232 Ga. App. at 749 Analyzing directed verdict standard for aggravated assault6 citing casessustaining appellant’s conviction on aggravated assault based upon evidence that the victim suffered bruising and broken teeth after a protracted beating
- In re T.W., 634 S.E.2d 854 (Ga. Ct. App. 2006).published See also Wheeler v. State, 232 Ga.App. 749, 749-750 , 503 S.E.2d 628 (1998) ("[a]lthough hands, feet, and a telephone receiver are not deadly weapons per se, a jury may find them to be deadly depending upon their use, wounds inflicted, and…
- In the Interest of T. W., 634 S.E.2d 854 (Ga. Ct. App. 2006).published See also Wheeler v. State, 232 Ga. App. 749, 749-750 ( 503 SE2d 628 ) (1998) (“[although hands, feet, and a telephone receiver are not deadly weapons per se, a jury may find them to be deadly depending upon their use, wounds inflicted, and…
- Emanuel Deon Harvey v. State, 907 S.E.2d 352 (Ga. Ct. App. 2024).publishedOn appeal, we held that 7 Hernandez v. State, 274 Ga. App. 390, 391 ( 617 SE2d 630 ) (2005). 8 Weaver v. State, 325 Ga. App. 51, 52-53 ( 752 SE2d 128 ) (2013). 9 Wheeler v. State, 232 Ga. App. 749, 749-750 ( 503 SE2d 628 ) (1998). 10 Johns…
- Ferrell v. State, 641 S.E.2d 658 (Ga. Ct. App. 2007).publishedFerrell does not challenge these convictions on appeal. 2 See Clark v. State, 271 Ga. App. 534 (1) ( 610 SE2d 165 ) (2005). 3 See Reid v. State, 281 Ga. App. 640, 641 ( 637 SE2d 62 ) (2006). 4 See OCGA § 16-5-24 (a). 5 Byrd v. State, 251 G…
- Bledson v. State, 787 S.E.2d 809 (Ga. Ct. App. 2016).published (sustaining appellant’s conviction on aggravated assault based upon evidence that the victim suffered bruising and broken teeth after a protracted beating)
232 Ga. App. at 750 “although hands, feet, and a telephone receiver are not deadly weapons per se, a jury may find them to be deadly depending upon their use, wounds inflicted, and other surrounding circumstances”4 citing cases
- In re T.W., 634 S.E.2d 854 (Ga. Ct. App. 2006).published ([a]lthough hands, feet, and a telephone receiver are not deadly weapons per se, a jury may find them to be deadly depending upon their use, wounds inflicted, and other surrounding circumstances)
- In the Interest of T. W., 634 S.E.2d 854 (Ga. Ct. App. 2006).published ([although hands, feet, and a telephone receiver are not deadly weapons per se, a jury may find them to be deadly depending upon their use, wounds inflicted, and other surrounding circumstances)
- Lemming v. State, 612 S.E.2d 495 (Ga. Ct. App. 2005).publishedSee, e.g., Knox v. State, 254 Ga. App. 870, 871-872 ( 564 SE2d 225 ) (2002) (whether milk crate was a deadly weapon was jury question); Wheeler v. State, 232 Ga. App. 749, 750 ( 503 SE2d 628 ) (1998) (telephone receiver); Sexton v. State,…
- Miller v. State, 571 S.E.2d 788 (Ga. 2002).publishedSmith v. Hardrick, 266 Ga. at 55 ; Dixon v. State, 268 Ga. 81, 82 ( 485 SE2d 480 ) (1997); Wheeler v. State, 232 Ga. App. 749, 750 ( 503 SE2d 628 ) (1998).
v.
the State
Rick Ira Wheeler was convicted following a jury trial of aggravated assault under OCGA § 16-5-21 (a) (2). He contends the trial court erred in denying his motion for a directed verdict of acquittal because the state failed to prove he attacked his victim with a deadly weapon. We disagree and affirm.
A motion for a directed verdict in a criminal case should only be granted when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. OCGA § 17-9-1 (a); Alexander v. State, 263 Ga. 474, 478 (3) (435 SE2d 187) (1993). The test set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), is the appropriate one to use when the sufficiency of the evidence is challenged, whether the challenge is from the denial of a directed verdict or the denial of a motion for new trial based upon alleged insufficiency of the evidence. Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984). On appeal a reviewing court may consider all the evidence in the case, and must view the evidence in the light most favorable to the verdict. Id.
Viewed in this light, the record reveals these pertinent facts: On June 3, 1996, Wheeler pulled the victim, a female acquaintance of his, into his hotel room. He stripped her of her clothes and beat her by striking and kicking her. Wheeler beat the victim about the face so severely that her eyes swelled shut and she could not see. The victim tried to flee, but Wheeler grabbed her and threatened to kill her if she left. When Wheeler went into the bathroom, the victim tried to phone for assistance. She testified that Wheeler caught her doing this, took the telephone receiver from her and beat her at least ten times with it. She testified that two of her teeth were broken out during the prolonged attack, most likely during the beating with the telephone. She was finally able to escape when Wheeler, who was drunk, passed out on the hotel bed. The victim stumbled, blind and naked, out of the room and eventually found help. The deputy sheriff who found her, testified that the victim was terrified that Wheeler was going to kill her. The victim’s face was so swollen and bruised following the attack that her mother did not recognize her.
Wheeler contends the state failed to carry its burden of proving an aggravated assault under OCGA § 16-5-21 (a) (2) because the state failed to present sufficient evidence that Wheeler used an object which when used offensively against the victim was likely to or actually did result in serious bodily injury. The victim’s testimony provided direct evidence from which the jury could conclude that Wheeler struck the victim with his hands and feet and with the telephone receiver. Although hands, feet, and a telephone receiver are[*750] not deadly weapons per se, “a jury may find them to be deadly depending upon their use, wounds inflicted, and other surrounding circumstances.” Richards v. State, 222 Ga. App. 853, 854 (1) (a) (476 SE2d 598) (1996); Banks v. State, 169 Ga. App. 571 (1) (314 SE2d 235) (1984). “[W]hether the instrument used constitutes a deadly weapon is properly for the jury’s determination.” Quarles v. State, 130 Ga. App. 756, 757 (2) (204 SE2d 467) (1974). Given the circumstances of the attack, the nature of the victim’s wounds, and the manner in which Wheeler used his fists, feet, and the telephone receiver to beat the victim, we conclude the evidence was sufficient to authorize a rational trier of fact to find Wheeler guilty of aggravated assault beyond a reasonable doubt under the standard set forth above. See, e.g., Richards v. State, supra; Banks v. State, supra.
Decided June 3, 1998. Pierce Winningham III, for appellant. T. Joseph Campbell, District Attorney, Lance T. McCoy, Assistant District Attorney, for appellee.Judgment affirmed.
McMurray, P. J, and Senior Appellate Judge Harold R. Banke concur.