Patterson v. State

332 Ga.App. 221

770 S.E.2d 62

PATTERSON

v.The STATE.

No. A14A2208.

Court of Appeals of Georgia.

March 30, 2015.

Reconsideration Denied April 14, 2015.

Certiorari Granted Nov. 2, 2015.

George Brandon Sparks, Michael Patrick Manfredi, for Appellant.

Susan Franklin, Asst. Dist. Atty., Herbert McIntosh Poston Jr., Dist. Atty., for Appellee.

Opinion

BRANCH, Judge.

Following a trial by jury, Ricky Patterson was convicted of several crimes arising out of driving his Chevrolet van into Nathaniel Silvers and pinning Silvers between the van and a mobile home. Patterson appeals following the denial of his motion for new trial, asserting only that the trial court erred by refusing to give a charge on three lesser included offenses of aggravated assault as charged in Count 4 of the special presentment. Patterson does not challenge the sufficiency of the evidence.

The evidence presented at trial shows that on November 1, 2011, Patterson's live-in girlfriend, Wanda Bartley, and her adult son Silvers were at Patterson's mobile home, that the two had been working on the trailer that afternoon, and that Bartley and Silvers had been drinking beer. Bartley and Silvers were sitting by a fire outside the home when Patterson returned from work in his van and parked the van facing toward, and about 20 feet from, one end of the mobile home. Patterson and Bartley almost immediately began arguing about Silvers being there to help Bartley work on the home. Patterson went into the home, took a roast out of the oven and threw it out the back door; Patterson also threw a cell phone through a glass gun cabinet. Bartley went inside, the couple continued to argue, and Bartley asked Patterson to leave. Silvers defended his mother and also urged Patterson to leave. At some point Patterson went outside and got into his van; Bartley was outside near the fire, and Silvers was on the porch telling Patterson to leave. Then, at the moment that Silvers walked off the porch near the same end of the trailer as the van, Patterson shifted the van into low gear, revved the engine, and drove rapidly and directly toward the end of the mobile home and Silvers. Silvers's path off the porch took him toward the van initially; Silvers then turned away from the trailer briefly but reversed and tried to run past the end of the trailer as the van approached. The van struck Silvers and pinned him to the side of the trailer, resulting in internal injuries that required a multi-day stay in the hospital; the trailer sustained a dent from Silvers's body being pinned against it.

Silvers later signed a statement stating that he had taken no part in the argument, that he and Patterson had a good relationship, that Silvers thought the incident was not intentional, that Patterson appeared to lose control of the van, and that after the incident Patterson asked Silvers if he was okay. Silvers also testified that the incident was an “accident,” that he was not arguing with Patterson that day, that he did not remember getting hit, and that he had no time to react before being struck. But a fellow detainee at the county jail testified that Patterson stated that he had struck Silvers intentionally. And both Silvers and Bartley told a responding officer that the act was “intentional.”

Patterson later was indicted. In the first four counts, Patterson was charged with four forms of aggravated assault: (Count 1) aggravated assault with intent to commit murder by attempting to commit a violent injury on the victim; (Count 2) aggravated assault with intent to commit murder by placing the victim in reasonable apprehension of immediately receiving a violent injury; (Count 3) aggravated assault with an object which, when used offensively against a person, is likely to and actually does result in serious bodily injury; (Count 4) aggravated assault by placing another in reasonable apprehension of immediately receiving a violent injury with an object which, when used offensively against a person, is likely to and actually does result in serious bodily injury. In the remaining counts, Patterson was charged with the following: (Count 5) aggravated battery by seriously disfiguring the victim; (Count 6) aggravated battery by rendering the victim's legs useless; and (Count 7) disorderly conduct.¹ The State later dismissed Count 6.

With regard to Count 4, Patterson filed written requests to charge the jury on simple assault, reckless conduct, and reckless driving as lesser included offenses of aggravated assault as charged in that count.² The trial court denied the requests and counsel objected to the ruling. At the conclusion of the trial, the jury returned a verdict. With regard to the four counts of aggravated assault, the jury found Patterson guilty on the lesser included offense of simple assault on Counts 1 and 2, not guilty on Count 3, but guilty on Count 4. The jury also found Patterson not guilty on Count 5 (aggravated battery) but guilty on Count 7 (disorderly conduct). Counts 1 and 2 merged into Count 4 for the purpose of sentencing, and Patterson was sentenced to 20 years on Count 4 and 12 months on Count 7 to run concurrent with Count 4. On appeal, Patterson contends the trial court erred by refusing to charge the jury on three requested lesser included offenses for Count 4: simple assault, reckless conduct, and reckless driving.

1. Georgia law provides that “[a]n accused may be convicted of a crime included in a crime charged in the indictment or accusation.”OCGA § 16–1–6.

A crime is so included when: (1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or (2) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.

Id. The analysis of whether a lesser included charge is warranted is determined based on a comparison with the alleged greater crime as “set forth in the indictment or accusation.” Bowers v. State, 177 Ga.App. 36(1), 338 S.E.2d 457 (1985) (emphasis omitted).³ The test employed to determine whether a jury charge should be given on any such lesser included offense turns on whether any evidence was presented to support the lesser charge:

[W]here the state's evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.... Where a case contains some evidence, no matter how slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense.

Edwards v. State, 264 Ga. 131, 133, 442 S.E.2d 444 (1994) (citations omitted; emphasis in original); see also Mobley v. State, 279 Ga.App. 476, 479(2), 631 S.E.2d 491 (2006) (same). The question before us, therefore, is whether the evidence established only the greater offense as charged in Count 4 or whether some evidence was presented to establish any of the three lesser offenses requested by Patterson.

2. In Count 4, Patterson was charged with “aggravated assault with an object” in that

he did commit an act which placed another person, to wit: Nathaniel Lane Silvers, in reasonable apprehension of immediately receiving a violent injury, said assault having been committed with an object which when used offensively against a person, is likely to and actually does result in serious bodily injury, by driving a motor vehicle in the direction of Nathaniel Silvers, striking Mr. Silvers with said vehicle, and pinning him up against a mobile home with said vehicle.

Thus, the charge specifies the two elements of an aggravated assault required by OCGA § 16–5–21 —the commission of a simple assault and the presence of a statutory aggravator—as well as which form of each element is being charged. First, the indictment shows that the State chose to charge the type of simple assault whereby a person “[c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16–5–20(a)(2). There is no specific intent requirement for this type of simple assault; rather, it is a general intent crime. Guyse v. State, 286 Ga. 574, 577(2), 690 S.E.2d 406 (2010) ; Daniels v. State, 298 Ga.App. 736, 738, 681 S.E.2d 642 (2009) ; compare OCGA § 16–5–20(a)(1) (a specific intent crime requiring proof that the defendant intended to violently injure someone). “All that is required [for a simple assault as defined in OCGA § 16–5–20(a)(2) ] is that the assailant intend to commit the act which in fact places another in reasonable apprehension of injury, not a specific intent to cause such apprehension.” Smith v. State, 280 Ga. 490, 491–492(1), 629 S.E.2d 816 (2006) (citation omitted); Daniels, 298 Ga.App. at 738, 681 S.E.2d 642 (same). This form of simple assault focuses on the reasonable apprehension of harm of the victim; it is not concerned with the defendant's intent to injure. Crane v. State, 297 Ga.App. 880, 883(2), 678 S.E.2d 542 (2009) ; Smith, 280 Ga. at 492(1), 629 S.E.2d 816.

The indictment also shows that the State charged Patterson with the second statutory aggravator, i.e., where a person “assaults ... [w]ith a deadly weapon or with any object device or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury [.]” OCGA § 16–5–21(b)(2).⁴ The second statutory aggravator does not change the type of intent necessary to prove the charge in Count 4, i.e., an OCGA § 16–5–20(a)(2) simple assault aggravated by OCGA § 16–5–21(b)(2) ; rather, the crime only requires placing the victim in reasonable apprehension of harm by intentionally using the aggravating object. Smith, 280 Ga. at 491, 629 S.E.2d 816 (2006) (where aggravated assault with a deadly weapon is alleged to have placed the victim in reasonable apprehension of harm, “intent to injure is...