Shaw v. State

• Decision Date: 15 March 2017
• Docket Number: A16A2019
• Citation: 340 Ga.App. 749,798 S.E.2d 344
• Parties: SHAW v. The STATE.
• Court: Georgia Court of Appeals

340 Ga.App. 749

798 S.E.2d 344

SHAW

v.The STATE.

A16A2019

Court of Appeals of Georgia.

March 15, 2017

Leigh Ann Webster, Atlanta, Sydney Rene Strickland, for Appellant.

Jonathan Lang Adams, Matthew William Bridges, Mark Stephen Daniel, Hinesville, Richard G. Milam, for Appellee.

Branch, Judge.

Following a trial by jury, Kenneth Justen Shaw was convicted of aggravated battery and aggravated assault but acquitted of obstruction of an officer, charges that arose out of a fight at a Waffle House in Forsyth; he was sentenced to 10 years in prison followed by 10 years of probation. On appeal from the denial of his motion for new trial, Shaw contends that the evidence was insufficient to support the conviction of aggravated battery. He further contends that the trial court erred in instructing the jury and in excluding the testimony of an expert witness. Finally, he contends that he received ineffective assistance of counsel in several regards. For the reasons that follow, we reverse the denial of Shaw's motion for new trial.

When the appellate courts review the sufficiency of the evidence, they do not "re-weigh the evidence" or resolve conflicts in the testimony; instead they defer "to the jury's assessment of the weight and credibility of the evidence." Greeson v. State , 287 Ga. 764, 765, 700 S.E.2d 344 (2010). See also Glaze v. State , 317 Ga.App. 679, 681 (1), 732 S.E.2d 771 (2012). Appellate courts determine whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citations and emphasis omitted).¹

Construed in favor of the verdict, the evidence presented at trial shows that early on March 22, 2014, the 20-year-old victim and his girlfriend went to the Waffle House and sat in a booth near the restroom, with the victim taking the inside seat. Shaw entered the restaurant at about the same time, along with his wife and sister, and the three eventually went to the restroom together. The victim and his girlfriend heard yelling coming from the restroom, and when Shaw and the two women exited the restroom, Shaw asked the victim, "Did y'all hear us f______ screaming in the bathroom?" At this point, the victim concluded that "it was a bad situation." Shaw then started yelling and pushing his sister and indicating that he was trying to ask the victim and his girlfriend a question. The victim testified,

And then he kept getting closer and, like, standing over us, yelling at us, and cussing at us, like in a threatening manner.... He was like, could you hear me f______ screaming in the bathroom? I'm not going to ask you again, and saying stuff like that. And then that's when I pulled the knife out of my pocket and laid it on my lap.² And then I believe the sister saw the knife when I had it in my lap, and she started yelling, you don't know what he's been through, you don't know what the f___ he's been through for this country and for you.... Then he ended up—he sat down in front of us. [My girlfriend] grabbed the knife and closed it. And that's when he was smiling and laughing, saying, do you realize how many people I've killed with these hands, and what I can do to you with these hands right now?

A waitress arrived in the middle of this conversation and repeatedly requested that Shaw leave the restaurant, but Shaw remained for over a minute. The victim continued,

And then that's when he started saying, like yelling around the room, saying, he's disrespecting a f______ veteran.... And then that's when I said, you're not a veteran, because veterans don't come back and treat civilians like this.

At this point, Shaw "came over the table," grabbed the victim, picked him up, and began to hit him in the head. The waiter called the police. Shaw wrestled the victim to the ground and bit him on the face; the victim testified that Shaw was "grabbing my head and pulling with his teeth, trying to pull the skin off of my face." The biting caused a wound

that took four months to "close up" and left a scar that was visible at trial. Shaw also "stuck his thumb down in the corner of [the victim's] eye and tried to pop [the victim's] eye out." Shaw repeatedly punched the victim, causing the victim's head to hit against the floor, which in turn, caused the victim to lose consciousness several times. When the victim attempted to move or get up, Shaw would hit him again to the same effect. The victim suffered a concussion as a result. During the incident, the victim thought that Shaw was going to beat him to death.³ The State's witnesses testified that Shaw appeared to be drunk, angry, and aggressive from the beginning of the encounter.

Shaw testified in his own defense that he was 25 years old; had served in the United States Army since he was 19, including at the time of the incident; and was, at the time of trial, employed by a subcontractor to Georgia Power. He testified that he received a medical discharge from the army because he has Tourette's syndrome, obsessive-compulsive disorder

(OCD), a tic or twitch disorder, and post traumatic stress disorder (PTSD). Shaw testified that on the night before the incident, he, his wife, and his sister attended a social event from 6:30 p.m. to 2:30 a.m., and that he had several drinks over the course of the night. Sometime after leaving the event, Shaw and the two women then went to the Waffle House. Shaw testified that after coming out of the bathroom, he was introduced to the victim and his girlfriend and that he was calmly talking to the couple, apologizing for yelling in the bathroom, and explaining that he yelled because of his Tourette's syndrome. He testified that he put out his hand to introduce himself to the victim but that the victim would not shake hands. Shaw testified that as he was sitting down he saw the victim pull out a knife and that the victim brought the knife to within a foot of Shaw's neck. Shaw testified that he thought the victim intended to kill him or cut him, "or something" and that he feared for his life. He testified that as the tension escalated, the waitress come over and told him to go to his own booth and told the victim to put the knife away. Shaw testified that he further attempted to calm the victim down but that when the victim's girlfriend stood up, he became worried that the victim would attack Shaw's wife and sister. Accordingly, Shaw testified, he then hit the victim with the inside of his hand and his bracelet apparently cut the victim's cheek. Shaw testified that he and the victim came out of the booth and ended up on the floor where Shaw was able to disarm the victim of the knife. Shaw testified that he had a panic attack after the police arrived, which was corroborated by State witnesses. Shaw's wife testified in support that she saw the victim holding the knife above the table one to two feet away from Shaw. She also corroborated other aspects of Shaw's testimony. Shaw's sister did the same.

At the conclusion of the evidence, the court charged the jury on, among other things, the crimes of aggravated assault and the lesser-included offense of simple assault, as well as aggravated battery and the lesser-included offense of battery. But in charging battery, the court omitted the word "substantial" from the part of the definition of battery that requires a showing of "substantial" physical harm. The jury later asked the court to explain the difference between aggravated battery and "simple battery," the latter of which had not been charged, and the parties and the court agreed that a "recharge" was appropriate. The court then repeated the aggravated battery charge but did not repeat an instruction on battery; instead it charged the jury on simple battery, and it read that charge to the jury three times. Neither party objected to the court's action. The jury found Shaw guilty of the greater charges of aggravated assault and aggravated battery.

1. Shaw contends the evidence was insufficient to support the conviction of aggravated battery, based solely on the argument that the victim did not sustain a "seriously disfiguring injury."⁴ We disagree.

Shaw was indicted for aggravated battery in that he "did maliciously cause bodily harm to [the victim] by seriously disfiguring a member of his body, by biting into [the victim's] cheek and tearing

open the victim's flesh, causing scarring...." "Although OCGA § 16-5-24 does not define the term ‘serious[ly] disfiguring,’ this Court has ruled that the crime of aggravated battery does not require that the victim's disfigurement be permanent; however, the injury must be more severe than a mere visible or superficial wound." Levin v. State , 334 Ga.App. 71, 74 (1), 778 S.E.2d 238 (2015) (citation, punctuation, and emphasis omitted). The question of whether the defendant's actions caused "serious disfigurement" is for the jury. Underwood v. State , 283 Ga.App. 638, 641 (3), 642 S.E.2d 324 (2007). Here, the State showed that the victim suffered a concussion and sustained a wound on his face that took months to close up and that left a dime-sized scar. Accordingly, the jury was authorized to conclude that the victim suffered more than just a superficial wound. See, e.g., Jackson v. State , 316 Ga.App. 588, 591 (1), 730 S.E.2d 69 (2012) ("Whether the scars rose to the level of serious disfigurement was a factual issue for the jury to resolve.") (citations omitted); Levin , 334 Ga.App. at 74 (1), 778 S.E.2d 238 (jury authorized to find serious disfigurement where beating victim had a "bruised and swollen face, with one eye swollen shut, and a ‘goose egg’ on her face [,]" together with bruised and swollen hands and cut feet). Compare Williams v. State , 248 Ga.App. 316, 317-319 (1), 546 S.E.2d 74 (2001) (evidence insufficient to support aggravated battery conviction where victim sustained minor scratches and bruises and...