Williams v. State, A92A2235

• Decision Date: 18 March 1993
• Docket Number: No. A92A2235,A92A2235
• Citation: 208 Ga.App. 12,430 S.E.2d 157
• Parties: WILLIAMS v. The STATE.
• Court: Georgia Court of Appeals

Page 157

430 S.E.2d 157

208 Ga.App. 12

WILLIAMS v. The STATE.

No. A92A2235.

Court of Appeals of Georgia.

March 18, 1993.

John G. Runyan, Thomasville, for appellant.

H. Lamar Cole, Dist. Atty., James E. Hardy, Asst. Dist. Atty., for appellee.

BIRDSONG, Presiding Judge.

Appellant John Henry Williams appeals his judgment of conviction of aggravated assault and possession of a firearm during commission of a crime, and the sentence. His sole enumeration of error is insufficiency of the evidence.

Appellant in essence asserts that because the victim and an eyewitness testified the victim held his ground while being shot at three or four times, and because the bullets missed the victim although fired at very close range, this testimony precludes the State from establishing appellant had an intent to injure the victim. Appellant also asserts that because of this evidence the State failed to establish the victim was in any apprehension of receiving injury. The evidence establishes that appellant fired three or four times at the victim and the bullets passed on either side of the victim and did not strike him; during this time, the victim held his ground and continued to argue with appellant. The victim testified that appellant pulled the gun out, pointed it at him, and shot at him; he was aware a bullet could inflict great bodily injury upon him; and at the time of the incident, the victim did not know what to think regarding whether appellant intentionally was trying to shoot him or just to shoot by him. The eyewitness, who continued to pump gas into his car during the incident, testified he was so scared that he left the soft drink he had purchased at the store when he departed; he believes appellant was trying to scare the victim who did not appear to be afraid of him. Held:

" 'The offense of aggravated assault has two essential elements: (1) that an assault, as defined in OCGA § 16-5-20 be committed on the victim; and (2) that it was aggravated by (a) an intention to murder, rape, or to rob, or (b) use of a deadly weapon.' [Cit.] OCGA § 16-5-20 states: (a) A person commits the offense of simple assault when he either: (1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury." (Emphasis supplied.) Knox v. State, 261 Ga. 272, 274(3), 404 S.E.2d 269.

Appellant was indicted, inter alia, on a count of aggravated assault with a deadly weapon, which averred that he did "wilfully make an assault upon the person [of the victim] with a certain handgun, same being a deadly weapon. Said act did take place ... in Thomasville, Georgia." (Emphasis supplied.)

Pretermitting whether the indictment could be construed to include an averment of a simple assault by an attempt to commit violent injury is that the averment adequately includes the averment of an assault upon the victim by the act of using a handgun.

The state of mind of either a perpetrator or a victim, including whether a victim has been placed under reasonable apprehension of injury or fear from an event, when in issue may be proved by indirect or circumstantial evidence. See generally OCGA § 24-1-1(4); see Conklin v. State, 254 Ga. 558, 564(1b), 331 S.E.2d 532. Likewise, intent can be so proven. Davis v. State, 53 Ga.App. 325, 326-327, 185 S.E. 400.

"Intent to injure is not an element of aggravated assault with a deadly weapon. In describing the distinction between the misdemeanor offense of pointing a firearm at another (OCGA § 16-11-102) and aggravated assault with a deadly weapon (OCGA § 16-5-21(a)(2)), the Georgia Supreme Court declared, 'if the pointing of the firearm placed the victim in reasonable apprehension of immediate violent injury, the felony of aggravated assault has occurred.' Rhodes v. State, 257 Ga. 368, 370(5) (359 SE2d 670) (1987). 'A simple assault is defined as ... an act which places another in reasonable apprehension of immediately receiving a violent injury. (OCGA § 16-5-20(a)(2).) An assault becomes aggravated when it is perpetrated ... by use of a deadly weapon. (OCGA § 16-5-21(a)(2).) Thus, "Aggravated assault with a deadly weapon is completed when a simple assault is committed by means of a deadly weapon," Scott v. State, 141 Ga.App. 848, 849 (234 SE2d 685) (1977)....' Tuggle v. State, 145 Ga.App. 603, 604(1) (244...