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holding that the evidence "is sufficient to sustain a conviction for aggravated battery when the bodily member that is lost or rendered useless in the battery is a tooth"
Summary of this case from Smith v. StateOpinion
A02A0670.
DECIDED: MAY 17, 2002.
Aggravated battery. Gwinnett Superior Court. Before Judge Clark.
Charles W. Wrinkle, for appellant. Daniel J. Porter, District Attorney, John S. Melvin, Assistant District Attorney, for appellee.
Darius Rivers appeals from his convictions on two counts of aggravated battery, based on evidence that he repeatedly struck his ex-girlfriend in the face, dislodging a large portion of one of her teeth. He contends on appeal that the evidence at trial was insufficient to sustain the convictions, arguing that the evidence does not support a finding that he deprived his ex-girlfriend of a "member" of her body or rendered a "member" of her body useless. In this case of first impression in Georgia, the primary issue that we must decide is whether a tooth constitutes a "member" for purposes of aggravated battery. We find that a tooth does indeed constitute a "member" for purposes of aggravated battery and affirm the convictions.
On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury's verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State, 234 Ga. App. 633, 634 (1) ( 507 S.E.2d 514) (1998). We do not weigh the evidence or determine witness credibility, but 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. Id.; see also Jackson v. Virginia, 443 U.S. 307 ( 99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
So viewed, the evidence reveals that Rivers repeatedly hit his ex-girlfriend in the face, causing a large portion of one of her teeth to become dislodged from her mouth. For at least three days after the attack, the victim was unable to eat or drink on the side of her mouth where the tooth was damaged, and she has since had ongoing problems with the damaged side of her mouth.
The indictment charged Rivers with two counts of aggravated battery, one for hitting the victim and "depriving [her] of a member of her body, to wit: a lower back tooth," and one for hitting the victim and "rendering useless a member of [her] body, to wit: a lower back tooth. . . ." The jury found Rivers guilty on both counts, and Rivers now appeals. In his sole enumeration of error, Rivers contends that the evidence was insufficient to sustain the conviction. Under OCGA § 16-5-24 (a), a person is guilty of aggravated battery "when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof."
We hold, consistent with the holdings of several jurisdictions that have addressed this precise issue, that the evidence is sufficient to sustain a conviction for aggravated battery when the bodily member that is lost or rendered useless in the battery is a tooth. See State v. Bridgeforth, 357 N.W.2d 393, 394 (2) (Minn.App. 1984) (interpreting statute similar to Georgia's aggravated battery statute, court held that "the loss of a tooth is a permanent loss of the function of a bodily member"); McBeath v. State, 739 So.2d 451, 455 (Miss.App. 1999) (tooth was a "member" and loss of tooth constituted "serious bodily injury," where such term was defined as "bodily injury which creates substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ"); State v. Bogenreif, 465 N.W.2d 777, 781 (S.D. 1991) (evidence of loss of permanent teeth, coupled with cut lip and scarring, constituted "serious bodily injury," defined as "such injury as is grave and not trivial, and gives rise to apprehension of danger to life, health or limb."); Lenzy v. State, 689 S.W.2d 305, 310 (Tex.Ct.App. 1985) (tooth is member of body); cf. Jenkins v. State, 477 A.2d 791 (Md.App. 1984) ("[C]ommon law mayhem consisted of depriving the victim of the `fighting members' of his body — his arms, legs, eyes, fingers, hands, or teeth — thus rendering him less able to defend himself."), rev'd in part on other grounds, 515 A.2d 465 (Md. 1986). Indeed, "[s]everal courts have considered the issue and have held that loss of a tooth is a serious bodily injury. [Cits.]" McBeath, supra, 739 So.2d at 455.
Further, this court has already held that fingers and ears are "members" for purposes of aggravated battery. See Ganas v. State, 245 Ga. App. 645, 647 (1) (c) ( 537 S.E.2d 758) (2000); Drayton v. State, 167 Ga. App. 477 (1) ( 306 S.E.2d 731) (1983). Since teeth, like fingers and ears, are separate, definable parts that may be separated from the body, we hold that they are "members" for purposes of aggravated battery. See Lenzy, supra, 689 S.W.2d at 310 (interpreting statute with similar language to Georgia's aggravated battery statute, court held that "[c]ommon usage as well as the [Black's Law Dictionary definition] leads us to hold that teeth are separate, definable parts of the body sufficient to bring them with[in] the statutory term `bodily member or organ.'").
The evidence revealed that Rivers repeatedly hit the victim in the face, causing a large portion of one of her teeth to come out and resulting in the victim's inability to use the side of her mouth where the tooth was damaged for several days. The evidence supports a finding that Rivers had every intention of causing the victim great bodily harm by hitting her with such force. "Depriving" the victim of a member of her body "may refer to the loss of the use of the member." (Footnote omitted.) Ganas, supra, 245 Ga. App. at 647 (1) (c). "Rendering a member useless," even temporarily, may be sufficient for such member to be considered rendered useless under the aggravated battery statute. Id. at 647 (1) (b). The evidence reveals that the victim was deprived of the use of her tooth and that the tooth was rendered useless, and the evidence was therefore sufficient to sustain the convictions. See Childers v. State, 228 Ga. App. 214, 215-216 (3) ( 491 S.E.2d 456) (1997).
Judgment affirmed. Blackburn, C. J., and Johnson, P.J., concur.
DECIDED MAY 17, 2002.