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Hendrix v. State

Court of Appeals of Georgia

August 13, 2014

HENDRIX
v.
THE STATE

Aggravated assault, etc. Hall Superior Court. Before Judge Fuller.

Penny S. Hunter, for appellant.

Lee Darragh, District Attorney, Jennifer C. Bagwell, Assistant District Attorney, for appellee.

RAY, Judge. Andrews, P. J., and McFadden, J., concur.

OPINION

Page 821

Ray, Judge.

A jury convicted LaMonte T. Hendrix of one count each of aggravated assault (OCGA § 16-5-21 (a) (2)); [1] family violence battery (OCGA § 16-5-23.1 (f)); family violence simple battery (OCGA § 16-5-23 (f)); third-degree cruelty to children (OCGA § 16-5-70 (d)); misdemeanor

Page 822

fleeing or attempting to elude (OCGA § 40-6-395); and driving with a suspended license (OCGA § 40-5-121). He was sentenced as a recidivist pursuant to OCGA § 17-10-7 (c). Hendrix filed this out-of-time appeal from the denial of his motion for new trial. On appeal, Hendrix contends that the trial court erred in finding that the State had proven that a table he threw at the victim was a deadly weapon pursuant to OCGA § 16-5-21. He also argues that he received ineffective assistance of counsel. For the reasons that follow, we affirm.

Viewed under the standard laid out in Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), the evidence shows that Hendrix lived with his mother, Janice Mills, and her two grandchildren, J. T. and O. M. On July 19, 2010, Hendrix and his mother got into an argument when she refused to let him borrow her van. Hendrix poured water on his mother and called her a " stupid bitch." Mills' ex-husband, Hosa Mills, was in the home and came into the room where Hendrix and Janice Mills were arguing. Hendrix was pouring water on his mother and had his hand on her. Hosa Mills told him to stop, and Hendrix punched Hosa Mills in the side of his eye, causing him to fall through and break the glass top of a metal coffee table. While Hosa Mills was still on his knees, Hendrix lifted the coffee table's 10-to-12-pound metal frame over his head and threw it down at Hosa Mills, who blocked the blow with his arm. Janice Mills then gave Hendrix the van keys because she was concerned that things between her ex-husband and her son might get " a little rougher[.]" J. T., who was 14 or 15 years old, then locked the door behind Hendrix and called 911. A police officer who heard a " Be On the Lookout" spotted Hendrix driving the van, and he turned on his blue lights and siren. Hendrix did not stop. After following Hendrix for nearly two miles, the officer was able to block the van and arrest Hendrix.

1. Hendrix argues that the trial court erred in determining that the State met its burden of proving that the table Hendrix threw was a " deadly weapon" or " dangerous weapon."

[328 Ga.App. 820] OCGA § 16-5-21 (a) (2) provides that " [a] person commits the offense of aggravated assault when he or she assaults: ... [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury[.]" (Emphasis supplied.) The indictment accused Hendrix of assaulting Hosa Mills " with a table, an object which, when used offensively against a person is likely to result in serious bodily injury, by throwing the table frame at the victim[.]" It did not accuse Hendrix of using the table as a deadly weapon, so Hendrix's contention on this point is without merit.

As to whether the table was dangerous and likely to cause serious injury when used offensively, it is well settled that when an object is not considered an offensive weapon per se, a jury must determine whether the State has shown that the circumstances under which the object was used caused it to function, when used offensively, in a way likely to result in serious bodily injury. Scott v. State, 243 Ga.App. 383, 385 (1) (d) (532 S.E.2d 141) (2000) (jury question as to whether hands and fists constituted objects likely to result in serious injury).

The term offensive weapon ... includes not only weapons which are offensive per se (such as firearms loaded with live ammunition), but also other instrumentalities not normally considered to be offensive weapons per se which may be found by a jury to be likely to produce death ...

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