Spaulding v. State
| Decision Date | 02 February 1988 |
| Docket Number | Nos. 75760,75884,s. 75760 |
| Citation | 366 S.E.2d 174,185 Ga.App. 812 |
| Parties | SPAULDING v. The STATE (Two Cases). |
| Court | Georgia Court of Appeals |
Neal G. Gale, Randall M. Clark, for appellant.
Glenn Thomas, Jr., Dist. Atty., Richard H. Taylor, Asst. Dist. Atty., for appellee.
Defendant was charged via a six-count indictment with four counts of aggravated assault on a peace officer (Counts One-Four), aggravated assault (Count Five) and simple battery (Count Six). The jury found defendant guilty of Count One, not guilty of Counts Two and Three, guilty of the lesser offense of simple assault on Counts Four and Five and guilty of simple battery on Count Six.
1. Defendant challenges the sufficiency of the evidence on his conviction of aggravated assault of a peace officer. Construed so as to support the verdict, the evidence adduced at trial showed the following: At approximately midnight on August 30, 1986 defendant decided to pay an uninvited, unannounced visit to his former wife, Sara Doke. When Doke, hearing a ruckus at her back door, went to investigate, defendant broke through the door and struck Doke in the head. He then turned his attention to Doke's male visitor, straddling him on the floor, posing a lamp over his head and kicking him in the eye. At this point Doke's brother intervened and convinced defendant to go outside. Responding to calls by both Doke's visitor and brother, officers of the Brunswick Police Department also began to arrive. One of these officers (Officer Butts) approached defendant in an attempt to ascertain what was going on; however, defendant ignored the officer's request for information and continued walking towards his truck. Defendant and Officer Butts then struggled for defendant's truck keys, but defendant overpowered the officer. Observing Officer Butt's failed attempts to stop defendant, Officer Stewart jumped on the side of defendant's truck advised defendant he was a police officer and told him to stop his truck. Defendant advised Officer Stewart that he did not "give a goddamned who you are, get off of my truck," and started driving away with both officers hanging on to the sides of the truck. Apparently possessing a stronger self-preservation instinct, Officer Butts pushed himself free of the truck. Defendant continued to accelerate and Officer Stewart continued trying to get him to stop by both verbal requests and attempts to reach inside the truck and grab the keys or gear shift. Officer Stewart further testified that defendant then "started weaving the truck back and forth, trying to shake me off ...," and again ordered Officer Stewart off his truck. When Officer Stewart advised him that he would get off if defendant would stop the truck, defendant slammed on the brakes, throwing Officer Stewart into the door of the truck, and then immediately re-accelerated, driving with one hand and pushing the officer's face away from the truck with the other, ultimately pushing Officer Stewart off the truck. Following a high-speed chase involving both Brunswick and Glynn County law enforcement officials, defendant was apprehended and placed under arrest.
On appeal, defendant argues that the evidence showed neither an assault on Officer Stewart nor that he used his pickup truck in a manner likely to result in serious bodily injury. OCGA § 16-5-21. Although an automobile is not per se a deadly or offensive weapon, it may become one depending on the manner and means of the vehicle's use. Blalock v. State, 165 Ga.App. 269, 270, 299 S.E.2d 753 (1983). The question of whether an automobile, or other instrumentality, has been used so as to constitute a deadly or offensive weapon is properly for the jury's determination. Banks v. State, 169 Ga.App. 571, 572, 314 S.E.2d 235 (1984); Quarles v. State, 130 Ga.App. 756(2), 204 S.E.2d 467 (1974). The evidence here was sufficient to enable any rational trier of fact to find the defendant guilty of the offense of aggravated assault of a peace officer beyond a reasonable doubt. E.g., Savage v. State, 181 Ga.App. 129(1), 351 S.E.2d 519 (1986); McWilliams v. State, 172 Ga.App. 55(1), 322 S.E.2d 87 (1984).
2. Defendant, citing Smith v. State, 140 Ga.App. 395, 231 S.E.2d 143 (1976) also contends that the trial court erred in defining aggravated assault because the trial court failed to charge that the jury must first find that a simple assault was committed. Willis v. State, 167 Ga.App. 626, 307 S.E.2d 133 (1983); Craft v. State, 158 Ga.App. 745(2), 282 S.E.2d 203 (1981); Quong v. State, 157 Ga.App. 532(2), 278 S.E.2d 122 (1981). "Further there was no written request to charge [aggravated assault], and the charge as a whole was sufficient in instructing the jury as to the basic law." Craft, supra 158 Ga.App. at 746, 278 S.E.2d 457.
3. Defendant next contends that the trial court erred in allowing one of the officers involved in the vehicular chase of defendant to testify that he heard "the call [go] out that the city was involved in a high speed chase with a burglary suspect and they had an officer down." The transcript shows that when this testimony was offered at trial, defendant interposed a hearsay...
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