LEMMING v. THE STATE, 272 Ga. App. 122

Per curiam. Following a jury trial, Steve John Lemming appeals his conviction of two counts of aggravated assault and one count of criminal attempt to commit armed robbery, contending that: (1) the evidence was insufficient to support his convictions; and (2) he received ineffective assistance of counsel. For the reasons set forth below, we affirm. 1. Lemming maintains that the evidence was insufficient to support his convictions. The standard of review is well settled.

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. An appellate court does not weigh the evidence or judge the credibility of the witnesses but only determines whether the evidence to convict is sufficient under the standard of Jackson v. Virginia. Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve.

So long as there is some competent evidence, even though contradicted, to support each element of the State’s case, the jury’s verdict will be upheld. Viewed in this light, the record shows that, on the evening of April 10, 2002, Lemming jumped behind the counter at a Waffle House restaurant and attacked a waitress, Elizabeth Sutton, placing a filed- down “pocket paring knife” against her neck. Sutton screamed, and when Darryl Finley, the cook, approached, Lemming warned, “I’ll stick her.

I’ll stick her” and “pok[ed] the knife in her face.” Responding “the ‘f ’ you will,” Finley hit Lemming with a broom and tried to pull Sutton away from Lemming. Lemming then jabbed the knife at Sutton and, in the process, cut Finley’s finger. Finley then punched Lemming with his left hand. After a few more swings of the broom, Lemming ran from the restaurant, and Finley chased after him but failed to catch up to him. After the incident, police who responded to the scene found Lemming in the woods behind the restaurant.

When asked about the knife, Lemming responded, “I tossed it when I ran into the woods.” Following the reading of his Miranda rights, Lemming admitted that he had attempted to rob the restaurant and that he had put a knife to a waitress’s throat. The evidence was sufficient to allow a rational trier of fact to find Lemming guilty beyond a reasonable doubt of criminal attempt to commit armed robbery and of aggravated assault on the waitress, Sutton, and on the cook, Finley.

Lemming argues that Finley’s testimony that he did not perceive Lemming’s knife to be a threat would preclude the conviction for aggravated assault on Finley because there was no evidence that Finley was apprehensive. We disagree. A person commits the offense of aggravated assault when he uses a deadly weapon to commit

an act which places another in reasonable apprehension of immediately receiving a violent injury. Whether a victim has been placed in reasonable apprehension of injury is a question of fact, which may be established by indirect or circumstantial evidence. Our Supreme Court has held that the statute’s requirement that the victim be “in reasonable apprehension” does not mean that the victim must be in fear. In Bates v. State, a unanimous Court explained as follows: Bates contends that the trial court erred in responding to two jury questions.

First, when asked to clarify “reasonable apprehension,” the court answered in part, that “the law of Georgia does not appear to require fear as an element of apprehension.” Although Bates argues that, in the context of the statutory definition of assault, the victim must be in a state of fear, that is not correct. “Reasonable apprehension of injury is not the same as simple fear,” and the fact that the victim does not necessarily experience fear does not preclude a finding of reasonable apprehension. If “reasonable apprehension” does not mean “simple fear,” what does it mean?

In Webster’s Third New International Dictionary, the first two nonobsolete meanings of “apprehension” are: “the faculty of grasping with the intellect” and “the act of grasping with the intellect.” Synonyms of apprehension include intellection and perception. It is only the third meaning of apprehension, according to Webster’s Dictionary, that includes a sense of fear.

The Supreme Court, as well as our Court, seems to have interpreted the statute to require not that the victim have a reasonable fear of immediately receiving a violent injury but rather that the victim have a reasonable perception that he is about to receive a violent injury. According to the case law, that perception can be prompted by acts involving knives as well as acts involving firearms. The victim’s apprehension or perception can be proved by circumstantial or indirect evidence as well as by direct or positive evidence.

Moreover, in Georgia, positive evidence of an adamant denial of apprehension by the victim does not preclude conviction when there is some circumstantial evidence from which the jury could infer a perception of danger. Georgia precedents involve a knife as well as firearms. Decisions in other jurisdictions support the Georgia view. Moreover, evidence of the state of mind of one victim can be relevant to the state of mind of other victims.

What was the circumstantial evidence in this case from which the jury could have inferred that the victim perceived, in advance, the imminent threat of the bloody wound which he did, in fact, eventually receive? The record shows the following: 1. Lemming, the defendant, entered the premises with the specific intent of frightening the Waffle House’s “Employees” (plural). 2. Finley, the cook, was an employee of the Waffle House and hence an intended victim. 3. Lemming acted in an excited, violent manner, jumping over the counter, grabbing Sutton, the waitress, and making verbal threats toward her. 4.

Lemming was brandishing a knife. Although the knife was tiny, it was apparently adequate to place the waitress in reasonable apprehension of immediately receiving a violent injury. We have previously ruled that “the presence of a knife would normally place a victim in [such] apprehension.” Finley was within a broomstick’s length of Lemming and his tiny knife, and was closing the distance fast in an attempt to rescue Sutton. 5. Finley’s co-worker, Sutton, was terrified and thought that she was going to die. 6.

Although the evidence is in conflict, there was some testimony from which the jury could have concluded that Lemming “jabbed” the tiny knife at Finley as well as at Sutton, as illustrated by the following colloquy between the prosecutor and Finley. Q. [W]hat, if any, movement of the knife did you observe? A. As I said before, when I went to pull her behind, he jabbed and stuck me in the finger. Q. But is jabbed your word not mine? A. Yes. Q. When the jabbing occurred, were both you and Elizabeth [Sutton] within range of the jabbing? A. Yeah.

The fact that Lemming jabbed the tiny knife at Finley as well as at Sutton is important because the state of mind of one victim is evidence of the state of mind of another only when the weapon is pointed at all of the victims. Also, it defies belief that a humanbeing could see a tiny knife being jabbed at close range in his direction and fail to perceive the distinct possibility that it might cut him. 7. The tiny knife had its tiny blade exposed and ready for business, rather than being folded as most key chain knives can be.

The evidence that the blade was exposed in a threatening manner was twofold: its appearance was enough to frighten Sutton and it succeeded in cutting Finley. 8. Although the knife was not recovered and not entered into evidence, it was described by this victim, Finley, as “a little pocket paring knife . . . [o]ne of those little key chain knives that had been filed down.” Although it would have been a fair inference that “filed down” meant shortened to an even more tiny size, the jury might also have inferred that “filed down” meant sharpened. What inference the jury actually did draw, if any, is speculative.

But on appeal of a criminal conviction, all evidence is viewed favorably to the verdict. 9. Finley was actually cut by Lemming’s knife. The wound may have occurred in the general melee while Lemming was trying to cut Sutton. But the evidence also supports an inference that Lemming deliberately jabbed the knife at Finley (see no. 6, above). In contradiction to the circumstantial evidence listed above, there was direct evidence that Finley had no perception of a threat from the knife.

The most telling evidence on this point is contained in the following exchange between the prosecutor and the victim Finley: Q: Did you consider the knife to pose a threat toward you? A: Yeah, well, not to me, to her. If we were weighing the evidence, we might find that this positive evidence that Finley did not perceive the possibility that he would be injured outweighed the circumstantial evidence that he did.

But on appeal we do not weigh evidence or determine witness credibility; we only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. We view the evidence in the light most favorable to the verdict. “As 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.” The nine pieces of circumstantial evidence listed above, when viewed in the light most favorable to the verdict, require us to affirm the conviction.

In addition, the evidence supports the finding that Finley sustained a violent, albeit, superficial, injury. In this regard, the statute cited in the indictment, OCGA § 16-5-21, requires that an aggravated assault be made with a deadly weapon, i.e., a weapon capable of producing death, which is the most severe possible injury.

But an assault per OCGA § 16-5-20 (a) (2) requires only that the victim be in reasonable apprehension (i.e., perception) of receiving a “violent injury.” Thus, a conviction for aggravated assault does not require that the victim perceive the onset of a deadly or severe injury, but merely a “violent injury” from a weapon which is capable of causing death. Being unwillingly cut by an assailant, however superficially, is clearly a violent injury. There was ample evidence to support the jury’s conclusion that Finley perceived the immediate reception of the superficial but violent wound.

In response to a leading question, Finley opined that the cut he suffered was superficial. Q. And the cut you received, would you say it was a superficial cut? It was a small cut? A. Yeah. But a truck driver who witnessed the attack described the injury somewhat differently. Q. Did you ever actually see anyone get stabbed? A. No. The only thing I saw as far as blood was the injury the cook had sustained. Q. Okay. And what kind of injury was that? A. I’m not a doctor. I couldn’t tell you. Q. Did he have a small injury or was it a big injury? A. I know he was bleeding pretty good from his thumb.

Considering all the evidence, and construing it as we must in favor of the verdict, we affirm Lemming’s conviction for aggravated assault on Finley, the cook, who did suffer a violent injury, as well as his conviction for the assault on Sutton, the waitress, who was not in fact injured. We also affirm Lemming’s conviction for criminal attempt to commit armed robbery. 2. Lemming also argues, on various grounds, that he received ineffective assistance of counsel. In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U.

S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), [Lemming] must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. In addition, there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy.

In the absence of testimony to the contrary, counsel’s actions are presumed strategic. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous. Lemming’s first assertion of ineffective assistance of counsel concerns the testimony of the psychologist who testified on his behalf with regard to his mental condition; during questioning by Lemming’s trial counsel, the psychologist made three passing references to the fact that Lemming was in jail when he examined him and prepared his report.

Lemming asserts that he was denied effective assistance of counsel because trial counsel failed to instruct the psychologist not to mention Lemming’s incarceration, and that the references to Lemming’s incarceration placed his character in evidence. This assertion of ineffective assistance of counsel fails to satisfy either prong of Strickland. First, at the hearing on the motion for new trial, trial counsel testified that she had in fact told the psychologist not to mention, while testifying, that Lemming was in jail.

The trial court was entitled to believe trial counsel’s testimony that she properly instructed the psychologist. Second, a passing reference to a defendant’s “having been ‘in jail’ [does] not impermissibly place his character in evidence.” Lemming thus fails to show either attorney error or actual prejudice. Lemming also contends that trial counsel’s assistance was ineffective because she failed to object when the prosecutor referred to him as the “bad guy.” The reference about which Lemming complains occurred during the direct examination of Finley.

The prosecutor had asked Finley to step down and demonstrate where he, Sutton, and Lemming had been in relation to each other when the attack on Sutton occurred. The prosecutor, taking the role of Sutton, asked Finley to stand at the same distance from him that Finley was from Sutton when Lemming attacked. The prosecutor then asked Finley to take the role of Lemming while he took the role of Sutton and asked Finley to show how Lemming was touching Sutton and what their relative positions were. Continuing with the reenactment, the prosecutor then said, “Stay here just for a second, please.

We don’t have a third person to throw into the mix. But you are not in this scenario between you and I the bad guy and the victim. But where are you?” In the context in which the prosecutor made his remark, the term “bad guy” was used to designate Finley’s role in the reenactment of the assault on Sutton, not to improperly inject Lemming’s character into evidence. As in Salgado v.

State “[w]e cannot find that the use of the term ‘bad guy[ ]’ in this manner improperly injected [Lemming’s] character into evidence.” However, even assuming that the comment was improper, Lemming has failed to show actual prejudice resulting from trial counsel’s failure to object to the use of the term. Lemming’s next claim of ineffective assistance of counsel involves the testimony of Douglas Eberhardt and Shawn Kerr, two customers who were in the restaurant at the time of the crimes and who were called as defense witnesses at trial.

On direct examination, Eberhardt testified that he had not seen a knife during the attack and that he thought he would have seen a knife if Lemming had been holding one to Sutton’s throat.

On cross-examination, however, Eberhardt was shown a statement he had given to the police about an hour after the incident in which he had stated that Lemming had “jumped over the counter and started to attack the waitress with a knife.” When shown his earlier statement, Eberhardt admitted, “If I did say that then, yeah, that would be what I would have seen at that time.” Kerr, during direct examination, made no reference to a knife, and he said that Lemming was just swinging his arm.

He, too, however, was shown the statement he had given to the police following the incident in which he related that Lemming had come into the Waffle House, “[j]umped the counter and tried to stab waitress.” When he tried to explain his failure to mention the knife, the prosecutor asked, “Okay, so now your testimony definitively is you saw that man try to stab the Waffle House employees?” Kerr replied, “Yes.” After the testimony of Eberhardt and Kerr, Lemming’s trial counsel called a private investigator to the stand to have him testify that statements that Eberhardt and Kerr had made to him contradicted their respective statements to the police.

The trial court, however, refused to allow this attempt at impeaching Eberhardt’s and Kerr’s testimony because trial counsel had failed to lay a proper foundation for impeachment. Lemming argues that trial counsel’s performance was deficient because she failed to take the proper steps to impeach the witnesses. We agree that trial counsel’s attempts to impeach Eberhardt and Kerr reveal a misunderstanding as to the steps necessary to proper impeachment pursuant to OCGA § 24-9-83.

However, it is clear that, even if the witnesses had been properly impeached through use of the statements they made to the private investigator, Lemming cannot show that the outcome of the trial would have been different. Both Eberhardt and Kerr, when shown the statements they made to the police that Lemming had tried to stab the waitress, expressed their belief that those statements, made shortly after the incident, were correct as to what had happened rather than their court testimony based on current memory of what had happened a year and a half earlier.

Moreover, Officer Everson testified that Lemming had told him that he had a knife and had put it to a waitress’s throat. Finally, Lemming contends that he was denied effective assistance of counsel because trial counsel failed to introduce in evidence a copy of a check for $17,500 he received days before the crimes from a personal injury settlement. Lemming argues that evidence that he had received a large sum of money “would have negated any possible motive [he] may have had to commit the offense of criminal attempt to commit armed robbery.” Again, Lemming fails to show the necessary prejudice.

Trial counsel elicited testimony from both Lemming’s uncle and Lemming himself concerning the settlement he had received as a result of his injury. The assertion that producing a copy of the settlement check would change the outcome of the trial when testimony concerning the settlement did not have that effect is mere speculation: “[S]uch speculation raises no more than a mere possibility, a showing which is insufficient in these circumstances.” Judgment affirmed. Andrews, P. J., Mikell and Adams, JJ., concur. Bernes, J., concurs fully and concurs specially as to Division 1. Ruffin, C. J., Blackburn, P.

J., and Barnes, J., concuras to Division 2 and dissent as to Division 1. OCGA § 16-5-21. OCGA § 16-4-1. We note that Lemming received the same sentence, fifteen years with eight years to serve, on both Counts 1 and 2, the aggravated assault counts, sentences to run concurrently, and that he was not sentenced on Count 3, which merged with the aggravated assault charges. 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). (Citation and footnote omitted.) Krauss v. State, 263 Ga. App. 488 (1) (588 SE2d 239) (2003). (Footnote omitted.) Jackson v. State, 251 Ga.

App. 578, 579 (1) (554 SE2d 768) (2001), citing OCGA §§ 16-5-20; 16-5-21. 275 Ga. 862 (572 SE2d 550) (2002). (Punctuation omitted.) Id. at 865 (4), citing Carter v. State, 248 Ga. App. 139 (1) (546 SE2d 5) (2001); Hicks v. State, 211 Ga. App. 370, 373 (1) (439 SE2d 56) (1993). Accord Lunsford v. State, 260 Ga. App. 818, 821 (2) (581 SE2d 638) (2003). Webster’s New Intl. Dictionary (Unabridged) (1976), p. 106. The Supreme Court’s

interpretation of “apprehension” is also supported by The Oxford English Dictionary, which, after providing three meanings of physical apprehension, provides as the first mental sense of the word “[t]he action of learning, the laying hold or acquirement of knowledge.” The Compact Edition of the Oxford English Dictionary, Oxford University Press (1971), Vol. I, p. 103.

Other meanings provided by Oxford include “[t]he action of grasping with the intellect; the forming of an idea; conception; intellection” and “[t]he product of grasping with the mind.” The twelfth sense provided is “[f]ear as to what may happen; dread.” Id. The order of senses is historical. See Webster’s, supra, Explanatory Note 12.5, p. 17a. See, e.g., Carter, supra at 139-140 (1). Jackson, supra. Lunsford, supra (gun) (“I was never at any point afraid of him”) (punctuation omitted); Carter, supra (knife of unspecified size); Hicks, supra (miscellaneous firearms). Id. See also Gordian v. State, 261 Ga.

App. 75, 76 (1) (581 SE2d 616) (2003) (police said victim “look[ed] fearful” of gun although she testified that she was “not fearful”). See, e.g., State v. Vontress, 88 P3d 807 (Kan. App. 2004) (unpublished) (knife); State v. LaMere, 190 Mont. 332, 336 (621 P2d 462) (1980) (same). Jackson, supra. In Jackson, the gun was pointed at all three victims. In the case at bar, there was some evidence that the tiny knife was “jabbed” at both victims. State v. Bolman, 222 Ga. App. 534, 535 (474 SE2d 721) (1996).

In theory there could perhaps be some knives so designed and constructed that they are not deadly weapons within the meaning of OCGA § 16-5-21. But in Georgia what is or is not a deadly weapon is a question of fact for the jury. See, 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, 189 Ga. App. 331, 332 (3) (375 SE2d 661) (1988) (pocketknife); Spaulding v. State, 185 Ga. App. 812, 813 (1) (366 SE2d 174) (1988) (automobile).

Jackson, supra. Hill v. State, 269 Ga. App. 459 (604 SE2d 300) (2004). We note that if the case at bar were a civil lawsuit being reviewed on appeal after the grant or denial of a motion for

summary judgment, the positive, direct testimony by Finley would he more than enough to make the circumstantial evidence of Finley’s perception evaporate. When we review a

summary judgment, the rule is that “a finding of fact which may he inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.” Backus v. Ray Jones, Inc., 150 Ga. App. 753, 756 (258 SE2d 693) (1979). But on review of a judgment entered after a jury trial, the rule has been for more than a century in criminal and civil cases that “[cjircumstantial evidence may outweigh positive evidence in probative value.” (Citations omitted.) Stephens v. State, 127 Ga. App. 416, 425 (5) (193 SE2d 870) (1972). Accord Minter v. Kent, 62 Ga.

App. 265, 272 (8 SE2d 109) (1940); Jefferson Standard Life Ins. Co. v. Bentley, 55 Ga. App. 272, 279 (190 SE 50) (1937); J. S. & L. Bowie & Co. v. Maddox & Goldsmith, 29 Ga. 285, 287 (1859). Jackson v. Virginia, supra. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). (Citation and punctuation omitted.) Jackson v. State, 236 Ga. App. 260, 261 (511 SE2d 615) (1999). (Citation and punctuation omitted.) Herndon v. State, 235 Ga. App. 258 (509 SE2d 142) (1998). Coggins v. State, 275 Ga. 479, 482 (3) (569 SE2d 505) (2002). (Citations omitted.) Gordon v.

State, 273 Ga. 373, 379 (4) (f) (541 SE2d 376) (2001). 268 Ga. App. 18 (601 SE2d 417) (2004). (Footnote omitted.) Id. at 22 (2). Gordon, supra. (Citations omitted.) Bogan v. State, 249 Ga. App. 242, 245 (2) (b) (547 SE2d 326) (2001).