Wells v. State

418 S.E.2d 438, 204 Ga. App. 91, 92 Fulton County D. Rep. 477, 1992 Ga. App. LEXIS 695

• Court: Court of Appeals of Georgia
• Decided: April 29, 1992
• Docket: A92A0388
• Status: Published

Opinions

McMurray, Presiding Judge.

Defendant was charged, via accusation, with simple assault. The evidence adduced at a bench trial revealed that Sampy Smith (“the victim”), acting as a Liberty County Magistrate, issued a warrant for defendant’s arrest on the charge of aggravated assault. Within 48 hours after defendant’s arrest, defendant confronted the victim at the entrance of a local variety store and stated: “ ‘Sampy, I want you to know Pm out of the_d_n jail. There’s plenty of them like you. I’ll kick your_d_n a__’ ” The victim responded, “ ‘Mr. Wells, stay right here and I’ll get the Hinesville Police to talk to you. ...” The victim then “spun around and went over to the pay phone.” Defendant left the scene. The victim then went to the police station and filed a complaint.

The trial court found defendant guilty of simple assault. This appeal followed. Held:

In his sole enumeration, defendant challenges the sufficiency of the evidence, arguing that his threat against the victim was justified because the victim first “said he’d ‘put [defendant’s] damn a_back in jail.’ ”

It is for the trier-of-fact to resolve conflicting testimony, not an appellate court. Seidel v. State, 197 Ga. App. 14, 15 (1) (397 SE2d 480). See McBride v. State, 199 Ga. App. 527, 528 (1) (405 SE2d 345). In the case sub judice, there is conflicting testimony regarding the circumstances of the encounter between defendant and the victim. The victim’s testimony does not reveal a threat by the victim against defendant. However, the victim’s testimony does authorize a finding that defendant’s threat against the victim placed the victim in reasonable apprehension of immediately receiving a violent injury. More specifically, the victim testified that he is “afraid of the man” and that defendant’s threat caused him “to be fearful of receiving a violent injury.”

Notwithstanding, the dissent would reverse defendant’s conviction on the general grounds, reasoning that defendant’s face-to-face confrontation with the victim and overt threat of violence against the victim does not constitute a “ ‘demonstration of violence,’ ... or [show] that [defendant] had a present ability to commit a violent act against Smith, the victim.” The dissent also reasons that defendant’s confrontation and threat against the victim does not constitute simple assault because the victim’s fear of defendant was not “immediate.” This logic ignores the evidentiary basis for the victim’s testimony that defendant’s threat caused him “to be fearful of receiving a violent injury.” In this vein, the victim testified that while acting in his capacity as a judicial officer less than 48 hours prior to the incident which forms the basis of the crime charged, he heard evidence establishing probable cause for defendant’s arrest for “aggravated assault against a young fellow.” More specifically, the victim testified that he issued a warrant for defendant’s arrest after the alleged victim of an aggravated assault “came [into court] with a knot on the back of his head and was on his way to the hospital.” This testimony, testimony that defendant was aware the victim was the judicial officer responsible for his arrest and evidence of defendant’s face-to-face encounter with the victim within 48 hours after defendant’s arrest and of defendant’s profane threat of physical violence against the victim is sufficient to sustain the trial court’s finding that defendant is guilty, beyond a reasonable doubt, of simple assault as defined by OCGA § 16-5-20 (a) (2). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). In fact, evidence that defendant’s threat caused the victim to retreat to a nearby pay telephone to summon police is sufficient to authorize a finding, beyond a reasonable doubt, that defendant is guilty of simple assault. Holbrook v. State, 168 Ga. App. 380, 381 (2) (308 SE2d 869).

Judgment affirmed.

Birdsong, P. J., Carley, P. J., Pope and Andrews, JJ., concur. Beasley and Johnson, JJ., concur specially. Sognier, C. J., and Cooper, J., dissent.