In the Supreme Court of Georgia



                                          Decided: June 2, 2014


                   S14A0317. THE STATE v. WYATT.


      NAHMIAS, Justice.

      Appellee John Randall Wyatt was indicted in Gwinnett County on seven

charges related to the death of two-year-old Andrea Marginean. After the trial

court granted his special demurrers on four of the counts, the State filed this

interlocutory appeal. We reverse.

      1.    (a)   Although not offered in relation to the special demurrers, the

following evidence presented during a hearing on the admissibility of Wyatt’s

statements to the police provides some background information about the

circumstances of this case. On the morning of April 11, 2009, Wyatt, who was

then 29 years old, was babysitting Andrea and her two brothers, aged four and

six. He had been babysitting the three children regularly for the past several

months. When their mother, Nicole Marginean, got home around 1 p.m. that

day, Andrea was essentially unresponsive, and Ms. Marginean took her to a
local hospital. Andrea died three days later.

      After taking Andrea to the hospital, Ms. Marginean called Wyatt and told

him the police were looking for him. Wyatt voluntarily went to the police

station, where he was questioned for an hour and a half before being advised of

his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d

694) (1966). At first Wyatt told the officers the following: When he awoke

around 9 a.m. that morning, he checked on Andrea, discovered that her diaper

was overflowing with feces, and took her to the bathroom to clean her off and

change her diaper. She did not like taking baths and began screaming on the

way to the bathroom. In the bathroom, Wyatt laid Andrea down on the tile

floor, reasoning that the tile would be easier to clean, but she would not remain

still and began banging her head on the underside of the toilet. He grabbed her

to hold her down but then had difficulty reaching the water. This continued for

some time, with Wyatt trying to clean and calm Andrea and her banging her

head on the floor, the toilet, and the tub. Once she was clean, Andrea stood up

on her own, Wyatt helped her put on her pants, and he then carried her back to

her bedroom where she fell asleep. Later, he checked on her and discovered that

her breathing was labored. He began CPR in an attempt to remove the phlegm

                                       2
he believed was obstructing her breathing. Ms. Marginean returned home at that

point and took Andrea to the hospital.

      After the officers told Wyatt that his story was inconsistent with the

injuries the doctors had found on Andrea, Wyatt changed his account, saying

that before the diaper incident Andrea had been disobeying him and sliding

down the stairs on her back. After she slid down the stairs twice, he grabbed her

and took her to the bathroom, and it was then that she defecated on herself and

him. He first maintained that everything else he had said was true, but he then

admitted that while he was trying to calm Andrea down in the bathroom, he hit

her on the head once or twice with an open hand.

      After Wyatt said that he had hit Andrea, the officers took a short break.

When they returned, they explained to Wyatt that they wanted to keep talking

to him, but that he had said something that could result in his being indicted for

battery and so they needed to read him his rights. The officers read him his

Miranda rights; they then resumed questioning him for another half hour, and

Wyatt confirmed that he had struck Andrea and demonstrated how he struck her.




                                         3
Wyatt was then arrested.1

               (b)     About three months later, on July 8, 2009, a grand jury

indicted Wyatt for felony murder (Count 1), two counts of aggravated battery

(Counts 2 and 3), and cruelty to children in the first degree (Count 4). Counts

1 and 2 alleged that Wyatt committed aggravated battery by depriving Andrea

“of a member of her body, to wit: her brain, by striking her head against a hard

object.” Count 3 alleged that Wyatt “seriously disfigur[ed] a member of

[Andrea’s] body, to wit: her back and thighs with bruises, by striking her against

a hard object.” Count 4 alleged that Wyatt did “willfully deprive [Andrea] of

necessary sustenance, to wit: did fail to seek medical attention in a timely

manner, to the extent that the child’s health was jeopardized.”

       Shortly after his indictment, Wyatt filed a motion to suppress the

statements he made to the police. The case then languished for almost four

years, until a Jackson-Denno hearing on that motion was held on July 19, 2013.



       1
          After the evidence summarized above was presented at a hearing pursuant to Jackson v.
Denno, 378 U.S. 368 (84 SCt 1774, 12 LE2d 908) (1964), held on July 19, 2013, the trial court ruled
on August 6, 2013 that the statements Wyatt made before being advised of his Miranda rights will
be admissible at trial, but the statements made after the Miranda warnings will be inadmissible
because Wyatt did not have a clear understanding of his rights and did not execute a clear waiver of
those rights. Neither party has sought to appeal those rulings at this point.

                                                 4
The following week, on July 25, 2013, a grand jury re-indicted Wyatt, now

charging him with three counts of felony murder (Counts 1-3), aggravated

battery (Count 4), aggravated assault (Count 5), and cruelty to children (Count

6).2 In the new indictment, the State removed the language alleging that Wyatt

struck the victim against a hard object. Count 1, felony murder based on

aggravated battery, and Count 4, aggravated battery, allege that Wyatt rendered

useless the brain of Andrea, a child, “by causing bleeding to and damage to her

brain.” Count 2, felony murder based on aggravated assault, alleges the Wyatt

caused the death of Andrea “by causing bleeding to and damage to the brain,”

and Count 5, aggravated assault, alleges that Wyatt assaulted Andrea, a child,

“with an object the exact nature of which is unknown to the members of the

Grand Jury, which, when used offensively against another person is likely to

result in serious bodily injury.” Count 3 charges felony murder based on cruelty

to children in the first degree by failing to seek medical attention for Andrea,

which is the offense charged in Count 6.

        Wyatt filed special demurrers to Counts 1, 2, 4, and 5, the charges related


        2
            The State then moved to nolle prosse the first indictment, which was done on August 15,
2013.

                                                  5
to aggravated battery and aggravated assault. On August 19, 2013, the trial

court held a hearing, at which the State introduced, without objection, reports

from the hospitals where the victim was treated and from the medical examiner.

The hospital reports showed that the doctor at the local hospital to which Andrea

was first taken noticed extensive bruising on several parts of her body and

ordered a head CT scan, which showed a large subdural hematoma. Andrea was

then flown to a hospital in Atlanta, where doctors performed emergency surgery,

which proved to be unsuccessful; Andrea was pronounced dead three days later.

The medical examiner’s report concluded that the cause of death was “closed

head trauma with subdural hematoma, delayed effects” and that the manner of

death was homicide. The report also said that “surgical intervention, producing

associated hemorrhage within the scalp, confounds the assessment of the

presence or absence of an impact site.”

      At the demurrer hearing, the State argued that the indictment was

sufficiently specific and that it was permitted to allege in Count 5 that the object

with which Wyatt assaulted Andrea was unknown because her head could have

been hit by “the toilet or the tub or by the defendant’s own hand.” On August

23, 2013, the trial court summarily granted Wyatt’s special demurrers to Counts

                                         6
1, 2, 4, and 5. The State requested a certificate of immediate review, which the

trial court granted, and then filed an application for interlocutory appeal, which

this Court granted to consider whether those four counts as indicted were

sufficient to put Wyatt on notice as to what he must defend against at trial.3

       2.      “Every indictment of the grand jury which states the offense in the

terms and language of this Code or so plainly that the nature of the offense

charged may easily be understood by the jury shall be deemed sufficiently

technical and correct.” OCGA § 17-7-54. Thus, an indictment “couched in the

language of the statute alleged to have been violated” is not subject to a general

demurrer. Carter v. State, 252 Ga. 502, 504 (315 SE2d 646) (1984). Counts 1,

2, 4, and 5 track the statutory language for the crimes they allege, so they are not

subject to a general demurrer, as Wyatt acknowledges.

       3
          Wyatt also filed special and general demurrers to Counts 3 and 6, but the trial court did not
hear argument or rule on those demurrers. Wyatt additionally filed a “Special Demurrer – Rule of
Lenity,” requesting that the trial court “correct” the indictment by changing the crimes charged in
Counts 1, 2, 3, 4, and 6 to contributing to the deprivation of a minor. The court heard argument on
this demurrer at the hearing, but did not rule on it. When this Court granted the State’s interlocutory
application, it was unclear from the application materials if the trial court had considered Wyatt’s
rule-of-lenity demurrer in rendering the summary order that the State was seeking to appeal. We
therefore posed a question on this issue, and the parties have briefed it. With the full record now
available, however, the demurrer hearing transcript reveals that the trial court explicitly declined to
rule on Wyatt’s “Special Demurrer – Rule of Lenity.” Accordingly, that demurrer is not properly
before us for decision. See Titelman v. Stedman, 277 Ga. 460, 461 (591 SE2d 774) (2003) (“‘In the
absence of a judgment in writing no question for decision is presented to the appellate court.’”
(citation omitted)).

                                                  7
      An indictment that is not subject to a general demurrer may, however, be

subject to a special demurrer, which challenges the specificity of the indictment.

See Lowe v. State, 276 Ga. 538, 539 (579 SE2d 728) (2003).

      “The true test of the sufficiency of an indictment to withstand a
      special demurrer ‘is not whether it could have been made more
      definite and certain, but whether it contains the elements of the
      offense intended to be charged, and sufficiently apprises the
      defendant of what he must be prepared to meet, and, in case any
      other proceedings are taken against him for a similar offense,
      whether the record shows with accuracy to what extent he may
      plead a former acquittal or conviction.’”

State v. English, 276 Ga. 343, 346 (578 SE2d 413) (2003) (citations omitted).

See also Green v. State, 292 Ga. 451, 452 (738 SE2d 582) (2013) (“The purpose

of an indictment is to inform the accused of the charges against him and to

protect the accused against another prosecution for the same offense.”).

      Wyatt’s special demurrers are based on his contention that the aggravated

assault accusation, which states that the object used to assault the victim is

unknown and is silent at to how the object was used, and the aggravated battery

accusation, which is silent as to the way in which the battery was committed, do

not allow him to prepare for trial on those charges and their corresponding

felony murder charges. We will consider each felony murder count and its


                                        8
underlying felony count together, and examine whether the entirety of the

indictment provides sufficient detail about the crimes Wyatt is accused of

committing. See Hester v. State, 283 Ga. 367, 368 (659 SE2d 600) (2008)

(“[The rule that] each count must be wholly complete within itself applies only

to the essential elements of the crime, and not to the form of the indictment or

to factual details alleged therein. The indictment must be read as a whole.”

(citations omitted)).

            (a)    Aggravated Assault

      Count 5 charges Wyatt with aggravated assault, alleging that on April 11,

2009, he “unlawfully ma[d]e an assault [on Andrea] with an object the exact

nature of which is unknown to the members of the Grand Jury, which when used

offensively against another person is likely to result in serious bodily injury.”

Count 2, charging felony murder based on aggravated assault, adds that the

assault “cause[d] bleeding to and damage to [Andrea’s] brain.” Wyatt argues

that the lack of detail about the dangerous object he allegedly used and the

manner in which he used it leaves him without adequate notice of what he must

defend against at trial. The State argues in response that the indictment is as

specific as it can be because the nature of Andrea’s head wounds and the surgery

                                        9
performed in the attempt to save her life make it impossible to determine the

exact nature of the object that inflicted her injuries. We conclude that there is

no basis under our precedent to grant a special demurrer on Counts 2 and 5.

      Wyatt is charged with aggravated assault under OCGA § 16-5-21 (a) (2),

which is defined as an assault “[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.” An indictment charging

aggravated assault must allege the element that aggravates the crime above a

simple assault, in this case the use of a deadly weapon or dangerous object. See

Simpson v. State, 277 Ga. 356, 358 (589 SE2d 90) (2003) (“[A]n indictment for

aggravated assault should . . . allege the aggravating aspect of the simple

assault.”). See also Lizana v. State, 287 Ga. 184, 185-186 (695 SE2d 208)

(2010).

      This Court has held, however, that an indictment under § 16-5-21 (a) (2)

“need not . . . specify the manner in which the defendant committed the simple

assault, when that is a lesser included offense within the greater offense of

aggravated assault.” Simpson, 277 Ga. at 358. See also Chase v. State, 277 Ga.

636, 638 (592 SE2d 656) (2004) (“It is not necessary that an indictment

                                       10
charging a defendant with aggravated assault specify the manner in which the

simple assault was committed, but it must set forth the aggravating aspect.”).

Likewise, the indictment need not say how the defendant used the weapon or

object that aggravated the assault. See, e.g., Arthur v. State, 275 Ga. 790, 791

(573 SE2d 44) (2002) (affirming the denial of a special demurrer because, “by

alleging [the defendant’s] general use of a gun, the State apprised him that he

would have to defend against all of the possible ways of committing the assault

that he himself had admitted in his statement”); Watson v. State, 178 Ga. App.

778, 780 (344 SE2d 667) (1986) (concluding that an indictment charging that

the defendant assaulted the victim “with a metal pipe,” without specifying how

the pipe was used, was sufficient).4


       4
           We recognize that this Court has on two occasions treated the specificity required in an
indictment for assault with intent to murder differently, where the assault at issue was allegedly
committed with an item that “may be used for the destruction of human life in a great variety of
ways.” Johnson v. State, 90 Ga. 441, 446 (16 SE 92) (1892) (alleged assault with intent to murder
using poison). See also Walker v. State, 124 Ga. 440, 441-442 (52 SE 738) (1905) (alleged assault
with intent to murder using “pieces of iron”). The Court has specifically declined, however, to
extend those holdings to indictments on other charges or with other dangerous items. See Sims v.
State, 118 Ga. 761, 761 (45 SE 621) (1903) (“The rules laid down . . . in Johnson v. State . . . , in
reference to the requirements to be met in framing in indictment for assault with intent to murder,
have never, either at common law or in this State, been applied to indictments for assault and
battery.”). See also Arthur, 275 Ga. at 791 (distinguishing between the use of a poison and a
handgun because “[w]hen the deadly weapon is a handgun, the assault generally can be perpetrated
in only a limited number of ways); Walker v. State, 141 Ga. 525, 525 (81 SE 44) (1914) (declining
to extend Johnson to an indictment for murder); Wood v. State, 69 Ga. App. 450, 452 (26 SE2d 140)
(1943) (declining to extend Walker, 124 Ga. 440, to an indictment for assault and battery).

                                                11
      Furthermore, while an indictment under OCGA § 16-5-21 (a) (2) must

allege that the assault was committed with a deadly weapon or an object that was

likely to or actually did result in serious bodily injury, the indictment is not

required to identify the exact weapon or object used if the circumstances of the

case do not allow such specificity. We have held that alleging that the object

used to commit the aggravated assault is unknown can be “sufficiently definite

to advise [the defendant] of what he must be prepared to confront.” Johnson v.

State, 286 Ga. 432, 433-434 (687 SE2d 833) (2010) (involving an indictment

alleging that the defendant assaulted the victim with “hands and an object, the

description of which being unknown”). That holding is consistent with cases

involving indictments for malice murder, where we have explained that “‘[a]n

indictment failing to specify the cause of death is sufficient when circumstances

of the case will not admit of greater certainty in stating the means of death.’”

Hinton v. State, 280 Ga. 811, 815-816 (2006) (quoting Phillips v. State, 258 Ga.

228, 228 (1988)) (punctuation omitted). “‘The state cannot be more specific

than the evidence permits.’” Eberhardt v. State, 257 Ga. 420, 421 (359 SE2d

908) (1987) (citation omitted).

      Wyatt suggests that the first indictment’s allegation that he caused

                                       12
Andrea’s injuries by striking her “against a hard object” demonstrates that the

evidence allows the State to be more specific in identifying the object used. But

“hard object” was hardly a precise description in the first place, and the State

and the grand jury were not precluded from determining, after re-examining the

evidence, or obtaining additional evidence, that the specific object used to

damage Andrea’s brain cannot be proved. In that case, alleging that the object

which caused her fatal injuries is “unknown” is more accurate and provides

better notice of how the State plans to prove the aggravated assault at trial.

      Based on the indictment he will defend against at trial, Wyatt knows that

the State intends to prove that on April 11, 2009, a day when Wyatt admits

Andrea was in his custody, he used an object that is likely to result in serious

bodily injury when used offensively to fatally injure her by causing damage to

her brain. Wyatt also knows that the State claims not to know – and thus does

not intend to prove – what specific object he used to assault Andrea. That is

sufficient notice for Wyatt to prepare a defense to the charges of aggravated

assault and felony murder based on aggravated assault – notice that may be

supplemented, of course, by the pretrial discovery he receives and any

investigation his counsel conducts.      If at trial the State proves the case

                                       13
differently, definitively specifying the object used to assault Andrea, then Wyatt

might raise a claim of fatal variance between the allegations in the indictment

and the proof at trial, but that is a different claim than the one now before us.

See Haley v. State, 289 Ga. 515, 529 (712 SE2d 838) (2011); Roscoe v. State,

288 Ga. 775, 776 (707 SE2d 90) (2011). For these reasons, the trial court erred

in granting Wyatt’s special demurrers as to Counts 2 and 5.

            (b)    Aggravated Battery

      Count 4 alleges that on April 11, 2009, Wyatt “unlawfully and maliciously

caus[ed] bodily harm to [Andrea] . . . by rendering useless a member of her

body, to wit: her brain, by causing bleeding to and damage to the brain.” Count

1 charges felony murder based on that aggravated battery. Wyatt contends that

the State should have alleged the acts that constituted the aggravated battery, not

just the resulting injury. The State responds that, just as it cannot specify the

object used to assault Andrea, it cannot specify the manner in which Wyatt

committed aggravated battery against her, because the nature of her brain

injuries and the attempts to treat them obscured the source of those injuries. We

conclude that even if the State could determine the specific manner in which the

aggravated battery was perpetrated, it was not required to include that detail in

                                        14
the indictment.

           Aggravated battery is defined as “maliciously caus[ing] 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.” OCGA § 16-5-24 (a). The manner in which the

defendant caused one of these three kinds of bodily harm is not an element of

the offense, but Wyatt maintains that the indictment must nevertheless allege the

way in which he rendered Andrea’s brain useless so that he can adequately

prepare his defense.

       As best we can tell, Georgia’s appellate courts have never before decided

whether the manner of an aggravated battery must be alleged in an indictment

in order to survive a special demurrer.5 Long ago, however, this Court

       5
          The common-law analogue of aggravated battery was the crime of “mayhem.” See
Mitchell v. State, 238 Ga. 167, 167 (231 SE2d 773) (1977). The only reported Georgia case on how
mayhem had to be charged appears to be Kitchens v. State, 80 Ga. 810 (7 SE 209) (1888), which
addressed the injury element of the crime, holding that “[t]he indictment was not bad because the
nature and character of the injury were not more particularly described.” Id. at 812. The Missouri
Supreme Court has held, consistent with the conclusion we reach as to aggravated battery, that:

       Neither is the indictment [under the Missouri mayhem statute] bad because it does
       not give a description of the character of sulphuric acid, or state how it was used,
       whether by throwing it in [the victim’s] face or throwing her into the acid. The
       manner of applying the sulphuric acid to her eyes was entirely immaterial so long as
       by this means he put out her eyes feloniously and with malice aforethought. We
       think the indictment fully advised the defendant of the charge he was to meet. The

                                               15
addressed the level of specificity required in an indictment for the lesser

included offense of battery, concluding that allegations of battery need not be

specific:

       [A]n indictment for assault and battery is expressed in more general
       terms, and simply alleges that on a given day, in the county, the
       defendant, with force and arms, committed an assault upon another
       named person, and then and there unlawfully beat, bruised and ill-
       treated him. The exact manner and means of the battery are left to
       be developed by the evidence. A battery may be committed in ways
       innumerable, and the indictment will apply to one way as well as
       another.

Hill v. State, 63 Ga. 578, 583 (1879). See also Bard v. State, 55 Ga. 319, 320

(1875) (explaining that for purposes of an indictment for assault or assault and

battery, allegations that the defendant “with force and arms, and a knife, a

weapon likely to produce death, in and upon [the victim] . . . did make an

assault,” provided “a full description of [the] offense”).6

       industry of counsel has not furnished us with any decision of any court of last resort,
       or any reputable text-writer, which sustains this contention that this indictment was
       and is not sufficient.

State v. Nerzinger, 119 SW 379, 383 (Mo. 1909).
       6
         “Assault and battery” was the common-law label for the crime now known as just “battery”
or “simple battery.” See OCGA § 16-5-23.1 (a) (defining “battery” as “intentionally caus[ing]
substantial physical harm or visible bodily harm to another”); OCGA § 16-5-23 (a) (defining simple
battery” as “(1) [i]ntentionally mak[ing] physical contact of an insulting or provoking nature with
the person of another; or (2) [i]ntentionally caus[ing] physical harm to another”). Battery is a lesser
included offense of aggravated battery, lacking the elements of malice and more serious injury. See

                                                 16
       Following Hill and Bard, the Court squarely held that an indictment for

assault and battery that alleged merely that the accused “did make an assault,

and . . . unlawfully and with force and arms did beat” the victim was not

deficient for failing to “specify any acts constituting the assault or how or in

what manner the beating was done, whether with the hand, fist, or weapon.”

Sims v. State, 118 Ga. 761, 761 (45 SE 621) (1903). The Court explained that

the indictment

       charged the offense substantially in words which are found in
       approved common-law precedents as well as in precedents which
       have been approved and followed in this country for more than a
       hundred years. This form of indictment for assault and battery was
       adopted by our criminal pleaders in the early history of this State,
       and has been uniformly followed to the present time.

Id. at 761-762 (citations omitted). Hill was cited more recently by the Court of

Appeals, which reiterated that “an indictment for battery has been held not to be

required to allege the exact manner and means of the battery.” J.A.T. v. State,

133 Ga. App. 922, 925 (212 SE2d 879) (1975).



Christensen v. State, 245 Ga. App. 165, 166 (537 SE2d 446) (2000) (“The offense of “aggravated
battery” . . . requires additional proof of (i) malice, and (ii) bodily harm which disfigures or renders
a member of the victim’s body useless.”). See also Pope v. State, 286 Ga. 1, 3 (685 SE2d 272)
(2009) (defining the malice required for aggravated battery as “‘an actual intent to cause the
particular harm produced . . . without justification or excuse’” (citation omitted)).

                                                  17
       In accordance with this precedent, the indictment’s allegation that Wyatt

“unlawfully and maliciously cause[d] bodily harm” to Andrea, particularly when

read in conjunction with the charge of aggravated assault, provided all the detail

required to charge battery, and we see no reason to require a charge of

aggravated battery to detail the manner of the underlying battery with greater

specificity. The element that distinguishes aggravated battery is not the way the

battery was committed, but rather the resulting injury, and here the indictment

properly identified the injury by alleging that Wyatt caused bleeding and

damage to Andrea’s brain, rendering it useless. See McKissic v. State, 201 Ga.

App. 525, 526 (411 SE2d 516) (1991) (“The focus of OCGA § 16-5-24 (a) is

upon whether the defendant has maliciously caused the victim to suffer an

enumerated physical injury, and the means employed so as maliciously to cause

such an injury is not a mitigating factor.”). As with aggravated assault, what

must be specified is the fact that aggravates the crime. See Chase, 277 Ga. at

638; Simpson, 277 Ga. at 358.7


       7
          The State may of course choose to allege the manner in which the aggravated battery was
committed with greater specificity, and in such cases a special demurrer could be easily denied. See
English, 276 Ga. at 347 (affirming the denial of a special demurrer where the indictment “detail[ed]
how the aggravated battery was accomplished and the specific injuries that were sustained”). The
State, however, must take care to allege only those details that it is prepared to prove at trial. See

                                                 18
        Thus, like the counts alleging aggravated assault, the counts alleging

aggravated battery sufficiently apprise Wyatt of what he must defend against at

trial. He knows that the State will contend that he maliciously caused damage

to Andrea’s brain on April 11, 2009, and that such damage rendered her brain

useless; under the circumstances of this case, he is entitled to no more.8

Accordingly, the trial court also erred in granting the special demurrers as to

Counts 1 and 4.

        3.      Wyatt also argues that if the State contends that the object used in

the aggravated assault or the means by which the aggravated assault and

aggravated battery were committed are unknown, it must support those

Calhoun v. State, 318 Ga. App. 835, 838 (734 SE2d 809) (2012) (“‘No averment in an indictment
can be rejected as surplusage which is descriptive either of the offense or the manner in which it was
committed. All such averments must be proved as laid, or the failure to prove the same as laid will
amount to a variance.’” (citation omitted)); Wallin v. State, 305 Ga. App. 663, 664 (700 SE2d 837)
(2010) (reversing a battery conviction when the trial court failed to instruct the jury that it could find
the defendant guilty of battery only by choking or biting the victim, as alleged in the indictment,
when the evidence supported a finding that the defendant also beat the victim with a post and struck
him with a fist).
        8
          Wyatt cites D’Auria v. State, 270 Ga. 499 (512 SE2d 266) (1999), but this case is different
from the peculiar circumstances there. In D’Auria, the indictment charged the defendant with
committing sexual battery “by making contact with the intimate body parts” of the victim. Id. at 500.
That would generally be sufficient, but because the defendant was the victim’s physician and had
her consent to some physical contact, the Court held that the failure of the indictment to specify the
manner of the touching or the body parts touched left the defendant unable to prepare for trial
because he was “unable to determine which of his acts [were] alleged to be criminal in nature.” Id.
at 500-501. It should not be a mystery to Wyatt that he will be held to account at trial for any acts
that he committed maliciously on April 11, 2009, which caused damage to Andrea’s brain.

                                                   19
contentions with evidence at a pretrial hearing, which Wyatt says the State did

not do at the demurrer hearing. Because we have held in Division 2 above that

an indictment need not allege the manner of an aggravated assault or aggravated

battery to survive a special demurrer, such an evidentiary hearing clearly was

not required on that issue; even if the State knows the way in which those crimes

were committed, it need not provide that information in the indictment or at a

demurrer hearing to prevail.

      As discussed in Division 2 (a), however, the State is required to allege the

use of a deadly weapon or other dangerous object when charging aggravated

assault under OCGA § 16-5-21 (a) (2). But that requirement does not entitle the

defendant to a pretrial evidentiary hearing if the indictment also alleges that the

weapon or object used is unknown. Wyatt cites several cases in which the Court

of Appeals has held that when an indictment alleges that a crime was committed

during a date range rather than specifying the exact date, the State must prove

at an evidentiary hearing that the accusation cannot be more specific. See, e.g.,

Blanton v. State, 324 Ga. App. 610, 614-618 (751 SE2d 431) (2013); Blackmon

v. State, 272 Ga. App. 854, 854-855 (614 SE2d 118) (2005). See also State v.

Layman, 279 Ga. 340, 340-341 (613 SE2d 639) (2005) (“[W]here the State can

                                        20
show that the evidence does not permit it to allege a specific date on which the

offense occurred, the State is permitted to allege that the crime occurred between

two particular dates.”). The basis for these decisions is the statutory requirement

that the time the offense was committed be alleged “with sufficient certainty”

in all indictments. OCGA § 17-7-54 (a). But even assuming arguendo the

soundness of this practice in the context of date allegations, we will not extend

the practice as Wyatt suggests because no such statutory directive applies to

specifying the deadly weapon or dangerous object used in an aggravated

assault.9

        Indeed, the only way for the State to truly prove that it cannot specify the

weapon or object the defendant used would be to present all of the evidence the

State has in order to show that the evidence does not allow identification of the

weapon or object – that is, to make a full presentation of the State’s evidence

before actually trying the case. Nothing in our cases dealing with material

elements that are alleged to be unknown has indicated that we would impose

such an impractical requirement. See Gardner v. State, 216 Ga. 146, 146 (1960)

        9
           It is worth noting that if the State does allege a specific date, “the State is not restricted at
trial to proving that an offense occurred on the date alleged in the indictment when the indictment
does not specifically allege that the date of the offense is material.” Layman, 279 Ga. at 341.

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(not requiring a pretrial evidentiary hearing in an aggravated assault case where

the weapon used was alleged to be unknown); Johnson v. State, 186 Ga. 324,

333 (1938) (same). See also Hinton, 280 Ga. at 815-816 (same where the

indictment alleged that the cause of death was unknown); Phillips, 258 Ga. at

228 (same). Moreover, a requirement of pretrial proof would contradict the

principle that in reviewing demurrers, the allegations in the indictment are taken

as true, which would include an allegation that a matter was unknown to and

thus unable to be specified by the grand jury. See Lowe v. State, 276 Ga. 538,

539 (579 SE2d 728) (2003) (explaining that the court must take the allegations

in an indictment as true when evaluating a demurrer). See also Miller v. State,

6 NE2d 948, 949 (Ind. 1937) (“The sufficiency of the facts before the grand jury

to justify the charges in the indictment cannot be questioned, and the recitals

concerning knowledge, or want of knowledge, of the names of parties or other

matters must be accepted as true.”).

      If the State offers evidence at trial that definitively identifies the specific

object that Wyatt used in the alleged aggravated assault – that is, if the State

deviates from the representation made in its brief here that “it is impossible to

define with more certainty the object or objects [Wyatt] used to kill [Andrea]”

                                        22
– Wyatt’s recourse will be to argue that the indictment’s allegation that the

object was unknown prevented him from adequately preparing a defense to the

evidence actually presented by the State and thus there was a fatal variance from

the indictment. See, e.g., Haley, 289 Ga. at 529; Roscoe, 288 Ga. at 776. Or,

of course, the jury could decide that the State did not prove the crimes as

charged beyond a reasonable doubt and acquit Wyatt. But those are matters for

trial, not a special demurrer.

      Judgment reversed. All the Justices concur.




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