MCFADDEN, P. J., RAY and RICKMAN, JJ.
McFadden, Presiding Judge.
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.
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.
Sufficiency of the evidence.
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
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).
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.
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.
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.
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.
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.
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.
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.
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 ...