Duffey v. State

498 S.E.2d 816, 232 Ga. App. 693, 98 Fulton County D. Rep. 2243, 1998 Ga. App. LEXIS 789

Opinion

Blackburn, Judge.

Emmanuel Duffey was charged with aggravated assault and burglary. With respect to the aggravated assault charge, the jury was instructed on both aggravated assault and the lesser included offense of simple assault. The jury then found Duffey guilty of simple assault and burglary. In his sole enumeration of error, Duffey contends that there was an insufficient factual basis to instruct the jury on aggravated assault. However, as Duffey was not convicted of aggravated assault, but of the lesser offense of simple assault, any error in charging the jury on this crime was harmless. Marks v. State, 210 Ga. App. 281, 283-284 (5) (435 SE2d 703) (1993). Duffey does not assert as error that the trial court erred in charging on simple assault.

In his brief, Duffey attempts to enlarge his enumeration by arguing that it was inconsistent to convict on both simple assault and burglary. However, this issue was not raised in his enumerations of error and will not be addressed. Brown v. State, 191 Ga. App. 76, 79 (4) (381 SE2d 101) (1989) (“[a]n appellant cannot expand his enumerations of error by brief to include issues not raised in the enumerations of error”).

Decided May 27, 1998. Lloyd J. Matthews, for appellant. Tommy K. Floyd, District Attorney, Thomas R. McBerry, Mary Evans-Battle, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J, and Eldridge, J., concur.