Defendant Randall James Cavender was convicted of three counts of aggravated assault and appeals.
1. Defendant first contends that the trial court erred in denying his motion for new trial on the basis that the verdict was contrary to the evidence. Specifically, defendant argues that the evidence does not support his conviction for the aggravated assault of both Keith Coleman and Officer William Grizzard because the evidence shows he fired only one shot at the vehicle in which Coleman and Officer Grizzard were riding.
The evidence adduced at trial shows that the charges against defendant arose out of a domestic dispute. Defendant admitted pushing his wife to the ground, and kicking and tripping her. At some point defendant’s wife managed to escape to a neighbor’s house where she called police. Officer William Grizzard responded to the call. Keith Coleman, a civilian, was riding as a passenger in the car with Officer Grizzard. Both Officer Grizzard and Coleman testified that defendant pointed a shotgun directly at the police vehicle in which they were riding and fired, striking the windshield of the vehicle. According to Officer Grizzard and Coleman, the defendant was approximately 40 to 50 feet away from the vehicle when he fired at the patrol car. Coleman testified that defendant’s actions in firing at the car placed him
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in fear of receiving bodily injury and Officer Grizzard testified that he felt like his life was in danger. Under these facts, we find the firing of a single shotgun blast at a car containing two persons in the front seat of the car authorized defendant’s conviction for the offense of aggravated assault as to both individuals. See
Heard v. State,
2. Defendant next contends the trial court erred by allowing the State to introduce evidence of similar transactions (prior assaults on his wife) because a hearing was not held pursuant to Uniform Superior Court Rule 31.3 (B) before that evidence was admitted. “Uniform Superior Court Rule 31.3 (B) and our Supreme Court’s decision in
Williams v. State,
“This court has held, however, in cases in which a Rule 31.3 (B) hearing was held, that the failure of a defendant to object to the introduction of similar transaction evidence on the basis that the State has not made a sufficient showing and/or the trial court has not made the requisite findings as required by Rule 31.3 (B) and our Supreme Court’s decision in
Williams
precludes appellate consideration of those issues. See, e.g.,
Hunter v. State,
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“We must now consider whether the same rule applies if the error alleged on appeal is that
no hearing was held
prior to the introduction of the similar transaction evidence, and defendant fails to object to the introduction of the evidence on that basis. Rule 31.3 contemplates that
the State
will bring to the trial court’s attention its intent to present evidence of a similar transaction,
the trial court
will conduct the requisite hearing at an appropriate time, and
the State
will have ‘(t)he burden of proving that the evidence of similar transactions or occurrences should be admitted.’ At trial
the State
shall only present evidence of similar transactions specifically approved by
the trial court.
As our Supreme Court stated in
Williams
‘before any evidence of independent offenses or acts may be admitted into evidence, a hearing
must
be held pursuant to . . . Rule 31.3 (B).’ (Emphasis supplied.)
Williams,
Although the similar transaction evidence was erroneously admitted because the trial court did not first conduct a hearing to determine the admissibility of this evidence, we must also determine whether, under the facts of this case, the admission of this evidence was harmless error. The record shows the defendant testified and admitted he committed an aggravated assault on his wife by pushing, kicking, and tripping her. Thus “ ‘error, if any, in the admission of [prior difficulties between the couple] would “not mandate a reversal because it is highly probable that that error did not contribute to the guilty verdict [with respect to that charge]. (Cit.)” (Cit.)’
Johnson v. State,
3. Lastly defendant contends that the trial court erred in refusing to charge the offense of battery, OCGA § 16-5-23.1, as a lesser included offense of the aggravated assault of his wife. As to this issue, the transcript and record show defendant orally requested that the jury be charged on battery and simple battery. The trial court declined to charge on the offense of battery, but agreed to charge the lesser included offense of simple battery. Defendant’s counsel seemed to acquiesce in this ruling, stating to the court “Your Honor, what we discussed with reference to battery, everything will be okay. We will accept that.” However, after the court charged the jury, counsel ob *64 jected to the charge and reasserted the contention that the jury should have been instructed on the offense of battery as well as the offense of simple battery.
Pretermitting whether, as the State contends, defendant’s initial acquiescence resulted in waiver of the error asserted, we find no error in the trial court’s refusal to charge on the offense of battery as a lesser included offense of the crime of aggravated assault. As has been repeatedly held by the appellate courts of this state, “[a] trial judge never errs in failing to include a charge on a lesser included offense unless there is a written request to charge.”
Mosley v. State,
Judgment affirmed.