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.


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.




Gwinnett County Family Violence Battery – Atlanta Criminal Defense Lawyer

A conviction for Family Violence Battery in Georgia can have consequences that go far beyond a conviction for other misdemeanors.   The State of Georgia, as a whole, has taken a stand against domestic violence.  There are domestic violence task forces across the State, and specialized prosecuting units. Every day we see the impact that family violence arrests have on Georgia’s criminal justice system. Police are told across the State to make arrests for Family Violence Battery if there is any evidence it occurred. Evidence, unfortunately, can be one-sided and be the result of a false allegation.  

For those who have been arrested for family violence, there may be feelings of anxiety and stress as it relates to the potential impact the case will have. Jail time, a criminal history, and forfeiture of firearms for life are all very real concerns when facing Family Violence Battery charges in Georgia. An arrest is not a conviction, and there are options in the criminal process for your Family Violence case.

In order to be prosecuted for Family Violence Battery, the State must prove that the alleged victim falls within the statutory definition for “Household Members or Family.”

Under O.C.G.A. § 16-5-23.1, this includes past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household.

            The State must also prove that there was either “substantial physical harm” OR “visible bodily harm” in a Family Violence Battery case in order to get convicted of the crime.

What happens after a Family Violence Arrest in Gwinnett County?

First, the person arrested for Family Violence Battery will have their booking photo and finger prints taken and then will be ordered into the Gwinnett County Jail. The booking process, through fingerprints, creates the official criminal history that is then made public. After the booking process, the person arrested for Family Violence will see a Judge in their First Appearance hearing. This is where Bond will be addressed.

In order to get out on bond in a Family Violence case, the Judge must find several factors to be true. The Judge must find that the person accused of Family Violence Battery:

(1) Poses no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required;

(2) Poses no significant threat or danger to any person, to the community, or to any property in the community;

(3) Poses no significant risk of committing any felony pending trial; and

(4) Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.

These are referred to in Georgia as the ‘Ayala Factors’ based on the criminal case that first laid out what must be proven in order to get out on bond in a criminal case. Ayala v. State, 62 Ga. 704 (1993).  Retaining an attorney immediately at arrest means having representation at what many people view as the most important step: getting out of jail as soon as possible. A skilled attorney will do an investigation into the case  and allegations and put forth the best possible argument to have their client released on pretrial bond in their Family Violence case.

In a Family Violence case, the Judge may order certain requirements in order to be allowed out on bond. For example, the Judge can order domestic violence classes, or for the accused to not have any weapons while out on bond. We see in most domestic violence cases, if the person is not represented at First Appearance, that the Judge will issue a No Contact provision and Stay Away Order. This means that once the person is released, they are not allowed in many cases return to their home, or speak to the parent of their child or their husband or wife. This is something that in most cases can be avoided through proper investigation and preparation for a bond hearing.

What is the potential punishment for Family Violence Case in Gwinnett County?

            The punishment for a family violence case is codified at O.C.G.A. § 16-5-23.1 and the maximum penalty is the same across the State of Georgia. On a first conviction for Family Violence Battery, there is a maximum penalty of 12 months in custody and a $1,000 fine. Keep in mind, that the maximum penalty can be greatly increased based on what the State charges via the Accusation. For example, if there is one count of Family Violence Battery, one count of Simple Assault, and one count of Disorderly Conduct, and the charges all based on different conduct, the maximum penalty in that case would be three years to serve. A second or subsequent conviction with the same family member (as classified above) or another family member results in a felony conviction with a maximum penalty of five years in prison.   

While a first lifetime conviction of Family Violence Battery appears to be just a misdemeanor, there are several collateral consequences that do always appear at first glance.  For instance, under Federal law, any person convicted of a crime of domestic violence can no longer lawfully possess a firearm.   Georgia’s classification of Family Violence Battery falls within the Federal definition of “domestic violence.”  Thus, a Georgia citizen who has a conviction of Family Violence Battery can no longer possess a firearm without the possibility of facing criminal charges in Federal court. This is a permanent forfeiture of your ability to carry a weapon.

In addition, while the maximum includes 12 months in custody and a $1,000 fine, many Judges throughout the State will require individuals convicted of Family Violence Battery to serve time on probation in lieu of jail time, with the conditions of completing a domestic violence program.  These programs go by several different names, but they generally include 24 weeks of classes, counseling, and program fees that are no included in the fine levied by the Judge.  In addition, Judges can add community service, counseling requirements, fines, and alcohol and drug evaluations.  It is important to know that all of these things can be negotiated by your attorney.

Keep in mind: an arrest is NOT a conviction. Just because you have been arrested for Family Violence in Gwinnett County or any county in the State, does NOT mean you will be ultimately convicted, and have to face the criminal history implications and criminal punishment. As in all criminal cases, there are numerous defenses and options to resolve cases short of a guilty plea!

Being charged with Family Violence Battery can be a stressful event in anyone’s life.  At the Law Offices of W. Scott Smith, our lawyers are trained to explore the legal issues with every Family Violence Battery case.  We are aware of all the possible options available to avoid jail time and to protect your criminal history and ultimately your privacy.  If you or a loved one has been charged with Family Violence Battery, please contact our office today at 404-581-0999 for a free consultation.