Lemming v. State

Bernes, Judge,

concurring fully and specially.

Although I concur fully with the majority opinion, I write separately to set forth an additional reason why I believe there was sufficient evidence authorizing the jury to conclude that Steve John Lemming placed Waffle House cook, Darryl Finley, in reasonable apprehension of immediately receiving a violent injury.31

*132“Whether a victim has been placed in reasonable apprehension of injury is a question of fact, which may be established by indirect or circumstantial evidence.” (Footnote omitted.) Jackson v. State, 251 Ga. App. 578, 579 (1) (554 SE2d 768) (2001). “[P]roof that the victim has been placed in apprehension of immediately receiving a violent injury need not necessarily be solely by reason of the victim’s testimony of his mental state but may be inferred from the conduct of the victim. ...” (Citations omitted.) Hurt v. State, 158 Ga. App. 722, 723 (282 SE2d 192) (1981).

The circumstantial evidence of record, including Finley’s own conduct, authorized the jury to infer that Finley was in reasonable apprehension of suffering immediate violent injury from Lemming. See Payne v. State, 195 Ga. App. 523, 525 (4) (394 SE2d 781) (1990) (reasonable apprehension “may be inferred from the conduct of the victim”) (citation omitted). After Lemming jumped over the counter and placed his sharpened paring knife up to the neck of Waffle House waitress, Elizabeth Sutton, Finley did not simply approach Lemming. He came toward Lemming carrying a broomstick and immediately struck Lemming with the broomstick once he saw the knife. Finley testified: “And I looked in his hand and I saw the blade and I hit him with the broomstick.”

After Lemming jabbed the knife at Sutton and Finley and cut Finley with the knife, Finley’s “reaction was [to] hit him again.” Finley hit Lemming with his left hand and attempted to hit him again with the broomstick. Finley attempted to hit Lemming with the broomstick a third time after Lemming jumped over the counter and onto a table.32

The defensive actions or maneuvers taken by Finley with the broomstick provided sufficient evidence that Finley had a reasonable apprehension of immediately receiving a violent injury. Strange v. State, 244 Ga. App. 635, 637 (1) (535 SE2d 315) (2000) (fact that victims reacted “defensively and aggressively” to gunshots provided “sufficient circumstantial evidence to show that they had been placed in reasonable apprehension of immediately receiving violent injury”) (footnote omitted).33 Finley’s “measured steps to protect” himself and *133Sutton created an inference of reasonable apprehension, even though Finley testified he did not feel threatened. Lunsford v. State, 260 Ga. App. 818, 821 (2) (581 SE2d 638) (2003); Carter v. State, 248 Ga. App. 139, 140 (1) (546 SE2d 5) (2001).

Furthermore, that Finley took active steps to disable and apprehend Lemming makes this case similar to Payne, 195 Ga. App. at 525 (4). In that case, we held that a “trooper’s decision to ram [the defendant’s] vehicle in an attempt to disable it and prevent injury to anyone, was evidence of a reasonable apprehension of violent injury” by the trooper. Id. See also Hicks v. State, 211 Ga. App. 370, 371-373 (439 SE2d 56) (1993) (although victim testified that she was not afraid of the defendant, a finding of reasonable apprehension was nevertheless authorized when the defendant wielded his weapon in view of the victim and her family, and the victim then armed herself with a rifle, brandished it in front of the defendant, and exchanged gunfire).

Accordingly, I concur with the majority opinion holding that a rational trier of fact could have found beyond a reasonable doubt that Lemming used a deadly weapon to place Finley in reasonable apprehension of immediately receiving a violent injury and was thus guilty of aggravated assault upon Finley.

I agree with the dissent that the State would be in a stronger evidentiary position had Lemmingheen charged in the bill of indictment with attempting to commit a violent injury upon Finley, rather than with placing Finley in reasonable apprehension of immediately receiving a violent injury. Under OCGA § 16-5-20 (a) (1), (2), assault may be proven in either of these two ways, and the former would have been easier to prove in this case, in light of the evidence in the record. Nevertheless, unlike the dissent, I believe that there was at least some circumstantial *132evidence authorizing a jury to convict Lemming of aggravated assault against Finley as charged in the indictment.

The dissent assumes that Finley’s bravado and fearlessness in confronting and attacking Lemming evidences a lack of apprehension. If the dissent’s reasoning were followed to its logical conclusion, we would be bound to reverse an aggravated assault conviction in a case where a police officer prolongs a confrontation by chasing down an armed defendant and testifies he did not have time to be afraid or think about any imminent threat of harm; he just reacted.

See also Tiller v. State, 267 Ga. 888, 890 (3) (485 SE2d 720) (1997) (victim’s defensive tactic of falling to ground to avoid injury evidenced victim’s reasonable apprehension), overruled on other grounds, Dunagan v. State, 269 Ga. 590, 593 (2) (a), n. 3 (502 SE2d 726) *133(1998); Payne, 195 Ga. App. at 525 (4) (defensive driving maneuvers of state trooper during car chase evidenced trooper’s reasonable apprehension of violent injury from fleeing driver).