Taylor v. State

Benham, Judge.

Appellant was indicted for and convicted of aggravated battery. See OCGA § 16-5-24 (a). The indictment alleged appellant had maliciously caused bodily harm to the victim by rendering one of his eyes useless. Appellant now argues that the evidence was not sufficient to support the judgment; that the trial court’s charge to the jury was incomplete; and that his motion for new trial was erroneously denied.

1. The State presented evidence that appellant and the victim had engaged in a shoving match and a heated argument at a party earlier on the evening of the aggravated battery. They exchanged blows while in a car after leaving the party. The victim exited the car and was walking toward his home when he heard someone running behind him. As he turned around, appellant struck him in the eye with a broken bottle. He now suffers “real blurry vision” and is unable to read. While his vision has been improving slowly, he stated his physician said he can only “hope and pray” his vision continues to improve.

Appellant maintains the evidence is insufficient to sustain the conviction because there was no evidence that the victim’s eye was rendered useless or that appellant acted maliciously. The loss of the use of an eye constitutes the rendering useless of a member of the body. Mitchell v. State, 238 Ga. 167, 168 (231 SE2d 773) (1977). It is not necessary that the victim suffer the total loss of his member in order to be the victim of an aggravated battery. See Jackson v. State, 153 Ga. App. 584 (1) (266 SE2d 273) (1980). Blurred vision is evidence that an eye has been rendered useless. See Collins v. State, 164 Ga. App. 482 (1) (297 SE2d 503) (1982), where, although the defendant was indicted for aggravated battery, he was convicted of criminal attempt to commit aggravated battery. The victim lost the use of an eye for two days and then experienced dimness and blurring of vision. This court held that since the evidence was sufficient to support a conviction for the greater offense (aggravated battery), an accused could be convicted of an included offense without being specifically charged. Implicit in this holding is the conclusion that reduced use of a member was sufficient to render it useless. “The fortuitous fact that *818complete and permanent blindness did not result hardly suffices to create ... a fatal variance between allegata and probata.” Id. at 483. The victim’s testimony that his vision was improving is not sufficient to overcome the evidence that the eye was rendered useless, especially in the absence of a prognosis of complete recovery.

We also disagree with appellant’s contention that the State failed to prove malice. Appellant admitted he struck the victim with a beer bottle, and the jury was authorized to find that he did so without provocation and with such force as to lodge glass fragments in the victim’s eye, to cause “rather deep” lacerations over one eye and the bridge of the nose, and a cut extending completely through one nostril. From these facts and the inferences to be drawn therefrom, the jury could have reasonably concluded that the requisite malice was present. Harden v. State, 164 Ga. App. 59 (2) (296 SE2d 372) (1982).

2. Appellant next argues that the trial court’s charge to the jury was incomplete because it neither informed that body that the State had to prove malice nor defined the term “maliciously.” Contrary to appellant’s assertions, the trial court informed the fact finder of the elements of aggravated battery and of the requirement that the State prove each essential element of the crime beyond a reasonable doubt. While it may have been appropriate to define “maliciously” for the jury, the trial court did not err in failing to do so inasmuch as appellant neither sought such an instruction nor did anything to preserve his right to appeal when asked to voice objections to the charge. See Scott v. State, 250 Ga. 195 (1c) (297 SE2d 18) (1982). Cf. Wright v. State, 152 Ga. App. 868 (2) (264 SE2d 316) (1980).

3. Appellant also seeks reversal of his conviction based on the trial court’s failure to give a charge on retreat. “[W]here self-defense is the sole defense, and the issue of retreat is raised by the evidence or placed in issue, the defense is entitled to a charge on the principles of retreat. . . .” Johnson v. State, 253 Ga. 37, 39 (315 SE2d 871) (1984). While justification was raised as a possible defense, whether appellant retreated from the fray was never raised by the evidence. Therefore, no charge was necessary.

4. Appellant’s motion for new trial was properly denied inasmuch as it encompassed the above-enumerated errors.

Judgment affirmed.

Deen, P. J., concurs. Beasley, J., concurs specially.