Petro v. State

• Decision Date: 01 May 2014
• Docket Number: No. A14A0039.,A14A0039.
• Court: Georgia Court of Appeals
• Parties: PETRO v. The STATE.

327 Ga.App. 254

758 S.E.2d 152

PETRO

v.The STATE.

No. A14A0039.

Court of Appeals of Georgia.

May 1, 2014.

Stuart Hunter Patray, Robert Lawrence Persse, for Appellant.

Brian Ashley Deal, Richard Ashley Mallard, for Appellee.

BARNES, Presiding Judge.

After a bench trial, the trial court found John Tony Petro guilty of two counts of aggravated assault, two counts of terroristic threats, two counts of possession of a knife during the commission of a crime, and one count of family violence battery based on an altercation he had with his girlfriend and her ex-boyfriend. The trial court subsequently denied his motion for new trial. Petro appeals, challenging the sufficiency of the evidence. He also contends that his convictions for terroristic threats should have merged into his convictions for aggravated assault. For the reasons discussed below, we affirm.

Following a bench trial, we view the evidence in the light most favorable to the trial court's verdict. Hinton v. State, 319 Ga.App. 673, 738 S.E.2d 120 (2013). So viewed, the evidence showed that Petro lived with his girlfriend and her three children at her residence in Effingham County. On the night in question, Petro and his girlfriend had been drinking and got in a heated argument over text messages that the girlfriend's ex-boyfriend had sent to her. The girlfriend's ex-boyfriend and her niece were at the residence during the argument.

During the argument, Petro's girlfriend left the residence at one point. She returned a little while later and went to lie down in the master bedroom. However, Petro followed her to the bedroom, cursed at her, and threw a drink on her. He then slapped his girlfriend in the face, forced her to the floor, and began choking her. After his girlfriend struggled free and told him to leave her alone, Petro left the bedroom.

Petro went to the kitchen and grabbed a butcher knife. The girlfriend's ex-boyfriend and her niece were sitting in the living room and saw Petro with the knife. When Petro began walking back to the bedroom, the ex-boyfriend attempted to intervene and suggested that Petro “take a walk with him.” Petro pointed the knife at the ex-boyfriend and told him “to shut up and if he didn't, he was next.” He also threatened the niece, warning her that “they'd find [her] floating up a river somewhere” if she tried to help.

Petro returned to the master bedroom, approached his girlfriend with the knife, threatened to kill her with it, and cut her in the face. He also threw his girlfriend against a dresser several times when she “wouldn't do what he wanted [her] to do.” Ultimately, the girlfriend was able to wrestle the knife from Petro and throw it behind the bed and nightstand. After the girlfriend took the knife away, Petro slapped her in the face and left the bedroom. The girlfriend later testified that she feared for her life during the attack.

The niece walked up to the bedroom door as Petro's girlfriend wrestled the knife away from him, and the niece saw Petro slap his girlfriend in the face before he walked out of the bedroom. After the attack ended, the girlfriend's ex-boyfriend ran from the residence and called the police.

When police officers arrived at the residence, the girlfriend initially denied that Petro had attacked her but later told the officers what had happened after they separated her from Petro. The officers found the knife where the girlfriend had thrown it behind the bed and nightstand, and the niece took photographs of the girlfriend's facial wound caused by the knife. While the officers were investigating the attack, Petro kept screaming that he loved his girlfriend and wanted to kiss her. The officers had the girlfriend's ex-boyfriend, who appeared to be “in fear for his life,” crouch down behind a police car when they arrested Petro.

After his arrest, Petro wrote to his girlfriend from jail. Petro promised her that “[t]his will never happen again” and suggested that if “you and me tell the judge that we were both fighting the other, it will go easier in court because ... if not, I'm going to state jail time.”

Petro was indicted on two counts of aggravated assault for assaulting his girlfriend and her ex-boyfriend with the butcher knife, an object, which when used offensively against another, is likely to result in serious bodily injury; two counts of terroristic threats for threatening to kill his girlfriend and her ex-boyfriend; two counts of possession of a knife during the commission of a crime; and one count of family violence battery. Petro elected to be tried on these charges in a bench trial.

At the bench trial, Petro's girlfriend and her niece testified to the events as summarized above. The State also introduced photographs of the facial injury that Petro's girlfriend sustained from the butcher knife, the knife used in the attack, and the letters that Petro sent to his girlfriend from jail. The girlfriend's ex-boyfriend did not testify. After the State rested, Petro chose not to testify and did not call any defense witnesses. Based on the evidence presented, the trial court found Petro guilty of all the charged offenses. Petro filed a motion for new trial, which the trial court denied, leading to this appeal.

1. Petro contends that there was insufficient evidence to convict him of two counts of aggravated assault, two counts of terroristic threats, and two counts of possession of a

knife during the commission of a crime.¹ When reviewing the sufficiency of the evidence,

we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Citations and punctuation omitted.) Sidner v. State, 304 Ga.App. 373, 374, 696 S.E.2d 398 (2010). See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Applying this standard, we conclude that the evidence presented at the bench trial was sufficient to sustain Petro's convictions.

(a) Aggravated Assault. “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.” (Citation and punctuation omitted.) Myrick v. State, 325 Ga.App. 607(1), 754 S.E.2d 395 (2014). See OCGA § 16–5–21(a)(2). The State may prove an assault by showing that the defendant “[a]ttempts to commit a violent injury to the person of another” or “[c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16–5–20(a). See Lambert v. State, 325 Ga.App. 603(1), 754 S.E.2d 392 (2014). Here, the indictment alleged that Petro committed aggravated assault with a butcher knife “by moving toward [his girlfriend and her ex-boyfriend] while brandishing said knife.” ²

Petro's girlfriend testified that he entered the bedroom with the butcher knife, placed it to her face, and cut her with it, causing her to fear for her life. The girlfriend's testimony was sufficient to sustain Petro's conviction for committing aggravated assault against her as alleged in the indictment. See OCGA § 24–4–8 (“The testimony of a single witness is generally sufficient to establish a fact.”); ³Lomax v. State, 319 Ga.App. 693, 694(1), 738 S.E.2d 152 (2013) (noting that “the testimony of the victim, standing alone, was sufficient to sustain the conviction” for aggravated assault). See also Hartley v. State, 299 Ga.App. 534, 534–535, 537(1), 683 S.E.2d 109 (2009) (affirming aggravated assault conviction where defendant brandished butcher knife in front of victim); Harris v. State, 233 Ga.App. 696, 697(1), 505 S.E.2d 239 (1998) (affirming aggravated assault conviction where defendant wounded victim in mouth with knife).

Although the girlfriend's ex-boyfriend did not testify, her niece testified that she saw Petro point the butcher knife at the ex-boyfriend when he tried to intervene. The niece also testified that the ex-boyfriend fled from the residence after being threatened with the knife and later crouched behind a police car “in fear for his life.” The niece's testimony was sufficient to sustain Petro's conviction for committing aggravated assault against the ex-boyfriend as alleged in the indictment. See McLeod v. State, 245 Ga.App. 668, 669(3), 538 S.E.2d 759 (2000) (testimony of eyewitness who saw victim fleeing from defendant with an ax raised over his head was sufficient to sustain aggravated assault conviction).

(b) Terroristic Threats. “A person commits the offense of a terroristic threat when he or she threatens to commit any crime of violence with the purpose of terrorizing another.” (Citation and punctuation omitted.) Maskivish v. State, 276 Ga.App. 701, 703(2), 624 S.E.2d 160 (2005). See OCGA § 16–11–37(a). A defendant cannot be convicted of terroristic threats based “on the uncorroborated testimony of the party to whom the threat is communicated.” OCGA § 16–11–37(a). “However, the quantum of corroboration need not in itself be sufficient to convict, but need only be that amount of independent evidence which tends to prove that the incident occurred as alleged.” (Citation, punctuation, and footnote omitted.) Hobby v. State, 298 Ga.App. 52, 54(1), 679 S.E.2d 72 (2009). Here, the indictment alleged that Petro made terroristic threats against his girlfriend and her ex-boyfriend by threatening to murder them.

The girlfriend testified that Petro threatened to kill her. Her testimony was corroborated by her niece's testimony regarding Petro's aggressive conduct leading up and surrounding the threat, as well as by the photographs of the facial injury sustained by the girlfriend. See Hobby, 298...