Myrick v. State

• Decision Date: 24 January 2014
• Docket Number: No. A13A1973.,A13A1973.
• Citation: 754 S.E.2d 395,325 Ga.App. 607
• Court: Georgia Court of Appeals
• Parties: MYRICK v. The STATE.

325 Ga.App. 607

754 S.E.2d 395

MYRICK

v.The STATE.

No. A13A1973.

Court of Appeals of Georgia.

Jan. 24, 2014.

Herbert Myrick, pro se.

Suzanne Zgraggen Brookshire, Asst. Dist. Atty., Rosemary M. Greene, Dist. Atty., for Appellee.

BARNES, Presiding Judge.

Herbert Wesley Myrick was indicted on two counts of aggravated assault, two counts of aggravated stalking, two counts of battery, and one count of violation of a limited driving permit. He entered a negotiated plea of guilty, and the trial court sentenced him to 20 years, with 3 years to serve in confinement and the balance on probation. Myrick filed a motion to modify his sentence, which the trial court denied. Proceeding pro se, Myrick now appeals the denial of his motion to modify his sentence.¹ For the reasons set forth below, we affirm.

1. Myrick first contends that the trial court should have applied the rule of lenity to reduce his sentence because “aggravated assault and aggravated stalking allow more than one sentence for the same offense and it is axiomatic that any ambiguities must be construed most favorably to the defendant.” Myrick's contention is without merit.

The rule of lenity applies where two or more statutes prohibit the same conduct while differing only with respect to their prescribed punishments. According to the rule, where any uncertainty develops as to which penal clause is applicable, the accused is entitled to have the lesser of the two penalties administered.

(Citations, punctuation, and footnote omitted.) White v. State, 319 Ga.App. 530, 531(2), 737 S.E.2d 324 (2013). See Daniels v. State, 320 Ga.App. 340, 344(3), 739 S.E.2d 773 (2013). “However, the rule does not apply when the statutory provisions are unambiguous.” (Citations omitted.) Lightning v. State, 297 Ga.App. 54, 60(6), 676 S.E.2d 780 (2009).

A person may be found guilty of aggravated assault if the State proves (1) an assault and (2) aggravation by use of “any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16–5–21(a)(2). See Lee v. State, 320 Ga.App. 573, 576(1)(a), 740 S.E.2d 307 (2013). “The State may prove an assault by showing that the defendant committed an act that placed the victim in reasonable apprehension of immediately receiving a violent injury.” (Citation and punctuation omitted.) Id., 740 S.E.2d 307. See OCGA § 16–5–20(a)(2). The indictment averred that Myrick committed aggravated assault by doing an act that placed the victim in reasonable apprehension of immediately receiving a violent injury, namely, by striking the victim with a motor vehicle, an object which, when used offensively against a person, is likely to result in serious bodily injury.²

In contrast, a person may be found guilty of aggravated stalking if the State proves that, in violation of a bond “prohibiting the behavior described in this subsection, [he] ... contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.” OCGA § 16–5–91(a). See Reed v. State, 309 Ga.App. 183, 184(1), 709 S.E.2d 847 (2011). In two separate counts, the indictment averred that Myrick committed aggravated stalking on two sequential dates by unlawfully contacting the victim at her residence in violation of a bond order, without the consent of the victim, and for the purpose of harassing and intimidating her.

Clearly, the aggravated assault and aggravated stalking statutes do not define the same offense and do not address the same criminal conduct, the former offense addressing an assault with an object likely to result in serious bodily injury, and the latter offense addressing the harassment and intimidation of a...