Gillespie v

State, 280 Ga. App. 243, 633 S.E.2d 632 (2006). Although an officer alleged that the defendant threw the defendant’s elbows 796 back and forth, evidence was insufficient to support the defendant’s conviction for simple battery because the state failed to prove the necessary element of contact. Ewumi v. State, 315 Ga. App. 656, 727 S.E.2d 257 (2012). Officer lacked probable cause to arrest the defendant for battery because a struggle between the defendant and the officer ensued only after the officer attempted to unlawfully arrest defendant for obstruction. Defendant was justified in resisting the unlawful arrest with all force that was reasonably necessary to do so. Ewumi v. State, 315 Ga. App. 656, 727 S.E.2d 257 (2012). Defendant not deprived of Sixth Amendment right to counsel. — In a battery prosecution, setting aside the defendant’s failure to object to a second attorney’s representation at trial, a denial from the defendant’s first attorney of an alleged promise to represent the defendant after that counsel’s suspension had expired gave the trial court sufficient grounds for finding that no such promise occurred, eliminating the defendant’s denial of the right to counsel claim; moreover, inasmuch as the defendant failed to challenge the trial court’s finding that the second attorney’s representation was effective, the defendant was not entitled to a new trial. Northington v. State, 287 Ga. App. 96, 650 S.E.2d 760 (2007). Multiple charges resulting from single attack. — Evidence that defendant hit defendant’s love interest on the head, pushed the love interest around, grabbed the love interest by the hair, jerked the love interest to the ground, and stuck a knife to the love interest’s throat supported the trial court’s judgment finding defendant guilty of two counts of battery, and the trial court did not err by imposing separate sentences for each conviction or by ordering defendant to serve those sentences consecutively. McFalls v. State, 260 Ga. App. 578, 580 S.E.2d 328 (2003). When the victim attempted to intervene to break up a fight between the defendant and another but the defendant aggressively hit the victim causing the victim to bleed above the eye, the evidence was sufficient to show lack of justification and 16-5-23 to sustain the defendant’s conviction for simple battery. Cobble v. State, 259 Ga. App. 236, 576 S.E.2d 623 (2003). Evidence that showed that the defendant attacked the defendant’s spouse and the spouse’s parent and broke the windshield and at least one other window on the spouse’s car was sufficient to sustain the defendant’s convictions on two counts of simple battery and one count of criminal trespass, and the defendant was not subjected to cruel and unusual punishment because the trial court imposed a sentence of 12 months’ incarceration for simple battery and 12 months’ incarceration for criminal trespass, and ordered that the defendant serve the sentences consecutively. Hill v. State, 259 Ga. App. 363, 577 S.E.2d 61 (2003). Sentence. — Defendant’s sentence to three consecutive twelve month terms for three simple battery convictions, with eight months to serve in confinement and the rest on probation, did not constitute cruel and unusual punishment. Dudley v. State, 242 Ga. App. 53, 527 S.E.2d 912 (2000). Charge dismissed on basis of immunity. — Trial court properly held that the defendant, who was charged with family violence battery and simple battery under O.C.G.A. §§ 16-5-23.1(f ) and 16-5-23, was immune from prosecution under O.C.G.A. § 16-3-24.2. The testimony of the defendant’s friend that the defendant restrained the friend after the friend broke the defendant’s windshield and kicked a car seat, knocking the defendant into the steering wheel, provided some evidence that the defendant’s actions were justified under O.C.G.A. § 16-3-21(a). State v. Yapo, 296 Ga. App. 158, 674 S.E.2d 44 (2009). Simple battery conviction merged into family violence battery conviction. — Defendant’s conviction for simple battery, O.C.G.A. § 16-5-23(a)(2), should have been merged into the defendant’s conviction for family violence battery, O.C.G.A. § 16-5-23.1, because each battery was not a separate and complete criminal act but rather was part of a continuous criminal act, committed at the same time and place and inspired by the same criminal intent. Clement v. State, 797 General Consideration (Cont’d) 309 Ga. App. 376, 710 S.E.2d 590 (2011). Restitution authorized. — Trial court was authorized under O.C.G.A. § 17-14-9 to order the defendant to pay the victim’s medical expenses as restitution for damages caused by the defendant’s simple battery of the victim in violation of O.C.G.A. § 16-5-23(a) because the court’s finding that the victim was injured by and had incurred costs as a result of the defendant’s criminal behavior toward the victim was not clearly erroneous; the order for restitution did not exceed the amount of costs the victim incurred, and even if others at the scene could have also kicked the victim, that did not negate the defendant’s liability for damages caused by the defendant’s role in the attack. Elsasser v. State, 313 Ga. App. 661, 722 S.E.2d 327 (2011), cert. denied, No. S12C0949, 2012 Ga. LEXIS 555 (Ga. 2012). Insurance policy assault and battery endorsement. — Trial court did not err in finding that, under the policy, the plaintiff ’s claim for damages for false imprisonment arose out of an assault and battery and were thus subject to the $50,000 sublimit in the assault and battery endorsement because under the clear language of the endorsement, the plaintiff ’s damages for false imprisonment and false arrest arose out of an alleged assault and battery and the assault and battery were the genesis of the plaintiff ’s claims for false imprisonment and arrest. Zook v. Arch Specialty Ins. Co., 336 Ga. App. 669, 784 S.E.2d 119 (2016). Cited in Barrett v. State, 123 Ga. App. 210, 180 S.E.2d 271 (1971); Newton v. State, 127 Ga. App. 64, 192 S.E.2d 526 (1972); Williams v. State, 127 Ga. App. 386, 193 S.E.2d 633 (1972); Smith v. State, 127 Ga. App. 468, 193 S.E.2d 921 (1972); Clark v. State, 131 Ga. App. 68, 205 S.E.2d 71 (1974); Mize v. State, 131 Ga. App. 538, 206 S.E.2d 530 (1974); Echols v. State, 134 Ga. App. 216, 213 S.E.2d 907 (1975); Taylor v. State, 135 Ga. App. 916, 219 S.E.2d 629 (1975); Harper v. State, 135 Ga. App. 924, 219 S.E.2d 636 (1975); Fountain v. York, 237 Ga. 784, 229 S.E.2d 629 (1976); Williams v. State, 144 Ga. App. 72, 240 16-5-23 S.E.2d 591 (1977); Hunter v. Clardy, 558 F.2d 290 (5th Cir. 1977); Barber v. State, 146 Ga. App. 523, 246 S.E.2d 510 (1978); Riner v. State, 147 Ga. App. 707, 250 S.E.2d 161 (1978); State v. Burroughs, 149 Ga. App. 183, 254 S.E.2d 144 (1979); State v. Burroughs, 244 Ga. 288, 260 S.E.2d 5 (1979); P.D. v. State, 151 Ga. App. 662, 261 S.E.2d 413 (1979); Jinks v. State, 155 Ga. App. 925, 274 S.E.2d 46 (1980); Radney v. State, 156 Ga. App. 442, 274 S.E.2d 800 (1980); Ables v. State, 156 Ga. App. 678, 275 S.E.2d 750 (1980); Hicks v. State, 157 Ga. App. 79, 276 S.E.2d 129 (1981); Duncan v. State, 163 Ga. App. 148, 294 S.E.2d 365 (1982); Watkins v. State, 254 Ga. 267, 328 S.E.2d 537 (1985); Cater v. State, 176 Ga. App. 388, 336 S.E.2d 314 (1985); McCrary v. State, 176 Ga. App. 683, 337 S.E.2d 442 (1985); Jackson v. State, 177 Ga. App. 718, 341 S.E.2d 274 (1986); Patterson v. State, 181 Ga. App. 68, 351 S.E.2d 503 (1986); McCord v. State, 182 Ga. App. 586, 356 S.E.2d 689 (1987); Johnson v. State, 185 Ga. App. 167, 363 S.E.2d 773 (1987); Smith v. State, 186 Ga. App. 303, 367 S.E.2d 573 (1988); Hudgins v. State, 186 Ga. App. 883, 369 S.E.2d 54 (1988); Howe v. State, 202 Ga. App. 462, 414 S.E.2d 748 (1992); Hussey v. State, 206 Ga. App. 122, 424 S.E.2d 374 (1992); Bryant v. State, 226 Ga. App. 135, 486 S.E.2d 374 (1997); Vaughn v. State, 226 Ga. App. 318, 486 S.E.2d 607 (1997); In re A.C., 226 Ga. App. 369, 486 S.E.2d 646 (1997); Dunn v. State, 234 Ga. App. 623, 507 S.E.2d 170 (1998); Cook v. State, 255 Ga. App. 578, 565 S.E.2d 896 (2002); Maynor v. State, 257 Ga. App. 151, 570 S.E.2d 428 (2002); Strickland v. State, 265 Ga. App. 533, 594 S.E.2d 711 (2004); Lloyd v. State, 280 Ga. 187, 625 S.E.2d 771 (2006); Martin v. State, 278 Ga. App. 465, 629 S.E.2d 134 (2006); Glanton v. State, 283 Ga. App. 232, 641 S.E.2d 234 (2007); In the Interest of B.M., 289 Ga. App. 214, 656 S.E.2d 855 (2008); Armstrong v. State, 292 Ga. App. 145, 664 S.E.2d 242 (2008); Whatley v. State, 296 Ga. App. 72, 673 S.E.2d 510 (2009); Greene v. State, 295 Ga. App. 803, 673 S.E.2d 292 (2009); Futch v. State, 316 Ga. App. 376, 730 S.E.2d 14 (2012); Martinez v. State, 322 Ga. App. 63, 743 S.E.2d 621 (2013); State v. Randle, 298 Ga. 375, 781 S.E.2d 781 798 (2016); State v. Ashley, 299 Ga. 450, 788 S.E.2d 796 (2016); Harper v. State, 337 Ga. App. 57, 785 S.E.2d 691 (2016); Parks v. State, 304 Ga. 313, 818 S.E.2d 502 (2018). Jury Instructions Charging the language of O.C.G.A. § 16-5-23(a)(1) and (a)(2) clearly identified ‘‘physical contact’’ as an element of the crime and the court was not obligated to give defendant’s requested charge that ‘‘physical contact is required to prove a simple battery.’’ Brinkworth v. State, 222 Ga. App. 288, 474 S.E.2d 9 (1996). Instructions not required on simple battery where not reasonably raised by evidence. — When the offense of simple battery is not reasonably raised by the evidence, it is not in issue so as to require instructions. Guthrie v. State, 147 Ga. App. 351, 248 S.E.2d 714 (1978). Refusal to give requested charge not error. — Trial court did not err in refusing to give the defendant’s requested jury charge that consent or lack thereof was an element of simple battery because the trial court correctly charged the jury by quoting the statutory language in O.C.G.A. § 16-5-23(a)(1), and the defendant was allowed to present a consent defense to the jury as a challenge to the ‘‘insulting or provoking nature’’ element. Redding v. State, 318 Ga. App. 84, 733 S.E.2d 383 (2012). Charging as a lessor included offense of cruelty to children. — Trial court did not err in refusing to charge on simple battery under O.C.G.A. § 16-5-23 as a lesser included offense of cruelty to children; there was no evidence to support the offense of simple battery because the defendant claimed that the child accidentally fell while the defendant was playing with the child. Moore v. State, 283 Ga. 151, 656 S.E.2d 796 (2008). Charging lesser included offense of aggravated assault. — Since the jury was authorized to decide defendant’s fists and hands were not used as deadly weapons as required for aggravated assault, there was no error in charging on simple battery, which was a lesser included offense of aggravated assault. Guevara v. 16-5-23 State, 151 Ga. App. 444, 260 S.E.2d 491 (1979). Defendant failed to demonstrate that the defendant’s trial counsel erred by failing to request a jury charge on simple battery as a lesser included offense of the charged crime of aggravated assault because there was no evidence that the defendant made physical contact with the victim or caused physical harm to the victim; since the state’s evidence establishes all of the elements of an offense, and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense. Davis v. State, 308 Ga. App. 7, 706 S.E.2d 710 (2011). Charging in rape case. — In all cases where defendant is charged with rape, and where evidence under any view thereof would authorize conviction for lesser offense necessarily involved in graver charge, the jury should be instructed that defendant may be convicted of the lesser offense. Where all evidence shows either completed offense as charged, or no offense, such evidence will not support a verdict for one of the lesser grades of the offense, and court should not charge on such lesser grades. Hardy v. State, 159 Ga. App. 854, 285 S.E.2d 547 (1981). Charging entire Code section. — It is not reversible error to charge entire Code section to the jury even though a portion thereof was not specifically pertinent to the accusation. Zager v. State, 172 Ga. App. 207, 322 S.E.2d 530 (1984); Jackson v. State, 205 Ga. App. 452, 422 S.E.2d 304 (1992). Defendant was indicted for simple battery only by causing the victim physical harm, but the court instructed the jury that it was ‘‘charging the definition of simple battery as it is contained in the Official Code of Georgia Annotated 16-5-23’’; the instruction was not improper, as although the court recited the entire statutory definition of simple battery, it charged the jury that it should find the defendant guilty if it believed that the defendant had committed simple battery ‘‘as alleged in the indictment,’’ the court instructed the jury that the defendant had been indicted for simple battery by ‘‘un- 799 Jury Instructions (Cont’d) lawfully and intentionally causing physical harm to the victim, by hitting the victim in the arms, back and face,’’ and the indictment went out with the jury to aid it in deliberations. Hammonds v. State, 263 Ga. App. 5, 587 S.E.2d 161 (2003). Battery charge not proper given use of deadly weapon. — Since the indictment alleged assault with a deadly weapon, and the evidence showed that an assault was committed with a knife, aggravated assault was proved beyond a reasonable doubt, and the evidence did not support a finding that the defendant committed a battery. Therefore, the trial court was not required to charge the jury on battery as a lesser included offense. Scott v. State, 208 Ga. App. 561, 430 S.E.2d 879 (1993). Whether striking person with weapon likely to kill is felony is jury question. — Whether an assault and battery committed by striking one over the head with a weapon likely to produce death would amount to a felony, in that it was done with intent to kill even though death did not in fact result, would be a question for the jury. Mullis v. State, 196 Ga. 569, 27 S.E.2d 91 (1943). Assault and battery committed with automobile. — Assault and battery may be committed by striking another with an automobile intentionally, or by driving the automobile recklessly as to justify a jury in finding that there was a reckless disregard of human life and safety. Henry v. State, 49 Ga. App. 80, 174 S.E. 183 (1934); Maloney v. State, 57 Ga. App. 265, 195 S.E. 209 (1938); Martin v. State, 98 Ga. App. 136, 105 S.E.2d 250 (1958); Bailey v. State, 101 Ga. App. 81, 113 S.E.2d 172 (1960). It is assault and battery if, under like circumstances, an automobile is driven against another vehicle in which persons are riding, and the collision occasions physical injuries to persons in the vehicle so struck. Henry v. State, 49 Ga. App. 80, 174 S.E. 183 (1934); Maloney v. State, 57 Ga. App. 265, 195 S.E. 209 (1938); Martin v. State, 98 Ga. App. 136, 105 S.E.2d 250 (1958). Assault and battery on victim. — When there was no indication that twist- 16-5-23 ing the victim’s hand and jerking the victim around were done for any lawful purpose, the jury was amply authorized to find that such acts were offensive and harmful, at least to the feelings and peace of mind of the victim, and that, as such, the actions constituted an assault and battery. Brown v. State, 57 Ga. App. 864, 197 S.E. 82 (1938). Charging jury as to lesser included offenses. — When a graver charge, such as rape, necessarily includes an offense of lesser grade, such as assault and battery, particularly if the minor offense is expressly alleged in the indictment, it is the duty of the judge, without request, to instruct the jury as to the principles of law applicable to the minor offense, if, under any view of the evidence, independently of the defendant’s statement, a finding that the defendant was guilty of the minor but not the major offense would be authorized. It is, however, not error to fail to instruct the jury as to the minor offense when all the evidence connecting the defendant with the transaction shows that the minor offense was necessarily but an incidental part of the major offense perpetrated. Whitley v. State, 188 Ga. 177, 3 S.E.2d 588 (1939). Trial court gave the jury the option to find the defendant guilty of the lesser included offense of misdemeanor battery or of felony aggravated battery as indicted, but since the jury rejected the misdemeanor battery offense and found the additional aggravating elements to warrant a felony conviction, the idea that the jury might have reached a different result had they also been charged on the even less culpable misdemeanor of simple battery is not reasonable. Christensen v. State, 245 Ga. App. 165, 537 S.E.2d 446 (2000). It was unnecessary for the trial court to charge on the lesser offenses of battery and simple battery because the indictment charged defendant and others with malice murder by stabbing the victim to death, and there was no evidence whatsoever that defendant’s beating of the victim was a separate act. Lamb v. State, 273 Ga. 729, 546 S.E.2d 465 (2001). Sexual battery was not a lesser included offense of statutory rape as a matter of 800 law, and because the indictment charging defendant with statutory rape was narrowly drawn and the evidence did not support instructions allowing the jury to find defendant guilty of sexual battery or simple battery, the trial court did not err when it denied defendant’s request to instruct the jury that sexual battery and simple battery were lesser included offenses of statutory rape. Neal v. State, 264 Ga. App. 311, 590 S.E.2d 168 (2003). When the defendant was charged with sexual battery under O.C.G.A. § 16-6-22.1, the trial court properly refused to instruct on simple battery under O.C.G.A. § 16-5-23(a) as a lesser included offense. The defendant claimed that the victim had placed his hand on the outside of her clothing over her vagina, and simple battery required intentional contact. Engle v. State, 290 Ga. App. 396, 659 S.E.2d 795 (2008), overruled on other grounds, Watson v. State, 297 Ga. 718, 777 S.E.2d 677 (2015). Trial court did not err in failing to charge the jury on simple battery, O.C.G.A. § 16-5-23, as a lesser included offense of cruelty to a child in the first degree, O.C.G.A. § 16-5-70(b), because the evidence did not authorize such a charge; if the jury believed that an accident occurred, no battery was committed, but if the jury accepted the state’s evidence, then the jury was authorized to find that the defendant intentionally assaulted the victim, thereby maliciously causing the victim cruel and excessive physical pain. Furthermore, there was no written request to charge on simple battery in the record on appeal. Elrod v. State, 316 Ga. App. 491, 729 S.E.2d 593 (2012). Trial court did not err in refusing to instruct the jury on simple battery as a lesser-included offense of child molestation as the defendant made no written request for such an instruction and, even if a request had been made, the evidence failed to support such a charge. McMurtry v. State, 338 Ga. App. 622, 791 S.E.2d 196 (2016). Trial court erred in failing to instruct the jury on simple battery and reckless conduct as lesser-included offenses of malice murder after the jury heard evidence 16-5-23 that the victim was left with bruises and hemorrhages on the victim’s neck and face. Allaben v. State, 299 Ga. 253, 787 S.E.2d 711 (2016). Jury questions regarding ejectment of persons from property. — Upon the defendant’s refusal to leave, the prosecutor had a right to eject defendant from the prosecutor’s property, but with force not disproportionate to that required to eject the defendant. Whether or not the prosecutor was using force in excess of that necessary, giving in turn the right to the defendant to defend self against an unwarranted assault as to defendant or defendant’s property, but not to an extent within itself to constitute an assault and battery on the prosecutor, or whether the defendant was arbitrarily refusing to leave and was committing an unwarranted battery upon prosecutor, were all questions for the jury under the proper instructions of the court. Slaughter v. State, 64 Ga. App. 423, 13 S.E.2d 391 (1941). When reversible error for judge to fail to charge law regarding assault and battery. — Under an indictment for assault with intent to rape, which so describes the manner of the commission of the offense as to contain allegations essential to constitute the lesser offense of assault and battery, where the evidence will consistently support a verdict for either offense, it is reversible error for the trial judge to fail to charge, without request, the law with reference to the offense of assault and battery. Barton v. State, 58 Ga. App. 554, 199 S.E. 357 (1938). On the trial of one charged with the offense of assault with intent to rape, where the indictment is sufficiently broad to include therein the offense of assault and battery, and where the evidence is inconclusive as to whether the assault by the accused was with the intention to gain the woman’s consent to sexual intercourse, or whether it was with the intention to overpower her and commit rape, it is error for the court to fail to submit to the jury the law of assault and battery. Reeves v. State, 78 Ga. App. 126, 50 S.E.2d 640 (1948). When on an indictment for assault with intent to murder, it is alleged that the 801 Jury Instructions (Cont’d) defendant beat the prosecutrix, and when on the trial of the case the evidence does not demand a finding that there is an intent to kill, but a verdict for the lesser offense of assault and battery would be warranted, it is error, even in the absence of request, to fail to charge the lesser offense of assault and battery. Jackson v. State, 99 Ga. App. 740, 109 S.E.2d 886 (1959). Failure to charge law of assault and battery not error. — If a graver charge, such as rape, necessarily includes an offense of lesser grade, such as assault and battery, particularly if the minor offense is expressly alleged in the indictment, it is the duty of the judge, without request, to instruct the jury as to the principles of law applicable to the minor offense, if under any view of the evidence, independently of the defendant’s statement, a finding that the defendant was guilty of the minor but not the major offense would be authorized. It is, however, not error to fail to instruct the jury as to the minor offense, when all the evidence connecting the defendant with the transaction shows that the minor offense was necessarily but an incidental part of the major offense perpetrated. In this case, if the defendant was guilty of an assault and battery as charged in the indictment, the defendant was also necessarily guilty of the major offense of rape, as charged, by being a principal in the second degree present and aiding and abetting by the defendant’s assault the perpetration of the major offense by the codefendant; thus, there was no error in failing to close on assault and battery. Whitley v. State, 188 Ga. 177, 3 S.E.2d 588 (1939). When the accused was convicted of assaulting a female, under the age of 14 years, with the intent to rape her, and in the defendant’s statement to the jury the defendant denied committing any assault, or any assault and battery, upon the female, while the evidence of the female, if true, proved the felonious assault as alleged in the indictment, omission of the court to charge the jury on the law of assault, or assault and battery, was not error. Finney v. State, 51 Ga. App. 545, 181 S.E. 144 (1935). 16-5-23 When jury should be given discretion to convict of lower offense. — To constitute the offense of assault with intent to murder, there must be a specific intent to kill. This intent is not necessarily or conclusively shown by the use of a weapon likely to produce death, in a manner likely to produce death. Under the proof in this case, the jury should have been given the discretion to convict of a lower offense included in the higher felony charged, if they believed the evidence did not show a specific intent to kill. Jackson v. State, 99 Ga. App. 740, 109 S.E.2d 886 (1959). Error in instruction waived. — Error was deemed waived because the defendant’s silence, after the trial court ruled that it would not instruct the jury on simple battery under O.C.G.A. § 16-5-23(b) as a lesser included offense of battery under O.C.G.A. § 16-5-23.1(c), essentially amounted to acquiescence and induced the error. McPetrie v. State, 263 Ga. App. 85, 587 S.E.2d 233 (2003). Charging entire section when not supported by indictment. — When defendant was specifically charged with violation of O.C.G.A. § 16-5-23(a)(2), prohibiting the intentional causing of physical harm to another, it was reversible error for the trial court to instruct the jury that the jury could convict the defendant of simple battery even if it only found that defendant violated O.C.G.A. § 16-5-23(a)(1), prohibiting intentional physical contact aimed at insulting or provoking another. Dinnan v. State, 173 Ga. App. 191, 325 S.E.2d 851 (1984). Charging the entire section when the indictment alleged only that defendant intentionally caused physical harm was reversible error where no remedial instructions were given to limit the jury’s consideration to the acts alleged. Owens v. State, 173 Ga. App. 309, 326 S.E.2d 509 (1985). When defendant was charged with a violation of O.C.G.A. § 16-5-23(a)(2), an instruction which permitted the jury to convict defendant if the jury found that defendant either caused the victim physical harm or made an offensive contact with the victim was reversible error. Lyman v. State, 188 Ga. App. 790, 374 S.E.2d 563 (1988). 802 Justification defense. — In a prosecution for simple battery, failure to charge the jury that the state had the burden to prove the absence of the elements of defendant’s justification defense was not harmless error. Austin v. State, 218 Ga. App. 90, 460 S.E.2d 310 (1995). In a prosecution for simple battery, as the defendant denied grabbing or striking the victim, the evidence did not support the defendant’s requested justification charge. Burrowes v. State, 296 Ga. App. 629, 675 S.E.2d 518 (2009). Charge on right to resist unlawful arrest. — On appeal from convictions 16-5-23.1 entered against the defendant for misdemeanor battery on a police officer, and misdemeanor obstruction of that officer entered against the defendant’s mother, a charge that one could resist an unlawful arrest with reasonably necessary force was not required in either case as such was covered by the charge on the elements of the offense; moreover, as to the battery charge, because the defendant testified to never touching the officer, there was no requirement to charge on this affirmative defense. Curtis v. State, 285 Ga. App. 298, 645 S.E.2d 705 (2007).