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Mallon v. State

Evidence that defendant repeatedly struck the victim with his fists, causing her head to strike a counter supported his aggravated assault conviction.

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After a bench trial, Daniel William Mallon was convicted of battery, OCGA § 16-5-23.1 a; aggravated assault, OCGA § 16-5-21 a 2; and terroristic threats, OCGA § 16-11-37 a. Following the denial of his motion for new trial, Mallon appeals, contending that the trial court erred in failing to ensure that he knowingly and voluntarily waived his right to a jury trial and admitted his guilt as to the battery and terroristic threats charges, that the trial court erred in admitting evidence of the victim’s out of court statements, that the evidence as to the aggravated assault charge was insufficient to convict, that his trial counsel provided inadequate representation, and that the sentence was excessive. We affirm the convictions and remand for a hearing on the ineffective assistance of counsel claim.

A Gwinnett County grand jury indicted Mallon on multiple counts arising out of two separate incidents of domestic violence. In the first incident, on August 1, 1999, Mallon and the victim left a bar together to return to their residence. The two argued in the car and Mallon, who was driving, struck the victim with his hand and bit her on the arm, leaving visible marks. In the second incident, on December 27, 1999, the two argued at their residence and Mallon repeatedly struck the victim with his fists, caused her head to strike a counter, and ripped off her nightclothes. The victim sustained two egg-sized lumps on her forehead and various other scrapes and bruises. Barely clothed, the victim fled to a neighbor’s house, yelling “He’s going to kill me.” After police arrived at the couple’s residence, Mallon called from another location and threatened to kill the victim.

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