Henderson v. State, A01A1265.

• Decision Date: 05 November 2001
• Docket Number: No. A01A1265.,A01A1265.
• Citation: 252 Ga. App. 295,556 S.E.2d 204
• Parties: HENDERSON v. The STATE.
• Court: Georgia Court of Appeals

556 S.E.2d 204

252 Ga. App. 295

HENDERSON v. The STATE.

No. A01A1265.

Court of Appeals of Georgia.

November 5, 2001.

Ruth P. Marks, Rome, for appellant.

Patrick H. Head, Dist. Atty., Andrew J. Saliba, Dana J. Norman, Asst. Dist. Attys., for appellee.

James C. Bonner, Jr., Decatur, amicus curiae.

SMITH, Presiding Judge.

Daphne Lynne Henderson was convicted by a jury of one count of obstruction of an officer and one count of aggravated battery on a peace officer. Her motion for new trial as amended was denied, and she appeals. Although we agree with Henderson that the trial court should have merged the two convictions for sentencing purposes, we find no basis for a new trial. We therefore affirm the trial court's denial of Henderson's motion for new trial but vacate and remand for resentencing.

The facts are essentially undisputed. Officer Marty Perkins and three other officers responded to a call at an apartment complex. They arrived at the scene to find Henderson rolling and writhing on the front porch of her apartment, covering her face, and screaming, "Get it off of me," although nothing appeared to be on Henderson. Two of the officers moved Henderson from the porch to the ground to protect her from injury. After a short time, Henderson began to calm down and talk with one of the other officers. Perkins testified that Henderson "seemed to really calm down and respond to" the officer. She was "chatting directly with him." Among other things, the officer asked Henderson if she had smoked anything. She responded that she had smoked crack. But following this brief conversation, Henderson's daughter came outside the apartment, and she was "crying and yelling" and asking her mother to get up. Perkins told the daughter that Henderson needed to lie down so she would not hurt herself, but "[a]t that point, Miss Henderson fired right back up again and began being hysterical again herself with the screaming and the yelling and the rolling around."

Henderson stood up and was stumbling around, and as Perkins and another officer attempted to restrain her and lay her on the ground, Henderson pulled Perkins's arm toward her and bit it, latching on so hard that another officer was required to pry Henderson away from Perkins. Perkins testified she had permanent nerve and muscle damage to her arm. She showed the jury her scar and pointed out a "divot" in her arm. She stated that she had a four-inch-square area on her arm where the nerves were completely severed and where she had no feeling or sensation.

Henderson acknowledged that before the incident, she smoked a piece of crack cocaine provided by an acquaintance. A short time later, "[e]verything went dark." She could not see or catch her breath, and she asked someone to open the door so that she could go outside and get some air, because she thought she was going to die. She testified that before everything became dark, she felt as if something like an animal was causing her pain, "trying to tear my face off." Henderson stated that she could feel someone moving her off the porch and onto the grass, but she did not "know what it was that was doing this to me." She remembered nothing else that happened from that time until she woke up in the emergency room.

1. Henderson makes several related arguments concerning two aspects of the trial court's charge. First, she contends that the court's instructions erroneously allowed the jury to convict her in a manner not set forth in the indictment. Second, she argues that although the indictment charged her with maliciously causing bodily harm to Officer Perkins, the court did not define the term "malicious."

We first note that Henderson failed to object to the charge on these grounds¹ and failed to reserve exceptions to the entirety of the charge, even when asked by the trial court if she had any exceptions to the charge. Henderson's complaints concerning the charge therefore have not been preserved for appellate review. Pruitt v. State, 258 Ga. 583, 590(14), 373 S.E.2d 192 (1988). Henderson argues, however, that these contentions are reviewable under a "plain error" analysis, a doctrine that permits appellate review of unexcepted-to errors "if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings." (Citations and punctuation omitted.) Almond v. State, 180 Ga.App. 475, 480, 349 S.E.2d 482 (1986).² Alternatively, she argues that trial counsel's failure to preserve the issues for appellate review constituted ineffective assistance of counsel. For the reasons that follow, we find no reversible error with respect to the court's charge to the jury under either theory.

(a) We first address Henderson's argument that the trial court's instructions impermissibly allowed the jury to convict her of aggravated battery in a manner not set forth in the indictment. We do not agree with Henderson that obvious error occurred warranting reversal under the "plain error rule." A jury instruction defining a crime as an act that can be committed in a manner other than the manner alleged in the indictment violates a defendant's due process when "there is evidence to support a conviction on the unalleged manner of committing the crime and the jury is not instructed to limit its consideration to the manner specified in the indictment." (Citations omitted.) Harwell v. State, 270 Ga. 765, 766(1), 512 S.E.2d 892 (1999). The indictment here charged Henderson with committing aggravated battery by one method: maliciously causing bodily harm to Perkins, knowing that Perkins was a peace officer engaged in the performance of her official duties, by rendering a member of her body useless, her arm.

Henderson also correctly argues that the trial court generally defined the crime of aggravated battery as occurring when one maliciously caused bodily harm by three methods: by depriving a person of a member of his or her body; by rendering a member of the person's body useless; or by seriously disfiguring the person's body or a member of his or her body. A similar instruction was repeated when the trial court recharged the jury on all instructions, at the jury's request, the next day. Some evidence was presented of disfigurement; Perkins showed the jury her scar; and the prosecutor argued that Perkins was disfigured.

But despite this evidence and argument, we cannot agree with Henderson that reversal is required. With respect to the entire charge, Henderson takes this portion of the instruction out of context. Although the trial court initially defined aggravated battery as a crime capable of being committed in three ways, the court then read the portion of the indictment charging Henderson with aggravated battery, which specifically charged her with committing the crime by rendering a member of Perkins's body useless, and the court stated that if the jury found Henderson caused bodily harm to a peace officer by maliciously rendering a part of her body useless, it would be authorized to find Henderson guilty. The trial court then instructed the jury concerning preparation of the verdict, stating that the jury would indicate that it found Henderson "guilty of aggravated battery in causing bodily harm as alleged in the indictment." (Emphasis supplied.)

During its recharge the next day, the trial court similarly instructed the jury on how to prepare its verdict forms. These instructions clearly informed the jury that only a finding of aggravated battery by rendering a part of another's body useless was available for its consideration. See Riley v. State, 242 Ga.App. 720, 722(1), 531 S.E.2d 138 (2000). In addition, after reading the indictment verbatim, the trial court instructed the jury on the burden of proof, particularly reciting that the State had the burden to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt. These instructions adequately informed the jury that the State was required to prove that Henderson committed the crime as alleged in the indictment. See Booker v. State, 242 Ga.App. 80, 85(4)(d), 528 S.E.2d 849 (2000); Salahuddin v. State, 241 Ga.App. 168, 170(1), 525 S.E.2d 422 (1999). We consequently cannot conclude that the jury convicted Henderson of commission of a crime in a manner other than that alleged in the indictment. It follows that the charge as given did not constitute plain error.³

(b) We next address Henderson's arguments that trial counsel's failure to object to the charge as given, to object to the State's arguments concerning Perkins's disfigurement, and to reserve exceptions for appeal constituted ineffective assistance of counsel. To prevail on an ineffectiveness claim, an appellant must show both that trial counsel's performance was deficient and that, but for this deficiency, a substantial likelihood exists that the outcome of the trial would have been different. Head v. Carr, 273 Ga. 613, 616(4), 544 S.E.2d 409 (2001). Despite the prosecutor's arguments concerning Perkins's disfigurement, the trial court's charge, when read as a whole, informed the jury that it must consider only whether Henderson committed aggravated battery as alleged in the indictment. Under these circumstances, we cannot conclude that reversal is required on ineffectiveness grounds.

2. Henderson argues that the trial court improperly instructed the jury concerning her intent to commit the crime of aggravated battery.

(a) The court's instruction on aggravated battery stated in relevant part that a person commits this crime when he or she "maliciously causes bodily harm." Chiefly relying on Wade v. State, 258 Ga. 324, 368 S.E.2d 482 (1988), Henderson argues that the trial court erred in failing to define the term "maliciously." In Wade, the trial court instructed the jury that aggravated battery is committed when the defendant commits the injuries "`maliciously, that is...