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Gipson v. State

Court of Appeals of Georgia

May 6, 2015

GIPSON
v.
THE STATE

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Aggravated assault, etc. Floyd Superior Court. Before Judge Durham.

W. Terry Haygood, Jr., for appellant.

Leigh E. Patterson, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

OPINION

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Barnes, Presiding Judge.

A jury found Jay Adam Gipson guilty of aggravated assault with an offensive weapon, aggravated assault with intent to murder, aggravated battery, and battery. The trial court thereafter denied his motion for new trial. On appeal, Gipson argues that there was insufficient evidence to convict him of aggravated assault with intent to murder and that the count of the indictment for that offense was fatally defective. Gipson further argues that the trial court erred in allowing expert testimony regarding the typical characteristics of domestic abuse victims and the cyclical nature of domestic abuse; in allowing the State to cross-examine Gipson about a religious emblem he was wearing; in its charge to the jury on aggravated battery; in its recharge to the jury on the definition of " intent to kill" ; and in failing to merge his convictions for aggravated assault with intent to murder and battery into his conviction for aggravated assault with an offensive weapon. Lastly, Gipson argues that his trial counsel rendered ineffective assistance in several respects. For the reasons discussed below, we affirm.

On appeal after a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to the verdict. Anthony v. State, 317 Ga.App. 807 (732 S.E.2d 845) (2012). So viewed, the evidence showed that Gipson and the victim were involved in a tumultuous relationship lasting over a year. During that time period, Gipson violently attacked and injured the victim several times when the two argued. On one occasion in September 2012, Gipson grabbed the legs of the chair in which the victim was sitting and pulled the legs toward him, causing the victim to fall backward and fracture one of her vertebrae. The victim went to the hospital several times for treatment for the back injury she sustained.

[332 Ga.App. 310] Subsequently, on the morning of April 9, 2013, Gipson and the victim were walking to the house of some friends when they began to argue. Gipson suggested that they take a

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short cut to their friends' house by walking down a path through the woods. Although the victim was apprehensive of walking down the secluded path with Gipson, she agreed to do so. As they proceeded down the path, Gipson suddenly began beating, kicking, and pushing the victim, causing her to fall to the ground. Once the victim was on the ground, Gipson repeatedly kicked her and struck her with several tree limbs lying near the path. Gipson would strike the victim with a tree limb until it broke, and then would pick up another one and begin striking her with it. When Gipson ultimately stopped beating the victim, she was barely able to walk but managed to follow him out of the woods to their friends' house.

When Gipson and the victim arrived at their friends' house, one of their friends opened the front door, saw the victim's condition, and was " shocked." The friend later testified that the victim was severely swollen and bruised and looked like she had been " beat[en] up." The friend took the victim to the hospital, where she was treated for the swelling and the severe bruises on her arms, legs, and back. The victim was released from the hospital later that day, but was so sore that she stayed in bed for two weeks to recover. One of the bruises left a permanent scar on her arm.

The emergency room physician who treated the victim later testified that the victim's bruises on her arms, legs, and back were some of the worst he had ever seen in his 17 years of experience. The physician ordered an ultrasound of the victim's bruised left arm because it was " so huge and swollen," and he was concerned that the bruising might be compressing a deep vein and lead to a blood clot, which could become dislodged and result in a fatal pulmonary embolism. The ultrasound was negative for a blood clot, but the physician believed the victim needed follow-up treatment because of the severity of the injury. The physician also testified that in his years of practicing emergency medicine and evaluating assault victims, he had never ordered a CPK test, which measures muscle breakdown to determine if there is a risk of kidney damage, but he chose to do so in this case because of the severity of the victim's bruising. The results of the testing showed that the victim's CPK level was elevated, although not to the point where her kidneys were in danger. Lastly, the physician testified that the victim's injuries were consistent with someone receiving a severe beating with a tree limb or being kicked hard.

Based on Gipson's attack of the victim on the wooded path on April 9, 2013, Gipson was indicted on charges of aggravated assault [332 Ga.App. 311] with an offensive weapon (Count 1), battery (Count 2), and aggravated assault with intent to murder (Count 3). Gipson also was indicted for aggravated battery (Count 5) based on the September 2012 incident when he caused the victim to fall from a chair and fracture one of her vertebrae.[1]

At the ensuing jury trial, the victim described the attacks that formed the basis for the charges in the indictment. The victim also testified to prior difficulties between her and Gipson, including an incident when Gipson beat the victim with a metal ladder and a silver chain necklace, resulting in multiple abrasions and bruises, and another incident when he bruised the victim's ribs by kicking her. Among other witnesses, the State also called the victim's friend who took her to the hospital after the April 9 attack on the wooded path, the emergency room physician who treated her after the attack, and the executive director of a domestic violence shelter who provided expert testimony regarding the typical characteristics of domestic abuse victims and the cycle of domestic abuse. The State also introduced photographs of the extensive bruising suffered by the victim as a result of the April 9 attack. After the State rested, Gipson elected to testify in his own defense and denied having ever physically attacked the victim.

After hearing all the evidence, the jury found Gipson guilty under Counts 1-3 and 5 of the indictment. The trial court declined to merge any of the offenses and sentenced

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Gipson to a total of 40 years, with the first 15 years served in confinement and the remainder on probation. Gipson filed a motion for new trial, asserting, among other things, that his trial counsel rendered ineffective assistance of counsel. After conducting an evidentiary hearing where Gipson's trial counsel testified, the trial court denied the motion for new trial, resulting in this appeal.

1. Gipson challenges the sufficiency of the evidence only as to Count 3 of the indictment, which charged him with aggravated assault with intent to murder based on the April 9, 2013 attack of the victim on the wooded path. Gipson does not contest that there was evidence that he assaulted the victim; rather, he maintains that there was insufficient evidence for a jury to find that he acted with the intent to kill her. We are unpersuaded.

In addressing a challenge to the sufficiency of the evidence, we do not weigh the evidence, resolve conflicts in the testimony, or evaluate [332 Ga.App. 312] the credibility of the witnesses. Rollins v. State, 318 Ga.App. 311 (733 S.E.2d 841) (2012). Instead, we ask only whether the evidence was sufficient to prove each element of the charged crime beyond a reasonable doubt, and " [a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [S]tate's case, the jury's verdict will be upheld." (Citation omitted.) Id. See Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

To authorize a conviction for aggravated assault with intent to murder, the State must show that the defendant acted with the deliberate intent to kill at the time of the assault, which the jury may infer from the nature of the instrument used in making the ...

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