DILLARD, C.J., DOYLE, P.J., and MERCIER, J.
found Glenn Maxwell guilty of aggravated assault (family
violence) in connection with an offense committed against O.
I., the mother of his children. Maxwell appeals, contending
that the evidence was insufficient to support the conviction
entered on the verdict. Finding the contention without merit,
version of OCGA § 16-5-21 (b) (2014) in effect at the
time of the charged offense pertinently provided: "A
person commits the offense of aggravated assault when he or
she assaults . . . (3) [w]ith any object, device, or
instrument which, when used offensively against a person, is
likely to or actually does result in strangulation."
OCGA § 16-5-21 (a) (2014) provided: "As used in
this Code section, the term 'strangulation' means
impeding the normal breathing or circulation of blood of
another person by applying pressure to the throat or neck of
such person or by obstructing the nose and mouth of such
person." The indictment alleged that Maxwell committed
aggravated assault by assaulting O. I. with his "hands,
objects which when used offensively against a person are
likely to result in strangulation by placing [his] hands
around [O. I.'s] throat and applying pressure, therefore
impeding the normal breathing or circulation of the
similar but separately enumerated claims of error challenging
the sufficiency of the evidence "to prove the offense of
aggravated assault as it was alleged in the indictment,"
Maxwell contends that: (1) "[t]he State failed to show
that hands were used to apply pressure to the throat which
impeded normal breathing or circulation of blood"; and
(2) "[t]here was a fatal variance between the manner in
which the indictment averred an aggravated assault and the
evidence at trial.
in the light most favorable to support the verdict,
Turbeville v. State, 268 Ga.App. 88 (601 S.E.2d 461)
(2004), the evidence introduced at trial included the
following. On March 12, 2015, a police officer
responded to a 911 call regarding a domestic disturbance in
an apartment. When the officer arrived at the apartment
building, he heard "yelling and screaming going on
inside an apartment" and saw a teenaged girl outside
holding a baby; the teenager and the baby were crying. The
teenager, who was O. I.'s daughter, asked the officer to
hurry and pointed to an apartment. The officer entered the
apartment through an open door and saw a man sitting on a
couch with his arms around a woman. The man, Maxwell, was
applying a "bilateral neck restraint" or a
"rear choke hold" to the woman, O. I.; the officer
testified that such a hold is commonly referred to as a
"choke hold." The officer had been trained to use
such a hold as a defensive tactic in law enforcement, and had
trained other officers in its use. He testified, without
objection, that such a hold "can render someone
unconscious . . . by restricting the blood flow in [the
person's] neck, the blood flow from the - - the oxygen to
the brain[, ] . . . render[ing] [a person] unconscious until
we resuscitate." Using the prosecutor in a
demonstration, the officer showed the jury the type of choke
hold the officer saw Maxwell applying when he entered the
apartment. The officer, who previously served in the
military, as a firefighter, and as an emergency medical
responder for a fire department, testified (without
objection) that the type of choke hold Maxwell was applying
was dangerous and, if done improperly, could result in
unconsciousness and even death. He added, also without
objection, that Maxwell had O. I. "in a hold where he
was like leaning back on the couch[, ] which is to me that
was applying pressure because it's leaning. The slightest
lean with that is the quicker someone could be rendered
unconscious." According to the officer, "if [that
choke hold is] not applied correctly, you could kill someone
as far as crushing their trachea." The officer
reiterated that O. I. was "being choked" when he
entered the apartment, adding that "[s]he pretty much,
in my eyes, was useless, which made me hurry." O. I.
"was in complete distress." The officer directed
Maxwell to release O. I, but he did not, instead telling the
officer to "come get her." The officer then
"walked over and just grabbed [Maxwell's] hands. . .
.I grabbed his hands off of the neck." After
"separat[ing]" O.I. from Maxwell, the officer told
her "to go stand away from me," handcuffed Maxwell
and placed him in the patrol car.
officer (and backup officers who arrived) questioned O. I.
and her two daughters, both of whom were present during the
incident. O. I. told the officer that she and Maxwell had
argued, then Maxwell "threw her to the couch,"
struck her, and said he had "been wanting to beat
her." O. I. told the officer that her daughters (who
were 15 and 13 years old at the time of trial) had attempted
to intervene, but Maxwell then struck them and threatened to
"beat" them. One of the daughters called 911. A
recording of the 911 call was played at trial. According to
the officer and one of O. I.'s daughters, a child could
be heard in the background of the recording "yelling get
off my mama." At the time, O. I. was pregnant with the
younger of Maxwell's two children.
trial, O. I. testified that she physically attacked Maxwell
and that he was merely attempting to subdue her, not harm
her. She acknowledged that she told the police officer that
Maxwell "grabbed [her] and slammed [her] into the
couch," but she denied that he placed his hands around
her throat or choked her. She denied that she had trouble
breathing and that there was "any pressure applied to
[her] breathing." O. I. admitted that the statement she
made to the police officer at the scene differed from her
trial testimony, explaining that she lied to the officer
because she was angry with Maxwell. O. I. wrote a letter and
an affidavit recanting her earlier statement to police. After
an audio recording of O. I.'s visit to see Maxwell while
he was in jail was played for the jury, O. I. admitted that
Maxwell told her to testify that she was at fault in the
incident and that he had not touched her. At the time of the
trial, O. I. and Maxwell were "still actively in a
evidence was sufficient to show that Maxwell committed
aggravated assault by "placing [his] hands around [O.
I.'s] throat and applying pressure, therefore impeding
the normal breathing or circulation of the blood," as
alleged in the indictment.
out above, the officer testified that he saw O. I.
"being choked" by Maxwell, saw Maxwell leaning back
in a manner that led the officer to believe Maxwell was
applying pressure to O. I.'s neck, knew that the choke
hold Maxwell was applying could render a person unconscious
by restricting blood flow, saw that O. I. was
"useless" while Maxwell was applying the choke
hold, and grabbed Maxwell's hands from O. I.'s neck.
The jury was not required to believe O. I.'s trial
testimony to the contrary.
long as there is some competent evidence, even though
contradicted, to support each fact necessary to make out the
State's case, the jury's verdict will be
upheld." Miller v. State, 273 Ga. 831, 832 (546
S.E.2d 524) (2001) (citation and punctuation omitted). It is
the function of the jury, not the Court, to resolve conflicts
in the testimony and weigh the evidence. Jackson v.
Virginia, 443 U.S. 307, 319 (II) (B) (99 S.Ct. 2781, 61
L.Ed.2d 560) (1979). "[T]he trier of fact is not
obligated to believe a witness even if the testimony is
uncontradicted and may accept or reject any portion of the
testimony." Walsh v. State, 303 Ga. 276, 282
(811 S.E.2d 353) (2018). A jury is authorized to believe a
witness's pre-trial statement and reject any portion of
his or her testimony at trial. Gartrell v. State,
2018 Ga. LEXIS 778, *7. Further,
the State often meets its burden of proving the . . .
essential elements of the crime using circumstantial evidence
from which the jury may draw reasonable inferences, with the
reasonableness of the inferences measured by the evidence
supporting them and the evidence undermining them, whichever
party elicited that evidence.
Worthen v. State, 2019 Ga. LEXIS 22, *22 (3) (e), n.
7. The evidence presented was sufficient to authorize a
rational trier of fact to find beyond a reasonable doubt that
Maxwell was guilty of aggravated assault as charged in the
indictment. See generally Johnson v. State, 247
Ga.App. 157, 160 (2) (543 S.E.2d 439) (2015), overruled in
part on other grounds in Owens v. State, 271 Ga.App.
365, 369 (3) (609 S.E.2d 670) (2005).
Maxwell's similar contention, that "[t]here was a
fatal variance between the manner in which the indictment
averred an aggravated assault and the ...