Redding v. State

733 S.E.2d 383, 318 Ga. App. 84, 2012 Fulton County D. Rep. 3287, 2012 Ga. App. LEXIS 853
CourtCourt of Appeals of Georgia
DecidedOctober 18, 2012
DocketA12A1450
StatusPublished
Cited by1 cases

This text of 733 S.E.2d 383 (Redding 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.

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Redding v. State, 733 S.E.2d 383, 318 Ga. App. 84, 2012 Fulton County D. Rep. 3287, 2012 Ga. App. LEXIS 853 (Ga. Ct. App. 2012).

Opinion

MILLER, Presiding Judge.

Following a jury trial, James Redding was convicted of two counts of simple battery (OCGA § 16-5-23 (a) (1)). Redding appeals, contending that the trial court erred (i) in denying his request to instruct the jury that lack of consent is an element of the simple battery offense and (ii) in excluding evidence that the victims’ actions were indicative of gang membership. We discern no error and affirm.

Viewed in the light most favorable to the jury’s verdict,1 the trial evidence showed that Redding owned and operated the Coco Loco restaurant bar located in DeKalb County. At approximately 2:00 a.m. on May 8, 2011, the victims, Francisco Fernandez and Emmanuel Tellez, visited Redding’s bar. At some point during the visit, Fernandez damaged two of the bar’s pool tables by drawing graffiti on them using a marker.

After the graffiti was discovered, a bouncer at the bar approached Fernandez and directed him to go into the bar’s back office, where Redding was waiting. Before entering the office, Fernandez attempted to discard the marker by removing it from his pants pocket and dropping it onto the floor. The bouncer nevertheless observed Fernandez’s attempt, picked up the marker, and escorted Fernandez into the office. Another bouncer at the bar confronted Tellez, and Tellez was also escorted into the office.

Upon Fernandez’s entry into the office, Redding confronted him about the graffiti damage on the pool tables. Fernandez initially denied causing the graffiti damage, and Redding and Fernandez engaged in a physical altercation. After being overpowered by Red-ding during the altercation, Fernandez surrendered and admitted that he had drawn the graffiti on the pool tables.

Fernandez testified that he offered to pay for the damage to the pool tables, but Redding continued to hold him down against the floor. The bouncer handed Redding the marker that Fernandez had used to draw on the pool tables. Redding used the marker to write the name of the bar across Fernandez’s forehead.

Redding then directed his attention toward Tellez. When Red-ding confronted Tellez about the graffiti on the pool tables, a physical altercation ensued between Redding and Tellez. After overpowering Tellez during the altercation, Redding took the marker and wrote the name of the bar across Tellez’s forehead.

[85]*85After being released from the office, Fernandez and Tellez left the bar and reported the incident to police. Redding later turned himself in to police custody and was charged with offenses related to the incident.

Redding testified in his defense at trial. Advancing a claim of “poetic justice” or “frontier justice,” Redding admitted that he had written on the foreheads of Fernandez and Tellez. Redding nevertheless claimed that his acts did not constitute the offense of battery since Fernandez and Tellez had agreed to allow him to write on their foreheads in exchange for his agreement not to call the police and not to charge for the damage to his pool tables. Fernandez and Tellez, however, refuted Redding’s claim and testified that they had not consented to Redding’s acts.

At the conclusion of the trial, the jury found Redding guilty of the simple battery offenses based upon his acts of writing on the victims’ foreheads.2

1. Redding contends that the trial court erred in refusing to give his requested jury charge that consent or the lack thereof was an element of simple battery. We discern no error.

The record shows that the trial court rejected Redding’s requested charge, which defined simple battery as physical contact of an insulting or provoking nature that “is not consented to by the other.” Instead, the trial court charged the jury on the definition of simple battery by quoting the statutory language of OCGA § 16-5-23 (a) (1): “A person commits the offense of simple battery when he intentionally makes physical contact of an insulting or provoking nature with the person of another.” Redding was permitted to give closing arguments that the contact was not insulting or provoking if the physical contact occurred with the victims’ consent.

Thereafter, during their deliberations, the jury submitted the following question: “[I]n the definition of simple battery, is the act itself being determined as insulting and provoking, or is the intent of the accused to be determined as insulting and provoking?” Redding requested that the trial court respond to the question by giving his charge defining the offense as involving lack of consent. The trial court, however, did not interpret the jury’s question as asking about the victims’ alleged consent. Rather, the trial court believed that the jury’s question pertained to Redding’s intent in committing the act. The trial court responded to the question by giving the jury a [86]*86recharge, which again defined simple battery in accordance with the language of the statute, informed that a defendant’s intent is an essential element of the crime, and stated that the jury would be required to determine whether Redding acted with the requisite intent to commit the act charged.

Redding now contends that the trial court erred in not giving his requested charge since the victims’ alleged consent was his sole defense. We disagree.

If an affirmative defense is raised by the evidence, including the defendants’ own statements, the trial court must present the affirmative defense to the jury as part of the case in its charge, even absent a request. The affirmative defense, however, need not be specifically charged if the case as a whole is fairly presented to the jury.

(Citation and punctuation omitted.) Booker v. State, 247 Ga. 74 (274 SE2d 334) (1981). It is true that consent or lack thereof is relevant in a case involving simple battery under OCGA § 16-5-23 (a) (1) to the extent that it pertains to the “insulting or provoking nature” element of the offense. See OCGA § 16-5-23 (a) (1); Ramey v. State, 203 Ga. App. 650, 652 (3) (417 SE2d 699) (1992); see also Wells v. State, 204 Ga. App. 90, 90-91 (418 SE2d 450) (1992) (affirming simple battery conviction based upon defendant’s act of touching the victim’s breast without her consent); Hardy v. State, 159 Ga. App. 854, 859-860 (285 SE2d 547) (1981) (affirming simple battery conviction as a lesser included offense of rape; ruling that rape necessarily includes physical contact of an insulting or provoking nature, and that a finding of consent to sexual intercourse would neutralize any insulting or provoking nature of such contact). Lack of consent is implicit in the definition and the application of the simple battery statute. Contrary to Redding’s claim, however, lack of consent is not a specified element of the simple battery offense. See OCGA § 16-5-23 (a) (1). Rather, the effect of a consent defense is simply to traverse the State’s proof regarding the “insulting or provoking nature” element. See Felker v. State, 252 Ga. 351, 363 (1) (c) (314 SE2d 621) (1984).

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Bluebook (online)
733 S.E.2d 383, 318 Ga. App. 84, 2012 Fulton County D. Rep. 3287, 2012 Ga. App. LEXIS 853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/redding-v-state-gactapp-2012.