Head v. State

504 S.E.2d 499, 233 Ga. App. 655, 98 Fulton County D. Rep. 2702, 1998 Ga. App. LEXIS 966
CourtCourt of Appeals of Georgia
DecidedJuly 7, 1998
DocketA98A0753
StatusPublished
Cited by15 cases

This text of 504 S.E.2d 499 (Head v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Head v. State, 504 S.E.2d 499, 233 Ga. App. 655, 98 Fulton County D. Rep. 2702, 1998 Ga. App. LEXIS 966 (Ga. Ct. App. 1998).

Opinions

Pope, Presiding Judge.

The indictment against Marcus Head alleged that Head committed aggravated assaults upon Randall Hawkins and Anthony Pierce, that he kidnapped Deidre Triplett, and that he committed burglary and criminal trespass by entering Hawkins and Pierce’s dwelling with the intent to commit aggravated assault and by damaging a door. The jury found Head guilty only of the two aggravated assaults (OCGA § 16-5-21) and the criminal trespass (OCGA § 16-7-21).

1. Head challenges the sufficiency of the evidence to support his aggravated assault convictions.

“On appeal of a guilty verdict, we do not redetermine the factual issues decided by the jury nor the weight of the evidence, but only its sufficiency under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). [Cit.]” Newton v. State, 226 Ga. App. 501, 502-503 (2) (486 SE2d 715) (1997).

The State’s evidence showed the following. Head and Triplett were romantically involved and were living together when Triplett ended their relationship. Because of her fear of him, she spent the first night of their separation at the home of their mutual friend, Hawkins, with whom Pierce was residing. The next morning Head went to Hawkins’ residence and attempted to gain entrance. When Hawkins refused to let him enter, Head retrieved a rifle from his truck. Hawkins instructed Pierce and Triplett to go to the back of the [656]*656house. Head began to force his way in by breaking down the front door. After Hawkins dove out of a bedroom window, Head confronted him outside, pointed the rifle at him, and cocked it. Hawkins threw his hands up.

When Pierce appeared in the front yard, Head “put the gun in his face.” Pierce testified that this scared him and caused him to retreat. Head then instructed Triplett to come out of the house. She did so, and Head put the rifle back in his truck at her request. Head saw Pierce moving toward the truck, grabbed the rifle, forced Triplett into his truck, and drove away. The rifle was not loaded when police recovered it.

At trial, Head denied he was armed when he stormed the house. He testified that he retrieved his weapon only because Hawkins and Pierce began to approach him outside and caused him to fear for his safety.. He denied pointing his rifle at either man.

OCGA § 16-5-21 (a) (2) provides that a person commits the offense of aggravated assault when he or she assaults “[w]ith a deadly weapon.” A person commits the offense of assault or simple assault under OCGA § 16-5-20 (a) 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.”

Head argues that evidence showing that he pointed a rifle at Hawkins and Pierce failed to establish they were thereby placed “in reasonable apprehension of immediately receiving a violent injury.” To the contrary, the 'victims’ testimony about their reactions to Head’s aggression authorized any rational trier of fact to find this element of the crime beyond a reasonable doubt. See generally Hurt v. State, 158 Ga. App. 722, 723 (282 SE2d 192) (1981).

2. Head enumerates as error the court’s jury charge on the offense of aggravated assault as it concerned the element of criminal intent. After jury deliberations had begun, this charge was repeated at the jury’s request.

The court generally instructed the jury that “intent is an essential element of any crime and must be proved by the state beyond a reasonable doubt.” In charging the jury on aggravated assault, the court initially explained that “[t]o constitute an assault, actual injury to the other person need not be shown. It is only necessary that the evidence show beyond a reasonable doubt an intention to commit injury on another person, coupled with the apparent ability to commit that injury, or that the other person was intentionally placed in reasonable apprehension of immediately receiving a violent injury from the defendant.” This initial charge included both OCGA § 16-5-20 (a) (1) regarding attempt to commit a violent injury to the person of another, and (a) (2), regarding committing an act which places [657]*657another in reasonable apprehension of immediately receiving a violent injury. The recharge did not repeat the instruction on (a) (1).

In both charges, the court also instructed the jury that “[i]f the pointing of a firearm places the victim in reasonable apprehension of receiving an immediate violent injury the crime of aggravated assault has occurred. The emphasis is generally upon what the victim was thinking. Was he reasonably apprehensive of bodily harm? Such an assault will be aggravated when made with a deadly weapon regardless of intent. It makes no difference whether the weapon was loaded or could, in fact, be fired.”

Although the latter part of the charge could have been better worded, a reasonable juror would only have understood it to mean that if the victim was reasonably apprehensive of receiving bodily injury, the crime of aggravated assault has been committed regardless of whether defendant intended to injure the victim or whether the gun was loaded or could be fired.

3. Head seeks resentencing because the State: (a) did not provide him with pretrial notice of the prior convictions considered in aggravation of punishment, as required by OCGA § 17-10-2 (a), and (b) misrepresented that he had served time in custody on an earlier probation revocation.

(a) When the State introduced copies of Head’s prior convictions at the pre-sentencing hearing, he did not impose any objection to the court’s consideration of these matters. Any issue concerning lack of notice has been waived. Armstrong v. State, 264 Ga. 237, 238-239 (2), (3) (442 SE2d 759) (1994) (failure to notify in advance of sentencing precludes evidence in aggravation of punishment, but failure to object waives any error); Hutson v. State, 216 Ga. App. 100, 101 (3) (453 SE2d 130) (1995).

(b) Head argues the State misrepresented that he had served time in custody on an earlier probation revocation and that the State’s arguments were not based on admissible evidence. As in Division 3 (a), this enumeration is without merit because Head waived the argument by failing to object at the sentencing hearing.

At the sentencing hearing, the convictions introduced by the State showed that Head pled guilty to the prior criminal charges, was treated as a first offender, and was placed on probation. The prosecuting attorney stated that at some point after being sentenced, Head had been later “resentenced and sent to serve a period of time” in a correctional institution. In response, Head’s attorney stated that at the time of the previous crimes, Head was youthful.

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Head v. State
504 S.E.2d 499 (Court of Appeals of Georgia, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
504 S.E.2d 499, 233 Ga. App. 655, 98 Fulton County D. Rep. 2702, 1998 Ga. App. LEXIS 966, Counsel Stack Legal Research, https://law.counselstack.com/opinion/head-v-state-gactapp-1998.