Tyson v. State

• Decision Date: 05 February 2021
• Docket Number: A20A1662
• Citation: 358 Ga.App. 329,855 S.E.2d 66
• Parties: TYSON v. The STATE
• Court: Georgia Court of Appeals

358 Ga.App. 329

855 S.E.2d 66

TYSON

v.The STATE

A20A1662

Court of Appeals of Georgia.

February 5, 2021

Bethany Anne Begnaud, for Appellant.

Louie Craig Fraser, Dublin, Leslie Loraine Ray, for Appellee.

Brown, Judge.

Following a jury trial, Eugene Donald Tyson was convicted of aggravated assault. Tyson now appeals from the denial of his motion for a new trial, arguing that the evidence was insufficient to sustain his conviction and that he was prejudiced by the State's failure to procure potentially exculpatory evidence. He further contends that the trial court erred in allowing the prosecutor to make improper and prejudicial statements during closing argument. For reasons explained more fully below, we find no error and affirm.

"On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury's guilty verdict." (Citation and punctuation omitted.) Maddox v. State , 346 Ga. App. 674, 675, 816 S.E.2d 796 (2018). So viewed, the record shows that a police officer responded to a 911 call about a potential assault at a local storage facility. When she arrived at the scene, the officer found the victim, who was approximately seven months pregnant, with visible injuries to her face and neck. The victim's injuries were significant enough that the officer called an ambulance and, after examining the victim at the scene, EMTs transported her to the hospital for treatment.

When interviewed by the officer, the victim identified Tyson as her assailant and explained that Tyson was both her boyfriend and the father of her unborn child. The victim also reported that she and Tyson began fighting when, after picking up the victim's prescribed pain medication from the pharmacy, she refused to share the pills with Tyson. As the couple was driving, they approached the storage facility, and Tyson pushed the victim out of his truck and threw the victim's belongings after her. Tyson then exited the truck, chased the victim with a baseball bat, and kicked her in the stomach.

Based on her interview of the victim and two eyewitnesses, the officer obtained a warrant for Tyson's arrest, and Tyson was subsequently indicted on two counts of aggravated assault.¹ At trial, in addition to the testimony of the responding officer, the State also presented the testimony of the victim and two eyewitnesses to the incident. During her testimony, the victim identified Tyson as her assailant, but stated that because of her drug use, she did not remember very much about the assault, which had occurred five years earlier.² The victim testified, however, that her memory of the incident would have been clear on the day the assault happened, and she indicated that she had no reason to doubt any of the facts she related to the responding officer. Moreover, the victim could recall that she was pregnant at the time and that her obstetrician had prescribed hydrocodone for the victim's back pain. The victim also remembered that she and Tyson were fighting, both physically and verbally, as Tyson drove them on the day in question. She described the physical fighting as "violent," and she remembered that she was seen at a hospital.

The first eyewitness worked as an office assistant at the storage facility. On the day in question, she noticed a truck driven by Tyson pull into the facility's parking lot going "kind of fast," and then brake abruptly. She watched as a visibly pregnant woman exited the truck, and it looked to her as though the woman had been pushed from the vehicle. Tyson and the woman appeared to be fighting and, after the woman fell to the ground, the man "was just kind of beating," "throwing punches at," and kicking her. When Tyson left the victim to get back in the truck, the woman also attempted to return to the vehicle. Before she could do so, however, Tyson drove out of the parking lot and then turned back into the lot, with the woman hanging onto the truck's door the entire time. After the truck re-entered the parking lot, Tyson exited the vehicle, resumed hitting the woman, and kicked her in the stomach. The eyewitness also saw Tyson hit the woman with a baseball bat. She speculated that the attack on the woman lasted for a few minutes and during that time, Tyson was "just beating the tar out of" the victim. According to the eyewitness, she remembered the incident well, because "it was the worst thing" she had ever seen, and during the attack she wondered whether the victim "[was] going to die."

During the early part of the assault, the first eyewitness called 911, and after the attack ended, she took the victim into her office to wait for the police. At that time, the eyewitness observed that the victim had injuries to her face and she also saw blood coming down the victim's legs that appeared to be coming from "between her legs."

The second eyewitness corroborated many of the facts testified to by the police officer and the first eyewitness. He stated that on the day in question, he was walking in front of the storage facility when the truck in which Tyson and the victim were riding drove past him. He saw that Tyson was "throwing blows" at the victim's head and he also saw one of the truck's doors open and the victim leave the truck. Once the victim was out of the truck, Tyson followed her and at one point kicked her in the stomach before returning to his truck and leaving the scene. The second eyewitness observed that the woman was visibly pregnant and was crying and holding her stomach after the incident was over.

Based on the foregoing evidence, the jury found Tyson guilty of committing aggravated assault with his hands and feet (Count One), but acquitted him of committing aggravated assault with a baseball bat (Count Two). The trial court entered judgment on the jury's verdict, and Tyson filed a timely motion for a new trial, asserting that the evidence was insufficient to support his conviction and that he was entitled to a new trial "[f]or such other grounds as are added due to amendment of this motion." A hearing on the motion for a new trial was scheduled for late January 2019, but was continued twice pending the appointment of appellate counsel for Tyson. After appellate counsel entered an appearance, the hearing was scheduled for July 30, but Tyson's attorney failed to appear. The court rescheduled the hearing for September 3, and on that day, appellate counsel filed a motion for continuance based on a delay in receiving the trial transcript. The court granted the motion and scheduled a status conference for November 6. Following that conference, the trial court entered an order requiring any amended motion for a new trial and brief in support thereof to be filed no later than November 27. The order also set the hearing on the new trial motion for December 4. On the day of the scheduled hearing, however, appellate counsel filed another motion for continuance. The trial court again granted the continuance, and the hearing was rescheduled for January 27, 2020.

On February 10, 2020, the trial court entered an order denying Tyson's motion for a new trial. In that order, the court noted that neither an amended motion nor brief was ever filed and that appellate counsel had failed to appear at the January 27 hearing. Accordingly, the trial court ruled on the only ground set forth in Tyson's new trial motion, that the evidence was insufficient to sustain his conviction.

Four days after the trial court entered its order, Tyson's attorney filed an amended motion for a new trial in which Tyson again asserted that the evidence was insufficient to sustain his conviction and further asserted that the "State failed to procure evidence that could have been potentially exculpatory." Approximately three weeks later, on March 9, Tyson filed his notice of appeal from the trial court's February 10 order, a motion for a reconsideration of that order, and a motion to extend the time for filing a notice of appeal.³ Tyson's appeal was docketed in this Court on April 6, and on June 24, Tyson filed a motion to remand, which we denied.

1. Tyson contends that the evidence was insufficient to sustain his conviction for aggravated assault (Count One). With respect to this claim of error,

the relevant question is 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. In determining that question, we consider the inferences that can be logically derived from the evidence presented at trial. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld.

(Citation and punctuation omitted.) Wade v. State , 305 Ga. App. 819, 821, 701 S.E.2d 214 (2010).

To convict Tyson of aggravated assault, the State was first required to prove that Tyson committed an assault – i.e., that he "[a]ttempt[ed] to commit a violent injury to [the victim] or ... commit[ted] an act which place[d] [the victim] in reasonable apprehension of immediately receiving a violent injury." OCGA § 16-5-20 (a). And to prove an aggravated assault, the State was required to show that Tyson committed the assault "[w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury." OCGA § 16-5-21 (a) (2). Here, Tyson was charged with committing aggravated assault against the victim by using his hands and feet to push, strike, and kick the victim in an attempt to inflict a violent injury on her. Tyson contends that the State failed to prove the aggravated nature of the assault, because it failed to show that his hands and feet constituted deadly weapons. We disagree.

Although hands and feet are not deadly weapons per se, they can become deadly weapons when used to...