December 2, 2013
The activist once known for placing white nationalist pamphlets on car windshields in Columbus has lost an appeal seeking to overturn his 2011 aggravated assault conviction for pepper-spraying a black man in Rose Hill.
Michael David Weaver, also known as Michael Carothers, pleaded guilty to the charge Nov. 15, 2011, but later sought to withdraw that plea after Muscogee Superior Court Judge Bobby Peters sentenced him to a year in jail followed by nine years’ probation, during which he was banished from the six-county judicial circuit that includes Columbus.
Two weeks later, Weaver filed to withdraw his plea, arguing it wasn’t voluntary, his counsel was ineffective, and the spray he used was not harmful enough to meet the standards of Georgia’s aggravated assault law. Peters denied the motion.
Weaver appealed, and a three-judge panel of the Georgia Court of Appeals rejected his claims in a decision rendered Nov. 20.
At issue was whether Weaver’s use of pepper spray or Mace fit the law, which states: “A person commits the offense of aggravated assault when he or she assaults … with 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. …”
Wrote the appeals court: “Weaver argues that the factual basis … was insufficient to establish the foundation for the plea because ‘the act of merely spraying pepper spray into the face of an adult from a foot away as charged here is not a means likely to cause serious bodily injury and did not in fact cause serious bodily injury in this case.’ We disagree.”
Recounting the offense, the judges wrote Weaver in 2010 was sitting in his car as a black pedestrian passed by with a friend. Weaver called the man over and sprayed him directly in the face with Mace, the court said.
These were the effects, according to the court: “The victim ‘felt like his face was melting,’ the spray burned his eyes and temporarily blinded him, so that his friend had to help him as he stumbled to his home three or four blocks away. The victim remained ‘in a great deal of pain’ after his arrival home and throughout his return to the scene of the incident with his mother to talk to the police.”
Police and prosecutors said the assault happened on Rose Hill Street about 6 p.m. Saturday, Dec. 4, 2010. Arrested an hour later, Weaver at first was charged with misdemeanor simple battery for spraying the 26-year-old man on the neck, but prosecutors in 2011 presented the case as a felony to the grand jury that indicted Weaver for aggravated assault.
Weaver was arrested on the felony Aug. 23, 2011.
In rejecting his appeal, the three-judge panel noted the appeals court in 2008 ruled that even a bruise caused by being hit with a board “provides evidence that an instrument was likely to cause serious bodily injury.” And in 2005 it ruled a welt or bruise from being hit with a branch was sufficient to show the assault was “likely to result in serious bodily injury.”
Still no law or precedent specifically defines “serious bodily injury,” so whether circumstances fit the law is for judges and juries to determine, the court said.
That the victim in Weaver’s case was “in a great deal of pain” and temporarily blinded as his eyes and face burned from the spray was sufficient to show “the trial court did not abuse its discretion by concluding that this evidence supported a guilty plea to aggravated assault,” the judges wrote.
Contemporary reports on Weaver’s 2011 guilty plea show it was prompted by Peters’ ruling a jury would hear about Weaver’s claiming to be a skinhead, using a racial slur and threatening to kill a 15-year-old girl at Jordan High School in 1999.