Dennis Touchstone v. State

• Court: Court of Appeals of Georgia
• Decided: December 19, 2012
• Docket: A12A1826
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

December 19, 2012

In the Court of Appeals of Georgia A12A1826. TOUCHSTONE v. THE STATE.

ADAMS, Judge.

Dennis Touchstone was convicted by a jury of burglary, aggravated assault on

a police officer, obstruction of a law enforcement officer and possession of a weapon

during the commission of a crime. He appeals following the denial of his motion for

new trial, contending that the trial court gave an inadequate response to a question

from the jury, that his trial counsel was ineffective because he did not object to the

trial court’s inadequate response, and that the evidence was insufficient to convict

him of aggravated assault and possession of a weapon during the commission of a crime.1 We agree with Touchstone that the evidence was insufficient, and that his

convictions of those crimes must be reversed.

1. The record and transcript show the following facts which are pertinent to the

resolution of Touchstone’s challenge to the sufficiency of the evidence: On April 13,

2010, Dvore Bray called police to report an apparent burglary in progress in his

neighborhood and gave police a description of the car the alleged perpetrators were

driving. A short time later, Sergeant Kevin T. Hughes of the Clayton County Police

Department saw a car matching the description Bray had provided and started

following the car. Another officer in the area, Tunisha Billups, heard a call go out that

Hughes was following the car that had been described in the burglary dispatch and

fell in behind Hughes.

Hughes initiated a stop of the vehicle and the vehicle pulled into a gas station.

The passenger, who was subsequently identified as Touchstone, jumped out of the car

and “immediately” began running away. Hughes detained the driver, and Billups

pursued Touchstone. Although Billups identified herself as a police officer and

commanded Touchstone to stop, he never paused and continued to run toward a

1 Touchstone does not challenge the sufficiency of the evidence to support his convictions for burglary and obstruction.

2 nearby wood-line. Billups continued to pursue Touchstone, but lost sight of him when

she slipped and fell and he turned left into the wood-line. Billups started to pull

herself up from the ground, but heard what sounded like a gunshot and immediately

dropped back to the ground because she was in an open area and could not see

Touchstone. Billups, fearing for her life, discontinued the chase.2

Other officers who had arrived at the scene of the stop had spread out around

the perimeter, and one of those officers, Robert Gardner, observed Touchstone come

out of the “creek wood-line area.” Gardner identified himself and instructed

Touchstone to get on the ground, whereupon Touchstone turned and ran back toward

the wood-line. Gardner pursued Touchstone, and Touchstone gave up when it became

apparent that Gardner had the advantage.

Gardner located a gun in the area, although it was not where Touchstone told

the officers he had thrown it. Gardner identified the gun as a Smith and Wesson

revolver, and a subsequent examination of the gun revealed it had been fired once.

The State also introduced evidence that Touchstone was out on bond on

another crime, and that he made statements that he intended to run from police.

2 Hughes, who was the supervising officer at the scene, also instructed Billups to call off the chase for officer safety reasons.

3 Touchstone also told police that he knew he was going to get caught and go to jail,

and that the gun fired accidentally when he was taking it out of his pants pocket to

dispose of it. But Officer Gardner testified that revolvers require a lot of “trigger pull”

to discharge, and that it would be difficult to accidentally fire the gun while pulling

it out of your pocket since you would be pulling the gun in the opposite direction of

the trigger pull.

Based on the foregoing, Touchstone was charged with aggravated assault and

possession of a firearm during the aggravated assault. In Georgia, “[a] person

commits the offense of aggravated assault when he or she assaults: (1) [w]ith intent

to murder, to rape, or to rob; (2) [w]ith a deadly weapon . . . .” OCGA § 16-5-21 (a).

Our law further provides that simple assault may be committed in one of two ways:

by an attempt to commit a violent injury to the person of another, OCGA § 16-5-20

(a) (1), or by commission of an act which places another in reasonable apprehension

of immediately receiving a violent injury. OCGA § 16-5-20 (a) (2).

Touchstone was indicted for “knowingly mak[ing] an assault upon the person

of Tunisha Billups, a peace officer engaged in the performance of her official duties,

with a deadly weapon, to wit: a .357 caliber revolver,” and thus on its face the

indictment was broad enough to authorize Touchstone’s conviction of aggravated

4 assault based on either OCGA § 16-5-20 (a) (1) or (a) (2), provided it was shown that

he committed the assault with a gun.3 Chase v. State, 277 Ga. 636, 638 (1) (592 SE2d

636) (2004). However, the trial court’s charge included an instruction only on attempt

to commit a violent injury;4 nowhere in its instructions did the court charge that

Touchstone could be found guilty of assault by placing Billups in reasonable

apprehension of receiving a violent injury. Thus, although the indictment and

governing law may have authorized the jury to convict Touchstone based on either

OCGA § 16-5-20 (a) (1) or OCGA § 16-5-20 (a) (2), we agree with Touchstone that,

pursuant to the trial court’s instructions, the jury was authorized to convict him of

aggravated assault only if it was established beyond a reasonable doubt that he

attempted to commit a violent injury to Billups.

Further, we agree with Touchstone that the circumstantial evidence, which

primarily consisted of Billups’ testimony that she lost sight of Touchstone, heard a

3 There is no question here that the aggravated assault, if any, was committed by the use of a handgun. 4 The court charged as follows: “A person commits the offense of aggravated assault when that person assaults another person with a deadly weapon. To constitute an assault actual injury to the alleged victim need not be shown. It is only necessary that the evidence show beyond a reasonable doubt that the defendant attempted to cause a violent injury to the alleged victim.” This was a correct statement of the law that would have authorized Touchstone’s conviction under OCGA § 16-5-20 (a) (1).

5 gunshot and fell to the ground because she feared for her life, was insufficient to

establish that the shot was fired with the intent to cause her actual physical injury.

Touchstone was out of the officer’s view when he fired the gun,5 no other officer or

witness saw him fire the gun, no witness saw where he aimed the gun when he fired

it, and no forensic or other evidence was introduced which suggested that he fired the

gun in Billups’ direction. In sum, there is no evidence here that Touchstone

intentionally fired the gun at Billups, intending to inflict a violent injury to her

person. Cf. Chase v. State, 277 Ga. at 638 (1) (evidence sufficient to show that

defendant knew victim was in small kitchen in the townhome and intentionally fired

gun at her through the upstairs flooring); Nyane v. State, 306 Ga. App. 591 (703 SE2d

53) (2010) (shots fired in the victim’s direction which hit him was sufficient to

support conviction for aggravated assault).

The State counters that because the jury obviously rejected Touchstone’s

defense that he discharged the gun by accident, his conviction for aggravated assault

was authorized. However, even if the jury’s verdict necessarily indicates that the jury

found incredible Touchstone’s statements to police that the gun discharged

accidentally, we do not believe that it follows, under the facts of this case, that “the

5 Obviously there is no dispute here that it was Touchstone who fired the gun.

6 jury was entitled to take his untruthfulness as substantive and affirmative evidence

of his guilt [of aggravated assault under OCGA § 16-5-20 (a) (1) as charged by the

trial court].” Ferguson v. State, 307 Ga. App. 232, 235 (1) (704 SE 2d 470) (2010)

(jury could consider perjured testimony as affirmative evidence of guilt). Even if the

jury concluded that the shot was fired deliberately, there is simply nothing to show

that Touchstone intended to commit a violent injury to Billups by firing the shot.

Further, there are clear indications that the jury may have been confused by

other parts of the charge and that the unsupportable verdict in this case may have

stemmed in part from that confusion. Although “aggravated assault with a deadly

weapon based on OCGA § 16-5-20 (a) (1) cannot be committed by criminal

negligence,” Dunagan v. State, 269 Ga. 590, 591 (2) (a) (502 SE2d 726) (1998), the

trial court’s charge contained several references to criminal negligence, and the jury

was informed several times that they could find Touchstone guilty of a “crime” if he

acted with intent or criminal negligence.6 And clearly the jury was confused about the

intent element of the crime, as demonstrated by questions they posed while they were

deliberating. The jury first asked the court to “define aggravated assault, layman’s

6 The trial court instructed the jury that “[c]riminal negligence is an act which demonstrates a wilful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured thereby.”

7 term of aggravated assault, example, if gun was fired intentionally but without intent

to harm officer is that aggravated assault on a peace officer, i.e., firing a warning

shot.” The trial court did not directly respond to the question, but instead referred the

jury back to its original final instructions, and provided the jurors with a copy of

those instructions. The jury continued to deliberate, at one point asking the court if

they could test the “trigger pull” on the revolver. The trial court denied this request,

and the jury subsequently indicated to the court that it remained deadlocked on the

aggravated assault charge, commenting that the “[m]ain issue appears to be the

following, is intent to harm required for aggravated assault. Can defendant be found

guilty on aggravated assault if discharge was unintentional.” The trial court once

again referred the jury back to the charge and reminded the jurors that they had been

given a copy of the charge. Thus, as Touchstone observes, “[e]ven though the trial

court charged [the jury that intent to injure was required for] aggravated assault, [it

appears] the jury was still unable to glean the intent requirement from the charge [as

a whole] because of the confusion caused by . . . the criminal negligence language

throughout the charge.”

8 The evidence here was insufficient to convict Touchstone of the offense of

aggravated assault under OCGA § 16-5-20 (a) (1), and his conviction for that offense

must be reversed.

Further, we agree with Touchstone that his conviction for possession of a

firearm in the commission of a felony based on the underlying felony of aggravated

assault must also be reversed. Flores v. State, 308 Ga. App. 368, 372 (4) (707 SE2d

578) (2011); Elrod v. State, 238 Ga. App. 80, 83-84 (2) (517 SE2d 805) (1999).

2. Because of our holding in Division 1, it is unnecessary for us to consider

Touchstone’s remaining enumerations in which he contends that the trial court gave

an inadequate response to the jury’s questions about intent and that his trial counsel

was ineffective because he did not request a more complete response and did not

object to the manner in which the trial court responded to the jury’s questions.

Judgment reversed. Barnes, P. J., and McFadden, J., concur.