Following a jury trial, Telly Lafonz Brown was convicted in Butts County Superior Court on multiple charges, including two counts of aggravated battery, two counts of aggravated assault, and two counts of leaving the scene of an accident involving serious injury. Brown now appeals from the denial of his motion for a new trial, arguing that the trial court erred in failing to instruct the jury on his sole defense of accident; in failing to instruct the jury on the intent element of aggravated assault and in failing to give an instruction on simple assault, as an element of aggravated assault; and in failing to
"On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury's guilty verdict." Marriott v. State, 320 Ga.App. 58, 739 S.E.2d 68 (2013) (citation omitted). So viewed, the record shows that Brown and B.B. dated for approximately one year. Although B.B. attempted to end the relationship after approximately six months, her efforts were unsuccessful, with Brown refusing to accept the breakup, phoning and texting B.B. repeatedly, and appearing at her house uninvited. Eventually, in November 2011, B.B. managed to end her relationship with Brown. Approximately two weeks later, B.B. was visiting her cousin, at the cousin's apartment. The two women heard what sounded like a hissing noise coming from outside, and when they looked through the window, they both saw Brown letting the air out of the tires on B.B.'s car. One week after that incident, B.B. and her cousin went to a local nightclub. Brown was present at the club and, fearing that he would attempt to speak with her, B.B. left and went to her car to wait for her cousin. As she sat in the parking lot, Brown approached B.B., and she spoke with him briefly through the window, telling him she would not take him back. A short time later, B.B. and her cousin left the parking lot and Brown watched as they drove in the direction of the cousin's apartment. The two women stopped at an all-night restaurant to eat before proceeding to the cousin's apartment, where B.B. planned to spend the night. At some point after the women left the nightclub but before they reached the cousin's apartment, Brown called B.B.'s cell phone. In response to B.B.'s question, Brown told her he was at her home. According to B.B., however, the background noise on the call indicated that Brown was traveling in a car.
As B.B. and her cousin drove into the parking lot at the cousin's apartment, B.B. saw what she believed to be a car belonging to Brown's mother. B.B. called Brown's mother to ask if her son had her car, and the mother confirmed that Brown was driving her car and urged B.B. to "get away," as Brown was planning to kill her. With her cousin driving B.B.'s car, the women exited the parking lot and Brown followed their vehicle. Brown bumped B.B.'s car from behind at least twice, causing the car to "shake and slide," and frightening both women. When the cousin slowed the car to make a left turn (in an attempt to get to a police station), Brown again struck B.B.'s car, causing the cousin to lose control of the vehicle. The force of the impact sent B.B.'s car through a chain-link fence and into the yard of a local trucking company where it collided with the flat bed trailer of an 18-wheeler. Fearing that Brown would return to the scene, B.B. and her cousin crawled from the wrecked car and hid underneath the trailer to wait for police. B.B. suffered a broken wrist in the accident and her cousin suffered a broken leg that had to be repaired surgically.
At trial, the State introduced portions of several 911 calls that were received by local law enforcement on the night in question. Those recordings showed that Brown's mother called 911 to report that Brown had stolen her car and planned to use it to "run his girlfriend over" and to "hit [her] in the car." Sometime later, Brown's father called to request police assistance, telling the 911 operator, "it's my son, he got the car and mad at his girlfriend, like he want to hurt [himself] or somebody.... He done snapped." After the call was suddenly disconnected, the 911 operator called the Brown home, and at that time Brown's mother reported that Brown had returned home, and informed his parents that he had wrecked the car when he ran "the girl off the road somewhere." Brown's mother also told the 911 operator that her
The morning after the accident, police interviewed Brown twice, first at his parents' home and then at the police station. During those interviews, Brown admitted that although he did not have a valid driver's license, he was driving his mother's car when it collided with B.B.'s car. According to Brown, he had been following B.B. and her cousin and their car braked suddenly. Although Brown tried to stop, his brakes failed, causing him to hit the back of B.B.'s car. Following the interview at the police station, the officer told Brown that he would be booked on several charges resulting from the accident. As police began the booking process, Brown fled the police station. Police captured him a short time later in a nearby wooded area.
Brown was subsequently indicted on two counts of aggravated battery, two counts of aggravated assault, two counts of aggressive driving, two counts of leaving the scene of an accident involving serious injury, one count of leaving the scene of an accident resulting in damage to a vehicle, one count of driving with a suspended license, one count of obstruction of an officer, and one count of escape. The jury found Brown guilty on all counts, and the trial court entered a judgment of conviction on the jury's verdict and sentenced Brown to 45 years in incarceration. The trial court merged the two counts of aggressive driving with the counts of aggravated assault for sentencing purposes, but sentenced Brown to five years on each of the counts of leaving the scene of an accident involving serious injury, with those sentences to be served concurrently. Brown filed a motion for a new trial, which the trial court denied in a summary order without holding a hearing.
1. Brown contends that the trial court erred in failing to instruct the jury on the affirmative defense of accident. While Brown acknowledges that he did not request such an instruction, he relies on the fact that accident represented his sole defense and points to the law holding that a trial court's failure to charge the jury on a defendant's sole defense, even in the absence of a request for such a charge, may constitute reversible error if at least some evidence supports such a charge. See Parks v. State, 281 Ga.App. 679, 682 (4), 637 S.E.2d 46 (2006). "Whether the evidence presented is sufficient to authorize a charge on accident ... is a question of law." Kellam v. State, 298 Ga. 520, 521 (2), 783 S.E.2d 117 (2016) (citation omitted). We find no error, as the evidence in this case did not authorize a charge on accident.
Under OCGA § 16-2-2, "[a] person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence."
Lee v. State, 320 Ga.App. 573, 578 (2), 740 S.E.2d 307 (2013) (citations and punctuation omitted). Here, the unrefuted evidence shows that Brown stole his mother's car and told his family he intended to use the automobile to kill B.B.; he waited in the parking lot of the cousin's apartment for B.B. and her cousin to arrive; Brown followed B.B.'s car when the women attempted to avoid him by driving away from the apartment; Brown pursued the women for some distance, using his mother's car to "bump" B.B.'s vehicle at least twice; Brown continued to follow B.B.'s car at close range despite having struck her vehicle at least twice; after the collision, Brown fled the scene; Brown was able to drive his mother's car back to her house, despite his statement to police that his brakes had failed at the time of the collision; and Brown reported
2. Brown argues that the trial court erred in at least two respects in instructing the jury on aggravated assault. Because Brown offered no objection to the jury charge, we review these claims for "plain error." Holloman v. State, 293 Ga. 151, 152 (2), 744 S.E.2d 59 (2013). To demonstrate plain error, a defendant must show that the jury instruction was erroneous, that the error in the instruction was obvious, that the instruction likely affected the outcome of the trial, and that "the error seriously affected the fairness, integrity[,] or public reputation of [the] judicial proceeding[ ]." Id. (citation omitted). We find no such error in this case.
(a) Brown contends that the trial court erred in failing to instruct the jury that to prove aggravated assault, the State was required to prove that Brown intended to injure the victims. This claim is without merit.
Under Georgia law, an aggravated assault can be committed in four different ways: by committing the assault with the intent to murder, rape, or rob the victim; by committing the assault "with 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;" by committing the assault "[w]ith any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in strangulation;" or by discharging "a firearm from within a motor vehicle toward a person or persons" without legal justification. OCGA § 16-5-21 (b) (1), (2), (3), (4). In this case, the indictment charged Brown with committing aggravated assault against both B.B. and her cousin by use of an automobile, "an object which[,] when used offensively against another person[,] is likely to result in serious bodily injury." In such cases, where the State alleges that a defendant committed aggravated assault by use of a deadly weapon, the prosecution is not required to prove that the defendant intended to injure the victim. See Ganaway v. State, 282 Ga. 297, 299 (2), 647 S.E.2d 590 (2007) ("intent to injure is not an element of the ... offense" of assault with a deadly weapon). Thus, where that form of aggravated assault is charged, the State is only required to prove that the defendant intended to commit the act that either put the victim in reasonable apprehension of receiving an injury or that actually resulted in the victim being injured. Id. See also Smith v. State, 280 Ga. 490, 492 (1), 629 S.E.2d 816 (2006). Cf. Sullivan v. Kemp, 293 Ga. 770, 772-773 (1), 749 S.E.2d 721 (2013) (reversing defendant's conviction based on the trial court's failure to instruct the jury that to convict the defendant of aggravated assault, the State was required to prove that the defendant intended to commit the charged act; the failure to charge on intent made it possible for the jury to convict the defendant of aggravated assault even if it found the defendant's conduct was criminally negligent, rather than intentional).
Here, the trial court properly instructed the jury on the issue of intent, charging the jurors that "a person commits the offense of aggravated assault when he ... assaults with a deadly weapon, or with any object, device or instrument, which when used offensively against a person is likely to, or actually does
(b) Brown further contends that the trial court erred in failing to define simple assault as an element of aggravated assault. A simple assault occurs where an individual "[a]ttempts to commit a violent injury to the person of another" or "[c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury." OCGA § 16-5-20 (a). To convict a defendant of aggravated assault, the State must prove both that the defendant committed a simple assault and that he did so with one of the aggravating factors set forth in OCGA § 16-5-21 (b). See Lee, 320 Ga.App. at 576 (1) (a), 740 S.E.2d 307.
Although simple assault is an element of aggravated assault, a charge on simple assault is not always required "to complete the definition of aggravated assault. The latter does not [necessarily] need the former to make it complete." Sutton v. State, 245 Ga. 192 (2), 264 S.E.2d 184 (1980) (citations omitted). A charge on simple assault is not necessary if, under the facts charged and the proof presented, the jury could not convict the defendant of aggravated assault without implicitly finding that a simple assault had occurred. See Cantera v. State, 289 Ga. 583, 585-586 (2), 713 S.E.2d 826 (2011); Taylor v. State, 327 Ga.App. 288, 291 (4), 758 S.E.2d 629 (2014). Thus, for example, a charge on simple assault is not always required where a defendant's conduct has resulted in the victim's injury. As our Supreme Court explained in Cantera, "there is a distinction between aggravated assault cases with injuries that have been intentionally inflicted based upon the evidence and those where, although there may be injuries, intent may be a question." 289 Ga. at 586 (2), 713 S.E.2d 826. Where the evidence shows that the charged act injured the victim and the jury is "properly instructed on general intent" (i.e., that the State is required to prove that the defendant intended to commit the charged act), "there is no need for the trial court to instruct the jury on simple assault in connection with its charge on aggravated assault." Id. Under those circumstances, if the jury concludes that the defendant committed the acts in question and that he did so with the requisite criminal intent, there can be no doubt but that a simple assault occurred. See Holloman, 293 Ga. at 152 (2), 744 S.E.2d 59 (no charge on simple assault was necessary where the child suffered injuries that resulted in his death and the evidence showed that such injuries could not have been inflicted unintentionally, negligently, or recklessly); Cantera, 289 Ga. at 585 (2), 713 S.E.2d 826 (no charge on simple assault was required where the defendant shot and killed the victim and evidence showed that the defendant acted intentionally).
Conversely, an instruction on simple assault is required in those cases where a defendant is charged with aggravated assault even though the victim was not injured. In such cases,
Cantera, 289 Ga. at 585 (2), 713 S.E.2d 826 (citation and punctuation omitted).
3. Brown was convicted on two counts of leaving the scene of an accident involving serious injuries, and the trial court sentenced him on both counts, with the sentences to be served concurrently. Brown argues that the trial court erred in failing to merge these two counts for sentencing purposes. We agree.
Georgia's "hit-and-run statute," OCGA § 40-6-270, imposes certain duties on drivers who are involved in an automobile accident resulting in injury to a person or damage to a vehicle.
In deciding whether the State may charge multiple violations of OCGA § 40-6-270 based on the fact that a single accident involved multiple victims, we begin with the plain language of the statute. See May v. State, 295 Ga. 388, 391, 761 S.E.2d 38 (2014) (in determining the scope of a particular statutory provision, we begin "with the words of that provision"; we "presume that the General Assembly meant what it said and said what it meant"; and "we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would") (citations and punctuation omitted). The hit-and-run statute requires an individual to stop at the scene of "an accident resulting in injury to or the death of any person or in damage to a vehicle... attended by any person." (Emphasis supplied.) Thus, the hit-and-run statute punishes an individual's failure to stop at the scene of an automobile accident in which that person was involved. A violation of the statute occurs whenever someone fails to stop, regardless of whether that person is at fault with respect to the accident and regardless of the number of victims involved. Notably, the hit-and-run statute does not punish either the defendant's conduct in causing the accident or in causing the victim's injuries.
Given that the hit-and-run statute criminalizes the act of failing to stop at the scene of an accident, and given that there
In reaching this conclusion, we emphasize that a defendant's conduct in causing an accident or injuring accident victims is punishable under statutes that were designed to address conduct other than the failure to stop at an accident scene. And a defendant may be charged separately with respect to the injuries inflicted on each victim of a single accident — i.e., a defendant may be indicted (as Brown was) on multiple charges of aggravated battery, aggravated assault, or even vehicular homicide. See Green v. State, 265 Ga.App. 126, 129 (2), 592 S.E.2d 901 (2004) (applying the general rule that where criminal act has more than one victim, a defendant may be charged separately with respect to each victim). See also Balkcom, 219 Ga. at 643 (3), 135 S.E.2d 425 (noting that with respect to crimes against the person, a defendant's single act may give rise to multiple charges, as that conduct violates "a separate duty [the defendant owed] to each member of society whose interest the [defendant's] act infringed").
For the reasons set forth above, we affirm the trial court's denial of Brown's motion for new trial. We vacate Brown's sentences on the two counts of leaving the scene of an accident involving serious injury and remand to the trial court for entry of a new sentence with respect to these counts.
Judgment affirmed in part and vacated in part, and case remanded with direction.
Ellington, P.J., and Mercier, J., concur.