                                FOURTH DIVISION
                                  BARNES, P. J.,
                              RAY and MCMILLIAN, JJ.

                     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.
                                 http://www.gaappeals.us/rules


                                                                      October 8, 2015




In the Court of Appeals of Georgia
 A15A1364. AGYEMANG v. THE STATE.

       RAY, Judge.

       A Forsyth County jury convicted Edward Agyemang of one count of simple

battery.1 He appeals from that conviction, arguing that the trial court erred in denying

his motion to introduce prior difficulties between the parties and that there was a fatal

variance between the accusation and the evidence presented at trial. He also argues

that the evidence was insufficient to support his conviction. For the following




       1
         Agyemang was indicted for family violence battery, simple battery, simple
family violence battery, disorderly conduct, and two counts of cruelty to children in
the third degree. After the close of the State’s evidence at trial, the trial court directed
a verdict of acquittal as to one count of family violence simple battery and as to one
count of disorderly conduct. The jury acquitted Agyemang of the remaining counts
of family violence battery, disorderly conduct and cruelty to children in the third
degree.
reasons, we vacate Agyemang’s conviction and remand the case to the trial court for

a new trial.

      “On appeal from a criminal conviction, we view the evidence in the light most

favorable to the verdict, and the [defendant] is no longer entitled to the presumption

of innocence.” (Citation omitted.) Newsome v. State, 324 Ga. App. 665, 665 (751

SE2d 474) (2013). In determining the sufficiency of the evidence, we neither weigh

the evidence nor assess the credibility of the witnesses, but determine only whether

the evidence authorized the jury to find the appellant guilty of the crime charged

beyond a reasonable doubt. Byrd v. State, 325 Ga. App. 24, 24 (752 SE2d 84) (2013).

      The facts show that Agyemang and his wife, Vera Adu-Asah, were working

together to bathe their ten-year old special needs daughter when Agyemang became

tired of holding the child aloft so the mother could clean her, and he dropped the child

in the tub. Adu-Asah testified that she “had to hit him” to express her frustration at

his act of dropping the child. Adu-Asah testified such hitting was “normal” for their

relationship. However, Adu-Asah testified that Agyemang then retaliated by hitting

her repeatedly all over her body while their child remained in the bathtub. Adu-Asah

then called the police, and Agyemang left the house prior to their arrival.



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      Officer Sullivan with the Cumming Police Department responded to the call.

Officer Sullivan testified that she observed a mark on Adu-Asah’s left arm that

looked like a “raised reddish welt” in the shape of a hand print and that Agyemang

had left the house before she arrived at the scene.

      Agyemang testified that, on the evening of the incident, he assisted his

daughter in using the bathroom and then helped his wife bathe her. Because the child

had “zero motor skills,” Agyemang had to bend down and support the child’s full

weight while Adu-Asah washed her. After the child was bathed, she soiled herself and

required additional cleaning. As Adu-Asah cleaned the child, Agyemang again had

to bend down to support the child’s weight. He told his wife that his “back is almost

breaking” and that the child was slipping, and he asked her three times to allow him

to set the child down; she said no. Agyemang testified that he then “got to the point

I was so tired and the choice was between . . . me breaking . . . . I was almost passing

out. And I sat her down because if I did not set her down, it would have been fatal if

she somehow slipped out of my hand.” He testified that as soon as he sat the child

down, Adu-Asah “started throwing punches” in his face and hit him with a pail.

Agyemang explained that he threw his hands up to defend himself and “without even

knowing, [he] just threw [his] hands at her.” Agyemang testified that he did not

                                           3
intend to hit his wife, but that he swung his arm out in an effort to stop her blows. His

wife continued to hit him while he attempted to re-position their child on the bathing

chair. He then left the house.

      The jury convicted Agyemang on one count of simple battery and acquitted

him on every other count.

      1. Agyemang argues that the evidence was insufficient to convict him of

battery because the State failed to disprove his justification defense beyond a

reasonable doubt. Once Agyemang raised the affirmative defense of justification and

testified to the same, the State then bore the burden of disproving that defense beyond

a reasonable doubt. Joachim v. State, 263 Ga. 816, 816 (1) (440 SE2d 15) (1994).

Here, both Agyemang and Adu-Asah testified that Adu-Asah struck first. Although

Agyemang testified that he merely threw his arms out in an effort to avoid Adu-

Asah’s blows, Adu-Asah testified that Agyemang retaliated by hitting her several

times. “The issue thus became one of credibility, which is for the jury to decide. The

jury, by its verdict, indicated that it believed the evidence contrary to [Agyemang’s]

justification defense.” (Citations omitted.) Id. at 817 (1). Our review of the evidence

persuades us that it was sufficient to authorize a rational trier of fact to reject



                                           4
Agyemang’s theory of self-defense and to find that he was guilty of simple battery.

Id.

      2. Agyemang contends that the trial court erred in denying his motion to

introduce prior difficulties between himself and Adu-Asah that would demonstrate

that Adu-Asah had “a history of unprovoked violence” towards Agyemang. We agree.

      Agyemang moved to admit evidence of prior difficulties between himself and

Adu-Asah at trial. In support of his motion, Agyemang proffered testimony outside

the presence of the jury that Adu-Asah had been violent towards him on previous

occasions about a year prior: that, after a disagreement, she set the carpet of their

home on fire and stabbed him in the hand when he tried to put out the fire; and that,

after arguing, she had destroyed his phone by dropping it in water and had hidden his

car keys so he could not leave the house. Agyemang described an additional incident

where he and Adu-Asah were “discussing something[,]” and when he did not

immediately respond to Adu-Asah’s question, she “got up and then stabbed [him] on

[his] thigh three times.” After this proffer and argument by counsel, the trial court

denied the motion, finding that “the prejudicial impact of [the] testimony far

outweighs its relevance.”



                                         5
      “A defendant’s right to introduce evidence of prior acts by the victim against

him is still contingent upon the defendant making out a prima facie case of

justification.” (Citation and punctuation omitted.) Robinson v. State, 275 Ga. 143, 144

(3) (561 SE2d 823) (2002). To make such a prima facie showing, Agyemang “must

show that the victim was the aggressor, that the victim assaulted the defendant, and

that the defendant was honestly seeking to defend himself.” (Citation and punctuation

omitted.) Id. “Such evidence is admissible to show the victim’s character for violence

or tendency to act in accordance with . . . her character as it relates to the defendant’s

claim of justification.” (Punctuation and footnote omitted.) Owens v. State, 270 Ga.

199, 201 (2) (509 SE2d 905) (1998). Further, the evidence of such prior difficulties

between the defendant and a victim “should not be admitted at all if there is no

probative connection with the present case.” (Citation and punctuation omitted.)

Maxwell v. State, 262 Ga. 73, 75 (2) (b) (414 SE2d 470) (1992) (overruled on other

grounds by Wall v. State, 269 Ga. 506, 508-509 (2) (500 SE2d 904) (1998)).

      As evidence that he acted in self-defense, Agyemang relies on testimony of

Adu-Asah that she struck him first and that her act of striking him had nothing to do

with any act of aggression on the part of Agyemang. He also relies upon his own

testimony that he struck her only in his attempt to defend himself from his wife’s

                                            6
blows. As Agyemang set forth a prima facie case of self-defense, the trial court was

authorized to allow him to present evidence of his prior difficulties with Adu-Asah

in order to support his justification claim. See Stiles v. State, 242 Ga. App. 484, 487

(2) (b) (529 SE2d 913) (2000). And, contrary to the State’s assertion, the fact that he

also argued that he did not intentionally strike his wife when attempting to protect

himself did not render his prima facie case of self-defense invalid. See Turner v.

State, 262 Ga. 359, 361 (2) (c) (418 SE2d 352) (1992) (“There is no hard and fast rule

. . . that the law of accident and of self defense are always ‘mutually exclusive’”).

      We find that the trial court’s determination that the evidence was more

prejudicial to Adu-Asah than probative was in error. Here, Adu-Asah testified at trial

that she had hit Agyemang in the past after disagreements in their marriage and that

she was the initial aggressor during the present incident. In light of such evidence, it

would not be unfairly prejudicial to allow the jury to hear of specific acts of violence

she committed towards her husband in the past. Further, the evidence of Adu-Asah’s

prior violent acts towards Agyemang was more probative than prejudicial. For a

probative connection between the prior difficulties and the present case to exist, there

must be “some link of association, something which draws together the preceding and

subsequent acts, something which gives color of cause and effect to the transaction,

                                           7
and sheds light upon the motive of the parties.” (Citations and punctuation omitted.)

Maxwell, supra. Here, the evidence sheds light on how Adu-Asah reacted to

Agyemang during arguments in their marriage. Further, the evidence of prior

difficulties was probative for its impeachment value. Adu-Asah testified that although

she first hit Agyemang, that such hitting was not forceful. Agyemang testified

otherwise, explaining that Adu-Asah was “throwing punches” at him and that she hit

him with a pail. He was entitled to impeach her testimony with similar acts of

violence she had exhibited towards him in the past.

      In light of the conflicts in the testimony and the fact that the jury obviously

believed portions of Agyemang’s testimony when it acquitted him of all other counts,

save for the single count of simple battery, we find that the trial court’s exclusion of

this evidence was not harmless as we cannot say that “it is highly probable that the

error did not contribute to the judgment.” (Citation omitted.) Hall v. State, 196 Ga.

App. 523, 525 (2) (396 SE2d 271) (1990). Accordingly, we vacate Agyemang’s

conviction and remand the case for a new trial.

      3. Agyemang finally argues that there was a fatal variance between the

accusation and the evidence presented at trial. We disagree.



                                           8
      Under OCGA § 16-5-23 (a), “A person commits the offense of simple battery

when he . . . 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.” The accusation charged Agyemang with simple battery by “intentionally

making contact of an insulting and provoking nature . . . by striking [Adu-Asah] on

the left arm.” Agyemang argues that there was no evidence presented at trial that he

made contact with Adu-Asah in an “insulting or provoking manner[,]” and that he

should have been charged for causing physical harm to her. However, OCGA § 16-5-

23 (a) (1) “concerns intentional contact of an insulting or provoking nature,

contemplating a touching which does not injure but which is insulting.” Lyman v.

State, 188 Ga. App. 790, 791 (2) (374 SE2d 563) (1988). Here, the evidence showed

that Agyemang struck Adu-Asah on the left arm and that it left a welt. “Whether or

not such contact was ‘insulting and provoking’ was a factual issue to be decided by

the jury.” (Citation omitted.) Eberhart v. State, 241 Ga. App. 164, 166 (2) (526 SE2d

361) (1999) (evidence was sufficient to support a conviction of simple battery under

OCGA § 16-5-23 (a) (1) when defendant “repeatedly kicked, slapped, and grabbed

his wife[,]” as well as “nudged” her with his foot and tried to “control” her by

grabbing her arm to prevent her from leaving). Here, we cannot say that there was a

                                          9
fatal variance. See Curtis v. State, 285 Ga. App. 298, 302 (2) (645 SE2d 705) (2007)

(“A variance is not fatal if the accused is definitely informed as to the charges against

him and is protected against another prosecution for the same offense”) (citation and

punctuation omitted).

      Judgment of conviction vacated and case remanded to the trial court. Barnes,

P. J., concurs. McMillian, J., concurs in judgment only as to Division 2 and concurs

fully otherwise.




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