FOURTH DIVISION DOYLE, P. J., ANDREWS, P. J., and BOGGS, J.
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/
March 21, 2013
In the Court of Appeals of Georgia A12A2170. WATTS v. THE STATE.
BOGGS, Judge.
Taryn Watts appeals from her convictions for simple assault and battery. She
contends that the trial court erred by failing to merge her convictions; that the
“[e]vidence was insufficient to prove beyond a reasonable doubt that [she] did not act
in self-defense;” and that the trial court committed errors in its sentence. While we
affirm Watts’ convictions and conclude that the trial court was not required to merge
her convictions, we must vacate the trial court’s sentence with regard to restitution
and credit for time served and remand this case to the trial court for correction of
errors in the sentence.
When reviewing the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.
(Citations and footnote omitted; emphasis in original.) Jackson v. Virginia, 443 U.
S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). So viewed, the record shows
that the State’s charges against Watts resulted from a physical fight between Watts
and her ex-boyfriend’s new girlfriend, Murphy. According to Murphy, while two
women were arguing outside about whether Watts and another woman had reported
the two women to the Department of Family and Children’s Services, Watts came
“charging down the hill” and approached one of the women “like she’s about to jump
on her.” Murphy testified that she grabbed Watts from behind, and they “both kind
of wrestled around and rolled around on the ground for a minute, and I ended up on
top of her. . . .” Murphy tried to keep Watts “from jumping up or getting up,” while
Watts hit her repeatedly. Murphy admitted pulling off Watts’ wig during this fight.
2 Murphy explained that the fight ended when “[s]omebody broke us up.” She then
went to a friend’s nearby trailer to wash her face.
Murphy testified that when she went outside to ask for a ride home, she saw
Watts “come out from standing by a truck.” She explained that when a group of
people outside saw Murphy, “they’re all basically trying to [rev] it up again and
agg[sic] it on. And then [Watts] comes up to me and is like, ‘What? What you wanna
do? You want some more?’”1 Murphy explained that because Watts “hit me I don’t
know how many times” in the first fight and she “wasn’t about to let that happen
again,” she hit Watts first when Watts got close enough. She denied having any
weapon or rock in her hand when she hit Watts “two or three times.” She then saw
Watts
messing around with her pants, and I remember her bending down like maybe she had dropped something. And when she came back up, that’s when my forehead, it started bleeding and I couldn’t see. So I’m thinking . . . I didn’t feel anything. So I was thinking that maybe she hit me with something but I wasn’t sure really what happened.
1 Murphy denied yelling to Watts, “You and me, one-on-one,” when she came outside looking for a ride.
3 Murphy tried to keep Watts at arm’s length by holding onto Watt’s left shoulder with
her left arm because she “didn’t know if she had a rock or - - I didn’t know what she
had.” She also “kept trying to hit her and defend [her]self as best [she] could.” She
admitted reaching onto the ground looking for something with which to hit Watts, but
claimed she found nothing but gravel and dropped it because she could not “do
anything” with it. She denied hitting Watts with a rock. She described the fight as
“back and forth, back and forth. So, as many as I was throwing, it was coming back
at me.” Until the fight was broken up, Murphy did not realize she had been cut. She
admitted that she had consumed a lot of alcohol in the hours before the two fights.
Murphy was taken to the hospital where a doctor used a total of 118 external
sutures and 47 staples to close her wounds. The length of Murphy’s slash wounds
added together totaled 83 centimeters. A forensic pathologist testified that Murphy
had multiple slash wounds in the following areas: down the side of her head, through
her ear and onto her neck; two-inches long on the back of her head; two-inches long
on her left front shoulder; horizontal on her forehead over the right eye; on the front
of her left upper arm near the elbow fold; and three very long ones going diagonally
across her back. He opined that the head wounds occurred first and that the back
wounds happened last. With regard to the back wounds, which were similar in length
4 and parallel to one another, he opined that Murphy would have been stationary while
these “cluster” wounds were inflicted with repetitive movement “very rapidly.” If she
had been standing with her left arm forward while bending to the ground with her
right arm, she would have been “in a proper position to receive those wounds.”
The forensic pathologist also reviewed a photograph of Watts, and concluded
that one of the wounds on her face could have been caused by “an instrument with
something that has a linear shape to it, like a one-by-two or perhaps an edge of a brick
or something like that.” He testified that this injury could not have been caused by a
fist because it had a pattern to it, and agreed that it would be consistent with a piece
of concrete.
Watts did not testify at trial, but a police officer testified that she told him at
the hospital that she had been hit in the face with a rock while trying to break up a
fight. She had visible injuries on her face. In a later statement provided to police,
Watts stated that Murphy initiated both fights, and she explained again that she had
been hit in the face with a rock and therefore used a small razor2 to defend herself.
2 Watts stated that she worked as a cosmetologist and used the razors to trim eyebrows.
5 She also claimed that Murphy made statements instigating the second fight when she
came out of her friend’s house.
1. Watts contends that the trial court erred by failing to merge her battery and
simple assault convictions, both of which were lesser-included offenses of two of the
three crimes for which she was indicted.3 The record shows that the State indicted
Watts for aggravated assault because she assaulted Murphy “with a sharp object . .
. which when used offensively against a person is likely to result in serious bodily
injury.” The aggravated battery count against her alleged that she caused bodily harm
to Murphy “by seriously disfiguring her face, ear, head, neck, back, arm and chest.”
Free access — add to your briefcase to read the full text and ask questions with AI
FOURTH DIVISION DOYLE, P. J., ANDREWS, P. J., and BOGGS, J.
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/
March 21, 2013
In the Court of Appeals of Georgia A12A2170. WATTS v. THE STATE.
BOGGS, Judge.
Taryn Watts appeals from her convictions for simple assault and battery. She
contends that the trial court erred by failing to merge her convictions; that the
“[e]vidence was insufficient to prove beyond a reasonable doubt that [she] did not act
in self-defense;” and that the trial court committed errors in its sentence. While we
affirm Watts’ convictions and conclude that the trial court was not required to merge
her convictions, we must vacate the trial court’s sentence with regard to restitution
and credit for time served and remand this case to the trial court for correction of
errors in the sentence.
When reviewing the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.
(Citations and footnote omitted; emphasis in original.) Jackson v. Virginia, 443 U.
S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). So viewed, the record shows
that the State’s charges against Watts resulted from a physical fight between Watts
and her ex-boyfriend’s new girlfriend, Murphy. According to Murphy, while two
women were arguing outside about whether Watts and another woman had reported
the two women to the Department of Family and Children’s Services, Watts came
“charging down the hill” and approached one of the women “like she’s about to jump
on her.” Murphy testified that she grabbed Watts from behind, and they “both kind
of wrestled around and rolled around on the ground for a minute, and I ended up on
top of her. . . .” Murphy tried to keep Watts “from jumping up or getting up,” while
Watts hit her repeatedly. Murphy admitted pulling off Watts’ wig during this fight.
2 Murphy explained that the fight ended when “[s]omebody broke us up.” She then
went to a friend’s nearby trailer to wash her face.
Murphy testified that when she went outside to ask for a ride home, she saw
Watts “come out from standing by a truck.” She explained that when a group of
people outside saw Murphy, “they’re all basically trying to [rev] it up again and
agg[sic] it on. And then [Watts] comes up to me and is like, ‘What? What you wanna
do? You want some more?’”1 Murphy explained that because Watts “hit me I don’t
know how many times” in the first fight and she “wasn’t about to let that happen
again,” she hit Watts first when Watts got close enough. She denied having any
weapon or rock in her hand when she hit Watts “two or three times.” She then saw
Watts
messing around with her pants, and I remember her bending down like maybe she had dropped something. And when she came back up, that’s when my forehead, it started bleeding and I couldn’t see. So I’m thinking . . . I didn’t feel anything. So I was thinking that maybe she hit me with something but I wasn’t sure really what happened.
1 Murphy denied yelling to Watts, “You and me, one-on-one,” when she came outside looking for a ride.
3 Murphy tried to keep Watts at arm’s length by holding onto Watt’s left shoulder with
her left arm because she “didn’t know if she had a rock or - - I didn’t know what she
had.” She also “kept trying to hit her and defend [her]self as best [she] could.” She
admitted reaching onto the ground looking for something with which to hit Watts, but
claimed she found nothing but gravel and dropped it because she could not “do
anything” with it. She denied hitting Watts with a rock. She described the fight as
“back and forth, back and forth. So, as many as I was throwing, it was coming back
at me.” Until the fight was broken up, Murphy did not realize she had been cut. She
admitted that she had consumed a lot of alcohol in the hours before the two fights.
Murphy was taken to the hospital where a doctor used a total of 118 external
sutures and 47 staples to close her wounds. The length of Murphy’s slash wounds
added together totaled 83 centimeters. A forensic pathologist testified that Murphy
had multiple slash wounds in the following areas: down the side of her head, through
her ear and onto her neck; two-inches long on the back of her head; two-inches long
on her left front shoulder; horizontal on her forehead over the right eye; on the front
of her left upper arm near the elbow fold; and three very long ones going diagonally
across her back. He opined that the head wounds occurred first and that the back
wounds happened last. With regard to the back wounds, which were similar in length
4 and parallel to one another, he opined that Murphy would have been stationary while
these “cluster” wounds were inflicted with repetitive movement “very rapidly.” If she
had been standing with her left arm forward while bending to the ground with her
right arm, she would have been “in a proper position to receive those wounds.”
The forensic pathologist also reviewed a photograph of Watts, and concluded
that one of the wounds on her face could have been caused by “an instrument with
something that has a linear shape to it, like a one-by-two or perhaps an edge of a brick
or something like that.” He testified that this injury could not have been caused by a
fist because it had a pattern to it, and agreed that it would be consistent with a piece
of concrete.
Watts did not testify at trial, but a police officer testified that she told him at
the hospital that she had been hit in the face with a rock while trying to break up a
fight. She had visible injuries on her face. In a later statement provided to police,
Watts stated that Murphy initiated both fights, and she explained again that she had
been hit in the face with a rock and therefore used a small razor2 to defend herself.
2 Watts stated that she worked as a cosmetologist and used the razors to trim eyebrows.
5 She also claimed that Murphy made statements instigating the second fight when she
came out of her friend’s house.
1. Watts contends that the trial court erred by failing to merge her battery and
simple assault convictions, both of which were lesser-included offenses of two of the
three crimes for which she was indicted.3 The record shows that the State indicted
Watts for aggravated assault because she assaulted Murphy “with a sharp object . .
. which when used offensively against a person is likely to result in serious bodily
injury.” The aggravated battery count against her alleged that she caused bodily harm
to Murphy “by seriously disfiguring her face, ear, head, neck, back, arm and chest.”
Based upon the serious disfigurement allegation, Watts contends that this count
necessarily relates to her conduct in cutting Murphy. She asserts that the wounds were
inflicted “in quick succession” and should therefore be considered one offense.
The trial court charged the jury on simple assault as a lesser-included offense
of aggravated assault. OCGA § 16-5-20 (a) provides: “A person commits the offense
of simple assault when he or she either: (1) Attempts to commit a violent injury to the
person of another; or (2) Commits an act which places another in reasonable
3 The State also indicted Watts for attempted murder, but it subsequently sought and obtained an order of nolle prosequi on this count of the indictment.
6 apprehension of immediately receiving a violent injury.” The evidence here clearly
would support a conviction under subsection (1). Although she did not object to any
portion of the charge, Watts contends that subsection (2) cannot be used to support
the jury’s verdict, because Murphy testified that she did not know she had been cut
until after the fight ended.
But Murphy also testified that she was bleeding so much from her forehead
during the fight that she could not see and was trying to keep Watts at arm’s length
because she did not know if Watts was using a rock or something else to injure her.
“[P]roof that the victim has been placed in apprehension of immediately receiving a
violent injury need not necessarily be solely by reason of the victim’s testimony of
her mental state but may be inferred from the conduct of the victim such as when she
retreats to secure her safety.” (Citations and punctuation omitted.) Cuzzort v. State,
307 Ga. App. 52, 54 (1) (703 SE2d 713) (2010). Murphy’s testimony that she
attempted to keep Watts at arm’s length after her forehead began to bleed profusely
can therefore support an inference that she reasonably apprehended receiving another
immediate violent injury. While Murphy did not know she had been cut, she certainly
knew that she had been violently injured and took action to defend herself. A victim’s
defensive reaction can provide circumstantial evidence of a reasonable apprehension
7 of immediately receiving violent injury. Strange v. State, 244 Ga. App. 635, 636 (1)
(535 SE2d 315) (2000) . See also Carter v. State, 248 Ga. App. 139, 140 (1) (546
SE2d 5) (2001).
The trial court also charged the jury on battery as a lesser-included offense of
aggravated battery. OCGA § 16-5-23.1 (a) provides: “A person commits the offense
of battery when he or she intentionally causes substantial physical harm or visible
bodily harm to another.” OCGA § 16-5-23.1 (b) defines “visible bodily harm” as
“bodily harm capable of being perceived by a person other than the victim and may
include, but is not limited to, substantially blackened eyes, substantially swollen lips
or other facial or body parts, or substantial bruises to body parts.” Here, Watts caused
Murphy to have multiple, permanent scars on the different parts of her body alleged
in the indictment (face, ear, head, neck, back, arm, and chest).
Based upon these lesser-included offenses for which Watts was convicted, we
must determine whether the trial court erred by failing to merge them.
Under the doctrine of merger, a criminal defendant cannot be subject to the imposition of multiple punishment when the same conduct establishes the commission of more than one crime. See OCGA § 16-1-7 (a); Drinkard v. Walker, 281 Ga. 211, 212-213 (636 SE2d 530) (2006). The doctrine of merger does not apply, however, if the multiple convictions are not premised upon the same conduct. See Drinkard, 281
8 Ga. at 212-213, 216; McKenzie v. State, 302 Ga. App. 538, 539 (1) (a) (691 SE2d 352) (2010); Goss v. State, 289 Ga. App. 734, 738 (3) (658 SE2d 168) (2008).
Johnson v. State, 305 Ga. App. 838, 840 (2) (700 SE2d 726) (2010). Under the
“required evidence” test, “if each statute requires proof of an additional fact which
the other does not, an acquittal or conviction under either statute does not exempt the
defendant from prosecution and punishment under the other.” (Citations, punctuation
and footnote omitted.) Drinkard v. Walker, supra, 281 Ga. at 215.
In this case, Watts’ convictions can be sustained based upon different conduct:
the first cut to Murphy’s forehead caused reasonable apprehension of immediate
violent injury supporting her simple assault conviction, and Murphy’s remaining
injuries caused by the knife wounds that followed can support a finding of visible
bodily harm to support a battery conviction.4 See Goss, supra, 289 Ga. App. at 738
(1) (a) Additionally, each crime requires proof of a fact that the other does not. See
Benn v. State, 309 Ga. App. 373, 375 (2) (710 SE2d 587) (2011). The battery
4 Based upon the separate proof supporting Watts’ convictions under the required evidence test, the Supreme Court’s “quick succession” analysis in Culpepper v. State, 289 Ga. 736, 738-739 (2) (a) (715 SE2d 155) (2011), does not apply in this case.
9 conviction requires proof of a visible bodily harm, while the simple assault conviction
requires proof of reasonable apprehension of immediate violent injury.
For all of these reasons, the trial court did not err in denying Watts’ request to
merge these convictions.
2. We find no merit in Watts’ contention that the evidence was insufficient to
prove beyond a reasonable doubt that she acted in self-defense. “[T]he question of
self-defense is to be determined by the jury when there is conflicting evidence on the
issue.” (Citation omitted.) Campbell v. State, 258 Ga. App. 863, 866 (575 SE2d 748)
(2002). In this case, the evidence was sufficient to authorize a jury to conclude that
Watts used force greater than necessary for her defense. See Whitaker v. State, 287
Ga. App. 465, 466 (1) (652 SE2d 568) (2007); Fields v. State, 285 Ga. App. 345, 346
(1) (646 SE2d 326) (2007).
3. Watts contends that the trial court erred in ordering her to pay restitution in
the amount of $7,584.35 to the Crime Victim Compensation Program and $1,000 in
“token” restitution to the victim because the record contains no evidence to support
these awards.
The record shows that during the sentencing hearing, the State requested at the
end of its argument regarding sentence: “If Your Honor is considering in any way any
10 kind of probation, I would ask that crime victims compensation be reimbursed.
There’s restitution due to medical bills for Ms. Murphy in the amount of $7,584.35.”
The trial court then gave Watts an opportunity to speak before announcing its
sentence, which included “token restitution to the victim or replacement costs for
victim compensation of $1,000.” (Emphasis supplied.) Its written sentence stated
“restitution of $7,584.35; Victim: token rest. of $1,000.00 Crime Victim
Compensation Program.” No evidence was introduced during the sentencing hearing
to support the amount of Murphy’s medical bills5 or to show the amount of any
payments made to Watts by the Crime Victims Compensation Board. On appeal, the
State points to no evidence from the trial transcript supporting the trial court’s
restitution award.6
“Where a defendant appeals from an order of restitution, we determine whether
the evidence was sufficient, under the preponderance of the evidence standard, to
5 The record shows that the sentencing hearing was postponed to provide the victim with an opportunity to appear, which she declined. A written statement prepared by the victim was provided to the court, but it contained no information about any of her economic losses. 6 As this Court has previously reminded the State in a criminal case, “this Court will not cull the record on a party’s behalf.” (Citations, punctuation and footnote omitted.) Johnson v. State, 313 Ga. App. 895, 897 n. 8 (723 SE2d 100) (2012). In this case, the trial lasted six days and the transcript alone contains 2,000 pages.
11 support that order, including the amount of restitution. [Cit.]” Adams v. State, 291 Ga.
App. 681, 682 (662 SE2d 782) (2008), disapproved on other grounds by, Turner v.
State, 312 Ga. App. 799, 805 n.15 (720 SE2d 264) (2011) (written findings of fact
supporting restitution award no longer required for orders issued on or after July 1,
2005). In this case, the evidence was not sufficient to support the trial court’s award
of restitution as the State presented no evidence supporting its request for $7,584.35.7
See Turner, supra, 312 Ga. App. at 803-805 (2) (state failed to demonstrate amount
of restitution by a preponderance of the evidence); Radford v. State, 223 Ga. App.
312, 313 (2) (477 SE2d 428) (1996) (record “devoid of any evidence to support the
amount of restitution ordered by the trial court”). Additionally, the record does not
show that the trial court considered the factors outlined in OCGA § 17-14-10 (a)
before requiring restitution as a condition of probation. See Tobias v. State, Ga. App.
(5) (735 SE2d 113) (2012). We must therefore vacate the trial court’s restitution
7 We note that the trial court’s written order on restitution could be interpreted to require that separate amounts of restitution be paid directly to the victim and the Georgia Victim Compensation Board. This written order may conflict with the trial court’s oral statement in the hearing regarding the amount and to whom restitution would be made. While a trial court can order that restitution be paid to the Georgia Crime Victims Compensation Board, see OCGA § 17-14-2 (9) (B) and OCGA § 17- 15-13, “a restitution order shall require that all restitution to a victim . . . under the restitution order be made before any restitution to any other person or entity under that restitution order is made.” OCGA § 17-14-6 (d).
12 award and remand this case to the trial court to set an amount of restitution based
upon competent evidence and the factors outlined on OCGA § 17-14-10 (a). See
Lomax v. State, 200 Ga. App. 233, 235 (407 SE2d 462) (1991); Slater v. State, 209
Ga. App. 723, 726 (4) (434 SE2d 547) (1993) (no waiver resulted from defendant’s
failure to dispute amount of restitution ordered below).
4. Watts contends that the trial court erred in its sentence by specifying that her
credit for time served would not begin until December 5, 2008, the date her probation
for another offense expired. The record shows that at the time of Watts’s arrest in
Cherokee County on May 2, 2008, she was seven months short of completing a five-
year probation period under a first offender sentence in Cobb County.8 After her
arrest in Cherokee County, she was initially denied bond by the magistrate judge. In
a hearing held on July 16, 2008, the superior court judge orally granted bond to
Watts, stating, “[S]o I guess I’ll let you prepare the Order if you want to. If it does
you any good.”9 A written order memorializing this oral finding, however, was not
8 While the record shows that Cobb County put a “hold” on her following her arrest in Cherokee County, we cannot determine from the record before us the date this hold was placed, whether an arrest warrant was issued in Cobb County based upon her probation violation, or whether her probation was revoked. 9 This is an apparent reference to the following statement by Watts’ counsel: “We realize that even if she bonds out, that she would probably go to Cobb County
13 prepared and filed by Watts’ attorney until December 5, 2008, the same day that
Watts completed her probation period in Cobb County. In the motion for new trial
hearing, a Cherokee County Sheriff’s Office employee testified that Watts was
confined in the Cherokee County jail from May 2, 2008, the date of her arrest, until
December 13, 2008, when she bonded out.
Based upon the evidence in the record before us, we agree with Watts’
contention that the trial court erred to the extent it specified that she was to receive
“credit for time served since after [sic] December 5, 2008.” “The clear policy behind
OCGA §§ 17-10-9 through 17-10-12 is that time spent in incarceration under the
authority of this state or a political subdivision thereof should count toward the time
which a prisoner must serve.” (Citation, punctuation and footnote omitted.) Johnson
v. State, 248 Ga. App. 454, 455 (3) (546 SE2d 562) (2001).
[U]nder OCGA § 17-10-12, the amount of credit for time spent in confinement while awaiting trial is to be computed by the convict’s pre-sentence custodian, and the DOC [Department of Corrections] has the duty to award the credit for time served based upon that calculation. . . . [A] trial judge has no authority to interfere with the administrative duties of the correctional custodians and the DOC to determine and award credit for time served.”
and try to resolve her case there.”
14 (Citations omitted.) Cochran v. State, 315 Ga. App. 488, 489-490 (727 SE2d 125)
(2012). We must therefore vacate this portion of Watts’ sentence and remand with
direction to the trial court to strike the portion of its order specifying “credit for time
served since after December 5, 2008.” Id. (remedy for trial court’s gratuitous
reference to calculation of time served is remand with direction to strike improper
language from sentence).
5. Watts’ remaining enumeration of error relates to the trial court’s alleged
mechanical sentencing scheme in the context of credit for time served, not the
imposition of consecutive sentences on the two convictions before the trial court. We
therefore conclude that it is rendered moot by our holding in Division 4.
Judgment affirmed in part, vacated in part, and case remanded with direction.
Doyle, P. J., and Andrews, P. J., concur.