Lemming v. State
| Decision Date | 11 March 2005 |
| Docket Number | No. A04A1842.,A04A1842. |
| Citation | 612 S.E.2d 495,272 Ga. App. 122 |
| Parties | LEMMING v. The STATE. |
| Court | Georgia Supreme Court |
Randall Estes, Lawrenceville, for Appellant.
Daniel Porter, District Attorney, David Keeton, Assistant District Attorney, for Appellee.
Following a jury trial, Steve John Lemming appeals his conviction of two counts of aggravated assault1 and one count of criminal attempt to commit armed robbery,2 contending that: (1) the evidence was insufficient to support his convictions; and (2) he received ineffective assistance of counsel.3 For the reasons set forth below, we affirm.
1. Lemming maintains that the evidence was insufficient to support his convictions. The standard of review is well settled.
On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the jury's verdict, and the defendant no longer enjoys the presumption of innocence. An appellate court does not weigh the evidence or judge the credibility of the witnesses but only determines whether the evidence to convict is sufficient under the standard of Jackson v. Virginia.4 Conflicts in the testimony of the witnesses, including the State's witnesses, are a matter of credibility for the jury to resolve. So long as there is some competent evidence, even though contradicted, to support each element of the State's case, the jury's verdict will be upheld.5
Viewed in this light, the record shows that, on the evening of April 10, 2002, Lemming jumped behind the counter at a Waffle House restaurant and attacked a waitress, Elizabeth Sutton, placing a filed-down "pocket paring knife" against her neck. Sutton screamed, and when Darryl Finley, the cook, approached, Lemming warned, and "pok[ed] the knife in her face." Responding "the `f' you will," Finley hit Lemming with a broom and tried to pull Sutton away from Lemming. Lemming then jabbed the knife at Sutton and, in the process, cut Finley's finger. Finley then punched Lemming with his left hand. After a few more swings of the broom, Lemming ran from the restaurant, and Finley chased after him but failed to catch up to him.
After the incident, police who responded to the scene found Lemming in the woods behind the restaurant. When asked about the knife, Lemming responded, "I tossed it when I ran into the woods." Following the reading of his Miranda rights, Lemming admitted that he had attempted to rob the restaurant and that he had put a knife to a waitress's throat.
The evidence was sufficient to allow a rational trier of fact to find Lemming guilty beyond a reasonable doubt of criminal attempt to commit armed robbery and of aggravated assault on the waitress, Sutton, and on the cook, Finley. Lemming argues that Finley's testimony that he did not perceive Lemming's knife to be a threat would preclude the conviction for aggravated assault on Finley because there was no evidence that Finley was apprehensive. We disagree.
A person commits the offense of aggravated assault when he uses a deadly weapon to commit an act which places another in reasonable apprehension of immediately receiving a violent injury. Whether a victim has been placed in reasonable apprehension of injury is a question of fact, which may be established by indirect or circumstantial evidence.6
Our Supreme Court has held that the statute's requirement that the victim be "in reasonable apprehension" does not mean that the victim must be in fear. In Bates v. State,7 a unanimous Court explained as follows:
Bates contends that the trial court erred in responding to two jury questions. First, when asked to clarify "reasonable apprehension," the court answered in part, that "the law of Georgia does not appear to require fear as an element of apprehension." Although Bates argues that, in the context of the statutory definition of assault, the victim must be in a state of fear, that is not correct. "Reasonable apprehension of injury is not the same as simple fear," and the fact that the victim does not necessarily experience fear does not preclude a finding of reasonable apprehension.8
If "reasonable apprehension" does not mean "simple fear," what does it mean? In Webster's Third New International Dictionary, the first two non-obsolete meanings of "apprehension" are: "the faculty of grasping with the intellect" and "the act of grasping with the intellect."9 Synonyms of apprehension include intellection and perception. It is only the third meaning of apprehension, according to Webster's Dictionary, that includes a sense of fear.10 The Supreme Court, as well as our Court, seem to have interpreted the statute to require not that the victim have a reasonable fear of immediately receiving a violent injury but rather that the victim have a reasonable perception that he is about to receive a violent injury. According to the case law, that perception can be prompted by acts involving knives as well as acts involving firearms.11
The victim's apprehension or perception can be proved by circumstantial or indirect evidence as well as by direct or positive evidence.12 Moreover, in Georgia, positive evidence of an adamant denial of apprehension by the victim does not preclude conviction when there is some circumstantial evidence from which the jury could infer a perception of danger.13 Georgia precedents involve a knife as well as firearms.14 Decisions in other jurisdictions support the Georgia view.15 Moreover, evidence of the state of mind of one victim can be relevant to the state of mind of other victims.16
What was the circumstantial evidence in this case from which the jury could have inferred that the victim perceived, in advance, the imminent threat of the bloody wound which he did, in fact, eventually receive? The record shows the following:
1. Lemming, the defendant, entered the premises with the specific intent of frightening the Waffle House's "Employees" (plural).
2. Finley, the cook, was an employee of the Waffle House and hence an intended victim.
3. Lemming acted in an excited, violent manner, jumping over the counter, grabbing Sutton, the waitress, and making verbal threats toward her.
4. Lemming was brandishing a knife. Although the knife was tiny, it was apparently adequate to place the waitress in reasonable apprehension of immediately receiving a violent injury. We have previously ruled that "the presence of a knife would normally place a victim in [such] apprehension."17 Finley was within a broomstick's length of Lemming and his tiny knife, and was closing the distance fast in an attempt to rescue Sutton.
5. Finley's co-worker, Sutton, was terrified and thought that she was going to die.
6. Although the evidence is in conflict, there was some testimony from which the jury could have concluded that Lemming "jabbed" the tiny knife at Finley as well as at Sutton, as illustrated by the following colloquy between the prosecutor and Finley.
Q. [W]hat, if any, movement of the knife did you observe?
A. As I said before, when I went to pull her behind, he jabbed and stuck me in the finger.
Q. But is jabbed your word not mine?
A. Yes.
Q. When the jabbing occurred, were both you and Elizabeth [Sutton] within range of the jabbing?
A. Yeah.
The fact that Lemming jabbed the tiny knife at Finley as well as at Sutton is important because the state of mind of one victim is evidence of the state of mind of another only when the weapon is pointed at all of the victims.18 Also, it defies belief that a human being could see a tiny knife being jabbed at close range in his direction and fail to perceive the distinct possibility that it might cut him.
7. The tiny knife had its tiny blade exposed and ready for business, rather than being folded as most key chain knives can be. The evidence that the blade was exposed in a threatening manner was twofold: its appearance was enough to frighten Sutton and it succeeded in cutting Finley.
8. Although the knife was not recovered and not entered into evidence, it was described by this victim, Finley, as "a little pocket paring knife ... [o]ne of those little key chain knives that had been filed down." Although it would have been a fair inference that "filed down" meant shortened to an even more tiny size, the jury might also have inferred that "filed down" meant sharpened. What inference the jury actually did draw, if any, is speculative. But on appeal of a criminal conviction, all evidence is viewed favorably to the verdict.19
9. Finley was actually cut by Lemming's knife. The wound may have occurred in the general melee while Lemming was trying to cut Sutton. But the evidence also supports an inference that Lemming deliberately jabbed the knife at Finley (see no. 6, above).
In contradiction to the circumstantial evidence listed above, there was direct evidence that Finley had no perception of a threat from the knife.20 The most telling evidence on this point is contained in the following exchange between the prosecutor and the victim Finley:
If we were weighing the evidence, we might find that this positive evidence that Finley did not perceive the possibility that he would be injured outweighed the circumstantial evidence that he did. But on appeal we do not weigh evidence or determine witness credibility; we only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.21 We view the evidence in the light most favorable to the verdict.22 "As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld."23 The nine pieces of circumstantial evidence listed above, when viewed in the light most favorable to the verdict, require us to affirm the conviction.
In addition, the evidence supports the finding that...
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