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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.