FOURTH DIVISION

DILLARD, P. J.,

RICKMAN, P. J., and BROWN, J.

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.

February 8, 2021

In the Court of Appeals of Georgia

A20A2018. SCHMEELK v. THE STATE.

BROWN, Judge.

A jury found Gregory Schmeelk guilty of family-violence aggravated assault

and reckless conduct.

1 Schmeelk appeals his convictions and the denial of his

amended motion for new trial, contending that insufficient evidence supports his

conviction for family-violence aggravated assault and that the trial court failed to

exercise its discretion to act as the “thirteenth juror.” We conclude that the State

presented sufficient evidence to support the conviction but nonetheless vacate the

1 Schmeelk was charged with two counts of family-violence aggravated assault

but was convicted of the lesser included offense of reckless conduct as to one count

(Count 2). The jury found him not guilty of terroristic threats, and the State nolle

prossed one count of cruelty to children in the third degree. 
trial court’s order denying Schmeelk’s motion for new trial and remand the case so

that the court may exercise its discretion as the “thirteenth juror.”

Viewed in the light most favorable to the jury’s verdict, see Jackson v.

Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the evidence shows that

Schmeelk lived in a house with his wife, their young daughter, and the wife’s 23-

year-old daughter at the time of the incident. On the night of March 25, 2016,

Schmeelk’s stepdaughter returned home from church and went to her room in the

downstairs basement of the home to eat dinner. She heard loud noises upstairs, and

her mother came down to the basement to tell her that Schmeelk was drunk and that

she was “trying to convince him to . . . pass out.” The daughter walked partially up

the stairs and saw Schmeelk on the couch in his underwear. Schmeelk walked to his

bedroom with the mother in tow, and the daughter heard the mother tell Schmeelk,

“No . . . not tonight. It’s not funny. No. . . .” The daughter went to help her mother

and saw Schmeelk grabbing her by the arms to try to lead her into the bedroom. The

daughter instructed Schmeelk to let go of her mom and go to bed. As Schmeelk

walked toward the daughter, she pulled out her cell phone and threatened to call the

police. In response, he returned to the bedroom.

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Asthe daughter walked back down the stairs, she heard the “sound of . . . a gun

being racked,” and her mother saying “run, run, run.” The daughter ran down the

stairs past the locked front door, locked the basement door behind her, exited the

basement door into the garage, and locked that door behind her. She then opened the

garage door, ran down the driveway between the parked cars, and crouched behind

Schmeelk’s car. At this point, the daughter heard gunshots and fled to a tree in the

yard. As she hid behind the tree, she saw Schmeelk reach the end of the driveway,

holding the gun, and look up and down the street. The mother told Schmeelk, “You’re

not going to find her, Greg. Stop looking. She’s already gone.” The daughter ran

down the street to a neighbor’s house, screaming for help, and called the police. 

The mother’s testimony corroborated the daughter’s version of events. She

testified that Schmeelk came out of their bedroom with a gun, went down the stairs

past the front door and to the daughter’s room where he kicked in the locked door.

The mother followed him, grabbing his shirt and telling her daughter to run. When

they reached the garage, she heard multiple shotsfired. Schmeelk then turned the gun

on the mother and told her, “If you don’t let go of my shirt, I’ll shoot you, too.”

Schmeelk then walked to the end of the driveway with the gun. 

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A neighbor heard gunshots and a woman screaming and went to help. He

encountered Schmeelk with a gun in his driveway and asked himto put down the gun.

Schmeelk complied, and the man collected the gun before police arrived. The

responding officer testified that she observed several bullet holes in the front of

Schmeelk’s silver Jetta in the driveway, along with a bullet hole off to the side of the

car in some pine straw. 

At trial, Schmeelk testified in his own defense. He admitted having “a couple

of drinks” on top of medication he took after having a back procedure earlier in the

day. According to Schmeelk, he was “feeling . . . despondent and under appreciated

and disrespected and was overwhelmed with work,” decided that he was no longer

going to work, and accordingly shot the engine in his car. He denied knowing that his

stepdaughter was outside when he was shooting, and denied threatening or

intentionally pointing the gun at the wife. He also denied breaking down the basement

door, claiming his and the mother’s “combined body weight burst the door open.” 

1. Schmeelk contends that insufficient evidence supports his conviction for

family-violence aggravated assault. Specifically, he contends that no evidence was

presented from which a jury could infer that he had any motive to harm or injure his

stepdaughter or knowingly intended to make an assault upon her. We disagree.

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Pertinently, a person commits aggravated assault when he 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). See also OCGA § 16-5-21 (i) (explaining the

sentencing enhancement if the aggravated assault is committed between, inter alia,

stepparents and stepchildren). It is well established “that aggravated assault has two

elements: (1) commission of a simple assault as defined by OCGA § 16-5-20 (a); and

(2) the presence of one of three statutory aggravators set forth in OCGA § 16-5-21

(a).” (Citation and punctuation omitted.) Johnson v. State, 348 Ga. App. 540, 544 (1)

(823 SE2d 853) (2019). “A person commits the offense of simple assault when he or

she either: (1) Attempts to commit a violent injury to the person of another; or (2)

Commits an act which places another in reasonable apprehension of immediately

receiving a violent injury.” OCGA § 16-5-20 (a). 

Here, Count 1 of the indictment charged Schmeelk with family-violence

aggravated assault in that Schmeelk “did knowingly make an assault upon the person

of [his stepdaughter] with a deadly weapon, to wit: a Colt handgun by firing said

handgun at [the stepdaughter] multiple times. . . .” Thus, the indictment was broad

enough to authorize Schmeelk’s conviction of aggravated assault based on either

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OCGA § 16-5-20 (a) (1) or (a) (2). See Touchstone v. State, 319 Ga. App. 477, 479

(1) (735 SE2d 805) (2012) (indictment charging the defendant with “‘knowingly

making an assault upon [the victim], a peace officer engaged in the performance of

her official duties, with a deadly weapon, to wit: a .357 caliber revolver’” was broad

enough to authorize the defendant’s aggravated assault conviction based on either

type of simple assault). See also Ford-Calhoun v. State, 327 Ga. App. 835, 839 (1)

(a) (ii), n.14 (761 SE2d 388) (2014) (“an indictment for aggravated assault puts a

defendant on notice that he may be convicted for aggravated assault if he committed

a simple assault in either manner contained in the simple assault statute, so long as

the trial court charges and the State proves that he did so by the alleged aggravating

aspect of the assault”) (citation and punctuation omitted).2

The testimony of the victim and the mother established that after the victim

confronted Schmeelk and threatened to call the police, Schmeelk obtained a loaded

gun from his bedroom, followed the victim down the stairs past the front door, and

busted down the basement door to the victim’s room before firing the gun at the car

behind which the victim was hiding. The evidence also showed that Schmeelk

2

In its charge to the jury, the trial court defined both methods of committing

simple assault. 

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threatened to shoot the mother “too” if she did not get out of his way, and that after

shooting his car, Schmeelk walked to the end of the driveway with the gun to look up

and down the road. The victim also testified that she knew Schmeelk was shooting

at her, was afraid, and “r[a]n for [her] life.” We conclude that this was sufficient

evidence to sustain Schmeelk’s aggravated assault conviction based upon either form

of simple assault. See Howard v. State, 288 Ga. 741, 742 (1) (707 SE2d 80) (2011)

(“[t]estimony that the victims ran from the gunfire is sufficient evidence that

Appellants placed them in reasonable apprehension of immediately receiving a

violent injury”); Lomax v. State, 319 Ga. App. 693, 694 (1) (738 SE2d 152) (2013)

(victim’s testimony that defendant had a gun and that when victim turned and ran he

heard a gunshot and discovered that he had been shotsufficient to sustain defendant’s

aggravated assault conviction). See also Chase v. State, 277 Ga. 636, 637-638 (1)

(592 SE2d 656) (2004) (evidence that defendant could “‘keep tabs’” on where victim

wasin the townhome because of how sound traveled “constituted sufficient evidence

to authorize the jury to conclude that [defendant] knew where the victim was in the

small kitchen and intentionally fired his gun at the victim through the upstairs

flooring just above the site she was occupying in the kitchen, intending to inflict

violent injury upon the victim”). Although Schmeelk testified that he did not know

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the stepdaughter was present when he shot the gun, the jury was authorized to

disbelieve his testimony. See Jordan v. State, 344 Ga. App. 267, 271 (3) (810 SE2d

158) (2018). “Indeed, it is the jury’s role to resolve conflicts in the evidence and

determine the credibility of witnesses, and the presence of such conflicts does not

render the evidence insufficient.” (Citation and punctuation omitted.) Gathers v.

State, 355 Ga. App. 761, 763 (1) (844 SE2d 882) (2020).

2. Schmeelk next contends that the trial court erred by failing to consider his

amendedmotion for new trial on the “general grounds.” Specifically, he contendsthat

nothing in the court’s order reflects that it evaluated the credibility of the witnesses

and weighed the evidence in deciding whether to exercise its discretion to grant a new

trial in its role as the “thirteenth juror.” See OCGA §§ 5-5-20 and 5-5-21. We agree.

Here, Schmeelk explicitly argued in his motion for new trial and amended

motion that the jury’s verdict was contrary to the principles of justice and equity and

was strongly against the weight of the evidence. The order denying Schmeelk’s

amended motion for new trial pertinently states as follows: 

In his Amended Motion for New Trial . . . Defendant argues that there

was insufficient evidence of his intent to cause injury and that the

verdict went against the weight of the evidence.

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The Court finds that there was sufficient evidence before the jury

to find intent to commit the acts charged. Accordingly, it is hereby

ORDERED that Defendant’s Amended Motion for New Trial is

DENIED. 

We presume, “in the absence of affirmative evidence to the contrary, that the trial

court properly exercised its discretion pursuant to OCGA §§ 5-5-20 and 5-5-21.”

Holmes v. State, 306 Ga. 524, 528 (2) (832 SE2d 392) (2019). “However, when the

record reflects that the trial court reviewed the motion for new trial only for legal

sufficiency of the evidence, the trial court has failed to exercise such discretion.” Id.

Accord Gresham v. State, 354 Ga. App. 835, 838 (1) (841 SE2d 484) (2020). Here,

as in Holmes, aside from mentioning that Schmeelk made this argument, “[t]he order

made no reference to the general grounds, gave no indication that the trial court had

considered or reweighed the evidence presented at trial, and did not suggest that the

trial court had exercised its discretion pursuant to OCGA §§ 5-5-20 and 5-5-21.” 306

Ga. at 528 (2). Compare Price v. State, 305 Ga. 608, 613 (3) (825 SE2d 178) (2019)

(“when a trial court enters an order denying a motion for new trial and, without more,

recites that the new trial is refused or denied, this will be taken to mean that the judge

has in the exercise of his discretion approved the verdict”) (citation and punctuation

omitted). Accordingly, we vacate the trial court’s order denying Schmeelk’s amended

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motion for new trial and remand the case so that the trial court may exercise its

discretion as the “thirteenth juror” and, in so doing, reweigh the evidence presented

at trial. See Gresham, 354 Ga. App. at 838-840 (1) (where trial court noted in its

order that defendant asserted the “‘standard grounds’” in his motion for new trial, but

nothing in order indicated that court had performed its duty to exercise its discretion

as “thirteenth juror,” order must be vacated and case remanded for court to apply

proper standard and exercise its discretion).

Judgment vacated and case remanded with direction. Dillard, P. J., and

Rickman, P. J., concur.

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