Grace v. State
| Decision Date | 01 November 1993 |
| Docket Number | A93A1611,Nos. A93A1610,s. A93A1610 |
| Parties | GRACE v. The STATE (Two Cases). |
| Court | Georgia Court of Appeals |
Billy M. Grantham, Donaldsonville, for James L. Grace.
Ernie M. Sheffield, Colquitt, for Allen L. Grace.
J. Brown Moseley, Dist. Atty., Robert R. Auman, Asst. Dist. Atty., for appellee.
A jury convicted James Lee Grace of aggravated battery on a peace officer, aggravated assault on a peace officer, and possession of a firearm by a convicted felon. His nephew, Allen Lee Grace, was convicted of aggravated battery on a peace officer and aggravated assault on a peace officer. James Grace appeals in Case No. A93A1610; Allen Grace appeals in Case No. A93A1611.
1. James Grace contends that the evidence was insufficient to support his conviction of aggravated assault on a peace officer. Viewing the evidence in a light most favorable to sustain the verdict, the pertinent facts are as follows: Police officers Willard Hinton and Ronald McMillan were on the lookout for three suspects involved in an armed robbery. The truck in which James Grace, Allen Grace and Willie Parris were riding matched the description of the vehicle allegedly involved in the robbery. The officers turned on their blue lights and the suspects pulled over. The driver of the truck, Willie Parris, got out of the vehicle and walked toward the patrol car. While Officer McMillan was speaking to Parris, Allen Grace got out of the truck but was told by the officers to get back into the truck. Officer Hinton walked over to the passenger side of the truck to watch the occupants. When Hinton turned his head to look inside the truck, Allen Grace fired three shots, striking Hinton in the face. Hinton backed away from the truck, drew his weapon and began firing at the vehicle as James Grace drove the vehicle away.
James Grace argues that since he did not fire the gun, he cannot be guilty of aggravated assault. We disagree. "While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred." (Citations and punctuation omitted.) Griggs v. State, 208 Ga.App. 768, 769(1), 432 S.E.2d 591 (1993); Tucker v. State, 205 Ga.App. 683, 684, 423 S.E.2d 422 (1992). Further, a person is a party to a crime and may be charged with and convicted of commission of the crime if he intentionally aids or abets in the commission of the crime. OCGA § 16-2-20. James Grace was seated in the pickup truck with Allen Grace immediately before, during and after Allen Grace shot the officer. Most importantly, James Grace drove the truck (and Allen Grace) away from the scene of the crime. This evidence establishes that James Grace was more than a mere bystander to the assault. We hold that a rational trier of fact could have found James Grace guilty of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Montgomery v. State, 208 Ga.App. 763, 432 S.E.2d 120 (1993).
2. Both appellants contend that the court erred in denying their motion for a directed verdict of acquittal on the charge of aggravated battery. "A person commits the offense of aggravated battery when he maliciously causes bodily harm to another by depriving him of a member of his body, by rendering a member of his body useless, or by seriously disfiguring his body or a member thereof." OCGA § 16-5-24(a). The Graces argue that, contrary to the allegation in the indictment, Hinton was not seriously disfigured. "A verdict of acquittal may be directed where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal." (Citations and punctuation omitted.) McKissick v. State, 263 Ga. 188, 189(1), 429 S.E.2d 655 (1993). Here, Hinton testified that he has a "little dent" in his chin where the bullet entered. His surgeon testified that the bullet destroyed a portion of his carotid artery, shattered his mandible and hit his spine. The surgeon also testified that the scar on Hinton's chin would be permanent. Whether that scar constituted serious disfigurement was a jury question. Barfield v. State, 170 Ga.App. 796, 318 S.E.2d 219 (1984); Thompson v. State, 156 Ga.App. 1, 273 S.E.2d 894 (1980), cert. denied. The trial court did not err in refusing to direct a verdict of acquittal on the charge of aggravated battery.
3. Both appellants claim that the court erred in denying their motion for a change of venue. They argue that pre-trial publicity was so widespread that it was impossible for an impartial jury to be selected. The trial court reserved ruling on the motion until after voir dire was complete. After extensive questioning on the matter of pre-trial publicity, only one of forty-seven jurors was disqualified. In a motion for a change of venue, the petitioner must show (1) that the setting of the trial was inherently prejudicial or (2) that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible. Milan v. State, 207 Ga.App. 206, 207-208(2), 427 S.E.2d 573 (1993). The Graces have not shown any way in which the setting of the trial was inherently prejudicial. Nor have they shown actual prejudice in the jury selection process. See Tharpe v. State, 262 Ga. 110, 416 S.E.2d 78 (1992). The decision to grant a change of venue lies within the discretion of the trial court, and its discretion will not be disturbed absent an abuse of discretion. Nobles v. State, 201 Ga.App. 483, 488-489(11), 411 S.E.2d 294 (1991); Watts v. State, 200 Ga.App. 54, 56(5), 406 S.E.2d 562 (1991). The trial court did not abuse its discretion in denying defendants' motion for a change of venue.
4. The Graces next claim that the trial court erred in denying them additional peremptory strikes. (Emphasis supplied.) OCGA § 17-8-4. The Graces concede that the allowance of additional strikes is a matter within the sole discretion of the trial judge. They argue, however, that the judge abused his discretion by not explaining his refusal to allow additional strikes. The Graces cite no authority in support of this argument. Deference to the judge's sound discretion precludes a reviewing court from assuming, in the absence of record evidence, that the trial judge deprived defendants of their rights. See Burleson v. State, 259 Ga. 498, 501, 384 S.E.2d 659 (1989). We find no abuse of discretion.
5. Both appellants contend that the court erred in allowing the testimony of a witness whose name was not on the State's witness list since the prosecuting attorney did not state that the evidence was newly discovered in accordance with OCGA § 17-7-110. The witness' name was brought to the Graces' attention at a pre-trial hearing two weeks before the trial. At that hearing, a GBI agent gave testimony as to the identity of the witness and the scope of his knowledge. The agent also testified that the witness would be able to testify at the trial. The trial court allowed the Graces' attorneys "whatever time is necessary" to interview the witness prior to him testifying at trial. "The...
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