Milledgeville, GA asked in Criminal Law and Federal Crimes for Georgia

Q: I have some questions about criminal charges. I don't understand the structure of charges.

I'm writing a fictional story about someone who broke laws on the federal and state level, and I'm using Georgia as the state law.

Let's say the accused was caught inflicting and trying to inflict physical harm on three officers during the booking process. The accused scratched two officers and bit one officer. The third officer came for backup, and the accused tried to harm the third officer but failed. The accused had an intent to kill, as they stated something along the lines of "I'll kill all of you," and they were in the right state of mind at the time of the crime.

Georgia law includes Simple assault, Aggravated assault, Simple battery, Battery, and Aggravated battery under article 2 of chapter 5 of title 16. Would the defendant be accused with Simple assault, Aggravated assault, Simple Battery, Battery, and attempted murder? And how many counts of each? Can the defendant be charged with Simple assault and Aggravated assault for each person?

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2 Lawyer Answers
Richard W. Noel
Richard W. Noel
  • Criminal Law Lawyer
  • Phoenix, AZ

A: You need to look at the factors that make up each crime. What you're describing is what sometimes is called "lesser included offenses." It allows a jury to find for a lesser crime instead of the main one for which a person is charged. Could each victim result in separate counts? Anything is possible. Is it likely? Not in my jurisdiction. Prosecutors have to prove each and every element of a crime beyond a reasonable doubt. Attempted murder for shouting a threat and trying to attack someone, is a stretch.

Morris  Margulis
Morris Margulis
  • Criminal Law Lawyer
  • Duluth, GA
  • Licensed in Georgia

A: If you want your fictional defendant to face a hundred charge indictment, you can probably do that with your scenario, although realistically the state probably would want to boil that down for various tactical reasons that are too complicated for this format.

Take our Simple Battery statute:

OCGA § 16-5-23

A person commits the offense of simple battery when he or she either:

(1) Intentionally makes physical contact of an insulting or provoking nature with the person of another; or

(2) Intentionally causes physical harm to another.

You could have two simple battery counts, one referencing each subsection, for each of the three officers, totaling six counts of criminal conduct.

Your can also, simultaneously allege Aggravated Battery (OCGA § 16-5-24) against any number of the same officers.

When one crime is subsumed by another, or putting it another way - when the elements of one crime are totally included in a greater (more severe maximum penalty) crime, the two crimes "merge" (look up the Merger Doctrine) into the greater crime at sentencing, so not every aggravated battery conviction also carries a simple battery sentence on top of the aggravated battery sentence.

If you need more crimes to throw at your character, also consider Obstruction Of Law Enforcement (OCGA § 16-10-24) and Terroristic Threats (OCGA § 16-11-37).

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