Ramey v. State

Johnson, Judge,

concurring specially.

I concur in Divisions 1, 2, and 4, and in the ruling in Division 3, but I believe further discussion is appropriate in that division.

The bulk of appellant’s brief is directed to his contention that he was entitled to a charge on consent under the circumstances of this case.

The majority makes clear that the reason consent is not an issue in this case is because the appellant was charged under OCGA §§ 16-5-23 (a) (2) and 16-5-23.1 rather than under OCGA § 16-5:23 (a) (1), and I agree. However, the appellant has cited language from Georgia cases which on its face appears to support his position that to constitute a battery a bodily contact must be nonconsensual as well as harmful or offensive. I believe it is helpful to point out the distinctions which other courts have drawn between sexual batteries and severely injurious batteries involving the breach of public peace in order to make it clear that appellant’s analysis cannot survive close scrutiny.

The appellant contends that the trial court erroneously prevented him from. using the victim’s consent as a defense to the charges by refusing to give two of his requested jury instructions, one defining battery as “the unlawful touching or striking of the person of another . . . , which is not legally consented to by the other,” and the other defining the offense as an “[i]ntentional touching without excuse or justification.”

The offense of simple battery is defined by OCGA § 16-5-23 (a), as follows: “A person commits the offense of simple battery when he either: (1) Intentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) intentionally causes physical harm to another.” (The simple battery count against the appellant was predicated on subsection (2), and of course the evidence established without dispute that he had intentionally caused physical harm to the victim.) The offense of battery is defined by OCGA § 16-5-23.1, which provides, in pertinent part, as follows: “(a) A person commits the offense of battery when he intentionally causes substan*654tial physical harm or visible bodily injury to another, (b) As used in this Code section, the term ‘visible bodily harm’ means bodily harm capable of being perceived by a person other than the victim and may include, but is not limited to, substantially blackened eyes, substantially swollen lips or other facial or body parts, or substantial bruises to body parts.”

Neither of these statutes by its terms makes the victim’s lack of consent an element of the offense. Compare, e.g., OCGA § 16-5-40 (kidnapping); OCGA § 16-6-1 (rape); OCGA § 16-7-21 (criminal trespass); OCGA § 16-7-60 (arson). However, the appellant has cited several cases which contain language supporting the proposition that a consensual touching does not constitute a battery. For example, in Gates v. State, 110 Ga. App. 303 (1) (138 SE2d 473) (1964), this court approved an instruction that “battery is the unlawful imposition of the hands or arms of one person upon another against the will of the person alleged to have been assaulted. . . .” (Emphasis supplied.) The defendant in Gates was convicted of battery based on evidence that he had deliberately touched a woman on the buttocks in a public store. Although the battery statute in existence at that time defined the offense as “the unlawful beating of another,” Code of 1933, § 26-1408, the conviction was affirmed based on the Supreme Court’s holding in Goodrum v. State, 60 Ga. 509 (1878), that “the intentional touching of a woman by a man without excuse or justification constitute^] a battery” under this definition. Gates, supra, 110 Ga. App. at 304. Also, “[i]n Brown v. State, 57 Ga. App. 864, 867 (197 SE 82) (1938), this court quoted with approval the language of 4 AmJur 125, Assault & Battery, § 2, as follows: ‘(A battery is the) “Unlawful touching or striking of the person of another by the aggressor himself or by any substance put in motion by him, done with the intent of bringing about a harmful or offensive contact or apprehension thereof which is not legally consented to by the other and not otherwise privileged.” ’ ” (Emphasis supplied.) Harris v. State, 106 Ga. App. 172, 179 (126 SE2d 693) (1962) (holding that a poisoning could be considered a battery under the former Code section).

Similar statements to the effect that consent is a defense in a prosecution for assault may be found in decisions from other states; however, “most of these statements are drawn from cases involving sexual assaults of one kind or another, and in the few cases which have involved an actual battery, without sexual overtones, the courts have usually taken the view that since the offense in question involved a breach of the public peace as well as an invasion of the victim’s physical security, the victim’s consent would not be recognized as a defense, at least where the battery is a severe one.” Annot., Assault & Battery — Consent as Defense, 58 ALR3d 662, 664. See, e.g., Wright v. Starr, 179 P 877 (Nev. 1919) (involving a beating); Com*655monwealth v. Farrell, 78 NE2d 697 (Mass. 1948) (involving a sadistic burning with a cigarette); State v. Fransua, 510 P2d 106 (N.M. App. 1973) (involving a shooting). See also Taylor v. State, 133 A2d 414 (Md. 1957), citing 4 AmJur, Assault & Battery, §§ 83, 89; 6 CJS, Assault & Battery, § 90; Wharton, Criminal Law, 12th ed., Vol. 1, § 835; Russell on Crime, 10th ed., Vol. 1, p. 760.

Decided March 17, 1992 Reconsideration denied April 1, 1992. Mikele S. Carter, for appellant. Roger Queen, District Attorney, J. Roger Thompson, Assistant District Attorney, for appellee.

The issue of whether consent may be considered a defense to a charge of “simple battery” under OCGA § 16-5-23 (a) or to a charge of “battery” under OCGA § 16-5-23.1 appears to be one of first impression. Certainly, the consent of the victim, or lack thereof, would be a relevant consideration in a prosecution for making physical contact “of an insulting or provoking nature,” under OCGA § 16-5-23 (a) (1). However, as previously indicated, the appellant was not charged under that subsection. It is also possible to envision circumstances in which the presence or absence of consent might be relevant in a prosecution for battery under OCGA § 16-5-23 (a) (2) or § 16-5-23.1. It could be argued, for example, that an injurious physical contact committed in connection with a sport such as boxing would constitute a battery but for the element of consent. However, the physical contact in the present case obviously did not occur within the context of an officially sanctioned sporting event; and the suggestion that consent could be considered a defense to the type of prolonged, sadistic and gratuitous violence at issue here must, in the final analysis, be viewed as completely ludicrous. The trial court did not err in refusing to give the appellant’s requested charges on this issue.