Christensen v. State
| Citation | 537 S.E.2d 446,245 Ga. App. 165 |
| Decision Date | 14 July 2000 |
| Docket Number | No. A00A0517, No. A00A0518. |
| Parties | CHRISTENSEN v. The STATE (Two Cases). |
| Court | United States Court of Appeals (Georgia) |
OPINION TEXT STARTS HERE
Frank K. Martin, John T. Martin, Columbus, for appellant.
J. Gray Conger, District Attorney, George E. Lipscomb II, Assistant District Attorney, for appellee. ELDRIDGE, Judge.
We have consolidated two appeals from appellant Mark Christensen. One challenges his criminal conviction for aggravated battery, and the second challenges the trial court's denial of his motion to recuse.
A Muscogee County jury found Christensen guilty of aggravated battery arising from an incident that occurred during a pick-up soccer game involving Christensen and other professional players. During heated play, Christensen punched another player in the eye. The victim's eye socket was fractured, and he received multiple stitches; pictures introduced at trial showed that his eye was severely blackened. Christensen appeals his conviction, raising nine enumerations of error. Upon review, we find Christensen's contentions meritless and affirm.
1. Christensen first claims that the trial court erred by failing to charge the jury on (a) simple battery, and (b) "opprobrious words" as a defense thereto. We disagree.
(a) While the trial court did not charge on misdemeanor simple battery under OCGA § 16-5-23(a)(1), the court charged on misdemeanor battery under OCGA § 16-5-23.1(a)
and (b).1 This is because the State proved that the victim sustained a substantially blackened eye. There was no evidence to the contrary. A charge on simple battery would be applicable if the State does not prove that the harm is visible per OCGA § 16-5-23.1(b) or if there is some question in that regard which might create a jury issue.2 In this case, however, there was no evidence to support a simple battery charge under OCGA § 16-5-23 because it went undisputed that the injury to the victim consisted of "visible bodily harm" and that the victim's eye was substantially blackened as a result of Christensen's punch.3
Further, harm as well as error must be shown to warrant reversal.4 "Battery" is a more aggravated offense than "simple battery" because, while both offenses are misdemeanors and share the same elements, "battery" requires proof of the additional element of "substantial physical harm or visible bodily harm."5 The offense of "aggravated battery" is a felony which requires additional proof of (i) malice, and (ii) bodily harm which disfigures or renders a member of the victim's body useless.6
In this case, the trial court gave the jury the option to find Christensen guilty of the lesser included offense of misdemeanor battery or of felony aggravated battery as indicted. By its verdict, the jury found the additional aggravating circumstances necessary to convict on the greater felony offense. Since the jury rejected misdemeanor battery and found the additional aggravating elements to warrant felony conviction, we reject the idea that the jury might have reached a different result had they also been charged on the even less culpable misdemeanor of simple battery. Accordingly, "any error in this instruction on the lesser included offense was rendered harmless by the jury's verdicts finding defendant guilty of the greater offense of [aggravated battery] in each alleged instance."7
(b) Opprobrious or "abusive language" can be a justification for simple battery.8 However, Christensen was not charged with simple battery, and simple battery was not a lesser included offense in this case. Accordingly, "abusive language" is not an applicable defense. "By its clear terms, the defense is limited to the offense of simple battery; it does not apply to the offense of battery."9
Further, Christensen specifically testified that he hit the victim, not because of any abusive language used, but because he thought the victim was going to hit him:
Christensen took the stand and testified as to his intent in committing the act.10 Without any claim whatsoever by Christensen that he committed the offense because of abusive language, he was not entitled to a jury charge on abusive language as a justification for his committing the offense.
Finally, the jury rejected the misdemeanor offense of battery and found the additional elements necessary to convict on felony aggravated battery. "Abusive language" is not a defense to felony aggravated battery. Since, as a matter of law, an "abusive language" defense under OCGA § 16-5-25 would not apply to the offense for which Christensen was convicted, the failure to give such instruction is rendered harmless.11
2. There was no error in the trial court's charge to the jury on the offense of aggravated battery. The court charged on the language of the statute, the elements of the offense, and that the State must prove each element beyond a reasonable doubt.12
Also, we find no conflict between the trial court's charge that the victim's loss of the use of his eye need not be permanent and the allegation in the indictment that Christensen rendered the victim's eye "useless." The court's charge was a correct statement of the law.13 "The fortuitous fact that complete and permanent blindness did not result hardly suffices to create a fatal variance between allegata and probata."14
3. Christensen next asserts that the trial court erred in denying his motion for directed verdict. A motion for directed verdict is authorized only when there is no evidence to support a conviction.15 In this case, the testimony of the victim and several eyewitnesses regarding Christensen's unprovoked attack on the victim, as well as pictures of the severity of the injury to the victim's eye and expert testimony with regard thereto, was sufficient evidence to sustain the conviction. The expert medical testimony offered in rebuttal to the State's evidence provides no basis to reverse. Such is addressed to the credibility of the witnesses, and an appellate court does not weigh the evidence or determine the credibility of witnesses. In this case, the refusal to direct a verdict of acquittal based on sufficiency grounds was proper.16
4. The trial court admitted evidence of a similar transaction incident wherein Christensen punched a man in the face as a result of "road rage." On appeal, Christensen does not contest his identity as the perpetrator of the prior act. Nor does he contest the similarity of the independent offense. His contention is that the trial court should not have permitted the investigating officer to testify as to a statement made by the victim of the prior act.
The trial court found that the victim's statement was made 18 minutes after the incident, while the victim was still on the side of the road holding his bleeding face. The court determined that such statement was part of the res gestae of the prior offense, and the court permitted the officer to testify as to his investigation into the facts of incident, including the victim's res gestae statement. "A trial court's determination that evidence is admissible as part of the res gestae will not be disturbed unless it is clearly erroneous."17 Under the facts of this case and Christensen's error as enumerated, we do not find the trial court's admission of the evidence to be clearly erroneous.18
5. Christensen contends that the trial court erred in refusing to permit him to recall in surrebuttal two defense witnesses to rebut the testimony of Christensen's ex-wife, Linda. However, we find no error.
Linda Christensen was called by the State and testified that Christensen beat her about the head and face with his fists after he came home one evening upset because he had been ejected from a soccer game. Pictures of the injuries sustained by Linda Christensen were introduced. Thereafter, the defense wished to call two surrebuttal witnesses—not to refute the fact that Christensen had beaten his ex-wife—but to testify that Christensen had never been ejected from a soccer game. We find that this evidence would have only tangentially rebutted the substance of Linda Christensen's testimony. Moreover, both witnesses had testified previously that Christensen had never been ejected from a soccer game. The trial court did not abuse its discretion in refusing to permit the witnesses to testify.19
6. At the onset of the trial court's charge to the jury, the judge instructed the jury regarding the indictment as a legal document. The court's instructions included an explanation of the evidentiary significance of the indictment as "not evidence of his [Christensen's] guilt nor is it evidence of his innocence by his plea of not guilty."
We disapprove of this portion of the trial court's instruction since a defendant need not supply "evidence of his innocence." A criminal defendant is presumed innocent until proven guilty, and the trial court's instruction as to "evidence of innocence" can serve only to confuse, even if such explanation was made solely in relation to the evidentiary value of an indictment.
However, jury instructions are not to be read in isolation. In this case, the trial court properly instructed the jury on Christensen's presumption of innocence and the State's burden to prove his guilt beyond a reasonable doubt. While the trial court's preliminary charge in relation to the indictment was confusing, it was not reversible error in light of the jury charge as a whole.20
7. We find no error in the trial court's instruction to the jury that "[t]he outcome of this case has absolutely nothing to do with the civil case that the victim has filed against...
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