Grant v. State, A02A1393.
| Decision Date | 01 October 2002 |
| Docket Number | No. A02A1393.,A02A1393. |
| Citation | 572 S.E.2d 38,257 Ga. App. 678 |
| Parties | GRANT v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Barry V. Smith, Rome, for appellant.
Fred R. Simpson, Acting Dist. Atty., Charles S. Cox, Asst. Dist. Atty., for appellee.
A Floyd County jury convicted Randall Grant of aggravated battery and riot in a penal institution. He appeals from the denial of his motion for new trial, challenging the trial court's jury instructions. Finding no error, we affirm.
The evidence adduced at trial shows that on the date of the incident, Grant had been confined, for several days, in the isolation unit of the Floyd County prison due to a disciplinary problem. Earlier in the day, a correctional officer, William Hamilton, filed a new disciplinary report against Grant. Grant testified that the filing of the report and the warden's denial of his appeal made him "pretty mad" because the infraction would add seven days to his stay in isolation.
Grant started creating a disturbance. Correctional Officer Terry Maynard was able to calm him down once. However, after Maynard left, Grant began to yell, and Maynard told him that if he did not stop, another report would be filed and Grant might be placed in a padded cell. Grant promised to quiet down. However, when Maynard left to advise the warden concerning Grant's behavior, Grant started "hollering and whooping." Maynard proceeded to Grant's cell and discovered that it was being flooded. The water was ankle deep. Maynard could not open the small window inset into the door of Grant's cell, and he became concerned that Grant had jammed it and was harming himself.
Maynard radioed for assistance, and Deputy Warden Barrett arrived at Grant's cell. Barrett instructed Grant to turn the water off and step back from the door. Grant failed to respond. Barrett and Maynard tried, without success, to unlock the window as well as the cell door. Pursuant to Barrett's instructions, Maynard stepped aside. Barrett then placed his foot against the wall to brace himself and pulled on the cell door handle. The door opened approximately six to eight inches, and Barrett saw Grant sitting on his bed, straddling a sheet that had been tied to the window and the bed. Grant had placed his feet against the wall, and he was pulling the sheet toward himself.
When Maynard saw the door open, he instinctively went to assist Barrett. Maynard grabbed the door frame with both hands, but he felt force pulling it closed again. Before he could jerk his hand entirely out of the way, the 275-pound metal door slammed shut, severing the tip of his left ring finger.
Grant admitted that he intentionally flooded his cell; that he tied one end of a bed sheet to the door and the other end to the bed; that he jammed the cell window and door shut; that he knew Barrett and Maynard were outside his cell; and that when the door began to open, Grant "grabbed the sheet and started pulling it closed." He claimed he did not see Maynard's hand and did not intend to harm him.
1. Grant's first and second enumerated errors relate to his conviction of aggravated battery. "A person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body...."1 Grant first challenges the trial court's jury instructions on "malice" and "maliciously." Utilizing the definitions of those terms in Black's Law Dictionary (5th ed.1979), the court charged the jury as follows:
The word malice: The intentional doing of an unlawful act without just cause or ... excuse with the intention to inflict an injury or under circumstances that the law will imply an evil intent or the willful doing of an act with knowledge it is liable to injure another person, regardless of the consequences. Maliciously imports a wish to vex, annoy, or injure another or an intent to do a wrongful act and may consist in direct intention to injure or in reckless disregard of another's rights.
During the deliberations, the jury asked the court to define "malicious." The court recharged the jury, repeating substantially the same definitions of "malice" and "maliciously" that it had given earlier. Grant excepted to both the charge and recharge on malice.
Grant claims that the manner in which the court defined "malice" and "maliciously" permitted the jury to convict him of aggravated battery based on acts of criminal negligence, which were not alleged in the indictment. In his second enumerated error, Grant contends that the court compounded its mistake by failing to charge, sua sponte, on the lesser included offense of reckless conduct. (a) First, we find no error in the trial court's definitions of "malice" and "maliciously." Grant seemingly argues that the latter part of the trial court's charge, that "maliciously" may consist of reckless disregard of another's rights, permitted a conviction based upon a finding of implied malice, whereas OCGA § 16-5-24 should be construed to apply only to acts of express malice. We disagree.
"[J]udicial construction is necessary only when a statute is ambiguous; in fact, when the language of a statute is plain and unequivocal, judicial construction is not only unnecessary but forbidden."2 The language of OCGA § 16-5-24 is plain and unequivocal. Indeed, the word "`maliciously' has `such obvious significance and common understanding that there is no need to define it in the jury charge.'"3
Of course, having undertaken to define the terms for the jury, the court was obligated to do so correctly.4 In this regard, our Supreme Court has rejected a charge defining "maliciously" as "intentionally," absent the phrase "without justification or serious provocation."5 That error did not occur in the case sub judice, as the trial court initially defined "malice" as the "intentional doing of an unlawful act without just cause or excuse." Moreover, we find that the remainder of the charge comports with established definitions: "`[M]alice,' in the legal sense, imports the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and wilful doing of an act with an awareness of a plain and strong likelihood that such harm may result."6 "Malicious" has been defined in the civil context as follows: "In general a malicious act involves all that is usually understood by the term `wilful,' and is further marked by either hatred or ill will or by such utter recklessness and disregard of the rights of others as denotes a corrupt or malevolent disposition."7 Given the similarity between the trial court's instructions on "malice" and "malicious" and accepted definitions of those terms, we find no error.
(b) Nor do we believe that the trial court's charge permitted the jury to convict Grant of aggravated battery based upon an unindicted theory of criminal negligence. The indictment charged that Grant "intentionally caused a prison door to slam shut thereby causing the fingertip of Maynard to be severed...." The court's charge, as quoted above, sufficiently tracked the indictment.
(c) Equally meritless is Grant's argument that the trial court should have charged the jury, sua sponte, on reckless conduct as a lesser included offense of aggravated battery. "Absent a written request for a charge on a lesser included offense, made at or before the close of the evidence, the failure to so charge is not error."8 In this case, however, Grant relies on the doctrine enunciated in Tarvestad v. State9 that "[t]he trial court must charge the jury on the defendant's sole defense, even without a written request, if there is some evidence to support the charge."10 Grant's reliance is misplaced because the defendant in Tarvestad made an oral request for a charge on his sole affirmative defense, justification, and that defense was fairly raised by the evidence. By contrast, in the instant case, Grant made no oral request for the charge; and even assuming that a lesser included offense can constitute a "sole defense" within the meaning of Tarvestad,11 there is no evidence to support a justification charge. It is well settled that "[e]ven regarding a sole defense, a charge is not mandated without some evidence to support it."12 An essential element of the offense of reckless conduct is criminal negligence,13 and there was no evidence that Grant's actions resulting in the severing of Maynard's fingertip were anything other than intentional. Grant's testimony amply demonstrates his intent:
Given this evidence that Grant intentionally, and with great force, pulled the door closed, a charge on reckless conduct would not have been authorized. It is irrelevant whether Grant intended to sever Maynard's fingertip, because under Georgia law, "[e]very person is presumed to intend the natural and probable consequences of his conduct, particularly if that conduct be unlawful and dangerous to the safety or lives of others."14
Finally, we note that the court did instruct the jury on the lesser included offense of battery, OCGA § 16-5-23.1. Given that the jury rejected the option of finding Grant guilty of battery and found the aggravating factor of malice, it is unreasonable to assume that the jury would have reached a different result had it been charged on the even less culpable misdemeanor of reckless conduct.15 It follows that the trial court did not err in failing to charge the jury, sua sponte, on the crime of reckless conduct....
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