In re Interest of J. H.

• Decision Date: 09 March 2020
• Docket Number: A19A2166
• Citation: 840 S.E.2d 633,354 Ga.App. 253
• Parties: In the INTEREST OF J. H., a child.
• Court: Georgia Court of Appeals

354 Ga.App. 253

840 S.E.2d 633

In the INTEREST OF J. H., a child.

A19A2166

Court of Appeals of Georgia.

March 9, 2020

Keegan Christian Gary, for Appellant.

Donald R. Donovan, Douglasville, Anthony Brett Williams, for Appellee.

McFadden, Chief Judge.

The juvenile court adjudicated J. H. delinquent for two acts which, if committed by an adult, would have constituted aggravated assault. See OCGA § 16-5-21 (a) (2). The juvenile court specifically found that by charging two people with a butcher knife, J. H. attempted to commit a violent injury and placed those people in reasonable apprehension of receiving a violent injury. J. H. appeals following the denial of his motion for new trial, arguing that the evidence was insufficient to support his adjudication of delinquency because the state failed to prove that the knife constituted a deadly weapon or that he placed either person in reasonable apprehension of receiving a violent injury. Because the evidence authorized the juvenile court’s adjudication of delinquency, we affirm.

1. Facts.

"On appeal of an adjudication of delinquency, the appellate court determines whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the acts charged beyond a reasonable doubt." In the Interest of L. J. , 337 Ga. App. 653, 653, 788 S.E.2d 531 (2016). "The evidence is considered under the standard of Jackson v. Virginia , 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), with all reasonable inferences construed in favor of the juvenile court’s findings." In the Interest of T. W. , 280 Ga. App. 693, 693, 634 S.E.2d 854 (2006).

So viewed, the evidence shows that J. H. and his older sister were involved in an argument at their home which escalated to the point of J. H. pushing and shoving her. The sister’s boyfriend intervened in order to separate the two. J. H. said that he was going to beat up his sister, threw her belongings on the floor, and kicked a hole in her bedroom door while trying to kick it in. J. H.’s sister and her boyfriend decided to leave the home because they wanted to get away from the situation and because the boyfriend needed to go to the bank. However, as they were leaving and getting in their vehicle, J. H. came outside, discovered that his sister had thrown his shoes outside, and confronted them. J. H. ran up to the passenger side door, yelled at his sister, who was in the passenger seat, and tried to hit her with a shoe; she rolled the door’s window up, which had been partially down, and J. H. banged on the window. The boyfriend grabbed J. H. from behind, pulled him away from the door despite his resistance, and told him to relax; the two then exchanged heated words.

J. H. went back into the home, but then came back outside carrying a butcher knife. At that time, his sister was still in the car passenger seat, but her boyfriend was standing outside. With the knife in his hand, J. H. charged at them. In response to seeing J. H. and being warned by J. H.’s mother to watch out, the boyfriend quickly jumped in the vehicle and drove away. J. H. chased after the vehicle and threw the knife at it as it was pulling off, hitting the driver’s side door.

2. The evidence supports the juvenile court’s finding that the butcher knife in J. H.’s hand constituted a deadly weapon.

J. H. argues that there was insufficient evidence presented for the juvenile court to determine that the knife in his hand constituted a deadly weapon. J. H. asserts that: the knife was not tendered into evidence; J. H. did not threaten anyone while holding the knife; and his act of throwing the knife at a moving vehicle, which his sister and her boyfriend were safely inside of, caused no injuries.

OCGA § 16-5-21 (a) (2) provides: "A person commits the offense of aggravated assault when he or she 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[.]"

Under the Code, aggravated assault has two essential elements: (1) an attempt to commit a violent injury, or an act that places another in reasonable apprehension thereof, and (2) that the assault was aggravated by either (a) an intention to murder, rape or rob, or (b) the use of a deadly weapon or an object that likely could or actually did result in serious bodily injury.

Watson v. State , 301 Ga. App. 824, 825, 689 S.E.2d 104 (2009) (citation and punctuation omitted); see also In the Interest of L. J. , 337 Ga. App. at 655 (1) n. 4, 788 S.E.2d 531 ("[A]ggravated assault is shown by proof of certain aggravating circumstances and an assault. Simple assault is shown by either proof that the defendant attempted to injure someone, OCGA § 16-5-20 (a) (1), or that the victim was in reasonable apprehension of immediately receiving a violent injury. OCGA § 16-5-20 (a) (2).").

The juvenile court, as the factfinder, was authorized to find that the butcher knife in J. H.’s hand constituted a deadly weapon. In Sexton v. State , 189 Ga. App. 331, 332 (3), 375 S.E.2d 661 (1988), this court held that whether a pocketknife, which the defendant swung at store employees while backing out of the store, constituted a deadly weapon was properly for the jury’s determination. See also In the Interest of T. W. , 280 Ga. App. at 693-694, 634 S.E.2d 854 ("Whether the instrument used constitutes a deadly weapon in an aggravated assault case is properly for the jury’s determination."). This court explained that the knife in Sexton , "though rather small and of a type suitable for carrying in the pocket, was arguably capable of inflicting the types of injuries which generally can be produced by knives, including death or great bodily injury." 189 Ga. App. at 332 (3), 375 S.E.2d 661. In light of the testimony here that J. H. charged at his sister and her boyfriend with a butcher knife, the evidence supports the juvenile court’s finding that the knife constituted a deadly weapon. See Wells v. State , 125 Ga. App. 579, 580, 188 S.E.2d 407 (1972) (jury was authorized to find that switchblade knife or pocketknife was a deadly weapon); see also Fitzhugh v. State , 166 Ga. App. 320, 321, 304 S.E.2d 127 (1983) ("The deadly force of a 12-½ inch butcher knife when deliberately carried for the purpose of deadly force is known to all[.]") (citation and punctuation omitted).

J. H.’s emphasis on the fact that the butcher knife was not admitted into evidence is unavailing, as "[i]t is not necessary for the [s]tate to admit into evidence the deadly weapon used by the defendant in order for the defendant to be found guilty of aggravated assault." Lattimer v. State , 231 Ga. App. 594, 595, 499 S.E.2d 671 (1998). Furthermore, the mere fact that J. H. was unable to actually injure his sister and her boyfriend because they were inside the vehicle does not negate the knife’s status as a deadly weapon, capable of inflicting death or great bodily injury. See Davis v. State , 184 Ga. App. 230, 231 (1), 361 S.E.2d 229 (1987) (whether a knife which the defendant brandished at the victim constituted a deadly weapon was for the jury’s determination, despite the fact that the victim may have been out of striking range, because the knife "was arguably capable of inflicting the types of injuries which generally can be produced by knives, including death or great bodily injury") (citation and punctuation omitted).

3. The evidence supports the juvenile court’s finding that the boyfriend was placed in reasonable apprehension of immediately receiving a violent injury.

J. H. argues that there was insufficient evidence to show that he placed his sister’s boyfriend in reasonable apprehension of immediately receiving a violent injury. In support, J. H. points to the boyfriend’s testimony that he was not nervous when J. H. came outside with the butcher knife and did not believe J. H. was trying to hurt him. J. H. claims that the boyfriend drove away in order to go to the bank and to de-escalate the situation, not because he perceived J. H. as a threat.¹

The juvenile court was authorized to find that J. H.’s actions placed the boyfriend in reasonable apprehension of immediately receiving a violent injury. After a series of escalating altercations in which the boyfriend was required to intervene in order to separate J. H. and his sister, J. H. charged at the boyfriend with a butcher knife while the boyfriend was standing outside of a vehicle, forcing him to quickly enter the vehicle and drive off. See Petro v. State , 327 G(a). App. 254, 257-258 (1), 758 S.E.2d 152 (2014) (evidence supported aggravated assault conviction, where defendant pointed butcher knife at victim when victim tried to intervene in an attack, and victim then fled from the residence and crouched behind a vehicle); Atwell v. State , 293 Ga. App. 586, 587-588 (1), 667 S.E.2d 442 (2008) (jury could conclude that victim had reasonable apprehension of receiving immediate violent injury, where defendant broke into victim’s home while she was asleep and pulled a knife on her and began waving it, even though there was testimony that defendant was not close enough to cut victim and was not swinging the knife directly at her). While J. H. places great emphasis on the boyfriend’s trial testimony that he was not nervous, "the victim need not say he was afraid, nor in fact be afraid, in order to experience a reasonable...