John Travis Chadwick v. State

SECOND DIVISION

MILLER, P. J.,

HODGES and PIPKIN, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS

COURT. ALL FILINGS MUST BE SUBMITTED WITHIN

THE TIMES SET BY OUR COURT RULES.

July 1, 2021

In the Court of Appeals of Georgia

A21A0183. CHADWICK v. THE STATE.

HODGES, Judge.

This case arises from a drunken brawl in which John Atchley (“Atchley”) and

John Travis Chadwick (“Chadwick”) fought each other, and in which Atchley fought

his family members who were attempting to prevent him from driving home drunk

from Chadwick’s house. The brawl ultimately ended when Chadwick kicked Atchley

in the face multiple times, causing him serious injury. As a result of this alcohol-

fueled ordeal, a jury convicted Chadwick of battery as a lesser included charge to

aggravated battery, and of aggravated assault. The trial court denied Chadwick’s

motion for new trial, and he appeals, contending that the trial court erred by (1)

failing to quash the indictment on the ground of immunity because his behavior was

justified; (2) charging the jury as to revenge; (3) failing to charge a lesser included

offense for aggravated assault; and (4) failing to merge Chadwick’s convictions. For

the following reasons, we affirm Chadwick’s aggravated assault conviction, vacate

his battery conviction, and remand the case for re-sentencing.

“On appeal of a conviction based on a jury verdict we should examine the

evidence in a light most favorable to support that verdict. We resolve all conflicts in

favor of the verdict. It is the duty of this court to sustain the verdict if we should find

when viewing the evidence in a light most favorable to the verdict that a rational trier

of fact could find the defendant guilty beyond a reasonable doubt.” (Citations

omitted.) Anderson v. State, 245 Ga. 619, 622 (1) (266 SE2d 221) (1980).

So viewed, the evidence shows that Atchley and Chadwick were acquaintances,

and on April 23, 2016, Atchley arrived at the Chadwick home. Atchley and Chadwick

proceeded to drink beer and moonshine to the point of extreme intoxication.

Eventually, Atchley’s adult son, Alec Atchley (“Alec”), and his girlfriend arrived at

the Chadwick residence. The mood between Atchley and Chadwick changed and after

the men exchanged words, Chadwick punched Atchley in the face and swung at Alec.

Chadwick proclaimed that he was willing to fight anyone.

As the situation deteriorated between Atchley and Chadwick, Alec called his

mother, Robin Atchley (“Robin”), to ask her to come to the Chadwick residence to

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pick up Atchley, who needed to leave but was too drunk to drive. By the time Robin

arrived, Atchley and Chadwick had calmed down and were drinking beer outside the

Chadwick house together. As Robin spoke with Chadwick’s wife Helen, Atchley and

Chadwick walked away and towards a shed beside the Chadwick house. Robin and

Helen followed their husbands to try to separate them. Robin grabbed at Atchley’s

arm to get him to leave and she heard Helen say that Chadwick hit her. After the

encounter by the shed, Atchley looked frightened.

As this was unfolding, Atchley’s other adult son, Payden Atchley (“Payden”),

arrived with his fiancé. As Payden was driving up the driveway, Chadwick’s step-

daughter was leaving and told Payden that he should go get Atchley because

Chadwick had just knocked him out. Knowing that his father kept a gun in his car,

Payden went to retrieve and secure it.

Atchley and his family members all decided that it was best for Atchley to

leave, but despite his intoxication, Atchley was adamantly trying to drive himself. As

a result, Alec and Robin were physically tussling with Atchley trying to remove him

from a truck he climbed inside. During this confrontation, Atchley hit Alec, who then

returned the gesture by punching Atchley in the face. Robin jumped on Atchley in an

attempt to keep him away from Alec, and Atchley pushed Robin down. With Atchley,

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Robin, and Alec engaged in a physical struggle, Payden, who was standing nearby,

fired several shots from his father’s gun into the ground in an attempt to break up the

fight. Atchley then got up and attempted to drive away in a different truck. Alec and

Robin attempted to pull Atchley away from this truck, and they tripped over each

other and all three fell to the ground. Again, Payden fired Atchley’s gun into the

ground in an attempt to break everyone up.

When Atchley landed that time he was face down on the ground. At that point,

Chadwick rapidly approached Atchley, Alec, and Robin, who were all still on the

ground, said something to the effect of “watch this,” and then proceeded to kick

Atchley in the face three times with a steel-toed cowboy boot. Chadwick then went

over to Payden, asked if Payden wanted to fight, and then punched him in the jaw.

Chadwick subsequently swung at, but did not hit, Alec. As a result of this, Atchley

was transported by helicopter to Grady Hospital and suffered a broken nose, a

fractured eye socket, and his tear duct was torn from his eye, which temporarily

popped out of the socket, and required surgery. Atchley now suffers from memory

loss and has lost 90 percent of the use of his left eye.

Following this confrontation, Chadwick was indicted on charges of aggravated

assault and aggravated battery. Atchley moved to dismiss the indictment on the

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ground of immunity, arguing that his actions were justified to protect third persons

as well as his habitation. Following an evidentiary hearing, the trial court denied the

motion.

After a jury trial, at which conflicting accounts of the events of the evening

were presented by members of the Atchley family on the one hand, and friends and

family of Chadwick on the other, Chadwick was convicted of battery as a lesser

included charge to aggravated battery, and of aggravated assault. The trial

court denied Atchley’s motion for new trial, and he timely appealed.

1. Chadwick contends that the trial court erred in denying his pre-trial motion

for immunity because his actions were justified. We disagree.

In relevant part, Georgia law provides that “[a] person who uses threats or force

[to protect others or his habitation pursuant to other provisions of Georgia law] shall

be immune from criminal prosecution therefor. . . .” OCGA § 16-3-24.2. Specifically,

[a] person is justified in threatening or using force against another when

and to the extent that he or she reasonably believes that such threat or

force is necessary to defend himself or herself or a third person against

such other’s imminent use of unlawful force; however, except as

provided in Code Section 16-3-23, a person is justified in using force

which is intended or likely to cause death or great bodily harm only if

he or she reasonably believes that such force is necessary to prevent

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death or great bodily injury to himself or herself or a third person or to

prevent the commission of a forcible felony.

OCGA § 16-3-21 (a). Moreover, “[a] person is justified in threatening or using force

against another when and to the extent that he or she reasonably believes that such

threat or force is necessary to prevent or terminate such other’s unlawful entry into

or attack upon a habitation[.]” OCGA § 16-3-23.

A person who uses threats or force in accordance with Code Section

16-3-21, relating to the use of force in defense of self or others, [or]

Code Section 16-3-23, relating to the use of force in defense of a

habitation, . . . has no duty to retreat and has the right to stand his or her

ground and use force as provided in said Code sections, including

deadly force.

OCGA § 16-3-23.1.

Here, Chadwick moved pretrial for immunity on the ground that his actions

were justified given Atchley’s drunken conduct at his home. The trial court held an

evidentiary hearing, at which it heard conflicting accounts of what transpired at the

Chadwick home that night. Viewed in the light most favorable to the trial court’s

ruling, however, the trial court heard evidence at the immunity hearing that Chadwick

drunkenly attempted to provoke a fight with Atchley, punched Atchley, pushed his

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own wife, and, after saying “watch this,” kicked Atchley three times in the face when

Atchley was lying face-down on the ground after falling as he was attempting to leave

the Chadwick property.

a. Defense of Habitation

As to Chadwick’s claim that he was acting in defense of habitation, he failed

to establish that Atchley was attempting to enter his habitation at the moment of the

attack against Atchley. Indeed, the undisputed evidence at the immunity hearing was

that Atchley was attempting to leave the Chadwick property at the moment he was

attacked, albeit by attempting to drive drunk while his family members tried to force

him into one of their vehicles as a passenger. “Critical to the application of the

defense of habitation is the moment in time at which the defendant resorts to . . . force

and the act being performed by the victim at that moment.” Coleman v. State, 286 Ga.

291, 298 (6) (687 SE2d 427) (2009).

Kicking Atchley in the face under the circumstances present here did not

support immunity from prosecution for defense of Chadwick’s habitation. See

generally Patel v. State, 279 Ga. 750, 752 (a) (620 SE2d 343) (2005) (disapproved

of on other grounds by Gibbs v. State, 303 Ga. 681 (813 SE2d 393) (2018) (“It was

also established that Patel did not open fire until the intruder started to escape from

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the building. Thus, we concluded that any assault upon Patel, and any justification,

was over when Patel started shooting.”) (citation and punctuation omitted); Philpot

v. State, 311 Ga. App. 486, 489 (3) (716 SE2d 551) (2011) (“Where there is no

evidence that the victim was attempting to enter or attack the habitation at the time

he was injured by the defendant, the defense of habitation is not available. That is the

situation here. The uncontroverted evidence showed that Philpot stabbed the victim

after she spat on the ground while both women were standing in the store parking lot;

there was no evidence that the victim was attempting to unlawfully enter or attack

Philpot’s vehicle at the time of the stabbing. Under these facts, there could be no

reasonable belief that stabbing the victim was necessary to prevent or terminate the

other’s unlawful entry into or attack upon a motor vehicle, and thus no basis for an

instruction on defense of habitation.”) (citations, emphasis, and punctuation omitted);

Darden v. State, 233 Ga. App. 353, 354 (1) (504 SE2d 256) (1998) (“[The victim]

was not attempting to enter [Darden’s] house at the time Darden stepped outside and

shot him. To the contrary, [the victim] was walking away from the house to his car.

Darden acknowledged in her statement to police the night of the shooting that [the

victim] was standing at the corner of her house, not at her door, when she fired.

Therefore, OCGA § 16-3-23 is not applicable to the facts of this case.”).

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b. Defense of Self or Others

Similarly, viewed in the light most favorable to the trial court’s decision, we

cannot say that the trial court erred in denying immunity on the ground of defense of

self or others. The evidence does not demonstrate that Atchley posed any threat to

Chadwick himself or his family once Atchley’s family members began escorting him

to a vehicle, given that Chadwick remained physically distant from Atchley at that

time. Although the evidence could support that Atchley previously posed a threat to

Alec and Robin given his acts of violence against them, the undisputed evidence

demonstrated that, at the time Chadwick said “watch this” and kicked Atchley in the

face three times, Atchley was lying face down on the ground. Accordingly, we cannot

say that the trial court erred in finding that Chadwick failed to meet his burden to

establish his entitlement to pretrial immunity pursuant to OCGA § 16-3-24.2. See

Gardhigh v. State, 309 Ga. 153, 157-158 (2) (844 SE2d 821) (2020) (“Even if [the

victim] lunged at Appellant, the [trial] court could find that Appellant was not entitled

to slam [the victim] onto a concrete sidewalk and then punch him multiple times with

enough force to cause the significant facial injuries and brain damage that led to his

death.”); Cotton v. State, 297 Ga. 257, 258-259 (2) (773 SE2d 242) (2015) (finding

that the trial court did not err in refusing to grant pretrial immunity to defendant upon

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determination that defendant was probably not acting in self-defense when, following

his intervention in an altercation between the defendant’s sister and the victim, the

defendant retrieved a knife from the kitchen and fatally stabbed the victim); State v.

Jenkins, 355 Ga. App. 39, 45-46 (2) (840 SE2d 742) (2020) (reversing trial court’s

grant of pretrial immunity when “[t]he undisputed evidence shows that the defendant

initially shot at and hit [the victim], who was unarmed and standing 20 to 30 feet

away from Jackson, who the defendant maintained was wielding the gun.”).

In sum, “[t]o prevail on his immunity motion, [Chadwick] was required to

establish his justification defense by a preponderance of the evidence. Having

reviewed the transcript from the pretrial immunity hearing under the above standards,

we find no error in the trial court’s denial of pretrial immunity.” (Citation omitted.)

Sifuentes v. State, 293 Ga. 441, 444 (2) (746 SE2d 127) (2013).

2. Chadwick contends that the trial court erred in sua sponte charging the jury

on revenge. We find no error.

“In reviewing an allegedly erroneous jury instruction, we apply the plain legal

error standard of review. A jury charge must be considered as a whole and the parts

read in conjunction with each other.” Daniels v. State, 310 Ga. App. 562, 565 (2)

(714 SE2d 91) (2011). “To authorize a jury instruction on a subject, there need only

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be produced at trial slight evidence supporting the theory of the charge. Whether the

evidence presented is sufficient to authorize the giving of a charge is a question of

law.” (Citation and punctuation omitted.) Hodges v. State, 319 Ga. App. 657, 660 (3)

(738 SE2d 111) (2013). However, “[i]t is error for any judge, during any phase of any

criminal case, to express or intimate to the jury the judge’s opinion as to whether a

fact at issue has or has not been proved or as to the guilt of the accused.” OCGA § 17-

8-57 (a) (1).

Here, after charging the jury on the justification defenses raised by Chadwick,

the trial court charged the jury as follows: “A person is not justified in deliberately

assaulting another person, not to prevent an impending wrong, but solely in revenge

for a past or previous wrong, regardless of how serious the previous wrong might

have been, when the episode involved in the previous wrong has ended.” Chadwick

contends that this charge, which was not requested by either side, constituted an

impermissible comment by the trial court on the merits of the case and his defense.

We disagree.

The evidence here demonstrated that Chadwick and Atchley had prior physical

and verbal altercations on the evening at issue before Chadwick kicked Atchley in the

face. Indeed, according to witnesses favorable to Chadwick, prior to the attack on

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him, Atchley arrived at Chadwick’s property uninvited, behaved in a vulgar manner

towards Chadwick’s wife, and engaged in behavior which caused Chadwick’s guests,

including a family friend and his child as well as his step-daughter and her child, to

leave Chadwick’s house.

We find that the evidence here authorized giving a “revenge for a prior wrong”

instruction. See Collins v. State, 308 Ga. 515, 519-520 (2) (842 SE2d 275) (2020)

(finding charge authorized when defendant had prior altercation with victim and

victim’s friends wherein he believed the victim stole from him). Moreover, the

Supreme Court recently held that a similar charge does not constitute an

impermissible comment on the defendant’s guilt in violation of OCGA § 17-8-57. Id.

at 520 (2). Accordingly, this enumeration is without merit.

3. Chadwick claims that the trial court erred in failing to charge the jury with

lesser-included offenses to aggravated assault. We disagree.

It is not wholly clear from his brief which lesser-included offenses Chadwick

claims should have been offered for aggravated assault. In his brief he discusses the

crimes of battery, simple assault, and disorderly conduct, so we presume he alleges

all of those should have been charged. However, “[a] trial judge never errs in failing

to instruct the jury on a lesser-included offense where there is no written request to

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so charge. An oral request to charge does not alter this mandate.” Martin v. State, 349

Ga. App. 656, 659 (2) (825 SE2d 227) (2019). Chadwick never filed a written request

to charge simple assault, OCGA § 16-5-20, and he explicitly withdrew his written

request to charge the jury as to disorderly conduct, OCGA § 16-11-39. Accordingly,

we find no reversible error as to the failure to charge these lesser-included offenses.

Martin, 349 Ga. App. at 659 (2).

As to battery, Chadwick filed a written request to charge the lesser-included

offense of battery, and during the charge conference it was ultimately determined that

it would be given as a potential lesser-included offense to aggravated battery. The

jury was charged as to, and ultimately convicted Chadwick of, battery as a lesser

included offense of aggravated battery.1 Chadwick did not object to the failure to

offer battery as a lesser-included offense to aggravated assault as well. Accordingly,

we review his claim for plain error. OCGA § 17-8-58 (b). To establish plain error,

[f]irst, there must be an error or defect—some sort of deviation from a

legal rule—that has not been intentionally relinquished or abandoned,

i.e., affirmatively waived, by the appellant. Second, the legal error must

be clear or obvious, rather than subject to reasonable dispute. Third, the

1

The propriety of giving simple battery as a lesser-included charge to

aggravated battery in this case is not before us on appeal.

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error must have affected the appellant’s substantial rights, which in the

ordinary case means he must demonstrate that it affected the outcome of

the trial court proceedings. Fourth and finally, if the above three prongs

are satisfied, the appellate court has the discretion to remedy the

error—discretion which ought to be exercised only if the error seriously

affects the fairness, integrity or public reputation of judicial

proceedings.

(Citation, emphasis, and punctuation omitted.) State v. Kelly, 290 Ga. 29, 33 (2) (a)

(718 SE2d 232) (2011).

Here, Chadwick fails the first prong. Chadwick was charged with aggravated

assault, which is committed when “he or she assaults . . . [w]ith a deadly weapon or

with any object, device, or instrument which, when used offensively against a person,

is likely to or actually does result in serious bodily injury[.]” OCGA § 16-5-21 (a) (2).

Specifically, Chadwick’s indictment charged him with

the offense of AGGRAVATED ASSAULT (OCGA § 16-5-21) for that

the said accused, . . . did then and there, make an assault upon the person

of John Atchley with an object which when used offensively against a

person is likely to and actually did result in serious bodily injury, when

said accused did kick, stomp, and strike John Atchley in the face with

the foot and feet of said accused . . . The State introduced unrebutted

evidence that Chadwick kicked Atchley in the face three times with a

steel-toed boot causing serious injuries to Atchley’s face that required

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surgical intervention to repair, which meets the elements of the crime.

See Anderson v. State, 257 Ga. App. 602 (1) (571 SE2d 815) (2002)

(evidence that defendant pushed victim down and kicked him in the

face, causing profuse bleeding, was sufficient to support conviction for

aggravated assault).

Rather than introducing evidence or testimony to controvert the evidence

introduced by the State, Chadwick’s counsel argued that his actions were legally

justified in light of Atchley’s behavior. Accordingly,

[t]he evidence thus did not raise the issue of [ ] battery. Rather, the

evidence showed either that [Chadwick] committed the aggravated

assault with [his foot or feet] or that he did not commit the crime

because his use of [his foot or feet] was justified. Where the evidence

shows either the completed offense as charged or no offense, such

evidence will not support a verdict for one of the lesser grades of the

offense. Because there was no evidence raising [ ] battery as a lesser

included offense of the aggravated assault, the trial court did not err in

refusing to give such a lesser offense jury charge.

(Citation and punctuation omitted.) Van Doran v. State, 244 Ga. App. 496, 497 (536

SE2d 163) (2000). Thus, Chadwick cannot establish that the trial court plainly erred

in failing to charge the jury that it could convict Chadwick of battery as a lesser-

included offense to aggravated assault.

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4. Lastly, Chadwick argues that the trial court failed to merge his conviction

for aggravated assault into his conviction for battery. We agree that the convictions

should merge, but not in the manner suggested by Chadwick.

“Whether offenses merge is a legal question, which we review de novo.”

(Citation and punctuation omitted.) Regent v. State, 299 Ga. 172, 174 (787 SE2d 217)

(2016). Georgia law clearly provides that

[w]hile an accused may be prosecuted for more than one crime arising

out of the same criminal conduct, he may not be convicted of more than

one crime arising out of the same criminal conduct where one crime is

included in the other. OCGA § 16–1–7 (a) (1). A crime is included in the

other when . . . [i]t differs from the crime charged only in the respect

that a less serious injury or risk of injury to the same person, property,

or public interest or a lesser kind of culpability suffices to establish its

commission. OCGA § 16–1–6.

(Emphasis omitted.) Id. at 175.

Here, Chadwick was indicted for and convicted of aggravated assault for

“mak[ing] an assault upon the person of John Atchley with an object which when

used offensively against a person is likely to and actually did result in serious bodily

injury, when said accused did kick, stomp, and strike John Atchley in the face with

the foot and feet of said accused . . .” (Emphasis supplied.) He was also convicted of

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the lesser-included offense of battery on the count of aggravated battery, which

required the State to prove that Chadwick “intentionally cause[d] substantial physical

harm or visible bodily harm to another.” OCGA § 16-5-23.1 (a). On the facts of this

case, the difference between the two convictions is only in the degree or risk of

injury. Accordingly, Chadwick’s battery conviction was included in his aggravated

assault conviction and it should have merged into his aggravated assault conviction.

See, e.g., Hicks v. State, 337 Ga. App. 567, 570 (3) (788 SE2d 502) (2016) (“In this

case, the aggravated assault charge required the State to prove that Hicks used his

hands as deadly weapons to choke the victim and beat her about the head and face in

a manner that was likely to cause or actually resulted in serious bodily harm. As

charged, the aggravated battery count required the State to prove that Hicks seriously

disfigured the victim’s body by striking her about the head and face. The jury,

however, found Hicks guilty of the lesser included offense of simple battery, which

only required proof that Hicks intentionally made physical contact with the victim or

intentionally caused her harm when he struck her about the head and face. These two

offenses—aggravated assault and simple battery—differ only with respect to the risk

of, or seriousness of, injury to the victim. Accordingly, the simple battery merges

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under OCGA § 16–1–6 (2).”). “Consequently, we must vacate [Chadwick’s]

conviction and sentence for simple battery and remand for resentencing.” Id.2

Judgment affirmed in part and vacated in part and case remanded with

direction. Miller, P. J., and Pipkin, J., concur.

2

Chadwick seeks to have his felony aggravated assault conviction merge into

the misdemeanor simple battery conviction by invoking the rule of lenity. However,

“the Supreme Court of Georgia has cautioned that simply because a single act may,

as a factual matter, violate more than one penal statute does not implicate the rule of

lenity. . . . What is required is a statutory ambiguity such that identical evidence, not

merely a single act, results in different punishments. We do not have that scenario

here.” (Citation, emphasis, and punctuation omitted.) Gordon v. State, 337 Ga. App.

64, 66, 68 (1) (785 SE2d 900) (2016).

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