A jury found Joseph Gross guilty of aggravated assault and battery. The trial court ruled that the battery merged into the aggravated assault, and sentenced Gross to serve six years in confinement and fourteen years on probation for the aggravated assault. Gross appeals, claiming that his trial counsel was ineffective; that the trial court erroneously charged the jury on aggravated assault; and that the trial court, rather than merging the battery into the aggravated assault, should have merged the aggravated assault into the battery. Because trial counsel’s performance was not deficient, because Gross helped induce the trial court into giving the aggravated assault jury charge about which he now complains and the charge as a whole was not erroneous, and because the felony of aggravated assault did not merge into the misdemeanor battery, we affirm. Construed in favor of the verdict, Jackson v. Virginia , 443 U. S. 307 99 SC 2781, 61 LE2d 560 1979, the evidence shows that on November 11, 2006, Gross and Salvatore Barone got into an altercation in the parking lot of a DeKalb County restaurant. The fight ended when several people separated the men. As Barone bent over to pick up a shoe that had come off during the fight, Gross stepped forward and violently kicked Barone in the head, causing him to fall and hit his head on the concrete parking lot. Barone lost consciousness, began bleeding from his nose, mouth and ears and suffered brain damage.
1. Gross claims that the trial court erred in charging the jury that “a person commits the offense of aggravated assault when that person assaults another person with any object which when used offensively against a person is likely to or actually does result in serious bodily injury.” Gross maintains that the inclusion of the “actually does” language was improper because the accusation did not include that language and instead charged him with aggravated assault for “making an assault on the person of Barone with his foot, an object which when used offensively against said person was likely to result in serious bodily injury.”
