FOURTH DIVISION
BARNES, P. J.,
RAY and MCMILLIAN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
October 1, 2015
In the Court of Appeals of Georgia
A15A1519. LEVIN v. THE STATE.
BARNES, Presiding Judge.
In 1994, Gregory A. Levin was tried by a jury and convicted of kidnapping
with bodily injury, two counts of aggravated assault, burglary, cruelty to children,
aggravated battery, possession of a firearm during the commission of a crime, and
making harassing phone calls.1 The trial court merged the aggravated battery
conviction into the kidnapping with bodily injury conviction and sentenced Levin to
a total of life plus 48 years in confinement. Levin appealed, and this Court reversed
his conviction for making harassing telephone calls based on an improper verdict
form, and his convictions for aggravated assault and possession of a firearm based on
erroneous jury charges. Levin v. State, 222 Ga. App. 123, 126-127 (5), (6) (473 SE2d
582) (1996).
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Levin was found guilty but mentally ill of kidnapping with bodily injury and
making harassing phone calls.
In 2014, the Georgia Supreme Court reversed Levin’s conviction for
kidnapping with bodily injury and vacated his life sentence based on the State’s
failure to satisfy the asportation requirement as set forth in Garza v. State, 284 Ga.
696 (670 SE2d 73) (2008).2 Levin v. Morales, 295 Ga. 781 (764 SE2d 145) (2014).
The Court also noted that the aggravated battery conviction had been merged into the
kidnapping conviction and ordered, “[n]ow that the kidnapping conviction has been
reversed, on remand the trial court will need to revisit sentencing appellant on the
conviction for aggravated battery.” Id. at 784.
On remand, the trial court conducted a resentencing hearing and on the day of
the hearing, Levin filed a plea in bar on double jeopardy grounds, seeking dismissal
of the aggravated battery count of the indictment. The trial court denied the plea in
bar , and sentenced Levin to 20 years in confinement for the aggravated battery
conviction. Levin now appeals the trial court’s denial of his plea in bar and his
resentencing. For reasons that follow, we affirm.
The facts of the case, as set forth in the Georgia Supreme Court’s opinion, are
as follows:
2
Garza was superseded by statute for offenses occurring after July 1, 2009. See
OCGA § 16-5-40 (b); Thomas v. State, 289 Ga. 877, 879 (2) n.3 (717 SE2d 187)
(2011).
2
The record shows that the victim [Levin’s ex-wife] was asleep in
her bedroom when her 12-year-old daughter heard appellant banging on
the back door of their small duplex apartment. The daughter ran into the
bedroom, woke her mother, and closed and locked the bedroom door.
Determining that they could not leave the bedroom because the windows
were painted shut, the victim called police. While the victim was on the
phone with authorities, appellant entered the house and proceeded to
punch through the bedroom door so he could unlock it. The daughter
testified that when appellant entered the bedroom he had a hammer and
a gun in his hands. The victim was able to tell police about the gun
before appellant snatched the phone away from her and hung it up.
When the phone rang immediately after having been placed on its
cradle, appellant destroyed it. Appellant told the daughter to leave the
house, and she did so. As she ran out of the house police were arriving
on the scene. After the daughter left and while still in the victim’s
bedroom, appellant held the gun to the victim’s head, made threats, and
slapped her. He also hit the victim on the back with an unattached
bureau mirror, pistol whipped her, and kicked her in the stomach. Then
he started destroying the bedroom furniture. At some point, the police
used a public address system, instructing appellant to call them so they
could negotiate the victim’s release. Having destroyed the phone in the
bedroom, appellant dragged the victim by the neck and at gunpoint to
the living room in order to retrieve a working telephone. Upon retrieving
the telephone, he took the victim back to the bedroom. At that point, he
also barricaded the front and back doors of the apartment.
3
Appellant held the victim hostage for approximately 12 hours. .
. . The victim testified she was with appellant throughout the entire
ordeal and that any movement was at gunpoint. . . . The incident ended
when a SWAT team forced their way into the apartment and
apprehended appellant.
Levin, 295 Ga. at 781-782.
1. Levin contends that the evidence was insufficient to support his conviction
for aggravated battery, which was based on his indictment for maliciously causing
bodily harm to the victim “by seriously disfiguring her body by repeatedly beating her
about her head, face and body.” He argues that the evidence only showed some
bruising on the victim’s face and did not rise to the level of serious disfigurement. We
disagree.
“Following a criminal conviction, the defendant is no longer presumed
innocent, and we view the evidence in the light most favorable to sustain the verdict.”
(Citation and punctuation omitted.) Jones v. State, 329 Ga. App. 439 (765 SE2d 639)
(2014). So viewed, the evidence showed that after the victim was rescued by the
SWAT team, she was taken to the hospital. Her daughter saw her when she arrived
at the hospital and testified that she looked like “[a] pumpkin.” “Her face was swollen
. . . and she had a real bad bruised eye and she had blood on her and her lips were
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swollen. Basically her whole face was swollen.” The victim testified that Levin
repeatedly slapped and hit her, kicked her in the stomach, hit her in the back with a
large bureau mirror, punched her in the nose, beat her with the gun, choked her, and
dragged her around with his arm around her throat. He also rammed the gun and his
finger sharply into her eye, slammed her against the refrigerator, and hit her in the
back of the head with the gun so hard that she couldn’t stand up, lost her balance, and
thought she had a concussion. Police officers at the hospital observed the victim’s
injuries and took photographs, which showed her bruised and swollen face, with one
eye swollen shut, and a “goose egg” on her face. The victim also sustained injuries
to her hands, which photographs showed were bruised and swollen from the beating,
and her feet, which were cut from walking on glass Levin had broken.
A person commits the offense of aggravated battery when he or
she maliciously causes bodily harm to another . . . by seriously
disfiguring his or her body or a member thereof. OCGA § 16–5–24(a).
Although OCGA § 16–5–24 does not define the term “serious
disfiguring,” this Court has ruled that the crime of aggravated battery
does not require that the victim’s disfigurement be permanent; however,
the injury must be more severe than a mere visible or superficial wound.
Notwithstanding this threshold for determining whether the disfiguring
injuries meet the requisite level of seriousness to constitute an
aggravated battery, we have further acknowledged that the
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circumstances of each aggravated battery vary; thus, whether a
disfigurement is serious is almost always a question for the jury to
resolve on a case-by-case basis.
(Citations and punctuation omitted.) Jones, 329 Ga. App. at 443 (1) (a).
Based on the evidence of the victim’s injuries, the jury could reasonably find
that the combined injuries to her face, eyes, head, hands, and feet were more than
mere visible or superficial wounds and that the victim’s disfigurement was serious.
See Penland v. State, 229 Ga. 256, 257 (1) (190 SE2d 900) (1972) (evidence
sufficient for aggravated battery conviction where victim’s head was covered in
blood, body was covered with cuts and bruises, eyes were swollen shut, and she was
incoherent after the attack); Jones, 329 Ga. App. at 444 (1) (a) (jury could reasonably
find serious disfigurement where victim had marks on her jaw, neck, and earlobe and
cuts on her ear and eye area; both eyes were bruised and swollen shut, and she
temporarily lost consciousness); cf. Williams v. State, 248 Ga. App. 316, 317-319 (1)
(546 SE2d 74) (2001) (evidence insufficient to support aggravated battery conviction
where victim sustained minor scratches and bruises and there was no evidence of
bleeding wounds or swelling).
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2. Levin contends that the trial court erred by denying his plea in bar as to the
resentencing on the aggravated battery conviction because the resentencing violated
his protection against double jeopardy. He argues that because the greater offense
(kidnapping with bodily injury) was reversed due to insufficient evidence, double
jeopardy bars resentencing on the merged offense of aggravated battery. We disagree.
As Levin correctly points out, “where a defendant is tried and convicted of a
crime, and that conviction is reversed due to insufficient evidence, procedural Double
Jeopardy bars re-prosecution for that same crime and any lesser included crime.”
Prater v. State, 273 Ga. 477, 481-482 (4) (545 SE2d 864) (2001); but see Levin, 295
Ga. at 784-786 (Blackwell, J., concurring) (noting existence of an open question
under Georgia law – where a reviewing court determines that the evidence presented
at trial has been rendered insufficient only by a post-trial change in the law, do double
jeopardy concerns preclude the government from retrying the defendant?). Here,
however, Levin was not reprosecuted, but merely resentenced as the Georgia Supreme
Court had instructed. The evidence was sufficient to support Levin’s conviction for
aggravated battery,3 and the trial court did not err by resentencing him on that count
of the indictment. See Harris v. State, 286 Ga. 245, 253 (8) (686 SE2d 777) (2009)
3
See Division 1.
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(where counts of motor vehicle theft and theft by taking were merged and conviction
for motor vehicle theft was reversed, on remand, conviction was to be “unmerged”
from the reversed count and appellant sentenced on the other count); see also
Donaldson v. State, 222 Ga. App. 532, 533 (474 SE2d 722) (1996) (where evidence
is insufficient to support armed robbery conviction but sufficient to support lesser
included offense of attempted robbery, robbery conviction vacated and case remanded
to enter sentence and conviction on attempted robbery); Barnett v. State, 204 Ga.
App. 491, 498 (3) (420 SE2d 43) (1992) (where evidence insufficient to prove that
trafficking in cocaine committed in the manner averred in the indictment but
sufficient to support conviction for possession of cocaine, case remanded with
direction to enter conviction and sentence for that offense).
3. Levin contends that the trial court erred by denying his motion for
continuance, which was filed on the same day as the resentencing hearing, to allow
him additional time to obtain the trial transcript from his prior counsel. Finding no
error, we affirm.
“All applications for continuances are addressed to the sound legal discretion
of the court and, if not expressly provided for, shall be granted or refused as the ends
of justice may require.” OCGA § 17-8-22; Cunningham v. State, 244 Ga. App. 231,
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232 (1) (535 SE2d 262) (2000). Although Levin states that the transcript was
necessary “for an adequate and effective review of the sentencing issues involved,”
he does not contend or show that he was harmed at the resentencing hearing by not
having access to the transcript and there can be no reversible error where no harm is
shown. See Beene v. State, 202 Ga. App. 857 (1) (415 SE2d 545) (1992); see also
Cunningham, 244 Ga. App. at 232-233 (1) (where appellant failed to show how
transcript would have assisted in his defense, there is no reversible error).
Judgment affirmed. Ray and McMillian, JJ., concur.
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