In connection with a shooting at an apartment complex, Eldreco Craft was convicted of aggravated assault, disorderly conduct, possession of a firearm by a convicted felon, criminal damage to property in the first degree, and possession of a firearm during the commission of a felony. He argues on appeal that the state violated Batson v. Kentucky 1 during jury selection; the evidence was insufficient to support his aggravated assault conviction; a count of the indictment was defective; the judge improperly expressed an opinion during trial; the court improperly charged the jury; and he received ineffective assistance of counsel. Craft has shown that the court committed reversible error when it charged the jury on possession of a firearm during the commission of a felony, and thus we reverse Craft’s conviction for that offense; because the evidence was sufficient to support that conviction, however, Craft may be retried. 2 There is no merit in Craft’s remaining contentions, and accordingly we affirm his other convictions.
1. Craft argues that the trial court erred in denying his Batson challenge to one of the state’s peremptory jury strikes.
The evaluation of a Batson challenge involves a three-step process: (1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven discriminatory intent. 3
The findings of the trial court are entitled to great deference, and should not be disturbed unless clearly erroneous. 4
The court found that Craft had made a prima facie showing of racial discrimination because the state used six of eight peremptory strikes against prospective jurors who were members of racial minority groups. After the state offered explanations for the strikes, the court reinstated one juror (the alternate) but allowed the other five strikes to stand, ruling that the state’s proffered explanations for those five strikes were race-neutral and that Craft had failed to show discriminatory intent.
Craft challenges the court’s ruling regarding one of the five permitted strikes. The state’s explanation for striking the prospective juror was that he had been “slumped down in his chair” during voir dire and “seemed disinterested in what was going on.” This was a race-neutral explanation for exercising the strike. 5
Craft questions whether the prospective juror was in fact disinterested and notes that the court failed to make a specific finding on this point. But the court was not required to make a finding on the juror’s actual disinterest; it was required to determine, considering the totality of the circumstances, whether Craft had shown that the state was motivated by discriminatory intent in
the exercise of the strike.
6
Under the circumstances, we
The trial court was authorized to find that Craft failed to carry his burden of showing purposeful discrimination. 13 Consequently, the court did not clearly err in denying Craft’s Batson motion. 14
2. Craft was charged with aggravated assault against a specific resident of the apartment complex, into whose apartment a bullet had passed during the shooting. He argues that there was insufficient evidence to support his conviction for this offense. When an appellant challenges the sufficiency of the evidence to support the conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 15
So viewed, the evidence showed that on March 19, 2008, Craft, while standing outside an apartment complex amid a group of people, waved a gun in the air and then intentionally fired it several times toward an apartment building. A bullet entered an apartment through a window, passed through the living room, and lodged in a closet door. The apartment’s resident and her children were in the living room at the time. The resident testified that she heard the sounds of bullets and breaking glass, that she and her children were on the floor of her apartment when the bullet came through the window, that she was “paranoid,” that she remained on the floor of her apartment for about ten minutes afterward, and that she crawled to her telephone to call for help and crawled to her door when assistance arrived.
A person commits an aggravated assault, among other ways, by assaulting another with a deadly weapon.
16
A person commits an assault by, among other things, committing an act which places another in reasonable apprehension of immediately receiving a violent injury.
17
The jury was authorized to find from the evidence that Craft intentionally committed an act that placed the apartment resident in reasonable apprehension of immediately receiving a violent injury.
18
The
3. The indictment charged Craft with possessing a firearm during the commission of the felony of criminal damage to property in the first degree. Craft argues that this count was defective because the felony alleged in the count could not serve as a predicate for the possession offense. He raised this argument to the trial court at the close of the state’s case through a motion for directed verdict of acquittal on the charge of possession of a firearm during the commission of a felony. But a “motion for directed verdict of acquittal addresses the sufficiency of the evidence, not the sufficiency of the underlying indictment.” 20 Because Craft moved for a directed verdict of acquittal, the issue presented for appellate review is the propriety of the court’s denial of that motion, which issue “is determined, not by the sufficiency of the indictment, but by whether the evidence adduced at trial demanded a verdict of ‘not guilty,’ under the standard of Jackson v. Virginia.” 21
OCGA § 16-11-106 provides, in pertinent part, that a person commits a felony by having on or within arm’s reach of his or her person a firearm during the commission of certain enumerated felonies. 22 The indictment alleged that Craft violated OCGA § 16-11-106 by possessing a firearm while committing criminal damage to property in the first degree. Although the Code section does not specifically list criminal damage to property in the first degree as a predicate felony, it more generally enumerates as a predicate offense any crime which is a felony “against or involving the person of another.” 23
A person commits the offense of criminal damage to property in the first degree when he or she, among other things, “[kjnowingly and without authority interferes with any property in a manner so as to endanger human life” 24 This statutory language contemplates that the defendant’s actions create an actual risk of danger to a person. 25 Accordingly, the offense of criminal damage to property in the first degree “involves” a person, and thus may serve as a predicate for a conviction for possession of a firearm during the commission of a felony under OCGA § 16-11-106 (b) (l). 26 And the requirements of Jackson v. Virginia were met as to this conviction, because the evidence authorized the jury to find that Craft, while possessing a firearm, knowingly and without authority interfered with property in a manner endangering human life, by shooting at an inhabited apartment building. 27
4. Craft contends that the judge violated OCGA § 17-8-57, which provides: “It is error for any judge in any criminal case, during its progress or in his charge to the
Although the record shows that the judge asked numerous questions of witnesses during trial,
[i]t has long been a part of Georgia jurisprudence that a trial judge may propound questions to any witness for the purpose of developing fully the truth of the case, and the extent of such an examination is a matter for the trial court’s discretion. The trial court’s examination of a witness called by either side is not cause for a new trial unless the court, during its examination of the witness, expresses or intimates an opinion on the facts of the case or as to what has or has not been proved, or the questioning becomes argumentative. 28
We discern no violation of OCGA § 17-8-57. The actions cited by Craft that occurred in the jury’s presence do not constitute statements of the judge’s opinion on matters specified in OCGA § 17-8-57, nor argumentative questioning by the judge. 29 In addition, the actions cited by Craft do not reflect an “[ejxtreme anxiety” on the part of the judge “to develop the truth as to facts which, if proved, will be peculiarly beneficial to one of the parties in the case and correspondingly detrimental to the other,” from which the jury could infer the court’s opinion. 30 Rather, the record shows that the judge questioned witnesses called by both Craft and the state about facts that could be considered both beneficial and detrimental to each side’s case.
5. Craft argues that the court erred in instructing the jury that it could find him guilty of possessing a firearm during the commission of a felony in a manner not alleged in the indictment. We agree.
The indictment alleged that Craft committed the offense by possessing a firearm while committing criminal damage to property in the first degree. In its charge to the jury, the court stated that a person commits the offense of possessing a firearm during the commission of a felony “when the person has on or within arm’s reach of his person a firearm during the commission of any or any attempt to commit a felony, which is any crime against or involving the person of another.” As discussed above, criminal damage to property in the first degree is a felony that is a crime against or involving the person of another. 31 Evidence was presented that Craft possessed a firearm during the commission of criminal damage to property in the first degree. However, evidence also was presented that Craft possessed a firearm during the commission of another felony that was a crime against or involving the person of another — aggravated assault.
We considered a similar circumstance in
Milner v. State.
32
The indictment in that
The circumstances requiring reversal in Milner are also present in this case. The possession offense was defined by the court as predicated on any felony against or involving the person of another, evidence was presented that Craft committed another such felony, and the court did not instruct the jury to limit its consideration only to the predicate felony specified in the indictment. 38 Thus, we find that under these circumstances there was a reasonable possibility that the jury found Craft guilty of committing the offense in a manner not charged in the indictment, and that Craft’s right to due process accordingly was violated. 39 “This error is sufficiently egregious to preclude a finding that it was waived,” even though Craft did not object to the charge at trial. 40 For this reason, we reverse Craft’s conviction for possession of a firearm during the commission of a felony. 41
6. Craft’s trial was bifurcated; after the jury found him guilty of several of the charges, evidence was presented on the offense of possession of a firearm by a convicted felon, and the jury heard argument from counsel and was charged by the court on that offense. Craft argues that the court erred when it responded to a juror’s question regarding the court’s charge to the jury on that offense.
The court had instructed the jury that “felony” meant “any offense punishable by imprisonment for a term of one year.” Shortly before that instruction, during closing argument, Craft’s attorney had asserted that Craft had received probation, rather than prison time, for a prior conviction. After the court charged the jury, a juror stated: “Punishable. Which means any offense punishable by imprisonment for one year. Would that mean that the sentence —” A conference then occurred outside the jury’s
Craft contends that, in giving this additional instruction, the court violated OCGA § 17-8-56, which provides that a superior court judge “shall, when the counsel for either party requests it before argument begins, write out their charges and read them to the jury; and it shall be error to give any other charge or additional charge than that so written and read.” 42 But where, as here, a court reporter took down the trial court’s charge, the requirements of OCGA § 17-8-56 do not apply. 43
Furthermore, “[gjenerally, the scope and content of additional jury instructions are left to the sound discretion of the trial court, and the trial court may address only the jury’s request on a particular point or [may] give additional instructions.” 44 We discern no abuse of discretion in the court’s response to the juror’s question. 45
7. Craft claims that he received ineffective assistance of counsel. To prevail, Craft
must establish, pursuant to Strickland v. Washington, 46 that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. ... In reviewing a trial court’s determination regarding a claim of ineffective assistance of counsel, this court upholds the trial court’s factual findings unless they are clearly erroneous; we review a trial court’s legal conclusions de novo. 47
We need not address both components of the Strickland test if the showing on one is insufficient, nor must we address the components in any particular order. 48
(a) Citing
Shaw v.
State,
49
Craft argues that evidence that he fired a gun into the air, rather than at any particular person, warranted a charge on reckless conduct as a lesser included offense to aggravated assault against the resident in whose apartment the bullet lodged;
50
he contends that his counsel committed professional error in failing to request such a charge.
Shaw
does not support
Craft’s position. Rather,
Shaw
holds that, despite evidence that the defendant fired a gun into the air, “a reckless conduct charge is
not
warranted for an aggravated assault committed by placing another in reasonable apprehension of immediately receiving a violent injury.”
51
This is because evidence that a defendant fired a gun into the air, and thereby placed another in reasonable apprehension of immediately receiving a violent injury, demonstrates the intent required for aggravated assault, not the criminal negligence required for reckless conduct.
52
Because the court was not required, under the evidence, to give a charge on reckless conduct,
53
there is no merit in Craft’s claim that
(b) Craft asserts that the evidence warranted a jury charge on criminal trespass as a lesser included offense to criminal damage to property in the first degree, and that his counsel committed professional error in failing to request such a charge.
A person commits the offense of criminal trespass when he or she intentionally damages any property of another person without consent of that other person and the damage thereto is $500.00 or less or knowingly and maliciously interferes with the possession or use of the property of another person without consent of that person. 55
Craft concedes, however, that “there was no testimony or other evidence as to the amount of damage” that was caused to property. And the Supreme Court of Georgia has held that where the only evidence of interference with property showed the defendant’s commission of a life-endangering act, there was no evidence of a “mere knowing and malicious interference with the property of another without his consent,” as required for criminal trespass. 56 Consequently, there was no evidence in this case of the lesser included offense of criminal trespass, 57 and counsel did not commit professional error by not requesting a charge on that offense. 58
(c) Craft asserts that his counsel committed professional error by failing to object when the trial court assisted the state in presenting evidence, allegedly in violation of OCGA § 17-8-57. But as we have concluded, the trial court’s actions did not violate OCGA § 17-8-57. 59 This assertion is without merit. 60
(d) Craft’s remaining assertion of ineffective assistance of counsel is moot.
Judgment affirmed in part and reversed in part.
Notes
See
Lively v. State,
Flanders v. State,
Jackson v. State,
See
Arrington v. State,
Barnes v. State,
See Barnes, supra at 350-351 (6).
Id. (punctuation and footnote omitted).
The prosecutor explained that he had struck the reinstated juror because of the emphasis she had placed on her church attendance.
See
Kimble v. State,
Id. at 544-548 (2) (a)-(d).
See Flanders, supra.
Id.
Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).
OCGA § 16-5-21 (a) (2).
OCGA § 16-5-20 (a). See generally
Brinson v. State,
See
Smith v. State,
Thompson, supra.
Adkins v. State,
Id. (citations and punctuation omitted); see
Williams v. State,
OCGA § 16-11-106 (b).
OCGA § 16-11-106 (b) (1).
OCGA § 16-7-22 (a) (1) (emphasis supplied).
See
Carthern v. State,
Compare OCGA § 16-7-23 (a) (setting forth elements of criminal damage to property in the second degree, which do not include showing a risk to a person);
Johnson v. State,
See Carthern, supra at 381 (evidence that defendant fired gun into inhabited dwelling was sufficient for jury to find that he committed the offense of criminal damage to property in the first degree).
Mullins v. State,
Craft also cites actions that occurred
outside
the jury’s presence; because these actions did not occur in the jury’s presence they could not have violated OCGA § 17-8-57. See
Linson v. State,
Paul v. State,
See Division 3, supra.
Id. at 860 (1).
Id.
Id.
Id. See generally
Dukes v.
State,
Milner, supra at 861 (1).
See id. at 860; see also Dukes, supra.
See
Dukes,
supra at 422-424 (discussing application of due process analysis where trial court’s jury charge differs from indictment);
Milner,
supra at 860-861;
Levin v. State,
Levin, supra; see also OCGA § 17-8-58 (b) (jury charge may be considered on appeal notwithstanding appellant’s failure to object at trial where charge constituted “plain error which affects substantial rights of the parties”); Milner, supra at 859 (1), n. 1.
See Dukes, supra at 424; Milner, supra at 861; Levin, supra.
OCGA § 17-8-56 (a).
OCGA § 17-8-56 (c).
Lawson v. State,
See id.
Espinosa v. State,
Id.
See OCGA § 16-5-60 (b) (a person commits the offense of reckless conduct when he causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise).
Shaw, supra at 759 (1) (emphasis supplied).
See Dunagan v. State,
See generally
Edwards v. State,
See
Chancey v. State,
OCGA § 16-7-21 (a).
Waugh v. State,
See Edwards, supra at 133.
See Chancey, supra.
See Division 4, supra.
See
Moore v. State,