Duffey v. State

498 S.E.2d 816 (1998)

DUFFEY v. The STATE.

No. A98A1310.

Court of Appeals of Georgia.

May 27, 1998.

Lloyd J. Matthews, for appellant.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Mary Evans-Battle, Assistant District Attorneys, for appellee.

BLACKBURN, Judge.

Emmanuel Duffey was charged with aggravated assault and burglary. With respect *817 to the aggravated assault charge, the jury was instructed on both aggravated assault and the lesser included offense of simple assault. The jury then found Duffey guilty of simple assault and burglary. In his sole enumeration of error, Duffey contends that there was an insufficient factual basis to instruct the jury on aggravated assault. However, as Duffey was not convicted of aggravated assault, but of the lesser offense of simple assault, any error in charging the jury on this crime was harmless. Marks v. State, 210 Ga.App. 281, 283-284(5), 435 S.E.2d 703 (1993). Duffey does not assert as error that the trial court erred in charging on simple assault.

In his brief, Duffey attempts to enlarge his enumeration by arguing that it was inconsistent to convict on both simple assault and burglary. However, this issue was not raised in his enumerations of error and will not be addressed. Brown v. State, 191 Ga. App. 76, 79(4), 381 S.E.2d 101 (1989) ("[a]n appellant cannot expand his enumerations of error by brief to include issues not raised in the enumerations of error").

Judgment affirmed.

McMURRAY, P.J., and ELDRIDGE, J., concur.