On Tuesday, I got an e-mail from Every Day Should Be Saturday proprietor, Sporting News contributor, and blogosphere representative in non-ambush panel discussions Orson Swindle regarding the recent charges against Michael Lemon. The gist of his e-mail was to ask whether the victim’s injuries (which reportedly included a blowout fracture to the eye) made this a felony charge worthy of three points in the Fulmer Cup standings.
Naturally, I must offer the same caveat I provided when rising to the defense of Ian Smith; namely, I am not a criminal defense attorney and you get what you pay for when you rely on free legal advice. All warranties of merchantability, fitness for a particular purpose, or otherwise having the faintest idea what in the Sam Hill I’m talking about, whether express or implied, are hereby disclaimed.
Subsection (a) of that statute provides that "[a] person commits the offense of battery when he or she intentionally causes substantial physical harm or visible bodily harm to another." Subsection (b) goes on to define "visible bodily harm" as "bodily harm capable of being perceived by a person other than the victim and may include, but is not limited to, substantially blackened eyes, substantially swollen lips or other facial or body parts, or substantial bruises to body parts."
The police report states that the victim’s "left eye was noticeably swollen & he also had a bump on his forehead from where Mr. Lemon hit him," adding that "[p]ictures were taken and placed into evidence." Based upon what the report indicates, it sounds like we have "visible bodily harm" within the meaning of the law and the photographs should make clear whether this is the case.
So, does being "punched . . . about five times" (as the witnesses reportedly told the police occurred) constitute a felony when it produces the sorts of injuries described in the incident report? Apparently, no, it doesn’t, as O.C.G.A. § 16-5-23.1(c) provides:
Subsections (d) through (l) do not appear to apply. Subsections (d) and (e) deal with second and subsequent convictions for battery against the same victim. There does not appear to be any indication of prior physical altercations between Lemon and the victim, much less prior criminal convictions for the same offense between these two parties.
Likewise, subsection (f) deals with battery between members of the same household (past or present spouses, parents of the same children, etc.), subsection (g) with battery in a public transit vehicle or station, subsection (h) with battery against a pregnant woman, subsection (i) with battery against a teacher or other school employee, subsection (j) with battery against a senior citizen, subsection (k) with battery by a long-term care facility or personal care home employee or volunteer against a person housed in such a facility, and subsection (l) with battery against a sports official while officiating an amateur contest.
(As an aside, regarding that last subsection, please note that it makes battery against a sports official "a misdemeanor of a high and aggravated nature," it applies to "any person who officiates, umpires, or referees an amateur contest at the collegiate, elementary or secondary school, or recreational level," and it protects such an official even when "exiting the property where he . . . has completed officiating an amateur contest." Bear that in mind the next time the calls aren’t going your team’s way and you’re with an irate friend who’s had too much to drink. Tell him to pull a Matt Cerione if he must, but make sure he keeps his hands to himself.)
Whatever happened last Saturday night was alleged to have occurred during a cookout at the community pool among residents of the same apartment complex. Nothing indicates that any of the highly special circumstances listed in the other subsections of O.C.G.A. § 16-5-23.1 applies. Accordingly, in spite of the apparent severity of the injuries described in the police report and subsequent news stories, it looks like the charges do not rise to the level of a felony or even an aggravated misdemeanor.
None of this, of course, assumes that Michael Lemon is or is not guilty or minimizes the seriousness of the allegations against him. However, the question was asked, and I figured Orson was not alone in wanting it answered. Naturally, any of you whose experience with the criminal law is more extensive than mine---and, by that, I mean those of you who have spent time in courtrooms while wearing a business suit rather than an orange jumpsuit---should feel free to chime in with your thoughts on the matter.