Aggravated Assault Charges in Georgia

In Georgia, there are two types of assault offenses that an accused person may be convicted of: simple assault and aggravated assault. Generally, simple assault is classified as a misdemeanor where aggravated assault is a felony offense. In this blog, we will solely discuss the latter.

According to O.C.G.A. § 16-5-21, a person commits the offense of aggravated assault when he/she commits an assault in one of the following aggravating circumstances:

  • The accused has the intent to murder, rape, or rob;
  • The accused commits the assault with a deadly weapon or object in which could result in serious bodily injury;
  • The accused commits the assault with an object, which is likely or is actually used for strangulation; OR
  • The accused commits the assault without legal justification by discharging a firearm from within a motor vehicle.

When the accused person commits an assault in one of the above-mentioned manners, the accused may be sentenced, if convicted, anywhere between 1-20 years in prison. However, the following offenses, as listed below, have different penalties due to the enhanced circumstances that surround the incident:

  • If the accused commits the aggravated assault upon a police officer while he/she is engaged in his/her official duties, the accused person may be sentenced to at least 10 years, but no more than 20 years in prison if such assault occurs from the discharge of a firearm. However, when the aggravated assault does not involve the discharge of a firearm, the accused person may be sentenced anywhere between 5-20 years in prison;
  • Any person who commits such an assault against the elderly may be sentenced to at least 3 years, but no more than 20 years in prison. The same punishment is true for any person who commits the aggravated assault in a public transit vehicle or station;
  • If the accused commits the aggravated assault upon public school personnel or on school property, he/she may be sentenced anywhere between 5-20 years in prison;
  • If such an assault is committed against a family member, as defined as “family violence” under Georgia law, the accused may be sentenced to at least 3 years, but no more than 20 years in prison; AND
  • Lastly, any person who commits such an assault with the intent to rape a child under the age of 14 years old, may be punished by a prison sentence of anywhere between 25-50 years.

CONTACT US

Due to the severity of the penalties for an aggravated assault conviction, it is of vital importance to hire an experienced criminal defense attorney who is knowledgeable of all possible options for an accused dealing with such serious allegations. At the Law Offices of W. Scott Smith, our lawyers are trained at defending such charges. Therefore, if you or a loved one has been arrested for aggravated assault, please call our office today at 404-581-0999 for a free consultation.

Aggravated Assault Strangulation Charges in Georgia

We deal with a number of cases involving a husband and wife or couple charged with aggravated assault after an argument.  Police know that in responding to a call involving domestic violence all they need to do is to ask the correct questions and a minor scuffle turns into a felony charge of aggravated assault by strangulation.  We commonly see officers responding to a domestic dispute ask the woman did he put his hands around your neck?  In some cases, out of anger, the response is “yes!”  Is it enough to put your hands around someone’s neck to justify a felony?  The answer is actually no.

 

Let’s start with the law in Georgia.

 

Georgia code Section 16-5-21 (a) (3) provides that “[a] person commits the offense of aggravated assault when he … assaults … [w]ith any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in strangulation[.]” Strangulation is defined as “impeding the normal breathing or circulation of blood of another person by applying pressure to the throat or neck of such person or by obstructing the nose and mouth of such person.” OCGA § 16-5-19.

 

As such in order to be convicted on the charge of aggravated assault – strangulation – the State must prove beyond a reasonable doubt the person identified as the victim had a disruption in normal breathing or circulation of blood to their brain.

 

In one of the seminal cases in Georgia (Sutton), the victim testified Sutton put his hands around her neck, that she could not breathe, and that the pressure caused her to pass out, as well as to clench her teeth so tightly that it broke one of the teeth on her denture plate. The jury was able to view the photographs of the victim’s neck which showed injury. Thus, there is some competent evidence to satisfy the strangulation element of the aggravated assault charge.

 

The officer testified that the victim reported that she had begun to lose consciousness, but had not actually lost consciousness as a result of Sutton’s acts. To the extent that there was conflicting testimony as to whether the victim actually passed out, that was for the jury to resolve.

The Judge will charge the jury as follows:

 

Ladies and Gentlemen of the jury, a person commits the offense of aggravated assault when that person assaults another person with any object, device, or instrument that, when used offensively against a person, is likely to or actually does result in strangulation.

 

“Strangulation” means impeding the normal breathing or circulation of blood of another person by applying pressure to the throat or neck of such person or by obstructing the nose and mouth of such person.

 

To constitute such an assault, actual injury to the alleged victim need not be shown. It is only necessary that the evidence show beyond a reasonable doubt that the defendant (attempted to cause a violent injury to the alleged victim) (intentionally committed an act that placed the alleged victim in reasonable fear of immediately receiving a violent injury).

The State must also prove as a material element of aggravated assault, as alleged in this case, that the assault was made with an object, device, or instrument that, when used offensively against a person, is likely to or actually does result in strangulation;

 

What if a victim of aggravated assault takes the stand and tells the jury (1) this didn’t happen – he never choked me, or (2) She doesn’t remember the incident.

 

It does not matter if the victim told the officer on the scene the defendant choked her.  When a statement in court at trial contradicts a previously given statement the previous statement is called a prior inconsistent statement and the statement to the officer on the night of the incident is admissible as substantive evidence.

 

Chambers v. State, 351 Ga. App. 771, 833 S.E.2d 155 (2019), is illustrative of a recanting victim or a victim that says she can no longer recall what happened.  In Chambers, the defendant contended the trial court erred in admitting into evidence the victim’s prior inconsistent statements to law-enforcement officers. Specifically, he argues victim’s statements claiming he attacked her, which were recorded by the police officer’s body camera, constituted inadmissible hearsay not subject to any exception. The court disagreed.

 

Under OCGA § 24-6-613 (b), extrinsic evidence of a witness’s prior inconsistent statement may be admitted so long as “the witness is first afforded an opportunity to explain or deny the prior inconsistent statement and the opposite party is afforded an opportunity to interrogate the witness on the prior inconsistent statement or the interests of justice otherwise require.” And under OCGA § 24-8-801 (d) (1) (A), [a]n out-of-court statement shall not be hearsay if the declarant testifies at the trial or hearing, is subject to cross-examination concerning the statement, and the statement is admissible as a prior inconsistent statement or a prior consistent statement under Code Section 24-6-613 or is otherwise admissible under this chapter.

 

These statements are not hearsay, and, thus, they “may be admitted both for impeachment purposes and as substantive evidence.”

 

In this matter, when asked about Chambers’ attack on her, the victim testified that she did not recall any of the events of the night in question, claiming that her drinking and failure to take medications on the night in question contributed to her lack of recall. Ultimately, she testified that Chambers had not been violent toward her.  The State then called the police officer who initially responded to the scene as a witness and played a video of him questioning victim, which was recorded by his body camera and in which victim stated that Chambers punched and choked her.

Chambers tried to argue her statement to the police should not be admissible because the victim could not recall the details of the night in question, she was not actually subject to cross-examination as the rule requires. The court disagreed.  The court held “[t]he failure of a witness to remember making a statement may provide the foundation for offering extrinsic evidence to prove that the statement was made.” The foundation was laid for admission of the Victim’s prior statements to the responding officer when she gave testimony inconsistent with those statements, was confronted with that fact, and claimed not to recall them. Accordingly, the previous statements to law enforcement on scene that night were admissible and used to convict Chambers.

 

 

 

Georgia Criminal Law Aggravated Battery Attorney

Georgia Criminal Law – Aggravated Battery

The Offense

A person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him/her of a member of his/her body, by rendering a member of his/her body useless, or by disfiguring his/her body or a member thereof. O.C.G.A. § 16-5-24.

 Intent

In order to sustain a conviction for aggravated battery, the State will have to prove the defendant acted with a particular mental state. Here, the mental state is “malice.” A person acts maliciously within the meaning of the aggravated-battery statute when he/she acts intentionally and without justification or serious provocation.  Hillsman v. State, 341 Ga.App. 543 (2017). The State is not required to show he/she intended the specific results of his/her conduct; rather, state is required to prove only that defendant acted maliciously when he engaged in that conduct. Bizzard v. State, 312 Ga.App. 185 (2011).  

Injury

What separates aggravated battery from the lesser-included offense of battery is the degree of injury suffered by the victim. Georgia courts have held the following injuries sufficient to constitute an aggravated battery conviction:

  • Nerve Damage
  • Memory Loss
  • Loss of Normal Brain Functioning
  • Vision Loss
  • Broken Finger, Nose, Teeth, Ears, and/or Wrist
  • Severe Bruising

The injuries do not need to be permanent (may be temporary) but must be greater than a superficial wound.

Punishment

Aggravated battery is a felony offense. As a result, the minimum punishment is one-year imprisonment.  The sentencing judge, however, has the discretion to impose a higher sentence depending on many factors, but especially the person’s criminal history and the existence of aggravating circumstances. Furthermore, Georgia law creates different degrees of punishment for an aggravated battery conviction if the victim falls into a certain classification.

  • Aggravated Battery – 1 to 20 Years Imprisonment
  • Aggravated Battery Upon a Public Safety Officer (While Engaged in Their Official Duties) – 10 to 20 Years Imprisonment and $2,000 Fine
    • If Defendant is 17 Years Old, Minimum is 3 Years
  • Aggravated Battery Against Person Who is 65 or Older – 5 to 20 Years Imprisonment
  • Aggravated Battery While in a Public Transit Vehicle or Station – 5 to 20 Years Imprisonment
  • Aggravated Battery Against a Student or Teacher (or Other School Personnel) Within a School Safety Zone – 5 to 20 Years Imprisonment
  • Aggravated Battery Against a Family Member – 3 to 20 Years Imprisonment

Contact Us

If you or a loved one is facing criminal prosecution, please contact our office today at 404-581-0999 for a free consultation. Our firm has specialized knowledge and experience in handling criminal cases in various jurisdictions across Georgia.

Georgia Criminal Law – Aggravated Assault Basics

Aggravated assault is a very serious and frequently charged criminal offense. This article serves to explore the nature of the charge and the possible punishment if convicted.

The Offense

Under O.C.G.A. § 16-5-21, a person commits the offense of aggravated assault when they:

  1. Commit an “assault” on a victim; and
  2. The assault was aggravated by:
    1. An intention to murder, rape, or to rob;
    1. Use of a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury;
    1. Use of any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in strangulation; or
    1. The person discharging a firearm from within a motor vehicle toward a person or persons without legal justification.

Put differently, aggravated assault has two essential elements that must be proven beyond a reasonable doubt: (1) that an assault was committed on the victim and (2) that it was aggravated by (a) an intention to murder, to rape, or to rob or (b) use of a deadly weapon.  Durden v. State, 327 Ga.App. 173, (2014). An underlying simple assault is required to be proven.

O.C.G.A. § 16-5-20 states that 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 apprehension of immediately receiving a violent injury.

As we can see, this basic assault statute combined with any of the above statutory aggravators can result in a felony conviction for aggravated assault.

It is important to note proof of actual injury is not required. The law punishes even the mere possibility that serious injury would result from the use of deadly weapon, object, device, or instrument. The “deadly” nature or character of a weapon is determined by the jury.  These instruments, devices, or objects can include, but are not limited to: hands and feet, knives, axes, hatchets, and other sharp instruments, blunt instruments such as baseball bats, clubs, or irons, fires, motor vehicles, pepper spray, bottles, books, pens, phones, sticks, use of an animal, and even furniture.

Punishment

The range in punishment depends on the status of the alleged victim. Generally, a person convicted of aggravated assault may be sentenced to prison for 1 to 20 years. If the alleged victim is a peace officer, correctional officer, officer of the court, or emergency health worker, the penalty ranges from 5 to 20 years of imprisonment. If the victim is 65 years of age or older, the penalty ranges from 3 to 20 years imprisonment. If the aggravated assault is committed in a public transit vehicle or station, the punishment ranges from 3 to 20 years. If an aggravated assault is committed against a student, teacher, or school personnel within a school safety zone, the penalty ranges from 5 to 20 years imprisonment. If the aggravated assault is committed with the intent to rape a child under age of 14, the penalty ranges from 25 to 50 years imprisonment. These prison sentences may also include fines, terms of probation, and restitution to the alleged victim.

Contact Us

Aggravated assault is a serious criminal offense.  If you or a loved one has been charged with aggravated assault, please contact our office today at 404-581-0999 for a free consultation. Our firm has successfully handled aggravated assault cases resulting in dismissals, reductions, and jury trials in multiple jurisdictions across Georgia.