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Percell v. State

Court of Appeals of Georgia, Fifth Division

June 12, 2018

PERCELL
v.
THE STATE.

          MCFADDEN, P. J., RAY and RICKMAN, JJ.

          McFadden, Presiding Judge.

         After a jury trial, Craig Edward Percell was convicted of family-violence aggravated battery, two counts of DUI, possession of marijuana, reckless driving, following too closely, failure to maintain lane, and possession of a drug-related object. The trial court denied his motion for new trial, and Percell appeals.

         Percell argues that the evidence does not support the aggravated assault and aggravated battery verdicts the jury returned against him. Percell's argument is moot because those charges were merged with the family-violence aggravated battery conviction, which is supported by sufficient evidence. Percell argues that the trial court erred by denying his morning-of-trial motion for a continuance and by allowing the victim to testify in rebuttal since she had remained in the courtroom during the trial, but those decisions were within the trial court's discretion. Finally, Percell argues that he received ineffective assistance of trial counsel, but he has failed to show both deficient performance and prejudice. So we affirm.

         1. Sufficiency of the evidence.

         Percell challenges the sufficiency of the evidence as to aggravated assault and aggravated battery. His challenge is moot because the trial court merged those counts into the family-violence aggravated battery conviction, which is supported by sufficient evidence.

         In considering the sufficiency of the evidence supporting a criminal conviction, "the relevant question is whether, after viewing 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). It is the function of the jury, not the reviewing court, to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the evidence. Id. "As 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." Miller v. State, 273 Ga. 831, 832 (546 S.E.2d 524) (2001) (citations and punctuation omitted).

         So viewed, the record shows that Percell was in a relationship with the victim: they lived together and they are the parents of two children. On the day of the incident, Percell and the victim were arguing. The victim drove off from their residence with their infant daughter. She looked in her rearview mirror and saw Percell rapidly approaching in his vehicle. She feared for her life. The victim swerved her car into the adjacent lane to get out of the way, but Percell followed and rammed her. The victim's car spun out of control, hit a light pole, and rolled over The victim was evacuated to a hospital by helicopter. She remembered nothing that occurred after the collision until she awoke from a two-week coma. She fractured two vertebrae; broke her collar bone; suffered nerve damage to her arm, rendering her arm useless; punctured her spleen; her lungs collapsed; and she now has a stent in a main artery.

         After the victim left the hospital and while Percell was out on bond, they reconciled. Once again they began arguing, and Percell slapped the victim. He told her, "You of all people should know I don't play." Percell's comment made the victim believe that Percell had intentionally rammed her car.

         A bystander saw the two vehicles speeding, then the victim driving into a turning lane, and Percell following into that lane and hitting the victim's car. The bystander walked to the wreck to see if she could help. The victim was unconscious and unresponsive. She regained consciousness and began screaming that Percell was trying to kill her.

         A Georgia State Patrol trooper who worked on the specialized collision reconstruction team that investigated the accident testified that he determined that Percell's truck struck the victim's car, causing the car to flip, while he was driving more than 56 miles per hour. There was no evidence that the driver of either vehicle tried to brake before the impact. The team determined that Percell had to have driven into the lane of travel into which the victim had swerved in order to strike the victim's car.

         At the scene, an officer arrested Percell after field sobriety tests and a roadside breath test indicated that he was under the influence of alcohol. A GBI forensic toxicologist testified that six hours after the accident, Percell's blood tested positive for the presence of marijuana and alcohol, and that at the time of the accident, Percell's blood-alcohol level would have been .135. Officers found marijuana and a pipe in Percell's car.

         Percell had various explanations for what happened. He said that he came upon the victim and stopped when he saw that she had been in an accident and that the damage to his truck had occurred previously. Later, he said that he came upon the victim, who looked as if she were swatting a bee as she drove, and he may have bumped her. At trial, Percell testified that he hit the victim's car when he took his eyes off the road as he leaned down to answer his phone and that he had no intention of hitting the victim's vehicle. None of Percell's explanations were consistent with the evidence from the scene.

         Percell argues that the aggravated assault conviction cannot be sustained because there is insufficient evidence that any of his acts placed the victim "in reasonable apprehension of immediately receiving a violent injury." OCGA § 16-5-20 (a) (2). See also OCGA § 16-5-21. Percell also argues that the aggravated battery conviction cannot be sustained because there is insufficient evidence that he acted with malice. See OCGA § 16-5-24 (a). Percell's arguments are "moot because the trial court merged [those] count[s] into [the family-violence aggravated battery] count for purposes of sentencing." Lupoe v. State, 284 Ga. 576, 577 (1) n.2 (669 S.E.2d 133) (2008) (citation and punctuation omitted). And the evidence supports the family-violence aggravated battery conviction.

         To convict Percell of family-violence aggravated battery, the state had to prove that Percell "maliciously cause[d] 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" and that the aggravated battery was "committed between . . . persons who are parents of the same child [or] persons excluding siblings living or formerly living in the same household. . . ." OCGA § 16-5-24 (a) and (g). The evidence related above authorized a ...


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