JOHNSON v. the STATE.

SECOND DIVISION
MILLER, P. J.,
BROWN and GOSS, 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

February 7, 2019

In the Court of Appeals of Georgia
A18A1832. JOHNSON v. THE STATE.

BROWN, Judge.

A jury found Marquis Johnson guilty of aggravated assault and criminal

damage to property in the second degree. In this appeal, he contends that the trial

court erred by denying his request to charge the jury on the lesser included offense

of simple assault and that the evidence was not sufficient to support his conviction

for aggravated assault. For the reasons explained below, we disagree and affirm.

On appeal from a criminal conviction, the standard for reviewing the

sufficiency of the evidence

is whether a rational trier of fact could have found the defendant guilty
beyond a reasonable doubt. This Court does not reweigh evidence or
resolve conflicts in testimony; instead, evidence is reviewed in a light
 most favorable to the verdict, with deference to the jury’s assessment of
the weight and credibility of the evidence.

(Citations and punctuation omitted.) Hayes v. State, 292 Ga. 506 (739 SE2d 313)

(2013). So viewed, the record shows that the charges against Johnson arose from an

argument with his stepfather. It began when the stepfather denied Johnson’s second

request to use a car to drive to a college class instead of his mother or stepfather

driving him and dropping him off. The stepfather testified that “things got out of

hand” when he told Johnson again that he could not use the car, and the stepfather

admitted that he could have handled the situation better. At some point during the

altercation, the stepfather walked up the street because he was upset and needed to

“cool off.” At this point, no physical altercation had taken place.

As the stepfather walked back toward his house, Johnson’s mother yelled for

him to bring the car keys. The stepfather described what happened next in the

following ways:

When I came back, I lunged at – went at my car, he thought I was
coming at him, that’s when my wife got bumped, she hit against her car,
and so – she was upset and he saw that, and that’s when he ran in the
house.

...

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 That’s when he thought I was lunging at him and his mother and that’s
when he got defensive, and that’s when she hit . . . the car because I
came up, going to give her the keys and get in my car and just go, and
then he saw me bump his mother and that’s when he reacted.

...

What I did, I walked down here, he was standing – him and his mother
was standing right there by the doorway, then they walked towards the
car, she said just give me the keys, and I went at her like this here
(demonstrating), he was standing there and I bumped him. That’s when
he ran in the house because he thought there was going to be a physical
altercation.

When Johnson returned after going inside the house, he was holding a knife in each

hand. Johnson did not lunge at his stepfather or try to cut him; “he just held the knives

up.” The stepfather testified that Johnson “never got closer than ten feet” to him.

After Johnson came outside with the knives, the stepfather ran across the street and

picked up a stick of quarter round molding lying outside a neighbor’s garage to

defend himself in case Johnson came close to him with the knives. While the

stepfather was running across the street and had his back turned, Johnson smashed

the windshield of his stepfather’s car. After the stepfather picked up the stick, both

men were screaming and yelling, with the stepfather telling Johnson to “put them

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knives down” and Johnson asking the stepfather to “fight me like a man.” At one

point, the stepfather put the stick down and told Johnson, “[L]ook, I’m not going to

do anything to you, put the knives down,” but Johnson refused and continued to shout

“fight me like a man.” The stepfather testified at trial that he was “[a]t no time . . . in

fear for my life, I was just getting something to protect me. . . . Just in case he got any

closer so I can, you know, ward it off.”

The State established during the stepfather’s testimony at trial that his

recollection of the events changed after he initially spoke with the police. The

stepfather told the police that Johnson smashed the windshield before he went into

the house to get the knives, that Johnson chased him with the knives, and that he

feared for his life “because of the simple fact that he got two knives and . . . I have a

stick, so I know that stick ain’t going to protect me, so any ordinary person would

have been in fear.”

In his initial statements, the stepfather said nothing about pushing the mother

or Johnson before Johnson obtained the knives. In later conversations with the district

attorney’s office, the stepfather stated that his wife was threatening to make false

reports to get him in trouble and make it look like he had been the aggressor. After

they later resolved their differences and “got back together,” the stepfather asked the

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district attorney’s office to drop the charges. Four days before the start of trial, the

stepfather signed an affidavit stating for the first time :

I actually charged at Mr. Johnson[.] His mother had to stand between us.
I was very stressed and I could have handled this matter differently. Mr.
Johnson simply wanted to drive to his class that night and that was it.
[Johnson] wanted to find a job. He was stressed as well.

Later in his testimony, the stepfather clarified that he had no independent recollection

of bumping his wife at the car; that he testified that he had done so based upon what

she and other neighbors told him.

A neighbor testified that he saw the stepfather walking fast toward his garage

with Johnson “running across the street with two large butcher knives in his hand[s].”

He testified that the closest he saw the two men together was when “one was on one

side of my truck and the other was on the other side of my truck.” The neighbor was

startled by the sight of Johnson charging with the knives and closed his garage door

before calling the police. In a written statement provided to the police, the neighbor

stated “that [Johnson] backed up and [the stepfather] put the stick back.”

When the first officer responding to the report of a fight in progress arrived, he

saw Johnson in the middle of the street holding a large knife in his right hand. His

mother was “physically restraining him and yelling at him to drop the knife,” and

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Johnson was screaming “fight me like a man.” The officer saw the stepfather

“standing two driveways down” from Johnson, and the stepfather was “not verbally

engaged, he’s just standing there being complacent.” When the officer got out of his

car, he ordered Johnson to drop the knife; Johnson ignored the command and “tried

to push back through the female as if he was going after the second male.” The officer

then drew his gun and ordered Johnson to throw the knife into the yard. After

Johnson did so, the officer placed him in handcuffs and physically pulled him to the

back of his car because Johnson was still yelling at his stepfather to “fight me like a

man.”

The mother testified that the stepfather was in a rage after Johnson asked to use

the car. When he returned from walking down the street, he was still in a rage and

lunged at and tried to hit Johnson. At some point during or after the mother placed

herself between the stepfather and Johnson and wrestled the stepfather to the ground,

Johnson went inside the house. She acknowledged that Johnson came out of the

house holding the knives, but denied that Johnson chased the stepfather. She denied

that her son was ever close to the stepfather while he was holding the knives. She

admitted that she did not initially tell the police that the stepfather was in a rage and

that she ended up on the ground after the stepfather lunged at Johnson.

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 Johnson testified that when his stepfather returned after walking down the

street, “he went from a walk to a full run, a full burst of running” and his mother

“jumped up and she actually tried to create a barrier between him and whatever he

wanted to do.” When it appeared that his stepfather would break through his mother’s

barrier, he ran into the house because he believed she was in danger. He saw her

falling as he grabbed the doorknob and looked back. He grabbed knives from the

kitchen and returned outside. He saw his mother on the ground and placed the knives

in his pocket. When the stepfather told him that he would destroy him, he took the

knives back out again, and the stepfather went across the street and picked up the

stick. Johnson admitted following his stepfather across the street at a distance to make

sure he did not come back with a weapon. Johnson testified that he never tried to cut

or stab his stepfather with a knife.

The indictment alleged that Johnson committed aggravated assault because he

“did knowingly make an assault upon the person of [the stepfather] with a knife, an

object which when used offensively against a person is likely to result in serious

bodily injury. . . .” The trial court denied Johnson’s request to charge the jury on

simple assault as a lesser included offense based upon its view that the evidence

regarding the knife removed the issue of simple assault from the case. It granted his

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request for a charge on justification. Consistent with the State’s request to charge, the

trial court instructed the jury on aggravated assault based upon only one of the two

methods for committing simple assault; specifically, “that [a] person commits an act

that places another in reasonable apprehension of immediately receiving a violent

injury.” See former OCGA § 16-5-20 (a) (2).1 It also charged the jury extensively on

justification and self-defense. At the conclusion of the trial court’s charge, Johnson’s

counsel excepted to the trial court’s failure to charge on simple assault as a lesser

included offense.

1. Johnson contends that the trial court erred by denying his request to charge

on the lesser included offense of simple assault. His contention rests upon the

indictment’s failure to specify which type of simple assault he committed as the

predicate for aggravated assault with an object likely to result in serious injury when

used offensively against a person. See OCGA § 16-5-21 (a) (2) (defining particular

aggravated assault alleged by State in the indictment). It is well-established that

“[a]ggravated assault has two elements: (1) commission of a simple assault as defined

1
In this opinion, we reply upon the version of the statute in effect at the time
Johnson committed the crimes in August of 2013. See Ga. L. 2011, p. 752 §16,
effective May 13, 2011; Woodward v. State, 342 Ga. App. 499, n. 1 (804 SE2d 153)
(2017).

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by OCGA § 16-5-20 (a) (5); and (2) the presence of one of three statutory

aggravators” set forth in OCGA § 16-4-21 (a). Patterson v. State, 299 Ga. 491, 492

(789 SE2d 175) (2016) (Patterson II). “A person commits 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.” OCGA § 16-5-20 (a).

Relying upon this Court’s decision in Harris v. State, 342 Ga. App. 829 (805

SE2d 281) (2017) (physical precedent only), Johnson asserts that the evidence would

have supported a charge for one type of simple assault as a lesser included offense of

aggravated assault. In support of this assertion, Johnson points out that an assault

based upon an attempt to commit a violent injury to the person of another, OCGA §

16-5-20 (a) (1) is a specific intent crime, whereas an assault based upon committing

an action which places another in reasonable apprehension of immediately receiving

a violent injury, OCGA § 16-5-20 (a) (2), is one of general intent. See Patterson v.

State, 332 Ga. App. 221, 223-228 (2) (a) (770 SE2d 62) (2015), affd. by, Patterson

II, supra, 299 Ga. at 492-496. In his view, the evidence would have authorized the

jury to conclude that he “intended to commit a violent injury but not with the use of

knives.”

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 We find no merit in Johnson’s argument based upon the particular facts of this

case. The trial court did not charge the jury on both types of simple assault. Instead,

as it was authorized to do where, as here, an indictment alleges alternative means of

committing a crime, the trial court charged on only one form of simple assault as the

predicate for the aggravated assault charges. See Cash v. State, 297 Ga. 859, 861-863

(2) (778 SE2d 785) (2015); Lopez v. State, 260 Ga. App. 713, 716 (3) (580 SE2d 668)

(2003). Based upon the trial court’s decision to charge the jury on aggravated assault

based only upon the general intent type of simple assault embodied in OCGA § 16-5-

20 (a) (2), Johnson’s argument that the trial court erred by failing to charge the jury

on the alternative form of simple assault as a lesser included offense has no merit.2

Based upon the particular form of aggravated assault alleged in the indictment and

charged to the jury, the evidence showed that Johnson was either guilty of aggravated

assault or not guilty by reason of justification. See Hudson v. State, 296 Ga. App. 692,

695 (2) (675 SE2d 578) (2009); Gross v. State, 312 Ga. App. 362, 364-365 (2) (718

SE2d 581) (2011). Accordingly, the trial court did not err by denying his request for

a charge on simple assault as a lesser included offense.

2
We express no opinion about whether Johnson’s argument would have
succeeded if the trial court had charged the jury on both forms of simple assault.

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 2. We find no merit in Johnson’s argument that the State “failed to prove each

element of aggravated assault and to disprove the affirmative defense of justification

beyond a reasonable doubt.” The State’s evidence showing that Johnson chased the

stepfather while holding the knives was sufficient to support his conviction for

aggravated assault. Gunter v. State, 316 Ga. App. 485, 486-487 (1) (729 SE2d 597)

(2012). “The question of [Johnson]’s justification was for the jury to determine, and

it was free to reject [his] version of the events, which obviously it did.” Mosley v.

State, 300 Ga. 521, 524 (1) (796 SE2d 684) (2017).

Judgment affirmed. Miller, P. J., and Goss, J., concur.

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