Merneigh v. State
| Decision Date | 13 March 2000 |
| Docket Number | No. A00A0145.,A00A0145. |
| Citation | 242 Ga. App. 735,531 S.E.2d 152 |
| Parties | MERNEIGH v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Jill L. Anderson, Douglasville, Lee W. Fitzpatrick, for appellant.
David McDade, District Attorney, James E. Barker, Assistant District Attorney, for appellee. JOHNSON, Chief Judge.
A jury found Raymond Merneigh guilty of theft by shoplifting and two counts of aggravated assault. Raising seven enumerations of error which we discuss in detail below, Merneigh appeals from the judgments of conviction entered upon the jury verdicts.
Viewed in the light most favorable to support the jury's verdict, the evidence presented at trial shows that Merneigh entered a Douglas County Winn-Dixie grocery store where he obtained cigarettes and film from store employees at counters where those items were located. Not long thereafter, one of these employees saw Merneigh in the check out line and noticed he had only beer in his shopping cart. The employee told a food manager that a man had cigarettes and had not brought them through the check out line. The employee approached Merneigh and asked about the cigarettes and film. Merneigh began yelling and left the store, activating the store's security system alarm as he left. The food manager saw the employee confront Merneigh about the cigarettes, saw Merneigh set off the store alarm as he left the store, and saw Merneigh pull film from his pocket and throw it at the customer service employee. At the time, this food manager was on the in-store telephone with the store manager, who was in his office within the store. The food manager told the store manager about the suspected shoplifter. As the two talked, the store manager heard the store's security alarm and ran downstairs. The employee and the food manager ran after Merneigh, shouting for him to stop. Merneigh told them to leave him alone or he would hurt them with something he had. As the store manager joined the chase, the employee stopped chasing Merneigh and returned to the store. On her way back to the store, she saw a car parked near the store exit, with meats, cigarettes and other items on the seat. It was later determined that this car belonged to one of Merneigh's relatives.
The food manager and the store manager caught up to Merneigh, and the store manager pushed him down. Merneigh had a knife in his hand while he ran, and after he had been pushed to the ground, he got up swinging the knife, lunging at both men. Using profane language, Merneigh told both men they had "messed up." When they backed away, Merneigh turned in the opposite direction and ran into a wooded area, where police officers found and arrested him a short time later. The police found two knives in the immediate area of Merneigh's arrest.
1. An assault is an attempt to commit a violent injury to the person of another or an act which places another in reasonable apprehension of immediately receiving a violent injury. OCGA § 16-5-20. Aggravated assault is an assault conducted with an object which, when used offensively against a person, is likely to result in serious bodily injury. OCGA § 16-5-21. Merneigh contends the trial court erred in failing to dismiss the aggravated assault counts of the indictment because they do not indicate which of the two means of committing an assault is relied on by the state. We disagree.
Count 2 of Merneigh's indictment reads: "for that the said accused ... did unlawfully make an assault upon the person of Michael Jason Frank, with a knife, the same being an object which when used offensively against a person is likely to result in serious bodily injury...." Count 3 uses the same language but names a different victim.
Merneigh's right to reasonable notice of the charges against him was satisfied by this language in the indictment.1 We have previously held that such language in an indictment sufficiently "charges an assault by way of either manner contained in the simple assault statute."2 Here, either manner of simple assault could have occurred, and the trial court charged the jury as to both manners contained in the simple assault statute. The trial court did not err in refusing to dismiss the aggravated assault counts of the indictment.
2. In its final jury instructions, the trial court charged the jury in these words:
Merneigh contends this charge violated his right to due process because he was never specifically charged in the indictment with attempting to commit a violent injury to the person of another, one of the manners in which a simple assault could have occurred.
Contrary to Merneigh's assertion, the trial court did not charge a separate method of committing aggravated assault3 but simply defined both methods in which an assault can be committed. There was no error.4
3. The trial court correctly denied Merneigh's request to charge on reckless conduct as a lesser included offense. An essential element of the offense of reckless conduct is criminal negligence.5 Here, there is no evidence that Merneigh was simply negligently handling the knife when he swung it at the food manager and store manager, using profane language and telling both victims they had "messed up" while lunging at them with the knife. Under these circumstances, Merneigh was either guilty of aggravated assault or was not guilty of any crime.6 Therefore, it was not error to refuse to give the requested charge on reckless conduct as a lesser included offense.7
4. At trial, Merneigh maintained the position that the attempt by Winn-Dixie employees to arrest him was unlawful; therefore, he was legally permitted to resist the attempt in the manner he did, and, as a result, he claims he could not be guilty of the aggravated assault charges. He requested jury instructions regarding an unlawful arrest by a private person and his right to use force to resist such an unlawful arrest. The trial court refused to give these jury charges as requested. Because there is no evidence to support a conclusion that the attempted arrest by Winn-Dixie employees was unlawful, the trial court properly refused to give the requested instructions.
"A private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge."8 Here, the customer service employee testified that Merneigh took cigarettes and film without paying for them. She confronted him about the merchandise, and he began screaming as he exited the store and activated the store's security alarm. The food manager knew of the customer service employee's suspicions, saw her confront Merneigh, heard the store's security alarm activate as Merneigh ran out the door, and saw Merneigh pull film from his pocket and throw it at the customer service employee. The food manager, who was on the in-house telephone with the store manager regarding the suspected shoplifter as the events transpired, told the store manager to come right down.
Under these circumstances, it is clear that the customer service employee and the food manager witnessed a shoplifting. It is equally clear that this offense was within the store manager's immediate knowledge because the food manager was telling him about the crime, describing it as it was taking place, because the store manager himself heard the store's security alarm and saw both the customer service employee and the food manager chasing Merneigh as Merneigh attempted to escape.
Citing isolated language in Williams v. State,9 Merneigh asserts that the store manager's actions were unlawful because he was not present when the offense occurred and did not actually see any offense occur. We do not agree.
Merneigh's argument ignores the fact that the crime did occur within the presence of the food manager, one of the two persons attempting the arrest, and it occurred within the immediate knowledge of the store manager. OCGA § 17-4-60 provides, in pertinent part, that a private citizen may arrest an offender "if the offense is committed in his presence or within his immediate knowledge."10 It does not distinguish between misdemeanor and felony offenses. The term "within his immediate knowledge" enables a private citizen to use any of his senses to obtain knowledge that an offense is being committed.11 A private citizen is not required to actually be present when a misdemeanor offense occurs.
In Williams, a panel of this court upheld a private citizen's lawful arrest, finding that the misdemeanor offense was clearly committed within the presence and within the immediate knowledge of the private citizen and that the arrest was effected immediately after the offense occurred.12 Language in the Williams decision cited by Merneigh, which in isolation appears to suggest that a citizen's arrest in a misdemeanor case may be made only when the offense was committed in his presence, is simply an application of OCGA § 17-4-60 to the particular facts in that case. This language is mere dicta. It was not only unnecessary to the holding in Williams because the private citizen was actually present when the offense occurred, but it directly conflicts with the clear language of the statute and cases decided both before and after Williams.13
It is not error to refuse a request to charge when there is no evidence to support it.14 Based on the evidence presented in this case, the...
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...juror's expression of belief in the credibility of a witness does not mandate that the juror be excused for cause. Merneigh v. State, 242 Ga.App. 735(6), 531 S.E.2d 152 (2000). Rather, for a juror in a criminal case to be excused for cause on the statutory ground that her ability to be fair......
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...assault by way of either manner contained in the simple assault statute." (Punctuation and footnote omitted.) Merneigh v. State, 242 Ga.App. 735, 736-737(1), 531 S.E.2d 152 (2000). Therefore, Moyer's argument that the indictment language was not sufficient to allege a method in which he com......
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