In re Interest of T. P.
| Court | United States Court of Appeals (Georgia) |
| Citation | 847 S.E.2d 629,356 Ga.App. 445 |
| Docket Number | A20A1167 |
| Parties | In the INTEREST OF T. P., a child. |
| Decision Date | 21 August 2020 |
356 Ga.App. 445
847 S.E.2d 629
In the INTEREST OF T. P., a child.
A20A1167
Court of Appeals of Georgia.
August 21, 2020
Clifford Louis Kurlander, for Appellant.
Wystan Getz, Sherry Boston, Decatur, for Appellee.
McFadden, Chief Judge.
T. P. was adjudicated delinquent for simple assault. He appeals the adjudication, arguing that the evidence was insufficient to prove simple assault and that the juvenile court violated his right to testify on his own behalf. We hold that the evidence was not sufficient to support the adjudication. So we reverse. We do not reach T. P.’s
argument that the juvenile court violated his right to testify on his own behalf.
The standard of review [of an adjudication of delinquency] is the same as a criminal case: In considering a challenge to the sufficiency of the evidence supporting an adjudication of delinquency, we construe the evidence and every inference from the evidence in favor of the juvenile court's adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juvenile committed the acts charged.
In the Interest of J. L. K. , 302 Ga. App. 844, 847-848 (2), 691 S.E.2d 892 (2010) (citations and footnote omitted).
So viewed, the record shows that T. P. was a student at a DeKalb County middle school. The school resource officer testified that he was called to the gym because of an unruly student. Before he reached the gym, he encountered an assistant principal standing with T. P. in the hallway. T. P.’s fists were clenched, he was sweaty and breathing heavily, and he began cursing.
The officer asked T. P. to accompany him to his office so that they could talk. He put his hand on the small of T. P.’s back to direct him toward his office. T. P. turned toward the officer, was "in [his] face," and responded, "Fuck, no. I ain't going nowhere and you better not fucking touch me." According to the officer, T. P. looked as if he were ready to fight, but he never swung at the officer. The officer turned T. P. around by his shoulder and took him to the office. The officer testified that when T. P. turned toward him, T. P.’s "gestures caused [him] to fear that [he] may be able to receive physical or bodily injury based off his body language."
The delinquency petition alleged that T. P. committed simple assault "when he did commit an act which placed [the] School Resource Officer ... in reasonable apprehension of immediately receiving a violent injury
by telling said officer ‘nobody better fucking touch me’ while standing with both fists closed tightly." OCGA § 16-5-20 (a) (2) provides that "[a] person commits the offense of simple assault when he or she ... [c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury." A reasonable fact finder could not have found from the testimony at the adjudication hearing that T. P. committed an act that placed the officer in reasonable apprehension of immediately receiving a violent injury.
The only act the officer described was T. P. turning around when the officer placed his hand on T. P.’s back while T. P. was visibly angry.
But to support a simple assault conviction or adjudication, there must be "a demonstration of violence." In the Interest of C. S. , 251 Ga. App. 411, 413, 554 S.E.2d 558 (2001) (citation and punctuation omitted); Hudson v. State , 135 Ga. App. 739, 740-741 (1), 218 S.E.2d 905 (1975). See also State v. Rooks , 266 Ga. 528, 529, 468 S.E.2d 354 (1996) (assault requires "a demonstration of violence and a present ability to inflict injury").
As detailed in the margin, that requirement predates the codification of apprehension-of-injury type of assault. Thomas v. State , 99 Ga. 38, 44, 26 S.E. 748 (1896)1 (an assault is complete "if there be such a demonstration of violence, coupled with an apparent ability to inflict the injury, so as to cause the person against whom it is directed reasonably to fear the injury unless he retreat to secure his safety, and under such circumstances he is compelled to retreat to avoid an impending danger").
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