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Smith v. State

Court of Appeals of Georgia

August 25, 2014

SMITH
v.
THE STATE

Aggravated battery, etc. DeKalb Superior Court. Before Judge Hunter.

Judgment affirmed.

Kenneth D. Kondritzer, for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

Andrews, P. J., and Ray, J., concur.

OPINION

Page 252

McFadden, Judge.

After a jury trial, Keith Antonio Smith was convicted of aggravated assault (OCGA § 16-5-21), aggravated battery (OCGA § 16-5-24), and cruelty to children in the third degree (OCGA § 16-5-70 (d)). He challenges the sufficiency of the evidence supporting the aggravated battery conviction, but the evidence authorized the jury to find he had committed that offense. He also challenges the effectiveness of his trial counsel in connection with his decision not to testify at trial, but he has not met his burden of showing that he received ineffective assistance. Accordingly, we affirm.

[328 Ga.App. 864] 1. Sufficiency of the evidence.

Smith argues that the evidence was insufficient to support his conviction for aggravated battery, an offense committed when a person " maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof." OCGA § 16-5-24 (a). When a defendant challenges the sufficiency of the evidence supporting his criminal conviction, " the relevant question is whether, after viewing

Page 253

the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979) (citation omitted; emphasis in original).

So viewed, the evidence showed that on June 13, 2011, Smith was living in an apartment with, among others, his girlfriend, their four-year-old daughter, and his girlfriend's mother, Carla Hunter. That night, Smith and Hunter began arguing about whether Hunter should iron clothes in a bedroom where the child was sleeping. At some point during the argument, Smith took the child into another room. As the argument continued, Smith retreated to his bedroom and retrieved and loaded a gun. His girlfriend screamed for Hunter to leave the house and tried to restrain Smith. Smith broke away, walked quickly to the room in which Hunter was ironing, and fired the gun several times into the room, striking Hunter in the arm and shoulder. Hunter's injuries made it difficult for her to write and for several months she required assistance with personal care tasks such as cooking and bathing. She underwent physical therapy to regain feeling in her arm.

The state charged Smith with committing aggravated battery by rendering her arm useless. Smith argues that the evidence showed only that Hunter's use of her arm was temporarily impaired, not that the arm was rendered useless. But " even the temporary reduced use of a bodily member may be sufficient to render it useless" under the aggravated battery statute. Biggins v. State, 299 Ga.App. 554, 555 (1) (683 S.E.2d 96) (2009) (citations and punctuation omitted). The evidence that, for several months after the shooting, Hunter struggled to write and to care for herself, had to rely on another person for help in tasks such as cooking and bathing, and had to undergo physical therapy, authorized Smith's conviction for aggravated battery. See Walls v. State, 283 Ga.App. 560, 561 (1) (642 S.E.2d 195) (2007) (finding evidence that victim had suffered loss of use of elbow, supporting defendant's conviction for ...


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