Patterson v. State

• Decision Date: 14 July 2016
• Docket Number: S15G1303
• Citation: 789 S.E.2d 175,299 Ga. 491
• Parties: Patterson v. The State
• Court: Georgia Supreme Court

299 Ga. 491

789 S.E.2d 175

Patterson

v.The State

S15G1303

Supreme Court of Georgia.

Decided: July 14, 2016

George Brandon Sparks, Michael Robert McCarthy, Office of the Public Defender Conasauga Judicial Circuit, P.O. Box 548, 214 W.King Street, Dalton, Georgia 30722, for Appellant.

Susan Laurie Franklin, A.D.A., Herbert McIntosh Poston, Jr., District Attorney, Benjamin Bruce Kenemer, A.D.A., Conasauga Judicial Circuit District Attorney's Office, P.O. Box 1086, Dalton, Georgia 30722, for Appellee.

HINES

, Presiding Justice.

This Court granted certiorari to the Court of Appeals in Patterson v. State , 332 Ga.App. 221, 770 S.E.2d 62 (2015)

, posing two questions: first, whether that Court erred in concluding that the crime of simple assault as set forth in OCGA § 16–5–20 (a) (2), does not require that the defendant have the specific intent to cause the alleged victim of the assault to suffer injury or the apprehension of injury, and second, if the Court of Appeals did so err, whether it further erred in concluding that the trial court properly refused to instruct the jury on the crimes of reckless conduct and reckless driving as lesser included offenses of aggravated assault. For the reasons that follow, we affirm the judgment of the Court of Appeals.

Ricky Patterson lived in a mobile home with his girlfriend, Wanda Bartley. While her adult son, Nathaniel Silvers, was present, Patterson and Bartley argued, and Bartley and Silvers urged Patterson to leave the home. When Patterson, Bartley, and Silvers were outside the home, Patterson went to his vehicle, put it into gear, revved the engine, and rapidly drove directly toward the end of the home, near Silvers, who became pinned against the side of the home by the vehicle; Silvers suffered internal injuries. Further facts can be found in the opinion of the Court of Appeals. Patterson , supra.

The issues before this Court on certiorari involve Patterson's conviction on Count 4 of the indictment, in which he was charged with “aggravated assault with an object,” as that crime is set forth in present OCGA § 16–5–21 (b) (2)

.¹ The indictment specifically alleged that Patterson

did commit an act which placed another person, to wit: Nathaniel Lane Silvers, in reasonable apprehension of immediately receiving a violent injury, said assault having been committed with an object which when used offensively against a person, is likely to and actually does result in serious bodily injury, by driving a motor vehicle in the direction of Nathaniel Silvers, striking Mr. Silvers with said vehicle, and pinning him up against a mobile home with said vehicle.

As this Court has noted,

Aggravated assault has two elements: (1) commission of a simple assault as defined by OCGA § 16–5–20

[a]² ; and (2) the presence of one of three statutory aggravators. See OCGA § 16–5–21 [ (b) ]. The statutory aggravators are: (1) intent to rape, rob, or murder; (2) use of a deadly weapon or an offensive weapon likely to or actually resulting in serious bodily injury;³ and (3) shooting towards people from a vehicle without justification. See OCGA § 16–5–21 [ (b) ](1)-(3).

Guyse v. State , 286 Ga. 574, 576, 690 S.E.2d 406 (2010)

. See also Brinson v. State , 272 Ga. 345, 347, 529 S.E.2d 129 (2000) ( “[C]entral to the offense of aggravated assault is that an assault as defined in OCGA § 16–5–20 be committed on the victim.”) As such, Count 4 of the indictment charged Patterson with a simple assault under OCGA § 16–5–20 (a) (2), that was aggravated by the use of an object—Patterson's vehicle—that when used offensively against Silvers, was likely to, and actually did, result in serious bodily injury.

Patterson contends that as to Count 4, he was entitled to jury instructions on the lesser included crimes of reckless conduct, as set forth in OCGA § 16–5–60 (b)

,⁴ and reckless driving, as set forth in

OCGA § 40–6–390 (a)

.⁵ The Court of Appeals correctly recognized that, as to both requests, a crucial issue is the culpable mental state required for the crime charged and the claimed lesser included offenses. See OCGA § 16–1–6.⁶ See also Edwards v. State , 264 Ga. 131, 132–133, 442 S.E.2d 444 (1994)

. And, the Court of Appeals stated that, as charged in Count 4, there was no specific intent requirement for the crime of simple assault.

The Court of Appeals was correct in so stating. This Court has on multiple occasions noted that the crime of simple assault as set forth in OCGA § 16–5–20 (a) (2)

, “does not require proof of specific intent. The State need only prove that the defendant possessed a ‘general intent to injure’ with the weapon. [Cit.]” Guyse , supra at 577 (2), 690 S.E.2d 406. See also Turner v. State , 281 Ga. 487, 489 (1) (b), 640 S.E.2d 25 (2007) (“[T]he State is not required to prove specific intent; the issue is whether defendant possessed a general intent to injure. [Cit.]”); Sto

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State , 272 Ga. 608, 611–612, 533 S.E.2d 379 (2000) (“There is an intent of the accused that must be shown, but it is only the criminal intent to commit the acts which caused the victim to be reasonably apprehensive of receiving a violent injury, not any underlying intent of the accused in assaulting the victim. [Cit.]”). Accord Jackson v. State , 276 Ga. 408, 412 (2) fn. 5, 577 S.E.2d 570) (2003) (overruled on other grounds, State v. Springer , 297 Ga. 376, 774 S.E.2d 106 (2015) ); Dunagan v. State , 269 Ga. 590, 594, 502 S.E.2d 726 (1998) ; Adsitt v. State , 248 Ga. 237, 240, 282 S.E.2d 305 (1981). And, Patterson's general intent to injure was shown by the evidence of his offensive use of the vehicle. See Johnson v. State , 289 Ga. 650, 651–652, 715 S.E.2d 99 (2011).

Nor have our repeated statements regarding general intent under OCGA § 16–5–20 (a) (2)

been made by happenstance. Rather, when squarely faced with a claim that a specific intent to cause apprehension is required when the defendant is alleged to have committed aggravated assault based on the victim's reasonable apprehension of harm under OCGA § 16–5–20 (a) (2), this Court has squarely stated that “[a]ll that is required is that the assailant intend to commit the act which in fact places another in reasonable apprehension of injury, not a specific intent to cause such apprehension. [Cit.]” Smith v. State , 280 Ga. 490, 492, 629 S.E.2d 816 (2006)

. And, this conclusion regarding the requirements of OCGA § 16–5–20 (a) (2) is demanded by the simple fact that no requirement of a specific intent is set forth in OCGA § 16–5–20 (a) (2). The statutory language is plain and unequivocal; a person who commits an act that places another in reasonable apprehension of receiving a violent injury has committed simple assault under OCGA § 16–5–20 (a) (2). See O'Neal v. State , 288 Ga. 219, 220–221, 702 S.E.2d 288 (2010) ; Glover v. State , 272 Ga. 639, 640, 533 S.E.2d 374 (2000). And, this Court has previously addressed the genesis of OCGA § 16–5–20 (a) (2), observing in Rhodes v. State , 257 Ga. 368, 369, 359 S.E.2d 670 (1987), that in enacting OCGA § 16–5–20 (a) (2) in 1968, the General Assembly effected “a substantial change ... in the definition of aggravated assault, as defined in the Criminal Code.” In addressing a claim that the defendant's act was the crime of pointing a gun or pistol at another, and not the crime of aggravated assault, Rhodes noted that before the adoption of the Criminal Code in 1968,

simple assault was defined as “an attempt to commit a violent injury on another.” Code Ann. § 26–1301 (now OCGA § 16–5–20 (a) (1)

). Aggravated assault then was defined as an assault with intent to murder, rape, or rob. Code Ann. § 26–1302(a)(1) (now OCGA § 16–5–21 [ (b) ](1)). There was no analog to OCGA §§ 16–5–20(a)(2) or 21 [ (b) ](2). Thus, pointing a firearm at another without legal justification and without intent to murder, rape, or rob was always a misdemeanor, whether or not the victim was apprehensive of being injured. The 1968 codification included Code Ann. §§ 26–1301(a)(2) and 26–1302(a)(2), now codified as OCGA §§ 16–5–20 (a)(2) and 21 [ (b) ](2), and established that the use of a deadly weapon in such manner as to place another in reasonable apprehension of immediate violent injury constitutes the felony of aggravated assault.

Id.

(Emphasis supplied.) Thus, Rhodes stands for the proposition that OCGA § 16–5–20 (a) (2) means simply what it says; a person commits simple assault by committing “an act which places another in reasonable apprehension of immediately receiving a violent injury.”⁷

Notwithstanding these precedents, Patterson urges that this Court should nonetheless interpret OCGA § 16–5–20 (a) (2)

to include a requirement that the defendant have the specific intent to cause the victim to be apprehensive of receiving a violent injury. But, despite this request, OCGA § 16–5–20 (a) (2) simply does not state that a defendant must intend to place the victim in reasonable apprehension of receiving a violent injury. And, at the time of the 1968 enactment of OCGA § 16–5–20 (a) (2), the General Assembly certainly knew how to phrase a statute to include a requirement that an act must be made with a specific intent, as can be seen in the requirement of simultaneously-enacted OCGA § 16–5–21 (b) (1) that an aggravated assault under that provision be done “[w]ith intent to murder, rape, or to rob,” and we therefore conclude that the General Assembly simply chose not to include a requirement of specific intent in OCGA § 16–5–20 (a) (2). Hayes v. State , 298 Ga. 98, 104 (2) (b), 779 S.E.2d 609 (2015) ; Fair v. State , 284 Ga. 165, 168 (2) (b), 664 S.E.2d 227 (2008). If language changing the required intent of the defendant is to be inserted into the text of OCGA § 16–5–20 (a) (2), it is for the General Assembly to do it, not this Court.⁸

Thus, the Court of Appeals was correct in determining that, as to Count 4,

the State was required to show that Patterson intended to drive his van in the direction of Silvers, that Silvers was placed in reasonable apprehension of

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