Schmeelk v. State

358 Ga.App. 364

855 S.E.2d 368

SCHMEELK

v.The STATE.

A20A2018

Court of Appeals of Georgia.

February 8, 2021

Debra Kay Jefferson, Lawrenceville, for Appellant.

Flynn Duncan Broady Jr., Linda Jeanne Dunikoski, John Stuart Melvin, for Appellee.

Brown, Judge.

A jury found Gregory Schmeelk guilty of family-violence aggravated assault and reckless conduct.¹ Schmeelk appeals his convictions and the denial of his amended motion for new trial, contending that insufficient evidence supports his conviction for family-violence aggravated assault and that the trial court failed to exercise its discretion to act as the "thirteenth juror." We conclude that the State presented sufficient evidence to support the conviction but nonetheless vacate the trial court's order denying Schmeelk's motion for new trial and remand the case so that the court may exercise its discretion as the "thirteenth juror."

Viewed in the light most favorable to the jury's verdict, see Jackson v. Virginia , 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence shows that Schmeelk lived in a house with his wife, their young daughter, and the wife's 23-year-old daughter at the time of the incident. On the night of March 25, 2016, Schmeelk's stepdaughter returned home from church and went to her room in the downstairs basement of the home to eat dinner. She heard loud noises upstairs, and her mother came down to the basement to tell her that Schmeelk was drunk and that she was "trying to convince him to ... pass out." The daughter walked partially up the stairs and saw Schmeelk on the couch in his underwear. Schmeelk walked to his bedroom with the mother in tow, and the daughter heard the mother tell Schmeelk, "No ... not tonight. It's not funny. No...." The daughter went to help her mother and saw Schmeelk grabbing her by the arms to try to lead her into the bedroom. The daughter instructed Schmeelk to let go of her mom and go to bed. As Schmeelk walked toward the daughter, she pulled out her cell phone and threatened to call the police. In response, he returned to the bedroom.

As the daughter walked back down the stairs, she heard the "sound of ... a gun being racked," and her mother saying "run, run, run." The daughter ran down the stairs past the locked front door, locked the basement door behind her, exited the basement door into the garage, and locked that door behind her. She then opened the garage door, ran down the driveway between the parked cars, and crouched behind Schmeelk's car. At this point, the daughter heard gunshots and fled to a tree in the yard. As she hid behind the tree, she saw Schmeelk reach the end of the driveway, holding the gun, and look up and down the street. The mother told Schmeelk, "You're not going to find her, Greg. Stop looking. She's already gone." The daughter ran down the street to a neighbor's house, screaming for help, and called the police.

The mother's testimony corroborated the daughter's version of events. She testified that Schmeelk came out of their bedroom with a gun, went down the stairs past the front door and to the daughter's room where he kicked in the locked door. The mother followed him, grabbing his shirt and telling her daughter to run. When they reached the garage, she heard multiple shots fired. Schmeelk then turned the gun on the mother and told her, "If you don't let go of my shirt, I'll shoot you, too." Schmeelk then walked to the end of the driveway with the gun.

A neighbor heard gunshots and a woman screaming and went to help. He encountered Schmeelk with a gun in his driveway and asked him to put down the gun. Schmeelk complied, and the man collected the gun before police arrived. The responding officer testified that she observed several bullet holes in the front of Schmeelk's silver Jetta in the driveway, along with a bullet hole off to the side of the car in some pine straw.

At trial, Schmeelk testified in his own defense. He admitted having "a couple of drinks" on top of medication he took after having a back procedure earlier in the day. According to Schmeelk, he was "feeling ... despondent and under appreciated and disrespected and was overwhelmed with work," decided that he was no longer going to work, and accordingly shot the engine in his car. He denied knowing that his stepdaughter was outside when he was shooting, and denied threatening or intentionally pointing the gun at the wife. He also denied breaking down the basement door, claiming his and the mother's "combined body weight burst the door open."

1. Schmeelk contends that insufficient evidence supports his conviction for family-violence aggravated assault. Specifically, he contends that no evidence was presented from which a jury could infer that he had any motive to harm or injure his stepdaughter or knowingly intended to make an assault upon her. We disagree.

Pertinently, a person commits aggravated assault when he 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 (a) (2). See also OCGA § 16-5-21 (i) (explaining the sentencing enhancement if the aggravated assault is committed between, inter alia, stepparents and stepchildren). It is well established "that aggravated assault has two elements: (1) commission of a simple assault as defined by OCGA § 16-5-20 (a) ; and (2) the presence of one of three statutory aggravators set forth in OCGA § 16-5-21 (a)." (Citation and punctuation omitted.) Johnson v. State , 348 Ga. App. 540, 544 (1), 823 S.E.2d 853 (2019). "A person commits the offense of simple assault when he or she either: (1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury." OCGA § 16-5-20 (a).

Here, Count 1 of the indictment charged Schmeelk with family-violence aggravated assault in that Schmeelk "did knowingly make an assault upon the person of [his stepdaughter] with a deadly weapon, to wit: a Colt handgun by firing said handgun at [the stepdaughter] multiple times...." Thus, the indictment was broad enough to authorize Schmeelk's conviction of aggravated assault based on either OCGA § 16-5-20 (a) (1) or (a) (2). See Touchstone v. State , 319 Ga. App. 477, 479 (1), 735 S.E.2d 805 (2012) (indictment charging the defendant with " ‘knowingly making an assault upon [the victim], a peace officer engaged in the performance of her official duties, with a deadly weapon, to wit: a .357 caliber revolver’ " was broad enough to authorize the defendant's aggravated assault conviction based on either type of simple assault). See also Ford-Calhoun v. State , 327 Ga. App. 835, 839 (1) (a) (ii), n.14, 761 S.E.2d 388 (2014) ("an indictment for aggravated assault puts a defendant on notice that he may be convicted for aggravated assault if he committed a simple assault in either manner contained in the simple assault statute, so long as the trial court charges and the State proves that he did so by the alleged aggravating aspect of the assault") (citation and punctuation omitted).²

The testimony of the victim and the mother established that after the victim confronted Schmeelk and threatened to call the police, Schmeelk obtained a loaded gun from his bedroom, followed the victim down the stairs past the front door, and busted down the basement door to the victim's room before firing the gun at the car behind which the victim was hiding. The evidence also showed that Schmeelk threatened to shoot the mother "too" if she did not get out of his way, and that after shooting his car, Schmeelk walked to the end of the driveway with the gun to look up and down the road. The victim also testified that she knew Schmeelk was shooting at her, was afraid, and "r[a]n for [her] life." We conclude that this was sufficient evidence to sustain Schmeelk's aggravated assault conviction based upon either form of simple assault. See Howard v. State , 288 Ga. 741, 742 (1), 707 S.E.2d 80 (2011) ("[t]estimony that the victims ran from the gunfire is sufficient evidence that Appellants placed them in reasonable apprehension of immediately receiving a violent injury"); Lomax v. State , 319 Ga. App. 693, 694 (1), 738 S.E.2d 152 (2013) (victim's testimony that defendant had a gun and...