Ramey v. State

• Decision Date: 17 March 1992
• Docket Number: No. A91A1958,A91A1958
• Citation: 203 Ga.App. 650,417 S.E.2d 699
• Parties: RAMEY v. The STATE.
• Court: Georgia Court of Appeals

Page 699

417 S.E.2d 699

203 Ga.App. 650

RAMEY v. The STATE.

No. A91A1958.

Court of Appeals of Georgia.

Decided March 17, 1992.

Reconsideration Denied April 1, 1992.

Mikele S. Carter, Blairsville, for appellant.

Roger G. Queen, Dist. Atty., J. Roger Thompson, Asst. Dist. Atty., for appellee.

BEASLEY, Judge.

This appeal is from the denial of appellant's motion for new trial after he was convicted of one count of simple battery, OCGA § 16-5-23(a)(2), and one count of battery, OCGA § 16-5-23.1(a), based on an incident which took place while he was on duty as a uniformed city police officer. The simple battery count charged that he "did ... intentionally cause physical harm to Lee Green by striking him...." The battery count charged that he "did ... intentionally cause visible bodily injury ¹ to Lee Green by burning him...."

The victim, who was described at trial as being "slow," "mentally unstable," and "a little delusioned," often sat outside the police station in McCaysville bragging about his purported exploits in the CIA, the FBI, and the Delta Force. On the night of September 5, 1990, he and a friend, Lee Hensley, joined the appellant and several other men who had gathered at the Toccoa River Park in McCaysville. The men began discussing their military training, which led to a discussion of the victim's being out of shape and overweight. According to Hensley, the appellant, who was on duty and in uniform at the time, made the victim get down on the ground and do pushups and situps for several minutes, following which the victim ended up in the river. Hensley testified that after the victim climbed out of the river, the men tied his hands behind his back with his shirt, and the appellant began beating him with a flashlight on the back, groin, and head, "telling him to take the pain, that he was a man, he was going to have to take pain." Hensley stated that he left the scene for approximately 30 minutes at this point. When he returned, the victim was lying face down on the ground, with his hands handcuffed behind him. Appellant was standing on his back. Hensley testified that he thereafter witnessed the appellant burn the victim's nipples with a lighted cigarette.

He also stated that while visiting the victim's house several days later, he "noticed that [the victim's] underwear that he wore that night ... had blood all over it." He described the victim's physical condition at this time: "[H]is chest and his back had blue places where he had took several blows with the flashlight, and his nipples on his chest were really bad. They was puffy and had pus in them, they was infected real bad. He was sick, he'd throw up two or three times a day, and he was really messed up."

At trial, the appellant admitted hitting the victim with a flashlight and burning him with a cigarette but asserted that he had done so at the express invitation and direction of the victim, who wished to demonstrate his ability to take pain. A GBI investigator testified that during a pre-trial interview the appellant had told him: "I have never really done anything like this before, and I don't know what happened that night. I guess I just sort of blew up, because of all his bragging."

1. Appellant's motion to strike the State brief's statement of facts for failure to comply with Rule 15 is denied. The statement substantially complies with those portions of the rule cited by appellant, in light of the issues on appeal. Moreover, failure to comply would not result in a striking of the statement but would leave appellee with the consequences warned of in Rule 15(b)(1). Or, if the problem is a failure to give specific citations or references to the record or transcript, the errant party may be required to file a corrected brief.

2. "On appeal a reviewing court may consider all the evidence in the case [cit.], and must view the evidence in the light most favorable to the verdict. [Cit.]" Grier v. State, 198 Ga.App. 840, 842(2), 403 S.E.2d 857 (1991). The evidence introduced at trial was amply sufficient to enable a rational trier of fact to find the appellant guilty of battery and simple battery beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Accord Danzis v. State, 198 Ga.App. 136(4), 400 S.E.2d 671 (1990).

3. The appellant contends that the trial court erroneously prevented him from using the victim's consent as a defense to the charges by refusing to give two of his requested jury instructions, one defining battery as "the unlawful touching or striking of the person of another ..., which is not legally consented to by the other," and the other defining the offense as an "[i]ntentional touching without excuse or justification."

Defendant was charged with intentionally causing visible bodily injury to Green by burning him, which would be a violation of OCGA § 16-5-23.1. It provides: "A person commits the offense of battery when he intentionally causes substantial physical harm or visible bodily harm to another." He was also charged with intentionally causing physical harm to Green. This would be a violation of OCGA § 16-5-23(a)(2).

He was not charged with any violation of that section's subsection (a)(1), which prohibits a person from "[i]ntentionally mak[ing] physical contact of an insulting or provoking nature with the person of another." Although consent or lack thereof would be relevant in a case involving this subsection, Ramey was not so charged. The court correctly ruled on the evidence and gave a complete and correct charge on the elements of both offenses, reciting the words of the pertinent portions of both statutes. It is the act and intent and results of the defendant's act which constitute the crimes as charged; the attitude of the victim is not called into issue by these elements.

4. After initially ruling that the appellant would not be permitted to question the Mayor of McCaysville regarding certain prior statements the victim had made, the trial court reversed the ruling and allowed defense counsel to recall the witness to "ask [her] anything that goes directly to a prior inconsistent statement by [the victim]." Counsel asked the court to give the jury certain unspecified "curative instructions" explaining why she had not previously been allowed to question the witness on this subject and that the court had made an erroneous ruling. The trial court disagreed that a curative instruction was necessary and suggested that counsel simply recall the witness when the court asked if she had any other witnesses.

The appellant enumerates this ruling as error, arguing that "it appeared to reflect an opinion by the judge as to matters proved or the guilt of the accused, in derogation of OCGA § 17-8-57." Being unable to agree that any such opinion was expressed by the court, we find this enumeration of error to be without merit. Accord Fletcher v. State, 197 Ga.App. 112, 114(3), 397 S.E.2d 605 (1990).

Judgment affirmed.

CARLEY, P.J., concurs.

JOHNSON, J., concurs specially.

JOHNSON, Judge, concurring specially.

I concur in Divisions 1, 2, and 4, and in the ruling in Division 3, but I believe further discussion is appropriate in that division.

The bulk of appellant's brief is directed to his contention that he was entitled to a charge on consent under the circumstances of this case.

The majority makes clear that the reason consent is not an issue in this case is because the appellant was charged under OCGA §§ 16-5-23(a)(2) and 16-5-23.1 rather than under OCGA § 16-5-23(a)(1), and I agree. However, the appellant has cited language from Georgia cases which on its face appears to support his position that to constitute a battery a bodily contact must be nonconsensual as well as harmful or offensive. I believe it is helpful to point out the distinctions which other courts have drawn between sexual batteries and severely injurious batteries involving the breach of public peace in order to make it clear that appellant's analysis cannot survive close scrutiny.

The appellant contends that the trial court erroneously prevented him from using the victim's consent as a defense to the charges by refusing to give two of his requested jury instructions, one defining battery as "the unlawful touching or striking of the person of another ..., which is not legally consented to by the other," and the other defining the offense as an "[i]ntentional touching without excuse or justification."

The offense of simple battery is defined by OCGA § 16-5-23(a), as follows: "A person commits the offense of simple battery when he either: (1) Intentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) intentionally causes physical harm to another." (The simple battery count against the appellant was predicated on subsection (2), and of course the evidence established without dispute that he had intentionally...