Johnson v. State
320 Ga. App. 161
Ga. Ct. App.2013Background
- Johnson was convicted of aggravated assault (Counts 1–3), obstruction (Count 4), and possession of a firearm by a convicted felon (Count 5).
- The incident began when Corey McKeller reported his brother’s car stolen and police placed McKeller at the scene with his infant daughter in the back seat.
- Johnson arrived, threatened Cook, and fired three shots from a .25-caliber pearl-handled silver handgun at Cook and at McKeller’s car.
- A shell casing was recovered; a handgun was later found at Johnson’s home and suppressed as evidence due to an illegal search.
- At trial, eyewitnesses described a .25-caliber pearl-handled firearm; Johnson’s ex-wife testified about a similar handgun in 2007.
- The jury acquitted Johnson of the aggravated assault on the infant but convicted him on the remaining counts; Johnson moved for a new trial, which was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence | Johnson attacks witness credibility and argues evidence fails to prove elements. | State contends evidence supports all elements beyond reasonable doubt. | Evidence sufficient to sustain convictions. |
| Reference to the gun after illegal search | All references to the .25-caliber handgun should be suppressed. | Waiver; no first-time suppression on appeal; no authority for sweeping ban. | No reversal; cannot raise suppression matter on appeal; waiver applies. |
| Charge on lesser included offenses: simple assault | Court should have instructed on simple assault as a lesser included offense. | No factual basis for simple assault given a deadly weapon was used. | No error in omitting simple assault instruction. |
| Charge on reckless conduct as lesser included offense | Court should have given reckless conduct instruction. | Infant aggravated assault acquittal moots reckless conduct; acts were not negligent. | Reckless conduct instruction not required; no error. |
| Variance between indictment and proof (deadly weapon) | Indictment specified a .25-caliber handgun; proof described the same firearm. | Variance not fatal; defendant informed of charges and at risk of no double jeopardy issues. | No fatal variance; indictment and proof aligned; no error. |
| Public defender conflict | Conflict existed due to prior representation by same office. | No actual conflict; only potential conflict; no substantial risk that counsel was adversely affected. | No actual conflict; trial court properly denied new trial. |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (U.S. Supreme Court 1979) (standard for sufficiency of evidence)
- Reese v. State, 270 Ga. App. 522 (Ga. App. 2004) (view evidence in light most favorable to the prosecution)
- Hatcher v. State, 224 Ga. App. 747 (Ga. App. 1997) (waiver of suppression challenges for untimely motions)
- Comley v. State, 218 Ga. App. 520 (Ga. App. 1995) (no simple assault where deadly weapon used)
- Dickerson v. State, 207 Ga. App. 241 (Ga. App. 1993) (no simple assault where evidence shows deadly weapon)
- Jones v. State, 312 Ga. App. 15 (Ga. App. 2011) (variance between indictment and proof not fatal)
- Mathis v. State, 299 Ga. App. 831 (Ga. App. 2009) (variance between handgun type not fatal)
- Bright v. State, 238 Ga. App. 876 (Ga. App. 1999) (reckless conduct requires gross deviation and risk)
- Lytle v. State, 290 Ga. 177 (Ga. 2011) (actual conflict required; substantial risk elements)
- Burns v. State, 281 Ga. 338 (Ga. 2006) (imputing conflicts within a single office discussed)