Brinkworth v. State

474 S.E.2d 9, 222 Ga. App. 288, 96 Fulton County D. Rep. 2584, 1996 Ga. App. LEXIS 641

• Court: Court of Appeals of Georgia
• Decided: June 18, 1996
• Docket: A96A0165
• Status: Published

Opinions

McMurray, Presiding Judge.

Defendant Brinkworth appeals his conviction of the offense of simple battery. Held:

1. The State’s evidence as to venue was that the crime occurred at “Dugan’s Restaurant on Memorial Drive,” and when asked whether that establishment was located in DeKalb County, the victim answered: “I guess it would be.” Since there is no conflicting evidence, this slight proof of venue is sufficient to authorize a jury to conclude that this element of the State’s case was proven beyond a reasonable doubt. Casey v. State, 133 Ga. App. 161 (1), 162 (210 SE2d 375). Since the State’s evidence shows that defendant struck the victim’s chin with his hand in an unprovoked attack, the jury was authorized to conclude that defendant was guilty beyond a reasonable doubt of simple battery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. The trial court refused to instruct the jury using defendant’s requested charge that “physical contact is required to prove a simple battery.” Instead, the trial court used a charge requested by the State which used the language of OCGA § 16-5-23 (a), “A person commits the offense of simple battery when he either: (1) [ijntentionally makes physical contact of an insulting or provoking nature . . .; or (2) [ijntentionally causes physical harm to another.”

During their deliberations the jury returned to the courtroom with a question for the trial court. “May we have clarification of simple battery? Does this, in this charge, necessarily include bodily contact? Could it be just verbal in this charge?” In response, the trial court repeated its earlier charge on simple battery including the quoted language taken from OCGA § 16-5-23 (a). After the jury resumed deliberations, defendant requested that his earlier refused charge be given to the jury since it spoke directly to the issue raised by the jury’s question. This request was denied, and shortly thereafter court was recessed for the night and the jury sent home.

The following morning defendant renewed his request that the jury be given his refused charge that “physical contact is required to prove a simple battery.” Although the trial court initially agreed to do so, after argument from the prosecuting attorney and establishing on the record that the jury had no further questions following the earlier recharge, defendant’s motion was denied.

Defendant now enumerates as error the refusal to give his refused instruction in the recharge of the jury, arguing only the duty of the trial court to charge fully on the elements of the crime which was the subject of the recharge. There is no contention that the charge used by the trial court was incorrect, or that there was any detrimental reliance on the trial court’s expression of intent to give the refused charge. The most that can be drawn from defendant’s argument is a contention that the instruction used by the trial court was incomplete. But we reject this argument since the instruction used by the trial court clearly identifies “physical contact” as an element of the crime of simple battery. The trial court was not obligated to instruct the jury in the exact language requested; it was sufficient that the same principle of law was fairly covered in the instructions actually given the jury. Meeks v. State, 216 Ga. App. 630, 631 (3), 632 (455 SE2d 350).

Judgment affirmed.

Birdsong, P. J., Andrews, Johnson, Blackburn and Smith, JJ, concur. Beasley, C. J., and Smith, J., concur specially. Pope, P. J., and Ruffin, J., dissent.