concurring in part and dissenting in part.
Like Judge Blackburn, I concur in Division 2 and I join in his dissent in Division 1. Thus, I am unable to agree with the majority with respect to Division 1.34 Indeed, I am sufficiently troubled by the reasoning and result that I am compelled to write separately.
As noted by Judge Blackburn, the language of the indictment charged Lemming with committing an assault “by placing [Finley] in reasonable apprehension of immediately receiving a violent injury.” (Punctuation and emphasis omitted.) Thus, the State was required to prove that Finley was apprehensive of a violent injury. Whether the waitress was apprehensive or whether Lemming intended that Finley be apprehensive are completely irrelevant to this inquiry.
Under the facts of this case, it strains credulity to conclude that Finley was apprehensive of any kind of injury, violent or otherwise. Both the direct evidence — Finley’s testimony — and the circumstantial evidence — Finley’s conduct in pursuing Lemming — demonstrate unequivocally that Finley lacked such apprehension under *134any definition of the word.35 By permitting jurors to ignore the evidence that Finley lacked apprehension, the majority essentially creates a legal fiction. Now, any time a perpetrator engages in conduct that may be considered aggravated assault, the jury can find the person guilty of the crime regardless of whether there is evidence demonstrating actual apprehension on the part of the alleged victim. I see no purpose in the creation of such legal fiction, particularly where — as here — it truncates the necessary factual analysis.36
Moreover, the only evidence set forth in the majority’s laundry list is circumstantial. Thus, assuming that this evidence is relevant, we still must consider whether Lemming’s guilt for the offense of aggravated assault against Finley is the only reasonable hypothesis to be drawn from the evidence.37 “This is so because under OCGA § 24-4-6, to warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”38 Here, I find the only reasonable hypothesis is that Lemming failed miserably in his misguided attempt to inspire apprehension in Finley. Under these circumstances, Lemming’s conviction for aggravated assault against Finley cannot stand.
I am authorized to state that Presiding Judge Blackburn and Judge Barnes join in this dissent.
Blackburn, Presiding Judge,concurring in part and dissenting in part.
Although I concur in Division 2 of this opinion, I must respectfully dissent separately from Division 1 and join in Judge Ruffin’s separate dissent thereto. The evidence adduced at trial was not sufficient to support Steve John Lemming’s conviction for aggravated assault against Darryl Finley because the State failed to prove that Finley was in apprehension of receiving a violent injury from Lemming.
Viewed in the light most favorable to the verdict, the record shows that, on the evening of April 10,2002, Lemming jumpedbehind the counter at a restaurant and attacked a waitress, Elizabeth Sutton, placing a small, filed-down key chain knife against her neck. *135Frightened by this act, Sutton screamed. Finley, the cook, approached Lemming, who warned, “I’ll stick her! I’ll stick her!” Responding “the T you will,” Finley, acting without apprehension or even a perception of injury from Lemming’s key chain knife, attacked Lemming with a broom and tried to pull Sutton away from Lemming. Lemming then jabbed the knife at Sutton and, in the process, cut Finley’s finger. Finley then punched Lemming with his left hand and continued to attack him with the broom. After a few more swings of the broom, Lemming ran from the restaurant, and Finley aggressively chased after Lemming but failed to catch up to him. Finley later explicitly testified that he was not apprehensive of Lemming or his key chain knife. The evidence failed to satisfy this element of the crime as it was insufficient to show that Finley was in apprehension of receiving a violent injury from Lemming.
“A person commits the offense of aggravated assault when he uses a deadly weapon to commit an act which places another in reasonable apprehension of immediately receiving a violent injury.” Jackson v. State.39
“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.” Jackson, supra at 579 (1). Thus, “proof 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 such as when he retreats to secure his safety.” (Emphasis supplied.) Hurt v. State.40
In analyzing this case, we must be mindful of the fact that the evidence that Finley acted without apprehension or perception of injury is not in conflict.
[T]here was no conflict in the evidence for the [trier of fact] to resolve. Thus, as a matter of credibility, even if the [trier of fact] chose to disbelieve [Finley’s] testimony [that he was not apprehensive], the [jury] was presented with no evidence by which to establish [a different] version of events.... Disbelief of a witness’ testimony as to certain facts does not, by itself, factually establish the opposite conclusion so as to serve as proof thereof. “A fact is not proved unless it is established.”
*136(Emphasis omitted.) State v. Gillette.41 And, in this case, the State failed to establish by any facts, either direct or circumstantial, that Finley was apprehensive of Lemming’s small key chain knife.
The direct evidence, namely Finley’s testimony, shows that he acted without apprehension or even the perception of receiving a violent injury from “[o]ne of those little key chain knives that had been filed down.” He unequivocally testified that the knife posed no threat to him. In turn, the circumstantial evidence supported Finley’s testimony. After seeing Lemming’s key chain knife, Finley attacked Lemming with no apprehension of threat from the weapon. And, even when Lemming backed away, Finley, without apprehension, chased after Lemming. Unlike someone who was apprehensive, Finley vigorously confronted Lemming and attempted to prolong that confrontation even after Lemming fled. Neither this direct nor circumstantial evidence was disputed.
Under these circumstances, even if the jury disbelieved Finley’s testimony that he was not apprehensive, disbelief of that testimony does not, by itself, factually establish the opposite conclusion that Finley was either apprehensive or perceived the threat of a violent injury. And, even in the absence of Finley’s statement, the circumstantial evidence is not sufficient to show otherwise. Gillette, supra. To the contrary, as set forth above, the circumstantial evidence shows that he was not apprehensive. Accordingly, the State failed to satisfy its burden of proving this element of the crime charged in this case.
The difference between the position of this dissent and that of the majority is a simple one: this dissent finds that there is no evidence, direct or circumstantial, based on which the jury could conclude that the victim had a reasonable apprehension of violent bodily injury, and the majority finds that there was circumstantial evidence supporting the jury’s conclusion. Given this unambiguous difference, speculating about the demeanor of witnesses and pondering the many dictionary definitions of the word “apprehension” is totally unnecessary and irrelevant. Here, the victim stated on the record that he had no apprehension under any definition of that term, and his overt actions supported his testimony. The only question before this Court is whether the jury was presented with other evidence of the victim’s state of apprehension which would allow the jury to wholly disregard his actions and his testimony.
The majority lists nine pieces of supposed circumstantial evidence which it contends would support the jury’s determination that, in spite of Finley’s testimony to the contrary, he was apprehensive of *137injury from Lemming. Nothing in this list, however, addresses Finley’s actions or reactions, only the actions and reactions of others. For example, the majority contends that the jury could determine that Finley was apprehensive because Lemming testified that he entered the restaurant with the intent of frightening the restaurant’s employees and Finley was, indeed, an employee. Lemming’s intention at the moment of entering the restaurant, however, simply has no bearing on Finley’s subsequent reaction to Lemming’s actions. In several more listings, the majority argues, in essence, that because Sutton was apprehensive, the jury could also find that Finley was apprehensive. Finley’s testimony and the circumstantial evidence that Finley reacted without apprehension and affirmatively attacked Lemming with a broom vitiates the majority’s argument on this point.
In reaching its conclusion, the majority relies on evidence regarding the actions and reactions of everyone other than Finley, despite his direct testimony as to his reaction and his conduct at the time. It was the apprehensive reactions of Finley which the State was required to prove under the indictment, absent direct evidence of Finley’s state of mind, the law permits reliance on other facts to infer apprehension. The only evidence here of Finley’s actions and reactions, whether direct or circumstantial, was that Finley had no apprehension of injury whatsoever, and thus there was no basis to rely on other factors. This is an undisputed fact which we are not at liberty to alter by focusing on the actions and reactions of others at the scene.
Furthermore, the result reached in this dissent was required by the crime for which Lemming was indicted and the failure of the State to prove the specific manner of committing the offense as alleged in the indictment.
Assaults maybe committed in either of two ways: the perpetrator may attempt to commit a violent injury upon the victim or may commit an act which places the victim in reasonable apprehension of immediately receiving a violent injury. See OCGA § 16-5-20 (a) (1), (2). An offense becomes an aggravated assault if the perpetrator commits an assault in one of the ways set forth in OCGA § 16-5-21. See Williams v. State.42
In this case, Lemming was charged with committing an aggravated assault on the first victim with a knife by “placing [the victim] in reasonable apprehension of immediately receiving a violent injury....” (Emphasis supplied.) Thus, he was charged with committing an assault defined by OCGA § 16-5-20 (a) (2), and, to convict him of *138that offense, the State was required to prove that Finley was placed in reasonable apprehension of receiving a violent injury. This victim testified that he was not placed in apprehension of receiving a violent injury, and the State produced no evidence from which the jury could have inferred that he apprehended such injury. Accordingly the State failed to prove that element of the offense.
Although the majority correctly states that our law does not require that the prosecution prove that the victim was placed in fear to prove an offense of assault, our law does require some evidence from which the jury could find that the victim was placed in reasonable apprehension of receiving a violent injury. In this case, however, no such evidence exists. The most telling evidence on this point is contained in the following exchange between the prosecutor and the victim Finley:
PROSECUTOR: Did you consider the knife to pose a threat toward you?
FINLEY: Yeah, well, not to me, to her.
If the State had alleged that Lemming committed an aggravated assault by attempting to commit a violent injury upon this victim, which the evidence showed that he did, he could have properly been convicted of that offense. Unfortunately, he was not charged with that crime, and in the absence of evidence that Finley was placed in reasonable apprehension of receiving a violent injury, Lemming’s conviction for an aggravated assault upon Finley cannot stand.
The cases cited by the majority are distinguishable and do not support its conclusion. For example, none involves a situation in which the victim affirmatively testified that he was not apprehensive of violent injury. Furthermore, none includes a scenario in which the circumstantial evidence showed not only that the victim was not apprehensive but also that he was so unafraid that he attempted to prolong the confrontation by chasing down the defendant. As such, these cases cannot control the present matter in which the victim testified that he was not apprehensive and undisputedly acted in a manner showing he was not apprehensive.
The special concurrence, on the other hand, would create the requisite reasonable apprehension necessary to convict Lemming by unduly expanding the law regarding the “measured steps doctrine” and applying it in this case. The very cases cited in the special concurrence show, however, that the measured steps doctrine was never meant to apply to factual situations such as the present case.
In essence, the special concurrence holds that Finley’s actions in response to Lemming’s attack may be considered defensive actions to *139protect himself, thereby showing that he was reasonably apprehensive. The underlying rationale appears to be that, because Sutton was fearful and apprehensive, one may infer that Finley was also, as Sutton’s admitted fear was the only other evidence on this issue. Georgia law does permit the trier of fact to make such an inference where the evidence establishes the fear and apprehension of one victim and there is no evidence from which the mental state of the second victim can be determined, or where the attack is of such a nature that anyone would be apprehensive. It does not, however, permit such inference as to the second victim’s mental state where there is direct, undisputed testimony and other evidence showing that the second victim was not apprehensive or in fear, and the attack did not demand such conclusion.
The undisputed facts of this case do not allow us to conclude that Finley was acting defensively or that such an inference was proper. It is a matter of record that Finley testified that he was not apprehensive. In addition, Finley not only escalated the encounter, but when Lemming attempted to run away, Finley pursued him. Such acts cannot be considered defensive. Had Finley been acting defensively, he would not have chased after Lemming when Lemming tried to escape the confrontation.
The cases cited by the special concurrence strongly support the analysis of this dissent and support the conclusion that, because Finley escalated and prolonged his confrontation with Lemming, Finley was acting aggressively rather than taking “measured steps” to protect himself. For example, in Strange v. State,43 the victims of the defendant’s aggravated assault with a handgun took cover on the floorboard of a car and sped away from the defendant. In Lunsford v. State,44 the victims once again fled from an assailant with a handgun, and they entered a car and crouched down to the floorboard. In Gordian v. State,45 after an assault with a handgun, police found the victim at the scene “very upset, crying, fearful, shaking, quivering, and with red eyes.” In Carter v. State,46 the victim, who admitted that he was afraid, retreated from an assailant with a knife into his apartment and locked the door behind him. In Hicks v. State,47 after being warned in advance that the defendant intended to harm her due to a prior disagreement, the victim was assaulted by several men armed with a .357 Magnum revolver and a rifle. And, finally, in Payne *140v. State,48 the special concurrence fails to set forth the entire holding in that case, which was:
Payne’s quickly cutting his vehicle in front of the State trooper’s patrol car just as the trooper was about to pass him during a relatively high speed chase was sufficient evidence of use of an automobile as a potentially deadly weapon. Further, the State trooper’s defensive driving necessitated by Payne’s maneuvers, and the trooper’s decision to ram Payne’s vehicle in an attempt to disable it and prevent injury to anyone, was evidence of a reasonable apprehension of violent injury, which may be inferred from the conduct of the victim.
(Emphasis supplied.) Thus, even in Payne, the victim’s attempts to avoid the defendant’s attacks was integral to a finding of reasonable apprehension. In this case, to the contrary, Finley made no attempts to avoid the confrontation with Lemming at all.
In each of these cases, the victims of the aggravated assaults responded with overt fear or by fearfully running away from their assailants, and, in doing so, they took measured steps to protect themselves. In this case, Finley did exactly the opposite-, he confronted his assailant forcefully, and he even prolonged the confrontation after the assailant fled his attack. Because of this fundamental difference, the direct evidence of fearful reactions by the victims and the different issues involved, the cases cited in the special concurrence are distinguishable from the present case, and the “measured steps doctrine” cannot be expanded to encompass cases such as this one.
The special concurrence also relies on Jackson, supra. Jackson involves an inference of apprehension by one victim, based on the conduct of another. In Jackson, one of the victims testified that he was afraid, while the other victims did not. Their fear was inferred by the court from the testimony of the single victim.
In Jackson, supra at 579 (1), we held:
The evidence showed that Jackson pointed his gun at Sparks, Bryant, and Fairley. Although only Sparks testified that he was fearful he would be shot, the factfinder properly found evidence as to Bryant’s and Fairley’s state of mind. Sparks’ testimony that he was fearful, coupled with testimony that Jackson pointed the gun at each of the victims, was sufficient for a factfinder to find that all three victims had a *141reasonable apprehension of immediately receiving a violent injury. Further, the presence of a deadly weapon would normally place a victim in reasonable apprehension of being injured violently.
(Punctuation and footnote omitted; emphasis supplied.)
In Jackson, there was a gun involved, and there was no direct testimony from one victim as to his mental state. Unlike Jackson, all of the victims in this case testified regarding his or her mental state. Sutton testified that she was apprehensive, and Finley testified that he was not. In addition, Finley’s aggressive actions toward Lemming supported his testimony. This creates a situation much different than Jackson. In Jackson, the jury was justified in finding that all victims were reasonably apprehensive because there was no undisputed evidence presented that the victims who did not testify were not afraid. Here, on the other hand, Finley testified that he was not apprehensive and acted aggressively. Confronted with this evidence, “the [jury] was presented with no evidence by which to establish [a different] version of events.” Gillette, supra.
The special concurrence is correct that, in dicta, Jackson, supra, states that “the presence of a deadly weapon would normally place a victim in reasonable apprehension of being injured violently.” (Punctuation omitted; emphasis supplied.) Jackson involved the use of a handgun, while this case involved only a filed-down key chain knife, not a deadly weapon. With Finley’s direct testimony that he was not apprehensive and his attack on Lemming, we are not dealing with a normal situation as envisioned in the above dicta quote. For all of these reasons, Jackson is distinguishable from the case now before us.
We must point out that this opinion in no way should be interpreted to depend solely on Finley’s lack of fear. Our Supreme Court has found that “the law of Georgia does not appear to require fear as an element of apprehension.” (Punctuation omitted.) Bates v. State.49 Nothing in this dissent should be construed to state otherwise. That does not change the fact, however, that, in this case, the record indicates that the victim had no apprehension or perception of an immediate violent injury, under any dictionary definition one chooses.
Here, we are bound by both our legislature and controlling case law to reverse the finding of the jury on this issue. While apprehension of injury is not a necessary element of other criminal charges which the facts here might have supported, it is required to support *142the aggravated assault charge. While the jury is generally free to not accept witness testimony, it is not free to convict in the absence of supporting evidence.
Decided March 11, 2005. Randall S. Estes, for appellant. Daniel J. Porter, District Attorney, David K. Keeton, Assistant District Attorney, for appellee.Likewise, the State’s reliance on cases such as Happoldt v. State50 and Gray v. State51 does not alter the outcome in this matter. Based on these cases, the State maintains “that as to the charge involving Mr. Finley, the doctrine of transferred intent would apply, regardless of whom Appellant was gesturing toward with the knife.” These cases have no application here as they involve, and answer in the negative, the question of whether the State must prove intent to injure in order to establish the crime of aggravated assault. The issue here is not that of Lemming’s intent to injure, but of Finley’s state of mind and whether Lemming’s actions caused him to be in reasonable apprehension of receiving a violent injury
Accordingly, the evidence was sufficient to support Lemming’s conviction for criminal attempt to commit armed robbery and the aggravated assault of Sutton. However, the evidence was not sufficient to support Lemming’s conviction for the aggravated assault of Finley I would reverse the judgment on this issue.
I am authorized to state that Chief Judge Ruffin and Judge Barnes join in this dissent.
Although the opinion is per curiam, for ease of reading, I refer simply to the majority with respect to Division 1.
I am not persuaded by Judge Bernes’ characterization of Finley’s actions as “defensive.” After Lemming attacked the waitress and threatened to harm her, Finley began beating Lemming with a broomstick. Thus, Finley was not defending himself so much as defending the waitress. Moreover, after the threat to the waitress had abated, Finley continued to chase Lemming, which belies the conclusion that his conduct was defensive.
See Parke v. Fant, 260 Ga. App. 84, 86 (1) (578 SE2d 896) (2003).
See Baltazar v. State, 254 Ga. App. 773, 774 (564 SE2d 202) (2002).
(Punctuation omitted.) Id.
Jackson v. State, 251 Ga. App. 578, 579 (1) (554 SE2d 768) (2001).
Hurt v. State, 158 Ga. App. 722, 723 (282 SE2d 192) (1981).
State v. Gillette, 236 Ga. App. 571, 574 (512 SE2d 399) (1999).
Williams v. State, 208 Ga. App. 12, 13 (430 SE2d 157) (1993).
Strange v. State, 244 Ga. App. 635 (535 SE2d 315) (2000).
Lunsford v. State, 260 Ga. App. 818 (581 SE2d 638) (2003).
Gordian v. State, 261 Ga. App. 75 (581 SE2d 616) (2003).
Carter v. State, 248 Ga. App. 139 (546 SE2d 5) (2001).
Hicks v. State, 211 Ga. App. 370 (439 SE2d 56) (1993).
Payne v. State, 195 Ga. App. 523, 525 (4) (394 SE2d 781) (1990).
Bates v. State, 275 Ga. 862, 865 (4) (572 SE2d 550) (2002).
Happoldt v. State, 267 Ga. 126 (475 SE2d 627) (1996).
Gray v. State, 257 Ga. App. 393 (571 SE2d 435) (2002).