S.E.2d 767 (1994); Smith v. State, 264 Ga. 857 , 452 S.E.2d 494 (1995); Grano v. State, 265 Ga. 346 , 455 S.E.2d 582 (1995); Brown v. State, 269 Ga. 67 , 495 S.E.2d 289 (1998).
Trial court did not err in refusing to charge on involuntary manslaughter when the defendant offered no evidence concerning intent, whereas the state offered testimony that the defendant told the victim, while defendant was beating the victim, that defendant was going to kill her, and whereas several witnesses testified that the defendant told them after the beating that the victim deserved to die. Elliott v. State, 253 Ga. 417 , 320 S.E.2d 361 (1984).
When an act that causes a death is a felony, a requested involuntary manslaughter charge is properly denied. Mayweather v. State, 254 Ga. 660 , 333 S.E.2d 597 (1985); Rouse v. State, 265 Ga. 32 , 453 S.E.2d 30 (1995); Smith v. State, 267 Ga. 502 , 480 S.E.2d 838 (1997).
Requested charges on involuntary manslaughter, pointing a firearm at another, and simple assault, were properly refused, where defendant's testimony (that defendant fired shots with the intention of frightening a group) established as a matter of law the offense of aggravated assault, and the testimony that members of the group were frightened and dropped to the ground was inconsistent with the requested charges. Hawkins v. State, 260 Ga. 138 , 390 S.E.2d 836 (1990).
Charge on involuntary manslaughter is not warranted, even if it is the sole defense, if the evidence does not support the charge. Hayes v. State, 261 Ga. 439 , 405 S.E.2d 660 (1991).
There was no evidence that the defendant, who murdered the victim with a rifle, was attempting to effect a valid citizen's arrest, and, hence, defendant was not entitled to an involuntary manslaughter charge. It was not reasonable for the defendant to attempt an arrest with a semi-automatic weapon which defendant was not licensed to carry, as deadly force in effecting an arrest is limited to self-defense or to a situation in which it is necessary to prevent a forcible felony. Hayes v. State, 261 Ga. 439 , 405 S.E.2d 660 (1991).
Defendant, who confessed to intentionally setting defendant's son's bed on fire with the five year-old asleep in it was not entitled to a charge to the jury on involuntary manslaughter; arson was a felony, so involuntary manslaughter would not apply. Riley v. State, 278 Ga. 677 , 604 S.E.2d 488 (2004).
Because there was no evidence that the defendant was in lawful possession of the gun with which the victim was shot, there was nothing to support a jury charge on misdemeanor involuntary manslaughter as well as felony involuntary manslaughter as a lesser included offense of felony murder. Moore v. State, 286 Ga. App. 313 , 649 S.E.2d 337 (2007).
Trial court did not err by refusing to charge the jury on involuntary manslaughter in the commission of a lawful act in an unlawful manner, O.C.G.A. § 16-5-3(b) , as a lesser included offense of a felony murder charge based on the underlying offense of cruelty to children: the defendant had not requested such a charge in writing; moreover, the evidence, including the defendant's claim that the child's death was caused by an accidental fall while the defendant was playing with the child, did not warrant a charge on lawful act-unlawful manner involuntary manslaughter. Moore v. State, 283 Ga. 151 , 656 S.E.2d 796 (2008).
When evidence established either that defendant intentionally shot and killed the victim or that a pistol discharged accidentally and no offenses occurred, this showed either commission of felony murder and aggravated assault or commission of no offense, and the trial court did not err in refusing to give a lesser included offense charge on involuntary manslaughter based on reckless conduct. Lashley v. State, 283 Ga. 465 , 660 S.E.2d 370 (2008).
Because a defendant was a convicted felon in possession of a firearm, a felony under O.C.G.A. § 16-11-131(b) , the defendant was not entitled to a jury instruction on involuntary manslaughter under O.C.G.A. § 16-5-3(a) , a killing resulting from an unlawful act other than a felony. Finley v. State, 286 Ga. 47 , 685 S.E.2d 258 (2009).
Instructions on both voluntary manslaughter and involuntary manslaughter not warranted. - In a murder prosecution, the trial court properly refused to give jury instructions on voluntary manslaughter, involuntary manslaughter, pointing a pistol at another, and accident as no evidence of provocation was presented and the evidence showed that the victim was killed during the defendant's effort to rob the victim at gunpoint. Roberts v. State, 282 Ga. 548 , 651 S.E.2d 689 (2007).
Court did not err in refusing to charge both kinds of involuntary manslaughter. - See Eller v. State, 183 Ga. App. 724 , 360 S.E.2d 53 (1987).
No improper sequential charge. - When the trial court instructed the jury on the law of malice murder and felony murder, the offenses for which the defendant was indicted, and the included offense of involuntary manslaughter, the court did not give an improper sequential charge as involuntary manslaughter does not contain an element that mitigates a greater offense. McNeal v. State, 263 Ga. 397 , 435 S.E.2d 47 (1993).
Failure to request charge not ineffective assistance when defense was alibi. - In the defendant's trial for murder, felony murder, and voluntary manslaughter, arising out of the stabbing of a robber, the defendant's counsel was not ineffective in failing to request a jury instruction on involuntary manslaughter as a lesser included offense, O.C.G.A. § 16-5-3(a) , because the defendant's defense was alibi: that the defendant was not at the scene but at a cookout. Woods v. State, 342 Ga. App. 301 , 802 S.E.2d 822 (2017).
Jury charge on proximate cause. - Because the instructions given by the trial court adequately expressed the requirement that the children's deaths and/or injuries had to have been the proximate result of the alleged criminal acts of involuntary manslaughter in the commission of reckless conduct and cruelty to children in the second degree, the trial court did not err in declining to give the defendant's additional requested instructions on proximate cause. Johnson v. State, 341 Ga. App. 425 , 801 S.E.2d 294 (2017).
Incomplete charge. - When the defendant requested a charge on involuntary manslaughter as a lesser included offense, but the request did not specify pointing a gun or pistol at another, it was not error to fail to charge on involuntary manslaughter while pointing a gun or pistol. Lashley v. State, 283 Ga. 465 , 660 S.E.2d 370 (2008).
Jury instructions considered as whole to determine whether misleading. - Although a portion of the trial court's main charge which states that "a person convicted under subsection (a) is guilty of a misdemeanor" is inappropriate, the trial court's instructions must be considered as a whole to determine whether they would mislead a jury of ordinary intelligence. Cooper v. State, 167 Ga. App. 440 , 306 S.E.2d 709 (1983).
Indictment
Conviction for manslaughter upon indictment charging murder is proper, although there is no count for manslaughter in the indictment. Perry v. State, 78 Ga. App. 273 , 50 S.E.2d 709 (1948) (decided under former Code 1933, § 26-1009).
Involuntary manslaughter in commission of unlawful act is always included in indictment for murder. - Indictment having been laid for murder and charging that mortal wound was inflicted by shooting deceased with a pistol and proof being that this was manner in which deceased was killed, a verdict of involuntary manslaughter would find support in the pleading, for reason that involuntary manslaughter is the unlawful killing of a human being and such crime is always included in an indictment for murder - that is, the indictment necessarily included within itself all essential ingredients of involuntary manslaughter in commission of an unlawful act. Perry v. State, 78 Ga. App. 273 , 50 S.E.2d 709 (1948) (decided under former Code 1933, § 26-1009).
When defendant's indictment charged that while committing possession of a firearm by a person under the age of 18 years, in violation of O.C.G.A. § 16-11-32 , defendant caused a victim's death without any intention to do so, the indictment was fatally defective because it was not sufficient to allege that the unintentional death was caused solely by defendant's possession of the firearm, as the state did not allege an unlawful act which under any circumstances could be the proximate cause of the unintentional death. Scraders v. State, 263 Ga. App. 754 , 589 S.E.2d 315 (2003).
Application Generally
Application of rule of lenity. - Defendant was not entitled to be sentenced under the rule of lenity for misdemeanor involuntary manslaughter under O.C.G.A. § 16-5-3(b) rather than felony involuntary manslaughter under O.C.G.A. § 16-5-3(a) , although the defendant was convicted of both crimes, because the two crimes did not address the same criminal conduct and no ambiguity was created by different punishments being set forth for the same crime. Campbell v. State, 297 Ga. App. 387 , 677 S.E.2d 312 (2009), cert. denied, No. S09C1263, 2009 Ga. LEXIS 411 (Ga. 2009).
Former Penal Code 1895, § 65 (now O.C.G.A. § 16-5-3 ) made no exception in case of convicts but included all persons. Westbrook v. State, 133 Ga. 578 , 66 S.E. 788 , 25 L.R.A. (n.s.) 591, 18 Ann. Cas. 295 (1909) (decided under former Penal Code 1895, § 65).
Convictions for involuntary manslaughter and cruelty to children were not inconsistent because the jury could have found from the evidence both that the defendant maliciously caused the victim excessive pain, and that defendant's actions caused the victim's death, though defendant may not have intended to kill the victim. Sanders v. State, 245 Ga. App. 561 , 538 S.E.2d 470 (2000).
Verdict of involuntary manslaughter will be referred to highest grade of that offense, i.e., manslaughter in commission of an unlawful act, unless jury specifies otherwise. Bulloch v. State, 10 Ga. 47 , 54 Am. Dec. 369 (1851) (decided under prior law); Wright v. State, 78 Ga. 192 , 2 S.E. 693 (1886) (decided under former Code 1882, § 4324); Thomas v. State, 121 Ga. 331 , 49 S.E. 273 (1904) (decided under former Penal Code 1895, § 65); Register v. State, 10 Ga. App. 623 , 74 S.E. 429 , later appeal, 12 Ga. App. 1 , 76 S.E. 649 (1912), later appeal, 12 Ga. App. 688 , 78 S.E. 142 (1913) (decided under former Penal Code 1910, § 65).
Murder and manslaughter are different grades of offense of unlawful homicide. Perry v. State, 78 Ga. App. 273 , 50 S.E.2d 709 (1948) (decided under former Code 1933, § 26-1007).
On trial for manslaughter, evidence of previous threats or declarations by accused is inadmissible. Hicks v. State, 55 Ga. App. 149 , 189 S.E. 373 (1937) (decided under former Code 1933, § 26-1007).
Erroneous exclusion of testimony negating malice was harmless. - When in a murder trial, the jury returns a verdict of guilty of involuntary manslaughter in commission of an unlawful act without an intent to kill, such verdict is equivalent of finding the defendant not guilty of murder and thus there was no malice, and also acquitted the defendant of voluntary manslaughter and thus found there was no intention to kill the deceased; hence, ruling out of certain testimony which the defense hoped would negative intent or malice, if error, was harmless because the jury found in the defendant's favor on issues the defendant was seeking to support by an answer which was ruled out. Perry v. State, 78 Ga. App. 273 , 50 S.E.2d 709 (1948) (decided under former Code 1933, § 26-1007).
Unintended death caused by unlawful blow with nondeadly weapon constitutes involuntary manslaughter. - If jury should find that weapon used was one which would not ordinarily produce death, and therefore was not a deadly weapon, and circumstances demonstrated to satisfaction of jury that there was no intention to kill, then, even though blow was not justified, accused would be guilty only of offense of involuntary manslaughter. Huntsinger v. State, 200 Ga. 127 , 36 S.E.2d 92 (1945) (decided under former Code 1933, § 26-1007).
Accidental discharge of gun. - If the gun discharged accidentally, in the absence of criminal negligence, then no crime was committed and, as the jury was instructed, acquittal was required. Clark v. State, 265 Ga. 243 , 454 S.E.2d 492 (1995).
Evidence supported a defendant's conviction for involuntary manslaughter as there was ample evidence that the state disproved the defendant's accident defense since: (1) the defendant was hurt by the fact that the defendant's significant other had begun a relationship with the victim; (2) the defendant threatened to blow the victim's and the significant other's heads off a few weeks before the shooting; (3) defendant testified that the victim was standing in the defendant's way, that the defendant was searching for a cell phone, and that the defendant pulled out several items, including a gun; (4) a door hit the defendant in the back, causing the gun to discharge into the victim's chest; (5) the defendant testified that the defendant was careless with the gun; and (6) a detective testified that after the detective Mirandized the defendant, the defendant stated that "(the defendant) put a shell in every chamber" and that "(the defendant) fired every shell, every round." Noble v. State, 282 Ga. App. 311 , 638 S.E.2d 444 (2006).
Reckless handling of a gun may be basis of involuntary manslaughter. Pool v. State, 87 Ga. 526 , 13 S.E. 556 (1891) (decided under former Code 1882, § 4324); Austin v. State, 110 Ga. 748 , 36 S.E. 52 , 78 Am. St. R. 134 (1900) (decided under former Penal Code 1895, § 67).
Evidence was sufficient to sustain the conviction because one witness testified that the defendant shot the victim without provocation, and the defendant struck the victim with the barrel of a gun which went off, killing the victim, after the defendant had gone to the victim's apartment to settle a debt. Gore v. State, 272 Ga. App. 156 , 611 S.E.2d 764 (2005).
Shooting, believing gun to be unloaded, constitutes involuntary manslaughter. Irvin v. State, 9 Ga. App. 865 , 72 S.E. 440 (1911) (decided under former Penal Code 1910, § 65).
Killing to prevent escape of prisoner arrested without warrant. - An officer killing to prevent escape of prisoner arrested without warrant is at least guilty of manslaughter in commission of an unlawful act. O'Conner v. State, 64 Ga. 125 , 37 Am. R. 58 (1879) (decided under former Code 1873, § 4324).
When defendant admits act but denies intention to kill, former Code 1933, § 26-1103 deserves special scrutiny. Jackson v. State, 234 Ga. 549 , 216 S.E.2d 834 (1975); Jackson v. State, 143 Ga. App. 734 , 240 S.E.2d 180 (1977), overruled on other grounds, Bangs v. State, 198 Ga. App. 404 , 401 S.E.2d 599 (1991) (see O.C.G.A. § 16-5-3 ).
Section inapplicable where, had victim survived, offense would have been a felony. - If the victim had survived, defendant would have been guilty not merely of pointing a pistol at another but of aggravated battery, which itself is a felony, O.C.G.A. § 16-5-3(a) is inapplicable. Raines v. State, 247 Ga. 504 , 277 S.E.2d 47 (1981).
Homicide resulting from assault constitutes involuntary manslaughter. - Simple assault being a misdemeanor, an unintentional homicide proximately resulting from such unlawful act would amount to involuntary manslaughter and not murder. Norrell v. State, 116 Ga. App. 479 , 157 S.E.2d 784 (1967) (decided under former Code 1933, § 26-1009).
When the defendant unlawfully commits an assault and battery upon the deceased, without any purpose or intention to kill, but thereby, during commission of such unlawful but not felonious act, inflicts a wound by reason of which the deceased dies, the defendant is guilty of involuntary manslaughter in the commission of an unlawful act. Jackson v. State, 69 Ga. App. 707 , 26 S.E.2d 485 (1943) (decided under former Code 1933, § 26-1009).
Homicide occurring in commission of crime punishable by confinement in penitentiary cannot be involuntary manslaughter. Norrell v. State, 116 Ga. App. 479 , 157 S.E.2d 784 (1967) (decided under former Code 1933, § 26-1009).
Homicide resulting from shooting at another constitutes murder. - Under former Code 1933, § 26-1702 shooting at another was a crime punishable by confinement in the penitentiary, and therefore a homicide resulting from such unlawful act constituted the crime of murder. Norrell v. State, 116 Ga. App. 479 , 157 S.E.2d 784 (1967) (decided under former Code 1933, § 26-1009) (see O.C.G.A. § 16-5-21 ).
Homicide resulting from aggravated assault. - When appellant's admitted and undisputed conduct disclosed commission of an act which would be a felony if the victim had lived, i.e., aggravated assault by shooting at another unless legally excusable, a charge under O.C.G.A. § 16-5-3(a) was not authorized. Simmons v. State, 164 Ga. App. 643 , 298 S.E.2d 313 (1982).
Merger with aggravated assault. - Defendant's sufficiency challenge became moot on appeal as the trial court merged the involuntary manslaughter count into the aggravated assault count for sentencing purposes. Ramirez v. State, 288 Ga. App. 249 , 653 S.E.2d 837 (2007).
Failure of defense counsel to make a written request for a charge on involuntary manslaughter did not deprive appellant of due process and the trial judge did not err in failing to give such a charge where the unlawful act engaged in by appellant was aggravated assault, a felony, and when there was no evidence of any lawful act committed by appellant when appellant caused the unarmed victim's death. Jester v. State, 250 Ga. 119 , 296 S.E.2d 555 (1982).
Reckless conduct as lesser included offense of aggravated assault. - Aggravated assault count of the indictment merged with the malice murder conviction, and the felony murder count, predicated in part on aggravated assault, was vacated by operation of law; thus, the claim of error that the trial court erred by refusing to charge the jury on reckless conduct as a lesser-included offense of aggravated assault was moot when the defendant was not convicted of aggravated assault. McCluskey v. State, 307 Ga. 740 , 838 S.E.2d 270 (2020).
No merger with nonhomicide counts. - Defendant's convictions of involuntary manslaughter while in the commission of a simple battery, aggravated assault, aggravated battery, cruelty to children, and reckless conduct were not mutually exclusive, and the trial court did not err in not merging the nonhomicide counts upon sentencing. Waits v. State, 282 Ga. 1 , 644 S.E.2d 127 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
O.C.G.A. § 16-5-3 inapplicable when gun is used because a gun is a deadly weapon and assault with a deadly weapon constitutes aggravated assault, a felony. Pass v. State, 160 Ga. App. 64 , 286 S.E.2d 53 (1981).
In cases involving intentional discharge of gun, charge on either subsection is not necessary. Strickland v. State, 250 Ga. 624 , 300 S.E.2d 156 (1983).
Shooting another without provocation cannot constitute involuntary manslaughter. Fann v. State, 254 Ga. 514 , 331 S.E.2d 547 (1985).
Evidence disclosing aggressive behavior of deceased and unintentional killing. - Whenever the evidence discloses that the deceased displays aggression toward the defendant, unprovoked, and there is some evidence from which the jury could have found the killing was not intentional, a requested charge on involuntary manslaughter should be given. Hodge v. State, 153 Ga. App. 553 , 265 S.E.2d 878 (1980), overruled on other grounds, Bangs v. State, 198 Ga. App. 404 , 401 S.E.2d 599 (1991).
Death caused by victim's loss of control during drag race. - When indictment for involuntary manslaughter plainly alleges that it was loss of control by deceased in drag race, the deceased's own independent act, which caused death, and not any act on part of defendant, indictment fails to allege essential elements of offense of involuntary manslaughter. Thacker v. State, 103 Ga. App. 36 , 117 S.E.2d 913 (1961) (decided under former Code 1933, § 26-1009).
This state does not have a reckless homicide statute; it has only voluntary and involuntary manslaughter statutes which create degrees of homicide less than murder. A history of punishing recklessly caused homicide as murder simply has nothing to do with deficiencies in felony-murder scheme because it provides no category of homicide less culpable than murder. Malone v. State, 238 Ga. 251 , 232 S.E.2d 907 (1977).
Jury instructions considered as whole to determine whether misleading. - Although a portion of the trial court's main charge which states that "a person convicted under subsection (a) is guilty of a misdemeanor" is inappropriate, the trial court's instructions must be considered as a whole to determine whether they would mislead a jury of ordinary intelligence. Cooper v. State, 167 Ga. App. 440 , 306 S.E.2d 709 (1983).
Evidence was sufficient to sustain defendant's conviction, when defendant, an apartment security guard, instructed another security guard to put a key in the lock on a door and, when the victim opened the door from the inside, defendant's gun immediately discharged, striking the victim in the chest and fatally wounding the victim. Cross v. State, 199 Ga. App. 266 , 404 S.E.2d 633 , cert. denied, 199 Ga. App. 905 , 404 S.E.2d 633 (1991).
Evidence establishing that codefendants became intoxicated, and, in violation of order requiring them to get child care when they intended to drink, placed baby between them in bed, and that one codefendant rolled over onto baby, causing the baby's death, was sufficient to support involuntary manslaughter conviction. Bohannon v. State, 230 Ga. App. 829 , 498 S.E.2d 316 (1998).
Establishment of the causal relationship between defendant's physical contact with son and the child's death by the testimony of a pediatrician and the medical examiner that the death resulted from "Shaken Baby Syndrome" was sufficient for conviction. Hill v. State, 243 Ga. App. 124 , 532 S.E.2d 491 (2000).
Evidence showed the defendant was guilty of felony murder under O.C.G.A. § 16-5-1 and involuntary manslaughter under O.C.G.A. § 16-5-3 after beating the defendant's child to death together with the defendant's love interest where the defendant's child was struck at least 100 times and with such force that the fat beneath the child's skin was emulsified, entered broken capillaries, and clogged the vessels leading to the child's lungs. Marshall v. State, 276 Ga. 854 , 583 S.E.2d 884 (2003).
Evidence was sufficient to allow a rational trier of fact to have found beyond a reasonable doubt that the defendant committed involuntary manslaughter by causing the victim's death, without any intention to do so, by the commission of the unlawful act of simple battery. Jones v. State, 265 Ga. App. 97 , 592 S.E.2d 888 (2004).
Sufficient evidence supported two defendants' convictions for involuntary manslaughter; evidence that both defendants purposefully involved the shooter in their confrontation with the victim, knew the shooter was armed with a rifle, and assisted the shooter in pursuing the victim, was sufficient to enable a rational trier of fact to find both defendants guilty beyond a reasonable doubt as parties to the shooter's crimes or any lesser included offenses. Morris v. State, 276 Ga. App. 775 , 624 S.E.2d 281 (2005).
While the defendant and the codefendant insisted that their victim had a gun, no other witness saw the victim with a gun, and no such gun was found at the scene of the victim's shooting death; there was evidence that the defendant chased the victim as the victim ran away and shot the victim from behind, so the jury was entitled to reject the defendant's claims of self-defense and defense of another, and the evidence supported the defendant's convictions of voluntary manslaughter, O.C.G.A. § 16-5-3 , and possession of a firearm during the commission of a crime, O.C.G.A. § 16-11-106 . Windham v. State, 278 Ga. App. 663 , 629 S.E.2d 837 (2006).
Defendant's involuntary manslaughter conviction was affirmed on appeal as: (1) the victim's statement was properly admitted, and not hearsay; (2) the Vienna Convention on Consular Affairs did not afford the defendant any relief; (3) a fireman was properly allowed to remain on the jury, despite previously working with law enforcement on many investigations and having a friendship with the chief assistant district attorney; (4) a reference to the defendant's immigration status did not warrant a mistrial; and (5) challenged portions of the state's argument were not improper. Banegas v. State, 283 Ga. App. 346 , 641 S.E.2d 593 (2007).
Because sufficient direct and circumstantial evidence showed that the defendant, a prior felon wielding a weapon, engaged in a fight with the two victims, fatally wounding one and shooting the other in the arm, and thereafter fled from police, the defendant's convictions for involuntary manslaughter, reckless conduct, fleeing and eluding, and possession of a firearm by a convicted felon were upheld on appeal. Alvin v. State, 287 Ga. App. 350 , 651 S.E.2d 489 (2007).
There was sufficient evidence to support a defendant's conviction for involuntary manslaughter of the defendant's romantic friend given the evidence of the defendant's admission that the defendant placed the friend in a headlock during a fight, and the medical examiner's findings that the friend was strangled to death. As a result, the jury was authorized to exclude all other reasonable hypotheses and conclude that the defendant unintentionally caused the friend's death while committing simple battery. Lemon v. State, 293 Ga. App. 488 , 667 S.E.2d 654 (2008).
Sufficient evidence was presented to convict a defendant of felony involuntary manslaughter under O.C.G.A. § 16-5-3(a) , possession of a knife during the commission of a crime, and misdemeanor involuntary manslaughter by causing the victim's death in the commission of a lawful act in an unlawful manner under O.C.G.A. § 16-5-3(b) because the defendant, who had been drinking, had been involved in an altercation with the victim over money, the victim jumped on the defendant's back and began hitting the defendant, and the victim subsequently died from a stab wound. Campbell v. State, 297 Ga. App. 387 , 677 S.E.2d 312 (2009), cert. denied, No. S09C1263, 2009 Ga. LEXIS 411 (Ga. 2009).
Evidence that a defendant was the only person home with defendant's 17-month-old son when the son became unresponsive, along with the defendant's admission that the defendant had shaken defendant's son to make the son stop crying and shaken the son again to try to wake the son up was sufficient to support the defendant's convictions for involuntary manslaughter and child cruelty. Lewis v. State, 304 Ga. App. 831 , 698 S.E.2d 365 (2010).
Evidence was sufficient to support defendant's conviction for felony involuntary manslaughter in violation of O.C.G.A. § 16-5-3(a) because several eyewitnesses testified that, following an argument with the victim, defendant, who had been drinking whiskey, drew a cocked and loaded handgun from defendant's jacket in another's residence, pointed the gun directly at the victim, and deliberately shot the victim at point blank range. In addition, the sheriff who responded to the scene testified that defendant said that defendant shot the victim after the victim had been running the victim's mouth. Snell v. State, 306 Ga. App. 651 , 703 S.E.2d 93 (2010).
Evidence was sufficient to enable a rational trier of fact to find defendants guilty of involuntary manslaughter since both defendants repeatedly beat the defendants' eight-year-old son with a foot long glue stick, then forced the child into a wooden box, beating the boy about the head as the defendants did so, and when numerous medical experts testified that the cause of the child's death was either blunt force trauma or asphyxiation. Smith v. State, 288 Ga. 348 , 703 S.E.2d 629 (2010), aff'd, 2020 U.S. App. LEXIS 3975 (11th Cir. Ga. 2020).
Evidence was sufficient to convict the defendant of, inter alia, four counts of felony murder, one count of involuntary manslaughter, and one count of aggravated assault in connection with the abuse and resulting death of the 18-month-old victim because a forensic child pathologist reviewed the findings of the victim's autopsy and opined that the pooling of blood on the front of the victim's body was consistent with the victim's belly being pressed against an object like the mattress or pad of a crib; and the defendant saw the boyfriend spank the children on the night of the victim's murder and watched as the boyfriend pushed the victim's face into the crib. Kipp v. State, 294 Ga. 55 , 751 S.E.2d 83 (2013).
Evidence was sufficient to find the defendant guilty of two counts of involuntary manslaughter and one count of second degree cruelty to children as the defendant's actions were the proximate cause of the victims' deaths and injuries because a toppled space heater ignited a fire in the victims' bedroom, causing their injuries while the defendant was absent; the defendant knew that space heaters could cause fires; there was sufficient space in the boyfriend's vehicle to fit all four children; and, with the foregoing knowledge, the defendant left the defendant's three children completely unattended for an extended period of time in a combustibles-filled room, sleeping on a mattress that was placed directly on the floor next to a space heater. Johnson v. State, 341 Ga. App. 425 , 801 S.E.2d 294 (2017).
Evidence sufficient to support conviction for involuntary manslaughter in commission of unlawful act. - See Lewis v. State, 180 Ga. App. 369 , 349 S.E.2d 257 (1986).
Involuntary manslaughter conviction based on methamphetamine. - Evidence that the defendant was involved in loading capsules with methamphetamine, one of which the defendant knew contained more of the drug than the others, that the decedent acted strangely after consuming the capsule with more drug in it, that the decedent went off into the woods, and the defendant and others left the area where the decedent disappeared without looking for the decedent and seeking medical attention was sufficient to support the conviction for involuntary manslaughter. Ayers-Jones v. State, 350 Ga. App. 657 , 829 S.E.2d 878 (2019).
Statement of deceased victim admitted. - When the deceased victim was unavailable, statements the victim made which were relevant to show motive for the defendant's fatal act, made shortly before the victim's death to one to whom no reason to lie or to misrepresent existed, were properly admitted, and not hearsay; moreover, as the defendant was found guilty of involuntary manslaughter rather than murder, the admission of this testimony appeared to have been harmless. Banegas v. State, 283 Ga. App. 346 , 641 S.E.2d 593 (2007).
Circumstantial evidence insufficient. - Conviction for involuntary manslaughter under O.C.G.A. § 16-5-3(b) was reversed because the state failed to meet its burden of proof in a circumstantial evidence case; the evidence showed that a parent was caring for an infant, the defendant had no significant contact with the infant, the defendant had not harmed the infant in the past, and the defendant had no knowledge of the abuse. Edwards v. State, 272 Ga. App. 540 , 612 S.E.2d 868 (2005).
Conforming verdict to pleadings and evidence. - When the jury returns a verdict of "involuntary manslaughter," without specification, the trial court does no more than conform the verdict to the pleadings and the evidence when it asks the foreman to conform the verdict to the language of O.C.G.A. § 16-5-3(a) , unlawful act involuntary manslaughter, when there is no evidence of lawful act - unlawful manner involuntary manslaughter. Brown v. State, 166 Ga. App. 765 , 305 S.E.2d 386 (1983).
Mutually exclusive convictions cannot stand. - Defendant's convictions for felony murder based on aggravated assault and involuntary manslaughter could not stand because they were mutually exclusive as the jury illogically found that defendant acted with both criminal intent and criminal negligence in shooting a woman. Jackson v. State, 276 Ga. 408 , 577 S.E.2d 570 (2003), overruled by State v. Springer, 297 Ga. 376 , 774 S.E.2d 106 , 2015 Ga. LEXIS 487 (2015).
Verdicts of involuntary manslaughter and felony murder not mutually exclusive. - Verdicts convicting the defendants of involuntary manslaughter under O.C.G.A. § 16-5-3 and felony murder were not mutually exclusive since the evidence authorized the jury to logically conclude that the defendants had committed several acts of child abuse, some of which may have been non-felony acts of abuse that inadvertently led to or contributed to the child's death and others that may have constituted felony cruelty to children, under O.C.G.A. § 16-5-70(b) , which would have served as the underlying basis for the felony murder conviction. Smith v. State, 288 Ga. 348 , 703 S.E.2d 629 (2010), aff'd, 2020 U.S. App. LEXIS 3975 (11th Cir. Ga. 2020).
Guilty verdicts for involuntary manslaughter and as a party to the felony murder of the victim while in the commission of aggravated assault of the victim with a blunt object were not mutually exclusive as the verdicts were supported by evidence of separate acts, committed at separate moments during the night the victim was killed. Kipp v. State, 294 Ga. 55 , 751 S.E.2d 83 (2013).
Guilty verdicts for involuntary manslaughter and as a party to the felony murder of the victim while in the commission of cruelty to children in the first degree by application of force against the victim were not mutually exclusive as the defendant aided the defendant's boyfriend, by omission or commission, to perpetrate numerous acts of abuse against the victim at different moments during the time preceding the victim's death. Kipp v. State, 294 Ga. 55 , 751 S.E.2d 83 (2013).
Sentence for felony murder and involuntary manslaughter prohibited. - Because the prohibition against double jeopardy does not permit a defendant to be punished on multiple murder counts for a single homicide, it was error for the trial court to sentence the defendant for involuntary manslaughter in light of the convictions for felony murder as there was only one homicide. Kipp v. State, 294 Ga. 55 , 751 S.E.2d 83 (2013).
OPINIONS OF THE ATTORNEY GENERAL
Owner of an automobile, while riding in car, may in some circumstances be guilty of manslaughter when the car is involved in a fatal accident. 1948-49 Op. Att'y Gen. p. 78 (decided under former Code 1933, § 26-1009).
RESEARCH REFERENCES
Am. Jur. 2d. - 7A Am. Jur. 2d, Automobiles and Highway Traffic, § 371 et seq. 40A Am. Jur. 2d, Homicide, §§ 61, 62.
C.J.S. - 40 C.J.S., Homicide, § 127 et seq.
ALR. - Acquittal on charge as to one as bar to charge as to the other, where one person is killed or assaulted by acts directed at another, 2 A.L.R. 606 .
Homicide by wanton or reckless use of firearm without express intent to inflict injury, 5 A.L.R. 603 ; 23 A.L.R. 1554 .
Drunkenness as affecting existence of elements essential to murder in second degree, 8 A.L.R. 1052 .
Homicide by unlawful act aimed at another, 18 A.L.R. 917 .
Discharge of firearm without intent to inflict injury as proximate cause of homicide resulting therefrom, 55 A.L.R. 921 .
Negligent homicide as affected by negligence or other misconduct of the decedent, 67 A.L.R. 922 .
Absence of evidence supporting charge of lesser degree of homicide as affecting duty of court to instruct as to, or right of jury to convict of, lesser degree, 102 A.L.R. 1019 .
Corpus delicti in prosecution for killing of newborn child, 159 A.L.R. 523 .
Test or criterion of term "culpable negligence", "criminal negligence", or "gross negligence", appearing in statute defining or governing manslaughter, 161 A.L.R. 10 .
Criminal responsibility for injury or death resulting from hunting accident, 23 A.L.R.2d 1401.
Who other than actor is liable for manslaughter, 95 A.L.R.2d 175.
Homicide based on killing of unborn child, 40 A.L.R.3d 444, 64 A.L.R.5th 671.
Homicide predicated on improper treatment of disease or injury, 45 A.L.R.3d 114.
Homicide by withholding food, clothing, or shelter, 61 A.L.R.3d 1207.
Propriety of predicating manslaughter conviction on violation of local ordinance or regulation not dealing with motor vehicles, 85 A.L.R.3d 1072.
Accused's right, in homicide case, to have jury instructed as to both unintentional shooting and self-defense, 15 A.L.R.4th 983.
Criminal liability for injury or death caused by operation of pleasure boat, 18 A.L.R.4th 858.
Propriety of lesser-included-offense charge of voluntary manslaughter to jury in state murder prosecution - Twenty-first century cases, 3 A.L.R.6th 543.
Sufficiency of evidence to support homicide conviction where no body was produced, 65 A.L.R.6th 359.
16-5-4. Time elapsed between injury and death.
In order to be a homicide punishable under this article, death need not have occurred within a year and a day from the date of the injury alleged to have caused such death.
(Code 1981, § 16-5-4 , enacted by Ga. L. 1991, p. 719, § 1.)
Editor's notes. - Ga. L. 1991, p. 719, § 2, not codified by General Assembly, provides: "It is the intent of this Act to make statutory the ruling of the Supreme Court of Georgia that the year and a day rule referred to herein is not the law of Georgia."
JUDICIAL DECISIONS
Cited in Lang v. State, 344 Ga. App. 623 , 812 S.E.2d 16 (2018).
16-5-5. Assisted suicide; notification of licensing board regarding violation.
-
As used in this Code section, the term:
- "Assists" means the act of physically helping or physically providing the means.
- "Health care provider" means any person licensed, certified, or registered under Chapter 9, 10A, 11, 11A, 26, 28, 30, 33, 34, 35, 39, or 44 of Title 43.
- "Suicide" means the intentional and willful termination of one's own life.
- Any person with actual knowledge that a person intends to commit suicide who knowingly and willfully assists such person in the commission of such person's suicide shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than ten years.
-
The provisions of this Code section shall not apply to:
- Pursuant to a patient's consent, any person prescribing, dispensing, or administering medications or medical procedures when such actions are calculated or intended to relieve or prevent such patient's pain or discomfort but are not calculated or intended to cause such patient's death, even if the medication or medical procedure may have the effect of hastening or increasing the risk of death;
- Pursuant to a patient's consent, any person discontinuing, withholding, or withdrawing medications, medical procedures, nourishment, or hydration;
- Any person prescribing, dispensing, or administering medications or medical procedures pursuant to, without limitation, a living will, a durable power of attorney for health care, an advance directive for health care, a Physician Orders for Life-Sustaining Treatment form pursuant to Code Section 31-1-14, or a consent pursuant to Code Section 29-4-18 or 31-9-2 when such actions are calculated or intended to relieve or prevent a patient's pain or discomfort but are not calculated or intended to cause such patient's death, even if the medication or medical procedure may have the effect of hastening or increasing the risk of death;
- Any person discontinuing, withholding, or withdrawing medications, medical procedures, nourishment, or hydration pursuant to, without limitation, a living will, a durable power of attorney for health care, an advance directive for health care, a Physician Orders for Life-Sustaining Treatment form pursuant to Code Section 31-1-14, a consent pursuant to Code Section 29-4-18 or 31-9-2, or a written order not to resuscitate; or
- Any person advocating on behalf of a patient in accordance with this subsection.
- Within ten days of a conviction, a health care provider who is convicted of violating this Code section shall notify in writing the applicable licensing board for his or her licensure, certification, registration, or other authorization to conduct such health care provider's occupation. Upon being notified and notwithstanding any law, rule, or regulation to the contrary, the appropriate licensing board shall revoke the license, certification, registration, or other authorization to conduct such health care provider's occupation. (Code 1981, § 16-5-5 , enacted by Ga. L. 2012, p. 637, § 1/HB 1114; Ga. L. 2015, p. 305, § 3/SB 109.)
Effective date. - This Code section became effective May 1, 2012.
Cross references. - Notification of licensing boards of judgments against health care provider, § 51-4-6 .
Editor's notes. - Ga. L. 2007, p. 133, § 1/HB 24, not codified by the General Assembly, provides: "(a) The General Assembly has long recognized the right of the individual to control all aspects of his or her personal care and medical treatment, including the right to insist upon medical treatment, decline medical treatment, or direct that medical treatment be withdrawn. In order to secure these rights, the General Assembly has adopted and amended statutes recognizing the living will and health care agency and provided statutory forms for both documents.
"(b) The General Assembly has determined that the statutory forms for the living will and durable power of attorney for health care are confusing and inconsistent and that the statutes providing for the living will and health care agency contain conflicting concepts, inconsistent and out-of-date terminology, and confusing and inconsistent requirements for execution. In addition, there is a commendable trend among the states to combine the concepts of the living will and health care agency into a single legal document.
"(c) The General Assembly recognizes that a significant number of individuals representing the academic, medical, legislative, and legal communities, state officials, ethics scholars, and advocacy groups worked together to develop the advance directive for health care contained in this Act, and the collective intent was to create a form that uses understandable and everyday language in order to encourage more citizens of this state to execute advance directives for health care.
"(d) The General Assembly finds that the clear expression of an individual's decisions regarding health care, whether made by the individual or an agent appointed by the individual, is of critical importance not only to citizens but also to the health care and legal communities, third parties, and families. In furtherance of these purposes, the General Assembly enacts a new Chapter 32 of Title 31, setting forth general principles governing the expression of decisions regarding health care and the appointment of a health care agent, as well as a form of advance directive for health care."
Former Code Section 16-5-5, concerning offering to assist in commission of suicide and criminal penalties therefor, was based on Ga. L. 1994, p. 1370, § 1; Ga. L. 2007, p. 133, § 5/HB 24 and was repealed by Ga. L. 2012, p. 637, § 1/HB 1114, effective May 1, 2012.
Ga. L. 2012, p. 637, § 4/HB 1114, not codified by the General Assembly, provides that: "This Act shall not apply to any offense committed before the effective date of this Act." This Act became effective May 1, 2012.
Law reviews. - For article, "Death Penalty Law," see 53 Mercer L. Rev. 233 (2001). For article, "Medical Decision-Making in Georgia," see 10 Ga. St. B. J. 50 (No. 7, 2005). For article, "Looking for a Way Out: How to Escape the Assisted Suicide Law in England," see 24 Emory Int'l L. Rev. 697 (2010). For article on the 2012 enactment of this Code section, see 29 Ga. St. U. L. Rev. 278 (2012). For annual survey on criminal law, see 64 Mercer L. Rev. 83 (2012). For note on the 1994 enactment of this Code section, see 11 Ga. St. U. L. Rev. 103 (1994). For note, "Compassion in Dying v. Washington: A Resolution to the 'Jurisprudence of Doubt' Enshrouding Physician-Assisted Suicide?," see 47 Mercer L. Rev. 1145 (1996). For note, "People v. Kevorkian: Michigan's Supreme Court Leads the Way in Declaring No Fundamental Right to Assist Another in Suicide," see 47 Mercer L. Rev. 1191 (1996).
JUDICIAL DECISIONS
Editor's notes. - In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 16-5-5 are included in the annotations for this Code section.
O.C.G.A. § 16-5-5 (b) unconstitutional. - Former O.C.G.A. § 16-5-5 (b) was unconstitutional under the free speech provisions of the United States and Georgia Constitutions, U.S. Const., amend. 1 and Ga. Const. 1983, Art. I, Sec. I, Para. V, because it was not all assisted suicides that were criminalized but only those that include a public advertisement or offer to assist; because the state failed to provide any explanation or evidence as to why a public advertisement or offer to assist in an otherwise legal activity was sufficiently problematic to justify an intrusion on protected speech rights, it could not, consistent with the United States and Georgia Constitutions, make the public advertisement or offer to assist in a suicide a criminal offense. Final Exit Network, Inc. v. State, 290 Ga. 508 , 722 S.E.2d 722 (2012) (decided under former O.C.G.A. § 16-5-5).
Execution of defendant was not assisted suicide. - Fact that the defendant agreed with the jury's determination that defendant's crimes deserved death did not mean that defendant's execution would constitute assisted suicide. Colwell v. State, 273 Ga. 634 , 544 S.E.2d 120 (2001), cert. denied, 534 U.S. 972, 122 S. Ct. 394 , 151 L. Ed. 2 d 298 (2001) (decided under former O.C.G.A. § 16-5-5 ).
RESEARCH REFERENCES
ALR. - Validity of criminalization of urging or assisting suicide under state statutes and common law, 96 A.L.R.6th 475.
ARTICLE 2 ASSAULT AND BATTERY
Cross references. - Battery, assault, stalking, etc., involving family members, § 19-13-1 et seq.
Law reviews. - For comment, "The Limits of the Neighborhood Justice Center: Why Domestic Violence Cases Should Not Be Mediated," see 34 Emory L.J. 855 (1985).
JUDICIAL DECISIONS
Cited in Giles v. State, 143 Ga. App. 558 , 239 S.E.2d 168 (1977).
RESEARCH REFERENCES
Assault and Battery, 1 POF3d 613.
Damages for Sexual Assault, 15 POF3d 259.
ALR. - Danger or apparent danger of death or great bodily harm as condition of self-defense in prosecution for assault as distinguished from prosecution for homicide, 114 A.L.R. 634 .
Indecent proposal to woman as assault, 12 A.L.R.2d 971.
Assault: criminal liability as barring or mitigating recovery of punitive damages, 98 A.L.R.3d 870.
Constitutionality of assault and battery laws limited to protection of females only or which provide greater penalties for males than for females, 5 A.L.R.4th 708.
Liability of governmental unit for intentional assault by employee other than police officer, 17 A.L.R.4th 881.
Liability of hotel or motel operator for injury to guest resulting from assault by third party, 28 A.L.R.4th 80.
Provocation as basis for mitigation of compensatory damages in action for assault and battery, 35 A.L.R.4th 947.
Liability for injury to martial arts participant, 47 A.L.R.4th 403.
16-5-19. Definitions.
As used in this article, the term:
- "Correctional officer" means any person who is authorized to exercise the power of arrest and who is employed or appointed by the Department of Corrections or the State Board of Pardons and Paroles.
- "Emergency health worker" means hospital emergency department personnel and emergency medical services personnel.
- "Firefighter" shall have the same meaning as set forth in Code Section 25-4-2.
- "Highway emergency response operator" means an individual employed by the Department of Transportation who operates a towing or recovery vehicle or highway maintenance vehicle.
- "Jail officer" means any person who is employed or appointed by a county or a municipality and who has the responsibility of supervising inmates who are confined in a municipal or county detention facility.
- "Juvenile correctional officer" means any person employed or appointed by the Department of Juvenile Justice who has the primary responsibility for the supervision and control of youth confined in its programs and facilities.
- "Officer of the court" means a judge, attorney, clerk of court, deputy clerk of court, court reporter, or court interpreter.
- "Probation officer" means a community supervision officer, county or Department of Juvenile Justice juvenile probation officer, or probation officer serving pursuant to Article 6 of Chapter 8 of Title 42.
- "Public safety officer" means peace officer, correctional officer, emergency health worker, firefighter, highway emergency response operator, jail officer, juvenile correctional officer, or probation officer.
- "Public transit vehicle" shall have the same meaning as set forth in Code Section 16-5-20.
- "Strangulation" means impeding the normal breathing or circulation of blood of another person by applying pressure to the throat or neck of such person or by obstructing the nose and mouth of such person. (Code 1981, § 16-5-19 , enacted by Ga. L. 2017, p. 500, § 3-1/SB 160.)
Effective date. - This Code section became effective July 1, 2017.
Editor's notes. - Ga. L. 2017, p. 500, § 1-1/SB 160, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Back the Badge Act of 2017.'"
Law reviews. - For annual survey on criminal law, see 69 Mercer L. Rev. 73 (2017). For article on the 2017 enactment of this Code section, see 34 Ga. St. U. L. Rev. 89 (2017).
16-5-20. Simple assault.
-
A person commits the offense of simple assault when he or she either:
- Attempts to commit a violent injury to the person of another; or
- Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.
- Except as provided in subsections (c) through (h) of this Code section, a person who commits the offense of simple assault shall be guilty of a misdemeanor.
- Any person who commits the offense of simple assault in a public transit vehicle or station shall, upon conviction thereof, be punished for a misdemeanor of a high and aggravated nature. For purposes of this Code section, "public transit vehicle" means a bus, van, or rail car used for the transportation of passengers within a system which receives a subsidy from tax revenues or is operated under a franchise contract with a county or municipality of this state.
- If the offense of simple assault is committed between past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons excluding siblings living or formerly living in the same household, the defendant shall be punished for a misdemeanor of a high and aggravated nature. In no event shall this subsection be applicable to corporal punishment administered by a parent or guardian to a child or administered by a person acting in loco parentis.
- Any person who commits the offense of simple assault against a person who is 65 years of age or older shall, upon conviction thereof, be punished for a misdemeanor of a high and aggravated nature.
- Any person who commits the offense of simple assault against an employee of a public school system of this state while such employee is engaged in official duties or on school property shall, upon conviction of such offense, be punished for a misdemeanor of a high and aggravated nature. For purposes of this Code section, "school property" shall include public school buses and stops for public school buses as designated by local school boards of education.
- Any person who commits the offense of simple assault against a female who is pregnant at the time of the offense shall, upon conviction thereof, be punished for a misdemeanor of a high and aggravated nature.
-
Nothing in this Code section shall be construed to permit the prosecution of:
- Any person for conduct relating to an abortion for which the consent of the pregnant woman, or person authorized by law to act on her behalf, has been obtained or for which such consent is implied by law;
- Any person for any medical treatment of the pregnant woman or her unborn child; or
-
Any woman with respect to her unborn child.
For the purposes of this subsection, the term "unborn child" means a member of the species homo sapiens at any stage of development who is carried in the womb.
(Laws 1833, Cobb's 1851 Digest, p. 787; Code 1863, §§ 4256, 4257; Code 1868, §§ 4291, 4292; Code 1873, §§ 4357, 4358; Code 1882, §§ 4357, 4358; Penal Code 1895, §§ 95, 96; Penal Code 1910, §§ 95, 96; Code 1933, §§ 26-1401, 26-1402; Code 1933, § 26-1301, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1991, p. 971, §§ 1, 2; Ga. L. 1999, p. 381, § 2; Ga. L. 1999, p. 562, § 2; Ga. L. 2004, p. 621, § 1; Ga. L. 2005, p. 60, § 16/HB 95; Ga. L. 2006, p. 643, § 1/SB 77.)
Code Commission notes. - Pursuant to Code Section 28-9-5, in 1999, "subsections (c), (d), and (e)" was substituted for "subsections (c) and (d)" in subsection (b), and subsection (d) as enacted by Ga. L. 1999, p. 562, § 2, was redesignated as subsection (e).
Editor's notes. - Ga. L. 1999, p. 381, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Crimes Against Family Members Act of 1999'."
Ga. L. 1999, p. 381, § 7, not codified by the General Assembly, provides that: "Nothing herein shall be construed to validate a relationship between people of the same sex as a 'marriage' under the laws of this State."
Ga. L. 1999, p. 562, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Crimes Against Elderly Act of 1999'."
Ga. L. 2004, p. 621, § 9(b), not codified by the General Assembly, provides that the amendment by that Act shall apply to offenses committed on or after July 1, 2004.
Ga. L. 2006, p. 643, § 5, not codified by the General Assembly, provides that the amendment by that Act shall apply to all offenses committed on or after July 1, 2006.
Law reviews. - For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For article, "Misdemeanor Sentencing in Georgia," see 7 Ga. St. B. J. 8 (2001). For article on 2006 amendment of this Code section, see 23 Georgia. St. U. L. Rev. 37 (2006). For note on 1999 amendments to Code sections in this article, see 16 Georgia. St. U. L. Rev. 72 (1999).
JUDICIAL DECISIONS
ANALYSIS
General Consideration
Concurrent jurisdiction with federal labor legislation. - Even under situations involving the jurisdiction of the National Labor Relations Act, 29 U.S.C. § 151 et seq., the state has retained concurrent jurisdiction to enforce O.C.G.A. § 16-5-20 as it directly relates to the prevention of, or incitement to, immediate violence or to the prevention of the threat of immediate violence or violent injury. State v. Klinakis, 206 Ga. App. 318 , 425 S.E.2d 665 (1992).
Simple assault defined. - Offense of simple assault is complete if there is such a demonstration of violence, coupled with an apparent ability to inflict injury so as to cause the person against whom it is directed reasonably to fear the injury unless the person retreats to secure that person's safety. Hise v. State, 127 Ga. App. 511 , 194 S.E.2d 274 (1972); Hudson v. State, 135 Ga. App. 739 , 218 S.E.2d 905 (1975).
Simple assault does not require physical contact with victim. Tuggle v. State, 145 Ga. App. 603 , 244 S.E.2d 131 (1978).
Any attempt to do any unlawful act of violence injurious to another was included in former Code 1933, § 26-1401 (see now O.C.G.A. § 16-5-20 ). Williams v. State, 15 Ga. App. 306 , 82 S.E. 938 (1914).
Assault is inchoate violence, with present means of carrying the violence into effect. The intention to do bodily harm is the essence of assault. Mullen v. State, 51 Ga. App. 385 , 180 S.E. 521 (1935).
"Person". - State may present a surviving aggravated assault victim for view by the jurors, where, even though the victim does not testify, the victim's presence establishes that the victim is a "person" for purposes of proving the elements of O.C.G.A. § 16-5-20(a) . Perry v. State, 276 Ga. 836 , 585 S.E.2d 614 , rev'd, 276 Ga. 839 , 584 S.E.2d 253 (2003).
"Commits an act." - When there was no evidence that defendant performed any act constituting a substantial step toward the commission of a battery, defendant could not be convicted of assault, as the evidence could not satisfy the element of "commits an act." In the Interest of C.S., 251 Ga. App. 411 , 554 S.E.2d 558 (2001).
"Intent to commit injury" inconsistent with negligence. - Charge of aggravated assault under O.C.G.A. § 16-5-21 based upon the "intent to commit injury" provisions of O.C.G.A. § 16-5-20(a)(1) requires a criminal intent that is fatally inconsistent with the negligence required by a charge of reckless conduct under O.C.G.A. § 16-5-60(b) . Reddick v. State, 264 Ga. App. 487 , 591 S.E.2d 392 (2003), overruled on other grounds by State v. Springer, 297 Ga. 376 , 774 S.E.2d 106 (2015).
Aggravated assault convictions were affirmed because the defendant accelerated toward officers standing in front of a roadblock, forcing them to jump out of the way, and causing one to fall. Williams v. State, 270 Ga. App. 371 , 606 S.E.2d 594 (2004).
Intention to commit unlawful act must exist. Woodruff v. Woodruff, 22 Ga. 237 (1857); Dorsey v. State, 108 Ga. 477 , 34 S.E. 135 (1899).
Intent is question for jury. Thomas v. State, 99 Ga. 38 , 26 S.E. 748 (1896); Robinson v. State, 118 Ga. 750 , 45 S.E. 620 (1903).
Apparent ability, not actual present ability to commit injury is necessary. - There does not have to be an actual present ability to commit the injury. There need only be an apparent ability to commit violent injury upon the person assailed. Thomas v. State, 99 Ga. 38 , 26 S.E. 748 (1896).
Mere preparation unaccompanied by physical effort to commit violent injury upon another person is not assault. Fennell v. State, 164 Ga. 59 , 137 S.E. 762 (1927); Mullen v. State, 51 Ga. App. 385 , 180 S.E. 521 (1935).
Contact proceeding from rudeness is as offensive and harmful as that from anger or lust, and in law constitutes an assault and battery. Brown v. State, 57 Ga. App. 864 , 197 S.E. 82 (1938).
Completion of assault. - While a mere threat or menace to commit a violent injury upon the person of another is not sufficient to constitute an assault, yet where the threat or menace is accompanied by an apparent attempt to commit such an injury, and its consummation is prevented, either by the act of the person upon whom the assault is threatened or by the interposition of a third person, the violence has commenced, and the assault is complete. Harrison v. State, 60 Ga. App. 610 , 4 S.E.2d 602 (1939).
There need not be an actual present ability to commit a violent injury upon the person assailed but, if there be such a demonstration of violence, coupled with an apparent ability to inflict the injury, so as to cause the person against whom it was directed reasonably to fear the injury unless the person retreats to secure that person's safety, and under such circumstances, the person is compelled to retreat to avoid an impending danger, the assault is complete though the assailant may never have been within actual striking distance of the person assaulted. Harrison v. State, 60 Ga. App. 610 , 4 S.E.2d 602 (1939).
Assault is attempted battery. - It is lawful to convict for simple assault even though the proof shows that a battery was committed because by definition an assault is nothing more than an attempted battery. Scott v. State, 141 Ga. App. 848 , 234 S.E.2d 685 (1977).
Assault is necessarily included in every battery. Terry v. State, 166 Ga. App. 632 , 305 S.E.2d 170 (1983); Anderson v. State, 170 Ga. App. 634 , 317 S.E.2d 877 (1984).
When offense of simple assault is complete. - Offense of simple assault is complete if there is a demonstration of violence, coupled with apparent present ability to inflict injury so as to cause person against whom it is directed reasonably to fear that the person will receive an immediate violent injury unless the person retreats to secure that person's safety. Johnson v. State, 158 Ga. App. 432 , 280 S.E.2d 856 (1981).
There must be substantial step toward committing battery before there can be assault since assault is attempted battery. Bissell v. State, 153 Ga. App. 564 , 266 S.E.2d 238 (1980).
When two acts charged, State must prove only one. - Indictment charged defendant with aggravated assault by committing two acts, however, the state need prove only one of the two acts constituting the crime of aggravated assault to sustain the conviction. Brown v. State, 242 Ga. App. 347 , 529 S.E.2d 650 (2000), overruled on other grounds, Ellis v. State, 292 Ga. 276 , 736 S.E.2d 412 (2013).
In every assault there must be intent to injure. The test is, was there a present purpose of doing bodily injury? Riddle v. State, 145 Ga. App. 328 , 243 S.E.2d 607 (1978), overruled on other grounds, Adsitt v. State, 248 Ga. 237 , 282 S.E.2d 305 (1981).
State of mind of either a perpetrator or a victim, including whether a victim has been placed under reasonable apprehension of injury or fear from an event, when in issue, may be proved by indirect or circumstantial evidence. Williams v. State, 208 Ga. App. 12 , 430 S.E.2d 157 (1993).
When the language of the indictment did not track the exact language of the assault statute, but did allege that the defendant "maliciously" struck the victim, it properly alleged the necessary element of intent since, given the circumstances of the case whereby the victim did not see the defendant strike the victim, it would have been difficult to conclude that the victim was placed in reasonable apprehension of being injured violently. Gamble v. State, 235 Ga. App. 777 , 510 S.E.2d 69 (1998).
Apparent ability to injure is necessary element of assault. - To constitute an assault no actual injury need be shown, it being only necessary to show an intention to commit an injury, coupled with an apparent ability to do so. Reeves v. State, 128 Ga. App. 750 , 197 S.E.2d 843 (1973).
There need not be actual present ability to commit violent injury upon person assailed; but, if there be such a demonstration of violence, coupled with an apparent ability to inflict the injury, so as to cause the person against whom it is directed reasonably to fear the injury unless the person retreats to secure that person's safety, and under such circumstances the person is compelled to retreat to avoid an impending danger, the assault is complete though the assailant may never have been within actual striking distance of the person assailed. Reeves v. State, 128 Ga. App. 750 , 197 S.E.2d 843 (1973).
Victim's apprehension may be inferred from victim's conduct. - Proof that victim has been placed in apprehension of immediately receiving a violent injury need not necessarily be solely by reason of victim's testimony of victim's mental state but may be inferred from conduct of victim such as when the victim retreats to secure safety. Hurt v. State, 158 Ga. App. 722 , 282 S.E.2d 192 (1981).
Fear is not the same as reasonable apprehension. - Simple assault is defined as an act which places another in reasonable apprehension of immediately receiving a violent injury pursuant to O.C.G.A. § 16-5-20(a)(2), an assault becomes aggravated when it is committed with a deadly weapon, O.C.G.A. § 16-5-21(a)(2); thus, if the victim is in reasonable apprehension of an immediate violent injury from a weapon, an aggravated assault has occurred. Because reasonable apprehension of injury is not the same as simple fear, the testimony that the victim was not afraid of the defendant does not preclude conviction. Lunsford v. State, 260 Ga. App. 818 , 581 S.E.2d 638 (2003).
Mere threat to commit violent injury upon person of another is not sufficient to constitute an assault. Hudson v. State, 135 Ga. App. 739 , 218 S.E.2d 905 (1975); Johnson v. State, 158 Ga. App. 432 , 280 S.E.2d 856 (1981).
Elements of simple assault must be included in definition of aggravated assault. - In every criminal case of aggravated assault, trial judge must include statement as to elements of simple assault within the judge's definition of aggravated assault. Harper v. State, 157 Ga. App. 480 , 278 S.E.2d 28 (1981).
"Assault" in aggravated assault is not equivalent to simple assault in O.C.G.A. § 16-5-20 . Zachery v. State, 158 Ga. App. 448 , 280 S.E.2d 860 (1981).
Indictment sufficient. - Because an indictment, which included charging language that the defendant "unlawfully, and with malice aforethought, caused the death of the victim by striking," placed the defendant on notice of a possible conviction of an assault upon the victim with the intent to murder or commit a violent injury, the defendant could be convicted of aggravated assault as a lesser included crime of malice murder; the only difference was that the malice murder indictment alleged that the defendant actually accomplished the murder, in addition to having intended to accomplish the murder. Reagan v. State, 281 Ga. App. 708 , 637 S.E.2d 113 (2006).
Failure to include definition of simple assault in charge on aggravated assault. - Trial court does not necessarily err in failing to charge upon the definition of simple assault in charging on aggravated assault as a charge on simple assault need not be given in order to complete the definition of aggravated assault. Willis v. State, 167 Ga. App. 626 , 307 S.E.2d 133 (1983).
There is no merit in defendant's contention that a charge on simple assault under O.C.G.A. § 16-5-20 must be given in order to complete the definition of aggravated assault under O.C.G.A. § 16-5-21 as the latter does not need the former to make it complete. Spaulding v. State, 185 Ga. App. 812 , 366 S.E.2d 174 , cert. denied, 185 Ga. App. 911 , 366 S.E.2d 174 (1988).
Simple assault is lesser included offense of aggravated assault with deadly weapon. - Simple assault under former Code 1933, § 26-1301 (see O.C.G.A. § 16-5-20 ) and pointing a gun or pistol at another under former Code 1933, § 26-2908 (see O.C.G.A. § 16-11-102 ) are both misdemeanors and are included in the greater crime of aggravated assault with a deadly weapon. Morrison v. State, 147 Ga. App. 410 , 249 S.E.2d 131 (1978).
Simple assault is not a lesser included offense of terroristic threats. McQueen v. State, 184 Ga. App. 630 , 362 S.E.2d 436 (1987).
Defendant failed to show error in refusal to merge offenses because the defendant failed to show that aggravated assault was established by the same facts used to prove simple battery; evidence that the defendant entered a store wearing a mask, that the defendant opened the cash drawer, that the defendant tried to wrangle a key to the drawer from the employee's hand, that the defendant demanded money, that the defendant banged on the register, and that the defendant appeared to have had a gun supported the aggravated assault conviction, but none of this evidence was needed to prove simple battery, which was established by evidence of the defendant's bruising blows to the employee's arm. Lawson v. State, 275 Ga. App. 334 , 620 S.E.2d 600 (2005).
Effect of section on offenses under prior law. - Under Ga. L. 1968, pp. 1249, 1280 et seq. (see O.C.G.A. § 16-5-20 ), numerous offenses formerly specifically set out are grouped as assaults or batteries. Wells v. State, 125 Ga. App. 579 , 188 S.E.2d 407 (1972).
When evidence of circumstances clearly supports guilt of simple assault. - When the circumstances clearly disclose a situation in which the jury could determine that the alleged victim, with a pistol pointed at the victim, was in reasonable apprehension of immediately receiving a violent injury, the evidence clearly supports the verdict of guilty of simple assault. Hise v. State, 127 Ga. App. 511 , 194 S.E.2d 274 (1972).
Since the defendant's conviction for aggravated assault was based on placing the victim in reasonable apprehension of immediately receiving a violent injury, pursuant to O.C.G.A. § 16-5-20(a)(2), the guilty verdict did not preclude the element of criminal negligence in reckless conduct and, therefore, was not mutually exclusive with a verdict of guilt as to serious injury by vehicle predicated on reckless driving. Dryden v. State, 316 Ga. App. 70 , 728 S.E.2d 245 (2012).
Evidence did not require reversal. - Convictions for theft, aggravated assault, and making a terroristic threat was supported by evidence because the defendant admitted to taking gas cans, raised a machete to scare or strike the sibling, the sibling was frightened and ran, and the defendant then threatened the siblings that if either called the sheriff the defendant would return and kill them. Turner v. State, 273 Ga. App. 535 , 615 S.E.2d 603 (2005).
Convictions against the defendant for aggravated assault and simple assault did not require reversal because the police failed to preserve the defendant's car after the defendant had engaged in an aggressive car chase, which resulted in the assault charges based on the defendant having used his car as a weapon, as there was no showing that the police acted in bad faith in failing to preserve the evidence and no evidence that suggested that the possible exculpatory value of the car was apparent before its destruction. Ransby v. State, 273 Ga. App. 594 , 615 S.E.2d 651 (2005).
Despite the recantation by a juvenile's parent at trial, because sufficient evidence that the juvenile placed the parent in reasonable apprehension of being struck with a hammer, which was in line with the allegations in the parent's complaint filed immediately following the incident, the juvenile court's adjudication against the juvenile for aggravated assault was upheld on appeal. In the Interest of C.B., 288 Ga. App. 752 , 655 S.E.2d 342 (2007).
Prior violent felony conviction for purposes of Armed Career Criminal Act. - When the defendant pled guilty to possession of a firearm by a convicted felon, defendant's application for leave to file a second or successive motion to vacate, set aside, or correct the defendant's federal sentence was denied as the defendant had three prior violent felony convictions under the elements clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924, because the defendant had two separate Georgia convictions for felony obstruction of a law enforcement officer and a Georgia conviction for aggravated assault, which constituted violent felonies for purposes of the ACCA. In re White, F.3d (11th Cir. June 15, 2016).
Cited in Johnson v. State, 122 Ga. App. 542 , 178 S.E.2d 42 (1970); Smith v. State, 127 Ga. App. 468 , 193 S.E.2d 921 (1972); Bentley v. State, 131 Ga. App. 425 , 205 S.E.2d 904 (1974); Harvey v. State, 233 Ga. 41 , 209 S.E.2d 587 (1974); Hale v. State, 135 Ga. App. 625 , 218 S.E.2d 643 (1975); Harper v. State, 135 Ga. App. 924 , 219 S.E.2d 636 (1975); Ray v. State, 235 Ga. 467 , 219 S.E.2d 761 (1975); Smith v. State, 140 Ga. App. 395 , 231 S.E.2d 143 (1976); Williams v. State, 141 Ga. App. 201 , 233 S.E.2d 48 (1977); Leach v. State, 143 Ga. App. 598 , 239 S.E.2d 177 (1977); Pass v. State, 144 Ga. App. 253 , 240 S.E.2d 777 (1977); Oliver v. State, 146 Ga. App. 551 , 246 S.E.2d 734 (1978); Peterkin v. State, 147 Ga. App. 437 , 249 S.E.2d 152 (1978); Ruff v. State, 150 Ga. App. 238 , 257 S.E.2d 203 (1979); Jarrad v. State, 152 Ga. App. 553 , 263 S.E.2d 444 (1979); Sutton v. State, 245 Ga. 192 , 264 S.E.2d 184 (1980); Henderson v. State, 153 Ga. App. 801 , 266 S.E.2d 522 (1980); Hayslip v. State, 154 Ga. App. 835 , 270 S.E.2d 61 (1980); Webb v. State, 156 Ga. App. 623 , 275 S.E.2d 707 (1980); C.L.T. v. State, 157 Ga. App. 180 , 276 S.E.2d 862 (1981); Delano v. State, 158 Ga. App. 296 , 279 S.E.2d 743 (1981); Craft v. State, 158 Ga. App. 745 , 282 S.E.2d 203 (1981); Jackson v. State, 248 Ga. 480 , 284 S.E.2d 267 (1981); Jefferson v. State, 159 Ga. App. 740 , 285 S.E.2d 213 (1981); Goodman v. Davis, 249 Ga. 11 , 287 S.E.2d 26 (1982); Williams v. State, 249 Ga. 6 , 287 S.E.2d 31 (1982); Merrell v. State, 162 Ga. App. 886 , 293 S.E.2d 474 (1982); Capitol T.V. Serv., Inc. v. Derrick, 163 Ga. App. 65 , 293 S.E.2d 724 (1982); Joiner v. State, 163 Ga. App. 521 , 295 S.E.2d 219 (1982); Chastain v. State, 163 Ga. App. 678 , 296 S.E.2d 69 (1982); Talley v. State, 164 Ga. App. 150 , 296 S.E.2d 173 (1982); Petouvis v. State, 165 Ga. App. 409 , 301 S.E.2d 483 (1983); McWilliams v. State, 172 Ga. App. 55 , 322 S.E.2d 87 (1984); Lester v. State, 173 Ga. App. 300 , 325 S.E.2d 912 (1985); Hamby v. State, 173 Ga. App. 750 , 328 S.E.2d 224 (1985); Swint v. State, 173 Ga. App. 762 , 328 S.E.2d 373 (1985); Hambrick v. State, 174 Ga. App. 444 , 330 S.E.2d 383 (1985); Green v. State, 175 Ga. App. 92 , 332 S.E.2d 385 (1985); Cook v. State, 255 Ga. 565 , 340 S.E.2d 843 (1986); King v. State, 178 Ga. App. 343 , 343 S.E.2d 401 (1986); Robinson v. State, 182 Ga. App. 423 , 356 S.E.2d 55 (1987); Rhodes v. State, 257 Ga. 371 , 359 S.E.2d 670 (1987); Binns v. State, 258 Ga. 23 , 364 S.E.2d 871 (1988); Munoz v. State, 190 Ga. App. 806 , 380 S.E.2d 88 (1989); Freeman v. State, 194 Ga. App. 905 , 392 S.E.2d 330 (1990); State v. Seignious, 197 Ga. App. 766 , 399 S.E.2d 559 (1990); Knox v. State, 261 Ga. 272 , 404 S.E.2d 269 (1991); Gaston v. State, 209 Ga. App. 477 , 433 S.E.2d 306 (1993); Smiley v. State, 263 Ga. 716 , 438 S.E.2d 75 (1994); Powell v. State, 228 Ga. App. 56 , 491 S.E.2d 135 (1997); Reeves v. State, 233 Ga. App. 802 , 505 S.E.2d 540 (1998); Fletcher v. Screven County, 92 F. Supp. 2d 1377 (S.D. Ga. 2000); Huguley v. State, 242 Ga. App. 645 , 529 S.E.2d 915 (2000); Lowery v. State, 242 Ga. App. 375 , 530 S.E.2d 22 (2000); Brinson v. State, 272 Ga. 345 , 529 S.E.2d 129 (2000); Tucker v. State, 245 Ga. App. 551 , 538 S.E.2d 458 (2000); Robertson v. State, 245 Ga. App. 649 , 538 S.E.2d 755 (2000); Brown v. State, 246 Ga. App. 60 , 539 S.E.2d 545 (2000); Maynor v. State, 257 Ga. App. 151 , 570 S.E.2d 428 (2002); Heard v. State, 257 Ga. App. 315 , 573 S.E.2d 82 (2002); Damare v. State, 257 Ga. App. 508 , 571 S.E.2d 507 (2002); Jackson v. State, 257 Ga. App. 817 , 572 S.E.2d 360 (2002); Williams v. State, 270 Ga. App. 371 , 606 S.E.2d 594 (2004); Taylor v. State, 271 Ga. App. 701 , 610 S.E.2d 668 (2005); Harris v. State, 273 Ga. App. 90 , 614 S.E.2d 189 (2005); Kelley v. State, 279 Ga. App. 187 , 630 S.E.2d 783 (2006); Ivey v. State, 284 Ga. App. 232 , 644 S.E.2d 169 (2007); May v. State, 287 Ga. App. 407 , 651 S.E.2d 510 (2007); Brown v. State, 288 Ga. App. 812 , 655 S.E.2d 692 (2007); Boyd v. State, 289 Ga. App. 342 , 656 S.E.2d 864 (2008); Taul v. State, 290 Ga. App. 288 , 659 S.E.2d 646 (2008); Louis v. State, 290 Ga. App. 106 , 658 S.E.2d 897 (2008); Quiroz v. State, 291 Ga. App. 423 , 662 S.E.2d 235 (2008); Branton v. State, 292 Ga. App. 104 , 663 S.E.2d 414 (2008); Lewis v. State, 292 Ga. App. 257 , 663 S.E.2d 721 (2008); Armstrong v. State, 292 Ga. App. 145 , 664 S.E.2d 242 (2008); Carlos v. State, 292 Ga. App. 419 , 664 S.E.2d 808 (2008); Hardy v. State, 293 Ga. App. 265 , 666 S.E.2d 730 (2008); Adams v. State, 293 Ga. App. 377 , 667 S.E.2d 186 (2008); Gordon v. State, 294 Ga. App. 908 , 670 S.E.2d 533 (2008); Bradshaw v. State, 284 Ga. 675 , 671 S.E.2d 485 (2008); Hollis v. State, 295 Ga. App. 529 , 672 S.E.2d 487 (2009); Hudson v. State, 296 Ga. App. 692 , 675 S.E.2d 578 (2009); In the Interest of J. W. B., 296 Ga. App. 131 , 673 S.E.2d 630 (2009); Williams v. State, 288 Ga. 7 , 700 S.E.2d 564 (2010); Rainly v. State, 307 Ga. App. 467 , 705 S.E.2d 246 (2010); Myers v. State, 311 Ga. App. 668 , 716 S.E.2d 772 (2011); Gross v. State, 312 Ga. App. 362 , 718 S.E.2d 581 (2011); Hall v. State, 313 Ga. App. 66 , 720 S.E.2d 181 (2011); Ellis v. State, 316 Ga. App. 352 , 729 S.E.2d 492 (2012); Williams v. State, 316 Ga. App. 821 , 730 S.E.2d 541 (2012); Sullivan v. Kemp, 293 Ga. 770 , 749 S.E.2d 721 (2013); State v. Owens, 296 Ga. 205 , 766 S.E.2d 66 (2014); Goodrum v. State, 335 Ga. App. 831 , 783 S.E.2d 354 (2016); In the Interest of L. J., 337 Ga. App. 653 , 788 S.E.2d 531 (2016); Harper v. State, 337 Ga. App. 57 , 785 S.E.2d 691 (2016); Williams v. State, 347 Ga. App. 171 , 818 S.E.2d 88 (2018); Parks v. State, 304 Ga. 313 , 818 S.E.2d 502 (2018); Jackson v. State, 305 Ga. 614 , 825 S.E.2d 188 (2019); Martin v. State, 349 Ga. App. 656 , 825 S.E.2d 227 (2019); Gonzalez v. State, 352 Ga. App. 83 , 833 S.E.2d 727 (2019); Dodson v. State, 353 Ga. App. 412 , 838 S.E.2d 87 (2020).
Application
Person aiding and abetting assault is equally guilty. - When two people confederate with the mutual intent of committing an assault on another, and in pursuance of this purpose one commits the actual assault, while the other stands by in a position to assist, if necessary, and thus aids and abets in the commission of the crime, the latter is guilty equally with the one committing the actual assault, even though that person does not inflict a blow. Knight v. State, 52 Ga. App. 199 , 182 S.E. 684 (1935).
No fatal variance. - Defendant's conviction for aggravated assault was affirmed since there was not a fatal variance between the evidence and the indictment, which alleged that the defendant unlawfully made an assault with intent to rob, with a knife, by holding the knife in a threatening manner while demanding money; the defendant was a conspirator in an armed robbery and the demands for money could be attributed to the defendant as the defendant entered the apartment without permission and held the knife at the defendant's side with the blade exposed as the defendant's partner demanded money, and the victims were afraid that the defendant "would do something." Brown v. State, 281 Ga. App. 523 , 636 S.E.2d 709 (2006), cert. denied, No. S07C0168, 2007 Ga. LEXIS 99 (Ga. 2007).
Testimony showing subsequent circumstances and natural consequences of act alleged as assault is admissible. - Since the state contended the defendant threw a lighted lamp at the prosecutrix, testimony relative to the fire in the room, the fire's height, the things burned by the fire, and the place where the things were burned at the time when the prosecutrix came back to her house a few minutes after she had fled and when the officers had arrived was admissible in assault prosecution as showing subsequent circumstances that grew out of and were the natural consequences of throwing the lighted lamp. Harrison v. State, 60 Ga. App. 610 , 4 S.E.2d 602 (1939).
Unintentional homicide resulting from simple assault. - Because simple assault is a misdemeanor, an unintentional homicide proximately resulting from that unlawful act would amount to involuntary manslaughter and not murder. Norrell v. State, 116 Ga. App. 479 , 157 S.E.2d 784 (1967).
Jury determination of assault and battery. - When the defendant refused to leave, the complainant had a right to eject defendant from complainant's property, but with force not disproportionate to that required to eject the defendant. Whether or not force in excess of that necessary was used, giving defendant the right to defend self against an unwarranted assault but not to an extent within itself to constitute an assault and battery on the complainant, or whether the defendant was arbitrarily refusing to leave and was committing an unwarranted battery, were all questions for the jury under the proper instructions of the court. Slaughter v. State, 64 Ga. App. 423 , 13 S.E.2d 391 (1941).
Assault within meaning of exclusionary provision of life insurance policy. - In a suit under a life insurance policy, an exclusionary provision which eliminates coverage and liability if loss resulted from the insured's attempt to commit an assault, and where from the undisputed evidence all the apparent circumstances, reasonably viewed, are such as to lead a person reasonably to apprehend a violent injury from the unlawful act of another, there is an assault within the meaning of the exclusionary provision. Quaker City Life Ins. Co. v. Sutson, 102 Ga. App. 53 , 115 S.E.2d 699 (1960).
Simple assault merged into assault with intent to rob. - Since the state's evidence showed no assault other than the assault with intent to rob with a shotgun, the simple assault lost its identity and was merged into the greater crime of assault with intent to rob. Alexander v. State, 66 Ga. App. 708 , 19 S.E.2d 353 (1942).
Whether pointing or swinging pistol is assault should be left to jury. Kerbo v. State, 230 Ga. 241 , 196 S.E.2d 424 (1973).
Shooting a shotgun toward others. - Trial court did not abuse the court's discretion by denying the defendant's motion for a new trial because sufficient evidence supported the defendant's convictions for arson and aggravated assault based on the testimony of the witnesses who testified that the witnesses could see the defendant starting the fire through the kitchen windows and witnessed the defendant shoot a shotgun in the direction of a neighbor and four law enforcement officers who were at the scene as well as the defendant's admission that the defendant set the fire. Jackson v. State, 347 Ga. App. 199 , 818 S.E.2d 268 (2018).
In resisting unlawful arrest, one is justified in using force as reasonably necessary to prevent arrest, i.e., force proportionate to the force being used in the unlawful detention. Brooks v. State, 144 Ga. App. 97 , 240 S.E.2d 593 (1977).
Arrestee is justified in assaulting arresting officer only when officer has assaulted the arrestee first. Brooks v. State, 144 Ga. App. 97 , 240 S.E.2d 593 (1977).
Communication of terroristic threat is not punishable under the simple assault statute. Lanthrip v. State, 235 Ga. 10 , 218 S.E.2d 771 (1975).
Threat alone. - Plaintiff's alleged threat to "kick" a child's "ass" if the child did not get out of the plaintiff's yard did not constitute a simple assault under O.C.G.A. § 16-5-20(a) because the plaintiff made the allegedly threatening statement from inside an open window and had no present ability to injure the child, who was outside and on a bicycle, with the ability to leave the area at will; furthermore, plaintiff's alleged threat to "kick" the child's parent's "ass," where the parent also happened to be the complaining officer who caused the plaintiff's arrest, without more, did not constitute a simple assault, since the parent was also outside the house and in no apparent danger from plaintiff. Payne v. Dekalb County, 414 F. Supp. 2d 1158 (N.D. Ga. 2004).
One may be guilty of simple assault without violating terroristic threats. Lanthrip v. State, 235 Ga. 10 , 218 S.E.2d 771 (1975).
No assault when the defendant told the officers the defendant was going into back room to get gun to prevent the officers from arresting the defendant's mother. Hudson v. State, 135 Ga. App. 739 , 218 S.E.2d 905 (1975).
Reasonable apprehension of violent injury. - Defendant's conduct did constitute simple assault where there was ample evidence upon which jury could reasonably have found that defendant placed victim "in reasonable apprehension of immediately receiving a violent injury." McGee v. State, 165 Ga. App. 423 , 299 S.E.2d 573 (1983).
Evidence was sufficient to support a conviction for aggravated assault, in violation of O.C.G.A. § 16-5-21(a)(2), where the defendant fired shots towards the victim, who was "having a good time" with a group of other people in the apartment parking lot; the victim's reasonable apprehensive of receiving a violent injury was sufficient to satisfy the intent element under O.C.G.A. § 16-5-20(a)(2). Thompson v. State, 277 Ga. App. 323 , 626 S.E.2d 825 (2006).
Under O.C.G.A. § 16-5-20(a)(2), the evidence established that the victim reasonably apprehended immediate violent injury where, during an exchange between the defendant and the defendant's spouse, the victim, who had accompanied the spouse, asked the defendant to lower the defendant's voice, the defendant came after the victim, and, as the victim backed away, the defendant slammed the door shut, yelling "Stay out of it," walked to the defendant's car, drove around the parking lot, and returned. Wroge v. State, 278 Ga. App. 753 , 629 S.E.2d 596 (2006).
Juvenile court's adjudication entered against a juvenile on charges of aggravated assault and terroristic threats was upheld on appeal given sufficient evidence that: (1) the state adequately showed venue; and (2) the victim's testimony described the juvenile's act of pointing a gun, threatening to use the gun, and that such caused fear that something could happen as a result of defendant's acts. In the Interest of J.A.L., 284 Ga. App. 220 , 644 S.E.2d 162 (2007).
There was sufficient evidence to convict the defendant of aggravated assault when after the victim flicked a cigarette that landed on the defendant's car seat, the defendant said "I'll shoot you," and pointed a gun at the victim; although the defendant claimed that the defendant and the victim were just joking around, the evidence presented was sufficient to support a finding that the defendant's act placed the victim in reasonable apprehension of immediately receiving a violent injury under O.C.G.A. § 16-5-20(a)(2). Moore v. State, 286 Ga. App. 313 , 649 S.E.2d 337 (2007).
Evidence was sufficient to uphold the defendant's conviction for aggravated assault because all of the victims were together in a group, and one of the victim's testified that guns were pointed at everybody; the defendant's act of firing the weapon into the group made each individual a separate victim, and testimony that the victims were crying and screaming when the defendant fired was sufficient for the jury to conclude that the group too had a reasonable apprehension of receiving a violent injury, O.C.G.A. § 16-5-20(a)(2). Gaither v. State, 312 Ga. App. 53 , 717 S.E.2d 654 (2011), cert. denied, No. S12C0337, 2012 Ga. LEXIS 216 (Ga. 2012).
Trial court erred in ruling that there was insufficient evidence that the children felt threatened by the firearm because, while there was no direct evidence that the children were injured or were in reasonable apprehension of immediately receiving a violent injury, there was evidence that the defendant's sister and the sister's boyfriend were terrified of being harmed and the jury could have inferred that the children were aware of the totality of the defendant's actions and also terrified. State v. Wilkerson, 348 Ga. App. 190 , 820 S.E.2d 60 (2018).
Deliberately driving stolen van toward deputies. - Sufficient evidence supported the defendant's conviction for aggravated assault on a law enforcement officer because the defendant drove the stolen white van directly toward the deputies when they attempted to detain him, only missing them when they dove out of the way. Miller v. State, 351 Ga. App. 757 , 833 S.E.2d 142 (2019).
Violence against a parent. - When the defendant, while cursing and screaming at the defendant's parent, stood near the parent, holding a pot of boiling water and staring at the parent, the defendant's acts constituted aggravated assault under O.C.G.A. § 16-5-21(a)(2). They constituted both a substantial step toward committing a battery and a demonstration of violence against the parent, and showed a present ability to inflict injury that placed the parent in reasonable apprehension of immediately receiving a violent injury under § 16-5-20(a)(2). In the Interest of T.Y.B., 288 Ga. App. 610 , 654 S.E.2d 688 (2007).
Reasonable apprehension of violent injury in domestic case. - Defendant's convictions for family violence battery and simple battery were supported by evidence from the victim that the defendant had slapped the victim and choked the victim, an officer's observation of red marks around the victim's neck, and evidence of the defendant's two prior guilty pleas to batteries against the defendant's spouse. Evidence of the victim's fear of retrieving the victim's children from the house and the defendant's threats to spread the victim's brains on the wall supported the simple assault conviction. Cuzzort v. State, 307 Ga. App. 52 , 703 S.E.2d 713 (2010).
No reasonable apprehension prior to auto accident. - Evidence was insufficient to convict defendant of aggravated assault on facts arising out of an automobile crash that occurred as defendant was fleeing police, because criminal negligence was an insufficient degree of culpability to support a conviction of violating O.C.G.A. § 16-5-20(a)(1) and because there was no evidence that a police officer attempting to join the chase ever experienced an immediate apprehension of danger before the accident as required by O.C.G.A. § 16-5-20(a)(2) since the officer never saw the suspect's car. Montford v. State, 254 Ga. App. 524 , 564 S.E.2d 216 (2002).
Defendant guilty of simple assault. - Defendant's convictions for voluntary manslaughter, O.C.G.A. § 16-5-2(a) , and simple assault, O.C.G.A. § 16-5-20(a) , were supported by evidence that the defendant and others chased down a robber in an unsavory part of town and the defendant stabbed the robber with a knife while the robbery victim shot the robber; under O.C.G.A. § 24-4-8, the testimony of the defendant's accomplices about the defendant's participation in the crimes was adequately corroborated by each other's testimony and another eye witness. Woods v. State, 342 Ga. App. 301 , 802 S.E.2d 822 (2017).
Not Excessive Force
Officers had probable cause for simple assault arrest and did not use excessive force. - County police officers were properly granted summary judgment in surviving spouse's civil rights action, arising from the fatal shooting of the decedent when the decedent broke into the decedent's own house as officers did not use excessive force by using tasers on two occasions because the decedent refused to put the knife down or heed the officers' instructions, and the officers had probable cause to arrest the decedent for simple assault or obstruction of officers, and it was reasonable to believe that the decedent posed a danger. Smith v. LePage, 834 F.3d 1285 (11th Cir. 2016).
Excessive force. - When a decedent was tased once in the prong mode during an arrest, and all subsequent tasings were in the dry stun mode, a deputy and an officer were entitled to qualified immunity as to an excessive force claim because the illegality of their behavior was not clearly established at the time since their conduct did not rise to the level of "obvious clarity," because, inter alia, the decedent committed assault and battery on a police officer, the decedent's acts were contemporaneous with repeated threats to kill the deputy, and the decedent resisted during the entire time that they tried to handcuff the decedent. Hoyt v. Cooks, 672 F.3d 972 (11th Cir. 2012), cert. denied, U.S. , 133 S. Ct. 138 , 184 L. Ed. 2 d 29 (2012).
Admission of evidence of drug use proper. - Evidence of the defendant's prior drug use and history of crimes committed against family members fueled by drug usage were properly admitted as relevant to the crimes charged, despite incidentally placing the defendant's character in issue; thus, convictions for both aggravated assault and simple assault were upheld on appeal. Jones v. State, 283 Ga. App. 812 , 642 S.E.2d 887 (2007).
Defendant guilty of simple assault. - Because the defendant was aware the victim was the judicial officer responsible for defendant's arrest, had a face-to-face encounter with the victim within 48 hours after the arrest, and because the defendant had made a profane threat of physical violence against the victim, defendant was guilty, beyond a reasonable doubt, of simple assault despite defendant's argument that the threat against the victim was justified because the victim first said the victim would put defendant back in jail. Wells v. State, 204 Ga. App. 91 , 418 S.E.2d 438 (1992).
In an altercation where the victim was shot by defendant's codefendant, even though defendant did not hit the victim, there was evidence of defendant's threats against the victim and other actions sufficient to convict the defendant of simple assault; because defendant was acquitted of aggravated assault, however, defendant could not be ordered to pay restitution to the victim for gunshot wounds inflicted by the codefendant. Rider v. State, 210 Ga. App. 716 , 437 S.E.2d 493 (1993).
Defendant's aggressive driving, the defendant's act of following the victim, the defendant's estranged spouse, in the defendant's vehicle after the victim left the hospital, yelling at the victim, impeding the victim's movement, forcing the victim into oncoming lanes of traffic, and, on several occasions, bumping the victim's car, constituted at least simple assault in that it placed the victim in reasonable apprehension of immediately receiving a violent injury, pursuant to O.C.G.A. § 16-5-20(a)(2). Johnson v. State, 260 Ga. App. 413 , 579 S.E.2d 809 (2003).
Evidence supported guilt since the defendant tried to steal DVD players from a store, tried to hit an employee, and resisted arrest. Williams v. State, 261 Ga. App. 176 , 582 S.E.2d 141 (2003).
Reviewing the evidence in the light most favorable to the verdict, the evidence was sufficient to support the verdicts against the defendant for false imprisonment, aggravated battery, and simple assault in regard to acts of domestic violence against the victim, the defendant's spouse, as the evidence showed that the defendant dragged the spouse down a hallway by the spouse's hair and held the spouse in a bedroom against the spouse's will, that the defendant broke the spouse's nose and arm, and that the defendant beat the spouse with a car-washing brush. Mize v. State, 262 Ga. App. 486 , 585 S.E.2d 913 (2003).
Factfinder was allowed to find the defendant's hands to have been deadly weapons depending on the circumstances surrounding their use, including the extent of the victim's injuries; the jury was authorized to find the defendant guilty of aggravated assault where the defendant punched the victim in the face, shattering the victim's nose, and causing an injury so severe that the victim was required to undergo surgery. Lewis v. State, 263 Ga. App. 98 , 587 S.E.2d 245 (2003), overruled on other grounds by Washington v. State, 310 Ga. App. 775 , 714 S.E.2d 364 (2011).
Where the record revealed that the defendant and the defendant's love interest went to a party together, that the defendant became enraged when the defendant's love interest and another left the party without telling the defendant, and that upon returning home, the defendant strangled the defendant's love interest, whom the defendant had a history of abusing, and the defendant assaulted the other person, there was sufficient evidence to support the defendant's convictions for malice murder in violation of O.C.G.A. § 16-5-1 and simple assault in violation of O.C.G.A. § 16-5-20 . Rickman v. State, 277 Ga. 277 , 587 S.E.2d 596 (2003).
Testimony about how sound traveled from the kitchen to the den and the victim's comments concerning how the defendant could keep tabs on where the victim was constituted sufficient evidence to authorize the jury to conclude that the defendant knew where the victim was in the small kitchen and intentionally fired the defendant's gun at the victim through the upstairs flooring just above the site the victim was occupying in the kitchen, intending to inflict violent injury upon the victim and, thus, to establish that the defendant committed a simple assault. Chase v. State, 277 Ga. 636 , 592 S.E.2d 656 (2004).
Evidence was sufficient to show that the defendant committed an assault against the victims where the evidence showed that after one of the victims separated defendant and the defendant's sibling who were involved in a minor altercation, the defendant left and came back with a gun, which the defendant fired into the truck in which the victims were sitting; accordingly, the evidence showed the defendant intended to commit violence to the person of another. Bishop v. State, 266 Ga. App. 129 , 596 S.E.2d 674 (2004).
Sufficient evidence supported defendant's convictions on one count of simple assault and two counts of battery, which arose from a fight with a romantic friend, as it was within the jury's province to consider defendant's self-defense theory and reject that defense; the jury heard witnesses and observed testimony and was more capable of determining the reasonableness of the hypothesis produced by the evidence or lack of evidence than the appellate court. Thompson v. State, 291 Ga. App. 355 , 662 S.E.2d 135 (2008).
Defendant's acts sufficient to cause the victim to retreat and to generate a reasonable fear that the defendant intended to inflict injury upon the victim, authorized the jury to conclude that the defendant committed assault. Holbrook v. State, 168 Ga. App. 380 , 308 S.E.2d 869 (1983).
Evidence was sufficient to convict defendant of simple assault after demonstrating violence through verbal threats and damage to property, coupled with an apparent ability to inflict injury, causing victims to reasonably fear injury unless they retreated to secure their safety. Lewis v. State, 253 Ga. App. 578 , 560 S.E.2d 73 (2002).
Criminal negligence cannot substitute for criminal intent in cases of aggravated assault with a deadly weapon based on either O.C.G.A. § 16-5-20(a)(1) or (a)(2). Dunagan v. State, 269 Ga. 590 , 502 S.E.2d 726 (1998), overruling Osborne v. State, 228 Ga. App. 758 , 492 S.E.2d 732 (1007) and Jordan v. State, 214 Ga. App. 598 , 448 S.E.2d 917 (1994).
Criminal negligence cannot substitute for criminal intent in proving the commission of an aggravated assault. Cadle v. State, 271 Ga. App. 595 , 610 S.E.2d 574 (2005).
Evidence of previous crimes improperly admitted to show intent. - Appellant's convictions for felony murder, aggravated assault, and knife-possession offenses were reversed because the Georgia Supreme Court could not say that the trial court's erroneous admission of the voluminous evidence that the appellant had previously committed multiple serious violent acts did not contribute to the guilty verdicts that the jury returned. Strong v. State, Ga. , 845 S.E.2d 653 (2020).
Evidence sufficient for conviction. - See Wells v. State, 178 Ga. App. 82 , 342 S.E.2d 21 (1986); Larkin v. State, 191 Ga. App. 269 , 381 S.E.2d 421 (1989); King v. State, 213 Ga. App. 268 , 444 S.E.2d 381 (1994); Richards v. State, 222 Ga. App. 853 , 476 S.E.2d 598 (1996); Veal v. State, 242 Ga. App. 873 , 531 S.E.2d 422 (2000).
Evidence that defendant shot the victim in the face with a handgun was sufficient to show defendant committed "violent injury to the person of another." Johnson v. State, 225 Ga. App. 863 , 485 S.E.2d 551 (1997).
Rational trier of fact could have found the defendant guilty of simple assault beyond a reasonable doubt where defendant's parents/victims both testified that the parents were afraid of the defendant and the defendant had the capability of carrying out threats. Paul v. State, 231 Ga. App. 528 , 499 S.E.2d 914 (1998).
When the evidence established more than the defendant's mere presence at the scene of the crimes, the evidence was sufficient to find the defendant guilty beyond a reasonable doubt of felony murder and simple assault; although the defendant was not indicted for conspiracy, the evidence also supported a conspiracy charge. Belsar v. State, 276 Ga. 261 , 577 S.E.2d 569 (2003).
Aggravated assault convictions were upheld on appeal, based on the defendant's act of deliberately firing a gun in the direction of another; moreover, the fact that one of the defendant's cohorts also fired a weapon in the direction of the shooting victims was sufficient for defendant to be guilty as a party to said criminal acts. Thompson v. State, 281 Ga. App. 627 , 636 S.E.2d 779 (2006).
Evidence supported a defendant's conviction for the simple assault of the defendant's older child. The child and a sibling testified to the defendant's violent behavior on the night in question, and their testimony was corroborated by statements they and the defendant's live-in companion made to a detective and by property damage observed by the detective; furthermore, the older child testified that the child was afraid that night that the defendant might hit the child, that the defendant had previously pushed the child when angry, and that the defendant had a history of abusing persons of the opposite sex. Bearden v. State, 291 Ga. App. 805 , 662 S.E.2d 736 (2008).
There was sufficient evidence to support a defendant's convictions for false imprisonment, simple assault, and criminal trespass with regard to actions the defendant took toward the victim, who was a prior romantic friend, as the evidence established that the defendant went to the victim's home uninvited and entered the home; as the victim exited the bathroom, the defendant was standing in the hallway in front of the victim; alarmed, the victim attempted to flee into an adjacent room at which time the victim and the defendant struggled as the defendant attempted to prevent the victim from passing the defendant; once in the adjacent room, the defendant took the telephone from the victim as the victim tried to call 9-1-1; and the victim ultimately pushed out the screen and successfully exited the residence through an open window despite the defendant's attempt to pull the victim back inside. Port v. State, 295 Ga. App. 109 , 671 S.E.2d 200 (2008).
Based on a child's testimony that the defendant hit the child with the defendant's car after attempting to hit the child's parent, as well as the corroborating testimony of three other witnesses, the jury was authorized to conclude that the defendant assaulted the child with the car. Barnes v. State, 296 Ga. App. 493 , 675 S.E.2d 233 (2009).
Conviction of assault, O.C.G.A. § 16-5-20(a)(2), was supported by sufficient evidence because the defendant shouted at the victim in an agitated and angry manner, while standing in close proximity to the victim and blocking the victim's movement, the defendant had the apparent present ability to inflict injury, and the victim testified that the victim feared that the defendant might harm the victim; eyewitnesses also testified that the eyewitnesses feared for the victim's safety. The victim's fear was also shown by the fact that the victim was trying to escape the defendant's immediate presence, but was prevented from doing so by the defendant's actions. Daniels v. State, 298 Ga. App. 736 , 681 S.E.2d 642 (2009).
Trial court did not err in convicting the defendant of rape, O.C.G.A. § 16-6-1(a)(1), sexual battery, O.C.G.A. § 16-6-22.1(b) , aggravated battery, O.C.G.A. § 16-5-24(a) , and assault, O.C.G.A. § 16-5-20(a)(1), because the victim's testimony that the defendant raped, sodomized, punched, burned, and threatened to kill the victim was sufficient to authorize the defendant's convictions. Harris v. State, 308 Ga. App. 523 , 707 S.E.2d 908 (2011).
Evidence sufficient for simple assault of spouse. - Evidence that, during an argument, the defendant grabbed the defendant's spouse by the arms and threw the spouse to the ground, and then grabbed the back of the spouse's head, pushed the spouse down into the floor, and twisted the spouse's arm behind the spouse's back was sufficient to support the defendant's conviction for simple assault. Pettis v. State, 350 Ga. App. 421 , 829 S.E.2d 613 (2019).
Evidence sufficient for assault conviction but inadequate for impact on parental rights. - Although the evidence was sufficient to support a finding that the father committed an assault against the mother when the father threatened the mother and pointed a gun at the mother outside their home, because that incident took place outside the presence of the children, as the uncontradicted record showed that the children were inside the house asleep, there was no evidence that any of the children saw or heard the exchange between their mother and father, and none of the testimony offered by the Department of Family and Children Services established an act of abuse on the part of the father sufficient to warrant a finding of dependency; thus, there was insufficient evidence for the juvenile court to find the father's children dependent. In the Interest of K. D., 344 Ga. App. 423 , 810 S.E.2d 193 (2018).
Conviction of juvenile for assault against school official. - There was sufficient evidence that the defendant, a juvenile, committed acts that would constitute simple assault if done by an adult since while in a vice principal's office, the defendant took off the defendant's outer clothing and watch, made fists, squared the defendant's shoulders, and asked the vice principal, "Now what are you going to do?"; the vice principal testified that the vice principal felt threatened, and there was evidence of a present ability to inflict injury in that although the distance between the defendant and the vice principal was greater than an arm's length, they were standing in a confined office. In the Interest of D.B., 284 Ga. App. 445 , 644 S.E.2d 305 (2007).
Evidence sufficient for aggravated assault. - Evidence was sufficient to support the defendant's conviction of aggravated assault, as: (1) the defendant previously threatened to kill the victim; (2) the defendant pointed a gun at the victim, warned the victim not to give information to the police about what they did, and said, "We own this area"; (3) the frightened victim told the defendant to leave; and (4) the defendant left after further words were exchanged. Husband v. State, 275 Ga. App. 246 , 620 S.E.2d 479 (2005).
Evidence was sufficient to support the defendant's convictions for aggravated assault and simple battery because the perpetrator of a robbery entered a business wearing a mask, opened the cash drawer, an employee closed the drawer shut and locked it, the perpetrator and the employee then fought over the key to the drawer, leaving bruises on the employee's arm, the employee testified that the perpetrator had a shirt wrapped around the perpetrator's hand and it appeared that the perpetrator held a gun, the defendant then fled from police, within 10 minutes of the robbery both the employee and a customer identified the defendant as the perpetrator, and later, the defendant admitted that a hat found at the scene of the robbery belonged to the defendant. Lawson v. State, 275 Ga. App. 334 , 620 S.E.2d 600 (2005).
Trial court properly denied the defendant's motion for acquittal as a matter of law, pursuant to O.C.G.A. § 17-9-1 , as the evidence was sufficient to support the defendant's conviction on four counts of assault, in violation of O.C.G.A. §§ 16-5-20 and 16-5-21(a)(2), as the defendant and the perpetrator's codefendant committed two home invasions, whereupon the victims therein were fearful, some were harmed, and during the incidents, the defendant held a night stick and instructed the victims to cooperate with the perpetrator's codefendant, who brandished a handgun. Moyer v. State, 275 Ga. App. 366 , 620 S.E.2d 837 (2005), overruled on other grounds, Vergara v. State, 283 Ga. 175 , 657 S.E.2d 863 (2008).
Trial court properly denied the defendant's motion for a new trial on grounds that the state failed to prove that the defendant intentionally threatened two deputies the defendant forced off the road with a car, given evidence that prior to driving directly at the deputies, the car was being used offensively toward others by forcing those individuals off the road, and thereafter, in driving toward the two deputies at 90 miles per hour, a jury could infer that the defendant intended to threaten the deputies in hopes of forcing them from the road. Adams v. State, 280 Ga. App. 779 , 634 S.E.2d 868 (2006).
Because the defendant failed to present any evidence that the state ever threatened the victim into testifying against the defendant, and the defendant failed to acknowledge that the victim's statement to police would have been tendered into evidence regardless of what version of events were recounted on the stand, the appeals court rejected the defendant's claim that the state's coercion of the victim warranted reversal of a simple assault conviction. Wheeler v. State, 281 Ga. App. 158 , 635 S.E.2d 415 (2006).
Jury was entitled to find the defendant guilty of aggravated assault, charged in the indictment "with the intent to rob," based on the corroboration of the defendant's admission to going on a "lick," which meant to go find someone to rob, and that the defendant knew what a passenger was going to do when that passenger reached out of the car window in an attempt to snatch the elderly victim's purse, resulting in the victim being struck by the car and falling to the ground; hence, the trial court did not err in denying the defendant's amended motion for a new trial. Jackson v. State, 281 Ga. App. 506 , 636 S.E.2d 694 (2006).
Because the state showed that the victim had an apprehension, reasonable under the circumstances, of immediately receiving a violent injury, this testimony, if believed, together with a finding that the defendant intended to drive rapidly out of the car wash while dragging the victim, was sufficient to authorize the jury to find the defendant guilty of aggravated assault; further, an assault under O.C.G.A. § 16-5-20(a)(2) did not require that a defendant act with criminal intent in regard to the victim, but did require that an intentional act be shown. Kirkland v. State, 282 Ga. App. 331 , 638 S.E.2d 784 (2006).
Because sufficient evidence was presented showing that the defendant cut a correctional officer's face with either a razor blade or other sharp object, requiring more than 150 stitches and cosmetic surgery to repair, the defendant's convictions of aggravated assault and aggravated battery upon a correctional officer were upheld on appeal. White v. State, 289 Ga. App. 224 , 656 S.E.2d 567 (2008).
Testimony of both an aggravated assault victim and another witness, which demonstrated that the defendant shot the victim in the leg, coupled with the defendant's flight after the incident, was sufficient to support the defendant's aggravated assault conviction. Jones v. State, 289 Ga. App. 219 , 656 S.E.2d 556 (2008), cert. denied, 2008 Ga. LEXIS 381 (Ga. 2008).
With regard to a defendant's conviction for aggravated assault, there was sufficient evidence to support the conviction based on the victim's testimony that the defendant was the individual who approached the victim's car with a gun and ordered the victim out, causing the victim to be in fear. Kashamba v. State, 295 Ga. App. 540 , 672 S.E.2d 512 (2009).
Evidence was sufficient to enable the trial court to find, beyond a reasonable doubt, that the defendant possessed the intent necessary to commit aggravated assault, O.C.G.A. § 16-5-21(a) , and felony murder, O.C.G.A. § 16-5-1(c) , because the defendant used a vehicle as an offensive weapon while the defendant was extremely drunk, and the evidence was sufficient to prove both forms of simply assault under O.C.G.A. § 16-5-20(a)(1)-(2) by the defendant against all six of the victims; the defendant engaged in an extended high-speed car chase with a driver, deliberately rammed the other driver's truck, and attempted to smash into the other driver head-on after the truck stalled, and within minutes after the driver escaped, the defendant came upon the other five victims by swerving sharply into oncoming traffic and slamming into a vehicle. Guyse v. State, 286 Ga. 574 , 690 S.E.2d 406 (2010).
Defendant's convictions for felony murder and aggravated assault on victims were supported by sufficient evidence despite the lack of evidence of the victims' mental state; assault included an attempt to commit a violent injury to the person of another, O.C.G.A. § 16-5-20(a)(1), so when two gang members attempted to commit violent injuries on their pursuers by intentionally firing guns at the pursuers, the defendant could be guilty as a party to these aggravated assaults and felony murder. Hayes v. State, 298 Ga. 339 , 781 S.E.2d 777 (2016).
Probable cause supported arrest for simple assault. - Police officers had probable cause to arrest defendant for simple assault in violation of O.C.G.A. § 16-5-20(a)(2) based on: (a) the statements of defendant's wife that he tried to force her to have sex against her will, became angry when she rebuffed him, and then threw against a wall the vacuum cleaner that she was using; and (b) evidence at the scene which bolstered the wife's story. The fact that defendant was ultimately acquitted of the simple assault did not invalidate the arrest. Lammerding v. State, 255 Ga. App. 606 , 565 S.E.2d 908 (2002).
Assault did not merge with kidnapping. - Trial court did not err in declining to merge a defendant's convictions for assault and kidnapping with bodily injury because assault under O.C.G.A. § 16-5-20(a)(2) was established by evidence that the victim was placed in reasonable apprehension of immediately receiving a violent injury when defendant told the victim the defendant had a gun, and kidnapping with bodily injury in violation of O.C.G.A. § 16-5-40(a) , on the other hand, was established by evidence that defendant abducted and held the victim against the victim's will in the victim's car, driving from one location to another, during which time the victim received bodily injuries. Walker v. State, 306 Ga. App. 16 , 701 S.E.2d 523 (2010).
Simple assault did not merge with battery. - Trial court did not err in failing to merge the defendant's convictions for simply assault and battery because the convictions were based upon different conduct as the first cut to the victim's forehead caused reasonable apprehension of immediate violent injury supporting the simple assault conviction, and the victim's remaining injuries caused by the knife wounds that followed supported a finding of visible bodily harm to support the battery conviction and each crime required proof of a fact that the other did not. Watts v. State, 321 Ga. App. 289 , 739 S.E.2d 129 (2013).
Evidence insufficient. - Trial court erred in denying the defendant juvenile's motion to reconsider, vacate, or modify a delinquency adjudication for the offense of simple assault because the evidence was insufficient to support the finding of delinquency since, pursuant to O.C.G.A. § 16-5-20(a)(2), the crime of simple assault required proof that the defendant's actions placed the defendant's grandmother in reasonable apprehension of immediately receiving a violent injury, but the only evidence of that fact was hearsay; a police officer, who was the only witness, testified that the grandmother told the officer that the grandmother was afraid of the defendant, and that the defendant was perhaps going to hit the grandmother, but the officer admitted that there were no allegations that the defendant attempted to hit the grandmother, nor did the officer witness any of the alleged events. In the Interest of J. L. K., 302 Ga. App. 844 , 691 S.E.2d 892 (2010).
Evidence was insufficient to support a juvenile's adjudication of delinquency for aggravated assault because the state failed to prove that the juvenile placed the victim in reasonable apprehension of immediately receiving a violent injury when the juvenile placed the juvenile's hands in the victim's pockets to see what the victim was carrying. The evidence did not show that the juvenile assaulted the victim by attempting to commit a violent injury to the person of the victim, and there was no evidence that the juvenile demonstrated violence through physical acts or gestures. In the Interest of D.M., 308 Ga. App. 589 , 708 S.E.2d 550 (2011).
Evidence insufficient for conviction of juvenile. - Evidence did not support the adjudication of delinquency for simple assault because the officer testified that the defendant juvenile turned toward the officer while the officer's hand was on the defendant's back and that the defendant remained in the same location during the entire encounter; no reasonable fact finder could interpret the officer's use of the word "charge" to mean violently rushing toward the officer; and the officer's testimony did not show that the defendant's turning toward the officer caused the officer to apprehend immediately receiving a violent injury as the officer's testimony was that the officer apprehended that the officer might receive physical or bodily injury. In the Interest of T. P., Ga. App. , S.E.2d (Aug. 21, 2020).
Sentence was proper. - Defendant's sentence to 10 years for false imprisonment, 12 months for sexual battery, and 12 months for simple battery, to run concurrently, provided that upon service of four years in custody, the defendant could serve the remaining six years on probation, was not void as the sentence fell within the allowable sentencing ranges of no less than one nor more than 10 years for false imprisonment, and up to 12 months each for sexual battery and simple battery. Rehberger v. State, 267 Ga. App. 778 , 600 S.E.2d 635 (2004).
Any error was harmless in light of overwhelming evidence of guilt. - Any error in the admission of a witness's statements under the necessity exception to the hearsay rule was harmless in light of the overwhelming evidence of the defendant's guilt for assault and possession of a firearm by a convicted felon, including the exact match of the defendant's blood sample to the blood found at the scene, the location and timing of the defendant's capture, and the fact that the defendant had a recent gunshot wound. Porter v. State, 275 Ga. App. 513 , 621 S.E.2d 523 (2005).
Jury Instruction
Charge on simple assault not required. - When, according to the evidence, either the defendant committed a battery or an aggravated assault or did nothing at all, a charge on simple assault is not required. Sheffield v. State, 124 Ga. App. 295 , 183 S.E.2d 525 (1971).
Trial court is not required to charge the jury on simple assault where a battery is actually committed. Arnett v. State, 245 Ga. 470 , 265 S.E.2d 771 (1980); Sanders v. State, 251 Ga. 70 , 303 S.E.2d 13 (1983).
When there is no question of simple assault, the failure to charge simple assault in explanation of the elements of aggravated assault is harmless error because it is highly probable the error does not contribute to the judgment. Wilkie v. State, 153 Ga. App. 609 , 266 S.E.2d 289 (1980).
If defendant committed a simple assault with a deadly weapon, the offense is aggravated assault, and a charge on simple assault was not warranted. Stobbart v. State, 272 Ga. 608 , 533 S.E.2d 379 (2000).
Trial court's jury instructions in the defendant's criminal trial on multiple charges arising out of a domestic dispute were proper, as: (1) there was no requirement that the jury be instructed on the element of assault (O.C.G.A. § 16-5-20 ) in order to be properly instructed on the crime of aggravated assault (O.C.G.A. § 16-5-21 ); (2) the methods of committing an aggravated battery, pursuant to O.C.G.A. § 16-5-24(a) , were properly defined based on the methods asserted in the indictment; (3) there was no support for a requested charge on the lesser included offense of reckless conduct, pursuant to O.C.G.A. § 16-5-60(b) ; and (4) there was no possibility of a lesser included conviction for false imprisonment (O.C.G.A. § 16-5-41 ), such that instruction only on the indicted offense of kidnapping (O.C.G.A. § 16-5-40 ) was proper. Brown v. State, 275 Ga. App. 99 , 619 S.E.2d 789 (2005).
In a prosecution for aggravated assault, the trial court did not err in failing to give a charge on the lesser-included offense of simple battery, as the defendant failed to request the same in writing, at or before the close of the evidence, and an oral request to give such a charge was insufficient. Morales v. State, 281 Ga. App. 18 , 635 S.E.2d 325 (2006).
In the defendant's prosecution for aggravated assault under O.C.G.A. § 16-5-21(a)(2), the defendant was not entitled to a jury instruction on the lesser included offense of simple assault under O.C.G.A. § 16-5-20 because the defendant's spouse could have reasonably apprehended that the black microrecorder allegedly in the defendant's hand was a gun. Dixon v. State, 285 Ga. App. 694 , 647 S.E.2d 370 (2007).
Defendant was accused of hitting the victim in the head with a beer bottle, cutting the victim's head and requiring stitches. The evidence allowed the jury to either find that the defendant had not committed an aggravated assault, or to find the defendant guilty as charged; the defendant was not entitled to an instruction on the lesser included-charge of simple assault as there was no evidence to support that charge. Maiorano v. State, 294 Ga. App. 726 , 669 S.E.2d 678 (2008).
Because the evidence showed that defendant committed an assault with intent and a deadly weapon, the crime constituted an aggravated assault under O.C.G.A. § 16-5-21(a)(2); therefore, a charge on the lesser-included offenses of simple assault or reckless conduct under O.C.G.A. §§ 16-5-20(a)(2) and 16-5-60(b) was not warranted. Paul v. State, 296 Ga. App. 6 , 673 S.E.2d 551 (2009).
During the defendant's trial for aggravated assault in violation of O.C.G.A. § 16-5-21(a)(2), the trial court did not err in failing to instruct the jury on simple assault, O.C.G.A. § 16-5-20(a) , as an essential element of aggravated assault because the record failed to indicate that the defendant submitted a written request to charge on simple assault, and the trial court's instruction was sufficient to define the offense charged and provided a proper guideline for the determination of the defendant's guilt or innocence. Williams v. State, 307 Ga. App. 577 , 705 S.E.2d 332 (2011).
Trial counsel's performance was not deficient due to counsel's failure to request a jury charge on simple assault as a lesser included offense of the charged crime of aggravated assault because there was no evidence showing that the defendant committed merely simple assault; the evidence showed that the defendant's assault upon the victim was with a screwdriver within the purview of the aggravated assault statute, O.C.G.A. § 16-5-21(a)(2). Davis v. State, 308 Ga. App. 7 , 706 S.E.2d 710 (2011).
Because defendant intentionally shot the victim, wounded the victim, chased the victim down, and intentionally shot the victim three more times as the victim begged for the victim's life, and as neither negligence nor reckless conduct was an issue, the trial court did not err by failing to instruct the jury on simple assault under O.C.G.A. § 16-5-20(a) in connection with the court's charge on aggravated assault under O.C.G.A. § 16-5-21 . Cantera v. State, 289 Ga. 583 , 713 S.E.2d 826 (2011).
Trial court did not plainly err in the court's jury instruction on aggravated assault when the trial court's instructions included the definition of aggravated assault with a deadly weapon in O.C.G.A. § 16-5-21(a)(2) and tracked the applicable definition of simple assault in O.C.G.A. § 16-5-20(a)(1). Scott v. State, 290 Ga. 883 , 725 S.E.2d 305 (2012).
In an aggravated assault case, the trial court properly charged the jury with the applicable assault definition by requiring that the defendant assault the victim with a deadly weapon, and that the act placed another in reasonable apprehension of immediately receiving a violent injury, but by stating that an actual injury to the victim need not be shown; a charge on simple assault was not required simply because the victim suffered no injury. Marshall v. State, 324 Ga. App. 348 , 750 S.E.2d 418 (2013).
Trial court did not err by refusing to charge simple assault as a lesser included offense of aggravated assault, alleging aggravated assault by placing another in reasonable apprehension of immediately receiving a violent injury with an object which, when used offensively against a person, was likely to and actually did result in serious bodily injury, as the defendant was either guilty of aggravated assault or not guilty at all because it was undisputed that the defendant hit the victim and pinned the victim against a mobile home while driving the van toward the victim from only about 20 feet away and that the defendant's action resulted in serious bodily injury to the victim. Patterson v. State, 332 Ga. App. 221 , 770 S.E.2d 62 (2015), aff'd, 299 Ga. 491 , 789 S.E.2d 175 (2016).
In the defendant's trial for aggravated assault by shooting the victim, the trial court did not err in charging the jury on the complete definition of simple assault; there was no danger of the jury convicting the defendant of aggravated assault solely for placing the victim in apprehension of receiving a violent injury. Hollins v. State, 340 Ga. App. 190 , 796 S.E.2d 901 (2017).
In the defendant's trial for aggravated assault after threatening the defendant's stepfather with two knives, the trial court did not err by refusing to charge on simple assault as a lesser included offense because, based upon the form of aggravated assault alleged, O.C.G.A. § 16-5-21(a)(2), the defendant was either guilty of aggravated assault or was justified. Johnson v. State, 348 Ga. App. 540 , 823 S.E.2d 853 (2019).
Charge on battery not required. - With regard to defendant's conviction for aggravated battery of a taxi driver, defendant was not entitled to a jury instruction on the lesser included offense of battery based on defendant's argument that the jury could have found under the facts of the case that the gun was not used as a deadly weapon as the evidence showed without conflict that defendant's physical assault upon the taxi driver with the handgun caused the taxi driver to bleed from the head and the entire right side of the face, and the taxi driver testified that, during the attack, the taxi driver was very afraid of being killed. Thus, the pistol in the case, if used in the manner testified to by the taxi driver, was per se a deadly weapon, and the offense was either aggravated assault or no offense at all. Ortiz v. State, 292 Ga. App. 378 , 665 S.E.2d 333 (2008), cert. denied, No. S08C1851, 2008 Ga. LEXIS 928 (Ga. 2008).
Instruction on reckless conduct not warranted. - After threatening to kill the victim, because the defendant's actions in continuing to drive away, as the victim was caught on the outside of the car screaming, supported the crime of either aggravated or simple assault, and not simple negligence, the trial court did not err in rejecting a reckless conduct instruction. Martin v. State, 283 Ga. App. 652 , 642 S.E.2d 340 (2007).
Justification defense charge not warranted. - With regard to the defendant's convictions for criminal trespass, simple assault, and battery, the trial court did not err in failing to give jury charges on the affirmative defense of justification because the evidence was insufficient to support such a defense as the defendant admitted that in the time it took the defendant to rip an air conditioning unit from the window and break in, the allegedly pursuing assailants had stopped chasing the defendant and had gone home. Miller v. State, 335 Ga. App. 58 , 778 S.E.2d 424 (2015).
Charge on simple assault as element of aggravated assault. - Two charged methods of committing simple assault under O.C.G.A. § 16-5-20(a)(1) and (a)(2), as an element of aggravated assault, did not provide an improper basis for the jury to convict the defendant of aggravated assault as the trial court did not charge a separate, unalleged method of committing aggravated assault, but simply defined both methods of committing simple assault, a lesser included offense; because the jury's charge did not authorize a conviction in a manner other than that alleged in the indictment, the charge was not erroneous and the defendant's conviction for aggravated assault with intent to rape was affirmed. McGuire v. State, 266 Ga. App. 673 , 598 S.E.2d 55 (2004).
Because the defendant's conduct put the officer-victim in reasonable apprehension of immediately sustaining a violent injury, which satisfied the elements required to prove simple assault under O.C.G.A. § 16-5-20(a)(2), the trial court properly charged the jury on simple assault as a lesser-included offense of aggravated assault upon a police officer. Bostic v. State, 289 Ga. App. 195 , 656 S.E.2d 546 (2008).
Trial court was authorized to give an instruction on the lesser-included offense of simple assault because some evidence showed that the defendant attempted to violently injure a store manager by stabbing the manager with a pen with such force that the defendant bent the pen; the fact that actual contact occurred did not diminish the fact that there was evidence of a simple assault. Griggs v. State, 303 Ga. App. 442 , 693 S.E.2d 615 (2010).
Trial court's jury charge on aggravated assault was not erroneous because the trial court properly tailored the court's charge to the allegation in the indictment by charging the jury with just the relevant portion of the simple assault statute, O.C.G.A. § 16-5-20(a)(1); the trial court did as the court was required and delivered a charge tailored to the indictment. Daniels v. State, 310 Ga. App. 562 , 714 S.E.2d 91 (2011).
Failure to charge on simple assault not reversible error. - When the accused was convicted of assaulting a female under the age of fourteen years with the intent to rape her, and in the defendant's statement to the jury the defendant denied committing any assault or assault and battery upon the female, while the evidence of the female, if true, proved the felonious assault as alleged in the indictment, failure of the court to charge the jury on the law of assault, or assault and battery, was not error. Finney v. State, 51 Ga. App. 545 , 181 S.E. 144 (1935).
Two city police officers who shot at prosecutor's car 12 times, finally causing the prosecutor to run the car off a bridge some 12 miles outside the city limits, after which they arrested the prosecutor, where they had no warrant for the prosecutor's arrest and no crime had been committed by the prosecutor in their presence, were guilty of shooting at another, and failure of the court to charge on simple assault in the absence of a timely and appropriate written request was not error. Hart v. State, 55 Ga. App. 85 , 189 S.E. 547 (1936).
When the theory that the defendant could have been found guilty of a simple assault rather than assault with intent to rob and that the judge should have charged thereon was sustained only by the defendant's statement to the jury, without a proper request the judge did not commit reversible error in failing to charge on the law of assault. Alexander v. State, 66 Ga. App. 708 , 19 S.E.2d 353 (1942).
Trial court erred in quashing an aggravated assault count against defendant because, in part, the indictment did not need to additionally charge the language of simple assault in order to withstand demurrer. State v. Tate, 262 Ga. App. 311 , 585 S.E.2d 224 (2003).
Although the trial court erred by instructing the jury on assault, the instruction did not likely affect the outcome of the proceedings nor did it seriously affect the fairness, integrity, or public reputation of the judicial proceedings as the jury was provided with the indictment and the trial court correctly instructed the jury on the language of O.C.G.A. § 16-5-20(a)(2) for assault as charged in the accusation. Driskell v. State, 333 Ga. App. 886 , 777 S.E.2d 717 (2015), cert. denied, No. S16C0191, 2016 Ga. LEXIS 115 (Ga. 2016).
Failure to charge on simple assault waived. - Appellate review of the trial court's decision not to give a charge on the lesser included offense of simple assault was waived because trial counsel admitted that counsel acquiesced and did not further object to the trial court's decision to not give the charge. Gunter v. State, 316 Ga. App. 485 , 729 S.E.2d 597 (2012).
Reversible error in charging jury. - In the trial of one accused of murder, it is reversible error for the court in charging the jury to assume or intimate that the accused had "assaulted" the deceased when the evidence and the defendant's statement did not demand a finding that an assault had been made. Tyner v. State, 70 Ga. App. 56 , 27 S.E.2d 351 (1943).
With regard to a defendant's conviction for the felony murder of the defendant's spouse, with aggravated assault as the underlying felony, the trial court erred by refusing the defendant's requested charge on involuntary manslaughter with pointing a pistol at another as the predicate misdemeanor, which entitled the defendant to a new trial based on the defendant testifying that the shooting occurred inadvertently when, in the course of horseplay with the pistol, the defendant pulled the trigger while pointing the pistol at the victim's head, not knowing there was a round in the chamber. Manzano v. State, 282 Ga. 557 , 651 S.E.2d 661 (2007).
Trial court erred by failing to provide the statutory definition of assault, pursuant to O.C.G.A. § 16-5-20 , in a jury charge, which resulted in the final charge being fatally insufficient since the charge did not instruct on substantive points and issues involved in the case and allowed the jury to find defendant guilty of aggravated assault based merely on criminal negligence. As a result, defendant's conviction for aggravated assault was reversed and a retrial was ordered since there was sufficient evidence to support defendant's conviction. Coney v. State, 290 Ga. App. 364 , 659 S.E.2d 768 (2008).
Proper jury charge. - When an indictment for aggravated assault alleged the aggravating aspect of simple assault, this was sufficient to put the defendant on notice that the defendant could be convicted for aggravated assault if the defendant committed a simple assault in either manner contained in the simple assault statute; accordingly, the trial court did not err by charging the jury that the jury could convict the defendant for aggravated assault in a manner not alleged in the indictment. Simpson v. State, 277 Ga. 356 , 589 S.E.2d 90 (2003).
Two charged methods of committing simple assault, as an element of aggravated assault, did not provide an improper basis for the jury to convict the defendant of aggravated assault, and the trial court did not charge a separate, unalleged method of committing aggravated assault, but simply defined both methods of committing simple assault, a lesser included offense; hence, because the jury's charge did not authorize a conviction in a manner other than that alleged in the indictment, the charge was not erroneous. Opio v. State, 283 Ga. App. 894 , 642 S.E.2d 906 (2007).
Trial court did not refuse to charge on simple assault because the trial court gave verbatim the charge that the defendant complained was not given. Gaither v. State, 312 Ga. App. 53 , 717 S.E.2d 654 (2011), cert. denied, No. S12C0337, 2012 Ga. LEXIS 216 (Ga. 2012).
Charges as to other crimes properly refused. - Requested charges on involuntary manslaughter, pointing a firearm at another, and simple assault, were properly refused, where defendant's testimony (that defendant fired shots with the intention of frightening a group) established as a matter of law the offense of aggravated assault, and the testimony that members of the group were frightened and dropped to the ground was inconsistent with the requested charges. Hawkins v. State, 260 Ga. 138 , 390 S.E.2d 836 (1990).
Defendant's conviction for aggravated assault with an object under O.C.G.A. § 16-5-21(b)(2) with regard to pinning the victim to a house with a vehicle was affirmed because the defendant was not entitled to jury instructions on the lesser included crimes of reckless conduct and reckless driving since the base crime of simple assault under O.C.G.A. § 16-5-20(a)(2) did not require a specific intent to cause the victim to be apprehensive of receiving a violent injury. Patterson v. State, 299 Ga. 491 , 789 S.E.2d 175 (2016).
OPINIONS OF THE ATTORNEY GENERAL
Authority of Georgia Crime Information Center to maintain records of crimes. - Georgia Crime Information Center is authorized to maintain records of reported crime and, in some instances, to record information identifying persons charged with the commission of crime; however, the center is not authorized to maintain records identifying persons charged with disorderly conduct except when the charge is directly connected with or directly related to certain statutory offenses including simple assault. 1976 Op. Att'y Gen. No. 76-33.
For an update of crimes and offenses for which the Georgia Crime Information Center is authorized to collect and file identifying data, see 1991 Op. Att'y Gen. No. 91-35.
RESEARCH REFERENCES
Am. Jur. 2d. - 6 Am. Jur. 2d, Assault and Battery, §§ 1 et seq., 3, 4.
C.J.S. - 6A C.J.S., Assault, § 79 et seq.
ALR. - Recovery for physical consequences of fright resulting in a physical injury, 11 A.L.R. 1119 ; 40 A.L.R. 983 ; 76 A.L.R. 681 ; 98 A.L.R. 402 .
Liability of tort-feasor for consequences of act induced by fear aroused by tort, 35 A.L.R. 1447 .
Indecent proposal to woman as assault, 12 A.L.R.2d 971.
Truant or attendance officer's liability for assault and battery or false imprisonment, 62 A.L.R.2d 1328.
Civil liability of one instigating or inciting an assault or assault and battery notwithstanding primary or active participant therein has been absolved of liability, 72 A.L.R.2d 1229.
Attempt to commit assault as criminal offense, 79 A.L.R.2d 597.
Unintentional killing of or injury to third person during attempted self-defense, 55 A.L.R.3d 620.
Antagonistic defenses as ground for separate trials of codefendants in criminal case, 82 A.L.R.3d 245.
Criminal responsibility for physical measures undertaken in connection with treatment of mentally disordered patient, 99 A.L.R.3d 854.
Attempt to commit assault as criminal offense, 93 A.L.R.5th 683.
16-5-21. Aggravated assault.
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A person commits the offense of aggravated assault when he or she assaults:
- With intent to murder, to rape, or to rob;
- With 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;
- With any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in strangulation; or
- A person or persons without legal justification by discharging a firearm from within a motor vehicle toward a person or persons.
- Except as provided in subsections (c) through (k) of this Code section, a person convicted of the offense of aggravated assault shall be punished by imprisonment for not less than one nor more than 20 years.
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A person who knowingly commits the offense of aggravated assault upon a public safety officer while he or she is engaged in, or on account of the performance of, his or her official duties shall, upon conviction thereof, be punished as follows:
- When such assault occurs by the discharge of a firearm by a person who is at least 17 years of age, such person shall be punished by imprisonment for not less than ten nor more than 20 years and shall be sentenced to a mandatory minimum term of imprisonment of ten years and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court; provided, however, that in the court's discretion, the court may depart from such mandatory minimum sentence when the prosecuting attorney and defendant have agreed to a sentence that is below such mandatory minimum;
- When such assault does not involve the discharge of a firearm by a person who is at least 17 years of age, and does not involve only the use of the person's body, such person shall be punished by imprisonment for not less than five nor more than 20 years and, for persons who are at least 17 years of age, shall be sentenced to a mandatory minimum term of imprisonment of three years and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court; provided, however, that in the court's discretion, the court may depart from such mandatory minimum sentence when the prosecuting attorney and defendant have agreed to a sentence that is below such mandatory minimum; or
- When such assault occurs only involving the use of the person's body, by imprisonment for not less than five nor more than 20 years.
- A person convicted under this subsection shall be punished, in addition to any term of imprisonment imposed, by a fine as provided by law which shall be at least $2,000.00. With respect to $2,000.00 of the fine imposed, after distributing the surcharges and deductions required by Chapter 21 of Title 15, Code Sections 36-15-9 and 42-8-34, and Title 47, it shall be earmarked for the Georgia State Indemnification Fund for purposes of payment of indemnification for death or disability as provided for in Part 1 of Article 5 of Chapter 9 of Title 45.
- As used in this subsection, the term "firearm" means any handgun, rifle, shotgun, or similar device or weapon which will or can be converted to expel a projectile by the action of an explosive or electrical charge.
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A person who knowingly commits the offense of aggravated assault upon a public safety officer while he or she is engaged in, or on account of the performance of, his or her official duties shall, upon conviction thereof, be punished as follows:
- Any person who commits the offense of aggravated assault against a person who is 65 years of age or older shall, upon conviction thereof, be punished by imprisonment for not less than three nor more than 20 years.
- Any person who commits the offense of aggravated assault in a public transit vehicle or station shall, upon conviction thereof, be punished by imprisonment for not less than three nor more than 20 years.
- Any person who commits the offense of aggravated assault upon a person in the course of violating Code Section 16-8-2 where the property that was the subject of the theft was a vehicle engaged in commercial transportation of cargo or any appurtenance thereto, including without limitation any such trailer, semitrailer, container, or other associated equipment, or the cargo being transported therein or thereon, shall upon conviction be punished by imprisonment for not less than five nor more than 20 years, a fine not less than $50,000.00 nor more than $200,000.00, or both such fine and imprisonment. For purposes of this subsection, the term "vehicle" includes without limitation any railcar.
- Except as provided in subsection (c) of this Code section, a person convicted of an offense described in paragraph (4) of subsection (a) of this Code section shall be punished by imprisonment for not less than five nor more than 20 years.
- Any person who commits the offense of aggravated assault involving the use of a firearm upon a student or teacher or other school personnel within a school safety zone as defined in Code Section 16-11-127.1 shall, upon conviction thereof, be punished by imprisonment for not less than five nor more than 20 years.
- If the offense of aggravated assault is committed between past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons excluding siblings living or formerly living in the same household, the defendant shall be punished by imprisonment for not less than three nor more than 20 years.
- Any person who commits the offense of aggravated assault with intent to rape against a child under the age of 14 years shall be punished by imprisonment for not less than 25 nor more than 50 years. Any person convicted under this subsection shall, in addition, be subject to the sentencing and punishment provisions of Code Section 17-10-6.2.
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A person who knowingly commits the offense of aggravated assault upon an officer of the court while such officer is engaged in, or on account of the performance of, his or her official duties shall, upon conviction thereof, be punished by imprisonment for not less than five nor more than 20 years.
(Laws 1833, Cobb's 1851 Digest, pp. 787-789; Laws 1840, Cobb's 1851 Digest, p. 788; Code 1863, §§ 4250, 4258, 4259, 4260; Ga. L. 1866, p. 151, § 1; Code 1868, §§ 4285, 4293, 4294, 4295; Code 1873, §§ 4351, 4359, 4360, 4361; Code 1882, §§ 4351, 4359, 4360, 4361; Penal Code 1895, §§ 97, 98, 99, 100; Penal Code 1910, §§ 97, 98, 99, 100; Code 1933, §§ 26-1403, 26-1404, 26-1405, 26-1406; Code 1933, § 26-1302, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1976, p. 543, § 1; Ga. L. 1982, p. 1242, § 2; Ga. L. 1984, p. 900, § 1; Ga. L. 1985, p. 628, § 1; Ga. L. 1991, p. 971, §§ 3, 4; Ga. L. 1994, p. 1012, § 8; Ga. L. 1994, p. 1920, §§ 1, 2; Ga. L. 1996, p. 988, § 1; Ga. L. 1997, p. 1453, § 1; Ga. L. 1999, p. 381, § 3; Ga. L. 2000, p. 1626, § 1; Ga. L. 2003, p. 140, § 16; Ga. L. 2004, p. 1072, § 1; Ga. L. 2006, p. 379, § 4/HB 1059; Ga. L. 2010, p. 999, § 1/HB 1002; Ga. L. 2011, p. 752, § 16/HB 142; Ga. L. 2014, p. 432, § 2-2/HB 826; Ga. L. 2014, p. 441, § 1/HB 911; Ga. L. 2014, p. 599, § 3-1/HB 60; Ga. L. 2015, p. 422, § 5-19/HB 310; Ga. L. 2016, p. 582, § 1/HB 979; Ga. L. 2017, p. 500, § 3-2/SB 160.)
The 2017 amendment, effective July 1, 2017, deleted subsection (a), which read: "As used in this Code section, the term 'strangulation' means impeding the normal breathing or circulation of blood of another person by applying pressure to the throat or neck of such person or by obstructing the nose and mouth of such person."; redesignated former subsections (b) and (c) as present subsections (a) and (b), respectively; substituted "subsections (c) through (k)" for "subsections (d) through (n)" in subsection (b); redesignated former subsections (d) and (e) as present subsections (c) and (d), respectively; rewrote present subsection (c); deleted former subsection (f), relating to defining the term "correctional officer"; redesignated former subsection (g) as present subsection (e); deleted the second sentence of subsection (e), which read: "For purposes of this Code section, 'public transit vehicle' has the same meaning as in subsection (c) of Code Section 16-5-20."; redesignated former subsections (h) and (i) as present subsections (f) and (g), respectively; in subsection (g), substituted "Except as provided in subsection (c) of this Code section, a" for "A" at the beginning, and substituted "subsection (a)" for "subsection (b)" in the middle; redesignated former subsections (j) through (m) as present subsections (h) through (k), respectively; deleted the former second sentence in subsection (k), which read: "As used in this subsection, the term 'officer of the court' means a judge, attorney, clerk of court, deputy clerk of court, court reporter, court interpreter, community supervision officer, county or Department of Juvenile Justice juvenile probation officer, or probation officer serving pursuant to Article 6 of Chapter 8 of Title 42."; and deleted former subsection (n), which read: "A person who knowingly commits the offense of aggravated assault upon an emergency health worker while the worker is engaged in, or on account of the performance of, his or her official duties shall, upon conviction thereof, be punished by imprisonment for not less than five nor more than 20 years. As used in this subsection, the term 'emergency health worker" means hospital emergency department personnel and emergency medical services personnel.".
Cross references. - Indemnification program for law enforcement officers, firefighters, and prison guards killed or injured on duty, § 45-9-80 et seq.
Code Commission notes. - Pursuant to Code Section 28-9-5, in 1994, since both Ga. L. 1994, p. 1012 and p. 1920 enacted a new subsection (g), the amendment by Ga. L. 1994, p. 1012 has been redesignated as subsection (h).
Editor's notes. - Ga. L. 1994, p. 1012, § 1, not codified by the General Assembly, provides that the Act shall be known and may be cited as the "School Safety and Juvenile Justice Reform Act of 1994."
Ga. L. 1994, p. 1012, § 2, not codified by the General Assembly, sets forth legislative findings and determinations for the "School Safety and Juvenile Justice Reform Act of 1994."
Ga. L. 1994, p. 1012, § 29, not codified by the General Assembly, provides for severability.
Ga. L. 1999, p. 381, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Crimes Against Family Members Act of 1999'."
Ga. L. 1999, p. 381, § 7, not codified by the General Assembly, provides that: "Nothing herein shall be construed to validate a relationship between people of the same sex as a 'marriage' under the laws of this State."
Ga. L. 2006, p. 379, § 1/HB 1059, not codified by the General Assembly, provides that: "The General Assembly finds and declares that recidivist sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Many sexual offenders are extremely likely to use physical violence and to repeat their offenses; and some sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. The General Assembly finds that this makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant. The General Assembly further finds that the high level of threat that a sexual predator presents to the public safety, and the long-term effects suffered by victims of sex offenses, provide the state with sufficient justification to implement a strategy that includes:
"(1) Incarcerating sexual offenders and maintaining adequate facilities to ensure that decisions to release sexual predators into the community are not made on the basis of inadequate space;
"(2) Requiring the registration of sexual offenders, with a requirement that complete and accurate information be maintained and accessible for use by law enforcement authorities, communities, and the public;
"(3) Providing for community and public notification concerning the presence of sexual offenders;
"(4) Collecting data relative to sexual offenses and sexual offenders;
"(5) Requiring sexual predators who are released into the community to wear an electronic monitoring system for the rest of their natural life and to pay for such system; and
"(6) Prohibiting sexual predators from working with children, either for compensation or as a volunteer.
"The General Assembly further finds that the state has a compelling interest in protecting the public from sexual offenders and in protecting children from predatory sexual activity, and there is sufficient justification for requiring sexual offenders to register and for requiring community and public notification of the presence of sexual offenders. The General Assembly declares that in order to protect the public, it is necessary that the sexual offenders be registered and that members of the community and the public be notified of a sexual offender's presence. The designation of a person as a sexual offender is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from the conviction of certain crimes. Likewise, the designation of a person as a sexual predator is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from findings by the Sexual Offender Registration Review Board and a court if requested by a sexual offender."
Ga. L. 2006, p. 379, § 30(c)/HB 1059, not codified by the General Assembly, provides that: "The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment."
Ga. L. 2014, p. 599, § 1-1/HB 60, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Safe Carry Protection Act.'"
Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides, in part, that the amendment by this Act shall apply to sentences entered on or after July 1, 2015.
Ga. L. 2017, p. 500, § 1-1/SB 160, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Back the Badge Act of 2017.'"
Law reviews. - For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For article, "Criminal Law," see 53 Mercer L. Rev. 209 (2001). For article on 2006 amendment of this Code section, see 23 Ga. St. U. L. Rev. 11 (2006). For survey article on evidence law, see 60 Mercer L. Rev. 135 (2008). For annual survey on death penalty law, see 61 Mercer L. Rev. 99 (2009). For article on the 2014 amendment of this Code section, see 31 Ga. St. U. L. Rev. 47 (2014). For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 231 (2015). For annual survey of criminal law, see 67 Mercer L. Rev. 31 (2015). For annual survey on criminal law, see 69 Mercer L. Rev. 73 (2017). For article on the 2017 amendment of this Code section, see 34 Ga. St. U. L. Rev. 89 (2017). For note contrasting assault with intent and attempt in food poisoning cases, see 25 Ga. St. B. J. 199 (1962). For note on the 1994 amendment of this Code section, see 11 Ga. St. U. L. Rev. 110 (1994). For review of 1996 children and youth services legislation, see 13 Ga. St. U. L. Rev. 314 (1996).
JUDICIAL DECISIONS
ANALYSIS
- General Consideration
- Indictment
- Included Crimes
- Assault with Deadly Weapon
- Assault With Gun
- Assault With Automobile
- Assault With Hands, Fists, or Other Body Parts
- Assault With Other Objects
- Assault with Intent to Murder
- Assault with Intent to Rob
- Assault with Intent to Rape
- Jury Instructions
General Consideration
Constitutionality. - Legislature, in not providing for defense of opprobrious language, did not act unconstitutionally. Watkins v. State, 254 Ga. 267 , 328 S.E.2d 537 (1985).
Prior violent felony conviction for purposes of Armed Career Criminal Act. - When the defendant pled guilty to possession of a firearm by a convicted felon, defendant's application for leave to file a second or successive motion to vacate, set aside, or correct the defendant's federal sentence was denied as the defendant had three prior violent felony convictions under the elements clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924, because the defendant had two separate Georgia convictions for felony obstruction of a law enforcement officer and a Georgia conviction for aggravated assault, which constituted violent felonies for purposes of the ACCA. In re White, F.3d (11th Cir. June 15, 2016).
Qualifies as crime of violence under federal provisions. - Because the elements of O.C.G.A. § 16-5-21(a)(2) sufficiently match the elements of generic aggravated assault, it qualifies as a crime of violence under U.S. Sentencing Guidelines Manual § 4B1.2. United States v. Huling, 741 Fed. Appx. 702 (11th Cir. 2018)(Unpublished).
Venue. - Adjudication of delinquency was reversed as the state presented no evidence of venue and the juvenile court did not take judicial notice that the location of an aggravated assault described at a hearing was in Sumter County; the county in which the offense was committed was not established and the evidence was insufficient to support the conviction, but retrial was not barred by the double jeopardy clause so long as venue was properly established at retrial. In the Interest of T.W., 280 Ga. App. 693 , 634 S.E.2d 854 (2006).
Because the element of venue was sufficiently testified to by the victim's parent, the state adequately proved that element as part of its aggravated assault charges. Boyd v. State, 289 Ga. App. 342 , 656 S.E.2d 864 (2008), cert. denied, 2008 Ga. LEXIS 498 (Ga. 2008).
Victim's testimony was sufficient evidence to prove venue in Henry County because the victim testified that the aggravated assault offense occurred at the house of the defendant's father, which was located in Henry County; the responding officer likewise testified that the house was located in Henry County. Ellis v. State, 316 Ga. App. 352 , 729 S.E.2d 492 (2012).
Elements of aggravated assault. - Offense of aggravated assault has two essential elements: (1) that an assault, (see O.C.G.A. § 16-5-20 ), was committed on the victim; and (2) that it was aggravated by (a) an intention to murder, to rape, or to rob, or (b) use of a deadly weapon. Harper v. State, 127 Ga. App. 359 , 193 S.E.2d 259 (1972); Hardin v. State, 137 Ga. App. 391 , 224 S.E.2d 82 (1976); Smith v. State, 140 Ga. App. 395 , 231 S.E.2d 143 (1976); King v. State, 178 Ga. App. 343 , 343 S.E.2d 401 (1986).
O.C.G.A. § 16-5-21 proscribes the commission of assault with the intent to accomplish the more serious crime of murder, robbery, or rape. No more need be alleged or proved. The statute deliberately sets out the offense of having intent, as disjunctive to an assault with a deadly weapon. Scroggins v. State, 198 Ga. App. 29 , 401 S.E.2d 13 (1990), cert. denied, 198 Ga. App. 898 , 401 S.E.2d 13 (1991).
Trial court properly denied defendant's motion to dismiss the aggravated assault count of the indictment under O.C.G.A. § 16-5-21(a) where it charged that defendant made an assault upon the person of the victim with a pistol, a deadly weapon, by shooting the victim with said pistol; the language was sufficient to charge the elements of aggravated assault. Sallie v. State, 276 Ga. 506 , 578 S.E.2d 444 , cert. denied, 540 U.S. 902, 124 S. Ct. 251 , 157 L. Ed. 2 d 185 (2003).
Person commits the offense of aggravated assault when the person assaults another with a deadly weapon which, when used offensively against a person, is likely to or actually does result in serious bodily injury. There is no requirement that the victim sustain an actual injury, and the crime is complete without proof thereof. Turbeville v. State, 268 Ga. App. 88 , 601 S.E.2d 461 (2004).
Juvenile court's adjudication entered against a juvenile on charges of aggravated assault and terroristic threats was upheld on appeal, given sufficient evidence that: (1) the state adequately showed venue; and (2) the victim's testimony described the juvenile's act of pointing a gun, threatening to use the gun, and that such caused fear that something could happen as a result of those acts. In the Interest of J.A.L., 284 Ga. App. 220 , 644 S.E.2d 162 (2007).
Defendant's convictions for felony murder and aggravated assault on victims were supported by sufficient evidence despite the lack of evidence of the victims' mental state; assault included an attempt to commit a violent injury to the person of another, O.C.G.A. § 16-5-20(a)(1), so when two gang members attempted to commit violent injuries on their pursuers by intentionally firing guns at the pursuers, the defendant could be guilty as a party to these aggravated assaults and felony murder. Hayes v. State, 298 Ga. 339 , 781 S.E.2d 777 (2016).
Identification of defendant. - With regard to defendant's convictions for armed robbery, aggravated assault, burglary, and false imprisonment, the trial court did not err by denying the motion to suppress the out-of-court identifications of the defendant because the court found that the simultaneous lineup was not impermissibly suggestive as a matter of law based on the testimony of the officer who prepared and presented the lineup that the victims were admonished that the suspect may not be in the array. McCowan v. State, 325 Ga. App. 509 , 753 S.E.2d 775 (2014).
Intent to injure is not an element of the offense of aggravated assault with a deadly weapon. Ganaway v. State, 282 Ga. 297 , 647 S.E.2d 590 (2007).
Aiding and abetting. - After defendant-A hijacked a victim's car at gunpoint, defendant-B's actions in punching the victim in the face while defendant-A waited in the car constituted aggravated assault, in violation of O.C.G.A. § 16-5-21(a)(1), as defendant-B aided and abetted the commission of the carjacking pursuant to O.C.G.A. § 16-2-20(b)(3) for purposes of the aggravated nature of the assault conviction. Johnson v. State, 279 Ga. App. 182 , 630 S.E.2d 778 (2006).
Trial court did not err in convicting the defendant and the defendant's codefendant of aggravated assault because based on the circumstantial evidence, the jury was entitled to infer that the defendant and the codefendant accompanied their accomplice to a convenience store knowing that the accomplice intended to assault the victim because of their past differences, that the defendant had specifically served as the getaway driver, and that the codefendant had accompanied the accomplice inside the store as a lookout, making both individuals parties to the crime of aggravated assault. Romero v. State, 307 Ga. App. 348 , 705 S.E.2d 195 (2010).
Failure to merge error. - Trial court erred by failing to merge all of the aggravated assault convictions into the armed robbery conviction because all of the aggravated assault convictions were based on the defendant's commission of an assault with a deadly weapon. Irving v. State, 351 Ga. App. 779 , 833 S.E.2d 162 (2019).
Conduct of third parties not admissible to support self-defense claim. - During a defendant's trial for aggravated assault and other charges arising out of a road rage incident, the defendant was properly precluded from testifying about a prior attempted robbery in which the defendant was the victim and allegedly used a pistol in self-defense; because the defendant was asserting self-defense, other specific acts of violence committed by a victim would have been admissible if any such acts existed, but the defendant could not support the defense by the proffer of any evidence based upon the commission of extraneous acts of violence committed by others because it would have been difficult or impossible for the state to rebut, refute, or test the credibility of such evidence. Adams v. State, 282 Ga. App. 819 , 640 S.E.2d 329 (2006).
Intent element of aggravated assault was shown by evidence of the victim's fearful reactions to defendant's actions and words when defendant forced the victim to surrender the victim's purse by pointing a gun at the victim's chest. Cole v. State, 232 Ga. App. 795 , 502 S.E.2d 742 (1998).
In a prosecution for aggravated assault, under O.C.G.A. § 16-5-21 , and possession of a knife during the commission of a crime, under O.C.G.A. § 16-11-106(b)(1), evidence that the defendant stabbed another in an incident eight years previously was admissible to show whether the defendant intended to threaten or harm the victim when the defendant brandished a knife, and the evidence was not more prejudicial than probative, given the prior incident's relevance to a necessary element of the current crimes. Ledford v. State, 275 Ga. App. 107 , 620 S.E.2d 187 (2005).
Defendant's convictions for felony murder and the underlying crime of aggravated assault were supported by sufficient evidence because no proof of the defendant's criminal intent to murder was required for the felony murder conviction, and the aggravated assault conviction did not require proof that the defendant intended to injure the victim, as only proof that the defendant intended to do the act which placed the victim in reasonable apprehension of harm was required. Smith v. State, 280 Ga. 490 , 629 S.E.2d 816 (2006).
Trial court properly denied the defendant's motion for a new trial on grounds that the state failed to prove that the defendant intentionally threatened two deputies the defendant forced off the road with a car, given evidence that prior to driving directly at the deputies, the car was being used offensively toward others by forcing those individuals off the road, and thereafter, in driving toward the two deputies at 90 miles per hour, a jury could infer that the defendant intended to threaten the deputies in hopes of forcing them from the road. Adams v. State, 280 Ga. App. 779 , 634 S.E.2d 868 (2006).
Trial court did not err by denying a defendant's motion for a directed verdict of acquittal on the charge of aggravated assault as the evidence was sufficient to support the conviction on that count in that the state proved that the defendant, while engaging the victim in an altercation, choked the victim so that the victim could not breath and, in fact, lost consciousness briefly. As such, the state proved that the defendant intended to injure the victim. Hall v. State, 292 Ga. App. 544 , 664 S.E.2d 882 , cert. denied, No. S08C1841, 2008 Ga. LEXIS 926 (Ga. 2008).
Victim's apprehension of receiving a violent injury was not an essential element of aggravated assault in which the defendant intentionally fired a gun at the victim; sufficient evidence supported the defendant's conviction for aggravated assault, despite the failure of the victim to testify, because witnesses established that during a dispute with the victim over drugs, the defendant pointed a gun at the victim, struck the victim in the head, and shot the victim. Anthony v. State, 276 Ga. App. 107 , 622 S.E.2d 450 (2005).
Simple assault becomes aggravated when it is perpetrated by use of a deadly weapon. Gentry v. State, 212 Ga. App. 79 , 441 S.E.2d 249 (1994).
Defendant could not be convicted for "criminal attempt to commit aggravated assault" where the victim was asleep or passed out; there is no law authorizing conviction for an attempt to commit a crime which itself is a particular type of attempt to commit a crime. Patterson v. State, 192 Ga. App. 449 , 385 S.E.2d 311 , cert. denied, 192 Ga. App. 902 , 385 S.E.2d 311 (1989).
Neither simple nor aggravated assault requires physical contact with victim. Tuggle v. State, 145 Ga. App. 603 , 244 S.E.2d 131 (1978).
O.C.G.A. § 16-5-21(a)(2) does not make a battery an essential element of the offense of aggravated assault. Watkins v. State, 254 Ga. 267 , 328 S.E.2d 537 (1985).
Physical contact is required for simple battery but not for aggravated assault, and hence the crime of simple battery is not necessarily included in the crime of aggravated assault. Tuggle v. State, 145 Ga. App. 603 , 244 S.E.2d 131 (1978); Anderson v. State, 170 Ga. App. 634 , 317 S.E.2d 877 (1984).
Indictment charging the defendant with making an assault "with [the defendant's] hands and fists, objects which when used offensively . . . were likely to result in serious bodily injury" contained all of the essential elements of the crime, even though it did not expressly allege that the defendant's hands were used as deadly weapons. Moore v. State, 246 Ga. App. 163 , 539 S.E.2d 851 (2000).
Aggravated assault does not require that injury be in fact inflicted. Radford v. State, 140 Ga. App. 451 , 231 S.E.2d 365 (1976), rev'd on other grounds, 238 Ga. 532 , 233 S.E.2d 785 (1977).
In every assault there must be intent to injure. The test is: was there a present purpose of doing bodily injury? Riddle v. State, 145 Ga. App. 328 , 243 S.E.2d 607 (1978), overruled on other grounds, Adsitt v. State, 248 Ga. 237 , 282 S.E.2d 305 (1981).
Assault against several persons. - After the defendant fired a pistol into a group of nine people, the defendant's act of firing into the group made each individual in the group a separate victim and, thus, the seven aggravated assault convictions of which the defendant was found guilty did not merge. Pace v. State, 239 Ga. App. 506 , 521 S.E.2d 444 (1999).
When a defendant intentionally shoots several times into a group of people intending to harm only one of them, a jury would be authorized to find defendant guilty of aggravated assault against each person in the group. Robertson v. State, 245 Ga. App. 649 , 538 S.E.2d 755 (2000).
Assault with shotgun. - Evidence supported the defendant's conviction for armed robbery, possession of a weapon during the commission of a crime, aggravated assault, burglary, aggravated battery, and impersonating an officer because the defendant kicked in the door of a home while shouting that the defendant was a "federal agent," fired a shotgun through a door, shooting off a victim's thumb, inserted the barrel of the shotgun in the same person's mouth, and demanded money, which the victims turned over, two codefendants identified the defendant as the user of the shotgun, and the defendant's DNA was found on a ski mask recovered from the getaway car and the defendant's fingerprints were found on the car. Garrison v. State, 276 Ga. App. 243 , 622 S.E.2d 910 (2005).
Elderly victims. - Proof that the victim was at least 65 years old was not necessary to establish a prima facie case of aggravated assault, however, such evidence was required to enhance the penalty under O.C.G.A. § 16-5-21(d) . Howard v. State, 230 Ga. App. 437 , 496 S.E.2d 532 (1998).
Photographs depicting victim's injuries. - Photographs depicting the victim's injuries were admissible because, pursuant to O.C.G.A. § 16-5-21(a)(2), proving serious bodily injury is a part of the state's burden of proof. Clay v. State, 214 Ga. App. 160 , 447 S.E.2d 156 (1994).
Defendant's amended motion for a new trial was properly denied, and an aggravated assault conviction was upheld on appeal as the trial court did not abuse the court's discretion in admitting three photographs depicting the victim's knife wounds; the photographs were not inadmissible merely because the photographs also showed alterations to the victim's body made by medical personnel. McRae v. State, 282 Ga. App. 852 , 640 S.E.2d 323 (2006), cert. denied, 2007 Ga. LEXIS 200 (Ga. 2007).
Injury requiring hospital stay and removal of part of brain deemed "serious." - Defendant's challenge of aggravated assault provisions on grounds of vagueness, in that O.C.G.A. § 16-5-21 requires a subjective evaluation by law enforcement personnel as to what constitutes "serious injury," was not viable where injury required removal of part of brain and a month-long hospital stay. Watkins v. State, 254 Ga. 267 , 328 S.E.2d 537 (1985).
There are wanton or reckless states of mind sometimes equivalent to specific intention to kill, and which may and should be treated by the jury as amounting to such intention, when productive of violence likely to result in the destruction of life. Messer v. State, 120 Ga. App. 747 , 172 S.E.2d 194 (1969), cert. denied, 400 U.S. 866, 91 S. Ct. 107 , 27 L. Ed. 2 d 105 (1970).
Homicide occurring during aggravated assault not accident. - Evidence that the defendant had cocked a gun and pointed the gun at her husband's head in order to scare him, and that the gun discharged when the victim struck the gun with his arm, was sufficient to authorize a conviction for felony-murder and the defense of "accident" was inapplicable. Stiles v. State, 264 Ga. App. 446 , 448 S.E.2d 172 (1994).
Victim's awareness of danger is not essential element of crime of aggravated assault. Sutton v. State, 245 Ga. 192 , 264 S.E.2d 184 (1980).
When the defendant was charged with the offense of aggravated assault by making an assault upon the victim's person with a gun, it was not incumbent upon the prosecution to prove that the victim was aware the defendant was shooting at the victim. Brown v. State, 200 Ga. App. 537 , 408 S.E.2d 836 (1991).
Appropriate test of mental capacity in trial for murder and aggravated assault is whether the accused is capable of distinguishing between right and wrong at the time the offense was committed. Duck v. State, 250 Ga. 592 , 300 S.E.2d 121 (1983).
Intent need not be directed toward person actually injured. - Offenses of murder, voluntary manslaughter, and aggravated assault do not require that the necessary element of intent, to kill or injure as the case may be, must have been directed toward the person who actually was killed or injured. Cook v. State, 255 Ga. 565 , 340 S.E.2d 843 , cert. denied, 479 U.S. 871, 107 S. Ct. 241 , 93 L. Ed. 2 d 166 (1986).
Jury was authorized to find that the defendant intended to assault the first victim with a deadly weapon and that, in the course of that assault the second victim was injured. Similarly, the jury was also authorized to find the original intent was transferred in law to the second victim as well. Fussell v. State, 187 Ga. App. 134 , 369 S.E.2d 511 (1988).
Trial court did not err in adjudicating a defendant juvenile delinquent based upon the defendant's commission of aggravated assault in violation of O.C.G.A. § 16-5-21(a)(2) because evidence that the defendant deliberately fired a BB gun in the direction of the victim and the victim's family established the offense, since, by intentionally firing the gun in the direction of the family, the defendant was likely to seriously injure any of the family members present, including the victim; the defendant's intent to assault any one of the family members was transferred to the victim, who suffered the harm, regardless of whether the defendant knew that the victim was in the line of fire or whether the victim was aware of the shooting as the shooting occurred. In the Interest of I.C., 300 Ga. App. 683 , 686 S.E.2d 279 (2009).
Convictions as aider and abettor proper despite lack of personal involvement. - Defendant's contention that the crimes against a stabbing victim were solely committed by a codefendant was rejected, pursuant to O.C.G.A. § 16-2-20(a) , as ample evidence existed to conclude that defendant either committed the crimes or was a party to the crimes, including that both defendant and the codefendant drove to the stabbing victim's home, that victim was stabbed to death, and the victim's wallet and checkbook were stolen so that both defendants could have money to buy more drugs. Odom v. State, 279 Ga. 599 , 619 S.E.2d 636 (2005).
"Intent" aspect of attempted vehicular suicide by colliding with another vehicle. - Evidence supported conclusion that defendant, who crossed center line at 68 miles per hour without braking, intended to injure the occupants of an oncoming vehicle, despite defendant's contention that defendant was attempting suicide and therefore was intending only to inflict bodily injury on self. Anderson v. State, 254 Ga. 470 , 330 S.E.2d 592 (1985).
Intent to perform illegal act. - It was unnecessary to prove that the defendant intended to injure the victim to sustain an aggravated assault conviction under O.C.G.A. § 16-5-21(a)(2) as long as it was proved that the defendant intended to perform the illegal act which caused the intended victim to be apprehensive of receiving a violent injury. Gray v. State, 257 Ga. App. 393 , 571 S.E.2d 435 (2002).
Evidence as to weapon's character. - In an aggravated assault case, since no witness saw a weapon or "sharp instrument" as alleged in the indictment, evidence that as a result of the defendant's attack, the victim suffered a clean cut from the forehead to the lip was sufficient to allow the jury to infer that the wound was caused by a sharp instrument. Evidence as to wounds inflicted was sufficient for a jury to infer a weapon's character. Miller v. State, 292 Ga. App. 641 , 666 S.E.2d 35 (2008), cert. denied, 2008 Ga. LEXIS 903 (Ga. 2008).
No requirement that assault must be with deadly weapon in order to convict under Ga. L. 1968, pp. 1249, 1280 (see O.C.G.A. § 16-5-21 ). Thadd v. State, 231 Ga. 623 , 203 S.E.2d 230 (1974).
"Assault with a deadly weapon" and "assault with intent to murder" compared. - While an assault with intent to commit murder is usually manifested by the use of some deadly weapon, yet the offense of an assault with intent to commit murder may be committed without a weapon likely to produce death. Wright v. State, 40 Ga. App. 118 , 149 S.E. 153 (1929).
Aggravated assault was intended to include former offense of stabbing provided the weapon was in fact of the denominated character. A knife "designed for the purpose of offense and defense" is a deadly weapon almost by definition. Wells v. State, 125 Ga. App. 579 , 188 S.E.2d 407 (1972); Johnson v. State, 185 Ga. App. 167 , 363 S.E.2d 773 (1987).
Offense of shooting at another is form of aggravated assault. Bentley v. State, 131 Ga. App. 425 , 205 S.E.2d 904 (1974).
Offense of shooting at another is replaced by aggravated assault under Ga. L. 1968, pp. 1249, 1280 et seq. (see O.C.G.A. § 16-5-21 ). Wells v. State, 125 Ga. App. 579 , 188 S.E.2d 407 (1972).
Deliberately firing gun in direction of another constitutes aggravated assault. - When defendant admitted deliberately firing a gun in the direction of a victim to scare the victim, such action constitutes use of a deadly weapon to commit an act which places another in reasonable apprehension of immediately receiving a violent injury and amounts to aggravated assault, absent justification. Williams v. State, 249 Ga. 6 , 287 S.E.2d 31 (1982).
Intentionally firing a gun at another, absent justification, is sufficient in and of itself to support a conviction of aggravated assault. Steele v. State, 196 Ga. App. 330 , 396 S.E.2d 4 (1990); Belins v. State, 210 Ga. App. 259 , 435 S.E.2d 675 (1993); Lewis v. State, 215 Ga. App. 161 , 450 S.E.2d 448 (1994); Creson v. State, 218 Ga. App. 184 , 460 S.E.2d 83 (1995); Tiller v. State, 267 Ga. 888 , 485 S.E.2d 720 (1997); Goodman v. State, 237 Ga. App. 795 , 516 S.E.2d 824 (1999).
Trial court did not err in denying the defendant's motion for directed verdict of acquittal, as direct evidence that the defendant fired at the victim and the defendant's own admission that the defendant fired at the victim was sufficient to submit the question of whether the defendant was guilty of aggravated assault to the jury; no error occurred pursuant to former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6 ), involving a conviction based solely on circumstantial evidence, as the state offered more than circumstantial evidence to support the state's case against the defendant. Cobb v. State, 268 Ga. App. 66 , 601 S.E.2d 443 (2004).
Because former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8 ) provided that a victim's testimony, standing alone, was sufficient, the victim's testimony that defendant twice shot at the victim was sufficient to find defendant guilty of violating O.C.G.A. § 16-5-21(a)(2) despite testimony to the contrary. Hartley v. State, 299 Ga. App. 534 , 683 S.E.2d 109 (2009).
That defendant did not initiate fight does not necessarily show that defendant was not guilty of aggravated assault. Russell v. State, 152 Ga. App. 693 , 263 S.E.2d 689 (1979).
Admission of evidence of drug use was proper. - Defendant was properly convicted for felony murder, malice murder, and aggravated assault where the defendant was seen twice beating someone with a pipe and yelling at the person regarding drugs, and where the person died as a result of injuries from that beating two days later. Admission at the defendant's trial of use of drugs was proper because it was not admitted purely to impugn the defendant's character, but was relevant as to motive. Dyers v. State, 277 Ga. 859 , 596 S.E.2d 595 (2004).
Extrinsic evidence held harmless. - Defendant's conviction for armed robbery and aggravated assault was affirmed because, given the overwhelming evidence, it was highly unlikely that the admission of the testimony concerning the subsequent burglary contributed to the verdict in this case, even if it was erroneous to allow such evidence. Hutchinson v. State, 318 Ga. App. 627 , 733 S.E.2d 517 (2012).
Because evidence of the defendant's prior drug use, and history of crimes committed against family members fueled by that drug usage, were properly admitted as relevant to the crimes charged, despite incidentally placing the defendant's character in issue, convictions for both aggravated assault and simple assault were upheld on appeal. Jones v. State, 283 Ga. App. 812 , 642 S.E.2d 887 (2007).
Pre- and post-Miranda statements properly admitted. - In a prosecution for aggravated assault and possession of a firearm during the commission of a crime, despite testimony from the arresting officer that the defendant was complaining of physical problems and under the influence of alcohol, both the pre- and post-Miranda statements made, as well as the numerous voluntary and unsolicited remarks which were not made in response to any form of interrogation, were properly admitted. Dorsey v. State, 285 Ga. App. 510 , 646 S.E.2d 713 (2007).
Defendant's statements admissible. - With regard to the defendant's conviction for aggravated assault, the trial court did not err by admitting the defendant's statements because the defendant was not in custody at the time the statements were made as the detective met with the defendant at the hospital, no arrest occurred, the defendant was not restrained in any way, and was free to go. Davis v. State, 320 Ga. App. 753 , 740 S.E.2d 707 (2013).
Evidence of victim's character properly excluded. - In a prosecution for aggravated assault, to the extent that the defendant sought to attack the victim's character through testimony about the victim's use of alcohol during pregnancy, whether the victim hid the defendant from the police, and the victim's alleged jealousy over the defendant's new relationship, the trial court did not abuse its discretion in limiting the scope of cross-examination to the issues directly related to the incidents. Massey v. State, 278 Ga. App. 303 , 628 S.E.2d 706 (2006).
Evidence was properly excluded under rape shield law. - Trial court properly applied O.C.G.A. § 23-2-3 by refusing to allow testimony that a victim of domestic violence had been seen working as a prostitute because that information had no relevance to the aggravated assault and false imprisonment charges for which a defendant was convicted, and further, the defendant failed to produce any evidence that could have provided a nexus between the alleged prostitution and a conclusion that someone else might have inflicted the victim's injuries. Moorer v. State, 290 Ga. App. 216 , 659 S.E.2d 422 (2008).
No speedy trial violation. - Convictions for armed robbery, aggravated assault with the intent to rob, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon were proper because the defendant's right to a speedy trial was not violated by the 20-month delay between the date the indictment was issued to the date of the defendant's actual trial as the delay was due to a higher priority of statutory speedy trial demands, so it was not a deliberate delay on the part of the state, and as the defendant failed to show any prejudice from the delay. Herndon v. State, 277 Ga. App. 374 , 626 S.E.2d 579 (2006).
Denial of motion to sever. - In a prosecution on two counts of attempting to hijack a motor vehicle, four counts of aggravated assault, possession of a firearm during the commission of a crime, and criminal trespass, because the offenses committed by a defendant and a codefendant amounted to a series of continuous acts connected together both in time and the area in which committed, and there was no likelihood of confusion, the trial court did not abuse of discretion in denying the defendant's motion to sever the trial from that of the codefendant; furthermore, the mere fact that the codefendants' defenses were antagonistic was insufficient in itself to warrant separate trials. Diaz v. State, 280 Ga. App. 413 , 634 S.E.2d 160 (2006).
Trial court did not err in denying the defendant's motion to sever the charges of rape, aggravated assault, kidnapping with bodily injury, and aggravated sodomy arising out of three sexual assaults against three different women because the charges against the defendant clearly showed a recurring pattern of conduct suggesting a common scheme or modus operandi as the victims of the three sexual assaults were adult women who did not know the defendant, all three incidents occurred in DeKalb County within six months of each other, each victim was taken by vehicle to a secluded location before the victims were raped, all three incidents involved a handgun, and semen matching the defendant's DNA profile was found on each victim. Ray v. State, 329 Ga. App. 5 , 763 S.E.2d 361 (2014).
State's peremptory strikes were valid. - While defendant made out a prima facie case of racial discrimination regarding the state's use of three peremptory strikes, sufficient race-neutral reasons existed for those strikes; thus, given the court's jury charges and recharge to the jury, the court's responses to questions from the jury, and waiver of improper bolstering objection on appeal, defendant's aggravated assault and armed robbery convictions were upheld on appeal, as was the court's denial of a motion for a new trial. LeMon v. State, 290 Ga. App. 527 , 660 S.E.2d 11 (2008).
Jury determinations. - Whether the defendant's means of attack was deadly and whether the defendant's acts were punishable as an aggravated assault or as simple battery were matters properly left to the jury. Guevara v. State, 151 Ga. App. 444 , 260 S.E.2d 491 (1979).
Viewed in the light most favorable to the verdict, the defendant's aggravated assault conviction was upheld on appeal as conflicts in the evidence between the defendant's version of the facts and that version offered by the other witnesses were for the jury, not the appeals court, to resolve. Hicks v. State, 281 Ga. App. 461 , 636 S.E.2d 183 (2006).
Sufficient evidence was presented to the jury to support the defendant's convictions for armed robbery, aggravated assault, burglary, criminal attempt to commit aggravated sodomy, and possession of a knife during the commission of a crime because the victim's testimony alone was sufficient to support the convictions; regardless of any inconsistencies in the victim's testimony, it was for the jury to assess witness credibility, and the jury chose to believe the victim's identification of the defendant as the individual who committed the crimes. Williams v. State, 300 Ga. App. 839 , 686 S.E.2d 446 (2009).
Testimony of the victim and other state witnesses was sufficient to authorize a rational jury to find the defendant guilty beyond a reasonable doubt of aggravated assault, criminal damage to property in the second degree, and battery because it was the role of the jury, not the court of appeals, to resolve conflicts in the evidence, assess witness credibility, and decide whether to believe the victim's or the defendant's version of events; the defendant punched the victim, drew a handgun from the defendant's pants, and fired at the victim, and at trial, the victim, the responding officers, and the state's ballistic expert testified to the events. Bryant v. State, 309 Ga. App. 649 , 710 S.E.2d 854 (2011).
Evidence was sufficient for a rational factfinder to find the defendant guilty beyond a reasonable doubt of false imprisonment, O.C.G.A. § 16-5-41(a) , burglary, O.C.G.A. § 16-7-1(a) , and aggravated assault, O.C.G.A. § 16-5-21(a)(2), because, although the defendant argued that there was insufficient credible and admissible evidence to show that the defendant was the victim's attacker, determinations of witness credibility and the weight to give the evidence presented was solely within the province of the jury; defense counsel thoroughly cross-examined the victim, the responding officers, and the investigator regarding the victim's demeanor after the attack, the victim's description of the attack and the attacker, and the inconsistencies between what the victim told each of them. Pennington v. State, 313 Ga. App. 764 , 723 S.E.2d 13 (2012).
Jury charge on justification not plain error. - Defendant failed to show plain error in the jury charge on justification because the defendant could not demonstrate that the alleged error in the jury charge likely affected the outcome of the proceedings as the evidence was overwhelming that the defendant was the initial aggressor who attacked the unarmed victim with the metal bar and, thus, that the defendant did not act in self-defense and was guilty of aggravated assault. Tremblay v. State, 329 Ga. App. 139 , 764 S.E.2d 163 (2014).
Guilty plea free and voluntary. - Trial court did not abuse the court's discretion in denying the defendant's motion to withdraw a guilty plea to two counts of kidnapping and two counts of aggravated assault as the trial court was well aware of the medications the defendant was taking when the plea was entered, the medications did not affect the defendant's ability to understand the proceedings, and an expert opined that the defendant was feigning hallucinations and was competent to stand trial; hence, at that point, the trial court had no duty to make any further inquiries into the defendant's ability to competently tender a plea. McDowell v. State, 282 Ga. App. 754 , 639 S.E.2d 644 (2006).
Trial court did not abuse the court's discretion in denying the defendant's motion to withdraw a guilty plea to aggravated assault because the defendant was thoroughly questioned about the plea, fully informed and cognizant of the rights the defendant was waiving, and fully aware of the consequences of the plea; the purported recantation evidence proffered at the hearing was very weak, and at the plea hearing, the defendant admitted under oath that the defendant committed two acts of aggravated assault. Williams v. State, 315 Ga. App. 704 , 727 S.E.2d 532 (2012).
Double jeopardy since aggravated assault was underlying offense in felony murder. - Second prosecution on an aggravated assault charge was barred by double jeopardy because the assault charge served as the underlying offense to the felony murder charge and was a lesser included offense of felony murder; the court of appeals erred by failing to consider the implications of the modified merger rule when reviewing the defendant's double jeopardy claim because the aggravated assault charge was perpetrated against the victim and was an integral part of the homicide, and the evidence authorized a charge on voluntary manslaughter on which the defendant was convicted. Williams v. State, 288 Ga. 7 , 700 S.E.2d 564 (2010).
Double jeopardy did not bar retrial. - Defendant's acquittal on felony murder under O.C.G.A. § 16-5-1(c) and aggravated assault under O.C.G.A. § 16-5-21 did not bar retrial on a voluntary manslaughter charge under O.C.G.A. § 16-5-2(a) as the collateral estoppel doctrine under the Double Jeopardy Clause, U.S. Const., amend. 5, and Ga. Const. 1983, Art. I, Sec. I, Para. XVIII, did not apply because voluntary manslaughter required proof of an element not found in felony murder or aggravated assault, and aggravated assault with a deadly weapon and voluntary manslaughter were mutually exclusive. Roesser v. State, 316 Ga. App. 850 , 730 S.E.2d 641 (2012).
Aggravated assault is not a capital felony. Jones v. State, 246 Ga. 109 , 269 S.E.2d 6 (1980).
State was not required to prove victim's certification as a police officer under the Georgia Peace Officer Standards and Training Act, O.C.G.A. § 35-8-1 et seq., in order to make a prima facie showing that the victim was acting as a peace officer within the contemplation of O.C.G.A. § 16-5-21(c) . Cornwell v. State, 193 Ga. App. 561 , 388 S.E.2d 353 , cert. denied, 193 Ga. App. 909 , 388 S.E.2d 353 (1989).
Victim's apprehension of violent injuries. - In a prosecution for felony murder, where defendant was charged with the underlying felony of aggravated assault by stabbing the victim with a knife, a deadly weapon, it was unnecessary for the state to show the victim's apprehension of the violent injuries inflicted. Brinson v. State, 272 Ga. 345 , 529 S.E.2d 129 (2000).
Evidence was sufficient to allow the court to adjudicate the defendant a delinquent for committing an act which would have been an aggravated assault, under O.C.G.A. § 16-5-21(a)(2), if committed by an adult, because a police officer testified that the juvenile pointed a gun at the officer. In the Interest of M.F., 276 Ga. App. 402 , 623 S.E.2d 234 (2005).
Because sufficient evidence was presented supporting the jury's determination that the defendant's act of shooting the victim was not an accident and was not justified, the victim testified to knowing defendant had a gun, and the presence of a gun normally placed a victim in reasonable apprehension of being injured violently, the defendant's convictions for aggravated assault and possession of a firearm during the commission of a crime were supported by the record. Dukes v. State, 285 Ga. App. 172 , 645 S.E.2d 664 (2007).
Evidence was sufficient to support a finding of juvenile delinquency based on aggravated assault. The defendant committed an act with a deadly weapon, advancing on a deputy with a baton in the defendant's hand, putting the deputy in reasonable apprehension of immediately receiving a violent injury. In the Interest of J.A.C., 291 Ga. App. 728 , 662 S.E.2d 811 (2008).
Evidence was sufficient to uphold the defendant's conviction for aggravated assault because all of the victims were together in a group, and one of the victim's testified that guns were pointed at everybody; the defendant's act of firing the weapon into the group made each individual a separate victim, and testimony that the victims were crying and screaming when the defendant fired was sufficient for the jury to conclude that the group too had a reasonable apprehension of receiving a violent injury, O.C.G.A. § 16-5-20(a)(2). Gaither v. State, 312 Ga. App. 53 , 717 S.E.2d 654 (2011), cert. denied, No. S12C0337, 2012 Ga. LEXIS 216 (Ga. 2012).
Violence against a parent. - When the defendant, while cursing and screaming at the defendant's parent, stood near the parent, holding a pot of boiling water and staring at the parent, the defendant's acts constituted aggravated assault under O.C.G.A. § 16-5-21(a)(2). The acts constituted both a substantial step toward committing a battery and a demonstration of violence against the parent, and showed a present ability to inflict injury that placed the parent in reasonable apprehension of immediately receiving a violent injury under § 16-5-21(a)(2). In the Interest of T.Y.B., 288 Ga. App. 610 , 654 S.E.2d 688 (2007).
Prior transaction evidence properly admitted. - Trial court did not err in admitting prior transaction evidence sufficiently similar to the charged aggravated assault offense in order to disprove the defendant's claim of accident and to show intent and course of conduct as proof of the prior offense helped prove an element of the aggravated assault. Mack v. State, 283 Ga. App. 172 , 641 S.E.2d 194 (2007).
Similar transaction evidence of an eight-year-old incident in which the defendant robbed two victims at gunpoint was not too remote in time or dissimilar to the armed robbery and aggravated assault charges the defendant was being tried for, and was thus properly admitted to show course of conduct, bent of mind, motive, and identity. Wallace v. State, 295 Ga. App. 452 , 671 S.E.2d 911 (2009).
Evidence of an earlier altercation between the defendant and a former girlfriend was admissible in the aggravated assault of the victim, the former girlfriend's brother, because the state of mind required for the charged offense of aggravated assault against the victim was the same as the state of mind required for the uncharged act against the former girlfriend, which could have constituted an aggravated assault; the other act was probative of the issue of the defendant's intent, which defense counsel argued to the jury was the biggest issue in the case; and the evidence was sufficient to show that the prior bad act occurred and that the defendant was the person who accosted and threatened the former girlfriend with the knife. Wilson v. State, 336 Ga. App. 60 , 783 S.E.2d 662 (2016).
Error in admitting similar transaction evidence required reversal. - While state presented sufficient evidence of the victim's age to support assault charge under O.C.G.A. § 16-5-21(a)(1), because the trial court clearly erred in admitting evidence of two burglaries defendant committed in 1998 as similar transactions to help prove the issue of identity, defendant's aggravated assault, burglary, robbery, theft, and battery convictions were reversed. Usher v. State, 290 Ga. App. 710 , 659 S.E.2d 920 (2008).
Evidence of previous crimes improperly admitted to show intent. - Appellant's convictions for felony murder, aggravated assault, and knife-possession offenses were reversed because the Georgia Supreme Court could not say that the trial court's erroneous admission of the voluminous evidence that the appellant had previously committed multiple serious violent acts did not contribute to the guilty verdicts that the jury returned. Strong v. State, Ga. , 845 S.E.2d 653 (2020).
Prior convictions properly admitted for both impeachment and sentencing purposes. - Trial court properly admitted certified copies of the defendant's two prior convictions of aggravated assault and possession of a firearm during the commission of a felony as: (1) the court carefully balanced the competing interests; (2) the prior offenses had a substantial probative value which outweighed their prejudicial effect; and (3) nothing prevented the use of a defendant's convictions for both impeachment and sentencing purposes. Moreover, the court rejected the defendant's claim that by adding the word "substantially" to the balancing test, the Georgia legislature meant to incorporate the standard for admissibility embodied in Fed. R. Evid. 609(b). Newsome v. State, 289 Ga. App. 590 , 657 S.E.2d 540 (2008), cert. denied, No. S08C1042, 2008 Ga. LEXIS 494 (Ga. 2008).
Comment in closing did not warrant new trial. - Aggravated assault conviction was upheld on appeal, and the defendant was not entitled to a new trial, as the prosecution's closing argument, utilizing an analogy between the defendant's case and a similar separate case involving other parties, was within the parameters of an appropriate closing argument. Moss v. State, 278 Ga. App. 221 , 628 S.E.2d 648 (2006).
Guilty verdicts were of aggravated assaults of peace officers. - Defendant was convicted of aggravated assault of a peace officer where: (1) the evidence showed that the defendant attempted to run law enforcement officers off the road; (2) the indictment was sufficient to charge aggravated assault of a peace officer; (3) the jury was instructed to determine whether any guilty verdict was aggravated assault or aggravated assault of a peace officer; (4) the jury did not specify whether the guilty verdicts were of assaults against peace officers; and (5) the defendant did not object to the jury's failure to specify whether the convictions were for assaults against peace officers at the time the verdicts were announced. Dupree v. State, 267 Ga. App. 561 , 600 S.E.2d 654 (2004).
Aggravated assault on security guard. - When, in an obvious attempt to incapacitate an armed security guard, the defendant pulled the trigger of the defendant's own weapon in that direction, an aggravated assault was committed. Lambert v. State, 157 Ga. App. 275 , 277 S.E.2d 66 (1981).
Lawful discharge of official duties. - Officers who were summoned to the scene of a domestic disturbance and saw defendant forcibly march defendant's family into their dwelling, quite possibly at gunpoint, had probable cause to effectuate a warrantless arrest for a battery constituting a family violence and, thus, were engaged in the performance of official duties for purposes of O.C.G.A. § 16-5-21 . Duitsman v. State, 212 Ga. App. 348 , 441 S.E.2d 888 (1994).
Defendant was properly convicted of aggravated assault on a police officer, under O.C.G.A. § 16-5-21(c) , when, under the totality of the circumstances, the officer had a particularized and objective basis for suspecting the defendant of criminal activity. Ramirez v. State, 279 Ga. 569 , 619 S.E.2d 668 (2005), cert. denied, 546 U.S. 1217, 126 S. Ct. 1435 , 164 L. Ed. 2 d 138 (2006).
Police officer moonlighting as security guard performing "official duties." - State proved every element of crime charged although indictment charged defendant with aggravated assault on a police officer engaged in the performance of the officer's official duties where the officer was moonlighting as a security guard at the time of the assault, as the officer had an "official duty" to take action when defendant breached the peace. Loumakis v. State, 179 Ga. App. 294 , 346 S.E.2d 373 (1986).
Merger required with aggravated assault on peace officer. - Record clearly showed that the crime of obstruction was established by proof of the same or less than all the facts required to establish the crime of aggravated assault on a peace officer; thus, the convictions for aggravated assault on a peace officer and felony obstruction of a peace officer should have merged. Reid v. State, 339 Ga. App. 772 , 792 S.E.2d 732 (2016), overruled on other grounds by Collier v. State, 834 S.E.2d 769 , 2019 Ga. LEXIS 708 (Ga. 2019).
Conviction for assault authorized though intended criminal act is completed. - It is the intent of the Legislature that, although an assault may be a criminal attempt, and even though the intended criminal act be completed, a conviction for an assault is authorized. Williams v. State, 141 Ga. App. 201 , 233 S.E.2d 48 (1977).
Aggravated assault conviction approved although battery completed. Williams v. State, 141 Ga. App. 201 , 233 S.E.2d 48 (1977).
Assault with pistol not completed. - When defendant was arrested, indicted, and tried on three counts of aggravated assault: (1) shooting at another with a pistol; (2) attempting to shoot another with a pistol; and (3) attempting to run over another with an automobile, the assault with the automobile was clearly completed (the car had been stopped and placed in "park") before the assault with the pistol began. However, the evidence did not authorize the jury to conclude that the assault with the pistol was "completed" between the time that defendant fired shots while on the run and the time when defendant caught up with defendant's quarry and attempted to fire additional shots from a stationary position, so that the two charges involving the use of a pistol referred to acts that were parts of a single transaction and defendant therefore could not properly be convicted on both charges. Davis v. State, 186 Ga. App. 491 , 367 S.E.2d 884 (1988).
Aggravated assault and hit-and-run are not mutually exclusive crimes. - Aggravated assault with a motor vehicle and hit-and-run with that same vehicle are not mutually exclusive crimes, since an aggravated assault includes a finding of intent which is not an element of hit-and-run. Gutierrez v. State, 235 Ga. App. 878 , 510 S.E.2d 570 (1998).
Conduct outside scope of involuntary manslaughter. - Whether the conduct of an accused is lawful at the outset, e.g., in self-defense or unlawful, when what takes place thereafter discloses felonious conduct in committing either an aggravated assault with an instrument likely to produce death or an aggravated battery which causes the death of another, such conduct is not within the scope of involuntary manslaughter. Trask v. State, 132 Ga. App. 645 , 208 S.E.2d 591 (1974).
Defendant was not entitled to a sentence reduction because the aggravated assault and aggravated stalking statutes did not define the same offense and did not address the same criminal conduct, the former offense addressing assault with the object likely to result in serious bodily injury and the latter offense addressing harassment and intimidation of a victim. Myrick v. State, 325 Ga. App. 607 , 754 S.E.2d 395 (2014).
Cruelty to children conviction did not merge with aggravated assault or false imprisonment. - Defendant's cruelty to children in the first degree charge did not merge with the aggravated assault or false imprisonment charge because neither aggravated assault nor false imprisonment required proof that the victim suffered cruel or excessive physical or mental pain. Kirt v. State, 309 Ga. App. 227 , 709 S.E.2d 840 (2011).
No merger with family violence battery. - Family violence aggravated assault and the family violence aggravated battery convictions did not merge because the evidence showed that the defendant completed one crime before committing the other and that the crimes were based on different conduct as the aggravated battery charge was based on the defendant striking the victim with the defendant's fist and depriving the victim of two upper incisors, and the aggravated assault charge was based on the defendant striking the victim with a wire hanger and pouring lighter fluid on the victim's person and setting the victim on fire. Outz v. State, 344 Ga. App. 616 , 810 S.E.2d 678 (2018).
Merger not appropriate. - Trial court did not err in failing to merge an aggravated assault count into a kidnapping with bodily injury count, the aggravated assault count into an aggravated battery count, and the aggravated battery count into the kidnapping count, as each count referred to a separate cut of the victims with a decorative sword that the defendant had pulled off the wall during a domestic dispute with the defendant's spouse and child. Brown v. State, 275 Ga. App. 99 , 619 S.E.2d 789 (2005).
Due to the entry of a guilty plea over 20 years before the filing of a motion to correct alleged illegal sentences, the defendant's merger claim was waived, and since the sentences imposed were not void, the trial court lacked subject matter jurisdiction over the motion for correction. Sanders v. State, 282 Ga. App. 834 , 640 S.E.2d 353 (2006).
Because the jury could reasonably have concluded that the victim's first two injuries from two non-fatal shots resulted from a separate offense than the third, the earlier shots were sufficient to support the aggravated assault conviction, separate from the third and fatal shot, and there was no merger of the aggravated assault offense with a separate charge of malice murder. Parker v. State, 281 Ga. 490 , 640 S.E.2d 44 (2007).
Because separate cruelty to children and aggravated assault counts were based upon acts committed by the defendant on the day preceding the death of the victim, neither of those convictions merged into the felony murder count also filed against the defendant and, accordingly, separate sentences for those crimes were authorized. Christian v. State, 281 Ga. 474 , 640 S.E.2d 21 (2007).
Defendant's aggravated assault conviction did not merge into a felony murder conviction because neither the murder nor the underlying felony of criminal attempt to commit armed robbery required the state to prove the element of reasonable apprehension of receiving a violent injury, which was a required element of the aggravated assault count as indicted. Willingham v. State, 281 Ga. 577 , 642 S.E.2d 43 (2007).
Defendant's convictions of involuntary manslaughter while in the commission of a simple battery, aggravated assault, aggravated battery, cruelty to children, and reckless conduct were not mutually exclusive, and the trial court did not err in not merging the nonhomicide counts upon sentencing. Waits v. State, 282 Ga. 1 , 644 S.E.2d 127 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Aggravated assault with a rope and kidnapping with bodily injury offenses did not merge for sentencing purposes as one crime was completed before the other took place, and the crimes were established by separate and distinct facts. McCaskell v. State, 285 Ga. App. 592 , 646 S.E.2d 761 (2007).
An aggravated assault conviction did not merge as a matter of fact with a murder conviction because the evidence presented at trial showed that the defendant inflicted a severe, but non-fatal, beating upon the victim that was separate and distinct from the choking and strangling which resulted in the victim's death. Starks v. State, 283 Ga. 164 , 656 S.E.2d 518 (2008).
Because the evidence presented against the defendant showed two distinct acts of aggravated assault, separated by time and motive, the two offenses did not merge. Boyd v. State, 289 Ga. App. 342 , 656 S.E.2d 864 (2008), cert. denied, 2008 Ga. LEXIS 498 (Ga. 2008).
Because charges alleging aggravated assault did not amount to lesser-included offenses as a matter of fact of a charge of first-degree criminal damage to property, and the property offense was not a lesser-included offense of any aggravated assault offense, merger of the offenses was unwarranted. Louis v. State, 290 Ga. App. 106 , 658 S.E.2d 897 (2008).
When a defendant pulled out a gun and demanded money from a cab driver, the offense of criminal attempt armed robbery was complete, and the defendant's subsequent acts, including striking the driver on the head, were not necessary to prove that offense; thus, the attempt offense did not merge with aggravated assault offenses for sentencing purposes. Duncan v. State, 290 Ga. App. 32 , 658 S.E.2d 780 (2008).
Because: (1) different facts were used to prove an aggravated assault and an armed robbery, specifically, that the armed robbery was complete after the defendant laid a handgun on the counter in the convenience store, demanded that the victim open the register, and a codefendant took money from the a register; and (2) the separate offense of aggravated assault occurred when the defendant struck the victim in the head with the gun, the offenses did not merge as a matter of fact. Thus, the separate sentences imposed for each offense were upheld, and no double jeopardy violation occurred. Garibay v. State, 290 Ga. App. 385 , 659 S.E.2d 775 (2008).
As the offense of aggravated assault, O.C.G.A. § 16-5-21(a)(1), required proof of at least one additional fact which the offense of robbery by intimidation, O.C.G.A. § 16-8-41(a) , did not, under the "required evidence" test of O.C.G.A. § 16-1-7 , a defendant's aggravated assault conviction did not merge into the defendant's robbery by intimidation conviction. Elamin v. State, 293 Ga. App. 591 , 667 S.E.2d 439 (2008).
Defendant's aggravated assault and aggravated battery convictions under O.C.G.A. §§ 16-5-21(a) and 16-5-24(a) did not merge under O.C.G.A. § 16-1-7(a) , although both stemmed from the same act. The aggravated assault charge required proof that the defendant attempted to commit a violent injury with the intent to murder using a deadly weapon, while the aggravated battery charge required proof that the defendant maliciously caused bodily harm to the victim by rendering a member of the victim's body useless; thus, the offenses were distinct, with each requiring proof of a fact which the other did not. Robbins v. State, 293 Ga. App. 584 , 667 S.E.2d 684 (2008).
Defendant's aggravated assault convictions under both O.C.G.A. § 16-5-21(a)(1) and (a)(2) did not merge because the state presented evidence that two separate assaults on the victim occurred at separate times and in different ways; from the evidence, the jury could reasonably infer that the defendant used the defendant's hands to choke the victim and that at a separate time and a different location, the defendant also jammed a curling iron down the victim's throat. Lord v. State, 297 Ga. App. 88 , 676 S.E.2d 404 (2009).
Trial court did not err in refusing to merge six aggravated assault counts into one count or in charging the jury that it could find the defendant guilty on the six separate counts because the act of firing a weapon into a group made each individual in the group a separate victim and justified a separate count of aggravated assault for each victim. Scott v. State, 302 Ga. App. 111 , 690 S.E.2d 242 (2010).
Defendant's convictions for aggravated assault in violation of O.C.G.A. § 16-5-21(a)(2) and feticide in violation of O.C.G.A. § 16-5-80(a) did not merge for sentencing purposes because the victim of the aggravated assault was the defendant's girlfriend, while the victim of the feticide was the girlfriend's unborn child; the merger doctrine does not apply if each of the charged crimes was committed against a different victim. Carmichael v. State, 305 Ga. App. 651 , 700 S.E.2d 650 (2010).
Defendant's guilty pleas for aggravated assault with intent to rape in violation of O.C.G.A. § 16-5-21(a)(1) and kidnapping in violation of O.C.G.A. § 16-5-40(a) were not accepted in violation of the constitutional prohibition against double jeopardy because the offenses did not merge as a matter of law since each of the offenses were separate and required proof of different facts; the state asserted that the defendant had dragged the victim from the front of a laundromat facility into a bathroom in the back of the facility, which formed a basis for the kidnapping charge, and that the defendant had sexually assaulted the victim while holding the victim in the bathroom, which formed a basis for the aggravated assault with the intent to rape charge. Shelton v. State, 307 Ga. App. 599 , 705 S.E.2d 699 (2011), overruled on other grounds by Collier v. State, 834 S.E.2d 769 , 2019 Ga. LEXIS 708 (Ga. 2019).
Defendant's aggravated assault convictions did not merge because the counts of the indictment requiring the state to prove that the defendant slashed the victim's neck with a sharp-edged instrument, hit the victim with a hammer and wrapped a cord around the victim's neck with the intent to murder were based on different conduct and merger of those convictions was not required. Thomas v. State, 310 Ga. App. 404 , 714 S.E.2d 37 (2011).
Trial court was correct not to merge the defendant's convictions for armed robbery and aggravated assault because although the defendant's conviction for the armed robbery of the victim resulted from a holdup, the conviction for aggravated assault was based on the defendant's forcing the shotgun down the victim's throat later in a bathroom. Thomas v. State, 289 Ga. 877 , 717 S.E.2d 187 (2011).
Trial court did not err in failing to merge the defendant's aggravated assault convictions because, although the convictions arose from the same acts, the convictions did not merge as a matter of fact or law since each count was based upon harm to a different victim. Gaither v. State, 312 Ga. App. 53 , 717 S.E.2d 654 (2011), cert. denied, No. S12C0337, 2012 Ga. LEXIS 216 (Ga. 2012).
Aggravated assault and armed robbery convictions did not merge for sentencing purposes because the trial court was authorized to conclude that the assault with a gun was a separate act from the armed robbery, which occurred after the victim had been pistol-whipped. McGlasker v. State, 321 Ga. App. 614 , 741 S.E.2d 303 (2013).
Trial court erred by merging all four of the family violence aggravated assault verdicts into the malice murder verdict as the family violence aggravated assault verdict will not merge into a verdict for murder. Jeffrey v. State, 296 Ga. 713 , 770 S.E.2d 585 (2015).
Trial court did not err in declining to merge the defendant's aggravated assault and aggravated battery convictions for sentencing as the aggravated assault was a separate act from the ensuing act of aggravated battery because the aggravated assault occurred when the defendant pointed the gun at the victim's head, while the aggravated battery did not occur until after the aggravated assault caused the victim to move defensively, and the defendant then took a separate action of moving toward the victim, which led to the struggle that resulted in the victim getting shot in the spine. Williams v. State, 332 Ga. App. 805 , 775 S.E.2d 178 (2015).
Trial court did not err by failing to merge the rape count with a count of aggravated assault as the defendant's choking of the victim, which supported the assault, occurred prior to the rape and was a separate and distinct act of force and intimidation outside of that necessary to accomplish the rape. Bolden v. State, 335 Ga. App. 653 , 782 S.E.2d 708 (2016), overruled on other grounds by Quiller v. State, 338 Ga. App. 206 , 789 S.E.2d 391 (2016).
Trial court did not err by failing to merge the convictions for aggravated assault and felony obstruction because each offense required proof of an additional element that the other did not. Gordon v. State, 337 Ga. App. 64 , 785 S.E.2d 900 (2016).
Merger appropriate. - Two counts of aggravated assault merge since both convictions were based on the same act. Smith v. State, 279 Ga. App. 211 , 630 S.E.2d 833 (2006).
Upon the concession by the state on appeal, the two aggravated-assault counts the defendant was convicted of should have merged because there was no ensuing interval between the defendant's first act of pointing the gun at the victim's head and the later act of lowering the gun's aim and shooting that victim in the leg. Mack v. State, 283 Ga. App. 172 , 641 S.E.2d 194 (2007).
Although an armed robbery served as the predicate felony for one count of felony murder, there was a separate felony murder count predicated on aggravated assault; hence, when the jury found the defendant guilty of both counts, it was within the trial court's discretion to choose to merge the aggravated assault rather than the armed robbery into the felony murder count for which appellant was sentenced. Hill v. State, 281 Ga. 795 , 642 S.E.2d 64 (2007).
One of defendant's aggravated assault convictions merged as a matter of fact with armed robbery. Fagan v. State, 283 Ga. App. 784 , 643 S.E.2d 268 (2007).
When the defendant pulled out a gun and demanded money from a cab driver, put the vehicle in park, hit the driver on the head with the gun and shot the gun into the floor, then ordered the driver out of the cab, the offenses of aggravated assault with intent to rob and aggravated assault with a deadly weapon merged as a matter of fact for sentencing purposes, as the evidence did not support a separate conviction for assault with intent to rob; since any reasonable apprehension of receiving a violent or bodily injury related to the threat posed by the gun, not to the actions of putting the vehicle into park and directing the driver out of the cab, no separate aggravated assault occurred. Duncan v. State, 290 Ga. App. 32 , 658 S.E.2d 780 (2008).
Defendant's aggravated assault convictions were to be merged with armed robbery and kidnapping convictions as the same set of facts were used to prove the offenses. Lenon v. State, 290 Ga. App. 626 , 660 S.E.2d 16 (2008).
Because a defendant's convictions for armed robbery (O.C.G.A. § 16-8-41(a) ) and aggravated assault (O.C.G.A. § 16-5-21(a) ) were based on the same conduct - the defendant's pointing a gun at the victim with the intent to rob the victim - merger was required. Therefore, the sentence for the aggravated assault was vacated. Reed v. State, 293 Ga. App. 479 , 668 S.E.2d 1 (2008).
Trial court erred in failing to merge a defendant's offenses of aggravated battery under O.C.G.A. § 16-5-24(a) and aggravated assault under O.C.G.A. § 16-5-21(a) , for sentencing purposes, because the assault was a lesser included offense of the battery offense under O.C.G.A. § 16-1-6(1) , given the defendant's single attack on the victim with a golf club. Allen v. State, 302 Ga. App. 190 , 690 S.E.2d 492 (2010).
Defendant's convictions for aggravated assault with a deadly weapon and aggravated assault with intent to murder merged for sentencing because both counts of the indictment alleged that the defendant committed aggravated assault by slashing the victim's neck; although one count alleged that the assault was done with a deadly weapon and the other alleged that it was done with the intent to commit murder, O.C.G.A. § 16-5-21(a)(1) and (a)(2), the counts were clearly based on a single act since the razor or knife used in that assault broke while it was pressed against the victim's neck, and thus, the counts merely charged the same act of aggravated assault being committed in two of the multiple ways set out in O.C.G.A. § 16-3-21 . Thomas v. State, 310 Ga. App. 404 , 714 S.E.2d 37 (2011).
Defendant's conviction for aggravated assault should have been merged into a malice murder conviction pursuant to O.C.G.A. § 16-1-7(a)(1), based on the "required evidence" test, as the aggravated assault, as pled, did not require proof of a fact not required to have been proved in the malice murder. Culpepper v. State, 289 Ga. 736 , 715 S.E.2d 155 (2011).
Defendant's convictions for armed robbery and aggravated assault should have been merged for sentencing, as a co-defendant's actions, which occurred either concurrently or in rapid succession, were committed as part of one uninterrupted criminal transaction and in pursuit of a specific, predetermined goal: the armed robbery of a single victim. Crowley v. State, 315 Ga. App. 755 , 728 S.E.2d 282 (2012).
Trial court erred in failing to merge defendant's conviction for aggravated assault into defendant's conviction for armed robbery. Williams v. State, 316 Ga. App. 821 , 730 S.E.2d 541 (2012).
Trial court erred by not merging the aggravated assault offense into the armed robbery offense for sentencing purposes, as the evidence showed one transaction, where the defendant pointed the revolver at the victim and took the victim's money and cell phone, and there was not break between that time and when the defendant asked if the defendant should also take the keys to the vehicle. Dean v. State, 327 Ga. App. 9 , 755 S.E.2d 245 (2014).
Defendant's conviction for aggravated assault should have merged with the conviction for criminal attempt to commit armed robbery because those acts were predicated upon the same act, the defendant's use of a handgun to overpower and intimidate the victim for the purpose of attempting to rob the victim of the victim's belongings. Morris v. State, 340 Ga. App. 295 , 797 S.E.2d 207 (2017).
Merger with malice murder conviction. - Trial court did not err in failing to merge the aggravated assault for which the defendant was sentenced into defendant's malice murder conviction because the two crimes were not established by the same conduct; the defendant's conduct did not establish the commission of both the aggravated assault and the murder because the aggravated assault was established by evidence that the defendant and the codefendant beat and strangled the victim, whereas the murder was established by evidence that they killed the victim by stabbing the victim's body. Hall v. State, 286 Ga. 358 , 687 S.E.2d 819 (2010).
Separate judgments of conviction and sentences for aggravated assault were vacated because the defendant was convicted of and sentenced for both the malice murders of the two victims and the aggravated assaults of those victims, and although there was no merger of those crimes as a matter of law, the record established that the aggravated assault convictions merged into the malice murder convictions as a matter of fact. Vergara v. State, 287 Ga. 194 , 695 S.E.2d 215 (2010).
Defendant's conviction and sentence for aggravated assault was vacated and the case was remanded to the trial court for resentencing because the aggravated assault conviction merged into the defendant's malice murder conviction as a matter of fact even though there was no merger of those crimes as a matter of law. Sharpe v. State, 288 Ga. 565 , 707 S.E.2d 338 (2011).
Defendant's conviction on a second aggravated assault should have merged into the malice murder conviction because the victim sustained two shots to the arm and one fatal shot to the back of the head, and the evidence did not authorize the finding of an additional "deliberate interval" between the second shot to the arm and the shot to the head; both were inflicted in close succession as the defendant confronted the victim. Ortiz v. State, 291 Ga. 3 , 727 S.E.2d 103 (2012).
Merger with felony murder. - Defendant's conviction for aggravated assault was not authorized because the count of the indictment that alleged aggravated assault had to be merged into the felony murder count; although the felony murder and the underlying felony were committed on different victims, the count of the indictment alleging felony murder set forth the aggravated assault against a victim as the underlying felony supporting the charge of felony murder. Glass v. State, 289 Ga. 542 , 712 S.E.2d 851 (2011).
Aggravated assault did not merge with armed robbery. - As the armed robberies and aggravated assaults the defendant was charged with were committed against different victims, the crimes did not merge as a matter of law or fact. Verdree v. State, 299 Ga. App. 673 , 683 S.E.2d 632 (2009).
Trial court did not err when the court refused to merge the defendant's aggravated assault and armed robbery convictions because the armed robbery and aggravated assault were separate and distinct acts; the victim's testimony showed that the armed robbery was complete before the commission of the aggravated assault. Brown v. State, 314 Ga. App. 198 , 723 S.E.2d 520 (2012).
Because an attempted armed robbery began when the defendant kicked down the victim's door, entered the victim's home with a firearm, and demanded that the victim give it up, and continued as the victim and a co-defendant struggled outside; after the victim was able to run away, the co-defendant shot the victim twice; the robbery and aggravated assault were separate offenses and did not merge. Cuyler v. State, 344 Ga. App. 532 , 811 S.E.2d 42 (2018), cert. denied, No. S18C0874, 2018 Ga. LEXIS 482 (Ga. 2018).
Aggravated assault and armed robbery should merge. - Trial court erred in failing to merge aggravated assault, O.C.G.A. § 16-5-21(a)(2), and armed robbery, O.C.G.A. § 16-8-41 , counts because the state relied on the same act of assault to establish defendant's guilt of aggravated assault and armed robbery, and although the state would have been able to indict the defendant for aggravated assault based on conduct separate and distinct from the defendant's act of hitting the victim in the head with a baseball bat, the indictment specifically charged the defendant with the offense of aggravated assault; while armed robbery requires proof of additional facts, like aggravated assault with intent to rob, aggravated assault under § 16-5-21(a)(2) does not require proof of a fact not required to establish armed robbery. Taylor v. State, 304 Ga. App. 395 , 696 S.E.2d 686 (2010).
Because the defendant's convictions for armed robbery and aggravated assault arose from the same act or transaction, the defendant's taking money from the victim at gunpoint, the defendant's aggravated assault conviction against that victim merged with the armed robbery conviction. Thomas v. State, 289 Ga. 877 , 717 S.E.2d 187 (2011).
Conviction for aggravated assault should have been merged with the defendant's conviction for armed robbery because the convictions both required proof of the same elements. Bradley v. State, 292 Ga. 607 , 740 S.E.2d 100 (2013).
Aggravated assault offense did not merge with kidnapping charge. - Defendant's conviction for aggravated assault, which was based on the defendant's striking the victim with a pistol, did not merge with the defendant's kidnapping conviction, which was based on the defendant's forcing the victim upstairs, because the assault occurred prior to the kidnapping and was not necessary to accomplish the kidnapping. Williams v. State, 295 Ga. App. 9 , 670 S.E.2d 828 (2008).
Trial court did not err under O.C.G.A. § 16-1-7 in failing to merge convictions for aggravated assault and aggravated battery with a conviction for kidnapping with bodily injury, as each crime required proof of at least one different element, and the state presented independent evidence to prove each individual crime as set out in the indictment. Evidence that the defendant pointed a gun at the victim and fired the gun at the floor near the victim, that the defendant used a wooden stick resembling a baseball bat to repeatedly hit the victim, and that the defendant hit and kicked the victim while the victim was tied up supported the three aggravated assault counts; aggravated battery was established by evidence that the defendant broke the victim's nose, wrist, and shoulder and knocked out two teeth and by evidence that the defendant burned the victim's hand and caused the victim to be bitten by fire ants; and kidnapping with bodily injury was proven by evidence of injuries to the victim due to being bound by rope. Rouse v. State, 295 Ga. App. 61 , 670 S.E.2d 869 (2008).
Trial court correctly sentenced the defendant for both aggravated assault, O.C.G.A. § 16-5-21 , and kidnapping with bodily injury, O.C.G.A. § 16-5-40 , because the crimes did not merge since each of the two crimes required proof of at least one fact that the other did not, and the state provided such proof. Kidnapping required proof of asportation, holding the victim against the victim's will, and bodily injury, which was not required to prove aggravated assault; and aggravated assault required proof that the defendant used the defendant's hands, with either the intent to cause a violent injury or which placed the victim in reasonable fear of receiving a violent injury, but the kidnapping charge did not require such proof. Mayberry v. State, 301 Ga. App. 503 , 687 S.E.2d 893 (2009).
Convictions for aggravated assault, under O.C.G.A. § 16-5-21(a)(2), and kidnapping, under O.C.G.A. § 16-5-40 , did not merge because the aggravated assault was completed when the defendant pointed a gun at the victim and grabbed the victim around the neck, while the asportation for the kidnapping occurred when the defendant then dragged the victim into another room. The movement of the victim from one room to another within the hotel room, even though of minimal duration, created an additional danger to the victim by enhancing the defendant's control over the victim, and it was not an inherent part of the aggravated assault. Williams v. State, 307 Ga. App. 675 , 705 S.E.2d 906 (2011).
Merger with involuntary manslaughter. - Defendant's sufficiency challenge became moot on appeal as the trial court merged the involuntary manslaughter count into the aggravated assault count for sentencing purposes. Ramirez v. State, 288 Ga. App. 249 , 653 S.E.2d 837 (2007).
Merger with voluntary manslaughter. - Trial court erred in entering a judgment of conviction against the defendant for aggravated assault, O.C.G.A. § 16-5-21(a)(2), because that conviction should have been merged into the defendant's conviction for voluntary manslaughter, O.C.G.A. § 16-5-2(a) ; the defendant was charged in the indictment with voluntary manslaughter and aggravated assault for the stabbing of the victim, and the undisputed evidence at trial showed that the victim was stabbed one time in the chest, causing the victim's death. Muckle v. State, 307 Ga. App. 634 , 705 S.E.2d 721 (2011).
Trial court erred in failing to merge both defendants' convictions for voluntary manslaughter and aggravated assault with a deadly weapon because the indictments charged the defendants with felony murder by alleging that the defendants committed aggravated assault, but the court then charged the defendants with aggravated assault based on the exact same conduct; and, although the jury convicted the defendants of voluntary manslaughter as a lesser-included offense of felony murder, it, nevertheless, followed that the defendants' convictions for aggravated assault merged as a matter of fact into the defendants convictions for voluntary manslaughter. Hamlette v. State (two cases), 353 Ga. App. 640 , 839 S.E.2d 161 (2020).
Rule of lenity not applicable. - Because the defendant could commit felony obstruction only if the defendant offered violence against an officer while the officer was in the lawful discharge of the officer's official duties and felony obstruction could occur regardless of whether it involved the use of an offensive weapon likely to result in serious bodily injury, unlike aggravated assault, the two offenses were not proved by the same evidence and the rule of lenity did not apply. Gordon v. State, 337 Ga. App. 64 , 785 S.E.2d 900 (2016).
Trial court did not err by not applying the rule of lenity in sentencing the defendant on criminal attempt to commit a felony, rather than on aggravated assault, because the statutory language and indictment showed that the two counts did not address the same criminal conduct as the criminal attempt (of murder) included the substantial step of pulling the trigger of the handgun aimed at the victim's head, which additional step was not required for the commission of aggravated assault. Gonzalez v. State, 352 Ga. App. 83 , 833 S.E.2d 727 (2019).
Corroborating accomplice testimony sufficient to support conviction. - Because defendant's four accomplices in commission of multiple armed robberies and aggravated assaults corroborated each other as to defendant's participation in the crimes, convictions on those offenses were upheld on appeal. Hawkins v. State, 290 Ga. App. 686 , 660 S.E.2d 474 (2008).
Because of the corroborating testimony from the defendant's two accomplices, the accomplice testimony was admissible to support the defendant's conviction for aggravated assault, O.C.G.A. § 16-5-21(a)(3), and aggravated battery, O.C.G.A. § 16-5-24(a) . Scott v. State, 302 Ga. App. 111 , 690 S.E.2d 242 (2010).
There was sufficient corroboration of the defendant as a perpetrator of the principal crime, and, ultimately, sufficient evidence to support the defendant's convictions for armed robbery, aggravated assault, false imprisonment, possession of a firearm during the commission of a felony, and burglary because there was circumstantial evidence to show that the defendant committed a similar transaction after the first incident, that the same gun an accomplice bought and used in the first crime was used in the second crime and ended up in a car at the house of the defendant's mother afterwards, and that the defendant was nervous and felt guilty about events that the defendant participated in with the accomplice, whom the defendant had only known a short time; that corroborative evidence connected the accomplice to the crimes. Ward v. State, 304 Ga. App. 517 , 696 S.E.2d 471 (2010).
Evidence was sufficient to support the defendant's convictions for armed robbery, burglary, aggravated assault, criminal attempt to commit armed robbery, criminal attempt to commit burglary, and sexual battery because two codefendant's testified that the defendant participated in the home invasion, and that testimony was sufficient to sustain the defendant's conviction for the crimes committed at the home. Martinez v. State, 306 Ga. App. 512 , 702 S.E.2d 747 (2010).
Evidence was sufficient to authorize a rational trier of fact to find the defendants guilty beyond a reasonable doubt of malice murder and aggravated assault because the independent corroborating evidence in the case was substantial; an accomplice's testimony implicating the defendants was corroborated by the aggravated assault victim, who positively identified one of the defendants, that defendant's own admission to a woman in the defendant's apartment, evidence that the second defendant had sustained shotgun wounds on the evening of the crimes, ballistics evidence tying that defendant to the crime scene, and the presence of that defendant's blood on the first defendant's clothing and in the getaway vehicle. Ward v. State, 288 Ga. 641 , 706 S.E.2d 430 (2011).
Evidence was sufficient to support the defendant's convictions for armed robbery, aggravated assault with a deadly weapon, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon beyond a reasonable doubt, and the trial court properly denied the defendant's motions for directed verdict and new trial because the jury could have determined that a witness's testimony provided corroboration for the codefendant's identification of the defendant; further, corroboration for the testimony of the witness and the codefendant was provided by a neighbors' description of the robbery and shooting, by the description of the codefendant's wife of the codefendant's demeanor and behavior that day, and by physical evidence found at the scene. Williamson v. State, 308 Ga. App. 473 , 708 S.E.2d 57 (2011).
Parties to crime. - Evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that defendants were parties to the aggravated assault because the defendants supplied the shooter with the weapons and the bullets knowing that the shooter intended to use those items for a personal avengance against the intended victim and the shooter also attempted to fire at the occupants of the van. Cammon v. State, 269 Ga. 470 , 500 S.E.2d 329 (1998).
Evidence that the defendant was seen making notes at the crime scene the day of the shooting, that the defendant accompanied the coconspirator knowing that the coconspirator intended to rob a cab driver, and that the defendant drove the coconspirator away after the shooting of the cab driver authorized the jury to find the defendant was a party to the crime of aggravated assault committed with a deadly weapon, and hence to felony murder. Brown v. State, 278 Ga. 724 , 609 S.E.2d 312 (2004).
Evidence was sufficient to show that a juvenile was a party to aggravated assault on the victim when the defendant and three other men approached the victim with guns, placing the victim in reasonable apprehension of immediate injury, and the victim identified the juvenile to police as one of the men. In the Interest of M.D.L., 271 Ga. App. 738 , 610 S.E.2d 687 (2005).
Despite the defendant's claim of innocence, convictions for armed robbery and two counts of aggravated assault were upheld on appeal, given sufficient evidence showing that the defendant waited at the scene of the robbery and then assisted the codefendants in an attempted escape; hence, the defendant was not entitled to a directed verdict of acquittal and the state was not required to exclude every reasonable hypothesis except guilt as required by former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6 ). Jordan v. State, 281 Ga. App. 419 , 636 S.E.2d 151 (2006).
Defendant's aggravated assault and robbery convictions were upheld on appeal, as evidence including the defendant's admission and flight from the scene authorized the jury to conclude that the defendant went to an apartment complex intending to participate in the robbery, and in fact participated in the robbery by acting as a lookout and an additional show of force; hence, the jury was authorized to infer criminal intent from the defendant's conduct before, during, and after the commission of the crime. Millender v. State, 286 Ga. App. 331 , 648 S.E.2d 777 (2007), cert. denied, No. S07C1717, 2008 Ga. LEXIS 80 (Ga. 2008).
Evidence supported a conviction of aggravated assault with a knife when two codefendants repeatedly struck the victim, the defendant struck the victim and threatened the victim's life, the defendant and the first codefendant entered a pharmacy to buy duct tape, and while alone with the victim, the second codefendant held a knife on the victim where the second codefendant could reach the knife and where the victim could see the knife; this authorized the conclusion that the second codefendant committed aggravated assault and that the defendant was a party. Rhines v. State, 288 Ga. App. 128 , 653 S.E.2d 500 (2007).
Evidence established more than the mere presence of the defendant during the commission of the offense of aggravated assault and felony murder predicated on aggravated assault: (1) the defendant assaulted the victim during the drive to the murder scene; (2) the defendant participated in a plot to burn the victim's body and stood lookout while the body was buried; (3) the defendant did not attempt to report the crime; and (4) the defendant watched as another person stabbed the victim before attempting to intervene. Navarrete v. State, 283 Ga. 156 , 656 S.E.2d 814 (2008), cert. denied, 129 S. Ct. 104 , 172 L. Ed. 2 d 33 (2008).
Evidence that the defendant drove a codefendant away from the crime scene in a subdivision after the codefendant shot the victim and that a box of bullets was found in the defendant's car when the defendant was later arrested did not support the defendant's convictions of aggravated assault and of possession of a firearm during the commission of a felony. The defendant's possession of a box of bullets of the same caliber as those used in the murder weapon in no way proved the defendant's possession of the weapon during the commission of the assault; driving the codefendant away with knowledge that the codefendant had committed the crime did not, in and of itself, render the defendant guilty as a party to the crime under O.C.G.A. § 16-2-20 ; and to the extent that the evidence that the defendant's car had been parked at some point with the car's front end facing in the direction going out of the subdivision constituted circumstantial evidence of guilt, the evidence did not exclude every other reasonable hypothesis, as required by former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6 ). Ratana v. State, 297 Ga. App. 747 , 678 S.E.2d 193 (2009).
Evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty as a party to malice murder, aggravated assault, possession of a firearm during the commission of a crime, and tampering with evidence because the evidence showed that before, during, and after the commission of the crimes, the defendant was present and shared companionship with the defendant's brothers; the state's evidence authorized the inferences that the defendant, who had assisted the defendant's brothers in attacking the cousin of one of the victims, was not an innocent bystander, that the defendant drove the defendant's brothers to the crime scene knowing that one of the brothers was armed, that the defendant willingly stayed with the defendant's brothers while the brothers tried to start a fight and threatened to kill someone, and that the defendant ran to the defendant's car and drove the brothers away immediately after the brothers had shot one of the victims. Teasley v. State, 288 Ga. 468 , 704 S.E.2d 800 (2010).
State proved that the defendant possessed the intent required to commit the predicate aggravated assault and conspiracy felonies for the felony murder conviction because evidence was sufficient to authorize a rational jury to conclude that the defendant, with a coparty and coconspirator, intended to rob the victim using a deadly weapon, that the victim was reasonably apprehensive of receiving a violent injury as a result of their intentional acts, and that the defendant was guilty beyond a reasonable doubt as a party to the crimes for which the defendant was convicted pursuant to O.C.G.A. § 16-2-2 . Johnson v. State, 289 Ga. 498 , 713 S.E.2d 376 (2011).
State did not have to prove the defendant had knowledge of the weapon to be convicted of felony murder, aggravated assault with a deadly weapon, armed robbery, hijacking a motor vehicle, possession of a firearm during a felony, conspiracy to commit armed robbery, and conspiracy to commit hijacking a motor vehicle. The evidence was sufficient to authorize a rational jury to find that the defendant conspired to rob the victims and murder was a reasonably foreseeable consequence of the conspiracy. Hicks v. State, 295 Ga. 268 , 759 S.E.2d 509 (2014).
Evidence was sufficient to convict the defendant as a party to the crime of the aggravated assaults of the two victims because the jury could have concluded that the defendant accompanied the others to a house with the intent to invade a rival gang's neighborhood and that the defendant brought a gun in a black bag for that purpose; the co-defendants and other witnesses testified that the defendant had a gun at the time of the shooting, supporting an inference that the defendant displayed the gun, even if the defendant did not shoot the gun; and, after the shooting, the defendant came into the house, wiping off a gun. Taylor v. State, 331 Ga. App. 577 , 771 S.E.2d 224 (2015).
Coercion defense rejected. - In a bench trial for armed robbery and aggravated assault, the evidence authorized the trial court to conclude that the state had sufficiently disproved the defendant's defense that the defendant had been coerced by one of the defendant's companions into committing the crimes; the defendant had not mentioned coercion in either of the defendant's two statements to police, one in which the defendant had admitted to committing the crimes, and it was not until trial that the defendant claimed coercion. Edwards v. State, 285 Ga. App. 227 , 645 S.E.2d 699 (2007).
Identification of defendant. - Evidence was sufficient to support defendant's conviction of aggravated assault, as defendant's challenge to that conviction was meritless; defendant's contention that the evidence was insufficient had to be rejected because it was premised on the argument that the victims' identification of defendant as a perpetrator was tainted by an impermissibly suggestive photographic lineup and the photographic lineup procedure was not impermissibly suggestive. Evans v. State, 261 Ga. App. 22 , 581 S.E.2d 676 (2003).
Because a burglary victim recognized the defendant before a photographic lineup was introduced, the defendant did not show deficient performance or prejudice based on trial counsel's failure to object to the lineup; in any event, the evidence was sufficient to sustain the convictions for armed robbery, aggravated assault, burglary, making terroristic threats, and possession of a firearm during the commission of the felonies under O.C.G.A. §§ 16-5-21(a)(1), (a)(2), 16-7-1(a) , 16-8-41(a) , 16-11-37(a) , and 16-11-106(b)(1). Williams v. State, 270 Ga. App. 845 , 608 S.E.2d 310 (2004).
Sufficient evidence supported convictions for aggravated assault, kidnapping, armed robbery, and possession of a firearm during the commission of a felony under O.C.G.A. § 16-11-106 , even though none of the victims could identify the defendant as the gunman in the robbery due to the fact that the defendant wore a mask, because defendant was found shortly after the robbery with cash, weapons, a ski mask, a car and clothing matching the victims' description; surveillance videotape of the robbery was shown to the jury to determine whether defendant was the person on the videotape. Johnson v. State, 277 Ga. App. 41 , 625 S.E.2d 411 (2005).
Defendant's aggravated assault conviction was upheld on appeal, as the victim's identification of the defendant as the perpetrator of the aggravated assault, both during and after the altercation, was sufficient evidence to uphold the conviction, and evidence of a subsequent altercation between the two, like evidence of a prior difficulty, was probative evidence that the victim immediately identified the defendant to police on the day of the incident. Bond v. State, 283 Ga. App. 620 , 642 S.E.2d 223 (2007).
Because the evidence showed that the victim sufficiently identified the defendant as the perpetrator of an aggravated assault and armed robbery (1) to officers at the scene; (2) by means of a photographic lineup; and (3) at trial, the appeals court rejected the defendant's sufficiency challenge as to that element. Wallace v. State, 289 Ga. App. 497 , 657 S.E.2d 874 (2008).
Sufficient evidence supported the defendant's convictions of armed robbery, O.C.G.A. § 16-8-41(a) , rape, O.C.G.A. § 16-6-1(a)(1), aggravated assault, O.C.G.A. § 16-5-21(a)(2), aggravated sexual battery, O.C.G.A. § 16-6-22.2(b) , kidnapping, O.C.G.A. § 16-5-40(a) , and aggravated sodomy, O.C.G.A. § 16-6-2(a)(2), involving four different victims on three separate dates; both the husband and the wife, the victims in the first criminal incident, identified the defendant in court as the perpetrator of the crimes. Two separate DNA analyses testified to by two forensic biologists showed that the defendant's sperm was present in the vaginas of the other two female victims. Robins v. State, 298 Ga. App. 70 , 679 S.E.2d 92 (2009).
Trial court did not err in denying the defendant's motion for new trial under O.C.G.A. § 5-5-21 after a jury convicted the defendant of kidnapping with bodily injury, aggravated assault, and false imprisonment because the evidence was legally sufficient to support the crimes of which the defendant was convicted; the victim was shown a photo array containing six photographs and immediately picked the defendant's photo as the person who held a gun to the victim's head during the incident, and the victim also identified the defendant in court. Delgiudice v. State, 308 Ga. App. 397 , 707 S.E.2d 603 (2011).
Trial court authorized to find defendant guilty beyond reasonable doubt. - See McKinney v. State, 166 Ga. App. 718 , 305 S.E.2d 446 (1983).
Defendant's admission sufficient. - Defendant's recorded admission to a co-worker that the defendant killed the victim with the assistance of a codefendant was sufficient to support a convictions for murder and aggravated assault. Williams v. State, 280 Ga. 539 , 630 S.E.2d 410 (2006).
Evidence sufficient for conviction. - See Carter v. State, 168 Ga. App. 177 , 308 S.E.2d 438 (1983); Davis v. State, 168 Ga. App. 272 , 308 S.E.2d 602 (1983); Hall v. State, 172 Ga. App. 371 , 323 S.E.2d 261 (1984); Hambrick v. State, 174 Ga. App. 444 , 330 S.E.2d 383 (1985); Lucas v. State, 174 Ga. App. 580 , 330 S.E.2d 792 (1985); Rucker v. State, 177 Ga. App. 779 , 341 S.E.2d 228 (1986); Maxwell v. State, 178 Ga. App. 20 , 342 S.E.2d 8 (1986); Gilstrap v. State, 256 Ga. 20 , 342 S.E.2d 667 (1986); Laidler v. State, 180 Ga. App. 213 , 348 S.E.2d 739 (1986); Roberson v. State, 180 Ga. App. 406 , 349 S.E.2d 39 (1986); Hall v. State, 180 Ga. App. 366 , 349 S.E.2d 255 (1986); Nelson v. State, 181 Ga. App. 455 , 352 S.E.2d 636 (1987); Hanvey v. State, 186 Ga. App. 690 , 368 S.E.2d 357 (1988); Conley v. State, 258 Ga. 339 , 368 S.E.2d 502 (1988); Mapp v. State, 258 Ga. 273 , 368 S.E.2d 511 (1988); Beal v. State, 186 Ga. App. 806 , 368 S.E.2d 567 (1988); Roberson v. State, 186 Ga. App. 808 , 368 S.E.2d 568 (1988); Jackson v. State, 258 Ga. 322 , 368 S.E.2d 771 (1988); Walker v. State, 258 Ga. 443 , 370 S.E.2d 149 (1988); Adams v. State, 187 Ga. App. 340 , 370 S.E.2d 197 (1988); McKenzie v. State, 187 Ga. App. 840 , 371 S.E.2d 869 (1988); Young v. State, 188 Ga. App. 601 , 373 S.E.2d 837 (1988); Fowler v. State, 188 Ga. App. 873 , 374 S.E.2d 805 (1988); Benford v. State, 189 Ga. App. 761 , 377 S.E.2d 530 (1989); Seagraves v. State, 191 Ga. App. 207 , 381 S.E.2d 523 (1989); Davis v. State, 192 Ga. App. 47 , 383 S.E.2d 615 (1989); Arnold v. State, 193 Ga. App. 206 , 387 S.E.2d 417 (1989); Henderson v. State, 200 Ga. App. 200 , 407 S.E.2d 448 (1991); Brown v. State, 200 Ga. App. 537 , 408 S.E.2d 836 (1991); Turner v. State, 205 Ga. App. 745 , 423 S.E.2d 439 (1992); In re J.K.D., 211 Ga. App. 776 , 440 S.E.2d 524 (1994); Brown v. State, 215 Ga. App. 544 , 451 S.E.2d 787 (1994); Adside v. State, 216 Ga. App. 129 , 453 S.E.2d 139 (1995); Humphrey v. State, 218 Ga. App. 574 , 462 S.E.2d 641 (1995); Durden v. State, 219 Ga. App. 732 , 466 S.E.2d 641 (1995); Matthews v. State, 224 Ga. App. 407 , 481 S.E.2d 235 (1997); Dukes v. State, 224 Ga. App. 305 , 480 S.E.2d 340 (1997); Livingston v. State, 225 Ga. App. 512 , 484 S.E.2d 311 (1997); Johnson v. State, 225 Ga. App. 863 , 485 S.E.2d 551 (1997); McSears v. State, 226 Ga. App. 90 , 485 S.E.2d 589 (1997); Taylor v. State, 226 Ga. App. 254 , 485 S.E.2d 830 (1997); Miller v. State, 228 Ga. App. 754 , 492 S.E.2d 734 (1997); Osborne v. State, 228 Ga. App. 758 , 492 S.E.2d 732 (1997), overruled on other grounds, Dunagan v. State, 269 Ga. 590 , 502 S.E.2d 726 (1998); Rivers v. State, 229 Ga. App. 12 , 493 S.E.2d 2 (1997); Hawkins v. State, 230 Ga. App. 627 , 497 S.E.2d 386 (1998); Louis v. State, 230 Ga. App. 897 , 497 S.E.2d 824 (1998); In re J.J.K., 232 Ga. App. 470 , 502 S.E.2d 313 (1998); Cheney v. State, 233 Ga. App. 66 , 503 S.E.2d 327 (1998); Vick v. State, 237 Ga. App. 762 , 516 S.E.2d 815 (1999); Butura v. State, 239 Ga. App. 132 , 519 S.E.2d 18 (1999); Favors v. State, 238 Ga. App. 234 , 518 S.E.2d 444 (1999); Anderson v. State, 238 Ga. App. 866 , 519 S.E.2d 463 (1999); Young v. State, 238 Ga. App. 555 , 519 S.E.2d 481 (1999); Grant v. State, 239 Ga. App. 608 , 521 S.E.2d 654 (1999); Wright v. State, 240 Ga. App. 763 , 525 S.E.2d 143 (1999); Lowery v. State, 242 Ga. App. 375 , 530 S.E.2d 22 (2000); Carr v. State, 243 Ga. App. 557 , 533 S.E.2d 756 (2000); Allen v. State, 243 Ga. App. 730 , 534 S.E.2d 190 (2000); White v. State, 244 Ga. App. 54 , 537 S.E.2d 364 (2000), aff'd, 273 Ga. 787 , 546 S.E.2d 514 (2001); Green v. State, 244 Ga. App. 697 , 536 S.E.2d 565 (2000); Strange v. State, 244 Ga. App. 635 , 535 S.E.2d 315 (2000); Self v. State, 245 Ga. App. 270 , 537 S.E.2d 723 (2000); Shepherd v. State, 245 Ga. App. 386 , 537 S.E.2d 777 (2000); McLeod v. State, 245 Ga. App. 668 , 538 S.E.2d 759 (2000); Hodges v. State, 248 Ga. App. 23 , 545 S.E.2d 157 (2000); Johnson v. State, 247 Ga. App. 157 , 543 S.E.2d 439 (2000); Young v. State, 245 Ga. App. 684 , 538 S.E.2d 760 (2000); Free v. State, 245 Ga. App. 886 , 539 S.E.2d 213 (2000); Durrance v. State, 250 Ga. App. 185 , 549 S.E.2d 406 (2001); In the Interest of C.A., 249 Ga. App. 280 , 548 S.E.2d 37 (2001); Etheridge v. State, 249 Ga. App. 111 , 547 S.E.2d 744 (2001); Thurman v. State, 249 Ga. App. 390 , 547 S.E.2d 715 (2001); Davis v. State, 249 Ga. App. 579 , 548 S.E.2d 678 (2001); Allsup v. State, 250 Ga. App. 53 , 550 S.E.2d 465 (2001); Hill v. State, 276 Ga. 220 , 576 S.E.2d 886 (2003); Jackson v. State, 259 Ga. App. 727 , 578 S.E.2d 298 (2003); Duckett v. State, 259 Ga. App. 814 , 578 S.E.2d 524 (2003); Rust v. State, 264 Ga. App. 893 , 592 S.E.2d 525 (2003); Wallace v. State, 279 Ga. 26 , 608 S.E.2d 634 (2005); Miller v. State, 271 Ga. App. 524 , 610 S.E.2d 156 (2005); Tiggs v. State, 287 Ga. App. 291 , 651 S.E.2d 209 (2007); John v. State, 282 Ga. 792 , 653 S.E.2d 435 (2007); Walker v. State, 282 Ga. 774 , 653 S.E.2d 439 (2007), cert. denied, 129 S. Ct. 481 , 172 L. Ed. 2 d 344 (2008), overruled on other grounds, No. S10P1859, 2011 Ga. LEXIS 267 (Ga. 2011); Bradley v. State, 283 Ga. 45 , 656 S.E.2d 842 (2008); McGordon v. State, 298 Ga. App. 161 , 679 S.E.2d 743 (2009); Hargrove v. State, 299 Ga. App. 27 , 681 S.E.2d 707 (2009); Clark v. State, 299 Ga. App. 558 , 683 S.E.2d 93 (2009); In the Interest of J. W., 306 Ga. App. 339 , 702 S.E.2d 649 (2010).
Evidence was sufficient to find the defendant guilty of aggravated assault when the defendant, a passenger in a taxicab, put a knife to the throat of the driver and forced the driver to a different destination, and a struggle ensued resulting in the driver restraining the defendant. Fair v. State, 172 Ga. App. 49 , 321 S.E.2d 790 (1984); Black v. State, 261 Ga. 791 , 410 S.E.2d 740 (1991), cert. denied, 506 U.S. 839, 113 S. Ct. 118 , 121 L. Ed. 2 d 74 (1992).
When the defendant was found inside his former girlfriend's broken-into apartment, hid in a bathroom enclosure, with a removed kitchen knife and a letter recognizing defendant's own propensity for violence, the evidence was sufficient to authorize the jury to conclude that the defendant was guilty beyond a reasonable doubt of burglary since there was sufficient evidence that the defendant intended to commit an aggravated assault. Johnson v. State, 207 Ga. App. 34 , 427 S.E.2d 29 (1993).
Rational trier of fact could have found the defendant guilty of murder, aggravated assault, and possession of a firearm during the commission of a crime beyond a reasonable doubt. Walden v. State, 264 Ga. 92 , 441 S.E.2d 247 (1994).
In light of the overwhelming evidence produced at trial, even though one victim expressed some uncertainty regarding defendant's identity, a rational trier of fact could determine defendant's guilt beyond a reasonable doubt of armed robbery, aggravated assault, and possession of a firearm by a convicted felon. Billings v. State, 212 Ga. App. 125 , 441 S.E.2d 262 (1994).
Viewed in a light most favorable to the verdict, evidence that the defendant identified the defendant as the person who shot the victim was sufficient to support a conviction for aggravated assault. Cyrus v. State, 231 Ga. App. 71 , 498 S.E.2d 554 (1998).
Evidence was sufficient to enable a rational trier of fact to find defendant guilty of aggravated assault beyond a reasonable doubt. Lattimer v. State, 231 Ga. App. 594 , 499 S.E.2d 671 (1998).
Voice identification testimony, along with circumstantial evidence showing invaders were familiar with the internal operations and layout of the store, allowed the jury to reach the conclusion that defendant was guilty of armed robbery, aggravated assault and possession of a firearm during the commission of a felony. Whitehead v. State, 232 Ga. App. 140 , 499 S.E.2d 922 (1998).
Evidence was sufficient to convict defendant of robbery, aggravated assault, felony obstruction of a law enforcement officer, attempting to elude a law enforcement officer and driving under the influence of drugs. Chisholm v. State, 231 Ga. App. 835 , 500 S.E.2d 14 (1998).
Evidence, which included a positive identification by two eyewitnesses who testified that the defendants kicked the victim repeatedly, was sufficient to support the guilty verdicts. Cox v. State, 242 Ga. App. 334 , 528 S.E.2d 871 (2000).
Evidence was sufficient to convict defendant of malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of a crime against a person because: (1) the codefendant jumped out of the car defendant was driving and told the victim and two other men to empty their pockets as the codefendant was robbing the victims and then the codefendant began shooting; and (2) the victim was shot in the head and later died. Thomas v. State, 275 Ga. 882 , 572 S.E.2d 537 (2002).
Evidence was sufficient to support defendant's conviction for aggravated assault under O.C.G.A. § 16-5-21 where four victims testified that they either saw or heard shots fired from defendant's truck and were frightened as a result. Tanner v. State, 259 Ga. App. 94 , 576 S.E.2d 71 (2003).
Evidence was sufficient to support convictions for felony murder, aggravated assault, and possession of a firearm during the commission of a crime where the record revealed that the defendant was riding in a car, made a gang sign to some people on the street, and in response to their obscene gesture, the defendant took out a gun and fired at them, killing two people and wounding one; the defendant's contention that the defendant was acting to protect the defendant and others in the car, that the defendant fired into the air, and that the defendant did not mean to hurt anyone was found to lack merit. Ingram v. State, 276 Ga. 223 , 576 S.E.2d 855 (2003).
Evidence was sufficient to allow a rational trier of fact to find defendant guilty of aggravated assault beyond a reasonable doubt where defendant reached around the victim and cut the victim's throat, and then stabbed the victim twice in the back. Bell v. State, 276 Ga. 206 , 576 S.E.2d 876 (2003).
Evidence was sufficient to support defendant's conviction of aggravated assault where defendant repeatedly hit the victim with a skillet, and knocked the victim unconscious. Lord v. State, 259 Ga. App. 449 , 577 S.E.2d 103 (2003).
Evidence, including the victim's unequivocal identification of defendant from a book of 150 pictures and the victim's identification of defendant at trial, was sufficient to allow a rational trier of fact to find defendant guilty of aggravated assault beyond a reasonable doubt. Baker v. State, 259 Ga. App. 433 , 577 S.E.2d 282 (2003), overruled on other grounds, Schofield v. Holsey, 281 Ga. 809 , 642 S.E.2d 56 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Evidence was sufficient to support the defendant's conviction of malice murder, felony murder, burglary, aggravated assault, kidnapping with bodily injury, and possession of a firearm during the commission of a felony where the defendant: (1) planned the crimes, and was armed with a gun and handcuffs; (2) broke into the defendant's in-laws' house after severing their phone line; (3) shot and killed the defendant's father-in-law and wounded the defendant's mother-in-law while they lay in bed; (4) handcuffed the defendant's bleeding mother-in-law to the mother-in-law's nine-year-old child and left them tethered to a bed rail in a room with the mother-in-law's dead spouse and the defendant's two-year-old child; and (5) abducted the defendant's estranged spouse and the spouse's 17 year-old sibling to a mobile home where the defendant made them take showers while the defendant watched, and then raped them both. Sallie v. State, 276 Ga. 506 , 578 S.E.2d 444 , cert. denied, 540 U.S. 902, 124 S. Ct. 251 , 157 L. Ed. 2 d 185 (2003).
Evidence was sufficient to support convictions of aggravated assault with a knife, aggravated assault with defendant's fists and feet, and false imprisonment, where the police found defendant's love interest laying on the floor of a hotel room, bruised, with knives in the hotel room, and the love interest testified that defendant had kicked and hit the love interest. Banks v. State, 260 Ga. App. 515 , 580 S.E.2d 308 (2003).
Circumstantial evidence supported defendant's convictions for aggravated assault, burglary, armed robbery, cruelty to children, theft by receiving stolen property, and possession of a firearm as: (1) defendant was driving a stolen car that defendant knew was not defendant's own; (2) defendant returned to the victims' house, which defendant had left only a short time before, slowly circling the victims' residence, pointing at the house; (3) defendant appeared to let codefendants out of the car for a specific purpose, since defendant saw them enter the victims' home and waited for them, demonstrating that defendant knew they would return shortly; (4) when codefendants ran back to the car and jumped in, defendant drove off in response to their rapid return; and (5) shortly thereafter, defendant abandoned the stolen car. Parnell v. State, 260 Ga. App. 213 , 581 S.E.2d 263 (2003).
Evidence that defendant unlawfully entered the victim's residence with intent to commit assault therein and was in possession of a gun was sufficient for conviction. Simmons v. State, 262 Ga. App. 164 , 585 S.E.2d 93 (2003).
Defendant was properly found guilty of aggravated assault under O.C.G.A. § 16-5-21 , aggravated assault with intent to rob under O.C.G.A. § 16-5-21 , and possession of a firearm during the commission of a felony under O.C.G.A. § 16-11-106 where the footprints observed along the path between the crime scene and the area where defendant was apprehended matched the size and soles of defendant's shoes and defendant was identified as the robber based on defendant's clothing, shoes and "build." Mack v. State, 263 Ga. App. 186 , 587 S.E.2d 132 (2003).
Even though the store clerk did not testify, the evidence of the store surveillance videotape of defendant waiving a gun at the store clerk was sufficient to support the defendant's conviction for aggravated assault, despite the defendant's contentions that the videotape was ambiguous as the weight and credibility to be assigned to the videotape was solely within the purview of the jury. Cecil v. State, 263 Ga. App. 48 , 587 S.E.2d 197 (2003).
Evidence that defendant, who was seated in the passenger seat of an automobile, and the victim, who was standing outside the automobile, argued, that the victim hit defendant, and that defendant then shot the victim, paralyzing the victim, was sufficient to sustain defendant's aggravated assault conviction. Bailey v. State, 263 Ga. App. 614 , 588 S.E.2d 807 (2003).
Defendant was properly convicted of aggravated assault for participating in breaking down the door of an apartment belonging to the victim and the victim's spouse because the spouse was dizzy and crying during the incident in which shots were fired. Meadows v. State, 264 Ga. App. 160 , 590 S.E.2d 173 (2003).
Rational trier of fact was authorized to find that both defendants burglarized the victims' residence; that, once inside, they took money, clothing, and other personal property by use of a gun; that the first defendant also committed an aggravated assault on the victim by striking the victim in the head with a handgun and was, therefore, in possession of a firearm during the commission of a crime; and that both defendants, along with their cohorts, had been in possession of the cocaine which was tossed out the vehicle they were riding in and found along the roadway. Davis v. State, 264 Ga. App. 221 , 590 S.E.2d 192 (2003).
When defendant robbed victims at gunpoint with two accomplices, the testimony of one accomplice that defendant was involved in the robbery was sufficient to corroborate testimony to the same effect from defendant's other accomplice and sustain defendant's convictions for armed robbery and aggravated assault, under O.C.G.A. §§ 16-8-41(a) and 16-5-21(a)(1), (2). Gallimore v. State, 264 Ga. App. 629 , 591 S.E.2d 485 (2003).
Evidence was sufficient to support defendant's conviction for arson, felony murder, and aggravated assault, resulting from a fire set at a residence occupied by defendant's sister-in-law, her four children, and her 12-year-old brother where: (1) defendant confronted defendant's sister-in-law at her home, alleging that she had stolen items from defendant's mobile home; (2) a physical altercation ensued between defendant and the sister-in-law; (3) defendant retrieved a gasoline can from defendant's car, poured gasoline onto the back door of the sister-in-law's home, and ignited it; and (4) the sister-in-law's three-year-old child died from the injuries sustained in the fire. Tarvin v. State, 277 Ga. 509 , 591 S.E.2d 777 (2004).
Evidence was sufficient to affirm defendant's aggravated assault conviction; whether defendant engaged in unprovoked attacks, acted in self-defense, or acted in defense of the defendant's love interest was for the jury to resolve, and it obviously resolved the question in defendant's disfavor. Chalvatzis v. State, 265 Ga. App. 699 , 595 S.E.2d 558 (2004).
Since the jury was to weigh the credibility of the witnesses testimony and was instructed on self defense, accident, and criminal intent, its decision to believe the victim's and the victim's love interest's story regarding how a stabbing occurred instead of defendant's version of the events and its subsequent decision related to defendant's intent in the stabbing, were controlling on appeal and was sufficient for defendant's conviction for aggravated assault. Hazelwood v. State, 265 Ga. App. 709 , 595 S.E.2d 564 (2004).
Evidence was sufficient to show that defendant committed an aggravated assault against the victims where it showed that after one victim separated defendant and defendant's sibling, who were involved in a minor altercation, defendant left and came back with a gun, which defendant fired into the truck in which the victims were sitting; accordingly, the evidence showed defendant intended to commit violence to the person of another. Bishop v. State, 266 Ga. App. 129 , 596 S.E.2d 674 (2004).
Evidence of defendant's voluntary and willing participation in the crimes, through providing the use of defendant's car to transport the other three named in the indictment to and from the scene and waiting in the vehicle while two of them committed aggravated assault, burglary, murder, and aggravated robbery, supported defendant's convictions for the same as a co-conspirator. Silvers v. State, 278 Ga. 45 , 597 S.E.2d 373 (2004).
Evidence was sufficient to sustain defendant's convictions as a party to the offenses of armed robbery, kidnapping, false imprisonment, burglary, and aggravated assault with a deadly weapon, in violation of O.C.G.A. §§ 16-5-21 , 16-5-40 , 16-5-41 , 16-7-1 , and 16-8-41 , because: (1) defendant received information from the defendant's love interest, about the victims' house, the location of safes, where money was located, and about the alarm system; (2) the day after the home invasion the love interest saw defendant and defendant showed the love interest a stack of cash, and defendant told the love interest it might be the victim's money; and (3) an FBI informant met with defendant and defendant told the informant that defendant had been shorted money from the robbery, and that defendant got the layout of the house from the former daughter-in-law. Pope v. State, 266 Ga. App. 658 , 598 S.E.2d 48 (2004).
Victim's testimony that the victim saw defendant remove what the victim thought was a gun from defendant's waistband, heard a clicking noise, and was so afraid that defendant would shoot victim that the victim jumped from a moving car, after which the victim heard what sounded like a shot being fired as the victim jumped, was sufficient to allow a rational jury to convict defendant of aggravated assault, in violation of O.C.G.A. § 16-5-21(a)(2). Jefferies v. State, 267 Ga. App. 694 , 600 S.E.2d 753 (2004).
Defendant's statements to police and the victim's prior inconsistent statements were sufficient to support conviction for aggravated assault, despite the fact that the victim recanted at trial. Wyche-Hinkle v. State, 268 Ga. App. 898 , 602 S.E.2d 902 (2004).
There was sufficient credible evidence to support a jury's verdict finding the defendant guilty of committing voluntary manslaughter and aggravated assault in violation of O.C.G.A. §§ 16-5-2 and 16-5-21 , respectively, because there was testimony from three surviving witnesses that the defendant shot at their car as they drove by, killing one of the occupants; there was further testimony that the parties had a history of disputes between themselves, that the victim's brother had fired a shot at the defendant earlier in the day, and the defendant's claim that the defendant thought that as the car drove by, the victim was reaching for a gun, was not found credible. Mullins v. State, 270 Ga. App. 271 , 605 S.E.2d 913 (2004).
There was sufficient evidence to support the jury's verdict that the defendant was guilty beyond a reasonable doubt of aggravated assault in violation of O.C.G.A. § 16-5-21 and of malice murder in violation of O.C.G.A. § 16-5-1 , because the defendant saw the victim trying to break up a fight between the victim's sibling and another person, the defendant became angry and followed the victim and the victim's sibling after the fight broke up, the defendant then swore at them and shot at them, and the defendant's claim of self-defense was not found to be credible. Harris v. State, 278 Ga. 596 , 604 S.E.2d 788 (2004).
Evidence was sufficient to support felony murder and aggravated assault convictions because: (1) defendant, after exchanging blows with the defendant's spouse while in a car, left the area but returned shortly thereafter in the car; (2) one eyewitness saw defendant strike the defendant's spouse with the front of the car, back up striking the defendant's spouse again with the rear of the car, and drive off; (3) other witnesses saw two people brought to the scene by defendant beating and stomping the victim; and (4) the medical examiner testified that the victim died from blunt force head trauma consistent with being struck by a vehicle and that the force of the fatal blow would most likely have left the victim unconscious or unable to walk around. Rankin v. State, 278 Ga. 704 , 606 S.E.2d 269 (2004).
Sufficient evidence, including testimony from the child victim identifying defendant's vehicle, evidence of defendant's DNA matching that of the victim and expert testimony that the frequency of such occurrence was approximately one in two billion in the Caucasian population, and similar transaction evidence, supported defendant's kidnapping with bodily injury, rape, aggravated sodomy, aggravated child molestation, aggravated assault, and first-degree cruelty to children convictions. Morita v. State, 270 Ga. App. 372 , 606 S.E.2d 595 (2004).
In addition to the second codefendant's testimony, the state showed that, shortly after the murder, defendant was in possession of the victim's cab, that the victim's blood was found in the vehicle and on defendant, and that defendant made incriminating admissions to others; thus, the evidence was sufficient to authorize a rational trier of fact to find proof beyond a reasonable doubt of defendant's guilt of malice murder, armed robbery, aggravated assault, hijacking a motor vehicle, and possession of a firearm during the commission of a felony. Wicks v. State, 278 Ga. 550 , 604 S.E.2d 768 (2004).
Evidence that the defendant's vehicle was seen at the victim's residence around the time the victim was murdered, the defendant's subsequent arrest in a hotel room paid for with the victim's credit card, and the presence of the victim's blood on the defendant's boots when arrested was sufficient to support the defendant's convictions for malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of a felony. Moore v. State, 279 Ga. 45 , 609 S.E.2d 340 (2005).
Defendant's multiple convictions for armed robbery, aggravated assault, kidnapping, possessing a firearm during the commission of a felony, burglary, and kidnapping with bodily injury, were supported by sufficient evidence because defendant and another robbed a store while holding the two owners at gunpoint, the defendant led police on a high-speed car chase, and the defendant broke into and robbed two homes, one of which had an occupant that the defendant beat; only one store owner's testimony was needed to establish the facts to support the aggravated assault conviction. Owens v. State, 271 Ga. App. 365 , 609 S.E.2d 670 (2005).
Evidence was sufficient to support the defendant's convictions for felony murder, aggravated assault, and giving a false statement when the defendant and the codefendant were arrested when the codefendant sought medical treatment for a gunshot wound sustained in the incident, the codefendant gave police a false name and said the codefendant was shot when someone tried to rob the codefendant, the codefendant told a neighbor who saw the wound that someone else was worse off than the codefendant was, the defendant asked the neighbor's niece to tell police the codefendant was at the niece's house on the night of the crime and was robbed when the codefendant left, and, while in jail, the defendant told one inmate the defendant shot someone in the incident and told another inmate the defendant was involved in a robbery of this victim that went bad, and that the defendant and the codefendant had been looking for a safe with money and marijuana. Styles v. State, 279 Ga. 134 , 610 S.E.2d 23 (2005).
Evidence was sufficient to support the defendant's conviction for aggravated assault and burglary, after the defendant threatened and broke a window in the victim's home, reached in and tried to grab the victim, and the victim positively identified the defendant in a show-up identification that was found to be fair under the totality of the circumstances. Taylor v. State, 271 Ga. App. 701 , 610 S.E.2d 668 (2005).
Sufficient evidence supported aggravated assault conviction because both the victim and another witness testified that defendant stabbed the victim, and a nurse testified that the victim's injury was serious. Hampton v. State, 272 Ga. App. 273 , 612 S.E.2d 96 (2005).
Defendant's rape conviction was proper, even though defendant was acquitted of kidnapping with bodily injury, false imprisonment, and aggravated assault, as Georgia did not recognize the inconsistent verdict rule; further, the convictions were not necessarily inconsistent as the jury could have found that defendant raped the victim, but did not commit the other crimes. Stevenson v. State, 272 Ga. App. 335 , 612 S.E.2d 521 (2005).
Because the victim's statement of sexual abuse was sufficient under former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8 ) to convict defendant of kidnapping with bodily injury, aggravated child molestation, rape, aggravated sodomy, aggravated assault, and possession of a knife during the commission of a crime, the victim's testimony did not have to be corroborated by physical evidence. Gartrell v. State, 272 Ga. App. 726 , 613 S.E.2d 226 (2005).
Evidence supported defendant's conviction for aggravated assault and voluntary manslaughter because: (1) defendant and the victim had threatened to kill each other; (2) the victim died from a gunshot wound inflicted when the victim "stepped in" to a fight between defendant and another; (3) the victim did not have a gun or own a gun; and (4) the fatal head wound was inflicted from at least two-and-a-half to three feet away and rendered the victim unconscious. Hall v. State, 273 Ga. App. 203 , 614 S.E.2d 844 (2005).
Trial court properly denied the defendant's motion for a directed verdict of acquittal, pursuant to O.C.G.A. § 17-9-1 , because there was sufficient evidence to support the convictions for aggravated assault and reckless conduct, in violation of O.C.G.A. §§ 16-5-21(a)(2) and 16-5-60(b) , respectively; the defendant and the codefendants were involved in a physical altercation with two restaurant patrons, and a codefendant's testimony that the defendant retrieved a gun and shot the victim was sufficiently repeated by the testimony of other witnesses, who also connected the defendant with the shooting pursuant to the corroboration requirement in former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8 ). Baker v. State, 273 Ga. App. 297 , 614 S.E.2d 904 (2005).
Evidence was sufficient to support a conviction for felony murder, voluntary manslaughter, and aggravated assault, as an eyewitness testified that the defendant was the only person to pull out a weapon in a confrontation at a nightclub, that the defendant fired a weapon at the victim, who had previously struck the defendant's love interest, and at two other victims who were attempting to leave. Rodriguez v. State, 274 Ga. App. 549 , 618 S.E.2d 177 (2005).
Because defendant fatally stabbed the estranged spouse's love interest, stabbed the spouse in the head, and then bragged about the actions, the evidence was sufficient to convict defendant of malice murder and aggravated assault. Henry v. State, 279 Ga. 615 , 619 S.E.2d 609 (2005).
Defendant's convictions for aggravated assault, aggravated battery, kidnapping with bodily injury, and possession of a knife during the commission of a felony, in violation of O.C.G.A. §§ 16-5-21(a)(2), 16-5-24 , 16-5-40 , and 16-11-106 , respectively, were supported by the evidence, as defendant was engaged in a domestic dispute with defendant's spouse and child, wherein defendant argued, threatened to kill them, and locked them in a bathroom, punched and hit the spouse, and stabbed them each multiple times with a decorative sword that defendant had removed from the wall; there was sufficient evidence to show that defendant did not stab them in the midst of a struggle over possession of the sword, but instead, that defendant intended to stab or cut them. Brown v. State, 275 Ga. App. 99 , 619 S.E.2d 789 (2005).
Defendant's convictions of aggravated stalking, burglary, aggravated assault, and false imprisonment, in violation of O.C.G.A. §§ 16-5-91 , 16-7-1 , 16-5-21 , and 16-5-41 , were supported by sufficient evidence because, despite the victim's recantation at trial, the victim stated to police earlier that defendant broke into the victim's apartment, scratched and damaged furniture and other property, tied the victim up, locked the victim in the bedroom for several hours, harmed the victim, threatened that defendant and defendant's friends were going to lock the victim in a basement for a few months, and defendant had been waiting for the victim to arrive home. Andrews v. State, 275 Ga. App. 426 , 620 S.E.2d 629 (2005).
Evidence was sufficient to support defendant's conviction for felony and malice murder, and aggravated assault, in violation of O.C.G.A. §§ 16-5-1 and 16-5-21 , as well as a possession of a firearm conviction, because defendant helped a sibling retaliate against the victim, who had previously sold the sibling fake drugs, by going to the victim's place of work, fatally shooting the victim multiple times, and planting fake drugs on the body; defendant's claim that defendant was in another state at the time of the incident was refuted by a copy of the criminal history which showed that defendant was out on bail just days before the incident, as well as testimony from the victim's roommate. Copprue v. State, 279 Ga. 771 , 621 S.E.2d 457 (2005).
Evidence was sufficient to support defendant's convictions for malice murder and aggravated assault, in violation of O.C.G.A. §§ 16-5-1 and 16-5-21 , respectively, as well as for possession of a firearm during a felony, because defendant was identified by multiple witnesses as having fatally shot the victim; defendant and the friends joined the victim's basketball game and when their team lost, defendant took the bet money, pulled out a gun, and started firing at the victim and the teammates. Agee v. State, 279 Ga. 774 , 621 S.E.2d 434 (2005).
Circumstantial evidence was sufficient to allow a jury to find defendant committed felony murder and aggravated assault beyond a reasonable doubt when there was testimony that defendant was seen wearing a trench coat, waved down the victim's vehicle, leaned in through an open window in the vehicle, fled after firing two shots, saying, "I believe I shot him," forensic evidence was consistent with this testimony, defendant and a codefendant were earlier seen trying to sell a gun, a trench coat with missing buttons was found in the codefendant's house, and its buttons matched a button found in the victim's car. Burns v. State, 280 Ga. 24 , 622 S.E.2d 352 (2005).
Evidence regarding defendant's holding a knife to a love interest's throat and demanding money sustained defendant's conviction for aggravated assault. Smith v. State, 276 Ga. App. 41 , 622 S.E.2d 413 (2005).
After defendant and the victim were engaged in a heated verbal exchange, defendant went to a room and obtained a serrated knife, returned to where the victim was and stabbed the victim in the chest, which resulted in the victim's heart being punctured, and defendant later admitted to the stabbing, the evidence was sufficient to support the verdict of finding defendant guilty of felony murder and aggravated assault, in violation of O.C.G.A. §§ 16-5-1 and 16-5-21 , as well as possession of a knife during the commission of a felony; the jury was authorized to find defendant's claim of self-defense lacking in credibility. Delanoval v. State, 280 Ga. 36 , 622 S.E.2d 811 (2005).
Defendant's convictions for felony murder, aggravated assault, and possession of a knife during the commission of a felony were supported by sufficient evidence; while defendant argued that defendant acted in self-defense in stabbing the victim in the chest during a confrontation, the jury was authorized to disbelieve defendant's testimony in favor of the testimony of the state's witnesses. Delanoval v. State, 280 Ga. 36 , 622 S.E.2d 811 (2005).
Defendant's convictions for malice murder, burglary, robbery, aggravated assault, and concealing the death of another were supported by sufficient evidence because: (1) defendant broke into the office where the victim was living; (2) defendant hit the victim several times on the head and body with a pair of pliers; (3) defendant choked the victim with the defendant's hands and arms, and with the pliers, until the victim was dead; (4) defendant took the victim's credit card and driver's license; and (5) defendant disposed of the victim's body. Young v. State, 280 Ga. 65 , 623 S.E.2d 491 (2005).
Denial of defendant's motions for a directed verdict and judgment notwithstanding the verdict was proper as the evidence established the essential elements of attempted arson and aggravated assault; the evidence showed that defendant poured gasoline near two ignition sources (a light bulb and hot water heater) in the crawlspace of the estranged love interest's house and then told the estranged love interest's adult children to light the water heater's pilot flame. McGraw v. State, 276 Ga. App. 607 , 624 S.E.2d 232 (2005).
Convictions of murder, aggravated assault, and possession of a firearm by a convicted felon were supported by sufficient evidence showing that while the victim was in the process of buying drugs from a third party, the defendant approached the driver's side of the victim's car, demanded the victim's money, and shot the victim several times, killing the victim and injuring a passenger in the car; the seller of the drugs testified that the seller had observed the defendant carrying a gun, and both the codefendant and another witness identified the defendant as the shooter. Major v. State, 280 Ga. 746 , 632 S.E.2d 661 (2006).
Evidence supported a defendant's conviction for malice murder and aggravated assault as: (1) when a cab driver arrived to pick up a passenger at the defendant's apartment, the defendant was waiting outside and told the cab driver to wait while the defendant returned to the apartment; (2) the cab driver heard several gunshots immediately before the defendant ran to the cab and told the cab driver to "go"; (3) during the ride, the cab driver observed drops of blood on the defendant's clothing and overheard the defendant state in a cell phone call that the defendant "got the guy who owed (the defendant) money"; (4) the police traced the phone call to the defendant's uncle; and (5) the defendant later confided to a friend that the defendant shot and killed someone, that the defendant left in a cab, and that the defendant made a phone call with the cab driver's phone. Puga-Cerantes v. State, 281 Ga. 78 , 635 S.E.2d 118 (2006).
Sufficient evidence supported the defendant's convictions of two counts of felony murder under O.C.G.A. § 16-5-1 , armed robbery under O.C.G.A. § 16-8-41 , aggravated assault under O.C.G.A. § 16-5-21 , possession of a firearm during the commission of a felony under O.C.G.A. § 16-11-106 , and possession of a firearm by a first offender probationer under O.C.G.A. § 16-11-131 ; two witnesses testified that the defendant had told them that the defendant shot the victim, and one of the witnesses testified that the defendant stated that the shooting occurred during a robbery, the defendant discarded a gun that was later found to be the murder weapon while fleeing police on another crime, and the defendant admitted to police that the murder weapon was the defendant's, that the defendant stole $100 from the victims, and that the defendant shot the murder victim. Chenoweth v. State, 281 Ga. 7 , 635 S.E.2d 730 (2006).
Evidence that there was an 80 to 90 percent chance that injuries that caused the death of a defendant's 10-month-old child were inflicted within an hour of the child's death, that the defendant left the apartment at 4:10 P.M., that an attending physician was called to the emergency room at 5:46 P.M., and that the child was dead on arrival at the emergency room was sufficient to support the defendant's convictions for felony murder while in commission of cruelty to a child in the second degree, aggravated assault, and cruelty to a child in the first degree; the evidence permitted the jury to conclude that the time frame in which the child's injuries were inflicted included the time before the defendant left for work, there was evidence concerning the defendant's actions before and after the child's death that indicated the defendant's guilt, and the jury was not required to accept the defendant's version of events. White v. State, 281 Ga. 276 , 637 S.E.2d 645 (2006).
Aggravated assault conviction was upheld, as supported by sufficient evidence, including: (1) properly admitted similar transaction evidence; (2) the indictment charging the defendant was not defective; (3) the court's slip of the tongue did not mislead or confuse the jury; (4) a justification instruction was not warranted; and (5) the defendant failed to support an ineffective assistance of counsel claim. Scott v. State, 281 Ga. App. 813 , 637 S.E.2d 751 (2006).
Because the state showed that the victim had an apprehension, reasonable under the circumstances, of immediately receiving a violent injury, this testimony, if believed, together with a finding that the defendant intended to drive rapidly out of the car wash while dragging the victim, was sufficient to authorize the jury to find the defendant guilty of aggravated assault; further, an assault under O.C.G.A. § 16-5-20(a)(2) did not require that a defendant act with criminal intent in regard to the victim, but did require that an intentional act be shown. Kirkland v. State, 282 Ga. App. 331 , 638 S.E.2d 784 (2006).
Because conflicts and inconsistencies in the testimony of the witnesses, including the state's witness, were a matter of credibility for the jury to decide, and because the defendant cited no authority suggesting that the instructions in question were incorrect statements of the law, and did not explain an assertion that they were confusing, convictions armed robbery, aggravated assault, and possession of a firearm during the commission of a felony were upheld on appeal as supported by sufficient evidence. Lattimore v. State, 282 Ga. App. 435 , 638 S.E.2d 848 (2006).
Because the victim's testimony, standing alone, was sufficient to establish the defendant's guilt beyond a reasonable doubt, when said evidence showed: (1) two separate aggravated assaults, one with a knife and one with a hammer; (2) two separate instances of simple battery; and (3) a hours-long detention of the victim by the defendant, said evidence amply supported the jury's conviction on the charges of false imprisonment, aggravated assault, and simple battery. Brigman v. State, 282 Ga. App. 481 , 639 S.E.2d 359 (2006).
Even though the victim was the only witness who could testify that the defendant was the perpetrator of the crimes of robbery by force and aggravated assault, said testimony was enough to establish the defendant's identity as one of the assailants; moreover, the lack of corroboration went only to the weight of the evidence and the victim's credibility, matters which were solely within the purview of the jury. Thomas v. State, 282 Ga. App. 522 , 639 S.E.2d 531 (2006).
Pictures of a defendant withdrawing money from a victim's ATM account and evidence that the defendant repeatedly asked the victim for the PIN number for the victim's ATM card, held a knife to the victim's neck, cut the cord used to tie the victim, and had cash, an ATM receipt, and the victim's car keys when the defendant was arrested were sufficient to support the defendant's convictions for armed robbery, two counts of aggravated assault, kidnapping with bodily injury, and two counts of possessing a knife during the commission of a crime. Wright v. State, 282 Ga. App. 649 , 639 S.E.2d 581 (2006).
Defendant's convictions for aggravated assault, aggravated battery, and first-degree child cruelty pursuant to O.C.G.A. §§ 16-5-21(a) , 16-5-24(a) , and 16-5-70(b) for participating in a drive-by shooting were supported by sufficient evidence because the testimony of a single witness was generally sufficient to establish a fact pursuant to former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8 ) and it was the function of the jury to evaluate the credibility of witnesses; based on the testimony of the witnesses to the shooting, a reasonable jury could have rejected the defendant's claims and determined that the defendant was a party to each of the crimes. Hill v. State, 282 Ga. App. 743 , 639 S.E.2d 637 (2006).
There was sufficient evidence to support the defendant's convictions of felony murder and aggravated assault resulting from an incident when shots were fired from a van at the victims, who were riding in a car that had formerly belonged to a drug dealer; the defendant had argued with the drug dealer the day of the shooting, the defendant's wrecked car was found in the same place as the van, the surviving victim identified the defendant as the driver of the van, the van had been traded to the defendant's brother, and even if the defendant did not actually fire the shots, being the driver would authorize the defendant's conviction under O.C.G.A. § 16-2-20(a) . Yancey v. State, 281 Ga. 664 , 641 S.E.2d 524 (2007).
There was sufficient evidence to support the defendant's convictions of malice murder and aggravated assault; after an argument at the victims' house over money, the defendant returned to the house with a concealed pistol, demanded money from the first victim, pulled out the pistol after the first victim said that the first victim was not afraid of the defendant, and shot the two victims. Shelton v. State, 281 Ga. 660 , 641 S.E.2d 536 (2007).
Given that sufficient evidence was presented that the defendant planned and attempted an armed robbery, and the victim was killed during that attempted robbery with the defendant's gun, when such was coupled with evidence that the defendant threatened the victim with a reasonable apprehension of a violent attack, both an aggravated assault and felony murder conviction were upheld on appeal. Willingham v. State, 281 Ga. 577 , 642 S.E.2d 43 (2007).
As the evidence provided by the state at defendants' criminal trial demonstrated that based on information from defendant-B regarding a large quantity of marijuana possessed by a victim, defendant-A and another man forcibly entered the victim's residence while defendant-A was armed, pushed the victim to the ground, demanded to know where the marijuana was, and a physical struggle resulted, the evidence supported defendants' convictions for burglary, armed robbery, and aggravated assault; defendant-B was convicted as a party to the crimes under O.C.G.A. § 16-2-20(4). Garland v. State, 283 Ga. App. 622 , 642 S.E.2d 320 (2007), rev'd on other grounds, 282 Ga. 201 , 657 S.E.2d 842 (2008).
When the victim was killed during the theft of the victim's vehicle, the evidence was sufficient for a jury to convict the defendant of felony murder, aggravated assault, and armed robbery; the defendant told others where the vehicle was, then stripped the vehicle; a call was placed from the victim's cell phone to the house of one of the defendant's grandparents; police found some of the victim's belongings at the home of the defendant's cousin; and a witness and two cousins of the defendant stated that the defendant admitted shooting the victim. Paige v. State, 281 Ga. 504 , 639 S.E.2d 478 (2007).
Defendant's felony murder and aggravated assault convictions were both upheld on appeal as evidence of the victim's prior violent acts was properly excluded given that at the time of the confrontation with the defendant, the victim was no longer the aggressor, and the defendant failed to show prejudice resulting from the admission of a knife that was not used in the altercation, into evidence, and in fact, the knife had been removed from the scene by police before the incident involving the defendant and the victim occurred. Milner v. State, 281 Ga. 612 , 641 S.E.2d 517 (2007).
Evidence of a prior aggravated assault conviction was sufficiently similar to be admissible to show a defendant's bent of mind in initiating the stabbing of a victim and to rebut the defendant's assertion of self-defense. Cockrell v. State, 281 Ga. 536 , 640 S.E.2d 262 (2007).
When the unarmed victim advanced on the defendant, who had a baseball bat, and the defendant swung twice at the victim, then hit the victim on the head with the bat after the victim lost the victim's balance, the jury at the defendant's aggravated assault trial was entitled to conclude that the defendant was not justified in using force greater than that necessary for self-defense; the evidence, including the defendant's bragging at a party that night about the incident and telling an acquaintance a few days later that the acquaintance was "riding with a murderer," supported the conviction. Fields v. State, 285 Ga. App. 345 , 646 S.E.2d 326 (2007).
Upon the overwhelming evidence of the defendant's guilt provided by the victim supporting a charge of aggravated assault, despite the trial court's erroneous act requiring the defendant to introduce a certified copy of the victim's prior conviction to impeach, the defendant's aggravated assault conviction was upheld; moreover, the evidence in the record revealed that the jury chose to believe the victim, despite the issues involving the victim's prior record. Johnson v. State, 284 Ga. App. 724 , 644 S.E.2d 544 , cert. denied, No. S07C1179, 2007 Ga. LEXIS 538 (Ga. 2007).
Evidence supported the defendant's convictions of aggravated assault, aggravated battery, cruelty to children, and reckless conduct in connection with the death of the 16-month-old victim since: the defendant repeatedly fed the victim tomatoes despite the victim's allergic reactions to the tomatoes; two days before the victim's fatal injuries, the victim had numerous bruises, a black eye, and a split bottom lip; while the victim was in the hospital for the fatal injuries, the defendant repeatedly asked a babysitter to persuade the defendant's five-year-old child to say that the child had taken the victim out of the bathtub; the defendant asked medical personnel whether it could be proven that the victim was shaken; and medical evidence showed that the victim's death was consistent with violent shaking by a person of adult strength. Waits v. State, 282 Ga. 1 , 644 S.E.2d 127 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Defendant's claim on appeal that convictions for aggravated assault and kidnapping had to be reversed because the victim's testimony was unworthy of belief lacked merit as it was the role of the fact finder, not the appellate court, to determine whether a witness was credible; moreover, the testimony of the victim alone was sufficient to support a finding of guilt. Bragg v. State, 285 Ga. App. 408 , 646 S.E.2d 508 (2007).
There was sufficient evidence to support the defendant's convictions of child molestation, kidnapping with bodily injury, kidnapping, and aggravated assault when the defendant, who lived with an ex-girlfriend and her teenage daughter, called them into a bedroom and bound the ex-girlfriend's arms, legs, and mouth with duct tape, threatened the women with a hatchet, and led the daughter to another bedroom where the defendant duct-taped her hands and feet and forced her to have intercourse with him. Phillips v. State, 284 Ga. App. 683 , 644 S.E.2d 535 (2007).
Evidence was sufficient to support the three defendants' convictions of malice murder, aggravated assault, and possession of a firearm during the commission of a felony after: the victims were shot from a gold SUV and the first defendant owned a gold SUV; the first defendant, who had been robbed the day before, stated that the first defendant "wanted to straighten about the money"; the third defendant met the first two defendants at a hotel and transferred weapons into the gold SUV; the first defendant pointed to a person outside the hotel and said "Let him have it"; and the third defendant later wondered if one of the victims was dead. Stokes v. State, 281 Ga. 875 , 644 S.E.2d 116 (2007).
Because the testimony from the aggravated assault victim's girlfriend about observing the defendant stab the victim was sufficient, standing alone, to support an aggravated assault conviction, the conviction was upheld on appeal. Diop v. State, 285 Ga. App. 312 , 645 S.E.2d 756 (2007).
In a case when a defendant was adjudicated delinquent based on aggravated assault, the court rejected the defendant's argument that the evidence was insufficient to support the finding that the defendant was the one who shot the victim because the victim was unable to identify the defendant after the incident and because the defendant's gunshot residue test came back negative; an officer testified that the victim's failure to identify the defendant after the shooting was likely due to the victim's medical condition at the time, and the victim identified the defendant as the shooter at the hearing. In the Interest of B.S., 284 Ga. App. 680 , 644 S.E.2d 527 (2007).
Given that the circumstantial evidence presented against the defendant sufficiently showed that: (1) the victim shot one of the intruders who committed the burglary; (2) shortly after the burglary, the defendant was treated for a gunshot wound and arrived at the hospital in a vehicle matching the description of the automobile seen leaving the crime scene; (3) the DNA evidence on ski masks found at the scene matched that of the owner of the car and the other passenger, who was also the defendant's brother; and (4) according to the defendant's brother, the driver of the car admitted to shooting the victim, the defendant's convictions for aggravated assault, burglary, and possession of a firearm during the commission of a felony were affirmed on appeal. Sherman v. State, 284 Ga. App. 809 , 644 S.E.2d 901 (2007).
Evidence supported the defendant's convictions of malice murder, felony murder, armed robbery, aggravated assault, and possession of a firearm during the commission of a felony after the defendant went to the victim's laundromat and waited until the victim opened a change machine, pointed a gun at the victim's head and ordered the victim to put the money in a bag, told the victim, "Hell, yeah, I'll kill you," and shot the victim multiple times; eyewitnesses, including two who knew the defendant, identified the defendant as the perpetrator. Cooper v. State, 281 Ga. 760 , 642 S.E.2d 817 (2007).
Evidence supported the defendant's conviction of aggravated assault even though the defendant claimed that the defendant merely accidentally fired a gun at the victim, the evidence indicated that the defendant intentionally fired at and struck the victim.
Because sufficient evidence was presented consisting of the victim's identification of the defendant as the perpetrator of a burglary, who threatened the victim with a sharp, knife-like letter opener, forcing the victim into a closet, and stealing the victim's camera upon fleeing, sufficient evidence supported the defendant's burglary, armed robbery, aggravated assault, and kidnapping convictions. Bryant v. State, 286 Ga. App. 493 , 649 S.E.2d 597 (2007).
There was sufficient evidence to convict the defendant of aggravated assault when after the victim flicked a cigarette that landed on the defendant's car seat, the defendant said "I'll shoot you," and pointed a gun at the victim; although the defendant claimed that the defendant and the victim were just joking around, the evidence presented was sufficient to support a finding that the defendant's act placed the victim in reasonable apprehension of immediately receiving a violent injury under O.C.G.A. § 16-5-20(a)(2). Moore v. State, 286 Ga. App. 313 , 649 S.E.2d 337 (2007).
There was sufficient evidence to support the defendant's conviction of aggravated assault when about 15 minutes after arguing with the victim, the defendant returned and shot the victim after the defendant's companion tried to hit the victim with a car; the victim, who had previously known the defendant, picked the defendant's picture from a photographic lineup, and the defendant admitted shooting at the victim.
There was sufficient evidence to support the defendant's convictions of felony murder, aggravated assault, and possession of a firearm during the commission of a felony, and the jury was entitled to disbelieve family members who testified that the defendant was out of state when the crimes occurred; the defendant pointed a handgun at the two victims and told the victims to give the defendant the keys to the van in which the victims were loading scooters, shot one victim in the chest, and ran away, after which the defendant's companions drove the van after the defendant. Edwards v. State, 282 Ga. 259 , 646 S.E.2d 663 (2007).
There was sufficient evidence to support an adjudication of juvenile delinquency based on convictions of aggravated assault and of felony and misdemeanor obstruction of an officer; after threatening to slash the victim's throat, the defendant produced a knife and opened the blade, and when officers arrived at the defendant's residence to arrest the defendant, the defendant screamed obscenities and fled to another home before assuming a "fighting stance," placing the defendant's fists in front of the defendant's face, and yelling obscenities at officers while refusing to obey the officers' commands. In the Interest of D.D., 287 Ga. App. 512 , 651 S.E.2d 817 (2007).
Evidence was sufficient to support a conviction of aggravated assault based on the defendant's attack on a fellow prison inmate when, although an officer who allegedly witnessed the attack was not called as a witness, both the victim and another eyewitness testified that the defendant attacked the victim; even without the actual weapon being introduced into evidence, the testimony that the defendant used a metal knife or shank to stab the victim was sufficient to support the conviction and the jury was authorized to conclude that defendant's alibi witnesses, who gave inconsistent alibis for the defendant and who all had felony convictions, were not credible. Cail v. State, 287 Ga. App. 547 , 652 S.E.2d 190 (2007), overruled on other grounds by State v. Lane, 838 S.E.2d 808 , 2020 Ga. LEXIS 98 (Ga. 2020).
Evidence from eyewitnesses that the defendant had been in a heated argument with the victim, the defendant left the scene and returned with a gun, the defendant again argued with the victim, pulling out the gun and shooting the victim three times, and that the bullets recovered from the victim confirmed that the bullets were fired from the defendant's weapon, was sufficient to enable a rational trier of fact to reject the defendant's self-defense claim and to support the defendant's convictions for felony murder, aggravated assault, and possession of a firearm during the commission of a felony. Bolston v. State, 282 Ga. 400 , 651 S.E.2d 19 (2007).
Evidence supported the defendant's aggravated assault conviction when the defendant came to a married couple's home, grabbed the wife and threatened to cut her throat, then struggled with the husband over a gun and tried to shoot the husband and both the husband and the wife identified the defendant as the perpetrator in separate photo lineups and at trial; discrepancies regarding the clothes that the perpetrator was wearing and what the defendant was wearing when the defendant was apprehended were for the jury to resolve, and inconsistencies in a witness's statement regarding time were for the jury to resolve and did not make it impossible that the defendant could have been at the crime scene. Brown v. State, 287 Ga. App. 115 , 650 S.E.2d 780 (2007).
Victim's testimony that the defendant forcibly entered the victim's house and accused the victim of sexually assaulting a sibling of the defendant, then beat the victim with a bat and kicked the victim, established the essential elements of aggravated assault and burglary; a single witness's testimony was generally sufficient to establish a fact. Gonzales v. State, 286 Ga. App. 821 , 650 S.E.2d 401 (2007), cert. denied, No. S07C1765, 2008 Ga. LEXIS 70 (Ga. 2008).
Evidence supported the defendant's convictions of malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of a felony; the two surviving victims testified that the defendant began shooting at the victims after arriving at an apartment, and the testimony of the victims, the location of shell casings, and the evidence showing that the deceased victim was shot from a distance of over three feet, significantly refuted the defendant's claim of self-defense. Jackson v. State, 282 Ga. 494 , 651 S.E.2d 702 (2007).
In a case involving a defendant's cohort shooting a man at a gas station, the evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt as a party to the crime of aggravated assault with a deadly weapon and possession of a firearm during the commission of a felony, since the evidence showed that the defendant willingly drove the cohort to the gas station, waited in a stolen truck while armed with an assault rifle as the cohort pulled the victim out of the victim's car and then shot the victim, and then rescued the injured cohort and fled the police; the defendant's criminal intent was properly inferred from the defendant's conduct before, during, and after the commission of the crime. McClendon v. State, 287 Ga. App. 238 , 651 S.E.2d 165 (2007).
Defendant retrieved a loaded pistol from defendant's apartment and returned to the parking lot where defendant pointed the pistol at the boyfriend's head. A bystander then told the defendant to put the gun down, at which point the defendant pointed the gun at the bystander, and the boyfriend snatched the gun from the defendant. These two acts were sufficient to allow a jury to convict defendant of two counts of aggravated assault. Gaines v. State, 289 Ga. App. 339 , 656 S.E.2d 871 (2008), cert. denied, 2008 Ga. LEXIS 379 (Ga. 2008); overruled in part by Worthen v. State, 2019 Ga. LEXIS 22 (Ga. 2019).
Because sufficient evidence was presented showing that the defendant cut a correctional officer's face with either a razor blade or other sharp object, requiring more than 150 stitches and cosmetic surgery to repair, the defendant's convictions of aggravated assault and aggravated battery upon a correctional officer were upheld on appeal. White v. State, 289 Ga. App. 224 , 656 S.E.2d 567 (2008).
Testimony of both an aggravated assault victim and another witness, which demonstrated that the defendant shot the victim in the leg, coupled with the defendant's flight after the incident, was sufficient to support the defendant's aggravated assault conviction and, furthermore, defendant was subject to an enhanced sentence under the family violence provision of the aggravated assault statute, O.C.G.A. § 16-5-21(j) , since the crime was committed between persons "living or formerly living in the same household." Jones v. State, 289 Ga. App. 219 , 656 S.E.2d 556 (2008), cert. denied, 2008 Ga. LEXIS 381 (Ga. 2008).
Sufficient evidence supported the defendant's convictions of aggravated assault, two counts of aggravated battery, and possessing a firearm during the commission of a felony; the defendant told the victim, who had walked into a common hallway in the defendant's apartment building, to leave, went inside, retrieved a gun, and shot the victim twice after the victim refused to leave, and then shot at the victim while the victim was fleeing. Johnson v. State, 289 Ga. App. 435 , 657 S.E.2d 333 (2008).
Evidence supported defendant's convictions of malice murder and two counts of aggravated assault; witnesses testified that a person wearing a red bandana went into a bar, pointed a pistol at one victim, left, and later returned and began shooting, and other witnesses testified that defendant was the shooter and that defendant was wearing a red bandana. Felton v. State, 283 Ga. 242 , 657 S.E.2d 850 (2008).
Evidence supported defendant's convictions of felony murder, aggravated assault, and possession of a firearm during the commission of a felony. Witnesses saw the defendant walk with the victim from a store to the victim's car and later run from the scene following the sounds of a gunshot and a car crash, and the defendant admitted pulling a gun on the victim and said that the gun had gone off during a struggle, after which the victim tried to drive away. Petty v. State, 283 Ga. 268 , 658 S.E.2d 599 (2008).
Evidence supported convictions of malice murder, aggravated assault, burglary, and possession of a firearm during the commission of a crime. The victim was struck twice in the head with a pistol, strangled, and shot twice in the head; the victim's wallet and keys were missing; and the defendant, who told police where the wallet could be found, admitted shooting the victim and claimed that the defendant had done so after the victim tried to hug and kiss the defendant and things got "ugly." Brown v. State, 283 Ga. 327 , 658 S.E.2d 740 (2008).
Evidence supported the defendant's convictions for malice murder, felony murder, aggravated assault, armed robbery, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a crime. The four victims were found dead in two hotel rooms from gunshot wounds to the back of their heads; identification documents belonging to the four victims were found in the defendant's car; there was expert testimony that the defendant's gun had been used to kill the victims; the defendant's baseball cap contained one victim's deoxyribonucleic acid; there was evidence that the defendant and two friends used three victims' tickets to attend a football game after the victims were murdered; the defendant was identified as being in an elevator with one victim; the defendant was seen leaving the hotel with one victim's cooler; and a duffle bag belonging to one victim was in the defendant's car when the defendant was arrested on weapons charges. Dawson v. State, 283 Ga. 315 , 658 S.E.2d 755 (2008), cert. denied, 129 S. Ct. 169 , 172 L. Ed. 2 d 122 (2008).
Evidence was sufficient to support the defendant's convictions of armed robbery, aggravated assault, possession of a firearm during the commission of a crime, and kidnapping under O.C.G.A. §§ 16-5-21 , 16-5-40 , 16-8-41 , and 16-11-106 as: (1) a robber ordered two store employees at gunpoint to give the robber money, then ordered the employees to go into a back room; (2) the employees described the robber and the robber's vehicle in detail; (3) the employees positively identified the defendant as the robber 15 to 20 minutes after the crime following a pursuit during which the defendant fled from police first in the defendant's vehicle, then on foot; and (4) the defendant had $281 in a pocket at the time of arrest. Lenon v. State, 290 Ga. App. 626 , 660 S.E.2d 16 (2008).
Evidence supported defendant's convictions of felony murder during commission of aggravated assault and of possessing a firearm while committing the murder; after defendant argued with the victim and hit the victim while they were riding in a car, defendant and the victim got out of the car where defendant shot at the victim multiple times, defendant fled the scene but later surrendered to authorities and stated that defendant had murdered the victim, and at trial defendant claimed that the gun accidentally discharged when defendant was trying to return the gun to the victim. Lashley v. State, 283 Ga. 465 , 660 S.E.2d 370 (2008).
Evidence supported convictions on three counts of aggravated assault when the first victim testified that after the first victim and the second victim chased defendant, defendant began firing at them, eyewitness testified that defendant was shooting at the two victims' vehicle, and there was testimony that a bystander was hit at the scene where defendant was the shooter. Burden v. State, 290 Ga. App. 734 , 660 S.E.2d 481 (2008).
Although victim gave statements that conflicted with victim's own statements and those of others involving a shooting in a parking lot, gunshot residue tests were inconclusive, bystanders each testified that defendant was standing at a different location, and no specific weapon was traced to any participant, evidence was sufficient to support a conviction of aggravated assault when the victim testified that defendant shot the victim in the foot, two bystanders testified that defendant shot at the victim, and a third bystander testified that defendant admitted to having a gun at the time of the incident. Banks v. State, 290 Ga. App. 887 , 660 S.E.2d 873 (2008).
Sufficient evidence supported convictions of aggravated assault, aggravated assault on a peace officer, obstruction of a law enforcement officer, interference with government property, and criminal trespass when defendant admitted obstructing officers and damaging a patrol car and the victim's vehicle; although the defendant denied assaulting the victim and responding officer, the jury was authorized to reject the defendant's testimony in favor of theirs. Gartrell v. State, 291 Ga. App. 21 , 660 S.E.2d 886 (2008).
Under former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8 ), the victim's testimony that the defendant pulled a knife out of the defendant's pocket with the defendant's right hand and lunged at the victim was sufficient in itself to support convictions for aggravated assault and carrying a concealed weapon under O.C.G.A. §§ 16-5-21 and 16-11-126 . Testimony that the defendant had arthritis in the right hand at most created a conflict in the evidence, as there was also testimony that the defendant, a carpenter, used both hands in the defendant's trade. Carder v. State, 291 Ga. App. 265 , 661 S.E.2d 632 (2008).
There was sufficient evidence to support armed robbery and aggravated assault convictions. Two masked persons entered a restaurant, pointed a gun at the employees, forced the manager to give the persons money, including rolls of change, ordered everyone to get on the floor, and then fled; an officer saw two people running, including the defendant, who were wearing the type of boots worn by the robbers; the defendant had a BB gun and $201 in cash, including several rolls of quarters; two restaurant employees identified the gun as the weapon used in the robbery; and a detective testified that when the defendant was arrested, the defendant was wearing the jacket and boots depicted on the surveillance videotape played for the jury. Williams v. State, 291 Ga. App. 279 , 661 S.E.2d 658 (2008).
There was sufficient evidence to support an aggravated assault conviction when after the defendant and the victim got into an argument that escalated into a fistfight, paramedics found that the victim had five elongated, open wounds that appeared to be stab wounds, bruises, and a bite mark on the shoulder and that one of the victim's lungs had been punctured. Jackson v. State, 291 Ga. App. 287 , 661 S.E.2d 665 (2008).
There was sufficient evidence to support convictions for aggravated assault, aggravated battery, and burglary when the victim unhesitatingly identified the defendant as one of the people who attacked the victim with a bat or a pipe; the victim's roommate was about "70 percent sure" that the defendant was one of the attackers; the defendant came to the victim's door earlier in the evening and told someone in the street, "Oh no, not now"; one of the attackers threatened the victim because the victim befriended the attacker's paramour; the paramour, who was a friend of the defendant and who had called the victim to the victim's door before the attack, knew that the victim had come into some cash; and the parent of the defendant's child testified that the defendant and others left the house saying that they were going to get into a fight. Furthermore, the victim sustained a stab wound in the liver, a shattered jaw, a broken foot, a stab to the elbow, damage to the facial nerves, and a double hernia and was in constant pain and could not work. Drew v. State, 291 Ga. App. 306 , 661 S.E.2d 675 (2008).
There was sufficient evidence to support convictions of aggravated assault under O.C.G.A. § 16-5-21 and of third-degree cruelty to children under O.C.G.A. § 16-5-70 . The victim, who had formerly been romantically involved with the defendant, was leaving a motel with the victim's two children, three other children, and two friends when the defendant approached the victim from behind, put a gun to the victim's head, and told the victim that when the defendant did not care about the children anymore, the defendant was going to kill the victim, and the state introduced prior difficulties evidence about an earlier incident where the victim was asleep at a parent's house when the victim woke up to a punch in the face and saw the defendant running out the front door. McCullors v. State, 291 Ga. App. 393 , 662 S.E.2d 197 (2008).
Evidence supported the defendant's convictions of burglary, kidnapping with bodily injury, rape, aggravated assault, robbery, and theft by taking when a treating physician stated that the 86-year-old victim's injuries, including blood inside her vagina and bruises and contusions on her vagina, were consistent with forcible penetration; when the defendant admitted entering the victim's home, removing her clothing, restraining her with electrical cords, hitting her, putting a plastic bag over her head, forcing her from one room to another, and taking her money and her car; and when DNA from the defendant matched the DNA of two hair roots found on the victim's living room floor. Smith v. State, 291 Ga. App. 545 , 662 S.E.2d 323 (2008).
Evidence was sufficient to sustain a defendant's convictions of two counts of aggravated assault and two counts of possession of a firearm during the commission of a crime in violation of O.C.G.A. §§ 16-5-21 and 16-11-106 because the defendant's admission that defendant was holding a rifle throughout the crimes' commission, along with evidence of the defendant's flight, authorized the jury to conclude that the defendant participated in the crimes by acting as a lookout. Gant v. State, 291 Ga. App. 823 , 662 S.E.2d 895 (2008).
Defendant's convictions on charges of malice murder, aggravated assault, and obstruction were supported by evidence that showed, inter alia, that the defendant was upset because the victim owed the defendant money, that the defendant got into an argument with the victim that culminated in the defendant shooting the victim, that a shell casing from the gun used to shoot the victim was found in the defendant's room, and that when the defendant was arrested, the defendant lied about the defendant's identity. Williams v. State, 284 Ga. 94 , 663 S.E.2d 179 (2008).
Evidence was legally sufficient to convict a defendant on charges of armed robbery, aggravated assault, false imprisonment, and possession of a firearm during the commission of a crime; the testimony of one of the defendant's accomplices, which implicated the defendant in the crimes, was corroborated by evidence that the defendant was captured with the two accomplices shortly after the robbery, that defendant had a large amount of cash, a gun, and a roll of duct tape, and that the victim was able to identify all three men as the ones who robbed and assaulted the victim. Spragg v. State, 292 Ga. App. 37 , 663 S.E.2d 389 (2008).
Evidence was sufficient to convict a defendant on a charge of aggravated assault since the defendant failed to carry the initial burden of establishing by a preponderance of the evidence that the defendant was involuntarily intoxicated at the time of the aggravated assault, and there was at least some evidence before the jury of each element of aggravated assault that the state was required to prove. Stewart v. State, 291 Ga. App. 846 , 663 S.E.2d 278 (2008).
Sufficient evidence supported convictions of aggravated assault and possession of a firearm during commission of a felony under O.C.G.A. §§ 16-5-21 and 16-11-106 when competent evidence showed that the defendant put a gun to the victim's chest and pulled the trigger. Furthermore, a jury could conclude that this was not the result of an accident. Jones v. State, 293 Ga. App. 218 , 666 S.E.2d 738 (2008).
Testimony from two eyewitnesses that the defendant fatally shot the victim with an assault rifle and aimed the rifle at one of the witnesses, and evidence that the defendant then fled and tried to elude authorities, was sufficient to convict the defendant of felony murder, aggravated assault with a deadly weapon, aggravated assault, and possession of a firearm during the commission of a felony. McKenzie v. State, 284 Ga. 342 , 667 S.E.2d 43 (2008).
Evidence showed the defendant broke into a victim's home while the victim was asleep and then pulled a knife on the victim in the kitchen and began waving the knife at the victim, who testified that the victim was afraid because the defendant "was looking wild and acting a little wild and I didn't know what he might would do" and that the victim was concerned the victim might get injured. Under these circumstances, there was sufficient evidence for the jury to conclude that the victim had a reasonable apprehension of receiving an immediate, violent injury, to support the defendant's conviction for aggravated assault. Atwell v. State, 293 Ga. App. 586 , 667 S.E.2d 442 (2008).
Since the evidence established the defendant shot three people and took money from one of them, and two of the people survived and identified the defendant as the shooter, the evidence was sufficient to convict the defendant of two counts of aggravated assault. Abdullah v. State, 284 Ga. 399 , 667 S.E.2d 584 (2008).
Pursuant to former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8 ), defendant juvenile's statements to the police corroborated an accomplice's testimony that the juvenile struck a woman unconscious, caused her serious bodily injury, used force to steal her pocketbook, and dragged her down onto her front yard; accordingly, the evidence was sufficient to adjudicate the juvenile delinquent under O.C.G.A. §§ 16-5-21(a)(2), 16-5-40(a) , and 16-8-40(a)(1). In re D. T., 294 Ga. App. 486 , 669 S.E.2d 471 (2008).
Although the defendant argued that the defendant's conviction for aggravated assault, O.C.G.A. § 16-5-21 , was not supported by sufficient evidence, the facts asserted by the defendant in support of this claim were of no consequence on appeal because the appellate court did not speculate as to which evidence the jury chose to believe; thus, the evidence was sufficient to support the conviction. Jones v. State, 294 Ga. App. 564 , 669 S.E.2d 505 (2008).
Evidence supported convictions for aggravated assault, theft by taking, and felony murder when the evidence showed that the defendant pulled the victim out of the victim's car, beat the victim with a pistol, stole the car, and deliberately backed over the victim; before the crime, the defendant told an eyewitness to those acts that the defendant planned to rob the victim; and the defendant used the victim's phone after the victim's death. Lupoe v. State, 284 Ga. 576 , 669 S.E.2d 133 (2008).
Defendant's conviction for aggravated assault was proper as several eyewitnesses, including the defendant's sister, testified that the defendant kicked the victim while the victim was lying on the ground. At best, the defendant's arguments were based on disagreement with the credibility determinations made by the trial judge. McDowell v. State, 284 Ga. 666 , 670 S.E.2d 438 (2008).
There was sufficient evidence to support two juveniles' adjudications of delinquency for the offenses of armed robbery, aggravated assault, and possession of a firearm during the commission of a crime based on the victim identifying the juveniles and the evidence that one of the juveniles used a gun to intimidate the victim into handing over the cash from the register of a gas station, shot the victim in the face causing severe injuries, and possessed a firearm during the commission of the crimes. In the Interest of R. S., 295 Ga. App. 772 , 673 S.E.2d 280 (2009).
Evidence that showed that during an argument with the victim, the defendant dragged the victim off a couch by the victim's hair and threw a table at the victim, that the victim fled on foot and attempted to make a 9-1-1 call, that the defendant pursued the victim in the defendant's truck, reached the victim, and held a knife to the victim, retreating only after another vehicle drove up, was sufficient to convict the defendant of family violence aggravated assault. Stone v. State, 296 Ga. App. 305 , 674 S.E.2d 31 (2009).
Contrary to a defendant's contention that the state presented only circumstantial evidence under former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6 ) that did not exclude all reasonable hypotheses except that of the defendant's guilt, the evidence was sufficient to support the conviction for felony murder and aggravated assault; the defendant's infant child died of a massive closed head trauma complicated by blunt force chest trauma, and the defendant had the sole care of the child just before the child suffered rib injuries allegedly due to the defendant pushing on the child's chest while the child was choking and just before the child suffered seizure-like symptoms. Berryhill v. State, 285 Ga. 198 , 674 S.E.2d 920 (2009).
As the defendant drove a car slowly by a house where rival gang members were while a car passenger repeatedly fired an assault rifle at the house, resulting in the death of two victims and injuries to two others, the defendant's convictions for felony murder, aggravated assault, and possession of a firearm during the commission of a felony were supported by the evidence. Deleon v. State, 285 Ga. 306 , 676 S.E.2d 184 (2009).
Convictions of two defendants of, inter alia, malice murder, felony murder, and aggravated assault were supported by sufficient evidence because eyewitnesses saw the defendants point guns at the victim, shoot, and flee. Daniel v. State, 285 Ga. 406 , 677 S.E.2d 120 (2009).
Sufficient evidence was presented to support a defendant's conviction for aggravated assault based on the victim's testimony that the defendant struck the victim in the head, a neighbor's testimony that the defendant stated that the defendant struck the victim in the head for failing to pay the defendant and that the neighbor found the victim lying on the ground, and the fact that, while the defendant claimed self defense, the blow was to the back of the victim's head. Howard v. State, 297 Ga. App. 316 , 677 S.E.2d 375 (2009).
As the victim testified that "he pointed it at me," and that "he never pointed the gun at my head, but he did point the gun at me," the jury was authorized to find from the evidence that the victim was placed in reasonable apprehension of violent injury and that the defendant was therefore guilty of aggravated assault. Lewis v. State, 297 Ga. App. 517 , 677 S.E.2d 723 (2009).
Evidence was sufficient to support the defendant's convictions of aggravated assault and aggravated battery. It showed that the defendant and other gang members opened fire on a crowd of rival gang members and that the bullets also wounded two people inside a duplex; the jury chose to disbelieve the defendant's alibi witnesses and to believe that of the eyewitnesses. Lopez v. State, 297 Ga. App. 618 , 677 S.E.2d 776 (2009), overruled on other grounds, State v. Gardner, 286 Ga. 633 , 690 S.E.2d 164 (2010).
Evidence supported the defendant's aggravated assault conviction when the defendant confronted the victim while holding a claw hammer and the victim defended the victim's self with a baseball bat based on the victim's fear that the defendant was going to strike the victim. Although the defendant argued that the defendant had no intent of hitting the victim with the hammer and that the victim attacked the defendant, the jury opted to believe the victim; furthermore, it was the victim's reasonable apprehension of injury from an assault by a deadly weapon that established the crime of aggravated assault, not the assailant's intent to injure. Crane v. State, 297 Ga. App. 880 , 678 S.E.2d 542 (2009).
Defendant's aggravated assault conviction under O.C.G.A. § 16-5-21(a)(2) was supported by evidence that the codefendant took a running kick at the victim's face while the defendant was present and that the defendant kicked the back of the victim's legs. Wilkinson v. State, 298 Ga. App. 190 , 679 S.E.2d 766 (2009).
Conviction of aggravated assault, O.C.G.A. § 16-5-21(a)(2), was supported by sufficient evidence and the trial court did not err in denying the defendant's motion for a directed verdict on this basis under circumstances in which the defendant became angry over some statements the defendant heard about the victim, punched the victim in the face, causing the victim to bleed, and knocked the victim to the ground; as the victim attempted to run, the defendant caught the victim and punched the victim in the side of the face, pulled the victim's hair, drove the victim's face into the defendant's knee, and repeatedly hit the victim in the face with the defendant's fist. The evidence of the extent of the damage inflicted on the victim by the defendant's repeated punches was sufficient to authorize the jury's verdict. Walker v. State, 298 Ga. App. 265 , 679 S.E.2d 814 (2009).
Sufficient evidence supported the defendant's armed robbery and aggravated assault convictions because the victim recognized the defendant as one of the people who, while armed with a gun, pushed their way into the victim's home, pushed the victim down, and demanded money when a mask the defendant was wearing fell down; the victim also identified the defendant from earlier occasions when the defendant was visiting the victim's neighborhood. Dubose v. State, 298 Ga. App. 335 , 680 S.E.2d 193 (2009).
Because the evidence was sufficient to authorize a rational trier of fact to find defendant guilty beyond a reasonable doubt as a party to aggravated assault with a deadly weapon under O.C.G.A. § 16-5-21(a)(2), the trial court did not err in failing to direct a verdict of acquittal. Artis v. State, 299 Ga. App. 287 , 682 S.E.2d 375 (2009).
Evidence was sufficient to support convictions for aggravated assault, aggravated battery, armed robbery, and kidnapping. The victims' in-court identifications of the defendant and the codefendant were buttressed by the evidence that a cell phone in the defendants' possession matched that taken from the victims, that a car of the type used by the robbers contained guns similar to those used in the robbery, and the fact that the codefendant had a key to that car. Wright v. State, 300 Ga. App. 32 , 684 S.E.2d 102 (2009).
Evidence supported the jury's determination that the defendant was guilty beyond a reasonable doubt of aggravated assault and aggravated battery, O.C.G.A. §§ 16-5-21 and 16-5-24 , because although the victim was under the influence of alcohol and in severe pain when making statements to the police and the emergency room physician, it was within the jury's province to find the victim's statements more credible than the victim's trial testimony; the victim's statements in a request to dismiss the charges, which acknowledged that the defendant was the individual who attacked the victim, did not occur while the victim was under any physical impairment. Works v. State, 301 Ga. App. 108 , 686 S.E.2d 863 (2009), cert. denied, No. S10C0458, 2010 Ga. LEXIS 251 (Ga. 2010).
Evidence was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of felony murder, aggravated assault, and possession of a firearm during the commission of a crime because a witness identified the defendant as the person the witness saw shooting and running, and witnesses testified that the day of the shooting the defendant told the witnesses that the victim had robbed the defendant; the mother of the defendant's children testified that, on the night of the shooting, the defendant came to her apartment in the same complex where the shooting took place, breathing heavily, and wearing a shirt with bullet holes in the shirt. Allen v. State, 286 Ga. 392 , 687 S.E.2d 799 (2010).
Evidence that defendant and another person burst into a home after they had lured the victim brandishing an automatic gun and wearing black t-shirts that said "Sheriff," handcuffed the victim, took the victim's money, and forced the victim to write a bill of sale for the victim's motorcycle was sufficient to support convictions for robbery by intimidation, O.C.G.A. § 16-8-41(a) , false imprisonment, O.C.G.A. § 16-5-41(a) , aggravated assault with a deadly weapon, O.C.G.A. § 16-5-21(a)(2), and impersonating a peace officer, O.C.G.A. § 16-10-23.23. Powers v. State, 303 Ga. App. 326 , 693 S.E.2d 592 (2010).
Evidence adduced was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of felony murder, armed robbery, and aggravated assault for attacking six people in a home because one of the victims stated that the victim saw defendant in the doorway after shots had been fired; whether the deal a codefendant made with the state rendered the codefendant's testimony biased to a degree that left the codefendant less creditworthy was a determination to be made by the jury. Mikell v. State, 286 Ga. 434 , 689 S.E.2d 286 , overruled on other grounds, Manley v. State, 287 Ga. 338 , 698 S.E.2d 301 (2010).
Because testimony about the circumstances of the victim's visit to a home where defendant was shot was relevant and admissible to explain defendant's motive in shooting the victim, the evidence was sufficient to convict defendant of malice murder, aggravated assault with a deadly weapon, and possession of a firearm during the commission of a felony. Taylor v. State, 287 Ga. 440 , 696 S.E.2d 652 (2010).
Defendant's convictions for aggravated child molestation, aggravated assault, enticing a child for an indecent purpose, kidnapping, false imprisonment, cruelty to children, burglary, theft by taking, and striking an unattended vehicle were authorized because at trial, the defendant was positively identified as the perpetrator of the crimes; a nurse and doctor testified that the victim had an injury that was consistent with the molestation allegation, and a videotape depicted the defendant driving a maintenance truck that the defendant did not have authority to take. Bearfield v. State, 305 Ga. App. 37 , 699 S.E.2d 363 (2010).
Since the victim was cut and hit by a shotgun during a struggle with defendant in defendant's attempt to obtain money for drugs, the evidence was sufficient to sustain defendant's convictions for armed robbery, aggravated assault, and possession of a firearm during the commission of a crime under O.C.G.A. §§ 16-5-21(a)(2), 16-8-41(a) , and 16-11-106(b)(1). Johnson v. State, 305 Ga. App. 838 , 700 S.E.2d 726 (2010).
Evidence was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of murder and aggravated assault because the defendant's conduct before, during, and after the crimes supported the finding that the defendant was a party thereto, notwithstanding the jury's acquittal of the defendant on three weapons charges. Allen v. State, 288 Ga. 263 , 702 S.E.2d 869 (2010).
Trial court did not err in determining that the evidence was sufficient to support the defendant's convictions for aggravated assault under O.C.G.A. § 16-5-21(a)(2) because overwhelming evidence adduced at trial showed that the defendant was at the scene, that the defendant had a handgun in the defendant's possession, and that the defendant drew the defendant's handgun and pointed the gun at the victim and the victim's companions as they were sitting in the victim's car, thereby placing them in reasonable apprehension of immediately receiving a violent injury. White v. State, 308 Ga. App. 38 , 706 S.E.2d 570 (2011).
Evidence was sufficient to enable a rational trier of fact to find the defendant guilty of malice murder, armed robbery, and aggravated assault beyond a reasonable doubt because although the defendant denied to police that the defendant had any contact with the silver car that was connected to the robbery, the defendant's fingerprints were found on the outside of the car, and an eyewitness's physical description of the second gunman from the robbery matched the defendant. Carter v. State, 289 Ga. 51 , 709 S.E.2d 223 (2011).
Evidence was sufficient under former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6 ) to support the defendant's convictions for malice murder, felony murder, aggravated assault, possession of a knife during the commission of a crime, financial transaction card fraud, and recidivism because there was evidence placing the defendant at the victim's home during the time of the murder and evidence of the victim's blood on the defendant's shoes, which the defendant intentionally chose not to wear when being questioned by police; the evidence, together with the defendant's own statements regarding the defendant's use of the victim's debit card, was sufficient to authorize the jury to determine that the state excluded all reasonable hypotheses save that of the defendant's guilt and to find the defendant guilty beyond a reasonable doubt of the crimes of which the defendant was convicted. Johnson v. State, 288 Ga. 771 , 707 S.E.2d 92 (2011).
Evidence was sufficient to support the defendant's convictions of armed robbery under O.C.G.A. § 16-8-41(a) , aggravated battery under O.C.G.A. § 16-5-24(a) , aggravated assault under O.C.G.A. § 16-5-21(a) , burglary under O.C.G.A. § 16-7-1(a)(2), possession of a firearm during the commission of a felony under O.C.G.A. § 16-11-106(b) , and conspiracy to possess cocaine under O.C.G.A. §§ 16-4-8 and 16-13-30(a) as a conspirator because, while the uncorroborated testimony of one accomplice was insufficient under former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8 ), the evidence sufficed to sustain defendant's conviction when an additional accomplice provided testimony to corroborate that of the first accomplice. Both codefendants testified that the defendant was present from the robbery's inception through the robbery's execution, that the defendant was aware of the conspiracy to obtain the victim's money and cocaine by armed robbery, and that the defendant willingly participated in the crimes and shared the criminal intent of those who committed the crimes inside the victim's residence by supplying the defendant's car and acting as a get-away driver. Watson v. State, 308 Ga. App. 871 , 708 S.E.2d 703 (2011).
Evidence was sufficient to support a conviction for aggravated assault since, pursuant to O.C.G.A. § 16-5-21 , the defendant intentionally committed an act that placed an apartment resident in reasonable apprehension of immediately receiving a violent injury. Craft v. State, 309 Ga. App. 698 , 710 S.E.2d 891 (2011).
Evidence was sufficient to support the defendant's conviction for aggravated assault because evidence was presented that the defendant and a codefendant entered a restaurant to rob the restaurant and shot two employees of the restaurant. In a statement to the police, the defendant admitted that the defendant entered the restaurant with a handgun to rob the restaurant, but the defendant claimed that the defendant heard gunshots and left the restaurant, while the codefendant gave a similar statement to the police. Watkins v. State, 289 Ga. 359 , 711 S.E.2d 655 (2011).
Rational jury could find the defendant guilty beyond a reasonable doubt of aggravated assault in violation of O.C.G.A. § 16-5-21(a)(2) because the evidence was sufficient for the jury to conclude beyond a reasonable doubt that the state disproved the defendant's self-defense claim; the jury was entitled to reject the defendant's version of events, and even if the jury found that the victim threw a bottle at the defendant's car, the jury could have concluded that the defendant struck the victim after any danger had passed and that the defendant's response was excessive. Hill v. State, 310 Ga. App. 695 , 713 S.E.2d 891 (2011).
Evidence of the circumstances was sufficient to establish the defendant's identity as the perpetrator and the defendant's guilt of armed robbery, O.C.G.A. § 16-8-41 , aggravated assault, O.C.G.A. § 16-5-21 , and possession of a firearm during the commission of a crime, O.C.G.A. § 16-11-106 , because the defendant matched the description of the perpetrator given by both a convenience store clerk and another store employee; when the defendant was apprehended, an officer recovered next to the defendant's person the contraband and instrumentalities used in the commission of the robbery. Daniels v. State, 310 Ga. App. 562 , 714 S.E.2d 91 (2011).
Defendant's convictions for armed robbery, aggravated assault, and malice murder were based on sufficient evidence where a victim in an apartment next to the defendant's apartment was fatally stabbed multiple times, there was physical evidence that tied the defendant to the criminal incident, and the defendant confessed to committing the crimes. Culpepper v. State, 289 Ga. 736 , 715 S.E.2d 155 (2011).
Because the defendant pointed a gun at the victim while defendant's accomplices robbed the victim, and thereafter shot at the victim's trailer, hitting a child and killing the victim's sister-in-law, the evidence was sufficient to find defendant guilty of felony murder, aggravated assault, armed robbery, cruelty to children, possession of a gun during the commission of a crime, and possession of a revolver by a person under the age of 18. Lytle v. State, 290 Ga. 177 , 718 S.E.2d 296 (2011).
Evidence was sufficient to authorize the defendant's convictions for hijacking a motor vehicle, in violation of O.C.G.A. § 16-5-44.1(b) , armed robbery, in violation of O.C.G.A. § 16-8-41 , aggravated assault, in violation of O.C.G.A. § 16-5-21 , and possession of a knife during the commission of a crime, in violation of O.C.G.A. § 16-11-106(b) , based on the defendant's involvement as a party to the crimes, or as a coconspirator under O.C.G.A. § 16-2-20(b) . The evidence presented was that: (1) when two people walked past the victim's parked vehicle, one of the people held a knife to the victim's stomach and ordered the victim to give the person the victim's wallet and keys; (2) the victim complied; (3) the person with the knife got into the driver's seat and the defendant, who had stood nearby during the incident, got into the passenger seat; (3) the victim identified the defendant as the person who got into the passenger seat; (4) the people drove away, but were apprehended; (5) the victim's wallet was recovered, on the ground to the rear of the vehicle, on the passenger side; and (6) the defendant wanted to leave the area because there was a warrant for the defendant's arrest. Harrelson v. State, 312 Ga. App. 710 , 719 S.E.2d 569 (2011).
Sufficient evidence showed the defendant committed aggravated assault, under O.C.G.A. § 16-5-21 , in the process of hijacking a victim's vehicle because: (1) the defendant showed a gun when the victim resisted the defendant's attempt to take the victim's car; (2) the victim grabbed the gun and tussled with the defendant showed a reasonable apprehension of harm; and (3) the victim was seriously injured. Campbell v. State, 314 Ga. App. 299 , 724 S.E.2d 24 (2012).
Evidence was sufficient to sustain the defendant's convictions for armed robbery, O.C.G.A. § 16-8-41(a) , aggravated assault, O.C.G.A. § 16-5-21 , and possession of a firearm during the commission of a felony, O.C.G.A. § 16-11-106(b) , because the victim testified about the assault and identified the defendant as the person who committed the assault; the competent testimony of even a single witness can be enough to sustain a conviction. Brown v. State, 314 Ga. App. 198 , 723 S.E.2d 520 (2012).
Evidence that the defendant was in the victim's home after a neighbor heard glass breaking and called 9-1-1, that a ribbon from the defendant's home was used to strangle the victim, that both the victim's and the defendant's DNA were on the ribbon, and that the victim's wedding ring was found in the defendant's pocket supported the defendant's convictions for aggravated assault. Muhammad v. State, 290 Ga. 880 , 725 S.E.2d 302 (2012).
Evidence was sufficient to support the defendant's convictions for felony murder, aggravated assault, possession of a firearm during the commission of a crime, and participation in criminal street gang activity. The defendant and fellow gang members walked toward a group of teenagers in a front yard while yelling and making gang signals; the defendant fired once into the crowd, killing the victim, who was unarmed; and the defendant, who fled the scene, was the only person who fired a weapon and was identified to police as the shooter by witnesses who knew the defendant by name. Jackson v. State, 291 Ga. 25 , 727 S.E.2d 120 (2012).
Evidence was sufficient to support a finding that the defendant was guilty beyond a reasonable doubt of aggravated assault with a deadly weapon, O.C.G.A. § 16-5-21(a)(2), and possession of a firearm during the commission of a crime against another person, O.C.G.A. § 16-11-106(b)(1), because a witness and a friend testified that they had seen the defendant shoot the victim. Redinburg v. State, 315 Ga. App. 413 , 727 S.E.2d 201 (2012).
Testimony that the defendant forced the defendant's way into a victim's house, kissed the victim against the victim's will, and attempted to pull the victim's pants down, stopping only when a car drove up, was sufficient to support the defendant's conviction for aggravated assault. Murrell v. State, 317 Ga. App. 310 , 730 S.E.2d 675 (2012).
Sufficient evidence supported the defendant's aggravated assault conviction, despite the defendant's claim that the defendant took nothing from the victim and did not point a weapon at the victim because: (1) it was undisputed that the crime occurred; and, (2) whether the defendant or the defendant's accomplice pointed the gun and took the property, the defendant could be convicted through the defendant's role as a party, under O.C.G.A. § 16-2-21 . Bush v. State, 317 Ga. App. 439 , 731 S.E.2d 121 (2012).
Witness's testimony that the witness and the defendant had been smoking crack cocaine down the street from the victim's apartment, the defendant left the house to get more drugs, and the defendant returned agitated and told the witness an old man stole the defendant's crack but the defendant "took care of him," and testimony the victim went head first through a window after being burned supported convictions for voluntary manslaughter and aggravated assault. Haymer v. State, 323 Ga. App. 874 , 747 S.E.2d 512 (2013).
Evidence was sufficient to support the defendant's convictions for armed robbery, aggravated assault, and possession of a firearm during the commission of a felony because, although the two passengers of the car committed the actual armed robbery, there was evidence that the defendant, the driver of the car, knew that the two passengers were armed and that the defendant "kind of sort of" knew what they were going to do, which supported a finding that the defendant participated in the robbery as the getaway driver. Smith v. State, 325 Ga. App. 745 , 754 S.E.2d 788 (2014).
Evidence, including the defendant's statement to police that the defendant had shot the victim, had meant to shoot the victim, and would have shot the victim again, was sufficient to support the defendant's convictions for aggravated assault and possession of a firearm during the commission of a crime. Taylor v. State, 327 Ga. App. 288 , 758 S.E.2d 629 (2014).
Evidence was sufficient to convict the defendant of two counts of aggravated battery, aggravated assault, and cruelty to children in the first degree because, when the defendant and the defendant's girlfriend brought their 11-week-old daughter to the emergency room, the infant had extensive bruises all over the infant's body, the infant's skull was fractured on both sides, and the infant was having seizures; the skull fractures were caused by two separate impacts; and a physician who was qualified as an expert in assessing abuse and intentional injury to children testified that the physician could think of no accidental force that would account for all of the infant's injuries. Busby v. State, 332 Ga. App. 646 , 774 S.E.2d 717 (2015).
Since the admission of the victim's identification of the defendant was not improper, the defendant's challenge to the sufficiency of the evidence based on that identification failed and the jury was authorized, based on the identification and the existence of the defendant's fingerprints on the victim's van, to find that the defendant committed both armed robbery and aggravated assault. Jackson v. State, 335 Ga. App. 500 , 782 S.E.2d 287 (2016).
Testimony that the victim demanded the return of the victim's motorcycle, while the victim's hands were on the motorcycle, the defendant started the motorcycle, and the victim had to move to avoid being hit when the defendant took off on the motorcycle was sufficient to support the defendant's conviction for aggravated assault. Newby v. State, 338 Ga. App. 588 , 791 S.E.2d 92 (2016).
Evidence was sufficient to convict the defendant of armed robbery and aggravated assault with a deadly weapon as a party to the crimes because a codefendant pointed a gun at the victim's side and demanded money; the codefendant told the defendant that they were going to kill the victim; the codefendant took the victim's cell phone, ordered the victim to disrobe, and raped the victim in the front seat of the car; during the rape, the victim could not escape from the car as the defendant was standing in front of the driver's door; and, after the victim transferred the victim's number to a new cell phone, the victim received calls for the defendant. Carter v. State, 339 Ga. App. 140 , 793 S.E.2d 459 (2016).
Sufficient evidence supported the defendant's convictions for armed robbery, false imprisonment, kidnapping, and aggravated assault based on the state showing that the defendant held the four boys at gunpoint, forced the boys into the pool to restrict their ability to flee, and stole two cell phones and money from the boys before fleeing. Smith v. State, 342 Ga. App. 656 , 805 S.E.2d 251 (2017).
Evidence was sufficient to convict the defendant of family violence aggravated assault and family violence aggravated battery because the victim's testimony that the victim and the defendant were romantically involved and had met 10 years before through mutual friends allowed the jury to conclude that they were not siblings; the defendant hit the victim with the defendant's fist and knocked out two of the victim's teeth; the defendant beat the victim with a wire clothes hanger; and the defendant squirted lighter fluid on the victim's head and chest, and used a lighter to set the victim on fire. Outz v. State, 344 Ga. App. 616 , 810 S.E.2d 678 (2018).
Evidence was sufficient to convict the defendant of malice murder, felony murder, and family violence aggravated assault because the defendant, who had a turbulent and troubled history with the victim, the defendant's father, got into an argument with the victim; the defendant then shot the victim six times with a semi-automatic handgun, killing the victim; the defendant's son heard the argument and witnessed the shooting; the defendant told one of the defendant's sisters that the defendant did not mean to kill the victim and only wanted to hurt the victim; and the defendant's son testified at the trial about witnessing the defendant shoot the victim, the son's grandfather. Puckett v. State, 303 Ga. 719 , 814 S.E.2d 726 (2018).
Trial court did not err in determining that the state carried the state's burden of introducing evidence that disproved the defendant's alleged justification for the defendant's use of deadly force because the defendant intentionally fired a gun at the defendant's fiancee and the fiancee's three children while they were sitting in the fiancee's car and it was within the jury's province to reject the defendant's contention that the defendant was afraid the fiancee was trying to run the defendant over. Williams v. State, 347 Ga. App. 171 , 818 S.E.2d 88 (2018).
Evidence was sufficient to convict the defendant of malice murder of the first victim, aggravated assault of the second victim, and possession of a firearm during the commission of a crime because the defendant pulled alongside the second victim's car at an intersection and shot into the passenger side of the car several times, killing the first victim; the second victim identified the defendant as the shooter; and the video recordings from the gas station's surveillance system and the city's street surveillance system that showed the incident that took place at the gas station before the shooting and showed the shooting were played for the jury. Johnson v. State, 305 Ga. 475 , 826 S.E.2d 89 (2019).
Evidence was sufficient to convict the defendant of aggravated assault of the victim with a deadly weapon and possession of a firearm during the commission of that crime because the victim testified that a passenger in a vehicle shot the victim; and the victim positively identified the defendant as the driver of the vehicle. Perdomo v. State, 307 Ga. 670 , 837 S.E.2d 762 (2020).
Evidence was sufficient to convict the second defendant of voluntary manslaughter and aggravated assault with a deadly weapon because the second defendant, the first defendant, and some of their friends engaged in a heated argument with the victim that escalated into a physical altercation, in which the defendants knocked the victim to the ground; the victim escaped from the fight by pulling a knife and cutting the second defendant; and the second defendant and the first defendant pulled handguns and fired at the victim as the victim tried to walk away with three bullets striking and ultimately killing the victim. Hamlette v. State (two cases), 353 Ga. App. 640 , 839 S.E.2d 161 (2020).
Evidence was sufficient to convict the defendant of aggravated assault because the aggravated assault statute, O.C.G.A. § 16-5-21 , did not require that the defendant point a deadly weapon directly at the second victim to be guilty of aggravated assault against the victim, but merely that the defendant used the deadly weapon in such manner as to place another in reasonable apprehension of immediately receiving a violent injury; the second victim was in reasonable apprehension of immediately receiving a violent injury when the defendant pulled a gun on the first victim; and the jury was authorized to find the defendant guilty of aggravated assault of the second victim as a party to the crime. Coates v. State, Ga. , S.E.2d (Oct. 5, 2020).
Slapping is sufficient for aggravated assault. - Allegation alleged that the defendant committed aggravated assault with intent to rape in that the defendant assaulted the girlfriend's daughter with the intent to rape her when the defendant slapped the daughter across the face with the defendant's hands. The evidence supported this accusation, showing that shortly after 6:30 A.M., the defendant threatened and slapped the daughter on the face as the defendant repeatedly attempted to penetrate the daughter. The defendant's argument on appeal that the slapping of the daughter's face did not constitute an assault is simply wrong. Boyd v. State, 289 Ga. App. 342 , 656 S.E.2d 864 (2008), cert. denied, 2008 Ga. LEXIS 498 (Ga. 2008).
Evidence sufficient for conviction of aggravated assault with gun. - Evidence supported defendant's conviction for aggravated assault because: (1) defendant thrust a handgun in the door of an ex-love interest's apartment, pointed it at the ex-love interest, and asked the ex-love interest if the ex-love interest was going to call the defendant anymore; (2) the ex-love interest said no and shut the door; (3) defendant then shot two rounds through the door; (4) two shell casings were found on the apartment floor; and (5) a matching shell casing and a photograph of defendant with a handgun were found at another love interest's house. Johnson v. State, 274 Ga. App. 641 , 618 S.E.2d 716 (2005).
Trial court properly denied defendant's motion for acquittal as a matter of law, pursuant to O.C.G.A. § 17-9-1 , as the evidence was sufficient to support defendant's conviction on four counts of assault, in violation of O.C.G.A. §§ 16-5-20 and 16-5-21(a)(2), as defendant and the codefendant committed two home invasions, whereupon the victims therein were fearful, some were harmed, and during the incidents, defendant held a night stick and instructed the victims to cooperate with the codefendant, who brandished a handgun. Moyer v. State, 275 Ga. App. 366 , 620 S.E.2d 837 (2005), overruled on other grounds, Vergara v. State, 283 Ga. 175 , 657 S.E.2d 863 (2008).
Because sufficient evidence was presented that the defendant was provoked by an attack on a sibling, and that the defendant had a history of abusive relationships with several men, the voluntary manslaughter of the male victim was supported by the evidence; moreover, evidence of the victim's stabbing and death also supported the jury's verdict with respect to the aggravated assault with a deadly weapon, felony murder, and possession of a knife during the commission of a felony charges. Breland v. State, 285 Ga. App. 251 , 648 S.E.2d 389 (2007).
Trial court properly denied the defendant's motion for a new trial, and an aggravated assault conviction was upheld on appeal, as the state was not required to show that the defendant expressed an intent to rob or declared a purpose to carry that intent into effect, for the jury to arrive at the conclusion that such was the defendant's intent; moreover, the defendant's intention could be gathered from the circumstances of the case as proved, and in seeking the motives of human conduct, inferences and deductions could properly be considered when the inferences and deductions flowed naturally from the facts proved. Squires v. State, 286 Ga. App. 141 , 648 S.E.2d 696 (2007).
The O.C.G.A. § 17-10-30(b)(8) statutory aggravating circumstance does not require knowledge on the part of the defendant that the victim was a peace officer or other designated official engaged in the performance of official duties. Fair v. State, 284 Ga. 165 , 664 S.E.2d 227 (2008).
Evidence that: (1) a sister of one of two shooting victims described the defendant to police; (2) the defendant admitted having held a gun near the crime scene at the time of the shooting; and (3) a victim, who knew the defendant and had seen the defendant from a distance of three to four feet, identified the defendant as the shooter, was sufficient to sustain the defendant's convictions of two counts of aggravated assault under O.C.G.A. § 16-5-21 . Carlos v. State, 292 Ga. App. 419 , 664 S.E.2d 808 (2008).
Testimony by a victim that the defendant and an accomplice, armed with handguns, forcibly entered the victim's apartment, raped and sodomized the victim, struck the victim with a gun, stole jewelry, bound the victim, and escaped in a car owned by the victim's prospective spouse, and evidence that 24 fingerprints lifted from the apartment and car matched the defendant's was sufficient to convict the defendant of aggravated assault. Crawford v. State, 292 Ga. App. 463 , 664 S.E.2d 820 (2008).
Brandishing a gun, a masked individual moved a wheelchair-bound restaurant manager to a hidden safe and ordered the manager to open the safe. The manager's identification of the perpetrator as the defendant, a former employee, from the defendant's distinctive voice, and the perpetrator's knowledge of the safe's location, authorized the jury to find defendant guilty of aggravated assault by placing a gun to the victim's head. Johnson v. State, 293 Ga. App. 728 , 667 S.E.2d 637 (2008).
With regard to a defendant's conviction for aggravated assault, there was sufficient evidence to support the conviction based on the victim's testimony that the defendant was the individual who approached the victim's car with a gun and ordered the victim out, causing the victim to be in fear. Kashamba v. State, 295 Ga. App. 540 , 672 S.E.2d 512 (2009).
Evidence that the defendant shot the victim at close range; that the victim, who knew the defendant well, identified the defendant from a photo line-up and at trial; and that a witness told police of driving the defendant to find the victim and of witnessing the shooting, was sufficient to convict the defendant of aggravated battery, aggravated assault, and possession of a firearm during the commission of those crimes. Spencer v. State, 296 Ga. App. 828 , 676 S.E.2d 274 (2009).
Evidence authorized the jury to conclude that the defendant was guilty beyond a reasonable doubt of malice murder, armed robbery, and aggravated assault because defendant and defendant's codefendants entered an apartment masked and armed with an assault rifle, and the defendant fired the rifle at the victim and fatally wounded the victim. Zackery v. State, 286 Ga. 399 , 688 S.E.2d 354 (2010).
Evidence that a defendant threatened to and then intentionally returned with armed associates to the scene of an unsatisfactory marijuana purchase and participated in a shootout, causing a chest wound to a 16-year-old boy in a nearby house, supported the defendant's conviction for aggravated assault in violation of O.C.G.A. § 16-5-21(a)(2). Dennis v. State, 304 Ga. App. 510 , 696 S.E.2d 333 (2010).
Evidence was sufficient for a rational trier of fact to find the defendant guilty of aggravated assault in violation of O.C.G.A. § 16-5-21(a)(2) beyond a reasonable doubt because a witness to the incident testified that the defendant intentionally fired the defendant's gun in a guest's direction after the defendant became upset with the guest's jokes; a bullet hole was also found inside the refrigerator where the guest had been sitting. Williams v. State, 307 Ga. App. 577 , 705 S.E.2d 332 (2011).
Evidence was sufficient to support the convictions of murder, aggravated assault, and firearm possession in connection with the shooting death of the victim because the evidence showed that: (1) the defendant's teenage children made a cell phone call to the children's parents' home to tell them that the children were being followed by a motorcycle rider; (2) as the children arrived home, the defendant exited from the house with a handgun; (3) the defendant fired two warning shots at the rider when the rider rode past; (4) the rider turned the motorcycle around and when the rider rode past the house again, the defendant fired again as the defendant claimed that the rider swerved toward the defendant; and (5) this shot struck the victim, resulting in the victim's death. Gear v. State, 288 Ga. 500 , 705 S.E.2d 632 (2011), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
In an action for aggravated assault, testimony from a victim that the defendant shot a handgun toward the victim and others and testimony that the defendant had been texting a victim and caused the victim to be afraid that the defendant was coming to the victim's apartment and there would be a problem was sufficient for the jury to conclude that the defendant was guilty as indicted. Sullins v. State, 350 Ga. App. 83 , 828 S.E.2d 142 (2019).
Evidence was sufficient to convict the defendant of three counts of aggravated assault with a deadly weapon because, after verbal and physical altercations with the defendant's live-in girlfriend and the girlfriend's brother, the defendant fired several shots from a gun toward a departing car carrying the three aggravated assault victims named in the indictment - the defendant's girlfriend, the girlfriend's brother, and the girlfriend's mother; a bullet struck the car near where one of the victims was sitting; and a jury could find that the defendant intentionally fired the gun in the three victims' direction. Bashir v. State, 350 Ga. App. 852 , 830 S.E.2d 353 (2019).
Evidence that the defendant fired several shots at the victim outside of the pool hall and that one of those shots struck the victim in the back was sufficient to support the defendant's conviction for aggravated assault. Sherrod v. State, 355 Ga. App. 441 , 844 S.E.2d 508 (2020).
Evidence sufficient when air pistol pointed at victim. - Evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of aggravated assault in violation of O.C.G.A. § 16-5-21(a)(2) because the defendant pointed an air pistol at the victim and threatened to kill the victim. Leeks v. State, 309 Ga. App. 724 , 710 S.E.2d 908 (2011).
Jury was authorized to find the defendant guilty of voluntary manslaughter, O.C.G.A. § 16-5-2(a) , aggravated assault, O.C.G.A. § 16-5-21(a)(2), possession of a firearm during the commission of a crime, O.C.G.A. § 16-11-106(b)(1), carrying a concealed weapon, O.C.G.A. § 16-11-126(b) , and possession of a firearm by a convicted felon, O.C.G.A. § 16-11-131(b) , because during an argument with the victims, the defendant shot the victims and threatened to kill the victims. White v. State, 312 Ga. App. 421 , 718 S.E.2d 335 (2011).
Evidence was sufficient to convict the defendant of aggravated assault and aggravated battery because the victim turned to see the defendant pointing a gun to the victim's head; the victim pushed the defendant's hand away; the defendant came back swinging and hit the victim with the pistol; the victim grabbed the defendant and they tussled; the defendant then shot the victim, severing the victim's spine; and the victim was now confined to a wheelchair. Williams v. State, 332 Ga. App. 805 , 775 S.E.2d 178 (2015).
Aggravated assault against grandparents. - As a victim's grandparent was present in the victim's home when the defendant shot the victim three times, the jury could have inferred that the grandparent reasonably feared suffering a violent injury during the shooting. Therefore, the evidence was sufficient to convict the defendant of aggravated assault under O.C.G.A. § 16-5-21 as to the grandparent. Hollis v. State, 295 Ga. App. 529 , 672 S.E.2d 487 (2009).
Evidence sufficient for conviction of aggravated assault upon peace officer. - See Brown v. State, 180 Ga. App. 361 , 349 S.E.2d 250 (1986); Reddin v. State, 223 Ga. App. 148 , 476 S.E.2d 882 (1996).
Defendant committed aggravated assault on a police officer in an offensive manner, resulting in injuries to the officer; it was a jury question as to whether defendant's testimony that defendant intended no harm was believed or not. Dyer v. State, 261 Ga. App. 289 , 585 S.E.2d 81 (2003).
There was sufficient evidence to support defendant's conviction for aggravated assault on a peace officer in violation of O.C.G.A. § 16-5-21 where deputies testified that defendant was pointing defendant's pistol at all of them as defendant made defendant's way towards a trailer in defendant's backyard and then ran off into the woods; one deputies conflicting testimony as to whether the officer feared for the officer's life was a matter of credibility that was determined by the jury, and there was evidence that the deputies had identified themselves as peace officers to defendant. Logan v. State, 265 Ga. App. 134 , 593 S.E.2d 14 (2003).
Evidence was sufficient to show that a juvenile was a party to aggravated assault on a victim when one or more of four gunmen including the juvenile shot into another person's residence because the victim's car was parked; the presence of the victim's car at the house was circumstantial evidence from which the court could find the shooters believed someone was in the house and that they intended to commit a violent injury to the victim by firing their weapons. In the Interest of M.D.L., 271 Ga. App. 738 , 610 S.E.2d 687 (2005).
Evidence that defendant, who was driving a vehicle being pursued by law enforcement officers' vehicles, after an officer unsuccessfully attempted to arrest defendant for domestic violence, called the spouse and told the spouse to call off the officers or defendant would try to kill them by colliding the defendant's vehicle with theirs and then tried to run an officer off the road was sufficient to support defendant's conviction for aggravated assault upon a police officer, and any conflict in the testimony was for the jury to resolve. Razinha v. State, 273 Ga. App. 583 , 615 S.E.2d 649 (2005).
Evidence that a defendant, after bringing the defendant's vehicle to a complete stop and making eye contact with a police officer, accelerated and struck a patrol car, causing damage to the vehicle, supported the defendant's conviction for aggravated assault on a peace officer under O.C.G.A. § 16-5-21(a)(2) and (c). Branton v. State, 292 Ga. App. 104 , 663 S.E.2d 414 (2008), cert. denied, No. S08C1771, 2008 Ga. LEXIS 873 (Ga. 2008).
On a charge for aggravated assault of a peace officer, the court rejected the defendant's argument that the officer was never in immediate apprehension of harm. The officer testified that the officer was in fear of receiving a violent injury when the defendant suddenly pulled away from a traffic stop, which was sufficient for the jury to find that the defendant committed aggravated assault. Little v. State, 298 Ga. App. 298 , 680 S.E.2d 154 (2009).
Evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant committed an assault upon a corporal with the county sheriff's department with a knife while the corporal was engaged in official duties because, while the defendant cited to testimony implying that a deputy had secured the knife by the time the corporal joined the struggle, other testimony indicated that the corporal was lying on top of the defendant and attempting to restrain the defendant while the defendant continued to wield the knife against police officers; even if the Court of Appeals considered the testimony the police officers provided to be inconsistent, conflict in the testimony of witnesses was for resolution by the jury and not the Court of Appeals. Dobbs v. State, 302 Ga. App. 628 , 691 S.E.2d 387 (2010).
Knowledge that victim was peace officer as part of jury instruction. - In a prosecution for aggravated assault upon a police officer, O.C.G.A. § 16-5-21(c) , the trial court's instructions regarding the defense of misapprehension of fact, and that intent was an essential element of any crime, were insufficient to convey to the jury the requirement that the defendant had to have known that the victim was a peace officer. The error was not harmless as the entire defense was based on the defendant's alleged lack of knowledge that the defendant's assault victim was a peace officer. Fedd v. State, 298 Ga. App. 508 , 680 S.E.2d 453 (2009), cert. denied, No. S09C1776, 2009 Ga. LEXIS 793 (Ga. 2009).
Aggravated assault with intent to rob supported by evidence. - Identification testimony was sufficient to establish beyond a reasonable doubt that defendant was the perpetrator of the offenses of theft by sudden snatching and aggravated assault with intent to rob. Tolbert v. State, 180 Ga. App. 703 , 350 S.E.2d 51 (1986).
Aggravated assault, possession of firearm, and discharge of firearm sufficient to support felony murder conviction. - Because defendant and an accomplice ordered the victim and another individual against a wall, took the victim's money at gunpoint, and defendant began to point and wave the gun when it fired, resulting in the victim being shot and subsequently dying, the evidence was sufficient for a rational trier of fact to find defendant guilty of felony murder while committing aggravated assault and of possession of a firearm. Taylor v. State, 279 Ga. 706 , 620 S.E.2d 363 (2005).
Aggravated assault and felony murder. - Evidence in support of the state's theory that the defendant killed the victim in an unprovoked aggravated assault, based on expert testimony that the victim died from a deliberate and forceful strike with a knife, and evidence that discounted any possible accident or lack of intent, was sufficient to support the defendant's conviction for felony murder during the commission of an aggravated assault Nichols v. State, 281 Ga. 483 , 640 S.E.2d 40 (2007).
Jury was authorized to find that the evidence was sufficient to find the defendant guilty beyond a reasonable doubt of felony murder during the commission of aggravated assault in the manner alleged in the indictment because at trial the medical examiner testified that the cause of the victim's death was suffocation; although the defendant told an ex-spouse over the phone that the defendant choked the victim, there was no other evidence to corroborate that statement while there was much physical and scientific evidence that pointed to the cause of death as suffocation. Davis v. State, 290 Ga. 421 , 721 S.E.2d 886 (2012).
Rule against mutually exclusive verdicts did not apply. - Rule against mutually exclusive verdicts did not apply to the verdicts returned by the jury of guilty on a charge of malice murder, but not guilty by reason of insanity on a charge of aggravated assault. Taylor v. State, 282 Ga. 502 , 651 S.E.2d 715 (2007).
Conviction for multiple felonies appropriate. - Evidence presented by the prosecution was sufficient to enable any rational trier of fact to find the defendant guilty of armed robbery, kidnapping, and aggravated assault with intent to rob. Conway v. State, 183 Ga. App. 573 , 359 S.E.2d 438 (1987).
Evidence was sufficient to support convictions of murder, aggravated assault, armed robbery, burglary, and possession of a firearm in the commission of a felony. Baty v. State, 257 Ga. 371 , 359 S.E.2d 655 (1987).
Evidence was sufficient to enable a rational trier of fact to find the appellant guilty of malice murder, felony murder, aggravated assault, and possession of a firearm by a convicted felon in the shooting deaths of two victims. Burtts v. State, 269 Ga. 402 , 499 S.E.2d 326 (1998).
Evidence was sufficient to enable a rational trier of fact to find each defendant guilty of malice murder, felony murder predicated on aggravated assault and aggravated assault. Whitaker v. State, 269 Ga. 462 , 499 S.E.2d 888 (1998).
Trial court did not err in denying defendant's motion to correct illegal sentence, pursuant to O.C.G.A. §§ 16-1-6 and 16-1-7 , as defendant's convictions for aggravated assault and kidnapping, in violation of O.C.G.A. §§ 16-5-21 and 16-5-40(a) , respectively, did not merge as a matter of law, as only aggravated assault and kidnapping with bodily injury merged as a matter of law; further, the crimes did not merge as a matter of fact, as they were based on separate and distinct facts, and due to the timing of defendant's actions during the incident, the separate convictions were proper. Walker v. State, 275 Ga. App. 862 , 622 S.E.2d 64 (2005).
Testimony of a single witness sufficient. - Testimony of a single witness was sufficient to authorize a jury's verdict that the defendant was guilty beyond a reasonable doubt of committing aggravated assault with a deadly weapon and that the defendant committed simple battery by intentionally kicking the victim on the ankle, causing a bruise. Ringo v. State, 236 Ga. App. 38 , 510 S.E.2d 893 (1999).
Witness's testimony was sufficient to authorize a factfinder to determine that the witness was not an accomplice, obviating the need for the testimony to be corroborated under former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8 ) , and based on that testimony, a rational trier of fact could have found, beyond a reasonable doubt, that the juvenile had committed the act of aggravated assault. In re A.Z., 301 Ga. App. 524 , 687 S.E.2d 887 (2009), cert. denied, No. S10C0492, 2010 Ga. LEXIS 335 (Ga. 2010).
Prospective juror properly excluded on basis of bias. - When the defendant was convicted of aggravated assault, the trial court did not err in excusing for cause a prospective juror who was acquainted with defense counsel as the juror's statement that the juror worked with a criminal defense firm, and could not give the state a fair hearing clearly established a leaning or bias on the part of the juror, which made the juror subject to being excused for cause. Bell v. State, 276 Ga. 206 , 576 S.E.2d 876 (2003).
Verdict of guilty but mentally ill supported by evidence. - When the defendant was indicted for assault with intent to rape and the evidence showed that the defendant was a paranoid schizophrenic with borderline mental retardation at the time of the crime but that the defendant knew the difference between right and wrong at that time, the evidence supported a verdict of guilty but mentally ill. Jackson v. State, 166 Ga. App. 477 , 304 S.E.2d 560 (1983).
Inconsistent verdicts. - Fact that jury acquitted defendant of charges of kidnapping and armed robbery arising out of the same incident in which defendant committed aggravated assault did not mean that the evidence was insufficient to convict defendant of the aggravated assault where the other two alleged offenses occurred before the aggravated assault such that the verdicts were not necessarily inconsistent; in any event, the inconsistent verdict rule does not apply in criminal cases. Thomas v. State, 257 Ga. App. 350 , 571 S.E.2d 178 (2002).
Jury's verdict finding defendants guilty of reckless conduct against a victim after one of the defendants fired a shot at a car was factually inconsistent with the jury's verdict finding defendants guilty of aggravated assault against the same victim; because the appellate court could not determine if the jury reached inconsistent verdicts, it reversed defendants' convictions for both offenses and remanded the case for a new trial on those charges. Reddick v. State, 264 Ga. App. 487 , 591 S.E.2d 392 (2003), overruled on other grounds by State v. Springer, 297 Ga. 376 , 774 S.E.2d 106 (2015).
Evidence that the defendant fired a gun in the victim's direction from within a vehicle, thereby frightening the victim, was sufficient to sustain a conviction for aggravated assault as defined by O.C.G.A. § 16-5-21(a)(3); the result was not changed by the fact that the defendant was acquitted of aggravated assault under § 16-5-21(a)(2). Hardeman v. State, 277 Ga. App. 180 , 626 S.E.2d 138 (2006).
There was no merit to a defendant's argument that a guilty verdict on an aggravated assault charge as to one of the victims was inconsistent with a not guilty verdict on an armed robbery charge as to that victim. The inconsistent verdict rule was abolished; moreover, since the crimes had different elements, the jury could have found that the defendant was guilty of assaulting both victims but robbing only one of the victims. Bethune v. State, 291 Ga. App. 674 , 662 S.E.2d 774 (2008).
Evidence insufficient for conviction. - See Montford v. State, 254 Ga. App. 524 , 564 S.E.2d 216 (2002).
Insufficient evidence supported the defendant's conviction of aggravated assault under O.C.G.A. § 16-5-21(a) ; in superficially wounding the victim after the fatal stabbing had occurred and after the victim was either dead or unconscious, there was no evidence that the defendant intended to violently injure the victim or that the victim was placed in reasonable apprehension of being violently injured. Perez v. State, 281 Ga. 175 , 637 S.E.2d 30 (2006).
Convictions of aggravated battery, O.C.G.A. § 16-5-24 , aggravated assault, O.C.G.A. § 16-5-21 , and possession of a firearm during the commission of a felony, O.C.G.A. § 16-11-106 , were not supported by sufficient evidence because, although the defendant's conduct before the crime was suspicious, the circumstantial evidence against the defendant was insufficient under former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6 ); the state did not show that the defendant was anywhere near the scene at the time of the shooting, did not present evidence connecting a weapon used in the shooting to the defendant, and, although a witness testified that three days before the shooting, the witness saw the defendant's brother hand the defendant a gun, the witness could not identify the type of gun involved, and this testimony did not connect the defendant with the shooting. The state also failed to adduce evidence that the defendant intentionally aided, abetted, or encouraged the commission of the crimes of which the defendant was convicted. Gresham v. State, 298 Ga. App. 136 , 679 S.E.2d 344 (2009).
Evidence insufficient to convict juvenile defendant. - Evidence was insufficient to support a juvenile's adjudication of delinquency for aggravated assault with the intent to rob under O.C.G.A. § 16-5-21 when the juvenile placed the juvenile's hands in the victim's pockets to see what the victim was carrying. In the Interest of D.M., 308 Ga. App. 589 , 708 S.E.2d 550 (2011).
Evidence did not support self-defense claim. - Evidence was sufficient for the jury to reject the defendant's claim of self-defense and to support the defendant's aggravated assault and possession of a firearm during the commission of a crime conviction because, inter alia, two witnesses yelled at the defendant to put the gun away, but the defendant shot the victim a second time, the defendant testified that the defendant believed that the victim was holding a weapon behind the victim's leg when the victim got out of the car and that the defendant heard someone yell "bust," which the defendant understood to mean "shoot," and another witness heard no such statement and did not see anything in the victim's hands when the victim exited the car. Hill v. State, 276 Ga. App. 874 , 625 S.E.2d 108 (2005).
Felony murder and aggravated assault convictions were upheld on appeal as the defendant's defense of self-defense lacked merit given evidence that any imminent threat posed against the defendant had passed, the victim was shot in the head after the confrontation ended, and the victim retreated to the victim's car and was being driven away at the time the fatal shot was dealt. Woolfolk v. State, 282 Ga. 139 , 644 S.E.2d 828 (2007).
Despite the defendant's claim that the state failed to disprove a claim of self-defense, the appeals court upheld the defendant's aggravated assault conviction, because sufficient evidence was presented to allow the jury to decide that the defendant's act of stabbing the weaponless victim amounted to excessive force. Thus, the defendant's motion for a new trial on the issue was properly denied. Richards v. State, 288 Ga. App. 814 , 655 S.E.2d 690 (2007).
Justification defense. - In defendant's trial on a charge of aggravated assault under O.C.G.A. § 16-5-21(a) , the trial court did not err under former O.C.G.A. § 24-9-64 (see now O.C.G.A. § 24-6-611 ) in precluding the defendant from cross-examining the victim about what the victim meant when the victim said that there was tension in the victim's relationship with the defendant and that the victim was going through a transitional period in the victim's life; while the defendant contended that the defendant wanted to examine the victim about the victim's failure to comply with a drug rehabilitation program in which the victim was enrolled and that the defendant was upset about the possibility that the victim would leave Georgia if the victim failed to complete the program, thereby ending the relationship, such evidence was irrelevant to the defendant's justification defense because it was not evidence either of the victim's general reputation for violence or of specific acts of violence perpetrated by the victim. Evidence about the status of the couple's relationship and the nature of the couple's arguments in the week leading up to their fight would not have shed any light on whether the defendant was in reasonable fear of suffering immediate serious harm personally when the defendant choked the victim and threatened to kill the victim. As such, the trial court did not err in ruling that the evidence was irrelevant. Chambers v. State, 308 Ga. App. 748 , 708 S.E.2d 651 (2011).
Improper comment on evidence by court was reversible error. - On appeal from an aggravated assault conviction, because the trial judge improperly commented on the evidence in violation of O.C.G.A. § 17-8-57 by telling the jury that the parties agreed that there was no gun involved in the incident, the comment amounted to reversible error entitling the defendant to a new trial. Brimidge v. State, 287 Ga. App. 23 , 651 S.E.2d 344 (2007).
Claim of error waived on appeal when exclusion of evidence not raised at trial. - On appeal from convictions for murder and aggravated assault, the defendant waived any error regarding the exclusion of a videotaped statement on appeal, which the defendant claimed would have supported a voluntary manslaughter theory, by failing to raise the claim specifically at trial. Johnson v. State, 282 Ga. 96 , 646 S.E.2d 216 (2007).
Withdrawal of guilty pleas properly denied. - Because: (1) the facts of the case as narrated by the prosecutor presented a sufficient factual basis for the defendant's pleas to both aggravated assault and two battery counts; (2) the trial court informed the defendant of the consequences of the guilty pleas, waiver of certain constitutional and statutory rights, and the minimum and maximum possible sentences for the crimes charged; and (3) the defendant admitted guilt and to entering the guilty plea freely and voluntarily, the trial court did not abuse its discretion in denying withdrawal of the pleas. Foster v. State, 281 Ga. App. 584 , 636 S.E.2d 759 (2006).
Defendant's motion to withdraw the defendant's guilty plea was properly denied as withdrawal of the plea was not necessary to correct a manifest injustice since: (1) the defense counsel was not ineffective; (2) the state showed that the defendant's plea was knowing, intelligent, and voluntary; (3) the trial court was entitled to discredit contradictory testimony given by the defendant at the motion to withdraw the plea hearing; and (4) the defendant's claim that the defendant had nothing to gain by entering a "blind" plea failed as even assuming, that an aggravated assault conviction would have merged with an armed robbery conviction and that five convictions of possession of a firearm during the commission of a crime would have merged with each other for sentencing purposes, the defendant still would have faced an additional five years' to serve if the defendant had not pled guilty. Brown v. State, 280 Ga. App. 767 , 634 S.E.2d 875 (2006).
Trial court did not err in denying the defendant's motion to withdraw the guilty plea to armed robbery, O.C.G.A. § 16-8-41(a) , aggravated assault with a deadly weapon, O.C.G.A. § 16-5-21(a)(2), cruelty to children in the first degree, O.C.G.A. § 16-5-70(b) , and possession of a firearm during the commission of a felony, O.C.G.A. § 16-11-106(b)(1), because the state met the state's burden of showing that the defendant understood the constitutional rights the defendant was giving up by pleading guilty, that the defendant understood that since the plea was non-negotiated, the trial court would sentence the defendant to at least ten years imprisonment and could sentence the defendant to a maximum sentence of life in prison, and that the defendant knowingly and voluntarily entered the guilty plea in order to avoid a trial on the indicted charges. Carson v. State, 314 Ga. App. 225 , 723 S.E.2d 516 (2012), overruled on other grounds, Nazario v. State, 293 Ga. 480 , 746 S.E.2d 109 (2013).
Trial court did not err in denying the defendant's motion to withdraw a guilty plea to aggravated assault because the victim suffered a burning sensation in the victim's eyes and face, was in a great deal of pain, and was temporarily blinded after the defendant sprayed the victim with mace. Weaver v. State, 325 Ga. App. 51 , 752 S.E.2d 128 (2013).
Sentencing. - When defendant was convicted of aggravated assault, defendant's prior convictions for aggravated assault and criminal damage to property, which had been used during the guilt-innocence phase of defendant's trial for impeachment purposes, could be used at sentencing because a repeat offender convicted of aggravated assault could be sentenced as a recidivist, under O.C.G.A. § 17-10-7(a) , and there was no restriction in the aggravated assault statute, O.C.G.A. § 16-5-21 , that limited the use of prior convictions to the guilt-innocence phase of trial such that they could not be used again at the sentencing phase of trial. Carswell v. State, 263 Ga. App. 833 , 589 S.E.2d 605 (2003).
Trial court did not err in sentencing defendant because the sentence it imposed on defendant was 10 years in prison and 10 years probation for aggravated assault, 10 years in prison to run concurrently for aggravated battery, and five years confinement to run consecutively for possession of a firearm during the commission of a crime, as each part of defendant's sentence was well within the statutory limits for the respective crime involved; accordingly, defendant's sentences would not be modified on appeal. King v. State, 269 Ga. App. 658 , 605 S.E.2d 63 (2004).
Because the trial court set aside the defendant's aggravated assault conviction, a claim that the trial court erred in failing to merge the aggravated assault with an armed robbery conviction for sentencing purposes, lacked merit. Lawrence v. State, 289 Ga. App. 163 , 657 S.E.2d 250 (2008).
Because the Supreme Court of Georgia had already affirmed the defendant's convictions and sentences for felony murder predicated on aggravated assault by striking the victim with a gun with the intent to rob and felony murder predicated on aggravated assault by striking the victim with a gun, an instrument when used offensively against a person is likely to result in serious bodily injury, the trial court properly denied a subsequent pro se motion to correct an illegal sentence. Brady v. State, 283 Ga. 359 , 659 S.E.2d 368 (2008).
As the defendant was not sentenced as a recidivist under O.C.G.A. § 17-10-7(c) or to the maximum term pursuant to § 17-10-7(a) for a conviction of aggravated assault, in violation of O.C.G.A. § 16-5-21(b) , the defendant's claim that the sentencing imposed was improper lacked merit. Tatum v. State, 297 Ga. App. 550 , 677 S.E.2d 740 (2009).
Trial court did not impose an unjustifiably lengthy sentence merely because a defendant chose to require the prosecution to prove the defendant's guilt at trial rather than to enter a plea of guilty because the trial court sentenced defendant to the maximum term of 20 years in prison for kidnapping and on each of the aggravated assault counts, the trial court also exercised the court's discretion to run all of the counts concurrently instead of consecutively; the defendant's claim that the trial court punished the defendant for exercising the defendant's right to a jury trial was not supported by the transcript, which revealed that the sentence imposed by the trial court was based on the defendant's lack of remorse. Brown v. State, 299 Ga. App. 782 , 683 S.E.2d 874 (2009).
Defendant's sentence of 20 years to serve for armed robbery, 20 years probation for aggravated assault, and 5 years probation for possession of a firearm during the commission of a felony, each to run consecutively, did not constitute cruel and unusual punishment in violation of the Eighth Amendment because the trial court's sentence fell within the statutory range of punishment, O.C.G.A. §§ 16-5-21(b) , 16-8-41(b) , and 16-11-106(b) ; under O.C.G.A. § 17-10-10(a) , it was within the trial court's discretion to order that the defendant's sentences on armed robbery and aggravated assault run consecutively. McKenzie v. State, 302 Ga. App. 538 , 691 S.E.2d 352 (2010).
Defendant's life sentence for armed robbery was within the statutory limits, O.C.G.A. § 16-8-41(b) , and the 20-year sentences imposed for the defendant's aggravated assaults were within the statutory range of punishment under O.C.G.A. § 16-5-21(b) . Therefore, the sentences were not void, and the court had no basis for disturbing the sentences. Gillespie v. State, 311 Ga. App. 442 , 715 S.E.2d 832 (2011).
Defendant's sentence, as a recidivist, of concurrent 20 year terms on each of three counts of aggravated assault, concurrent five year terms on each of three counts of possession of a firearm during the commission of a crime, to run consecutive to the aggravated assault sentence, and concurrent 15 year terms on each of two counts of possession of a firearm by a convicted felon, to run consecutive to the aggravated assault sentence, was not cruel, inhumane, and unusual punishment because each sentence was within the statutory limits of the crimes charged, and the sentence was not grossly disproportionate to the underlying crimes. Willis v. State, 316 Ga. App. 258 , 728 S.E.2d 857 (2012).
State did not have the right to appeal sentences imposed by the trial court contrary to a plea agreement under O.C.G.A. § 5-7-1(a)(6) because the 15-year sentences, with five years to serve and the remainder on probation, were not void; they were within the 20-year range of punishments for robbery and aggravated assault, O.C.G.A. §§ 16-5-21(b) & 16-8-40(b) . State v. Harper, 279 Ga. App. 620 , 631 S.E.2d 820 (2006) was overruled. State v. King, 325 Ga. App. 445 , 750 S.E.2d 756 (2013).
In an aggravated assault case, the defendant was not entitled to a new trial because the trial court did not indicate that the court could not sentence the defendant to 20 years in prison as a recidivist, but, rather, the trial court clearly indicated that the court could sentence the defendant to 20 years in prison; and the colloquy clearly alerted the defendant that the consequences of refusing the state's plea offer could be harsher than the consequences of accepting the plea. Crews v. State, Ga. App. , S.E.2d (Sept. 10, 2020).
Sentence improper. - Trial court erred in sentencing the defendant on the count of the indictment charging the defendant with making an assault upon the victim with intent to murder in violation of O.C.G.A. § 16-5-21(a) after sentencing the defendant to life in prison for malice murder because the aggravated assault upon the victim and the murder of the victim occurred simultaneously; thus, the evidence used to prove the aggravated assault offense was established by the same, but not all, of the facts required to prove malice murder. Gresham v. State, 289 Ga. 103 , 709 S.E.2d 780 (2011).
Defendant was incorrectly sentenced on the aggravated assault charge which was the underlying offense for one of the felony murder charges. Kipp v. State, 294 Ga. 55 , 751 S.E.2d 83 (2013).
Four consecutive 20-year sentences not excessive. - Trial court's imposition of four separate 20-year sentences upon the defendant for each of the four aggravated-assault convictions and ordering those sentences to be served consecutively was not excessive punishment because the 20-year sentence for each separate aggravated assault fell within the statutory range and the defendant failed to demonstrate that the punishment was so excessive in proportion to the offenses as to shock the conscience. Miller v. State, 351 Ga. App. 757 , 833 S.E.2d 142 (2019).
Sentence not void. - Defendant's 10-year sentence for violation of the Georgia Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-1 et seq., and aggravated assault was not void as the sentence fell within the range of permitted sentences and, thus, did not amount to a punishment that the law did not allow. Garza v. State, 325 Ga. App. 505 , 753 S.E.2d 651 (2014).
Conduct sufficient for sentence enhancement. - Four-level enhancement under U.S. Sentencing Guidelines Manual § 2K2.1(b)(6) was proper because the district court found that the defendant shot at people allegedly intending to rob the defendant's store, the act constituted the felony offense of aggravated assault under O.C.G.A. § 16-5-21 , and the discharge of the gun was relevant conduct under U.S. Sentencing Guidelines Manual § 1B1.3(a)(1) because the discharge occurred during the commission of the offense of conviction under 18 U.S.C. § 922. United States v. Sako, F.3d (11th Cir. Apr. 2, 2008)(Unpublished).
Sufficient findings warranting restrictive custody for juvenile. - Juvenile court did not err in determining that a defendant juvenile was in need of restrictive custody with thirty months of confinement in a youth detention center because: (1) the court complied with O.C.G.A. § 15-11-63(c) by making specific written findings of fact as to each of the statutory elements; (2) the court's findings analyzed the defendant's needs and best interest; and (3) the court properly considered the report of a psychological evaluation performed on the defendant, along with the defendant's background and prior juvenile history, in making the court's determination that the defendant's needs would be better served with restrictive custody; the juvenile court's findings accurately reflected the nature and circumstances of the aggravated assault the defendant committed, including the facts that the victim did receive a serious injury when the defendant shot her in the head and that she had to receive medical treatment for her head injury, and the juvenile court's findings as to those basic facts were supported by the trial evidence and showed circumstances that authorized the order for restrictive custody. In the Interest of I.C., 300 Ga. App. 683 , 686 S.E.2d 279 (2009).
Ineffective counsel not established. - In a prosecution for aggravated assault, despite the fact that defendant failed to satisfy defendant's responsibility under the Rules of the Georgia Court of Appeals, after a review of the record in the appellate court's discretion, defendant's claim of ineffective assistance of counsel failed, as defendant's trial counsel's stipulation to a witness' prior testimony, made under oath, before the judge, and subject to trial counsel's searching cross-examination on defendant's behalf regarding this same case, did not constitute an unreasonable or incompetent strategy. Stuart v. State, 274 Ga. App. 120 , 616 S.E.2d 855 (2005).
Given the overwhelming evidence of the defendant's guilt with respect to an aggravated assault charge, and because no reasonable probability existed that the outcome of the trial with respect to that charge would have been different had the jury not been presented evidence of the temporary protective order, and the result would not have changed even if trial counsel had stipulated to the existence of the temporary protective order to avoid its presentment to the jury, trial counsel did not provide ineffective assistance of counsel in defending the charge. Ford v. State, 283 Ga. App. 460 , 641 S.E.2d 671 (2007).
Because defense counsel was not ineffective in: (1) failing to investigate the victim's reputation for violence and introduce evidence of that victim's prior violent acts; (2) failing to investigate the defendant's medical records; (3) failing to investigate a state witness's convictions for crimes of moral turpitude and request an impeachment charge concerning that witness; (4) advising defendant not to testify; and (5) failing to present evidence or argument at sentencing, the defendant's motion for a new trial was properly denied and the aggravated assault conviction was upheld. Cross v. State, 285 Ga. App. 518 , 646 S.E.2d 723 (2007), cert. denied, No. S07C1479, 2007 Ga. LEXIS 680 (Ga. 2007).
Ineffective counsel established as to aggravated assault but not as to other charge. - Because the defendant presented sufficient evidence to show that trial counsel was ineffective in failing to stipulate to the defendant's felon status or to obtain a jury charge limiting the jury's consideration of the defendant's criminal history, such failures prejudiced the defendant's defense sufficiently to require a new trial on a charge of aggravated assault; however, given the defendant's admission to possessing a gun at the time of the altercation, no prejudice resulted to warrant reversal and a new trial on the possession of a firearm by a convicted felon conviction. Starling v. State, 285 Ga. App. 474 , 646 S.E.2d 695 (2007).
Prior conviction properly admitted. - Trial court did not abuse the court's discretion in allowing the state to introduce evidence of the defendant's prior aggravated assault conviction under O.C.G.A. § 24-9-84.1 because the trial court specifically addressed the relevant factors including the kind of felony involved, the date of the conviction, and the importance of the witness's credibility and properly considered the specific facts and circumstances of the defendant's prior aggravated assault conviction, as required by O.C.G.A. § 24-9-84.1(b), before concluding that the probative value of evidence of the conviction substantially outweighed the evidence's prejudicial effect; the statute itself contains no distinction between defendants and witnesses when more than ten years has passed since the applicable conviction or release. Dozier v. State, 311 Ga. App. 713 , 716 S.E.2d 802 (2011), overruled on other grounds, Clay v. State, 290 Ga. 822 , 725 S.E.2d 260 (2012).
Cited in Middlebrooks v. State, 107 Ga. App. 587 , 130 S.E.2d 798 (1963); Vanleeward v. Rutledge, 369 F.2d 584 (5th Cir. 1966); Lingo v. State, 226 Ga. 496 , 175 S.E.2d 657 (1970); Teal v. State, 122 Ga. App. 532 , 177 S.E.2d 840 (1970); Barrett v. State, 123 Ga. App. 210 , 180 S.E.2d 271 (1971); Summerour v. State, 124 Ga. App. 484 , 184 S.E.2d 365 (1971); Hobbs v. State, 229 Ga. 556 , 192 S.E.2d 903 (1972); Hewitt v. State, 127 Ga. App. 180 , 193 S.E.2d 47 (1972); Smith v. State, 127 Ga. App. 468 , 193 S.E.2d 921 (1972); Collins v. State, 129 Ga. App. 87 , 198 S.E.2d 707 (1973); Ward v. State, 231 Ga. 484 , 202 S.E.2d 421 (1973); Cain v. State, 232 Ga. 804 , 209 S.E.2d 158 (1974); Harvey v. State, 233 Ga. 41 , 209 S.E.2d 587 (1974); Lowe v. State, 133 Ga. App. 420 , 210 S.E.2d 869 (1974); Barker v. State, 233 Ga. 781 , 213 S.E.2d 624 (1975); Long v. State, 233 Ga. 926 , 213 S.E.2d 853 (1975); Chappell v. State, 134 Ga. App. 375 , 214 S.E.2d 392 (1975); Jackson v. State, 234 Ga. 549 , 216 S.E.2d 834 (1975); Jones v. State, 234 Ga. 648 , 217 S.E.2d 597 (1975); Hale v. State, 135 Ga. App. 625 , 218 S.E.2d 643 (1975); Davis v. State, 136 Ga. App. 749 , 222 S.E.2d 188 (1975); Baker v. State, 236 Ga. 754 , 225 S.E.2d 269 (1976); Spriggs v. State, 139 Ga. App. 586 , 228 S.E.2d 727 (1976); Ledford v. State, 237 Ga. 628 , 229 S.E.2d 403 (1976); Fountain v. York, 237 Ga. 784 , 229 S.E.2d 629 (1976); Smith v. State, 140 Ga. App. 395 , 231 S.E.2d 143 (1976); Gillespie v. State, 140 Ga. App. 408 , 231 S.E.2d 154 (1976); Robertson v. State, 140 Ga. App. 506 , 231 S.E.2d 367 (1976); Bruce v. State, 142 Ga. App. 211 , 235 S.E.2d 606 (1977); Carroll v. State, 143 Ga. App. 230 , 237 S.E.2d 703 (1977); Leach v. State, 143 Ga. App. 598 , 239 S.E.2d 177 (1977); Braxton v. State, 240 Ga. 10 , 239 S.E.2d 339 (1977); Tucker v. State, 144 Ga. App. 30 , 240 S.E.2d 304 (1977); Hardwick v. Doolittle, 558 F.2d 292 (5th Cir. 1977); Smith v. State, 144 Ga. App. 785 , 242 S.E.2d 376 (1978); Rush v. State, 145 Ga. App. 745 , 245 S.E.2d 34 (1978); Murphy v. State, 146 Ga. App. 721 , 247 S.E.2d 186 (1978); White v. State, 147 Ga. App. 260 , 248 S.E.2d 540 (1978); Webster v. State, 147 Ga. App. 322 , 248 S.E.2d 697 (1978); Peterkin v. State, 147 Ga. App. 437 , 249 S.E.2d 152 (1978); Garrett v. State, 147 Ga. App. 500 , 249 S.E.2d 315 (1978); Sprouse v. State, 242 Ga. 831 , 252 S.E.2d 173 (1979); Ballard v. State, 150 Ga. App. 704 , 258 S.E.2d 331 (1979); Martin v. State, 151 Ga. App. 9 , 258 S.E.2d 711 (1979); Savage v. State, 152 Ga. App. 392 , 263 S.E.2d 218 (1979); Bill v. State, 153 Ga. App. 131 , 264 S.E.2d 582 (1980); Dean v. State, 245 Ga. 503 , 265 S.E.2d 805 (1980); Henderson v. State, 153 Ga. App. 801 , 266 S.E.2d 522 (1980); Marable v. State, 154 Ga. App. 115 , 267 S.E.2d 837 (1980); Hayslip v. State, 154 Ga. App. 835 , 270 S.E.2d 61 (1980); Johnson v. State, 156 Ga. App. 411 , 274 S.E.2d 778 (1980); State v. Williams, 247 Ga. 200 , 275 S.E.2d 62 (1981); McMillan v. State, 157 Ga. App. 694 , 278 S.E.2d 478 (1981); Delano v. State, 158 Ga. App. 296 , 279 S.E.2d 743 (1981); Craft v. State, 158 Ga. App. 745 , 282 S.E.2d 203 (1981); Garard v. State, 159 Ga. App. 248 , 283 S.E.2d 27 (1981); Jackson v. State, 248 Ga. 480 , 284 S.E.2d 267 (1981); Fletcher v. State, 159 Ga. App. 789 , 285 S.E.2d 762 (1981); Bundren v. State, 160 Ga. App. 367 , 287 S.E.2d 248 (1981); Goodman v. Davis, 249 Ga. 11 , 287 S.E.2d 26 (1982); Shelton v. State, 161 Ga. App. 524 , 289 S.E.2d 768 (1982); Carter v. State, 162 Ga. App. 44 , 290 S.E.2d 143 (1982); Miller v. State, 162 Ga. App. 759 , 292 S.E.2d 481 (1982); Dunbar v. State, 163 Ga. App. 243 , 292 S.E.2d 897 (1982); Merrell v. State, 162 Ga. App. 886 , 293 S.E.2d 474 (1982); Smith v. State, 249 Ga. 801 , 294 S.E.2d 525 (1982); Chastain v. State, 163 Ga. App. 678 , 296 S.E.2d 69 (1982); Talley v. State, 164 Ga. App. 150 , 296 S.E.2d 173 (1982); Jester v. State, 250 Ga. 119 , 296 S.E.2d 555 (1982); Simmons v. State, 164 Ga. App. 643 , 298 S.E.2d 313 (1982); Richardson v. State, 250 Ga. 506 , 299 S.E.2d 715 (1983); Rozier v. State, 165 Ga. App. 178 , 300 S.E.2d 194 (1983); Brown v. State, 165 Ga. App. 799 , 302 S.E.2d 630 (1983); Bert v. State, 169 Ga. App. 628 , 314 S.E.2d 466 (1984); Hartman v. State, 170 Ga. App. 195 , 316 S.E.2d 820 (1984); Graham v. State, 171 Ga. App. 242 , 319 S.E.2d 484 (1984); Fobbs v. State, 171 Ga. App. 352 , 319 S.E.2d 522 (1984); McWilliams v. State, 172 Ga. App. 55 , 322 S.E.2d 87 (1984); Lester v. State, 173 Ga. App. 300 , 325 S.E.2d 912 (1985); Shepherd v. State, 173 Ga. App. 499 , 326 S.E.2d 596 (1985); Howard v. State, 173 Ga. App. 585 , 327 S.E.2d 554 (1985); Miller v. State, 174 Ga. App. 703 , 331 S.E.2d 616 (1985); Green v. State, 175 Ga. App. 92 , 332 S.E.2d 385 (1985); Stevens v. State, 176 Ga. App. 583 , 336 S.E.2d 846 (1985); McCrary v. State, 176 Ga. App. 683 , 337 S.E.2d 442 (1985); Gabler v. State, 177 Ga. App. 3 , 338 S.E.2d 469 (1985); Turner v. State, 178 Ga. App. 274 , 342 S.E.2d 759 (1986); Hiers v. State, 179 Ga. App. 181 , 345 S.E.2d 900 (1986); Allen v. State, 180 Ga. App. 701 , 350 S.E.2d 478 (1986); Parrish v. State, 182 Ga. App. 247 , 355 S.E.2d 682 (1987); Johnson v. State, 182 Ga. App. 822 , 357 S.E.2d 161 (1987); Jackson v. State, 182 Ga. App. 885 , 357 S.E.2d 321 (1987); Allison v. State, 184 Ga. App. 294 , 361 S.E.2d 271 (1987); Williams v. State, 185 Ga. App. 633 , 365 S.E.2d 491 (1988); Curtis v. State, 190 Ga. App. 173 , 378 S.E.2d 516 (1989); Ross v. State, 192 Ga. App. 65 , 383 S.E.2d 627 (1989); Lubiano v. State, 192 Ga. App. 272 , 384 S.E.2d 410 (1989); Blackmon v. State, 197 Ga. App. 133 , 397 S.E.2d 728 (1990); State v. McBride, 261 Ga. 60 , 401 S.E.2d 484 (1991); Tate v. State, 198 Ga. App. 276 , 401 S.E.2d 549 (1991); Jones v. State, 198 Ga. App. 377 , 401 S.E.2d 584 (1991); Strickland v. State, 198 Ga. App. 570 , 402 S.E.2d 532 (1991); Brooks v. State, 199 Ga. App. 525 , 405 S.E.2d 343 (1991); Moore v. State, 207 Ga. App. 892 , 429 S.E.2d 335 (1993); Davis v. State, 209 Ga. App. 187 , 433 S.E.2d 366 (1993); Smiley v. State, 263 Ga. 716 , 438 S.E.2d 75 (1994); Williams v. State, 214 Ga. App. 834 , 449 S.E.2d 532 (1994); Shorter v. State, 270 Ga. 280 , 507 S.E.2d 757 (1998); Mangham v. State, 234 Ga. App. 567 , 507 S.E.2d 806 (1998); Busch v. State, 234 Ga. App. 766 , 507 S.E.2d 868 (1998); Cockrell v. State, 248 Ga. App. 359 , 545 S.E.2d 600 (2001); Reyes v. State, 250 Ga. App. 769 , 552 S.E.2d 918 (2001); Cannon v. State, 250 Ga. App. 777 , 552 S.E.2d 922 (2001), overruled in part by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018); In the Interest of A.A., 253 Ga. App. 858 , 560 S.E.2d 763 (2002); Montford v. State, 254 Ga. App. 524 , 564 S.E.2d 216 (2002); Webb v. State, 256 Ga. App. 653 , 569 S.E.2d 596 (2002); Anderson v. State, 257 Ga. App. 602 , 571 S.E.2d 815 (2002); Adams v. State, 275 Ga. 867 , 572 S.E.2d 545 (2002); Shields v. State, 259 Ga. App. 906 , 578 S.E.2d 566 (2003); Jackson v. State, 262 Ga. App. 451 , 585 S.E.2d 745 (2003); Eidson v. State, 262 Ga. App. 664 , 586 S.E.2d 362 (2003); Hewitt v. State, 277 Ga. 327 , 588 S.E.2d 722 (2003); Hill v. State, 268 Ga. App. 642 , 602 S.E.2d 348 (2004); Blake v. State, 272 Ga. App. 181 , 612 S.E.2d 33 (2005); Price v. State, 281 Ga. App. 844 , 637 S.E.2d 468 (2006); Rivera v. State, 282 Ga. 355 , 647 S.E.2d 70 (2007); Dalton v. State, 282 Ga. 300 , 647 S.E.2d 580 (2007); Spiller v. State, 282 Ga. 351 , 647 S.E.2d 64 (2007); Whitaker v. State, 287 Ga. App. 465 , 652 S.E.2d 568 (2007); Miller v. Martin, F. Supp. 2d (N.D. Ga. Aug. 20, 2007); Robinson v. State, 288 Ga. App. 219 , 653 S.E.2d 810 (2007); Beals v. State, 288 Ga. App. 815 , 655 S.E.2d 687 (2007); Grant v. State, 289 Ga. App. 230 , 656 S.E.2d 873 (2008); Smith v. State, 289 Ga. App. 742 , 658 S.E.2d 156 (2008), cert. denied, 2008 Ga. LEXIS 462 (Ga. 2008); Mitchell v. State, 283 Ga. 341 , 659 S.E.2d 356 (2008); Louis v. State, 290 Ga. App. 106 , 658 S.E.2d 897 (2008); Hyde v. State, 291 Ga. App. 662 , 662 S.E.2d 764 (2008); Sillah v. State, 291 Ga. App. 848 , 663 S.E.2d 274 (2008); Lemming v. State, 292 Ga. App. 138 , 663 S.E.2d 375 (2008)
Jennings v. State, 292 Ga. App. 149 , 664 S.E.2d 248 (2008); Moran v. State, 293 Ga. App. 279 , 666 S.E.2d 726 (2008); Greene v. State, 295 Ga. App. 803 , 673 S.E.2d 292 (2009); Hayes v. State, 298 Ga. App. 338 , 680 S.E.2d 182 (2009); Gonzales v. State, 298 Ga. App. 821 , 681 S.E.2d 248 (2009); Bonker v. State, 298 Ga. App. 867 , 681 S.E.2d 256 (2009); Jacobs v. State, 299 Ga. App. 368 , 683 S.E.2d 64 (2009); Crawford v. State, 301 Ga. App. 633 , 688 S.E.2d 409 (2009); Smith v. State, 304 Ga. App. 708 , 699 S.E.2d 742 (2010); Smith v. State, 309 Ga. App. 241 , 709 S.E.2d 823 (2011); Russell v. State, 319 Ga. App. 472 , 735 S.E.2d 797 (2012); Hyman v. State, 320 Ga. App. 106 , 739 S.E.2d 395 (2013); McGlasker v. State, 321 Ga. App. 614 , 741 S.E.2d 303 (2013); Vann v. State, 322 Ga. App. 148 , 742 S.E.2d 767 (2013); Avila v. State, 322 Ga. App. 225 , 744 S.E.2d 405 (2013); Young v. State, 329 Ga. App. 70 , 763 S.E.2d 735 (2014); State v. Owens, 296 Ga. 205 , 766 S.E.2d 66 (2014); Williams v. State, 330 Ga. App. 606 , 768 S.E.2d 788 (2015); In the Interest of C. M., 331 Ga. App. 16 , 769 S.E.2d 737 (2015); Turner v. State, 331 Ga. App. 78 , 769 S.E.2d 785 (2015); Howard v. State, 334 Ga. App. 7 , 778 S.E.2d 19 (2015); McGil v. State, 339 Ga. App. 130 , 793 S.E.2d 442 (2016); Johnson v. State, 341 Ga. App. 384 , 801 S.E.2d 82 (2017); Cade v. State, 351 Ga. App. 637 , 832 S.E.2d 453 (2019); Dodson v. State, 353 Ga. App. 412 , 838 S.E.2d 87 (2020); Robinson v. State, 353 Ga. App. 420 , 838 S.E.2d 92 (2020); Morgan v. State, 354 Ga. App. 754 , 841 S.E.2d 430 (2020); Marcus v. Country Mut. Ins. Co., Ga. App. , 845 S.E.2d 782 (2020); Caldwell v. State, 355 Ga. App. 608 , 845 S.E.2d 345 (2020); Brooks v. State, Ga. , S.E.2d (Aug. 24, 2020); Eggleston v. State, Ga. , S.E.2d (Sept. 28, 2020).
Indictment
Indictment must charge methods conjunctively. - Although the aggravated assault statute contains disjunctively several methods by which the crime may be committed, proof of any one of which is sufficient to constitute the crime, an indictment must charge such methods conjunctively if it charges more than one of them. Gutierrez v. State, 235 Ga. App. 878 , 510 S.E.2d 570 (1998).
Written waiver of grand jury indictment required. - Defendant's conviction for aggravated assault was void for lack of jurisdiction and had to be reversed because the evidence showed that the defendant verbally waived the defendant's right to a grand jury indictment at the start of trial and a written waiver was required by O.C.G.A. § 17-7-70(a) . Martinez v. State, 322 Ga. App. 63 , 743 S.E.2d 621 (2013).
Consolidation of indictments proper. - Trial court properly consolidated the indictments charging the defendant with armed robbery, criminal attempt to commit armed robbery, aggravated assault, possession of a firearm during the commission of a crime, and theft by receiving stolen property because joinder was not prejudicial or erroneous since evidence of the various intertwined crimes would have been admissible against the defendant had the indictments been tried separately; the trial court was authorized to find that the events in the indictments committed within a two-day period and involving guns and a car constituted a series of connected acts, and the connection between the robberies and the assaults helped identify the defendant. Jackson v. State, 309 Ga. App. 796 , 714 S.E.2d 584 (2011).
Indictment sufficient to charge aggravated assault. - Indictment alleging that defendant made "an assault upon the person of Joe Jones, with a handgun, a deadly weapon" was sufficient to charge the crime of aggravated assault. Wallace v. State, 216 Ga. App. 718 , 455 S.E.2d 615 (1995); Sam's Wholesale Club v. Riley, 241 Ga. App. 783 , 527 S.E.2d 577 (1999).
Indictment charging that defendant's fists were likely to result in serious bodily injury was sufficient, and no reference to deadly weapons was required. Jay v. State, 232 Ga. App. 661 , 503 S.E.2d 563 (1998).
In an indictment alleging that defendant assaulted the victim "by kicking her in the head and shoulder area and by striking her with his hands and feet," it was unnecessary to further allege that defendant used defendant's own hands and feet as deadly weapons or that there was intent to injure. Gafford v. State, 240 Ga. App. 251 , 523 S.E.2d 336 (1999).
Indictment was sufficient to charge aggravated assault, which stated that defendant "did unlawfully make an assault upon the person of [victim], with a knife, the same being an object which when used offensively against a person is likely to result in serious bodily injury. . . ." Merneigh v. State, 242 Ga. App. 735 , 531 S.E.2d 152 (2000).
Indictment which alleged that defendant assaulted another person with a box cutter by chasing the other person with the box cutter was sufficient to apprise defendant of the charge. Hogan v. State, 261 Ga. App. 261 , 582 S.E.2d 210 (2003).
Defendant's conviction for aggravated assault under O.C.G.A. § 16-5-21 was affirmed because the trial court did not err when it instructed the jury on the full definition of aggravated assault under § 16-5-21 and there was no reasonable probability that the jury convicted defendant on a portion of the offense that was not charged in the indictment. Hughes v. State, 266 Ga. App. 203 , 596 S.E.2d 697 (2004).
Defendant's conviction for aggravated assault was affirmed because the trial court did not err when it denied defendant's motion for a directed verdict on the grounds that there was a fatal variance between the indictment and the proof at trial; under the circumstances the terms "choke" and "strangulation" were synonymous. Hughes v. State, 266 Ga. App. 203 , 596 S.E.2d 697 (2004).
Indictment charging defendant with "aggravated assault (family violence)" and "family violence battery (felony)" in violation of O.C.G.A. § 16-5-21 was sufficient as it informed defendant of the charges and protected defendant against double jeopardy; it was the description in the indictment that characterized the offense charged, not the name given to the offense in the bill of indictment, and mere surplusage did not vitiate an otherwise sufficient indictment. State v. Barnett, 268 Ga. App. 900 , 602 S.E.2d 899 (2004).
In two actions charging the defendant with being a party to the crime of aggravated assault allegedly committed with a codefendant, given that the first of two indictments failed to set out the elements of aggravated assault, and the state offered to nolle pros the same, the indictment was properly dismissed; however, a second and superseding indictment survived demurrer, as the elements of aggravated assault were sufficiently set out therein, and the disjunctive way that the offense was charged was not fatally defective as to the defendant, but simply limited the state's option of proving at trial the manner in which the aggravated assault was committed. State v. Daniels, 281 Ga. App. 224 , 635 S.E.2d 835 (2006).
Because an indictment, which included charging language that the defendant "unlawfully, and with malice aforethought, caused the death of the victim by striking," placed the defendant on notice of a possible conviction of an assault upon the victim with the intent to murder or commit a violent injury, the defendant could be convicted of aggravated assault as a lesser included crime of malice murder; the only difference was that the malice murder indictment alleged that the defendant actually accomplished the murder, in addition to having intended to accomplish the murder. Reagan v. State, 281 Ga. App. 708 , 637 S.E.2d 113 (2006).
There was no deficiency in an indictment charging the defendant with aggravated assault by making an assault upon the person of the victim with a certain semiautomatic pistol; the charge of aggravated assault tracked the statutory language of the offense, contained the elements thereof, and gave the defendant sufficient notice of the charge that the defendant needed to be prepared to defend. Garza v. State, 285 Ga. App. 902 , 648 S.E.2d 84 (2007), vacated, in part, 300 Ga. App. 352 , 685 S.E.2d 366 (2009).
Court of appeals rejected the defendant's claim that the indictment filed was fatally defective as the indictment properly charged the defendant with aggravated assault, specifying that the defendant's hands and feet "were likely to result in serious bodily injury." May v. State, 287 Ga. App. 407 , 651 S.E.2d 510 (2007).
With respect to an aggravated assault conviction, a trial court did not err by denying defendant's motion in arrest of the judgment on the basis that the rule of lenity required that defendant be sentenced to a lesser charge of simple battery as the evidence was sufficient to support the aggravated assault conviction, and the indictment was not void on the indictment's face or otherwise deficient. Armstrong v. State, 292 Ga. App. 145 , 664 S.E.2d 242 (2008).
As an indictment against the defendant inmate charged aggravated assault, in violation of O.C.G.A. § 16-5-21(a)(2), based on the striking of a victim with an object likely to result in serious bodily injury, all of the essential elements were stated and the indictment was not deficient; the indictment was not void for failing to expressly allege the criminal intent. Powell v. State, 297 Ga. App. 833 , 678 S.E.2d 524 (2009).
Indictment charged the defendant with the aggravated assault of the victim by assaulting the victim with the defendant's hands, which when used offensively against another person was likely to result in serious bodily injury, by striking the victim repeatedly about the head and face with the defendant's hands; thus, it was unnecessary for the indictment to allege that the defendant used hands as a deadly weapon. Walker v. State, 298 Ga. App. 265 , 679 S.E.2d 814 (2009).
Trial court did not err in denying a defendant's motion for an out-of-time appeal on the grounds that a count in the indictment alleging aggravated assault was void because the indictment set forth all of the necessary elements of aggravated assault, specifically citing the aggravated assault statute, and informing the defendant that the defendant was accused of unlawfully assaulting the person of defendant's daughter, with objects, to wit: hands and an object, the description of which being unknown, which when used offensively against a person was likely to and did result in serious bodily injury. Johnson v. State, 286 Ga. 432 , 687 S.E.2d 833 (2010), overruled on other grounds by Collier v. State, 834 S.E.2d 769 , 2019 Ga. LEXIS 708 (Ga. 2019).
Trial court did not err in denying the defendant's motion for a directed verdict of acquittal on the ground that there was insufficient evidence that the crimes for which the defendant was charged, aggravated assault, making terroristic threats, and cruelty to children in the third degree, were committed on the date alleged in the indictment because there was sufficient evidence to support the allegations of the indictment; the exact date of the crimes was not a material allegation of the indictment because the exact date was not an essential element with respect to any of the charged offenses, and the date of the crimes proved at trial was prior to the return of the indictment and within the limitation periods for the crimes. Coats v. State, 303 Ga. App. 818 , 695 S.E.2d 285 (2010), overruled on other grounds by McClure v. State, 306 Ga. 856 , 834 S.E.2d 96 (2019).
There was no defect in the aggravated assault counts of an indictment a grand jury returned against the defendant because those counts alleged that the defendant did make an assault upon the person of a five-year-old boy and his mother with a knife, a deadly weapon; the language of the indictment tracked that of O.C.G.A. § 16-5-21(a)(2) and was not too vague to inform the defendant of the charges against the defendant. Belcher v. State, 304 Ga. App. 645 , 697 S.E.2d 300 (2010).
In charging aggravated assault with a deadly weapon under O.C.G.A. § 16-5-21(a)(2) as the predicate offense to felony murder, it was sufficient for the indictment implicitly to allege the use of a hatchet as a weapon which, when used offensively, was likely to result in serious bodily injury. Reed v. State, 291 Ga. 10 , 727 S.E.2d 112 (2012).
There was no basis to grant the defendant a special demurrer on the counts for aggravated assault and felony murder based on assault as the indictment informed the defendant that the state intended to prove that on a day when the defendant admitted the victim was in the defendant's custody, the defendant used an object that was likely to result in serious bodily injury to fatally injure the victim by causing damage to the victim's brain, which was sufficient notice for the defendant to prepare a defense. State v. Wyatt, 295 Ga. 257 , 759 S.E.2d 500 (2014).
Indictment adequately alleged aggravated assault as the indictment alleged that the defendant and the codefendant made an assault on others by discharging, without legal justification, a firearm from a vehicle in the direction of the others. Downey v. State, 298 Ga. 568 , 783 S.E.2d 622 (2016).
Indictment charging the defendant with knocking the victim to the ground causing a serious wound to the victim's head and doing so by a means likely to cause serious bodily injury when used offensively against a person was sufficient to place the defendant on notice that the defendant was charged with aggravated assault. Smith v. State, 335 Ga. App. 639 , 781 S.E.2d 400 (2016), overruled on other grounds by Collier v. State, 834 S.E.2d 769 , 2019 Ga. LEXIS 708 (Ga. 2019).
Indictment was sufficient to withstand a general demurrer because the indictment charged the defendant with felony murder-having caused the death of the victim while committing the felony of aggravated assault, which was a felony; and the defendant could not admit the defendant caused the death of the victim while in the commission of aggravated assault and not be guilty of the crime. Brooks v. State, 299 Ga. 474 , 788 S.E.2d 766 (2016), cert. denied, 137 S. Ct. 573 , 196 L. Ed. 2 d 451 (U.S. 2016).
Indictment insufficient to charge aggravated assault. - An indictment did not set forth the elements of this crime where it failed to state that defendant placed defendant's own hands around the victim's neck in an attempt to use them as deadly weapons, or in an attempt to rape, rob, or murder the victim, and failed to state that, in placing defendant's hands around the victim's neck, defendant intended to inflict a violent injury or place the victim in reasonable apprehension of being injured violently. Smith v. Hardrick, 266 Ga. 54 , 464 S.E.2d 198 (1995).
Because an indictment did not charge the defendant with all the elements of aggravated assault, it could not support a conviction under O.C.G.A. § 16-5-21(a)(2); therefore, the trial court erred in denying the defendant's motion for an out-of-time appeal. Fleming v. State, 276 Ga. App. 491 , 623 S.E.2d 696 (2005).
Admissions in indictment. - Because the defendant could not admit the charges of aggravated assault and terroristic threats in the indictment and still be innocent, the indictment returned was not defective. Dudley v. State, 283 Ga. App. 86 , 640 S.E.2d 677 (2006).
One count indictment was sufficient. - One-count indictment against the defendant was held sufficient and did not violate the defendant's due process rights, because the indictment charged the defendant with felony murder by causing the death of the victim while committing the felony of aggravated assault and was sufficient to have withstood a general demurrer; the fact that the defendant failed to raise a special demurrer to the indictment prior to pleading to the merits of the indictment was a waiver of that argument. Stinson v. State, 279 Ga. 177 , 611 S.E.2d 52 (2005).
Indictment not required to allege party status. - Indictment's failure to allege that a defendant was a party to aggravated assault, aggravated battery, and first-degree child cruelty under O.C.G.A. §§ 16-5-21(a) , 16-5-24(a) , and 16-5-70(b) did not require a showing that the defendant was the principal perpetrator under O.C.G.A. § 16-2-21 ; the defendant's status as a party to the crimes was not an essential element used to increase the sentences for the crimes, and the trial court did not err in instructing the jury that the defendant could be convicted either as the principal perpetrator of the crimes or as a party thereto. Hill v. State, 282 Ga. App. 743 , 639 S.E.2d 637 (2006).
Indictment sufficient for assault by dentist against patient. - Count nine in an indictment charging a defendant, allegedly an oral surgeon, with aggravated assault under O.C.G.A. § 16-5-21(a)(2) was sufficient under O.C.G.A. § 17-7-54(a) because the general intent required under § 16-5-21(a)(2) did not need to be expressly alleged and the use of the phrase "serious bodily harm" was substantially the same as the statutory language; additional pleading was not required simply because the case involved a doctor and a patient. State v. Austin, 297 Ga. App. 478 , 677 S.E.2d 706 (2009).
Indictment alleging offensive use of fists also sufficient allegation of simple battery. - After the defendant was indicted for aggravated assault and convicted of simple battery, language of the indictment tracking the aggravated assault statute by alleging that the offensive use of fists and feet resulted in bodily injury was also a sufficient allegation of simple battery. Buchanan v. State, 173 Ga. App. 554 , 327 S.E.2d 535 (1985).
No fatal variance. - Fact that an indictment charged the defendant with aggravated assault and battery by slicing the victim's neck with a knife, but the evidence showed the defendant used a box cutter, did not constitute a fatal variance between the indictment and the proof, because the defendant was sufficiently informed of the charges and faced no danger of further prosecution arising out of the incident. Lawson v. State, 278 Ga. App. 852 , 630 S.E.2d 131 (2006).
In a case when the defendant, a juvenile, was adjudicated delinquent based on aggravated assault, there was not a fatal variance between the allegations and the proof. The petition alleged that the defendant's use of a baton against a deputy amounted to an assault with an object likely to cause serious bodily injury when used offensively, and the proof supported this conclusion; any variance between the allegation that the defendant actually hit the deputy and proof that the defendant merely advanced on the deputy was thus immaterial. In the Interest of J.A.C., 291 Ga. App. 728 , 662 S.E.2d 811 (2008).
There was not a fatal variance between an allegation that the defendant committed aggravated assault against all three members of a group and evidence that defendant only struck one member of the group because: (1) the evidence showed all three were in a group when the defendant fired a gun at the group; and (2) it was well established that the act of firing a weapon into a group made each individual in the group a separate victim and justified a separate count of aggravated assault for each victim. Martin-Argaw v. State, 311 Ga. App. 609 , 716 S.E.2d 737 (2011).
Charge of entire aggravated assault statute not required. - Trial court did not charge the entire aggravated assault statute, but defined aggravated assault as an "assault done in an aggravated manner," committed when a person assaulted another with a deadly weapon as alleged in the indictment; thus, there was no reasonable probability that the defendant was convicted of aggravated assault in a manner not charged in the indictment. Garza v. State, 285 Ga. App. 902 , 648 S.E.2d 84 (2007), vacated, in part, 300 Ga. App. 352 , 685 S.E.2d 366 (2009).
Indictment alleging rape and aggravated assault. - Evidence showed that the kidnapping conviction, O.C.G.A. § 16-5-40(a) , was based on evidence showing that when the victim attempted to escape the initial attack, defendant grabbed the victim and dragged the victim to a more secluded area of the trailer park and the aggravated assault with intent to rape conviction, O.C.G.A. § 16-5-21 , was based on evidence that defendant beat the victim with the defendant's hands and fists with the intention of raping the victim; thus, the two crimes were separate offenses supported by different facts that did not merge as a matter of law. McGuire v. State, 266 Ga. App. 673 , 598 S.E.2d 55 (2004).
Indictment alleging aggravated assault and aggravated battery. - Because a conviction on a charge of aggravated assault could be based on the defendant's act of cutting of the victim's throat, while a conviction on a charge of aggravated battery could be based on the serious disfigurement of the victim's arms, a conviction could be entered on each count; hence, merger did not apply. Goss v. State, 289 Ga. App. 734 , 658 S.E.2d 168 (2008).
Sufficient to withstand general demurrer. - Indictment alleging that the defendant unlawfully made an assault upon a peace officer engaged in the performance of the officer's official duties with a motor vehicle, an object, which, when used offensively against a person, is likely to or actually does result in serious bodily injury, was sufficient to withstand a general demurrer because the defendant could not admit to the facts other than the fact that the individual was a peace officer without being guilty of the lesser included offense of aggravated assault. State v. Wilson, 318 Ga. App. 88 , 732 S.E.2d 330 (2012).
Failure to file demurrer to indictment charging aggravated assault provided no basis for ineffective assistance of counsel. - Trial court did not err in denying a defendant's motion for new trial based on the defendant's claim that the defendant was rendered ineffective assistance of counsel as a result of defense counsel failing to file a demurrer to an aggravated assault count on the premise that the allegations in the indictment did not adequately track the language of O.C.G.A. § 16-5-21 as, although the indictment did not state that the defendant used the defendant's hands as deadly weapons, that omission did not render the charge flawed since specific reference to a deadly weapon in an indictment must be seen as a general reference to the aggravating circumstance in § 16-5-21 . As a result, any objection or demurrer would have been futile and, as such, the defendant's contention provided no basis for an ineffective assistance of counsel claim. Hall v. State, 292 Ga. App. 544 , 664 S.E.2d 882 , cert. denied, No. S08C1841, 2008 Ga. LEXIS 926 (Ga. 2008).
Failure to file demurrer to indictment. - Defendant's motions for a new trial and in arrest of judgment challenging the wording of the indictment charging the defendant with aggravated assault, O.C.G.A. § 16-5-21(a)(2), (3), were properly denied because the defendant could not have admitted the allegations of the indictment without admitting that the defendant was guilty of a crime, and, under O.C.G.A. § 17-7-110 , having failed to file a timely special demurrer, the defendant waived the right to a perfect indictment. McDaniel v. State, 298 Ga. App. 558 , 680 S.E.2d 593 (2009).
Trial counsel was not ineffective in failing to challenge the felony murder count of an indictment because the indictment contained sufficient facts to put the defendant on notice that the defendant was accused of the death of the victim as a result of an aggravated assault when the indictment alleged a specific, offensive use of the defendant's hands and feet and that when the defendant's hands and feet were used in a particular way they were objects which were likely to and actually did result in serious bodily injury; the absence of self-defense, like general intent, did not have to be expressly alleged in an indictment, and even if some such allegation were necessary, language in the indictment asserting that defendant acted unlawfully and contrary to the laws of the state, the good order, peace, and dignity thereof was sufficient. Lizana v. State, 287 Ga. 184 , 695 S.E.2d 208 (2010).
Waiver of challenge to indictment. - Felony murder indictment was not deficient because the indictment did not contain all the essential elements of the underlying crime of aggravated assault because the defendant's failure to file a special demurrer seeking additional information before pleading guilty to the indictment constituted a waiver of the defendant's right to be tried on a perfect indictment. Brooks v. State, 299 Ga. 474 , 788 S.E.2d 766 (2016), cert. denied, 137 S. Ct. 573 , 196 L. Ed. 2 d 451 (U.S. 2016).
Included Crimes
Which offense to sentence on. - When the same facts were used to support aggravated assault and aggravated battery charges, the trial court erred in sentencing defendant on the aggravated assault count, the lesser included offense. Riden v. State, 226 Ga. App. 245 , 486 S.E.2d 198 (1997).
Legislative intent as to aggravated assault upon police officer. - Aggravated assault and aggravated assault upon police officer are separate and distinct crimes. Language in the caption to the bill which stated that the purpose of the statute was to define "the crime of aggravated assault upon a police officer" clearly indicated the intent of the General Assembly. Bundren v. State, 247 Ga. 180 , 274 S.E.2d 455 (1981); but see Lambert v. State, 157 Ga. App. 275 , 277 S.E.2d 66 (1981).
Simple assault is lesser included offense of aggravated assault. - Simple assault or assault (synonymous terms) is necessarily a lesser included offense of the greater crime of aggravated assault and is an essential part thereof. Smith v. State, 140 Ga. App. 395 , 231 S.E.2d 143 (1976).
Reckless conduct is a lesser included offense of aggravated assault. Bowers v. State, 177 Ga. App. 36 , 338 S.E.2d 457 (1985).
In the defendant's trial on a charge of aggravated assault under O.C.G.A. § 16-5-21(a) , the trial court did not err in failing to instruct the jury on reckless conduct under O.C.G.A. § 16-5-60(b) because the latter was not a lesser-included offense of the former; while both offenses proscribed the same general conduct, i.e., subjecting another to actual injury or the possibility of injury, aggravated assault required proof that the forbidden act was intentional, while in the case of reckless conduct, the forbidden act is the product of criminal negligence. Chambers v. State, 308 Ga. App. 748 , 708 S.E.2d 651 (2011).
Crimes included in aggravated assault with deadly weapon. - Simple assault under former Code 1933, § 26-1301 (see O.C.G.A. § 16-5-20 ) and pointing a gun or pistol at another under former Code 1933, § 26-2908 (see O.C.G.A. § 16-11-102 ) are both misdemeanors and included in the greater crime of aggravated assault with a deadly weapon. Morrison v. State, 147 Ga. App. 410 , 249 S.E.2d 131 (1978).
Possession of firearm. - Trial court properly refused to merge convictions for possession of a firearm during the commission of a crime and aggravated assault. Pace v. State, 239 Ga. App. 506 , 521 S.E.2d 444 (1999).
Cruelty to children can be lesser included crime under indictment for aggravated assault with deadly weapon. Williams v. State, 144 Ga. App. 130 , 240 S.E.2d 890 (1977).
Cruelty to children count merged into count alleging aggravated assault, where both counts alleged the same facts, i.e., that defendant shot daughter. Cranford v. State, 186 Ga. App. 862 , 369 S.E.2d 50 (1988).
Aggravated assault and false imprisonment did not merge. - Defendant's conviction on a charge of false imprisonment did not merge with the defendant's conviction for aggravated assault with a deadly weapon because each offense required proof of facts which the other did not: an assault and a weapon were not required for false imprisonment, and violation of liberty through arrest, confinement, or detention was not required for aggravated assault. Jackson v. State, 305 Ga. 614 , 825 S.E.2d 188 (2019).
Unauthorized possession of weapon by inmate is not a lesser included offense of aggravated assault. Weaver v. State, 176 Ga. App. 639 , 337 S.E.2d 420 (1985).
Pointing weapon at another. - In a homicide trial, defendant's act was clearly the felony of aggravated assault, not the misdemeanor of pointing a weapon at another, where the testimony showed that victim, as well as the three passengers in the victim's car, were aware of and understandably apprehensive of immediate violent injury, and defendant's own testimony revealed that defendant's purpose in pointing the weapon was to place victim in apprehension of immediate violent injury. Thus, the request for a charge on misdemeanor manslaughter was properly denied. Rhodes v. State, 257 Ga. 368 , 359 S.E.2d 670 (1987); Rameau v. State, 267 Ga. 261 , 477 S.E.2d 118 (1996).
Although pointing a firearm at another is an offense included in aggravated assault, it is not error to refuse a charge on it when the evidence does not reasonably raise the issue that defendant may be guilty of only the lesser crime. Head v. State, 233 Ga. App. 655 , 504 S.E.2d 499 (1998); Stobbart v. State, 272 Ga. 608 , 533 S.E.2d 379 (2000).
Offense merged with attempted armed robbery. - Since the defendant was indicted for aggravated assault for pointing a handgun at a victim, which was also a substantial step toward commission of the armed robbery, the trial court properly merged the defendant's aggravated assault conviction with the attempted armed robbery conviction. McKinney v. State, 274 Ga. App. 32 , 619 S.E.2d 299 (2005).
Defendant's conviction for aggravated assault merged into the defendant's conviction for attempted armed robbery because the relevant aggravated assault provision did not require proof of any fact that was not also required to prove the attempted armed robbery as that offense could have been proved under the indictment in the case. Garland v. State, 311 Ga. App. 7 , 714 S.E.2d 707 (2011).
Merger with armed robbery proper. - Evidence identifying the defendant as the perpetrator who stole a victim's car and purse at gunpoint, coupled with evidence of the defendant's flight from police, possession of the stolen car, and possession of the revolver used in the crimes, was sufficient to support convictions for hijacking a motor vehicle, possession of a firearm during the commission of a felony, armed robbery, and aggravated assault with a deadly weapon; however, the conviction and sentence for aggravated assault merged as a matter of fact into the armed robbery conviction and sentence. Doublette v. State, 278 Ga. App. 746 , 629 S.E.2d 602 (2006).
Merger of an aggravated assault count into an armed robbery count was required when the only evidence was that the defendant used a gun to rob the victim. There was not a separate aggravated assault before the robbery began; thus, there having been no additional violence used against the victim, it followed that the evidentiary basis for the aggravated assault conviction was "used up" in proving the armed robbery. Howard v. State, 298 Ga. App. 98 , 679 S.E.2d 104 (2009).
Defendant's aggravated assault convictions merged into the defendant's armed robbery convictions because there was no element of aggravated assault with a deadly weapon, O.C.G.A. § 16-5-21(a)(2), that was not contained in armed robbery, O.C.G.A. § 16-8-41 ; aggravated assault with a deadly weapon does not require proof of a fact that armed robbery does not, and because the assault requirement of aggravated assault is the equivalent of the "use of an offensive weapon" requirement of armed robbery, the "deadly weapon" requirement of this form of aggravated assault is the equivalent of the "offensive weapon" requirement of armed robbery. Long v. State, 287 Ga. 886 , 700 S.E.2d 399 (2010).
Plea counsel performed deficiently in failing to argue for the merger of the defendant's convictions and sentences for armed robbery, O.C.G.A. § 16-8-41(a) , and aggravated assault with a deadly weapon, O.C.G.A. § 16-5-21(a)(2), because the aggravated assault with a deadly weapon charges did not require proof of a fact that the armed robbery charges did not likewise require, and the defendant's aggravated assault convictions unquestionably merged into the defendant's armed-robbery convictions; the armed robbery counts in the indictment provided that the defendant unlawfully, with intent to commit theft, did take property from the person of the victim, by use of an offensive weapon, and the aggravated assault counts provided that the defendant did unlawfully make an assault upon the person of the victim with a steel rod, a deadly weapon, an object, which, when used offensively against a person, was likely to or actually did result in serious bodily injury, by beating the victim about the head and face with the steel rod. Murray v. State, 307 Ga. App. 621 , 705 S.E.2d 726 (2011).
Trial court erred in not merging a defendant's aggravated assault with attempt to rob conviction, O.C.G.A. § 16-5-21(a) , into the defendant's armed robbery conviction, O.C.G.A. § 16-8-41 . The offense of armed robbery contained a requirement, the taking of property, that aggravated assault did not, but aggravated assault with intent to rob did not require proof of a fact which armed robbery did not. Daniels v. State, 310 Ga. App. 541 , 713 S.E.2d 689 (2011).
Trial court's failure to merge the defendant's aggravated assault conviction with the defendant's armed robbery conviction in imposing the sentence was erroneous because there was no element of aggravated assault with a deadly weapon that was not contained in armed robbery; both crimes required proof of an intent to rob because the elements of the defendant's armed robbery charge under O.C.G.A. § 16-8-41(a) included an intent to rob, the use of an offensive weapon, and the taking of property from the person or presence of another, and the elements of the defendant's aggravated assault charge under O.C.G.A. § 16-5-21(a) included an assault upon the victim, an intent to rob, and the use of a deadly weapon. Daniels v. State, 310 Ga. App. 562 , 714 S.E.2d 91 (2011).
Trial court erred by failing to merge an aggravated assault charge into an armed robbery charge because the victim testified repeatedly that the defendant was in the victim's apartment when the defendant shot the victim and that the victim fired a gun as soon as the victim saw the defendant point a gun at the victim while forcing the defendant's way in; both crimes were complete when the defendant pointed the gun at the victim while simultaneously entering the apartment, and there was no separate aggravated assault before the armed robbery began. Davis v. State, 312 Ga. App. 328 , 718 S.E.2d 559 (2011).
Trial court erred in failing to merge the defendant's conviction for aggravated assault with a deadly weapon, O.C.G.A. § 16-5-21(a)(2), into the defendant's conviction for armed robbery conviction, O.C.G.A. § 16-8-41(a) , because the act of using an offensive weapon for the purposes of committing an armed robbery was the legal equivalent of assault for the purposes of committing an aggravated assault; it is not determinative under the merger analysis that the desired object of a defendant's armed robbery was something other than that which he or she actually took, but instead, what dictates merger is the fact that both crimes for which the defendant was convicted were predicated upon the same conduct. Hall v. State, 313 Ga. App. 66 , 720 S.E.2d 181 (2011).
Defendant's conviction and sentence on one count for aggravated assault against the manager of a fast food restaurant as a party to co-defendant's acts had to be vacated because that count was alleged to have been committed by the act of co-defendant striking the manager about the head with the gun during the armed robbery, thus, the aggravated assault arose out of the same act or transaction as the armed robbery and it was included in and merged with the armed robbery as a matter of fact. Broyard v. State, 325 Ga. App. 794 , 755 S.E.2d 36 (2014).
Aggravated assault count merged into conviction for armed robbery because the trial court failed to recognize that both charges arose from the same conduct, that of threatening the victim at gunpoint to make the victim open the cash register so the assailants could take cash and checks inside. Chambers v. Hall, 305 Ga. 363 , 825 S.E.2d 162 (2019), cert. denied, 2019 U.S. LEXIS 5561, 205 L. Ed. 2 d 174 (U.S. 2019).
Merger with armed robbery not proper. - Trial court did not err in failing to merge counts of armed robbery, O.C.G.A. § 16-8-41(a) , and aggravated assault with a deadly weapon, O.C.G.A. § 16-5-21(a)(2), because the assault was completed before the armed robbery; the evidence showed that the defendant confronted the victim by entering the room with a pistol and threatening the victim, at which point, the crime of aggravated assault with a deadly weapon was completed. The evidence further showed that after threatening the victim, presumably to prevent the victim from retaliating against the defendant for a prior altercation, the defendant ordered the victim to empty the victim's pockets at gunpoint and took $200 from the victim, which comprised the armed robbery. Ransom v. State, 298 Ga. App. 360 , 680 S.E.2d 200 (2009).
Defendant's sentence for armed robbery, O.C.G.A. § 16-8-41(a) , and aggravated assault, O.C.G.A. § 16-5-21(a)(2), was not void as a result of the trial court's failure to merge the convictions because the convictions did not merge for sentencing purposes since they did not involve the same conduct; the crime of armed robbery was complete when the defendant entered a restaurant and, with the use of a handgun, demanded and took money from a waitress, and, after completion of the armed robbery, the defendant pushed the gun against the waitress's neck and asked whether the waitress wanted to die, which formed the basis of the aggravated assault conviction. McKenzie v. State, 302 Ga. App. 538 , 691 S.E.2d 352 (2010).
Because the defendant's conviction under O.C.G.A. § 16-8-41(a) for armed robbery could be sustained based upon the defendant's conduct with a shotgun, and because the defendant's conviction under O.C.G.A. § 16-5-21(a)(2) for aggravated assault could be sustained based upon the defendant's conduct with a knife, pursuant to O.C.G.A. § 16-1-7(a) , the two convictions did not merge. Johnson v. State, 305 Ga. App. 838 , 700 S.E.2d 726 (2010).
Defendant's convictions for armed robbery and aggravated assault did not merge because each crime required proof of conduct that the other did not; the armed robbery as charged in the indictment required proof of intent to rob and that the victim's wallet was taken, while the aggravated assaults required proof that the victim's neck was slashed with a sharp weapon. Thomas v. State, 310 Ga. App. 404 , 714 S.E.2d 37 (2011).
Trial court did not err in failing to merge the aggravated assault count of the indictment with the armed robbery count because the defendant knowingly and voluntarily pled guilty to each of the crimes for which the defendant was indicted, and as a consequence, the defendant waived all defenses except that the indictment charged no crime, including the issue of whether the offenses merged as a matter of law or fact; the defendant chose to admit that the defendant committed the acts so the defendant could avoid a trial on the question of guilt or innocence, and having accepted the benefits of such a bargain, it would be contrary to public policy and the ends of justice to allow the defendant to avoid the consequences of the agreement. Carson v. State, 314 Ga. App. 225 , 723 S.E.2d 516 (2012), overruled on other grounds, Nazario v. State, 293 Ga. 480 , 746 S.E.2d 109 (2013).
Trial court erred by failing to merge the defendant's convictions for aggravated assault with a deadly or offensive weapon and armed robbery for sentencing purposes because hitting a victim in the head with a handgun while demanding money were not separate and distinct acts but one uninterrupted criminal transaction. Haynes v. State, 322 Ga. App. 57 , 743 S.E.2d 617 (2013).
Reckless conduct as lesser included offense of aggravated assault with a deadly weapon. - Where evidence indicated that defendant might have merely fired a gun up into the air while the police were chasing the car in which defendant was riding, the trial court erred in refusing to charge the jury on the offense of reckless conduct as a lesser included offense of an aggravated assault by attempting to injure. Shaw v. State, 238 Ga. App. 757 , 519 S.E.2d 486 (1999).
Charge on reckless conduct not warranted. - When the evidence, including defendant's own admissions, clearly established that the defendant repeatedly fired the weapon with the intention of scaring the victims, even if the defendant did not intend to hit them, the evidence established aggravated assault and there was no error in the failure to give an instruction on reckless conduct. Huguley v. State, 242 Ga. App. 645 , 529 S.E.2d 915 (2000).
Rape includes lesser offense of assault with intent to rape or aggravated assault. Wingfield v. State, 231 Ga. 92 , 200 S.E.2d 708 (1973), cert. denied, 416 U.S. 942, 94 S. Ct. 1949 , 40 L. Ed. 2 d 294 (1974).
Aggravated assault and kidnapping. - Aggravated assault, with intent to rob as the factor in aggravation, is not a lesser included offense of kidnapping with bodily injury. Brown v. State, 232 Ga. App. 787 , 504 S.E.2d 452 (1998).
Evidence that was required to convict defendant of three counts of aggravated assault differed from that which was required to prove the three kidnapping charges against defendant, as the aggravated assaults occurred when deadly weapons were pointed at the victims shortly after defendant and another assailant entered a certain store, whereas the kidnappings were complete when the three victims were later dragged from one room to another; thus, the aggravated assault convictions did not merge into the kidnapping convictions for sentencing purposes. Phanamixay v. State, 260 Ga. App. 177 , 581 S.E.2d 286 (2003).
Trial court's decision not to merge the conviction of kidnapping, in violation of O.C.G.A. § 16-5-40 , with the defendant's convictions for aggravated assault and armed robbery, in violation of O.C.G.A. §§ 16-5-21 and 16-8-41 , was proper under O.C.G.A. § 16-1-7(a) , as the facts that supported the kidnapping were not the same as those that supported the convictions for the other offenses; the kidnapping occurred when the defendant forced three store employees into an office, the aggravated assaults occurred when the defendant pointed a gun at one employee's head and hit another employee with it, and the armed robbery occurred when the defendant took money from the store safe. Hill v. State, 279 Ga. App. 666 , 632 S.E.2d 443 (2006).
Kidnapping, aggravated assault, and rape were separate offenses, completed individually, and did not merge as a matter of fact; thus, the trial court did not err in refusing to merge the kidnapping counts into the aggravated assault and rape counts for purposes of sentencing. Dasher v. State, 281 Ga. App. 326 , 636 S.E.2d 83 (2006).
Because there was independent evidence to support each of the offenses as indicted, a defendant's aggravated assault conviction did not merge as a matter of fact with either the aggravated battery or kidnapping with bodily injury convictions. Pitts v. State, 287 Ga. App. 540 , 652 S.E.2d 181 (2007).
It was error for the trial court to impose separate sentences for the defendant's aggravated assault convictions because the defendant's convictions for aggravated assault merged as a matter of fact with the defendant's conviction for kidnapping with bodily injury. Delgiudice v. State, 308 Ga. App. 397 , 707 S.E.2d 603 (2011).
Aggravated assault convictions did not merge. - Under the required evidence test, the defendant's two aggravated assault convictions did not merge because the assault with intent to murder count required the state to prove that the defendant intended to kill the victim, which the state was not required to prove for the charge of aggravated assault with a deadly weapon; and the aggravated assault with a deadly weapon count required the state to prove that the defendant used a deadly weapon, a knife, box-cutter, or other sharp-edged instrument, which the state did not have to prove for the conviction of aggravated assault with intent to murder. Howard v. State, 334 Ga. App. 229 , 779 S.E.2d 5 (2015).
Aggravated assault is included offense of kidnapping with bodily injury. - Because the elements of the crime of aggravated assault must have been proved in order to sustain a conviction for the crime of kidnapping with bodily injury, the aggravated assault is an included offense of the crime of kidnapping with bodily injury. Brown v. State, 247 Ga. 298 , 275 S.E.2d 52 , cert. denied, 454 U.S. 882, 102 S. Ct. 366 , 70 L. Ed. 2 d 192 (1981), overruled on other grounds, Wilson v. Zant, 249 Ga. 373 , 290 S.E.2d 442 (1982), but see, Morgan v. State, 267 Ga. 203 , 476 S.E.2d 747 (1996); Herring v. State, 224 Ga. App. 809 , 481 S.E.2d 842 (1997).
When assault is committed with deadly weapon, simple assault is not lesser included offense. Hightower v. State, 137 Ga. App. 790 , 224 S.E.2d 842 (1976).
When assault is committed with gun, simple assault is not a lesser included offense. Zachery v. State, 158 Ga. App. 448 , 280 S.E.2d 860 (1981).
Simple assault is not a lesser included offense of an aggravated assault in which a gun or a knife is alleged to have been used as a deadly weapon. Weaver v. State, 182 Ga. App. 806 , 357 S.E.2d 153 (1987).
Aggravated assault not lesser included offense. - When the evidence used to prove the commission of an aggravated assault was not used at all in proving the commission of an aggravated battery, defendant's argument that the aggravated assault was a lesser included offense of the aggravated battery was without merit. Grace v. State, 262 Ga. 746 , 425 S.E.2d 865 (1993).
When an indictment alleged that an aggravated assault was committed with a firearm by shooting the victims, and an armed robbery alleged the use of an offensive weapon, the aggravated assault charge was not a lesser included offense of armed robbery as a matter of law, and the two offenses rarely merged as a matter of fact. Silvers v. State, 278 Ga. 45 , 597 S.E.2d 373 (2004).
Mutiny in a penal institution and aggravated assault require proof of different elements and, therefore, the former offense cannot be a lesser included offense of the latter. Bierria v. State, 232 Ga. App. 622 , 502 S.E.2d 542 (1998).
Simple battery. - When an assault is committed with a deadly weapon, the simple battery is not a lesser included offense under aggravated assault. Powell v. State, 140 Ga. App. 36 , 230 S.E.2d 90 (1976).
When the defendant was indicted for aggravated assault upon the person of another "with a bottle, an object which when used offensively against a person is likely to or actually does result in serious bodily injury," simple battery was a lesser included offense of aggravated assault, and the jury was properly instructed as to the lesser included offense. Haun v. State, 189 Ga. App. 884 , 377 S.E.2d 878 , cert. denied, 189 Ga. App. 912 , 377 S.E.2d 878 (1989).
Offense of battery is not necessarily a lesser included offense of aggravated assault. Although the element of physical or bodily harm is a requisite for battery, since the physical or bodily harm is committed with a deadly weapon, simple battery is not a lesser included offense. Givens v. State, 199 Ga. App. 845 , 406 S.E.2d 272 (1991); Van Doran v. State, 244 Ga. App. 496 , 53 S.E.2d 163 (2000).
"Affray" is not a lesser-included offense of aggravated assault. Rowland v. State, 228 Ga. App. 66 , 491 S.E.2d 119 (1997).
When assault occurred after aggravated battery, and the evidence indicated that any intent defendant may have had to kill her husband before he was shot was abandoned immediately thereafter, when she prevented her son from shooting her husband a second time, it was error to deny her motion for a directed verdict of acquittal as to the offense of aggravated assault with intent to murder. Overstreet v. State, 182 Ga. App. 809 , 357 S.E.2d 103 (1987).
Aggravated assault merged into aggravated battery. - Because the indictment alleged only one act, the shooting of the victim, and because the evidence showed only that defendant's actions were the result of a single act of firing a series of shots in quick succession at the victim, the convictions for aggravated assault merged into the aggravated battery. Brown v. State, 246 Ga. App. 60 , 539 S.E.2d 545 (2000).
Defendant's aggravated battery and aggravated assault convictions merged because the counts of the indictment were based on the same conduct of hitting the victim with a hammer, resulting in serious bodily injury to the victim's hand and one of the victim's fingers being rendered useless when the victim placed the victim's hands up in an attempt to protect the victim's head; the aggravated assault was a lesser included offense of the aggravated battery because the aggravated assault required proof of a less serious injury than the aggravated battery. Thomas v. State, 310 Ga. App. 404 , 714 S.E.2d 37 (2011).
In an aggravated assault and aggravated battery case arising out of an incident in which the defendant twice, in quick succession, slashed the throat of the victim, the defendant's girlfriend, the trial court erred by failing to merge the defendant's convictions, and the court of appeals erroneously affirmed that decision because the record sufficiently established that the defendant's actions were part of a continuous criminal act, committed at the same time and place and inspired by the same criminal intent; and the offenses, which were based on the single criminal act of the defendant cutting the victim's throat with a knife, only differed with respect to the seriousness of the injury or risk of injury suffered by the victim. Regent v. State, 299 Ga. 172 , 787 S.E.2d 217 (2016).
Trial court erred by failing to merge the defendant's aggravated assault and aggravated battery convictions for the purposes of sentencing as the aggravated assault conviction was a lesser included offense of the aggravated battery conviction because, although the aggravated battery provision required proof that the victim had the victim's body seriously disfigured, which was not a required showing under the aggravated assault provision, the latter provision did not require proof of any fact that was not also required to prove the aggravated battery; thus, the conviction and sentence for aggravated assault had to be vacated and the case remanded to the trial court for re-sentencing. Evans v. State, 344 Ga. App. 283 , 810 S.E.2d 164 (2018).
Aggravated assault did not merge with aggravated battery. - Defendant's convictions of aggravated assault and aggravated battery against the same victim did not merge for sentencing purposes, as the two offenses were proven with different facts: the assault occurred when defendant threatened the victim with a gun, and the battery occurred when defendant later shot the victim in the arm. Pennymon v. State, 261 Ga. App. 450 , 582 S.E.2d 582 (2003).
Trial court did not err in refusing to merge the defendant's convictions for aggravated assault and aggravated battery, O.C.G.A. §§ 16-5-21 and 16-5-24 , because the offenses were established by proving different facts; the defendant was found guilty of aggravated assault because there was evidence that the defendant assaulted the victim with a screwdriver, and the defendant was found guilty of aggravated battery because the victim's left lung was nonfunctional for a period of time due to the stab wound. Works v. State, 301 Ga. App. 108 , 686 S.E.2d 863 (2009), cert. denied, No. S10C0458, 2010 Ga. LEXIS 251 (Ga. 2010).
Separate judgments of conviction and sentences for aggravated assault, O.C.G.A. § 16-5-21(a)(2), and aggravated battery, O.C.G.A. § 16-5-24(a) , were authorized because the evidence authorized a finding that the defendant committed an initial aggravated assault and, after a deliberate interval, committed an aggravated battery in a different location and on a different part of the victim's body; because each offense required proof of a fact that the other offense did not, the crimes did not merge legally or factually. Brockington v. State, 316 Ga. App. 90 , 728 S.E.2d 753 (2012).
Because the defendant's initial act of pointing the gun at the victim's head, an aggravated assault, was a separate act from the ensuing acts of aggravated battery in which the defendant shot and injured both of the victim's hands, the crimes of aggravated assault and aggravated battery did not merge. Thomas v. State, 325 Ga. App. 682 , 754 S.E.2d 661 (2014).
Under the required evidence test, the defendant's convictions for aggravated assault and aggravated battery did not merge because the aggravated battery count required the state to prove that the defendant rendered a member of the victim's body useless, which the state did not have to prove for the conviction of aggravated assault with a deadly weapon; and aggravated assault with an offensive weapon required the state to prove that the defendant used a hammer, an object likely to result in serious bodily injury, which the state did not have to prove for the aggravated battery conviction. Howard v. State, 334 Ga. App. 229 , 779 S.E.2d 5 (2015).
Trial court did not err in failing to merge Count Three, charging the defendant with aggravated assault with intent to murder, into the aggravated battery convictions because the count of aggravated assault with intent to murder required proof of a fact - the intent to kill - that the aggravated battery counts did not, and the aggravated battery counts required proof of a fact - the infant's skull was rendered useless and the infant's face was disfigured - that the aggravated assault with intent to murder count did not; thus, the trial court did not err in sentencing the defendant separately for aggravated assault with intent to murder as well as two counts of aggravated battery. Busby v. State, 332 Ga. App. 646 , 774 S.E.2d 717 (2015).
Battery conviction merged into aggravated assault conviction. - Trial court correctly ruled that the defendant's conviction for battery merged into the defendant's conviction for aggravated assault because the felony of aggravated assault did not merge into the misdemeanor battery. Gross v. State, 312 Ga. App. 362 , 718 S.E.2d 581 (2011).
Carrying weapon without license is not included within aggravated assault with deadly weapon. Thomas v. State, 128 Ga. App. 538 , 197 S.E.2d 452 (1973).
Elements of interference with government property are not included in the elements required for aggravated assault. Hyman v. State, 222 Ga. App. 419 , 474 S.E.2d 243 (1996).
Aggravated assault not lesser included offense of burglary. - Neither burglary nor aggravated assault was established by proof of the same or less than all the facts required to prove the other so the argument that an aggravated assault conviction must merge with a burglary conviction is without merit. Taylor v. State, 157 Ga. App. 212 , 276 S.E.2d 691 (1981).
Attempted armed robbery and aggravated assault are separate and distinct crimes, and separate sentences were properly imposed. Lambert v. State, 157 Ga. App. 275 , 277 S.E.2d 66 (1981).
Aggravated assault is not included in attempted armed robbery as a matter of law, although these two offenses may as a matter of fact merge if the same facts are used to prove both offenses. However, where the underlying facts show that one crime was completed prior to the second crime, so that the crimes are separate as a matter of law, there is no merger. Gaither v. Cannida, 258 Ga. 557 , 372 S.E.2d 429 (1988).
Convictions and sentences for both armed robbery and aggravated assault were proper, where each offense charged was clearly supported by its own set of facts. Millines v. State, 188 Ga. App. 655 , 373 S.E.2d 838 (1988).
Attempted armed robbery as included offense of aggravated assault. - Trial court did not err by refusing to charge the jury that the jury could find the defendant guilty of attempted armed robbery as an included offense of aggravated assault with intent to rob since the defendant was not entitled to a charge or verdict of attempted armed robbery when that offense could only be proved by showing that the defendant brandished a weapon in the faces of the victims with the intent to rob the victims, that is, that the defendant actually committed the greater offense, a completed aggravated assault with the intent to rob. Since the evidence that proved that the defendant committed an attempted armed robbery necessarily proved that the defendant committed the greater, completed crime of aggravated assault with intent to rob, there was no evidence that the defendant committed only the offense of attempted armed robbery and, therefore, the defendant was not entitled to a charge on that lesser included offense. Pilkington v. State, 298 Ga. App. 317 , 680 S.E.2d 164 (2009), cert. denied, No. S09C1717, 2010 Ga. LEXIS 54 (Ga. 2010).
Conviction for aggravated assault did not merge with conviction for armed robbery where the evidence showed that the defendant had completed the armed robbery at the time defendant assaulted the security guard. Loumakis v. State, 179 Ga. App. 294 , 346 S.E.2d 373 (1986).
Offenses of aggravated assault and robbery did not merge as a matter of law, where although the occurrences happened within a short span of time, the robbery had been completed at the time defendant fired the gun and involved different actions and intents. Phelps v. State, 194 Ga. App. 493 , 390 S.E.2d 899 (1990).
Aggravated assault conviction did not merge with armed robbery offenses for sentencing purposes because each crime required proof of an additional fact as the robbery required proof that defendant took the property of another, which was not required to prove aggravated assault, and assault required proof that the victim was placed in reasonable far of immediately receiving a violent injury, which armed robbery did not require. Nava v. State, 301 Ga. App. 497 , 687 S.E.2d 901 (2009).
Aggravated assault did not merge with kidnapping and armed robbery charges because each count relied on separate facts. Howard v. State, 230 Ga. App. 437 , 496 S.E.2d 532 (1998).
Aggravated assault with intent to rob did not merge with kidnapping offense. - Defendant completed the act of aggravated assault with intent to rob when defendant initially approached the victim and told the victim that defendant intended to steal the car; this crime did not merge into the conviction for kidnapping, which was completed later. Robinson v. State, 271 Ga. App. 768 , 610 S.E.2d 706 (2005).
Aggravated assault merged with kidnapping with bodily injury. - An aggravated assault based on defendant's choking of the victim with an electrical cord merged into the kidnapping with bodily injury, and the sentence imposed for a count of aggravated assault was vacated. Nelson v. State, 278 Ga. App. 548 , 629 S.E.2d 410 (2006).
Aggravated assault was included in armed robbery as matter of fact, when it was not the initial pointing of a pistol at the victim which prompted the victim to open a cash drawer but the subsequent cocking of the weapon by the assailant after the victim had told the assailant that the victim had no money and the actual firing of the weapon occurred virtually at the same moment as the victim was hitting the button to open the drawer. Moreland v. State, 183 Ga. App. 113 , 358 S.E.2d 276 (1987).
Defendant's aggravated assault conviction should have merged with the defendant's armed robbery conviction as the two convictions were based on the same conduct in sticking a gun to a victim's head with the intent to rob the victim. Kirk v. State, 271 Ga. App. 640 , 610 S.E.2d 604 (2005).
Defendants' aggravated assault convictions merged into their armed robbery convictions as simultaneous with showing the gun, defendants made clear that they intended to rob the victims, which they proceeded to do; there was not a separate aggravated assault before the robbery began. Young v. State, 272 Ga. App. 304 , 612 S.E.2d 118 (2005).
Defendants' aggravated assault by striking a victim with a gun convictions merged into their armed robbery convictions as the robbery was not complete until the gunman struck the victim with the gun, thereby allowing defendant to take the victim's money. Young v. State, 272 Ga. App. 304 , 612 S.E.2d 118 (2005).
Aggravated assault conviction merged with robbery conviction where victim was placed in fear of receiving bodily injury before the victim's money was taken. Luke v. State, 171 Ga. App. 201 , 318 S.E.2d 833 (1984).
Defendant's five convictions of aggravated assault merged with defendant's conviction on five counts of attempted armed robbery where defendant's act of pointing a pistol at bank employees when defendant announced an intent to rob the bank was the act underlying both the convictions for attempted armed robbery and for aggravated assault. Hambrick v. State, 256 Ga. 148 , 344 S.E.2d 639 (1986).
Since the evidence adduced to convict defendant of aggravated assault with intent to rob - that defendant threw the victim on the floor, hit the victim, and strangled the victim with a bed sheet - was part and parcel of the evidence underlying defendant's robbery conviction, the offenses merged as a matter of fact. Johnson v. State, 247 Ga. App. 157 , 543 S.E.2d 439 (2000).
Aggravated assault merged with armed robbery, where the aggravated assault alleged separately in the indictment was the same assault alleged to have been committed in the course of the armed robbery. Cherry v. State, 178 Ga. App. 483 , 343 S.E.2d 510 (1986).
When the defendant's offense of attempted armed robbery was included in the defendant's offense of aggravated assault with intent to rob a restaurant manager, only one sentence should have been imposed in connection with the two charges. Redding v. State, 193 Ga. App. 50 , 386 S.E.2d 907 (1989).
Aggravated assaults did not merge with the robbery of two victims, where the robberies were completed, both victims having been deprived of their property, when they were marched off for another criminal purpose and the aggravated assaults on each victim occurred. Glass v. State, 199 Ga. App. 530 , 405 S.E.2d 522 (1991).
Aggravated assault count merged into robbery count, where the only aggravated assault (committed by defendant) shown by the evidence was that by which the commission of the robbery was effectuated. Since there was no additional, gratuitous violence employed against the victim, the evidentiary basis for the aggravated assault conviction was "used up" in proving the robbery. Head v. State, 202 Ga. App. 209 , 413 S.E.2d 533 (1991).
Defendant's ineffective assistance of counsel claim based on counsel's failure to ask at sentencing that defendant's convictions for aggravated assault be merged into the armed robbery convictions was rejected as the convictions were merged at the motion for a new trial hearing. Buchanan v. State, 273 Ga. App. 174 , 614 S.E.2d 786 (2005).
Separate sentences for aggravated assault and assault with the intent to rape. - When there was evidence of assaults as the defendant wielded the knife that were gratuitous and unconnected with the assault with the intent to rape the victim, it was not error to sentence the defendant separately on the jury's findings of guilt for the aggravated assaults. Woodson v. State, 242 Ga. App. 67 , 530 S.E.2d 2 (2000), aff'd, 273 Ga. 557 , 544 S.E.2d 431 (2001).
Aggravated assault merged with criminal attempt to commit murder. - Aggravated assault conviction merged into a criminal attempt to commit murder conviction, where both counts were based on allegations that defendant had stabbed the victim with a knife. Kelley v. State, 201 Ga. App. 343 , 411 S.E.2d 276 (1991).
Merger of aggravated assault with malice murder. - Convictions and sentences for aggravated assault with intent to murder and aggravated assault with a deadly weapon were vacated where the evidence showed that they both merged as a matter of fact with the malice murder conviction. Williams v. State, 277 Ga. 368 , 589 S.E.2d 563 (2003).
Because the evidence the state used to prove that the defendant committed aggravated assault was the same that it used to prove that defendant committed malice murder, the aggravated assault offense merged into the malice murder as a matter of fact. Thus, the separate judgment of conviction and sentence for aggravated assault had to be vacated. Ludy v. State, 283 Ga. 322 , 658 S.E.2d 745 (2008).
Convictions against the defendant for both malice murder and aggravated assault were error under O.C.G.A. § 16-1-7(a)(1) as the aggravated assault was included within the malice murder conviction under O.C.G.A. § 16-1-6(1) because the same conduct established the commission of both offenses. Bell v. State, 284 Ga. 790 , 671 S.E.2d 815 (2009).
With regard to a defendant's malice murder conviction arising from the suffocation death of the defendant's newborn daughter, the defendant's conviction and sentence for aggravated assault was vacated inasmuch as the evidence showed that the aggravated assault merged as a matter of fact with the malice murder conviction. Wright v. State, 285 Ga. 428 , 677 S.E.2d 82 (2009), cert. denied, 558 U.S. 1123, 130 S. Ct. 1076 , 175 L. Ed. 2 d 903 (2010).
Defendant's conviction for aggravated assault of the victim merged into the conviction for malice murder of the victim because there was no evidence that the victim suffered a non-fatal injury prior to a deliberate interval in the attack and a fatal injury thereafter; the forensic pathologist who conducted the autopsy catalogued the victim's wounds as "chop injuries" that fractured the victim's skull and incapacitated the victim and were likely inflicted with a hatchet, punctures and superficial, deep, and very deep incisions and stab wounds that were inflicted by knives. Alvelo v. State, 290 Ga. 609 , 724 S.E.2d 377 (2012).
Aggravated assault conviction should have merged into malice murder conviction because it was not clear there was any deliberate interval between the assaults. Schutt v. State, 292 Ga. 625 , 740 S.E.2d 163 (2013).
Aggravated assault did not merge with malice murder. - When the defendant fired a gun at someone and the bullet grazed the person, went through a wall, and killed another person, the aggravated assault and malice murder convictions did not merge for sentencing purposes. George v. State, 276 Ga. 564 , 580 S.E.2d 238 (2003).
Aggravated assault not lesser included offense. - Where an indictment alleged that an aggravated assault was committed with a firearm by shooting the victims, and an armed robbery alleged the use of an offensive weapon, the aggravated assault charge was not a lesser included offense of armed robbery as a matter of law, and the two offenses rarely merged as a matter of fact. Silvers v. State, 278 Ga. 45 , 597 S.E.2d 373 (2004).
Trial court erred in sentencing defendant for malice murder and aggravated assault as the victim's death was caused by a combination of blunt force trauma and strangulation and the aggravated assault merged into the malice murder as a matter of fact. Young v. State, 280 Ga. 65 , 623 S.E.2d 491 (2005).
Defendant's conviction and sentence for aggravated assault was vacated as the malice murder and the aggravated assault charges merged as a matter of fact because the same evidence to prove aggravated assault as indicted, stabbing the victim with a knife, was used to prove malice murder. Williams v. State, 279 Ga. 154 , 611 S.E.2d 19 (2005).
Because the evidence that defendant assaulted the victim with a shotgun was used to prove both an aggravated assault and malice murder, the aggravated assault conviction merged by fact into the malice murder conviction. Nix v. State, 280 Ga. 141 , 625 S.E.2d 746 (2006).
When a prisoner was convicted of malice murder under O.C.G.A. § 16-5-1(a) , a jury did not return a verdict on felony murder counts because O.C.G.A. § 16-1-7 prohibited a conviction for both offenses for the death of a single victim. Further, the prisoner's crime of aggravated assault under O.C.G.A. § 16-5-21(a) also merged with the malice murder offense as it was a crime included within the greater offense. Newland v. Hall, 527 F.3d 1162 (11th Cir. 2008), cert. denied, 555 U.S. 1183, 129 S. Ct. 1336 , 173 L. Ed. 2 d 607 (2009).
Aggravated assault with intent to rob and aggravated assault with deadly weapon merged. - Convictions for aggravated assault of a male victim with the intent to rob and aggravated assault of the male victim with a deadly weapon did not rely on distinct criminal acts, as the weapons used in the assault were also implements of the robbery and used with the same purpose and intent; since the same facts were used to prove both crimes, the different crimes merged as a matter of fact for sentencing purposes. Maddox v. State, 277 Ga. App. 580 , 627 S.E.2d 166 (2006).
Armed robbery and aggravated assault with deadly weapon are separate crimes, and one is not included in other. Neither prohibits a designated kind of conduct generally while the other prohibits a specific instance of such conduct. Roberts v. State, 228 Ga. 298 , 185 S.E.2d 385 (1971).
Aggravated assault and armed robbery not always different crimes. - While aggravated assault and armed robbery are different crimes as a matter of law, they are not always so as a matter of fact. Lambert v. State, 157 Ga. App. 275 , 277 S.E.2d 66 (1981).
Conviction of aggravated assault and armed robbery constitutional. - There was no violation of defendant's protection from double jeopardy in defendant's having been convicted of and punished for both the aggravated assault and armed robbery of defendant's victim, where the indictment charged armed robbery with the specific intent to commit a theft and the two acts were in fact separate though in close succession. Taylor v. State, 177 Ga. App. 624 , 340 S.E.2d 263 (1986).
Charge of aggravated assault on a peace officer merges into a mutiny conviction because the aggravated assault charge is established by proof of less than all the facts required to establish the commission of mutiny. Lummen v. State, 180 Ga. App. 204 , 348 S.E.2d 584 (1986).
Aggravated assault on a police officer merged with obstruction of a police officer. - Trial court erred in failing to merge the defendant's convictions for four counts of obstruction of a police officer into the convictions for four counts of aggravated assault on a police officer because each count of the crime of obstruction was established by proof of the same or less than all the facts required to establish each count of the crime of aggravated assault; the state conceded that the trial court erred in failing to merge the convictions for obstruction into the convictions for aggravated assault on a police officer. Dobbs v. State, 302 Ga. App. 628 , 691 S.E.2d 387 (2010).
Intent to harm victim not inconsistent with conscious disregard of risk of harming another. - Multiple guilty verdicts for the same conduct that are based on varying levels of mens rea are not mutually exclusive; therefore, the jury's verdicts that the defendant, by shooting a gun in a parking lot and killing a bystander, was guilty of aggravated assault under O.C.G.A. § 16-5-21 and involuntary manslaughter predicated on reckless conduct, O.C.G.A. §§ 16-5-3(a) and 16-5-60(b) , were not inconsistent because the defendant could both commit assault with the intent to harm the victim and, at the same time, consciously disregard a substantial risk of harming another. State v. Springer, 297 Ga. 376 , 774 S.E.2d 106 (2015).
Assault with Deadly Weapon
"Assault with deadly weapon" and "assault with intent to murder" compared. - While an assault with intent to commit murder is usually manifested by the use of some deadly weapon, yet the offense of an assault with intent to commit murder may be committed without a weapon likely to produce death. Wright v. State, 40 Ga. App. 118 , 149 S.E. 153 (1929).
"Assault with deadly weapon" and "assault with an object used offensively" compared. - Despite the defendant's claim that insufficient evidence was presented that the gun used in the commission of the charged crime was used as a deadly weapon, because the defendant was indicted for committing an assault by striking the victim on the side of the victim's head with the gun, an object when used offensively was likely to result in serious injury, no evidence of a deadly weapon was required at trial. Vonhagel v. State, 287 Ga. App. 507 , 651 S.E.2d 793 (2007).
Assault with deadly weapon is essential element of offense of aggravated assault. Haygood v. State, 142 Ga. App. 627 , 236 S.E.2d 696 (1977).
Assault with deadly weapon constitutes aggravated assault, felony. Ruff v. State, 150 Ga. App. 238 , 257 S.E.2d 203 (1979).
Assault is aggravated when made with deadly weapon, regardless of intent. Ross v. State, 131 Ga. App. 587 , 206 S.E.2d 554 (1974).
When jury can be given discretion to convict of lesser included offense. - Under the proof in a case, the jury can be given the discretion to convict of a lower offense included in a higher felony charged, if they believe the evidence does not show a specific intent to kill. Jackson v. State, 99 Ga. App. 740 , 109 S.E.2d 886 (1959).
Instruction on lesser offense and authorization to so convict. - Under an indictment for murder the accused may be convicted of a lower grade of felony, or of a misdemeanor, if the lesser offense is one involved in the homicide and is sufficiently charged in the indictment; but whether the jury should be instructed on the law of a lesser offense, or they would be authorized to convict of a lesser offense, depends on the evidence. Moore v. State, 55 Ga. App. 213 , 189 S.E. 731 (1937).
When one is charged with murder by shooting and the evidence does not demand a finding that the victim died from such gunshot wounds and the defendant admits the shooting, a verdict of guilty of assault with intent to murder may be authorized and it is not error to charge the jury on such lesser crime. Kimbro v. State, 113 Ga. App. 314 , 147 S.E.2d 876 (1966).
Because the evidence showed that defendant committed an assault with intent and a deadly weapon, the crime constituted an aggravated assault under O.C.G.A. § 16-5-21(a)(2); therefore, a charge on the lesser-included offenses of simple assault or reckless conduct under O.C.G.A. §§ 16-5-20(a)(2) and 16-5-60(b) was not warranted. Paul v. State, 296 Ga. App. 6 , 673 S.E.2d 551 (2009).
Felony murder based on aggravated assault committed by police sergeant. - Evidence was sufficient to convict the defendant, a former police sergeant, of felony murder based on aggravated assault with a deadly weapon, specifically a TASER, because the medical examiner determined that the victim died from hypertensive cardiovascular disease exacerbated by physical exertion and conducted electrical stimulation from the application of the TASERs in drive-stun mode; and the state presented evidence that the repeated tasing of the victim in drive-stun mode over a span of about 20 minutes when the victim was exhausted from running and handcuffed not only inflicted intense physical pain, but also materially accelerated the victim's death minutes later. Eberhart v. State, 307 Ga. 254 , 835 S.E.2d 192 (2019).
Intent is a question for the jury. - When defendant contended the evidence was not sufficient to support the verdict because defendant did not intend to shoot anyone, but only intended to scare off people who were attacking defendant's home and defendant's automobile, it was held that intent is a question for the jury, and the evidence was sufficient. Cade v. State, 180 Ga. App. 314 , 348 S.E.2d 769 (1986).
State of mind of either a perpetrator or a victim, including whether a victim has been placed under reasonable apprehension of injury or fear from an event, when in issue, may be proved by indirect or circumstantial evidence. Williams v. State, 208 Ga. App. 12 , 430 S.E.2d 157 (1993).
Intent to kill is not element of aggravated assault with deadly weapon. Emmons v. State, 142 Ga. App. 553 , 236 S.E.2d 536 (1977); Riddle v. State, 145 Ga. App. 328 , 243 S.E.2d 607 (1978), overruled on other grounds, Adsitt v. State, 248 Ga. 237 , 282 S.E.2d 305 (1981).
Intent to injure is not an element of aggravated assault with a deadly weapon. Collins v. State, 199 Ga. App. 676 , 405 S.E.2d 892 (1991); Turner v. State, 205 Ga. App. 745 , 423 S.E.2d 439 (1992); Jay v. State, 232 Ga. App. 661 , 503 S.E.2d 563 (1998).
It is the reasonable apprehension of harm by the victim of an assault by a firearm that establishes the crime of aggravated assault, not the assailant's intent to injure. Collins v. State, 199 Ga. App. 676 , 405 S.E.2d 892 (1991); Turner v. State, 205 Ga. App. 745 , 423 S.E.2d 439 (1992).
Intent to harm the victim is not an element of aggravated assault, and the state needs only to prove that defendant committed an assault and that defendant used a deadly weapon in doing so; a jury's finding that defendant was guilty of aggravated assault was supported by evidence that defendant, armed with a knife, grabbed the victim as the victim was running; defendant and the victim struggled; the victim fell to the ground; defendant held a knife to the victim's neck, forced the victim into a near-by pick-up truck, and drove away; and while in the truck, the defendant punched the victim in the face and threatened to kill the victim. Bailey v. State, 269 Ga. App. 262 , 603 S.E.2d 786 (2004).
Intent to scare victim not a defense. - When the defendant discharged a firearm in the direction of the victim, the defendant committed aggravated assault, and defendant's claim that the defendant was just trying to scare the victim was no defense. Jordan v. State, 214 Ga. App. 598 , 448 S.E.2d 917 (1994).
Actual injury not required. - There is no requirement that a victim actually be injured by the deadly weapon before a conviction for aggravated assault is authorized, since it is the reasonable apprehension of harm by the victim from exposure to the deadly weapon that establishes the crime of aggravated assault. Gilbert v. State, 209 Ga. App. 483 , 433 S.E.2d 664 (1993).
When the defendant fired shots into the cab of a single cab pickup truck containing three people, the evidence was sufficient for a conviction of aggravated assault against the two victims who were not struck by a bullet, because one of those victims testified that the defendant shot at the victim and the jury could surmise that the victims not struck suffered apprehension of being shot. Cornelius v. State, 273 Ga. App. 806 , 616 S.E.2d 148 (2005), overruled on other grounds, Schofield v. Holsey, 281 Ga. 809 , 642 S.E.2d 56 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Criminal negligence cannot substitute for criminal intent in cases of aggravated assault with a deadly weapon based on either an attempt to commit violent injury to the person of another (O.C.G.A. § 16-5-20(a)(1)), or the commission of an act placing another in apprehension of receiving an injury (O.C.G.A. § 16-5-20(a)(2)). Dunagan v. State, 269 Ga. 590 , 502 S.E.2d 726 (1998), overruling Osborne v. State, 228 Ga. App. 758 , 492 S.E.2d 732 (1007) and Jordan v. State, 214 Ga. App. 598 , 448 S.E.2d 917 (1994).
Aggravated assault with deadly weapon is completed when simple assault committed by means of deadly weapon. Scott v. State, 141 Ga. App. 848 , 234 S.E.2d 685 (1977); Tuggle v. State, 145 Ga. App. 603 , 244 S.E.2d 131 (1978); Hurt v. State, 158 Ga. App. 722 , 282 S.E.2d 192 (1981); Doss v. State, 166 Ga. App. 361 , 304 S.E.2d 484 (1983); Rust v. State, 264 Ga. App. 893 , 592 S.E.2d 525 (2003).
Recanting of assault by victim. - Investigative statements given by a passenger at the scene of a car accident and subsequent statement that defendant swung and hit the passenger with a gun constituted substantive evidence of defendant's guilt despite the passenger's subsequent recantation or equivocation. Hurst v. State, 258 Ga. App. 664 , 574 S.E.2d 876 (2002).
Trial court did not err in denying defendant's motion for a directed verdict regarding an aggravated assault count involving defendant's spouse, even though the spouse testified that the spouse did not believe defendant would harm the spouse despite the fact that defendant had been carrying a gun, as the police testimony that the spouse was in a very fearful state when police found the spouse sufficiently showed that the spouse had a reasonable apprehension of immediately receiving a violent injury. Gordian v. State, 261 Ga. App. 75 , 581 S.E.2d 616 (2003).
Despite the recantation by a juvenile's parent at trial, because sufficient evidence that the juvenile placed the parent in reasonable apprehension of being struck with a hammer, which was in line with the allegations in the parent's complaint filed immediately following the incident, the juvenile court's adjudication against the juvenile for aggravated assault was upheld on appeal. In the Interest of C.B., 288 Ga. App. 752 , 655 S.E.2d 342 (2007).
Assault on victim holding child. - When the defendant discharged a firearm in the direction of a victim who was holding a two-year-old child in the victim's arms, the defendant's deliberate act could be found to have included an attempt to injure those at whom defendant aimed, and the evidence was sufficient to support a conviction of aggravated assault upon the child. Jordan v. State, 214 Ga. App. 598 , 448 S.E.2d 917 (1994).
Assault against several people. - Evidence was sufficient to convict the defendant of three counts of aggravated assault after one victim testified about being fearful and that the defendant pointed a gun at all three victims. Jackson v. State, 251 Ga. App. 578 , 554 S.E.2d 768 (2001).
Conspiracy for aggravated assault against officer not shown. - Evidence was insufficient to support the defendant's conviction of conspiracy to commit aggravated assault on a police officer because the state failed to show a mutual understanding between the defendant and anyone else to pursue the common criminal objective of shooting the officer. There was no evidence presented about how the defendant obtained the weapon from a co-indictee, and even though the defendant told the others to run after the defendant announced that the defendant was going to shoot the officer and the others ran, that evidence was insufficient to establish a conspiracy to commit aggravated assault on the officer. Frazier v. State, 349 Ga. App. 507 , 826 S.E.2d 361 (2019).
Attempting injury with deadly weapon. - Person commits aggravated assault when a person attempts to commit violent injury upon another person with a deadly weapon. Riddle v. State, 145 Ga. App. 328 , 243 S.E.2d 607 (1978), overruled on other grounds, Adsitt v. State, 248 Ga. 237 , 282 S.E.2d 305 (1981).
Reasonable apprehension of violent injury on part of victim must be shown. - When the facts establish clearly that defendant committed an act with a deadly weapon which placed the victim in reasonable apprehension of immediately receiving a violent injury, this is sufficient to support the charge of aggravated assault; there is no requirement that a victim be actually injured, and the crime is complete without proof of injury. Daughtry v. State, 180 Ga. App. 711 , 350 S.E.2d 53 (1986).
To prove an assault under O.C.G.A. § 16-5-20(a)(1), the state must show that the defendant acted with specific intent to violently injure the victim; that method of assault is a specific intent crime requiring proof that the defendant intended to violently injure someone. In the Interest of L. J., 337 Ga. App. 653 , 788 S.E.2d 531 (2016).
Adjudication of delinquency for aggravated assault was reversed because the evidence showed that the juvenile shot the tire on the rear-passenger side, on the opposite side from where the victim was sitting inside the truck and the victim testified that the victim no longer perceived a threat from the juvenile shooting with the bow and arrow after the juvenile moved to the passenger side of the truck and was no longer pointing the bow in the victim's general direction. In the Interest of L. J., 337 Ga. App. 653 , 788 S.E.2d 531 (2016).
Sufficient evidence supported the defendant's conviction for aggravated assault because the jury was authorized to credit the victim's statement of feeling panicked and scared and infer from that statement that the victim had the necessary reasonable apprehension to support a guilty verdict on the aggravated assault charge, even though other statements of the victim did not suggest the necessary apprehension. Martin v. State, 349 Ga. App. 656 , 825 S.E.2d 227 (2019).
Evidence was sufficient to support the delinquency adjudication as the evidence showed that the defendant juvenile committed an aggravated assault because a butcher knife constituted a deadly weapon; the defendant placed the defendant's sister's boyfriend in reasonable apprehension of immediately receiving a violent injury as the defendant charged at the boyfriend with a butcher knife, forcing the boyfriend to quickly enter a vehicle and drive off; and the defendant placed the defendant's sister in reasonable apprehension of immediately receiving a violent injury as the defendant pushed and shoved the sister, told the sister that the defendant was going to beat the sister up, and charged at the sister with a butcher knife. In the Interest of J. H., 354 Ga. App. 253 , 840 S.E.2d 633 (2020).
Unreasonable apprehension or suspicion of harm. - Juvenile defendant was not authorized to stab the victim under O.C.G.A. § 16-3-21(a) , where defendant was attacked by the victim from behind with the victim's fists, and could see that the victim did not have a weapon; defendant's belief that defendant's own life was in danger was a mere unreasonable apprehension or suspicion of harm, which was insufficient to justify the use of deadly force, and defendant was properly adjudicated a delinquent for aggravated assault under O.C.G.A. § 16-5-21(a)(2) and for carrying a weapon onto a school bus under O.C.G.A. § 16-11-127.1(b) . In the Interest of Q.M.L., 257 Ga. App. 22 , 570 S.E.2d 92 (2002).
Fear is not the same as reasonable apprehension. - Simple assault is defined as an act which places another in reasonable apprehension of immediately receiving a violent injury pursuant to O.C.G.A. § 16-5-20(a)(2), an assault becomes aggravated when it is committed with a deadly weapon, O.C.G.A. § 16-5-21(a)(2); thus, if the victim is in reasonable apprehension of an immediate violent injury from a weapon, an aggravated assault has occurred. Because reasonable apprehension of injury is not the same as simple fear, the testimony that the victim was not afraid of the defendant does not preclude conviction. Lunsford v. State, 260 Ga. App. 818 , 581 S.E.2d 638 (2003).
Conviction upheld despite accident defense. - Court would reject the contention that injuries to one victim were caused accidentally during the assault of the other victim since the defendant explicitly threatened the first victim's life and since the defendant's conviction could otherwise be supported by the doctrine of transferred intent. Harris v. State, 233 Ga. App. 696 , 505 S.E.2d 239 (1998).
Conviction upheld despite coercion defense. - When the defendant, on appeal, conceded to being present and participating in an armed robbery and the assault that occurred along with the robbery, but contended (as defendant did at trial) that the defendant was not a voluntary participant in the crimes but acted only out of fear for the defendant's own life through the coercion of other participants in the crimes, it was held that the jury was presented with sufficient admissible evidence to establish to the satisfaction of a rational trier of fact that guilt was proven beyond a reasonable doubt. August v. State, 180 Ga. App. 510 , 349 S.E.2d 532 (1986).
Conviction upheld despite self-defense argument. - When the victim threw the hot contents of a frying pan at the defendant and the defendant then drew a knife from her blouse and stabbed the victim numerous times, but there were no eyewitnesses to the stabbing other than the victim and the defendant, and the defendant testified she stabbed the victim in self-defense in the belief that he was reaching into his pocket for a weapon and that, while she had meant to "hurt" the victim, she had not intended to kill him, a rational trier of fact could have found the defendant guilty of the crime of felony murder beyond a reasonable doubt by causing the victim's death while committing the felony of aggravated assault. Henderson v. State, 256 Ga. 486 , 350 S.E.2d 236 (1986).
Defendant was properly convicted of aggravated assault after the defendant pulled a gun on security personnel at a tavern after they took defendant's keys because of the defendant's intoxicated condition, notwithstanding the defendant's contention that the actions were in self-defense. Richardson v. State, 233 Ga. App. 890 , 505 S.E.2d 57 (1998).
Testimony of a parent and two children that a defendant allegedly pointed a gun at their vehicle and that, as a result, they were in fear of being shot was sufficient to support the defendant's conviction on three counts of aggravated assault under O.C.G.A. § 16-5-21(a)(2); given the evidence, a rational trier of fact could have found the essential elements of aggravated assault beyond a reasonable doubt, and the jury obviously resolved the defendant's self-defense claim against the defendant. Adams v. State, 282 Ga. App. 819 , 640 S.E.2d 329 (2006).
Evidence plainly was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of aggravated assault with a deadly weapon in violation of O.C.G.A. § 16-5-21(a)(2) and battery in violation of O.C.G.A. § 16-5-23.1(a) because the state presented more than ample evidence that the defendant's use of force was not justified under O.C.G.A. § 16-3-21(a) ; based upon the victim's testimony and the victim's prior statement to the responding officer, the jury clearly was authorized to find that the defendant's acts of grabbing the victim by the hair, throwing the victim to the ground, and choking the victim to the point of unconsciousness constituted excessive force, and the prior and subsequent difficulties evidence and the similar transaction evidence the state presented supported the jury's decision to give little credence to the defendant's self-defense claim. Whitley v. State, 307 Ga. App. 553 , 707 S.E.2d 375 (2011).
Words "deadly weapon," include all means or instrumentalities by which assaults with intent to commit murder may be made. Wright v. State, 40 Ga. App. 118 , 149 S.E. 153 (1929).
Although hands are not per se "deadly weapons," where the defendant's hands were restrained by handcuffs, and a doctor testified that the victim's severe injuries were consistent with being struck by hands, fists, and handcuffs, there was sufficient evidence to sustain a conviction for aggravated assault. Gamble v. State, 235 Ga. App. 777 , 510 S.E.2d 69 (1998).
Proving that weapon is one likely to produce death. - When an indictment charges the commission of the offense of assault with intent to murder by using a knife such as was "likely to produce death," the proof must show that it was a weapon of this character, but this may be done by evidence as to the nature of the wound, as well as direct proof of the character of the weapon. Jackson v. State, 56 Ga. App. 374 , 192 S.E. 633 (1937).
Overwhelming evidence established that a handgun used to beat the victim several times in the head constituted a deadly weapon: the victim had open, bleeding wounds; the victim's sister described the victim's head as being "split open" where the victim "could see inside and everything;" and at the hospital, the victim received numerous staples in the victim's head. Gonzalez v. State, 350 Ga. App. 297 , 829 S.E.2d 385 (2019).
Assault with deadly weapon while resisting arrest constitutes prima facie case of assault with intent to kill. Garrett v. State, 89 Ga. 446 , 15 S.E. 533 (1892).
Unprovoked assault by police officer with deadly weapon justifying offender's killing policeman. - If an officer who makes a lawful arrest for a misdemeanor committed in the officer's presence does so in an unlawful manner by making an unprovoked assault with a weapon likely to produce death, and with intent to kill the offender, if the circumstances are sufficient to excite the fears of a reasonable man that a felony is intended, and the offender slays the officer, not in a spirit of revenge or for the purpose of preventing the lawful arrest, but to protect self from what is or what reasonably appears to be such a felonious assault, then, in either of such events, the killing would be justifiable. Mullis v. State, 196 Ga. 569 , 27 S.E.2d 91 (1943).
Since an assault and battery is a misdemeanor and not a felony, the mere unlawful striking of an offender by an officer lawfully arresting the offender for a misdemeanor would not be sufficient to justify the offender in killing the officer, unless the conduct of the officer was such as to excite the fears of a reasonable man that a felony was in fact about to be committed, and the offender really acted on such fears. Mullis v. State, 196 Ga. 569 , 27 S.E.2d 91 (1943).
Whether instrument used constitutes deadly weapon is properly for jury's determination. Quarles v. State, 130 Ga. App. 756 , 204 S.E.2d 467 (1974); Ellis v. State, 137 Ga. App. 834 , 224 S.E.2d 799 (1976); Harper v. State, 157 Ga. App. 480 , 278 S.E.2d 28 (1981).
Because the jury viewed the weapon used in an attack subject to the underlying aggravated assault charge against the defendant, and received testimony and photographic evidence about the nature and extent of the victim's actual injuries and the manner in which the defendant used the shank to stab the victim in the area of several vital organs, the jury was authorized to infer from the evidence that the instrument was a deadly weapon. Ellison v. State, 288 Ga. App. 404 , 654 S.E.2d 223 (2007).
Manner of weapon's use determinative of nature. - Manner in which a weapon is used may determine whether that weapon is an offensive or deadly weapon for the purpose of O.C.G.A. § 16-5-21 . Banks v. State, 169 Ga. App. 571 , 314 S.E.2d 235 (1984).
Deadly weapon depends on object's use, wounds inflicted and the like. - An object may be found to be a deadly weapon by the jury depending on the manner and means of its use, the wound inflicted, etc. Ellis v. State, 137 Ga. App. 834 , 224 S.E.2d 799 (1976).
Assault with knife. - There was sufficient evidence to support conviction for aggravated assault, in violation of O.C.G.A. § 16-5-21 , against a waitress after defendant jumped over the restaurant counter, held a knife to the waitress' neck, and indicated that defendant would use the knife if another employee came closer; the conviction under O.C.G.A. § 16-5-21 for aggravated assault of the other employee was also supported by sufficient evidence as the employee was cut by defendant's knife, which constituted suffering of a violent injury, and although the employee testified that the employee did not perceive a threat from the knife, there was sufficient circumstantial evidence to support such a finding. Lemming v. State, 272 Ga. App. 122 , 612 S.E.2d 495 (2005), overruled on other grounds, Miller v. State, 285 Ga. 285 , 676 S.E.2d 173 (2009).
Sufficient evidence supported an aggravated assault conviction where the victim testified that, during a dispute, the defendant stabbed the victim several times with a knife, where defendant's sibling testified to a similar incident 11 days earlier, in which defendant assaulted the sibling during a dispute, where a witness testified that the defendant admitted to stabbing the victim because of the way the victim had treated the witness's friend, and where defendant admitted stabbing the victim, but claimed it was in self-defense. Cochran v. State, 277 Ga. App. 251 , 626 S.E.2d 217 (2006).
Aggravated assault conviction was supported by sufficient evidence that, after the victim confronted the defendant about a comment made to the victim's spouse, the defendant stabbed the victim to death; witnesses saw the defendant fighting with the victim, saw the defendant fold up a knife after the victim fell, and the defendant admitted to stabbing the victim. Williams v. State, 280 Ga. 297 , 627 S.E.2d 32 (2006).
Evidence was sufficient to support convictions for aggravated assault on a peace officer and making a terroristic threat or act, in violation of O.C.G.A. §§ 16-5-21(a)(2) and 16-11-37(a) , respectively, where the defendant was agitated when officers came to the residence to investigate complaints of a terroristic threat, the defendant brandished two knives at the officers which caused them to retreat outside of the residence, defendant refused to put the knives down despite being instructed to do so at gunpoint by the officers, and when the defendant threatened to stab an officer and raised the knife up, the defendant was shot in the hand. Williams v. State, 277 Ga. App. 884 , 627 S.E.2d 897 (2006).
Sufficient evidence supported the defendant's convictions of aggravated assault in violation of O.C.G.A. § 16-5-21 and aggravated sodomy in violation of O.C.G.A. § 16-6-2(a) although the defendant pointed to the defendant's previous sexual relationship with the victim and to alleged inconsistencies in the testimony of the victim and the victim's friend; the appellate court refused to weigh the evidence or determine witness credibility, and it found that the evidence, which included testimony that the defendant forcibly placed the victim in the defendant's truck, drove the victim across the state line to an apartment, forced the victim to have sex with the defendant, and cut the victim with a knife, was sufficient to convict. Martin v. State, 281 Ga. App. 64 , 635 S.E.2d 358 (2006).
Testimony from an eyewitness that the defendant and the victim scuffled and fell to the ground, and that the defendant knelt over the victim, stabbing the victim repeatedly with a knife, was sufficient to support the defendant's convictions of felony murder and aggravated assault with a deadly weapon. Lampley v. State, 284 Ga. 37 , 663 S.E.2d 184 (2008).
In a trial for aggravated assault, the evidence was sufficient to establish that the defendant was armed with a knife when an apparently bloodstained knife was found on the defendant's person when the defendant was arrested, the defendant admitted both to possessing and brandishing the knife at the victim, and the victim testified that the victim was stabbed. Furthermore, the state was not required to prove the cause of the victim's injuries with medical evidence. Brown v. State, 293 Ga. App. 224 , 666 S.E.2d 600 (2008).
Evidence supported the convictions of felony murder, aggravated assault, and possession of a knife during the commission of a felony. The victim's grandchild saw the defendant stab the victim after an argument, then went to a relative for help; the defendant then attacked the relative and fled, throwing the knife the defendant used to stab the victim in the bushes; when the defendant was found by police shortly thereafter, the defendant admitted to stabbing the victim; and a medical examiner testified that the bulk of the victim's stabs came from behind and that the cut on the defendant's hand was an offensive wound likely sustained as the defendant was stabbing the victim with enough force to break one of the victim's ribs. Butler v. State, 285 Ga. 518 , 678 S.E.2d 92 (2009).
Evidence was sufficient to convict the defendant of aggravated assault because a rational trier of fact could have inferred that the defendant's girlfriend apprehended a knife attack; jury could reasonably conclude that when the defendant threatened the girlfriend's life while holding a knife, and the girlfriend reached up with her hand, she was in reasonable apprehension of immediately receiving a violent injury. Wilson v. State, 304 Ga. App. 743 , 698 S.E.2d 6 (2010).
Evidence was sufficient to support the trial court's determination that the defendant committed the offense of aggravated assault in violation of O.C.G.A. § 16-5-21(a)(2) because the defendant's attempt to harm a bar patron was transferred to the manager of the bar who was injured; when the defendant retrieved a knife and the manager saw the knife the defendant had committed an act that placed the manager in reasonable apprehension of immediately receiving a violent injury. Brown v. State, 313 Ga. App. 907 , 723 S.E.2d 115 (2012).
Evidence was sufficient to support the defendant's conviction for aggravated assault in violation of O.C.G.A. § 16-5-21(a)(2) because the victim testified that the defendant held a knife when the defendant told the victim to take her clothes off and to open her legs so that the defendant could have vaginal intercourse with her against her will; pursuant to former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8 ), that testimony alone was sufficient to support the conviction. Ellis v. State, 316 Ga. App. 352 , 729 S.E.2d 492 (2012).
Defendant was properly convicted of aggravated assault in violation of O.C.G.A. § 16-5-21(a)(2) because the jury was authorized to conclude that the large knife the defendant held, which was introduced into evidence, was a deadly weapon and that the knife could be easily removed from the knife's sheath; the defendant threatened the victim in a way that put the victim in reasonable apprehension of immediately receiving a violent injury. Gunter v. State, 316 Ga. App. 485 , 729 S.E.2d 597 (2012).
Evidence was sufficient to support the defendant's convictions of aggravated assault, aggravated battery, and burglary because the evidence showed that: (1) the defendant broke into his ex-girlfriend's home; (2) the defendant stabbed the ex-girlfriend's current boyfriend in the spine with a knife, paralyzing him; (3) the defendant cut his ex-girlfriend with a knife on the back of her head, on the side of her face, on her shoulder and back, and stabbed her in the stomach; and (4) the ex-girlfriend continued to bear scars from the knife attack. Jackson v. State, 316 Ga. App. 588 , 730 S.E.2d 69 (2012).
Defendant's convictions for armed robbery and aggravated assault were supported by sufficient evidence in that, even absent fingerprint evidence, there was the identifications of two eyewitnesses as well as a bottle bearing the store's logo and the amount of cash and same denomination reported stolen found on the defendant's person and the testimony of a victim that the defendant used a knife. Hamlin v. State, 320 Ga. App. 29 , 739 S.E.2d 46 (2013).
Evidence before the jury that the defendant said the victim was still alive after the victim's throat was cut because the defendant heard gurgling and testimony from the medical examiner that the victim was not necessarily dead when the victim's throat was slit was sufficient to support the defendant's conviction for aggravated assault based on slitting the victim's throat. Schutt v. State, 292 Ga. 625 , 740 S.E.2d 163 (2013).
Defendant's aggravated assault conviction was supported by the victim's testimony that the defendant entered the bedroom with the butcher knife, placed the knife to the victim's face, and cut the victim with the knife, causing the victim to fear for the victim's life. Petro v. State, 327 Ga. App. 254 , 758 S.E.2d 152 (2014).
Sufficient evidence supported the defendant's convictions for aggravated assault, one count of kidnapping with bodily injury, and one count of rape based on the testimony of the two female victims that the defendant offered to drive the victims home, but then took the victims to a remote location and ordered the women to undress while the defendant brandished a knife and, after one victim escaped, the defendant drove to another remote location and forced the other woman to engage in sexual intercourse. Howard v. State, 340 Ga. App. 133 , 796 S.E.2d 757 (2017).
Evidence that the defendant entered the victim's bedroom with a knife and that the victim suffered lacerations to the arm and head that required the victim's hospitalization was sufficient to support the defendant's conviction for aggravated assault and possession of a knife during the commission of a felony. Williams v. State, 345 Ga. App. 692 , 814 S.E.2d 818 (2018), overruled on other grounds by Flowers v. State, 307 Ga. 618 , 837 S.E.2d 824 (2020).
Sufficient evidence supported the appellant's convictions for burglary, cruelty to children, terroristic threats, and aggravated assault as neither parent gave the appellant permission to enter their home, the appellant was identified as the intruder who held a knife to the child's neck, and struggled with one parent as the appellant tried to remove the child from the home, and the appellant threatened to kill one of the children while holding a knife to the child's neck. Cordova v. State, 351 Ga. App. 652 , 832 S.E.2d 465 (2019).
Assault with knife to feet of child while allegedly removing splinters. - From the physician's testimony regarding the puncture wounds on the child's feet and the medical opinion that the wounds were not consistent with someone attempting to remove splinters, the jury was authorized to infer that the knife used was a deadly weapon and, thus, the evidence supported the defendant's conviction for aggravated assault. Hillsman v. State, 341 Ga. App. 543 , 802 S.E.2d 7 (2017).
Nature and location of wounds showing character of weapon. - Even in absence of production or verbal description of weapon used, evidence as to nature, kind, and location of wounds inflicted by assailant is sufficient to allow jury to infer character of weapon. Wade v. State, 157 Ga. App. 296 , 277 S.E.2d 292 (1981); Wright v. State, 211 Ga. App. 431 , 440 S.E.2d 27 (1994).
State must show how object not per se deadly weapon is such in circumstances. - When an object is not per se a deadly weapon within the meaning of Ga. L. 1968, pp. 1249, 1280 (see O.C.G.A. § 16-5-21 ), it is incumbent upon the state to show the circumstances of the object's use which made the object a deadly weapon. Talley v. State, 137 Ga. App. 548 , 224 S.E.2d 455 (1976).
Evidence sufficient to allow jury to infer character of weapon. - Lethal character of the weapon used in making an assault may be inferred from the effect and nature of the wound inflicted. Wells v. State, 125 Ga. App. 579 , 188 S.E.2d 407 (1972).
Even if the actual weapon alleged to be a deadly one in an indictment is not produced or described, evidence as to the nature, kind and location of the wounds inflicted by the assailant is sufficient to allow the jury to infer the character of the weapon. Zachery v. State, 153 Ga. App. 531 , 265 S.E.2d 860 (1980).
Description of the injuries sustained by the victim is admissible to prove that the pistol used by the defendant was a deadly weapon. Howard v. State, 165 Ga. App. 555 , 301 S.E.2d 910 (1983).
No evidence showed that aggravated assault could have occurred other than through use of deadly weapon. - Although the indictment only referred to the commission of the crimes through the use of a deadly weapon, defendants did not point to evidence showing that an aggravated assault could have occurred other than through the use of a deadly weapon; moreover, because the trial court instructed the jury that the state was required to prove beyond a reasonable doubt every material allegation of the indictment, even if the aggravated assault charge was erroneous, such error was rendered harmless in light of the additional instruction. Dunbar v. State, 273 Ga. App. 29 , 614 S.E.2d 472 (2005).
Deadly weapon need not be introduced. - It is not necessary for the state to admit into evidence the deadly weapon used by the defendant in order for the defendant to be found guilty of aggravated assault. Lattimer v. State, 231 Ga. App. 594 , 499 S.E.2d 671 (1998).
With regard to the sufficiency of the evidence to uphold a defendant's conviction for aggravated assault with a deadly weapon, because two police officers testified that the defendant fired a gun, the testimony was sufficient to infer the presence of a weapon even though no weapon was introduced into evidence. Johnson v. State, 287 Ga. App. 352 , 651 S.E.2d 450 (2007).
It is not essential for state to locate bullets, bullet holes, or expended shells to establish the crime of aggravated assault. Radford v. State, 251 Ga. 50 , 302 S.E.2d 555 (1983).
Admissible evidence of res gestae. - Evidence was sufficient to find the defendant guilty of assault with a deadly weapon, possession of a firearm during the commission of a crime, and kidnapping; the victim's statement that the victim's sister was afraid of the defendant because the defendant had done the same thing to the sister was clearly admissible as part of the res gestae even if it incidentally placed the defendant's character in evidence. McLendon v. State, 258 Ga. App. 133 , 572 S.E.2d 763 (2002).
Evidence sufficient for conviction. - When the state's evidence shows that the victim was standing outside the victim's apartment when the defendant approached, the defendant accused the victim of stealing the defendant's television and attacked the victim, stabbing the victim with a knife, and after stabbing the victim, the defendant left the scene, considering the evidence in the light most favorable to the verdict, a rational trier of fact reasonably could find the defendant guilty beyond a reasonable doubt of the offense charged. Jackson v. State, 180 Ga. App. 363 , 349 S.E.2d 252 (1986).
Although expressing concern for personal safety, the defendant admitted seeing nothing but the victim's closed fist and that the defendant stabbed the victim with an eight-inch long butcher knife, the wound to the victim was in the victim's back, between the victim's shoulder blades and puncturing the victim's lung, although the defendant said the defendant stabbed the victim in the shoulder, and the sole defense was self-defense, viewing the evidence in the light most favorable to the state, there was sufficient evidence to authorize the trial judge, as trier of fact, to find appellant guilty of aggravated assault beyond a reasonable doubt. Roberts v. State, 180 Ga. App. 646 , 350 S.E.2d 39 (1986).
See Johnson v. State, 185 Ga. App. 167 , 363 S.E.2d 773 (1987); Nash v. State, 222 Ga. App. 766 , 476 S.E.2d 69 (1996); Littleton v. State, 225 Ga. App. 900 , 485 S.E.2d 230 (1997); Harris v. State, 233 Ga. App. 696 , 505 S.E.2d 239 (1998); Jones v. State, 233 Ga. App. 291 , 503 S.E.2d 902 (1998); Head v. State, 233 Ga. App. 655 , 504 S.E.2d 499 (1998); Tolliver v. State, 243 Ga. App. 180 , 531 S.E.2d 383 (2000); Bartlett v. State, 244 Ga. App. 49 , 537 S.E.2d 362 (2000).
When the record showed that defendant pointed a gun at the defendant's father and brothers-in-law during the kidnapping of his wife, the evidence was sufficient to render a conviction. Williams v. State, 207 Ga. App. 371 , 427 S.E.2d 846 (1993).
Intentionally firing a gun at another, absent justification, is sufficient in and of itself to support a conviction of aggravated assault. Quinn v. State, 209 Ga. App. 480 , 433 S.E.2d 592 (1993).
Testimony by the victim, in which the victim positively identified defendant as the person who entered the victim's home, and committed the crimes of robbery by intimidation, kidnapping, aggravated assault, aggravated assault with a knife, aggravated battery and possession of a knife during the commission of a crime, charged in the indictment and eyewitness testimony that defendant entered the victim's premises minutes before the attack of the victim was sufficient to authorize the jury's finding that defendant was guilty, beyond a reasonable doubt, of committing the crimes charged in the indictment. Mobley v. State, 211 Ga. App. 709 , 441 S.E.2d 73 (1994).
Evidence was sufficient to enable a rational trier of fact to find appellant guilty of murder, aggravated assault with a deadly weapon, and possession of a firearm by a convicted felon beyond a reasonable doubt. Hall v. State, 264 Ga. 85 , 441 S.E.2d 245 (1994).
Evidence was sufficient to sustain the defendant's conviction of aggravated assault, when the victim was attacked and beaten with fists and a round "fence pipe," the victim identified the defendant at trial as the victim's principal assailant, a witness testified to seeing the defendant pick up an object like a pole or stick and repeatedly strike the victim, and a wooden fence post with blood on the post was located a short distance from where the police found the victim. Peek v. State, 234 Ga. App. 731 , 507 S.E.2d 553 (1998).
Victim's in-court identification of defendant as the assailant was sufficient to authorize the jury's verdict that defendant committed aggravated assault with a handgun, a deadly weapon, as alleged in the indictment. Graham v. State, 236 Ga. App. 673 , 512 S.E.2d 921 (1999).
Evidence was sufficient to sustain a conviction for a violation of O.C.G.A. § 16-5-21(a)(2) where: (1) an officer observed a broken truck window and saw the defendant disappearing into the woods behind grandmother's home; (2) one of the defendant's friends warned the officer that the defendant would probably shoot at the officer; (3) that friend testified that the friend had seen the defendant break the glass and take the gun from the truck; (4) the officers testified that they were able to identify the general type of weapon and the direction of travel of the first bullet; (5) the area was desolate and remote; and (6) no evidence showed the presence of any other person in the area at that time of night which was approaching midnight. Yawn v. State, 237 Ga. App. 206 , 515 S.E.2d 182 (1999).
Evidence was sufficient to support a conviction since the victim testified that the defendant stabbed the victim in the arm and that the knife the victim observed in the defendant's possession was "maybe six or eight inches long with a handle on it," and two witnesses testified that they saw the defendant stab the victim with a large knife. Silas v. State, 247 Ga. App. 792 , 545 S.E.2d 358 (2001).
Evidence was sufficient to support a conviction for aggravated assault since: (1) the defendant snatched a woman's purse in the parking lot of a restaurant as she and her husband walked to the restaurant; (2) the husband pursued the defendant and managed to attach himself to the driver's side of the pick-up in which defendant sped away; and (3) the defendant nonetheless drove off, dragging the husband with him, managing to shake him from the vehicle, and leaving him injured on the ground. Bogan v. State, 249 Ga. App. 242 , 547 S.E.2d 326 (2001).
Evidence that defendant threatened a daycare owner and two daycare workers with a handgun when they tried to stop defendant from taking defendant's daughter supported defendant's convictions of two aggravated assaults in violation of O.C.G.A. § 16-5-21(a)(2) and possessing a firearm during the commission of a felony in violation of O.C.G.A. § 16-11-106(b)(1). Diaz v. State, 255 Ga. App. 288 , 564 S.E.2d 872 (2002).
Evidence was sufficient to establish aggravated assault under O.C.G.A. § 16-5-21(a) , because defendant placed his wife in reasonable apprehension of immediately receiving a violent injury, which assault was aggravated by the use of a shotgun in a threatening manner. Weaver v. State, 256 Ga. App. 573 , 568 S.E.2d 836 (2002).
Evidence that defendant intentionally stabbed a man in the side with a knife after a confrontation was sufficient to support defendant's conviction of aggravated assault under O.C.G.A. § 16-5-21(a)(2). Townsend v. State, 256 Ga. App. 837 , 570 S.E.2d 47 (2002).
Evidence that defendant knew people lived inside a home and that there was a truck parked next to the home when defendant fired four or five shots from a .30 caliber rifle into the home at 10:30 A.M. was sufficient to sustain defendant's convictions for aggravated assault and using a firearm in the commission of a felony. Maynor v. State, 257 Ga. App. 151 , 570 S.E.2d 428 (2002).
Although the victim's statement to the police was sufficient to prove that defendant threatened to kill the victim as alleged in the indictment, proof that defendant threatened to kill the victim was not a necessary element of the charge of aggravated assault with a deadly weapon in violation of O.C.G.A. § 16-5-21(a)(2); evidence that defendant caused the victim to be very much afraid by pointing a pistol at the victim was sufficient to prove the offense. Thomas v. State, 257 Ga. App. 350 , 571 S.E.2d 178 (2002).
Evidence that defendant pulled a knife out, struck it against the neck of a woman defendant was dating, and told the woman that defendant should have killed the woman was sufficient to support defendant's conviction for aggravated assault as it showed defendant assaulted the woman with a deadly weapon. Alvarado v. State, 257 Ga. App. 746 , 572 S.E.2d 18 (2002).
Eyewitnesses saw defendant standing by the door of the barber shop shooting repeatedly at the murder victim, who died from those wounds, and the police recovered the pistol from defendant that shot the victim; thus, the evidence was sufficient to enable a rational trier of fact to find defendant guilty beyond a reasonable doubt of malice murder, felony murder, and aggravated assault with a deadly weapon under O.C.G.A. §§ 16-5-1 and 16-5-21 . Roberts v. State, 276 Ga. 258 , 577 S.E.2d 580 (2003).
Evidence was sufficient to support the defendant's conviction for aggravated assault where the record revealed that the defendant admitted to being in the apartment of the victim, who was the defendant's former love interest, the defendant admitted to having the gun, and the defendant's only defense was that the gun went off accidentally, which was contradicted by the evidence of the defendant's intentional punching and shooting of the victim. Milton v. State, 259 Ga. App. 660 , 577 S.E.2d 862 (2003).
Defendant's conviction for aggravated assault in violation of O.C.G.A. § 16-5-21(a)(2) was supported by sufficient evidence after the victim testified as to the attack, there were photographs which showed the victim's cuts, and the jury's decision was based in part on its weighing of the credibility of the witnesses; it was also determined that the sentence imposed was within the statutory guidelines of O.C.G.A. § 16-5-21(g) and was not more severe merely because defendant had requested a jury trial. Benham v. State, 260 Ga. App. 243 , 581 S.E.2d 586 (2003).
Evidence was sufficient to support the defendant's convictions of two counts of armed robbery, two counts of theft by taking, three counts of aggravated assault in violation of O.C.G.A. § 16-5-21(a)(2), three counts of simple battery, three counts of kidnapping, and two counts of possessing a firearm during the commission of a crime since: (1) there was evidence that the defendant entered a store, placed a knife to the neck of one of the three victims, forced that victim to the back of the store, aided another assailant who was armed with a gun to bind the victims and drag them to the back of the store, and stole money and other items from two of the victims; (2) the defendant confessed to the crimes during interviews with law enforcement officials; and (3) the defendant's confessions were corroborated by the testimony of one of the victims who, despite earlier being unable to identify the robbers, ultimately identified the defendant as one of the robbers. The corroborating victim's initial inability to identify the defendant posed an issue of credibility for the jury's resolution and did not require reversal. Phanamixay v. State, 260 Ga. App. 177 , 581 S.E.2d 286 (2003).
When a jury could believe that defendant shot a victim without aggravation rather than defendant's claim that a gun went off by accident during a struggle, ample evidence sustained the conviction for aggravated assault pursuant to O.C.G.A. § 16-5-21(a)(2). Wilson v. State, 261 Ga. App. 28 , 581 S.E.2d 625 (2003).
Evidence was sufficient to convict the defendant of aggravated assault, a violation of O.C.G.A. § 16-5-21(a)(2), because the State of Georgia presented evidence that the defendant stabbed the defendant's love interest's child several times with a butcher knife. Even though the defendant argued that the defendant was merely defending against the child's attack with a bat, the jury was authorized by O.C.G.A. § 16-3-21(b)(2) to reject the defendant's justification claim; the evidence showed that the love interest's child hit the defendant with a bat to protect the child's parent from the defendant, who forcefully entered their house and then charged the love interest's child, pushed the child down, and stabbed the child. Williams v. State, 268 Ga. App. 384 , 601 S.E.2d 833 (2004).
Evidence was sufficient to support the defendant's conviction of aggravated assault because: (1) the defendant was in an altercation with the victim at a dance; (2) eyewitnesses saw the defendant make a stabbing motion at the victim; (3) the victim died of a nine stab wounds, including one to the heart; (4) the defendant's burned blue jeans were found in the defendant's love interest's backyard; (5) the defendant provided an investigator with clean clothes the defendant allegedly wore at the dance; and (6) the victim's blood and DNA were found on the defendant's leather jacket and on the shirt the defendant's love interest wore to the dance. Rakestrau v. State, 278 Ga. 872 , 608 S.E.2d 216 (2005).
Evidence supported defendant's conviction for malice murder and aggravated assault because the victim had defensive wounds on a hand, the victim's blood was found on defendant's shoe, a mixture of the victim's and defendant's blood was found on defendant's shirt, and the victim planned to ask defendant to leave the apartment. Williams v. State, 279 Ga. 154 , 611 S.E.2d 19 (2005).
There was sufficient evidence to support defendants' convictions for armed robbery, O.C.G.A. § 16-8-41(a) , aggravated assault, O.C.G.A. § 16-5-21(a)(2), burglary, O.C.G.A. § 16-7-1(a) , and possession of a firearm during the commission of certain crimes, O.C.G.A. § 16-11-106(b)(2), because evidence was seen in one of the defendant's vehicles during a traffic stop, defendants were identified from the videotape of the stop, and the shotgun used by the assailant in the home invasion was found in one of the defendant's homes. Dunbar v. State, 273 Ga. App. 29 , 614 S.E.2d 472 (2005).
Evidence was sufficient to support the convictions of murder, armed robbery, aggravated assault, burglary, and a statutory violation, all in violation of O.C.G.A. §§ 16-5-1 , 16-5-21 , 16-7-1 , 16-8-41 , and 16-11-106 , respectively, where the defendant and the codefendant went to a club with the intention of robbing someone, met the victim and drove the victim back to the victim's home, beat and fatally stabbed the victim, and upon leaving the victim's apartment, took some of the victim's belongings. Willoughby v. State, 280 Ga. 176 , 626 S.E.2d 112 (2006).
Victim's testimony that the defendant threatened the victim with a knife and struck the victim with a lamp, and evidence that the victim was found in a bathroom with an electrical cord wrapped tightly around the victim's neck, and that the defendant's finger and palm prints were lifted from blood on the bathroom wall, allowed any rational trier of fact to find defendant guilty of three counts of aggravated assault, under O.C.G.A. § 16-5-21(a)(2). Nelson v. State, 278 Ga. App. 548 , 629 S.E.2d 410 (2006).
Evidence was sufficient to find the defendant guilty of voluntary manslaughter in violation of O.C.G.A. § 16-5-2 , felony murder predicated on possession of a firearm by a convicted felon in violation of O.C.G.A. § 16-5-1 , two counts of aggravated assault in violation of O.C.G.A. § 16-5-21 , possession of a firearm by a convicted felon in violation of O.C.G.A. § 16-11-131 , and possession of a firearm during the commission of a felony murder in violation of O.C.G.A. § 16-11-106 , as the defendant was angered by the victim's presence in the residence, the defendant assaulted the victim with a baseball bat and threatened to kill the victim if the victim did not leave the residence, and when the victim returned to the residence, the defendant fatally shot the victim in the stomach. Lawson v. State, 280 Ga. 881 , 635 S.E.2d 134 (2006).
Evidence supported a defendant's convictions for malice murder, felony murder, aggravated assault with a deadly weapon, and possession of a firearm during the commission of a felony as: (1) the defendant repeatedly followed the victim in and out of a restaurant, and eventually chased the victim from the restaurant, firing at the victim at least nine times; (2) after the shooting, the defendant jumped into a silver truck and sped away; (3) the victim died as a result of the gunshot wounds; and (4) two witnesses identified the defendant from photographic lineups. Waters v. State, 281 Ga. 119 , 636 S.E.2d 538 (2006).
In spite of the defendant's contrary testimony, a conviction on a charge of aggravated assault with a deadly weapon upon a police officer, in violation of O.C.G.A. § 16-5-21(a)(2) and (c), was supported by sufficient evidence; the trial judge, as the trier of fact, was authorized to credit testimony that the defendant's act of pointing a gun at the victim's midsection caused that person a reasonable apprehension of fear, over testimony presented by the defendant. Defrancisco v. State, 289 Ga. App. 115 , 656 S.E.2d 238 (2008).
Evidence of the defendant's shooting a victim, striking the victim's companion with a motorcycle helmet, the defendant's sibling's pointing a gun at the companion, and the sibling's pointing a gun at the victim and pulling the trigger, was sufficient to convict the defendant of four counts of aggravated assault, O.C.G.A. § 16-5-21(a)(2), as the defendant was responsible for the sibling's acts as an aider and abetter under O.C.G.A. § 16-2-20(b)(3). Serchion v. State, 293 Ga. App. 629 , 667 S.E.2d 624 (2008).
Defendant's new trial motion based on insufficient evidence lacked merit, as the evidence was sufficient to support the defendant's convictions for aggravated assault and a weapons possession charge under O.C.G.A. §§ 16-5-21(a)(2) and 16-11-106(b)(1); issues of credibility regarding witnesses' identification of defendant as the shooter were within the jury's province pursuant to former O.C.G.A. § 24-9-80 (see now O.C.G.A. § 24-6-620 ). Williams v. State, 317 Ga. App. 248 , 730 S.E.2d 726 (2012).
Evidence that the defendant, who threatened to kill the victim in the past, took the victim to a retention pond, shot the victim, wrapped the body with a large boulder, placed the victim in a retention pond, and, for days, misled the victim's mother and authorities about the victim's whereabouts was sufficient to support convictions for malice murder, felony murder, feticide, aggravated assault, and possession of a firearm. Platt v. State, 291 Ga. 631 , 732 S.E.2d 75 (2012).
Evidence that the defendant and others were present at the scene of the offense, shot at the victims' vehicle, and wounded two of the victims was sufficient to find the defendant guilty of aggravated assault. Jones v. State, 318 Ga. App. 26 , 733 S.E.2d 72 (2012).
Evidence was sufficient to convict the defendant of aggravated assault of the victim because the victim saw the defendant pointing the rifle in the victim's vicinity, the defendant fired the gun in the victim's direction, and the victim heard the shot and fell to the ground to avoid being shot at again; and the evidence supported a jury finding that the defendant intentionally placed the victim in reasonable apprehension of immediately receiving a violent injury from a deadly weapon. Sears v. State, 298 Ga. 400 , 782 S.E.2d 259 (2016).
Evidence was sufficient to convict the defendant of aggravated assault because after the defendant pulled a knife on the former girlfriend, the former girlfriend told police and the defendant that the former girlfriend wanted the defendant out of the apartment; when the defendant came to retrieve the defendant's belongings, the defendant entered the bedroom the defendant had shared with the former girlfriend and began throwing things about and destroying the former girlfriend's personal property; when the victim entered the room and told the defendant to leave, the defendant reached for the defendant's knife and charged at the victim; and, during their fight, the defendant stabbed the victim five times with the knife. Wilson v. State, 336 Ga. App. 60 , 783 S.E.2d 662 (2016).
Evidence including the victim's testimony that, while they were married, the defendant put his hands around the victim's throat and choked the victim, testimony from the victim's doctor and nurse about the victim's visible neck injuries, photographs of the victim's injuries, and the defendant's admission to putting the defendant's hands around the victim's throat was sufficient for the jury to find the defendant guilty of aggravated assault (family violence). Moore v. State, Ga. App. , S.E.2d (Sept. 21, 2020).
Identification of defendant. - Defendant's convictions for armed robbery, aggravated assault with a deadly weapon, burglary, and possession of a firearm during the commission of a crime were supported by sufficient evidence. While the defendant contended that the evidence against the defendant was purely circumstantial, an eyewitness's identification of the defendant as the second gunman during the photographic lineup constituted direct evidence of the defendant's guilt. Williams v. State, 316 Ga. App. 821 , 730 S.E.2d 541 (2012).
Conviction of aggravated assault, murder, and possession of a firearm by a convicted felon was justified. - See Brooks v. State, 250 Ga. 739 , 300 S.E.2d 810 (1983).
Instruction on defense of accident or misfortune properly refused. - Trial court properly refused to give a requested jury instruction on the defense of accident or misfortune, where defendant's own testimony showed that defendant was engaged in an attempt to commit an aggravated assault upon the victim when defendant's pistol discharged and the victim was struck by a bullet. Grude v. State, 189 Ga. App. 901 , 377 S.E.2d 731 (1989).
Instruction using phrase "deadly weapon" correct. - Trial court's use of the phrase "deadly weapon" in the jury instructions was a general reference to the aggravating circumstance in former O.C.G.A. § 16-5-21(a)(2) (see now O.C.G.A. § 16-5-21(b)(2)), which also included any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury and was a correct instruction. State v. Easter, 297 Ga. 171 , 773 S.E.2d 181 (2015).
Sentencing for aggravated assault with deadly weapon. - Federal district court properly sentenced defendant to 86 months in prison for being a felon in possession of a firearm because the defendant's 2012 and 2016 Georgia convictions for aggravated assault and aggravated assault with a deadly weapon qualified as crimes of violence under the Sentencing Guidelines' enumerated-offenses clause, defendant did not object to the presentence investigation report, which included a description of the defendant's convictions and the fact that both included the use of a deadly weapon, the district court considered the Sentencing Guidelines Manual factors, and the sentence was six months below the bottom of the advisory guideline range. United States v. Berry, 808 Fed. Appx. 857 (11th Cir. 2020)(Unpublished).
Assault With Gun
Stun gun. - Victim's acts of cooperation when the victim recognized that assailants were armed with a stun gun, the testimony of the victim's intense reaction to being repeatedly assaulted by the gun's electronic discharge, and the legal recognition that the stun gun was an "offensive weapon" constituted sufficient evidence from which the jury could conclude that the victim was assaulted with a weapon likely to result in serious bodily injury. Harwell v. State, 270 Ga. 765 , 512 S.E.2d 892 (1999).
Evidence was sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of aggravated assault, armed robbery, and attempted armed robbery because, during the confrontation, the defendant stated to one of the victims that the defendant had shot a person the day before; shooting the victims when the defendant was frustrated in the robbery attempts was consistent with the defendant's behavior toward the other victims. Lewis v. State, 291 Ga. 273 , 731 S.E.2d 51 (2012).
An unloaded gun pointed at another in a threatening manner is a deadly weapon. Daughtry v. State, 180 Ga. App. 711 , 350 S.E.2d 53 (1986).
When it reasonably appears to an assault victim that the firearm is or might be loaded, then the assailant should be held to consequences of using a deadly weapon whether or not the weapon in fact is loaded. An unloaded shotgun pointed at another in a threatening manner is a "deadly weapon" as a matter of law within the meaning of O.C.G.A. § 16-5-21 . Adsitt v. State, 248 Ga. 237 , 282 S.E.2d 305 (1981).
Empty pellet gun in the shape of an automatic weapon was per se a deadly weapon. Clark v. State, 191 Ga. App. 386 , 381 S.E.2d 763 (1989).
When a pellet gun that could not be fired reasonably appeared to the victims to be a deadly weapon, such evidence authorized defendant's conviction of aggravated assault. Mitchell v. State, 222 Ga. App. 866 , 476 S.E.2d 639 (1996).
Toy pistol can be offensive or deadly weapon under certain circumstances but is not necessarily a deadly weapon. Butts v. State, 153 Ga. App. 464 , 265 S.E.2d 370 (1980).
Toy gun having appearance of real gun. - Defendant did not object to the officer's direct testimony that the toy gun the defendant used to assault defendant's former girlfriend looked like a real gun and defendant did not challenge admission of that testimony on appeal; so, the testimony was properly admitted to prove aggravated assault under O.C.G.A. § 16-5-21 . Further, defendant had stated to friends who were witnesses that the defendant used the toy gun since the toy looked like a real gun; therefore, the defendant did not show prejudice since the officer's opinion was also cumulative of other evidence. Jackson v. State, 270 Ga. App. 166 , 605 S.E.2d 876 (2004).
Reassembled rifle. - Regardless of whether the reassembled rifle the defendant used in committing an aggravated assault was loaded and capable of firing, the gun reasonably appeared to be a deadly weapon, despite testimony from the defendant's sibling that the sibling later informed the victim that the defendant's rifle was broken. Stancil v. State, 278 Ga. App. 843 , 630 S.E.2d 130 (2006).
Armed robbery can be committed either with a real weapon or with a toy or replica weapon having appearance of being real. Adsitt v. State, 248 Ga. 237 , 282 S.E.2d 305 (1981).
Pistol as deadly weapon. - Pistol was a "deadly weapon" within the meaning of O.C.G.A. § 16-5-21(a) as a matter of law even though it was loaded only with blanks. Veal v. State, 191 Ga. App. 445 , 382 S.E.2d 131 , cert. denied, 191 Ga. App. 923 , 382 S.E.2d 131 (1989).
Whether pistol was deadly weapon is jury question. - If the jury were to find that there was an assault, then whether the pistol used was a weapon likely to produce death when used in such manner was a jury question. Kerbo v. State, 230 Ga. 241 , 196 S.E.2d 424 (1973).
Defendant's use of police officer's pistol involved jury question. - Whether the defendant's use of a police officer's pistol by placing the defendant's hand on the pistol and trying to pull the pistol from the pistol's holster constituted use of a deadly weapon under the circumstances was properly for the jury's determination. Hall v. State, 189 Ga. App. 107 , 375 S.E.2d 50 (1988).
Evidence supported the defendant's aggravated assault upon a police officer conviction as whether to credit the defendant's testimony that the defendant acted in self-defense and that the defendant did not have control of or fire the officer's weapon was a matter for the jury. Mills v. State, 273 Ga. App. 699 , 615 S.E.2d 824 (2005).
Discharging firearm from within vehicle. - Evidence did not support a charge for involuntary manslaughter as the defendant's act of firing from the car clearly established the felony of aggravated assault and not mere reckless conduct. Browder v. State, 294 Ga. 188 , 751 S.E.2d 354 (2013).
Indictment alleging "shooting" by defendant adequately denotes use of deadly weapon. - An indictment charging aggravated assault and alleging that the defendant committed an aggravated assault on the victim by commission of an act of "shooting" clearly denotes the use of a deadly weapon and, therefore, is not fatally defective. Rushin v. State, 180 Ga. App. 276 , 348 S.E.2d 910 (1986).
Assault during bank robbery. - Evidence was sufficient to support the defendant's convictions for armed robbery, aggravated assault, false imprisonment, and possession of a firearm during the commission of a felony in violation of O.C.G.A. §§ 16-8-41 , 16-5-21 , 16-5-41 , and 16-11-106 , based on testimony from witnesses inside the bank, the defendant's clothing, a text message between the defendant and the defendant's accomplice, and the defendant's accomplice's testimony, which was corroborated as required by O.C.G.A. § 24-14-8 . Odle v. State, 331 Ga. App. 146 , 770 S.E.2d 256 (2015).
Shooting a shotgun towards others. - Trial court did not abuse the court's discretion by denying the defendant's motion for a new trial because sufficient evidence supported the defendant's convictions for arson and aggravated assault based on the testimony of the witnesses who testified that the witnesses could see the defendant starting the fire through the kitchen windows and witnessed the defendant shoot a shotgun in the direction of a neighbor and four law enforcement officers who were at the scene as well as the defendant's admission that the defendant set the fire. Jackson v. State, 347 Ga. App. 199 , 818 S.E.2d 268 (2018).
Sufficiency of circumstantial evidence. - Defendant's convictions of aggravated assault, O.C.G.A. § 16-5-21 , and burglary, O.C.G.A. § 16-7-1 , were affirmed, as there was sufficient circumstantial evidence under former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6 ) to prove that the defendant was the person who committed the acts in question, based on witness testimony and the discovery of clothes and a gun used in the robbery in the defendant's room. Moore v. State, 277 Ga. App. 474 , 627 S.E.2d 107 (2006).
Sufficient evidence existed to support the defendant's convictions for armed robbery and aggravated assault based on the victims' testimony that guns were used in the commission of the crimes, the testimony of the defendant's girlfriend and the presence of a cell phone found near the scene of the crimes, and the victims identifying the defendant's accent was sufficient for the jury to infer that the defendant was an armed participant in the crimes. Jordan v. State, 320 Ga. App. 265 , 739 S.E.2d 743 (2013).
Evidence was sufficient to enable a juvenile court to reject as unreasonable the hypothesis from the victim's testimony that a juvenile stood in a nearby park and did not participate in an assault as the third, unidentified assailant, pursuant to O.C.G.A. § 24-14-6 , and to adjudicate guilt for aggravated assault and possession of a firearm while committing a felony, pursuant to O.C.G.A. §§ 16-5-21(b)(2) and 16-11-106(b)(1). In the Interest of C. S., 334 Ga. App. 153 , 778 S.E.2d 396 (2015).
Evidence sufficient for assault with gun. - Evidence was sufficient to support defendant's conviction given testimony showing that defendant fired defendant's gun inside a game room along with a bullet hole that an officer found behind the counter where a victim was located which allowed a rational trier of fact to conclude that defendant committed the crime of aggravated assault by shooting defendant's gun toward one of the victims. Dukes v. State, 264 Ga. App. 820 , 592 S.E.2d 473 (2003).
Determination of witness credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury. Evidence that defendant wielded and attempted to use a gun during the robbery of a pool hall owner was sufficient to convict defendant for aggravated assault where the question of eyewitness identification of defendant was a jury matter. Bartley v. State, 267 Ga. App. 367 , 599 S.E.2d 318 (2004).
There was sufficient evidence to support defendant's convictions of burglary in violation of O.C.G.A. § 16-7-1(a) , aggravated assault in violation of O.C.G.A. § 16-5-21(a)(1), (2), and possession of a firearm during the commission of a crime in violation of O.C.G.A. § 16-11-106(b) , where evidence showed that three persons forcibly entered the victims' apartment and demanded money, that all three persons were in the car together on the way to the apartment and on the way to the hospital to drop off a bleeding codefendant, that all three persons carried guns, that one of the victims was shot, and that defendant's statement that defendant only was involved to drop off the bleeding codefendant at the hospital was in contrast to the fact that defendant had blood on defendant's pants, shirt, boxer shorts, and that defendant ejected the bloody codefendant from the car in a hurried manner at the hospital. Brown v. State, 267 Ga. App. 642 , 600 S.E.2d 731 (2004).
There was sufficient evidence for the jury to find defendant guilty beyond a reasonable doubt of aggravated assault and possession of a firearm during the commission of a crime because the testimony of the victim was sufficient to establish that defendant was the perpetrator. Davis v. State, 267 Ga. App. 668 , 600 S.E.2d 742 (2004).
Evidence was sufficient to support burglary, aggravated assault, kidnapping, false imprisonment, and armed robbery convictions where one of the victims opened the door to the victim's home when the victim recognized one of defendant's accomplices, where defendant and another then pushed the door open and rushed inside, and where defendant grabbed the first victim, pointed a gun at the first victim's head, took money from the second victim's wallet, kept the gun pointed at both victims during the entire incident, ripped the telephone cord out of the wall, and instructed the accomplices to bind and blindfold the victims, which they did; the victims both identified defendant as the gunman from a police photo array and made an in-court identification at trial, and any conflict between the victims' testimony that the gunman had a tattoo on the gunman's arm and a trial demonstration revealing no tattoo on defendant's arm was a matter for the jury to resolve and did not affect the sufficiency of the identification. Kates v. State, 269 Ga. App. 8 , 603 S.E.2d 342 (2004).
Evidence was sufficient to support defendant's conviction of aggravated assault, as: (1) defendant previously threatened to kill the victim; (2) defendant pointed a gun at the victim, warned the victim not to give information to the police about what they did, and said, "We own this area"; (3) the frightened victim told defendant to leave; and (4) defendant left after further words were exchanged. Husband v. State, 275 Ga. App. 246 , 620 S.E.2d 479 (2005).
Trial court did not err in denying a codefendant's motion for a directed verdict of acquittal on two aggravated assault charges, given that sufficient evidence was presented that: (1) both the defendant and the codefendant, while armed, attempted to rob the victims; (2) off-duty police officers working as security officers identified the defendants; (3) an assault rifle and a sawed-off shotgun were fired at the police as both the defendants were pursued; and (4) the weapons were recovered after both the defendants were apprehended. Walker v. State, 281 Ga. App. 163 , 635 S.E.2d 422 (2006).
Convictions for felony murder and aggravated assault with a deadly weapon, in violation of O.C.G.A. §§ 16-5-1 and 16-5-21 , were supported by sufficient evidence, including that the defendant and the codefendant were acting in concert, and the denial of the defendant's motion for a judgment of acquittal pursuant to O.C.G.A. § 17-9-1 was proper; the defendant argued with the victim, a prostitute, and refused to pay for the victim's services, prompting the victim to get a gun and fire a shot into the air, whereupon the defendant and a codefendant fired their guns back at the victim in a car leaving the area, and a bullet from the codefendant's gun killed the victim. Stinchcomb v. State, 280 Ga. 170 , 626 S.E.2d 88 (2006).
Convictions for kidnapping, aggravated assault, and malice murder, in violation of O.C.G.A. §§ 16-5-40 , 16-5-21 , and 16-5-1 , respectively, were supported by sufficient evidence where defendant got into a dispute with the victim over a drug deal, defendant and the codefendants kidnapped the victim, drove the victim to a remote area, and shot the victim several times. Morris v. State, 280 Ga. 179 , 626 S.E.2d 123 (2006).
Evidence was sufficient to support a conviction for aggravated assault, in violation of O.C.G.A. § 16-5-21(a)(2), where the defendant fired shots towards the victim, who was "having a good time" with a group of other people in the apartment parking lot; the victim's reasonable apprehensive of receiving a violent injury was sufficient to satisfy the intent element under O.C.G.A. § 16-5-20(a)(2). Thompson v. State, 277 Ga. App. 323 , 626 S.E.2d 825 (2006).
Evidence supported convictions for armed robbery and aggravated assault where using defendant's parent's telephone number, defendant contacted the victim and arranged a meeting to buy shoes, where the victim identified the car defendant was driving, which was registered to defendant's parent, where the victim identified defendant from a pretrial police photo array and at trial, and where, at the meeting arranged by defendant, the victim was shot in the face and defendant then rummaged through the victim's car where the victim kept the shoes. Waddell v. State, 277 Ga. App. 772 , 627 S.E.2d 840 , cert. denied, 127 S. Ct. 731 , 549 U.S. 1081, 166 L. Ed. 2 d 567 (2006).
Evidence that three unarmed people went to talk to defendant about rumors that the defendant wanted to harm them, and that, when one approached the defendant, the defendant fired five shots in their direction, killing one of them, was sufficient to support convictions for felony murder and aggravated assault. Traylor v. State, 280 Ga. 400 , 627 S.E.2d 594 (2006).
Sufficient evidence supported convictions of aggravated assault with intent to rob and possession of a firearm during the commission of a crime where the defendant and two other persons tried to rob a market, one of the other persons had a pistol, which was pointed at the market's owners, the armed participant forced one of the owners to try to open the register, and during the course of the robbery, one of the owners grabbed a hidden gun and shot and killed the armed robber, where the defendant and the other participant fled. Laurel v. State, 278 Ga. App. 147 , 628 S.E.2d 208 (2006).
Sufficient evidence supported defendant's aggravated assault conviction, as the fact that the victim and the defendant offered opposite accounts as to the reason the defendant reached for the gun was of no consequence on appeal, and the appeals court refused to speculate as to which evidence the jury chose to believe. Moss v. State, 278 Ga. App. 221 , 628 S.E.2d 648 (2006).
Evidence that the defendant and others approached two separate victims while the defendant brandished a shotgun, that defendant threatened the victims with the gun, and that defendant and the compatriots stole both of the victims' cars, sufficed to sustain convictions of two counts of hijacking a motor vehicle, two counts of armed robbery, two counts of aggravated assault with a deadly weapon, and two counts of possession of a firearm during the commission of a felony; the jury was free to disbelieve defendant's testimony that defendant was coerced into threatening the victims at gunpoint and participating in the car thefts. Martinez v. State, 278 Ga. App. 500 , 629 S.E.2d 485 (2006).
Evidence was sufficient to support a juvenile's delinquency adjudication based on charges of aggravated assault, possession of a firearm by a minor, and discharge of a gun or pistol near a street, in violation of O.C.G.A. §§ 16-5-21(a) , 16-11-132(b) , and 16-11-103 , as the juvenile was at a party and went outside with a crowd of others due to a fight, and the juvenile fired a gun into the air while standing in the midst of a crowd; the juvenile was identified by three eyewitnesses, whose testimony established that they were placed in reasonable apprehension of immediate violent injury due to the juvenile's actions. In the Interest of C.D.G., 279 Ga. App. 718 , 632 S.E.2d 450 (2006).
Defendant's conviction as a party for aggravated assault and aggravated battery was affirmed as: (1) the defendant drove a car knowing a gun was inside; (2) the defendant extinguished the headlights and drove slowly past a crowded corner as a passenger opened fire; (3) the defendant stopped the car next to a prone victim while the passenger continued shooting; and (4) the defendant told the police that the defendant did not care who had been shot. Ford v. State, 280 Ga. App. 580 , 634 S.E.2d 522 (2006).
Defendant's motion for a new trial on the defendant's aggravated assault and possession of a firearm during the aggravated assault charges was properly denied as the defendant's actions before, during, and after a friend's aggravated assault and firearm possession crimes at a home showed not only that the defendant was a party to those crimes, but that the defendant was a fellow conspirator in the assault against the victim as the defendant: (1) forced the victim at gunpoint to drive to the home; (2) stayed in the nearby living room while the friend shot a gun and threatened the victim (and defendant looked into the bedroom after the gun was fired); (3) accompanied the friend and the handcuffed victim in the vehicle following the incident while the friend searched for the victim's love interest's residence; (4) encouraged the friend to kill the victim; and (5) did not protest any of the friend's actions throughout the evening. Sapp v. State, 280 Ga. App. 592 , 634 S.E.2d 523 (2006).
Defendant's convictions for aggravated assault with a deadly weapon, aggravated battery, and possessing a firearm during the commission of a felony were supported by evidence that: (1) the victim and the defendant had an acrimonious relationship; (2) the defendant threatened to hit the victim with a jug; and (3) the defendant's statement that the victim was not "dead yet" after the victim was shot in the back; the jury could reject the defendant's claim that the defendant fired a warning shot away from the victim and could convict the defendant, even though the victim did not see the defendant point the gun at the victim. Rowe v. State, 280 Ga. App. 881 , 635 S.E.2d 251 (2006).
Evidence supported a defendant's conviction for malice murder, felony murder while in commission of an aggravated assault, aggravated assault with a deadly weapon, and possession of a firearm during the commission of a felony as: (1) the defendant came to a tenant's apartment and told the victim that the defendant just shot someone in the backyard; (2) the tenant heard the victim calling the tenant's name; (3) another witness heard a series of gunshots and then someone being beaten, was familiar with the victim and recognized the victim's voice as the victim hollered, "You stomping me. I've been shot. You already done shot me," and saw the defendant emerge from behind the residence with a gun in the defendant's hand; (4) the defendant held the gun to the head of the witness, but then instructed the witness to leave the area; and (5) the victim's death was caused by two fatal gunshot wounds to the neck and chest and there was blunt force trauma to the head. Compton v. State, 281 Ga. 45 , 635 S.E.2d 766 (2006).
Evidence supported a defendant's conviction of felony murder, aggravated assault, and possession of a firearm during the commission of a felony as: (1) the defendant told the victim that the defendant was going to shoot the victim and then the defendant shot the victim in the stomach, argued with the victim some more, and shot the victim again; (2) the victim never admitted cheating on the defendant; (3) after the second shot, the defendant and a friend took the victim to a hospital in a car; (4) while en route, the defendant persisted in the defendant's efforts to get the victim to admit to cheating on the defendant; and (5) the defendant wiped down the revolver and threw it out of the car. Durham v. State, 281 Ga. 208 , 636 S.E.2d 513 (2006).
Evidence supported a defendant's conviction for robbery by intimidation, possession of a firearm during the commission of a felony, and aggravated assault with a deadly weapon as: (1) the defendant demanded that the victim give the defendant the victim's purse and then threatened the victim with a gun and told the victim that the defendant would use it; (2) feeling that the victim's life was in danger, the victim ran; (3) the defendant chased the victim and snatched the victim's purse; (4) two witnesses chased the defendant to an abandoned house, where the victim's purse was later found; (5) a witness obtained the tag number of the defendant's vehicle and police traced the vehicle to the defendant's parent; even assuming that the pre-trial identification procedures were unduly suggestive, the in-court identifications by a witness and the victim were admissible as they were based on independent recollections. Boatwright v. State, 281 Ga. App. 560 , 636 S.E.2d 719 (2006).
Aggravated assault convictions were upheld on appeal based on the defendant's act of deliberately firing a gun in the direction of another; moreover, the fact that one of the defendant's cohorts also fired a weapon in the direction of the shooting victims was sufficient for the defendant to be guilty as a party to those criminal acts. Thompson v. State, 281 Ga. App. 627 , 636 S.E.2d 779 (2006).
On appeal from the defendant's aggravated assault, possession of a firearm during the commission of a crime, and first-degree criminal damage to property convictions, the court held that the testimony provided by two of the victims identifying the defendant as one of the perpetrators was sufficient to uphold the same, as: (1) the testimony of a single witness was generally sufficient to establish a fact; and (2) under former O.C.G.A. § 24-9-80 (see now O.C.G.A. § 24-6-620 ), the credibility of a witness was a matter to be determined by the jury under proper instructions from the court. Reid v. State, 281 Ga. App. 640 , 637 S.E.2d 62 (2006).
Evidence supported a defendant's conviction for malice murder, aggravated assault, and possession of a firearm in the commission of a felony as: (1) during a van ride, the defendant fought with an assault victim, striking the assault victim in the head with a gun, and was told to stop hitting the assault victim; (2) a gunshot was heard and the passengers saw a murder victim lying dead and the defendant holding the gun; (3) the gun was inside the murder victim's mouth when it was fired; (4) the assault victim and another passenger fled; and (5) the defendant and an accomplice dumped the body in an industrial area. Johnson v. State, 281 Ga. 229 , 637 S.E.2d 393 (2006).
Defendant's malice murder and aggravated assault convictions were upheld on appeal, as supported by sufficient evidence, including that: (1) the defendant, along with two codefendants, fired numerous shots into a crowd in an attempt to shoot several men with whom they had been feuding; (2) one of the codefendants later told a friend that the three committed the crimes; (3) one of the defendant's friends saw the defendant with a shotgun shortly after the shooting, the shotgun had red shells, and the defendant told the friend that the gun had been used in the shootings; and (4) forensic evidence later confirmed that red shotgun shells were found at the scene. Adkins v. State, 281 Ga. 301 , 637 S.E.2d 714 (2006).
Sufficient evidence was presented to convict the defendant of two counts of aggravated assault under O.C.G.A. § 16-5-21 because witness testimony indicated that the first victim and the first victim's young child, the second victim who was also the defendant's child, were scared and crying after a confrontation with the defendant and that gunshots were fired; thus, the evidence established that the victims were in reasonable apprehension of immediately receiving a violent injury as required by § 16-5-21 . Cain v. State, 288 Ga. App. 535 , 654 S.E.2d 456 (2007).
There was sufficient evidence to support a defendant's convictions for aggravated assault and possession-of-a-firearm based on the testimony of three separate witnesses, including the victim, that the defendant threateningly pointed a gun at the victim's head. Further, regarding the need to show the victim's reasonable apprehension of immediately receiving a violent injury, the state presented evidence from the victim's mouth that the victim feared the gun and that the fear resulted in the victim urinating on the victim's person and in the victim lying to an officer at the front door to protect the victim's children. Hardy v. State, 293 Ga. App. 265 , 666 S.E.2d 730 (2008).
Victim's testimony that the defendant kicked in the door of the victim's residence, entered, pointed a shotgun at the victim, and threatened to shoot the victim if the victim did not give the defendant money was sufficient in itself to support the defendant's conviction for aggravated assault in violation of O.C.G.A. § 16-5-21(a) . Reed v. State, 293 Ga. App. 479 , 668 S.E.2d 1 (2008).
Though the victim was approaching the defendant when the defendant fatally shot the victim at a distance of three feet, the evidence was sufficient to convict the defendant of aggravated assault and felony murder despite the defendant's claim of self-defense as the defendant decided to confront the victim and beat the victim up, retrieved a gun from a car, and lied to police about the victim's pulling a knife before the shooting. McNeil v. State, 284 Ga. 586 , 669 S.E.2d 111 (2008).
Evidence was sufficient to convict a defendant of aggravated assault in connection with the robbery of a cell phone store at gunpoint as the employees of the store identified the defendant from a non-suggestive photographic array; the getaway car had been rented by the defendant's spouse; and the employee of another cell phone store that had been robbed 20 minutes earlier identified the defendant as the robber. Fuller v. State, 295 Ga. App. 439 , 672 S.E.2d 438 (2009), cert. denied, No. S09C0749, 2009 Ga. LEXIS 220 (Ga. 2009).
Sufficient evidence was presented to convict a defendant of aggravated assault with a deadly weapon based on evidence that the defendant and a codefendant approached the victims' rental car and brandished guns; while pistol whipping the victims and robbing them of their property, the defendant's gun went off and fatally wounded the first victim; and a gun matching the caliber of bullet recovered from the first victim during the autopsy was found during the execution of a search warrant at a hotel where the defendant had visited a guest on three occasions. Watkins v. State, 285 Ga. 107 , 674 S.E.2d 275 (2009).
Rational trier of fact could have found beyond a reasonable doubt that the defendant committed voluntary manslaughter, O.C.G.A. § 16-5-2 , possession of a firearm during the commission of a crime (voluntary manslaughter), O.C.G.A. § 16-11-106 , aggravated assault, O.C.G.A. § 16-5-2 1, and possession of a firearm during the commission of a crime (aggravated assault), O.C.G.A. § 16-11-106 , because the defendant's explanation of the killing was inconsistent with and not explanatory of the other direct and circumstantial evidence, and, therefore, the jury was permitted to reject such explanation and convict on the remaining evidence; the defendant's son testified on direct that the defendant told the son that the defendant shot the victim once, that the victim ran, that the defendant pursued, and that although the victim begged for the victim's life, the defendant shot the victim again, and there also was forensic evidence indicating that the defendant fired three more rounds into the victim's body. Cantera v. State, 304 Ga. App. 289 , 696 S.E.2d 354 (2010).
Defendant's claim that the testimony of an armed robbery victim was insufficient to authorize the jury to find that an aggravated assault victim was placed in apprehension of receiving an immediate bodily injury was not supported by the record because the record revealed that the actual victim of the aggravated assault testified that one of the robbers pointed a gun at the victim. Hester v. State, 304 Ga. App. 441 , 696 S.E.2d 427 (2010).
Evidence was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt as a party to two counts of aggravated assault in violation of O.C.G.A. § 16-5-21 because even though the defendant did not actually use a weapon, there was evidence that an accomplice brandished a handgun and pointed the handgun at both the manager and the clerk of the video store, and the accomplice's use of a weapon could be attributed to the defendant; one who intentionally aids or abets the commission of a crime by another is a party to the crime and equally guilty with the principal, and reasonable apprehension of injury can be proved by circumstantial or indirect evidence as well as by direct or positive evidence since the presence of a gun would normally place a victim in reasonable apprehension of being injured violently. Rainly v. State, 307 Ga. App. 467 , 705 S.E.2d 246 (2010).
Evidence supported the defendant's convictions for malice murder, felony murder, criminal attempt to commit armed robbery, armed robbery, aggravated assault, and possession of a firearm during the commission of a crime because: (1) the defendant participated in the armed robbery of three people, including the shooting victim, who were sitting in a car on a neighborhood street; (2) during the encounter, the co-indictee fatally shot the victim in the head with a shot gun; (3) one of the two other people in the car testified that, after the shooting, the defendant, with the defendant's hand in the defendant's pocket simulating that the defendant had a gun, took money and drugs from the witness; (4) the co-indictee also took money from the other person; and (5) the defendant and the co-indictee then fled the scene. Gilyard v. State, 288 Ga. 800 , 708 S.E.2d 329 (2011).
Evidence was sufficient to convict the defendant of aggravated assault, motor-vehicle hijacking, and possession of a firearm during the commission of a crime, under O.C.G.A. §§ 16-5-21(a)(2), 16-5-44.1(b) , and 16-11-106(b)(1), because the defendant waited in a getaway vehicle while an accomplice hijacked the victim's vehicle and possessed the gun that the accomplice used in the crime. Gordon v. State, 316 Ga. App. 42 , 728 S.E.2d 720 (2012).
Sufficient evidence existed to support the defendant's convictions for aiding and abetting armed robbery, burglary, aggravated assault, and false imprisonment based on the evidence that the defendant was a party to the crimes, including evidence that the defendant drove the co-defendants to the house just before the crimes were committed; that the defendant was in the vehicle when plans to commit the crimes were discussed; that the defendant waited in the victim's driveway when the co-defendants entered the front door of the house, wearing masks and carrying guns; and that the defendant drove the perpetrators away from the scene after the crimes were committed - speeding, driving erratically, and not stopping when the police, with sirens and lights activated, began following the vehicle. Simon v. State, 320 Ga. App. 15 , 739 S.E.2d 34 (2013).
Victim's testimony that the defendant approached the victim, thrust a gun about six inches from the victim's face, took the victim's cell phone and keys, and told the victim to "get out of here," while waving a gun, was sufficient to support the defendant's convictions for armed robbery, possession of a firearm during the commission of a crime, aggravated assault, and theft by taking. Wright v. State, 319 Ga. App. 723 , 738 S.E.2d 310 (2013).
Aggravated assault conviction was supported by evidence that the defendant struggled with the first victim after the first victim tried to take a gun from the defendant, the defendant called for help, and an accomplice who came to help the defendant shot the first victim. Falay v. State, 320 Ga. App. 781 , 740 S.E.2d 738 (2013).
Evidence that the defendant was found in the laundry room of the home that was the subject of the home invasion; police found masks, gloves, money, a gun, and some of the victim's jewelry in or near the laundry room; and the defendant's DNA was found on one of masks recovered supported the defendant's convictions for armed robbery, aggravated assault, burglary, and possession of a firearm during the commission of a crime. Rudison v. State, 322 Ga. App. 248 , 744 S.E.2d 444 (2013).
Evidence that, after being ejected from a nightclub, the defendant told the bouncer that the defendant was going to the car and would be back, a statement which the bouncer viewed as threatening and meaning that the defendant was going to get a gun, authorized a finding that the bouncer was in reasonable apprehension of receiving a violent injury as shots were fired in the bouncer's direction and supported the defendant's conviction for aggravated assault. Jordan v. State, 322 Ga. App. 252 , 744 S.E.2d 447 (2013).
Evidence including testimony as to the gang's criminal activities, corroborating the defendant's participation in the armed robberies; the defendant's admission to participating in two murders; and a gun the defendant used in the attempted armed robbery of the first victim was sufficient to support the defendant's convictions for criminal street gang activity, criminal attempt to commit armed robbery, two counts of aggravated assault, and possession of a firearm during the commission of a felony. Morris v. State, 322 Ga. App. 682 , 746 S.E.2d 162 (2013).
Evidence that the defendant approached a group with a gun, causing the children to scream, was sufficient to support the defendant's convictions for aggravated assault upon the restaurant owner's wife and children. Veasey v. State, 322 Ga. App. 591 , 745 S.E.2d 802 (2013).
Evidence was sufficient to convict the defendant of terroristic threats, six counts of aggravated assault, and possession of a firearm during the commission of a felony because a witness testified that a vehicle fitting the description of the defendant's car was driven by the shooter who shot at the house of the complainant's mother where the complainant was staying; multiple gunshot holes were found in the side of the home; the complainant testified that, earlier that morning, the defendant had threatened to come to the house and kill the complainant; and the complainant received text messages from the defendant later that morning apologizing for what had happened. Brown v. State, 325 Ga. App. 237 , 750 S.E.2d 453 (2013).
Evidence was sufficient to convict the defendant of aggravated assault and possession of a firearm during the commission of a felony because the victim testified that the defendant shot at the victim at least three times; and the victim's neighbor saw the victim on the ground, and the defendant was standing over the victim. Marshall v. State, 324 Ga. App. 348 , 750 S.E.2d 418 (2013).
Evidence was sufficient to enable a rational trier of fact to find the defendant guilty of aggravated assault and aggravated battery beyond a reasonable doubt because the trial court's final charge to the jury included instructions on the defense of justification; and the victim testified that, at the time in question, the victim did not have a gun, that the victim did not reach for any of the defendant's guns, and that the victim was not attacking the defendant and only charged the defendant after the defendant was aiming a gun at the victim. Price v. State, 325 Ga. App. 564 , 754 S.E.2d 144 (2014).
Evidence was sufficient for the jury to find defendant guilty of aggravated assault and terroristic threats based on the trial court properly admitting the victim's testimony identifying defendant as the person who threatened to shoot the victim early in the morning, and the testimony of the victim's friend, who also identified defendant as the person who threatened to shoot the victim. Johnson v. State, 326 Ga. App. 220 , 756 S.E.2d 303 (2014).
Victim's testimony that the victim and the defendant were fighting, the defendant left the room and later returned with gun that the defendant held to the victim's side, and the victim heard gunshot and turned to face the defendant, who told the victim that the defendant had been meaning to do that and ran, supported the defendant's convictions for aggravated assault, aggravated battery, and possession of firearm during the commission of a felony. Jones v. State, 326 Ga. App. 151 , 756 S.E.2d 267 (2014).
Evidence that the defendant invited the victim to physically fight the defendant after a verbal dispute arose over a dice bet, and that the victim was unarmed while the defendant had concealed a firearm in a pocket, was sufficient to defeat the defendant's justification defense and support the convictions for aggravated assault and possession of a firearm during the commission of a felon. Robinson v. State, 326 Ga. App. 59 , 755 S.E.2d 865 (2014).
Evidence was sufficient to support a finding of guilt on six counts of aggravated assault and one count of possession of a handgun by an underage person because the evidence included direct evidence in the form of eyewitness testimony identifying the juvenile as shooting and discarding the gun. In the Interest of T. D. J., 325 Ga. App. 786 , 755 S.E.2d 29 (2014).
Sufficient evidence supported defendant's convictions as a party to the crimes of armed robbery, aggravated assault against the manager and cashier, and possession of a firearm during the commission of the armed robbery because the law allowed defendant to be charged with and convicted of the same offenses as co-defendant since the evidence showed that defendant drove co-defendant to the fast food restaurant that was robbed and waited as the getaway driver. Broyard v. State, 325 Ga. App. 794 , 755 S.E.2d 36 (2014).
Victims' testimony that the victims' heard the sound of a gun being cocked and turned around to see the defendant, a juvenile, holding a gun while chasing the victims with a group of other young men, causing the victims to be so afraid the victims ran into the expressway, was sufficient to place the victims in reasonable apprehension of immediately receiving a violent injury and to support the defendant's adjudication for delinquent acts which, if committed by an adult, would have constituted aggravated assault. In the Interest of S. W., 337 Ga. App. 110 , 786 S.E.2d 499 (2016).
Co-defendant's testimony constituted direct evidence that the defendant intentionally aided and abetted the codefendants in committing the crimes of armed robbery and aggravated assault and intentionally advised, encouraged, and counseled them to commit the crimes, and there was sufficient corroboration of the co-defendant's testimony, including a recorded telephone call between the defendant and a second co-defendant, the defendant's own testimony at trial, and the defendant's statements to law enforcement. Stallings v. State, 343 Ga. App. 135 , 806 S.E.2d 613 (2017).
No fatal variance existed between the indictment and the proof at trial as to the defendant's hijacking a motor vehicle and two counts of aggravated assault convictions because the evidence showed that the defendant struck the victim with a handgun and, shortly thereafter, two men fled in the minivan, while a Hispanic male and the man that struck the victim, the defendant, fled in a red car, thus, there was no fatal variance between the evidence and the indictment. Scott v. State, 342 Ga. App. 442 , 803 S.E.2d 600 (2017).
Video showing the defendant bursting into the store and holding a gun on the clerk while the defendant stole cash and lottery tickets was sufficient to support the defendant's convictions for armed robbery, aggravated assault, and possession of a firearm during a felony. Beamon v. State, 348 Ga. App. 732 , 824 S.E.2d 624 (2019).
Evidence that the victim was first shot in the arm and attempted to retreat as the defendant continued to fire was sufficient for a jury to find the defendant guilty of aggravated assault. Goodson v. State, 305 Ga. 246 , 824 S.E.2d 371 (2019).
Evidence, including testimony as to the number of shots and ballistics, authorized the jury to conclude that, in the first incident, the defendant shot in the direction of all four alleged victims and that two different guns were used in the assault, one of the guns by the defendant and, thus, the evidence was sufficient to support the defendant's conviction. Green v. State, 304 Ga. 385 , 818 S.E.2d 535 (2018).
Defendant's conviction for felony murder was supported by evidence that the defendant agreed to sell methamphetamine and possessed a handgun, which the defendant gave to the defendant's cohort on the way to the drug sale; the two then robbed the two victims and shot at both victims, killing one; the two left the scene together, telephoned a senior gang member, and traveled to a gang safe house in Atlanta together. Boyd v. State, 306 Ga. 204 , 830 S.E.2d 160 (2019).
Aggravated assault with gun upon police officer. - Because an officer, knowing a bank robbery and carjacking had just occurred, saw defendant with a white bag running away from a car matching the stolen car's description, and the fleeing individual pointed a gun at the officer after being ordered to stop, and a bystander corroborated the officer's testimony about the pointing of the gun, there was probable cause to believe the defendant had committed the felonies of aggravated assault and aggravated assault upon a peace officer under O.C.G.A. § 16-5-21 , and detaining the defendant was a lawful warrantless seizure such that none of the evidence obtained from the seizure was tainted. United States v. Epps, 613 F.3d 1093 (11th Cir. 2010), cert. denied, U.S. , 131 S. Ct. 1526 , 179 L. Ed. 2 d 344 (2011).
Aggravated assault committed during armed robbery with gun. - Evidence was sufficient to support the defendant's conviction for aggravated assault, under O.C.G.A. §§ 16-5-21(a)(1) and 16-5-21(a)(2), because: (1) the perpetrator of a crime entered just before closing time a fast-food restaurant with a gun and directed the employees into a room, a cooler, and a freezer; (2) the perpetrator took money from the restaurant, shot one of the employees, and left the scene in the employee's car; (3) one of the employees telephoned relatives with a cell phone and told them what was happening; (4) the relatives called the police, came to the restaurant, and saw the perpetrator drive away; (5) money, a gun, and discarded clothing was recovered from the car or the area where the perpetrator fled on foot; (6) a police officer, who was pursuing the perpetrator, was wounded in an altercation with the perpetrator when the officer's gun discharged; (7) when the defendant later surrendered to the police, DNA from the officer's blood was found on the defendant's chest; and (8) the employees, the relatives, and the officer identified the defendant, a former employee of the restaurant who was fired days before the crime, as the perpetrator. Donald v. State, 312 Ga. App. 222 , 718 S.E.2d 81 (2011).
Evidence negated accident defense. - Sufficient evidence supported convictions of aggravated assault, tampering with evidence, and felony misuse of a firearm while hunting, and negated the defense of accident where the victim who was shot by defendant while hunting waved to signal defendant before the gun was fired and where defendant was hunting while on medication that could have caused mental and physical impairment; the jury also could have considered defendant's actions after the shooting in removing the victim's orange vest, hiding two guns, failing to aid the victim, and failing to alert paramedics of the victim's location. Wilson v. State, 279 Ga. App. 136 , 630 S.E.2d 640 (2006).
Steering vehicle sufficient for aggravated assault. - In view of the circumstances of the chase, in which the codefendant leaned the codefendant's upper body out the window of the moving vehicle while shooting at the trooper, the jury could have concluded that the defendant assisted the codefendant by steering the vehicle and the jury was free to reject as unreasonable the hypothesis that the defendant was a mere passenger who did not assist the codefendant. Best v. State, Ga. App. , 846 S.E.2d 157 (2020).
Conviction as party to crime in assault with gun. - In the defendant's aggravated assault and false imprisonment trial arising out of the defendant's and the defendant's brother's beating of a marijuana dealer with a handgun, whether the defendant knew that the defendant's brother was going to steal the marijuana was not relevant; regardless of whether the defendant knew that the defendant's brother was going to steal the marijuana, the defendant actively participated in the false imprisonment and beating of the victim and was responsible as a party. Gonzalez v. State, 350 Ga. App. 297 , 829 S.E.2d 385 (2019).
Evidence held sufficient. - No fatal variance existed between the indictment alleging the defendant committed aggravated assault in either of two different ways and the defendant's conviction for aggravated assault, as the wording of the indictment allowed the state to seek a conviction for either showing that the defendant assaulted another person with intent to murder or with a deadly weapon; the state was not required to prove both methods of assault, and, thus, the trial court's instruction to the jury only as to aggravated assault by use of a deadly weapon did not cause a fatal variance between the indictment and the proof. Lopez v. State, 260 Ga. App. 713 , 580 S.E.2d 668 (2003).
Because the passenger's testimony demonstrated that the passenger had a reasonable apprehension of a violent injury, the evidence was sufficient to find defendant guilty of aggravated assault where defendant fired several shots at the car in which the passenger was riding. Richardson v. State, 261 Ga. App. 55 , 581 S.E.2d 694 (2003).
Evidence was sufficient to support all but one of defendant's convictions for burglary, kidnapping, aggravated assault, and possession of a firearm during the commission of a crime because the testimony of the three shooting victims was entirely consistent in all material respects, and any conflicts in the witnesses' testimony raised a credibility issue for jury resolution. Squires v. State, 265 Ga. App. 673 , 595 S.E.2d 547 (2004).
Victim's testimony and in-court identification was sufficient evidence to convict defendant of hijacking the victim's motor vehicle at a gas station and of aggravated assault for shooting the victim three times; thus, a photo lineup was not unduly suggestive. Weeks v. State, 268 Ga. App. 886 , 602 S.E.2d 882 (2004).
Evidence that defendants intentionally fired bullets into a house occupied by three people in an attempt to kill one of them was sufficient to support their conviction of aggravated assault against another occupant, whom they wounded, under the doctrine of transferred intent. It was immaterial that defendants were unaware that the assault victim was in the home. Culler v. State, 277 Ga. 717 , 594 S.E.2d 631 (2004).
After the defendants were accused of firing into a house, killing one occupant and injuring another; one defendant admitted firing into the home, thinking defendant had killed a man; ballistics reports identified shell casings found at the scene as having been fired from at least two different guns; and DNA testing identified a cap recovered from the scene as having been worn by another defendant, their convictions for felony murder and aggravated assault were supported by sufficient evidence. Culler v. State, 277 Ga. 717 , 594 S.E.2d 631 (2004).
When the defendant's victim identified the defendant from a photo lineup and at trial as the person who forced the victim to open the vaults in the fast-food restaurant where the victim worked, then duct-taped the victim's limbs and repeatedly struck the victim as the victim lay face down on the floor, the evidence was sufficient beyond a reasonable doubt to allow the jury to convict the defendant of kidnapping with bodily injury, armed robbery, aggravated assault, burglary, and possession of a firearm during the commission of certain crimes. Banks v. State, 269 Ga. App. 653 , 605 S.E.2d 47 (2004).
Evidence was sufficient to show that defendant was guilty of two counts of aggravated assault, one count of aggravated battery, and one count of possession of a firearm during the commission of a crime, as the evidence showed that defendant shot the victim in the abdomen and the arm with a gun and that defendant intended to cause serious physical harm and disfigurement to the victim. King v. State, 269 Ga. App. 658 , 605 S.E.2d 63 (2004).
Evidence that the defendant fatally shot the victim during a scuffle in a robbery attempt and told the police that the defendant was shot by a robber was sufficient to support the defendant's conviction for felony murder, aggravated assault, making a false statement to law enforcement officers, and giving a false name to law enforcement officers. Sampson v. State, 279 Ga. 8 , 608 S.E.2d 621 (2005).
Evidence supported the defendant's aggravated assault conviction as the defendant twice pointed a gun at a victim's neck, ordered the victim to kneel, demanded the victim's wallet and keys, and left with a coin bag and the victim's keys; the victim was scared and covered the victim's head with the victim's forearms so that the defendant would not shoot the victim in the head. Kirk v. State, 271 Ga. App. 640 , 610 S.E.2d 604 (2005).
Evidence was sufficient to support defendant's conviction for aggravated assault because: (1) the victim heard an unidentified voice scream defendant's name, tell defendant "don't do it," and tell defendant that defendant was going to kill the victim, as a gun was cocked and fired at the victim; and (2) the victim unequivocally identified defendant as the victim's assailant. Sharif v. State, 272 Ga. App. 660 , 613 S.E.2d 176 (2005).
Evidence was sufficient to support a jury's verdict convicting defendant of aggravated assault under O.C.G.A. § 16-5-21(c) , and possession of a firearm during the commission of a crime under O.C.G.A. § 16-11-106 , because, through the testimony of someone whom defendant threatened with a gun after the defendant shot a police officer, the evidence showed that the person saw defendant fire a gun at the officer and recognized the gun later recovered as the weapon the defendant used. Milton v. State, 272 Ga. App. 908 , 614 S.E.2d 140 (2005).
Evidence was sufficient to support a juvenile court's finding that a minor had committed aggravated assault under O.C.G.A. § 16-5-21 because it showed that the minor blocked the victim's flight, assisted a friend in pushing the victim into the bedroom, and committed sexual battery, all while the friend remained armed with the gun that the friend had pointed at the victim's head; since defendant was concerned in the commission of the crime, defendant could be convicted of it under O.C.G.A. § 16-2-20 . In the Interest of A.J., 273 Ga. App. 51 , 614 S.E.2d 159 (2005).
Because defendant shot a victim with a rifle as the victim attempted to flee and the victim at first thought that defendant had a BB gun, but realized otherwise when defendant shot at the victim's cousin, the evidence supported defendant's conviction for aggravated assault based on: (1) defendant's attempt to commit a violent injury to the victim with a deadly weapon; or (2) defendant's shooting at the victim with a deadly weapon, thereby putting the victim in reasonable apprehension of immediately receiving a violent injury. Harris v. State, 273 Ga. App. 90 , 614 S.E.2d 189 (2005).
Evidence supported defendant's conviction for armed robbery, kidnapping, and aggravated assault as, notwithstanding the absence of an in-court identification of defendant and the state's failure to present fingerprint evidence, a victim's testimony concerning the victim's on-the-scene identification supported the finding that defendant perpetrated the crimes; there was also sufficient evidence that the cash seized from defendant's love interest's house had been put there by defendant. Oliver v. State, 273 Ga. App. 754 , 615 S.E.2d 846 (2005).
Evidence was sufficient to support defendant's convictions for felony murder, aggravated assault, and possession of a firearm in the commission of a felony in a case because defendant, who had engaged in previous altercations with the victim, got out of defendant's car after seeing the victim on the street, ran up to the victim, shot the victim, returned to defendant's car, ran back to the victim and shot the victim again, and then got in defendant's car and drove off, as all of the elements of those offenses were established. Hayes v. State, 279 Ga. 642 , 619 S.E.2d 628 (2005).
Evidence was sufficient to support the defendant's aggravated assault, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon convictions where the jury was entitled to give greater weight to the victim's positive contemporaneous identification of the defendant as the shooter and to conclude that the victim's subsequent uncertainty resulted from fear of retaliation by the defendant rather than from any real confusion about who fired the shot; the jury was also entitled to give little weight to a negative gunshot residue test result on defendant's hands as a sergeant regularly ordered gunshot residue tests on the suspects. Haggins v. State, 277 Ga. App. 742 , 627 S.E.2d 448 (2006).
Because: (1) the jury was authorized to infer that defendant intended to commit a violent injury upon the victim in view of the evidence showing that the defendant demanded to know the victim's location, and then walked directly up to the victim and shot the victim; and (2) this same evidence was sufficient to show that defendant intended to commit an act that placed the victim in reasonable apprehension of immediately receiving a violent injury, defendant's two aggravated assault with a deadly weapon convictions were supported by sufficient evidence. Smith v. State, 279 Ga. App. 211 , 630 S.E.2d 833 (2006).
In defendant's convictions for armed robbery, kidnapping, and aggravated assault in connection with robbery of a fast food restaurant, sufficient evidence existed to support defendant's convictions based on a restaurant employee identifying defendant as one of two perpetrators who confronted that employee and manager at gunpoint and threatened to shoot if the victims did not comply with defendant's demand for money; also, evidence showed that defendant forced the manager out of the manager's car at gunpoint, ordered the manager back across the parking lot and into the restaurant, and stole over $300 from the restaurant's safe as well as a cellular phone before fleeing. Holsey v. State, 291 Ga. App. 216 , 661 S.E.2d 621 (2008).
Eyewitnesses testified that the defendant ordered a man to shoot the victim, who was wounded but escaped; later, eyewitnesses saw the defendant and an armed cohort encounter the unarmed victim, who was fatally shot. This evidence was sufficient to support the defendant's convictions for aggravated assault and murder. Wilcox v. State, 284 Ga. 414 , 667 S.E.2d 603 (2008).
Juvenile court properly denied a juvenile's motion for a new trial with regard to the juvenile's delinquency adjudication finding the juvenile guilty for aggravated assault, criminal property damage, cruelty to children, and reckless conduct arising from the shooting of a BB gun at a passing car. The juvenile was the only Caucasian identified in the group of youth; the juvenile admitted to hiding the BB gun; the juvenile did not dispute that the juvenile encouraged another youth to shoot the gun; and the judge was the final arbiter of the credibility and witness issues and had the province to reject the testimony of the juvenile and a parent that the juvenile did not shoot the gun. In the Interest of A.A., 293 Ga. App. 827 , 668 S.E.2d 323 (2008).
Testimony by two victims that the defendant grabbed a purse from one of them and pointed a gun at both of them, and testimony from an eyewitness that the defendant fled from the police, was sufficient to support the defendant's convictions for armed robbery and aggravated assault. Wallace v. State, 295 Ga. App. 452 , 671 S.E.2d 911 (2009).
Sufficient evidence supported the defendant's convictions of murder, felony murder, and aggravated assault; the evidence revealed that the victim and the defendant got into a physical fight at a bar, and that the victim then left the bar and went to an apartment. The defendant then went home, retrieved a handgun, went to the apartment, knocked on the door, and when one of the people inside opened the door, the defendant shot the victim in the chest, killing the victim. Rector v. State, 285 Ga. 714 , 681 S.E.2d 157 , cert. denied, 558 U.S. 1081, 130 S. Ct. 807 , 175 L. Ed. 2 d 567 (2009).
Evidence authorized the jury to find the defendant guilty beyond a reasonable doubt of murder, felony murder, aggravated assault, and possession of a weapon during the commission of a felony because contrary to the defendant's arguments, the evidence showed that the person who was sitting in the back seat of the victim's car was not sitting directly behind the victim, but instead, that person was in the rear seat on the passenger's side of the car; the forensics testing showed that the murderer was located to the left of the victim, not the right, and there was blood spatter on the seat behind the victim from which the jury could have inferred that no one was sitting there at the time of the shooting. Julius v. State, 286 Ga. 413 , 687 S.E.2d 828 (2010).
Jury could have found the defendant guilty beyond a reasonable doubt of two counts of aggravated assault because the victim's testimony that the defendant pointed a gun at the victim and that a shot was subsequently fired wounding the victim was sufficient circumstantial evidence that the defendant committed a violent injury to the victim; the victim's testimony that the victim was afraid of being shot when the defendant pointed the gun at the victim sufficed to convict the defendant of aggravated assault by placing the victim in reasonable apprehension of immediately receiving a violent injury. Wright v. State, 302 Ga. App. 101 , 690 S.E.2d 220 (2010).
Evidence was sufficient to support the defendant's conviction for the aggravated assault of people because there was evidence that the defendant stabbed and shot at the same person, and there was evidence that the defendant and the defendant's accomplice pointed a gun at the people in the house, and an officer testified to their names; the defendant did not show the requisite harm arising out of a claim that the allegations and proof fail to correspond. Ward v. State, 304 Ga. App. 517 , 696 S.E.2d 471 (2010).
Although under Georgia law, a defendant could not be convicted solely upon the uncorroborated testimony of an accomplice, former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8 ), the evidence corroborated some particulars of the accomplice's testimony implicating the codefendants in the charged crimes since all three of the victims from the three separate gas stations provided descriptions of their assailants that generally matched the codefendants and the accomplice, and all three victims also testified that their assailants brandished a handgun and a shotgun, which were indeed the weapons that were found at the scene where the stolen SUV crashed and where the accomplice was arrested. Accordingly, the evidence corroborating the accomplice's testimony was sufficient to authorize the jury's determination that the codefendants were guilty beyond a reasonable doubt as parties to armed robbery, O.C.G.A. § 16-8-41 , hijacking a motor vehicle, O.C.G.A. § 16-5-44.1 , aggravated assault, O.C.G.A. § 16-5-21 , theft by taking, O.C.G.A. § 16-8-2 , theft by receiving, O.C.G.A. § 16-8-7 , and possession of a firearm during the commission of a felony, O.C.G.A. § 16-11-106 . Daniels v. State, 306 Ga. App. 577 , 703 S.E.2d 41 (2010).
Evidence was sufficient to support the defendant's conviction for aggravated assault, under O.C.G.A. § 16-5-21(a)(2), because the defendant knocked the victim face-down into a table, pointed a gun at the kneeling and bloodied victim, and threatened to kill the victim and the victim's children with the gun. The defendant later told the victim that the victim was going to commit suicide that night and forced the victim to swallow several unidentified pills. Reynolds v. State, 311 Ga. App. 119 , 714 S.E.2d 621 (2011).
Evidence was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of malice murder, aggravated assault, and possession of a firearm during the commission of a crime because the three men who were with the victim when the victim was shot identified the defendant as the person who fired shots at them; there was testimony that the defendant was the boyfriend of a woman who was the former girlfriend of one of the three men with the murder victim and that the defendant and the former boyfriend had exchanged heated words earlier the day the victim was killed as well as the afternoon of the day before the shooting. Glass v. State, 289 Ga. 706 , 715 S.E.2d 85 (2011).
Evidence supported the defendant's convictions of felony murder during the commission of aggravated assault, aggravated assault, possession of marijuana, and possession of a firearm during the commission of a crime when: (1) after smoking marijuana, the defendant attacked the victim, pulled a gun from defendant's pocket, and shot the victim four times; (2) the victim told the police that the defendant did it; (3) the victim died; (4) a knife was found near the victim, the defendant had a stab wound, and the defendant claimed self-defense; and (5) witnesses one and two saw the defendant pull the gun but did not see the victim with a knife. Hill v. State, 291 Ga. 160 , 728 S.E.2d 225 (2012).
Evidence supported the defendant's convictions for felony murder, aggravated battery, kidnapping with bodily injury, aggravated assault, and burglary, after the state presented independent corroboration in support of an accomplice's testimony connecting the defendant to the crimes; the defendant's statements to police, the defendant's actions before and after the crimes, and the defendant's girlfriend's testimony stating that the defendant asked the girlfriend to lie about the defendant's whereabouts corroborated the defendant's guilt. Brown v. State, 291 Ga. 750 , 733 S.E.2d 300 (2012).
Evidence was sufficient to convict the defendant of burglary, aggravated assault, possession of a firearm during the commission of the aggravated assault, and possession of a firearm by a convicted felon because a house-sitter returned to a residence to discover an intruder inside; the intruder flashed a gun and told the house-sitter that the intruder would shoot the house-sitter; the house-sitter identified the defendant, whom the house-sitter had known for over 20 years, as the intruder; and a back window of the home had been shattered. Davis v. State, 325 Ga. App. 572 , 754 S.E.2d 151 (2014).
Because the victim testified that the defendant held the victim at gunpoint with a rifle, that the victim thought the defendant was going to kill the victim, and that the victim was afraid for the victim's life, the testimony of the victim, standing alone, was sufficient to sustain the defendant's conviction for aggravated assault. Lambert v. State, 325 Ga. App. 603 , 754 S.E.2d 392 (2014).
In an action for aggravated battery, aggravated assault with a deadly weapon and possession of a firearm during a felony, there was sufficient evidence for the jury to determine that the defendant was the shooter, including testimony from the victims identifying the defendant and any inconsistency between that testimony and the victims' pretrial identifications was for the jury. Smith v. State, 354 Ga. App. 782 , 841 S.E.2d 444 (2020).
Evidence that the defendant approached the victim with a handgun, pointed the gun at the victim while demanding money, and ultimately shot the victim was sufficient to support the defendant's convictions for armed robbery, criminal attempt to commit armed robbery, aggravated assault, and possession of a firearm during the commission of a crime. Cooke v. State, Ga. App. , S.E.2d (Sept. 15, 2020).
Aggravated assault with gun while buying marijuana. - Evidence supported the defendant's convictions for felony murder predicated on armed robbery, armed robbery, and aggravated assault because the evidence showed that the defendant and the codefendant, after discussing the idea of stealing marijuana and whatever cash the victim had on the victim, arranged to meet with the victim to buy marijuana from the victim. When the victim got into the back seat of the defendant's vehicle and pulled out a bag of marijuana, the codefendant drew a gun and shot the victim, fatally wounding the victim. Herbert v. State, 288 Ga. 843 , 708 S.E.2d 260 (2011).
Running from gunfire sufficient for reasonable apprehension of assault. - Evidence was sufficient to prove three counts of aggravated assault against the defendant because testimony that the victims ran from gunfire was sufficient evidence that the defendant and the codefendant placed the victims in reasonable apprehension of immediately receiving a violent injury, and other evidence showed that all of the victims were positioned in or very near the line of fire; one of the victims testified that the victim was sitting on the ground, could have been shot, and would have been if the victim had stood up, and a jury could find that the victim experienced a reasonable apprehension of receiving a violent injury even though the victim affirmatively testified that the victim was not afraid. Howard v. State, 288 Ga. 741 , 707 S.E.2d 80 (2011).
Aiding and abetting in possession of firearm during aggravated assault. - Based on the evidence that the defendant drove and deliberately followed the victims and pulled in behind the victims' vehicle, intentionally encouraged the shooter by telling the shooter "you better not let these guys get away, go ahead and handle your business, do what you got to do," and fled with the shooter after the shooting, the jury was authorized to conclude that the defendant was a party to the crimes of aggravated assault and possession of a firearm during the commission of a crime. Talifero v. State, 319 Ga. App. 65 , 734 S.E.2d 61 (2012).
Evidence sufficient under doctrine of transferred intent. - Evidence was sufficient for a rational trier of fact to find that the defendant was a party to the crime of aggravated assault under the doctrine of transferred intent as the defendant participated in the gun fight that wounded the unintended victim. Jones v. State, 292 Ga. 656 , 740 S.E.2d 590 (2013).
Evidence sufficient for aggravated assault of bus driver. - Trial court did not err in denying the defendant's motion for a directed verdict after a jury found the defendant guilty of aggravated assault with a deadly weapon against a bus driver, O.C.G.A. § 16-5-21(a)(2), because the bus driver testified that the driver did not feel free to drive away since the driver felt the driver's life was in danger; the driver testified that the driver chose not to drive away for fear that the defendant would shoot. Cannon v. State, 310 Ga. App. 262 , 712 S.E.2d 645 (2011).
Identification of defendant sufficient. - Victim's testimony at trial sufficiently identified the defendant as the assailant who fired shots at the victim, and the evidence was sufficient to support convictions for aggravated assault, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon, since the victim knew the defendant from previous encounter and although it was dark, the victim was able to see the defendant's face during incident because area was illuminated by streetlight. Johnson v. State, 279 Ga. App. 153 , 630 S.E.2d 661 (2006).
Evidence insufficient for conviction. - Because no eyewitnesses saw a third defendant participate in an armed robbery, a kidnapping, an aggravated assault, or possess a firearm during the commission of the crimes, and because the third defendant was not implicated by the other defendants, did not confess to the crimes, and did not flee the jurisdiction, the evidence was insufficient to support a conviction for the third defendant. Johnson v. State, 277 Ga. App. 499 , 627 S.E.2d 116 (2006).
Evidence was insufficient to support the defendant's conviction for aggravated assault in violation of O.C.G.A. § 16-5-21(a)(2) because there was no affirmative evidence that a restaurant employee saw the defendant with a gun or heard the defendant's threats to shoot; from an officer's description of the scene, the officer did not personally observe the employee climb out of the drive-through window, and thus, the evidence that the employee climbed out of the window rested mainly on the veracity and competence of persons other than the testifying officer, making the testimony hearsay under former O.C.G.A. § 24-3-1(a) (see now O.C.G.A. § 24-8-801 ). Santiago v. State, 314 Ga. App. 623 , 724 S.E.2d 793 (2012).
Evidence was insufficient to convict the defendant of aggravated assault and possession of a weapon during the commission of the crime; the defendant was out of the officer's view when the defendant fired the gun, no other officer or witness saw the defendant fire the gun, no witness saw where the defendant aimed the gun when the defendant fired the gun, and no forensic or other evidence was introduced which suggested that the defendant fired the gun in the officer's direction. Touchstone v. State, 319 Ga. App. 477 , 735 S.E.2d 805 (2012).
Evidence was insufficient to convict the defendant of aggravated assault as a party because there was no evidence in the record to show that the defendant knew that the grandfather was likely to respond to the defendant's initial cries for help by firing a shot, or that the defendant's cries intentionally encouraged the grandfather to discharge the single shot actually fired; and, although the defendant's exclamation after the single shot was fired could be interpreted as an expression of encouragement or incitement, it was made after the grandfather's already completed act of firing a revolver near the officers, which was the act that formed the basis of the indictment against both the defendant and the grandfather. Hoglen v. State, 336 Ga. App. 471 , 784 S.E.2d 832 (2016).
Testimony as to ultimate issue excluded in assault with gun case. - In a prosecution for aggravated assault, under O.C.G.A. § 16-2-6 , the issue of whether the defendant shot the victim with the intention of assaulting the victim was an issue of ultimate fact to be decided by the jury. Therefore, the state's objection to defense counsel's question to the defendant, "Did you intend to assault the victim?" was properly sustained. Gordon v. State, 294 Ga. App. 908 , 670 S.E.2d 533 (2008).
Use of a gun to strike victim. - Trial counsel was not ineffective for failing to argue for involuntary manslaughter as a lesser included offense of murder, pursuant to O.C.G.A. § 16-5-3(a) , because the jury would have had to believe that the use of a loaded gun to strike the victim was not use as a deadly weapon (or the crime would be assault with a deadly weapon under O.C.G.A. § 16-5-21 ), and the theory of the defense was that the defendant was not present. Wells v. State, 295 Ga. 161 , 758 S.E.2d 598 (2014).
Assault against person other than intended victim. - Since a rational trier of fact could have found that the defendant shot at the bouncer intending to commit a violent injury against the bouncer and that the bullet struck a bystander instead, the evidence authorized the defendant's conviction for aggravated assault against the bystander. Jordan v. State, 322 Ga. App. 252 , 744 S.E.2d 447 (2013).
Sentencing. - Defendant was entitled to resentencing with regard to the defendant's convictions on one count of aggravated assault and one count of armed robbery arising from the robbery of a restaurant because the two counts were based upon the same conduct, namely pointing a handgun at the restaurant's manager in order to commit a robbery. Fagan v. State, 283 Ga. App. 784 , 643 S.E.2d 268 (2007).
Defendant's sentences of 20 years in confinement for the aggravated assault on the deceased victim, followed by 20 years for the aggravated assault on the second victim (with five years in confinement and the remainder on probation), followed by an additional 15 years of probation for the charge of participation in criminal street gang activity and another five years' probation for the possession of a firearm during the commission of a felony, to run consecutively to the other sentences, were within the statutory range for those crimes, and did not constitute cruel and unusual punishment. Taylor v. State, 331 Ga. App. 577 , 771 S.E.2d 224 (2015).
Assault With Automobile
Trial counsel not ineffective as lenient sentence imposed. - Trial counsel did not provide ineffective assistance of counsel due to a failure to investigate defendant's mental health history as: (1) defendant did not claim that defendant was insane at the time of the crimes, was incompetent to stand trial, or was otherwise suffering from delusional compulsion; (2) there was no evidence that defendant was guilty, but mentally ill; and (3) felony murder carried a mandatory life sentence, firearm possession required a consecutive five-year sentence, and the trial court was lenient in sentencing defendant to half of the time allowed by law for an aggravated assault, so there was no harm in the failure to introduce more detail about defendant's mental health history at sentencing. Harris v. State, 279 Ga. 304 , 612 S.E.2d 789 (2005).
Reckless driving as lesser included offense of aggravated assault. - Defendant was entitled to a new trial on the charge of aggravated assault upon a police officer in violation of O.C.G.A. § 16-5-21 because the trial court should have given the defendant's requested charge on reckless driving in violation of O.C.G.A. § 40-6-390(a) as a lesser included offense since there was evidence that the defendant did not intend to injure a police officer but that the defendant's decision to drive off suddenly with the officer in close proximity to the defendant's truck was nonetheless an act of criminal negligence, which would have supported a conviction for reckless driving. Young v. State, 294 Ga. App. 227 , 669 S.E.2d 407 (2008).
Charge on reckless driving not required. - Because Count 4, alleging aggravated assault by placing another in reasonable apprehension of immediately receiving a violent injury with an object which, when used offensively against a person, was likely to and actually did result in serious bodily injury, only required the state to prove that the defendant had the general intent to drive the van, the offense of reckless driving would not show a less culpable mental state than that which was required to establish the commission of the crime of aggravated assault as charged, and the trial court did not err by refusing to give the requested charge of reckless driving as a lesser included offense of aggravated assault as alleged in Count 4. Patterson v. State, 332 Ga. App. 221 , 770 S.E.2d 62 (2015), aff'd, 299 Ga. 491 , 789 S.E.2d 175 (2016).
Automobile is not per se deadly weapon, but may become one depending upon the manner and means of the vehicle's use. Blalock v. State, 165 Ga. App. 269 , 299 S.E.2d 753 (1983); Cline v. State, 199 Ga. App. 532 , 405 S.E.2d 524 (1991); Reynolds v. State, 234 Ga. App. 884 , 508 S.E.2d 674 (1998).
Although an automobile is not per se a deadly or offensive weapon, it may become one depending on the manner and means of the vehicle's use. The question of whether an automobile, or other instrumentality, has been used so as to constitute a deadly or offensive weapon is properly for the jury's determination. Butler v. State, 196 Ga. App. 706 , 396 S.E.2d 916 (1990); Reynolds v. State, 234 Ga. App. 884 , 508 S.E.2d 674 (1998).
Aggravated assault convictions were affirmed after the defendant accelerated toward officers standing in front of the defendant at a roadblock, forcing the officer's to jump out of the way, and causing one to fall. Williams v. State, 270 Ga. App. 371 , 606 S.E.2d 594 (2004).
Evidence was sufficient to support defendant's conviction for aggravated assault, as a rational trier of fact was authorized to conclude that defendant meant to harm the police officer who stopped defendant's vehicle when defendant fled in the vehicle and the officer had to step out of the way to avoid being struck; although an automobile was not a deadly weapon per se, defendant used it as such and defendant's increasing level of hostility during the stop, coupled with defendant's attempt to run over the officer while fleeing, supported defendant's conviction for aggravated assault. Young v. State, 273 Ga. App. 151 , 614 S.E.2d 257 (2005).
Automobile can be a deadly weapon. - Evidence that defendant hit patrol cars while making a U-turn and appeared to be in full control of the vehicle just prior to the impact was sufficient for the jury to find that defendant attempted to commit a violent injury to another's person and interfered with government property. Black v. State, 222 Ga. App. 80 , 473 S.E.2d 186 (1996).
Sufficient evidence existed to convict defendant of aggravated assault under O.C.G.A. § 16-5-21(a)(2), since defendant used a vehicle as a deadly or offensive weapon, because when the officer pulled defendant over, defendant turned the vehicle around and accelerated at the officer, forcing the officer to jump behind a patrol car to avoid being hit. Thomas v. State, 255 Ga. App. 777 , 567 S.E.2d 72 (2002).
Evidence that defendant, a shoplifting suspect, drove off in defendant's vehicle with a police officer hanging only halfway inside defendant's vehicle as the officer attempted to grab defendant's keys, and that defendant continued to drive even though the officer was hanging half-in and half-out of the vehicle was sufficient to sustain defendant's conviction for aggravated assault of a police officer as the evidence showed that defendant used the vehicle as a deadly weapon and that defendant had the general intent required to sustain an aggravated assault conviction. Frayall v. State, 259 Ga. App. 286 , 576 S.E.2d 654 (2003).
Evidence was sufficient to support defendant's conviction for aggravated assault on a peace officer as it showed defendant had the general intent to commit the crime against the police officer who had executed a traffic stop on defendant, by using defendant's automobile to commit an offensive act and make it likely the officer would sustain serious bodily injury as defendant was aware that the officer had both hands on defendant when defendant put the car in drive and sped off with the officer hanging on to defendant. Riels v. State, 259 Ga. App. 420 , 577 S.E.2d 88 (2003).
Evidence that defendant forced a love interest to remain in the love interest's car against the love interest's will, that the defendant chased the love interest with the love interest's car when the love interest tried to escape, that the defendant hit the love interest with the car, and that the love interest suffered a broken ankle was sufficient to sustain defendant's convictions for false imprisonment and aggravated assault. Scott v. State, 268 Ga. App. 889 , 602 S.E.2d 893 (2004).
Convictions against defendant for aggravated assault and simple assault did not require reversal because the police failed to preserve defendant's car after defendant had engaged in an aggressive car chase, which resulted in the assault charges based on defendant having used the car as a weapon, as there was no showing that the police acted in bad faith in failing to preserve the evidence and no evidence that suggested that the possible exculpatory value of the car was apparent before the car's destruction. Ransby v. State, 273 Ga. App. 594 , 615 S.E.2d 651 (2005).
Withdrawal of plea to charge of aggravated assault on police officer was properly denied because the defendant agreed during the plea colloquy with the state's version of the facts that the defendant drove toward the officer-victim and rammed a stolen vehicle that the defendant was driving into the officer's car while the officer was in it and admitted to the court that the defendant was in fact guilty of the crime as charged. Sheffield v. State, 270 Ga. App. 576 , 607 S.E.2d 205 (2004).
Officer stepped backward to avoid being struck by car. - Evidence supported the defendant's conviction for aggravated assault, under O.C.G.A. §§ 16-5-21(a)(2) and, because, when a police officer who was directing traffic approached the vehicle which the defendant was driving, the defendant pulled the vehicle out of the traffic, sped directly toward the officer, and then sped away. Furthermore, the officer specifically testified that the officer believed the vehicle would hit the officer and that the officer stepped backward to avoid being struck. Myers v. State, 311 Ga. App. 668 , 716 S.E.2d 772 (2011).
Officer's statement on what the defendant saw was admissible. - In the defendant's trial for aggravated assault on a peace officer, which required knowledge of the victim's identity as a police officer, the officer's statement regarding the defendant's attempt to run the officer down in a parking lot, "I know he saw me," was not improper speculation but was based on the officer's perception of events. Favors v. State, 296 Ga. 842 , 770 S.E.2d 851 (2015).
Pinning victim to house with automobile. - Defendant's conviction for aggravated assault with an object under O.C.G.A. § 16-5-21(b)(2) with regard to pinning the victim to a house with a vehicle was affirmed because the defendant was not entitled to jury instructions on the lesser included crimes of reckless conduct and reckless driving since the base crime of simple assault under O.C.G.A. § 16-5-20(a)(2) did not require a specific intent to cause the victim to be apprehensive of receiving a violent injury. Patterson v. State, 299 Ga. 491 , 789 S.E.2d 175 (2016).
Evidence of intent sufficient. - Evidence of criminal intent was sufficient to support defendant's conviction of aggravated assault of a peace officer, notwithstanding that defendant might have had a seizure during the police chase, where: (1) defendant exhibited continued hostility of the officers during the chase; (2) defendant eluded rolling backups; (3) defendant maneuvered through stationary roadblocks; and (4) defendant maintained control of defendant's vehicle at high speeds during the chase. Dupree v. State, 267 Ga. App. 561 , 600 S.E.2d 654 (2004).
Defendant's proceeding pro se after three detailed trial court warnings was not abuse of discretion; the defendant's conviction of two counts of O.C.G.A. § 16-5-21(a)(2) aggravated assault and one count of O.C.G.A. § 16-5-70(c) cruelty to children (using defendant's car as a deadly weapon to run into the defendant's spouse's car with the spouse and child inside) was supported by sufficient evidence. Bush v. State, 268 Ga. App. 200 , 601 S.E.2d 511 (2004).
Adjudications as to two counts of aggravated assault and two counts of failing to stop at or return to an accident scene were supported by sufficient evidence detailing the juvenile's act of striking two individuals with a car, and then leaving the scene of said accident; moreover, decisions as to the credibility of witnesses were in the province of the juvenile court, which apparently determined that the state disproved the juvenile's defense. In the Interest of J.L., 281 Ga. App. 105 , 635 S.E.2d 393 (2006).
Trial court did not err by denying the defendant's motion for a directed verdict on an aggravated assault charge based on evidence that a deputy stood visibly in the roadway with the deputy's arms raised and yelling for defendant to stop the defendant's vehicle at a roadblock, defendant drove the vehicle at 40 miles per hour directly at the deputy who had to quickly jump out of the roadway to avoid being struck by the defendant's vehicle, and the deputy testified that the deputy feared being struck by the defendant's vehicle and receiving serious injuries; the jury was authorized to determine that the defendant had the requisite criminal intent to commit aggravated assault against the deputy, who was placed in reasonable apprehension of immediately receiving a violent injury. Taul v. State, 290 Ga. App. 288 , 659 S.E.2d 646 (2008).
There was sufficient evidence to support a defendant's conviction for aggravated assault based on the defendant, after panicking from striking a vehicle in a nightclub parking lot, drove a vehicle with headlights on toward a sheriff's deputy providing security at the nightclub, accelerated towards the officer, and drove within two or three car lengths of the officer without stopping, at which point the officer ran out of the vehicle's path, which evidence authorized a jury to find that the defendant had the requisite intent to commit injury. Further, there was sufficient evidence to authorize a jury finding that the defendant intended to act in a manner that placed the officer in reasonable apprehension of an immediate violent injury based on the officer jumping to safety to avoid being struck by the vehicle. Adams v. State, 293 Ga. App. 377 , 667 S.E.2d 186 (2008).
Evidence supported convictions of aggravated assault when the evidence showed that the defendant chased the victims in the defendant's car for about 15 miles, rear-ended their vehicle when the car attempted to make a turn, and ran the defendant's vehicle into their driver's side with enough force to push their vehicle up onto a curb; moreover, one victim testified that during the vehicle chase, it was apparent that the defendant and another person were trying to box the victim in with their vehicles and that the victim was very scared. The jury was not required to believe defendant's testimony that the incident was an accident. Windham v. State, 294 Ga. App. 72 , 668 S.E.2d 526 (2008).
Aggravated assault by means of a deadly weapon (O.C.G.A. § 16-5-21(a)(2)) is not a specific intent crime; the state is only required to prove a general intent to injure. Therefore, evidence that the defendant threatened to kill the victim and tried to hit the victim with the defendant's car was sufficient to prove that the defendant had the requisite intent to commit aggravated assault. Barnes v. State, 296 Ga. App. 493 , 675 S.E.2d 233 (2009).
Defendant fled from police in a car, disregarded their orders to stop, and almost ran over one of the officers. Evidence that an officer reasonably feared receiving a violent injury when the defendant backed the car toward the officer, and that the defendant acted in reckless disregard for human life, was sufficient to support the defendant's conviction of aggravated assault by intent to murder. The defendant's defense, that the defendant was resisting an unlawful arrest, was meritless. Mackey v. State, 296 Ga. App. 675 , 675 S.E.2d 567 (2009).
Evidence was sufficient to enable the trial court to find, beyond a reasonable doubt, that the defendant possessed the intent necessary to commit aggravated assault, O.C.G.A. § 16-5-21(a) , and felony murder, O.C.G.A. § 16-5-1(c) , because the defendant used a vehicle as an offensive weapon while the defendant was extremely drunk, and the evidence was sufficient to prove both forms of simply assault under O.C.G.A. § 16-5-20(a)(1)-(2) by the defendant against all six of the victims; the defendant engaged in an extended high-speed car chase with a driver, deliberately rammed the other driver's truck, and attempted to smash into the other driver head-on after the truck stalled, and within minutes after the driver escaped, the defendant came upon the other five victims by swerving sharply into oncoming traffic and slamming into a vehicle. Guyse v. State, 286 Ga. 574 , 690 S.E.2d 406 (2010).
Evidence was sufficient to enable the jury to determine that the defendant was guilty of aggravated assault beyond a reasonable doubt because the jury was authorized to infer from the defendant's conduct that the defendant had an intent to injure a driver or anybody who was in the defendant's way while the defendant attempted to elude police; the defendant crashed into the driver's car while the defendant led police on a high-speed chase in a stolen car. Johnson v. State, 289 Ga. 650 , 715 S.E.2d 99 (2011).
Trial court erred in revoking probation pursuant to O.C.G.A. § 42-8-34.1 on the ground that the probationer committed an aggravated assault in violation of O.C.G.A. § 16-5-21 because there was insufficient evidence that the probationer committed an aggravated assault offense in violation of the terms of probation; there was no evidence supporting an aggravated assault based on an alleged victim's apprehension of injury because even assuming that the probationer's collision with another vehicle while evading an officer was the basis for the aggravated assault charge, there was no evidence as to the occupant's apprehension of receiving an injury or as to his or her conduct showing the injury. Klicka v. State, 315 Ga. App. 635 , 727 S.E.2d 248 (2012).
Deliberately driving stolen van toward deputies. - Sufficient evidence supported the defendant's conviction because the defendant drove the stolen white van directly toward the deputies when they attempted to detain him, only missing them when they dove out of the way. Miller v. State, 351 Ga. App. 757 , 833 S.E.2d 142 (2019).
Assault With Hands, Fists, or Other Body Parts
Fists are not, per se, deadly weapons. Thomas v. State, 237 Ga. 690 , 229 S.E.2d 458 (1976); Boling v. State, 244 Ga. 825 , 262 S.E.2d 123 (1979); Meminger v. State, 160 Ga. App. 509 , 287 S.E.2d 296 (1981), rev'd on other grounds, 249 Ga. 561 , 292 S.E.2d 681 (1982).
While fists per se are not a deadly weapon within the meaning O.C.G.A. § 16-5-21 , they may be found to be a deadly weapon by the jury depending on the manner and means of their use, the wounds inflicted, etc. Quarles v. State, 130 Ga. App. 756 , 204 S.E.2d 467 (1974); Guevara v. State, 151 Ga. App. 444 , 260 S.E.2d 491 (1979); Boling v. State, 244 Ga. 825 , 262 S.E.2d 123 (1979); Harper v. State, 152 Ga. App. 689 , 263 S.E.2d 547 (1979); Wright v. State, 211 Ga. App. 431 , 440 S.E.2d 27 (1994).
Striking with closed fist. - Evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that the defendant committed aggravated assault and that such felony proximately caused the victim's death based on the testimony of two witnesses that showed that the defendant, without provocation, swung and hit the victim on the side of the head with a closed fist, and the medical examiner testified that the victim's cause of death was blunt force trauma to the head. Redding v. State, Ga. , 844 S.E.2d 725 (2020).
Hands as deadly weapons. - Evidence that defendant beat the victim about the head and face with defendant's hands was sufficient to authorize the jury's verdict that defendant was guilty of aggravated assault. Scott v. State, 243 Ga. App. 383 , 532 S.E.2d 141 (2000).
While hands are not considered deadly weapons per se within the meaning of O.C.G.A. § 16-5-21(a)(2), the fact finder may find them to be so depending on the circumstances surrounding their use, including the extent of the victim's injuries. Mallon v. State, 253 Ga. App. 51 , 557 S.E.2d 409 (2001), overruled on other grounds, Rowland v. State, 349 Ga. App. 650 , 825 S.E.2d 231 (2019).
Evidence that the defendant beat the victim about the head with the defendant's hands so hard that the victim's ears rang and was bleeding from both sides of the head was sufficient to support the defendant's conviction for aggravated assault. Ferguson v. State, 322 Ga. App. 565 , 745 S.E.2d 784 (2013).
Strangulation with hands. - Sufficient evidence supported the defendant's conviction for aggravated assault as the evidence showed that the defendant jumped on top of the victim and choked the victim with the defendant's hands until a police officer pulled the defendant off, at which time the victim was gasping for breath and the pressure around the throat left red marks; thus, the jury was authorized to find that the defendant used the defendant's hands as a deadly weapon or object likely to result in serious bodily injury. Goodrum v. State, 335 Ga. App. 831 , 783 S.E.2d 354 (2016).
Evidence was sufficient to prove aggravated assault under O.C.G.A. § 16-5-21(a) ; an officer testified that the defendant had the victim in a chokehold and was leaning back to apply pressure to the victim's neck, that the victim was helpless, and that the defendant refused to let the victim go when ordered by the officer and had to be physically separated. Maxwell v. State, 348 Ga. App. 870 , 825 S.E.2d 420 (2019).
There was sufficient evidence to support the defendant's conviction for aggravated assault as the victim testified that the defendant put the defendant's hands around the victim's neck, that the victim could not breathe, and that the pressure caused the victim to pass out, as well as to clench the victim's teeth so tightly that it broke one of the teeth on the victim's denture plate. Both the victim's son and the responding officer corroborated the victim's testimony, and the jury was able to view the photographs of the victim's neck. Sutton v. State, 354 Ga. App. 399 , 841 S.E.2d 2 (2020).
Defense of property not sole defense. - Trial court did not err in failing sua sponte to instruct the jury on the defense of property defense as the defendant's sole defense as the defendant claimed that the defendant did not cause the victim's injuries, defense counsel attempted to establish that the victim's recollection of the events was impaired by the victim's fading in and out of consciousness and by the victim's consumption of alcohol, and the jury was adequately instructed on witness credibility, the burden of proof, reasonable doubt, and the presumption of innocence. Strickland v. State, 267 Ga. App. 610 , 600 S.E.2d 693 (2004).
Fists may constitute weapon likely to produce death. See Haygood v. State, 154 Ga. App. 633 , 269 S.E.2d 480 (1980).
Whether fists are deadly weapons is question for jury. See Arnett v. State, 245 Ga. 470 , 265 S.E.2d 771 (1980).
With regard to a defendant's conviction for aggravated assault and other related crimes, sufficient evidence existed to support the conviction since the evidence authorized the jury to find that the defendant beat the victim with the defendant's fists until the victim was rendered unconscious, fracturing bones in the victim's face. Ferrell v. State, 283 Ga. App. 471 , 641 S.E.2d 658 (2007).
As the Georgia Court of Appeals has held, the use of hands to choke a victim can satisfy the deadly weapon or dangerous object element of aggravated assault and whether the use of hands rises to that level is a question for the jury. Goodrum v. State, 335 Ga. App. 831 , 783 S.E.2d 354 (2016).
Fists and feet may be deadly weapons. - Although fists and feet are not considered deadly weapons within the meaning of former Code 1933, § 26-1302, they may be found to be deadly weapons by the jury depending on the manner and means of their use. Kirby v. State, 145 Ga. App. 813 , 245 S.E.2d 43 (1978); Dixon v. State, 268 Ga. 81 , 485 S.E.2d 480 (1997); Braswell v. State, 245 Ga. App. 602 , 538 S.E.2d 492 (2000) (see O.C.G.A. § 16-5-21 ).
Jury could find that a defendant's hands and feet, depending upon their use, wounds inflicted, and other surrounding circumstances, were deadly weapons or objects likely to result in serious bodily injury when used offensively against a person for purposes of aggravated assault under O.C.G.A. § 16-5-21(a)(2). Haugland v. State, 253 Ga. App. 423 , 560 S.E.2d 50 (2002).
Evidence was sufficient to support defendant's conviction under O.C.G.A. § 16-5-21(a)(2) as defendant repeatedly stomped defendant's work boots on the victim's chest and face, driving the victim's head into the floor. Kemp v. State, 257 Ga. App. 340 , 571 S.E.2d 412 (2002).
While an indictment against defendant failed to state that defendant's hands were used as deadly weapons, this omission did not render the charge flawed, where the allegations set forth that defendant's hand were used as offensive objects, resulting in serious bodily injury to defendant's child. State v. English, 276 Ga. 343 , 578 S.E.2d 413 (2003).
Sufficient evidence supported convictions of aggravated assault, criminal trespass, and obstruction of a 9-1-1 call as the defendant became irate after a demand for a refund was denied by a store, a store manager told the defendant to leave, but the defendant refused, when the manager picked up the phone to call 9-1-1, the defendant grabbed the phone and slammed it on the counter, the defendant pushed the bag of brass plates the defendant was trying to return in the manager's face, cutting the manager, and punched the manager in the face. Hooker v. State, 278 Ga. App. 382 , 629 S.E.2d 74 (2006).
Delinquency finding for acts constituting party to the crimes of aggravated assault and battery was supported by sufficient evidence showing that the appellant was one of a group of youths who punched, kicked, and struck one victim with a shotgun, and participated in the attack; the appellant also knocked another victim to the ground and hit that victim during the fracas. In the Interest of E.R., 279 Ga. App. 423 , 631 S.E.2d 458 (2006).
Two defendants were properly convicted of felony murder with aggravated assault, O.C.G.A. § 16-5-21(a)(2), as the predicate felony since the evidence established that the defendants killed the victim by repeatedly striking the victim's face and head, and the jury was authorized to conclude that the defendants' hands and feet were used as deadly weapons. Dasher v. State, 285 Ga. 308 , 676 S.E.2d 181 (2009).
Victim's testimony that the defendant pushed the victim off a porch railing then came down the stairs and kicked the victim in the mouth, after which the victim was paralyzed from the chest down, was sufficient to support the defendant's conviction for aggravated assault under O.C.G.A. § 16-5-21(a)(2). Morales v. State, 305 Ga. App. 569 , 699 S.E.2d 864 (2010).
Evidence was sufficient to convict the defendant of aggravated assault because although hands and feet were not considered per se deadly weapons within the meaning of O.C.G.A. § 16-5-21(a)(2), the jury could find them to be so depending on the circumstances surrounding their use, including the extent of the victim's injuries. Lewis v. State, 317 Ga. App. 218 , 735 S.E.2d 1 (2012).
Hands, fists, and shoe-clad feet are not necessarily or per se deadly weapons, but may or may not be deadly weapons depending upon the circumstances of the case. Chafin v. State, 154 Ga. App. 122 , 267 S.E.2d 625 (1980).
Although hands, feet and a telephone receiver are not deadly weapons per se, the jury could find them to be deadly depending upon their use, wounds inflicted, and other surrounding circumstances. Wheeler v. State, 232 Ga. App. 749 , 503 S.E.2d 628 (1998).
Whether defendant's hands were used as a deadly weapon within the meaning of O.C.G.A. § 16-5-21 was a jury question. Richards v. State, 222 Ga. App. 853 , 476 S.E.2d 598 (1996).
Assault with shoe clad feet. - Evidence supported a conviction of aggravated assault when the indictment alleged that the defendant kicked and stomped the victim with shoe clad feet, a means likely to cause serious bodily injury when used offensively against a person. Whether the defendant's shoe-clad feet constituted objects likely to result in serious injury was a question of fact for the jury, and given that the defendant stomped on and kicked the victim, rendering the victim bruised and unconscious, the jury was authorized to convict the defendant of aggravated assault. Windham v. State, 294 Ga. App. 72 , 668 S.E.2d 526 (2008).
It is jury question as to whether or not shoe or boot constitutes deadly weapon, under all the circumstances surrounding the shoe or boot, its size, weight and construction, and the manner in which it was used. Williams v. State, 127 Ga. App. 386 , 193 S.E.2d 633 (1972).
Use of brass knuckles. - In a late-evening robbery of a pizzeria, the evidence was sufficient to convict the defendants of one count of aggravated assault when the second defendant struck one of the employees with brass knuckles because the jury was authorized to find that brass knuckles qualified, at a minimum, as an object, device, or instrumentality that was likely to cause serious bodily injury; and the first defendant was a party to the second defendant's use of the brass knuckles against the employee. Hughes v. State, 345 Ga. App. 107 , 812 S.E.2d 363 (2018).
Actual serious injuries not required. - Evidence was sufficient to convict the defendant of violating of O.C.G.A. § 16-5-21(a)(2), as the indictment alleged that the aggravated assault was committed with objects likely to cause serious bodily injury (a broom handle and defendant's feet and hands), not that serious bodily injury in fact occurred. Massey v. State, 278 Ga. App. 303 , 628 S.E.2d 706 (2006).
Photographs of victim's injuries. - In a prosecution for a violation of O.C.G.A. § 16-5-21(a)(2), as the indictment alleged that the aggravated assault was committed with objects likely to cause serious bodily injury (a broom handle and the defendant's feet and hands), photos depicting the condition of the victim, one of which depicted the defendant's foot print on the victim's face, were relevant to establish the nature and extent of the injury. Massey v. State, 278 Ga. App. 303 , 628 S.E.2d 706 (2006).
Denial of motion for acquittal proper. - Defendant's motion for a directed verdict of acquittal on an aggravated assault of a peace officer charge was properly denied as the evidence supported the conviction since an officer testified that the defendant knocked the officer to the ground, attempted to remove the officer's firearm from its holster, told the officer that defendant "was going to take care of (the officer)," indicated that the defendant wanted the defendant's drugs back, grabbed the drugs, and ran away; a videotape of the incident was also admitted at trial. Bolden v. State, 281 Ga. App. 258 , 636 S.E.2d 29 (2006).
Jury instructions. - Since defendant's aggravated assault conviction merged as a matter of law into defendant's malice murder conviction, any complaint by defendant about the jury instruction on aggravated assault was rendered moot. Mason v. State, 279 Ga. 636 , 619 S.E.2d 621 (2005).
Biting victim with risk of transmitting HIV virus. - When defendant was tried for aggravated assault with intent to murder after biting a police officer, the jury could rationally find the risk of transmitting the HIV virus through a human bite rendered defendant's bite, if not defendant's spittle, a "deadly" weapon beyond a reasonable doubt. Scroggins v. State, 198 Ga. App. 29 , 401 S.E.2d 13 (1990), cert. denied, 198 Ga. App. 898 , 401 S.E.2d 13 (1991).
Hands likely to cause serious bodily injury sufficient for indictment. - Trial court erred in quashing an aggravated assault count against defendant because the indictment was sufficient where it alleged that defendant assaulted defendant's spouse with defendant's hands, which, when used offensively were likely to cause serious bodily injury; further, the indictment did not need to additionally charge in the language of simple assault under O.C.G.A. § 16-5-20 in order to withstand demurrer. State v. Tate, 262 Ga. App. 311 , 585 S.E.2d 224 (2003).
Sixth Amendment violation was harmless error. - Although the admission of a victim's statements to a deputy violated defendant's Sixth Amendment rights, the error was harmless as to defendant's aggravated assault and battery convictions in light of the photographs of the victim's injuries and the defendant's admission that the defendant grabbed the victim around the neck and that the defendant might have hit the victim in the face. Miller v. State, 273 Ga. App. 761 , 615 S.E.2d 843 (2005).
Choking victim and slamming her around room. - Evidence supported defendant's rape, aggravated sodomy, aggravated assault, criminal trespass, misdemeanor obstruction of a law enforcement officer, felony obstruction of a law enforcement officer, and possession of marijuana conviction because: (1) a victim testified that defendant choked the victim, slammed the victim around a room, and raped and sodomized the victim, then drank a beer, took some BC powder packets, and cell phone, and left; (2) defendant fled from the police, kicked two officers, and had marijuana, BC packets, and a cell phone; (3) defendant's DNA matched the DNA on the beer can; (4) a nurse testified that the victim's bruise was consistent with strangulation; and (5) a doctor testified that the victim's injuries were consistent with rape and sodomy. Lewis v. State, 271 Ga. App. 744 , 611 S.E.2d 80 (2005).
No merger with family violence battery. - Aggravated assault under O.C.G.A. § 16-5-21 with fists only and family violence battery under O.C.G.A. § 16-5-23.1(f) with fists and a bottle upon the defendant's then live-in love interest were not required to be merged under O.C.G.A. § 16-1-7(a) because there were two separate incidents separated by the love interest's visit to a store and because the aggravated assault did not require the use of a bottle. Collins v. State, 277 Ga. App. 381 , 626 S.E.2d 513 (2006).
Evidence sufficient to show beating. - Evidence that the defendant beat the victim about the head and face with the defendant's hands was sufficient to authorize the jury's verdict that the defendant was guilty, beyond a reasonable doubt, of aggravated assault, particularly in light of the victim's concussion and fractured face bone caused by the defendant's punches. Sims v. State, 296 Ga. App. 461 , 675 S.E.2d 241 (2009).
Evidence was insufficient to sustain a juvenile court's finding that a child committed aggravated battery in violation of O.C.G.A. § 16-5-24(a) because there was no showing that the child's ongoing memory and cognitive problems were caused by the beating and not by a preexisting brain tumor and brain surgeries; however, the evidence was sufficient to show an aggravated assault. In the Interest of Q. S., 310 Ga. App. 70 , 712 S.E.2d 99 (2011).
Evidence that the defendant struck the male victim in the back of the head with a pistol and participated in further beating the male victim during a fight involving the defendant and at least eight others, and that the male victim sustained serious bodily injury when the male victim lost a tooth sometime during the fight was sufficient to support the aggravated assault conviction as to the male victim. Bledson v. State, 337 Ga. App. 444 , 787 S.E.2d 809 (2016).
Evidence sufficient for assault on infant. - Evidence was sufficient to convict defendant of aggravated assault, given the defendant's own admissions to the police that the defendant had shaken the defendant's love interest's infant; the jury was entitled to reject the defendant's version of events and credit the testimony of the state's multiple medical experts, as each of the experts testified that the child's severe injuries were inconsistent with the defendant's explanation for the injuries. Sullivan v. State, 277 Ga. App. 738 , 627 S.E.2d 437 (2006).
Sufficient circumstantial evidence supported the defendant's conviction of aggravated assault in violation of O.C.G.A. § 16-5-21 upon the eight-month-old victim, as a jury could have concluded that the other children, ages four and five, could not have injured the victim; medical testimony indicated that such shaken baby injuries could not have been caused by the other children, and the defendant was the only adult with the child at the time the injuries were allegedly sustained. Mahan v. State, 282 Ga. App. 201 , 638 S.E.2d 366 (2006).
Evidence that the baby had been in the defendant's care for more than two hours when the baby died; that in the medical examiner's opinion, the baby would have died within minutes or hours of suffering a brain injury; and that the autopsy uncovered extensive internal injuries to the baby was sufficient to support the defendant's convictions for cruelty to children, aggravated assault, and aggravated battery. Graham v. State, 320 Ga. App. 714 , 740 S.E.2d 649 (2013).
Sufficient evidence supported the defendant's convictions for aggravated battery, aggravated assault, and cruelty to children with regard to the skull fracture and other h