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GA Court of Appeals Reverses Aggravated Assault and Firearm Convictions

January 8, 2013

In Touchstone v. State, the Georgia Court of Appeals reversed convictions for aggravated assault on a police officer and possession of a firearm during the commission of a crime finding there was insufficient evidence to establish the defendant’s requisite intent to commit an assault.

In April 2010, the Clayton County Police Department received a report of an ongoing burglary and a description of the alleged burglar’s car. Soon after the call, a sergeant on duty spotted a car matching the description. After the officers initiated a stop of the vehicle, the passenger, Dennis Touchstone, jumped out of the car and began running towards nearby woods.

The officer pursued Touchstone but lost sight of him when she slipped and fell while Touchstone disappeared into the wood-line. According to her trial testimony, the officer then heard what sounded like a gunshot and dropped to the ground. She still could not see Touchstone. Police recovered a gun in the area where Touchstone had fled. Touchstone admitted to firing the gun, but he claimed it went off accidentally as he was taking it out of his pocket and attempting to get rid of it.

Touchstone was convicted of aggravated assault on a police officer, possession of a firearm during the commission of a crime, burglary, and obstruction of a law enforcement officer. On appeal, he claimed that the evidence was insufficient to convict him of the aggravated assault and firearm possession charges. The Georgia Court of Appeals agreed.

Under O.C.G.A. § 16-5-20, an assault can be either (1) an attempt to violently injure someone, or (2) the commission of an act which places someone in reasonable apprehension of immediate violent injury. Under O.C.G.A. § 16-5-21(a), an assault becomes aggravated when the defendant uses a deadly weapon. Touchstone was indicted for “knowingly mak[ing] an assault” on the officer with a deadly weapon—an allegation broad enough to allow the jury to convict Touchstone under either type of assault. However, the trial court’s instructions to the jury only included the first type of assault. Thus, the jury could only have found Touchstone guilty of aggravated assault if the prosecution established beyond a reasonable doubt that he attempted to violently injure the officer.

The Court found that the circumstantial evidence presented by the prosecution was insufficient to establish that Touchstone intended to harm the officer. The officer was the sole witness and admitted she could not see Touchstone at the time she heard the gunshot. There was no evidence that Touchstone was even pointing the gun in the officer’s direction when it was fired. Even if the jury chose not to believe Touchstone’s testimony about the gun going off accidentally, there was not enough evidence to prove he deliberately aimed the gun at the officer intending to injure her.

The Court of Appeals held that the reversal of the underlying felony of aggravated assault also required them to reverse the conviction for possession of a firearm during the commission of a crime.

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