Harris v. StateHarris v. State
In а bifurcated jury trial, Donald Harris, Jr. was found guilty of aggravated assault and possession of a firearm by a convicted felon. Following the trial court’s denial of his motion for a new trial, and having been granted an out-of-time appeal by the trial court, Harris appeals the judgment of conviction entered against him. He contends on appeal that the evidence was insufficient to support the jury’s verdicts, that the trial court erred in failing to charge the jury on the lesser included offense of reckless conduct, and that the trial court erred in sentencing him as a recidivist pursuant to OCGA § 17-10-7 (a). For the reasons that follow, we reverse Harris’s conviction for aggravated assault and affirm his conviction for possession of a firearm by a conviсted felon.
1. When examining the sufficiency of the evidence to support a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and do not weigh the evidence or determine witness credibility; we determine whether а rational trier of fact could have found beyond a reasonable doubt that the defendant was guilty of the charged offense. Short v. State,
The criminal charges against Harris in this case arose from an incident that occurred on May 19, 2015. Harris’s cousin, Keyellow Johnson, testified that prior to that day, Harris was dating Johnson’s friend April Kitchens. Kitchens accused Harris of molesting her daughter. Kitchens requested that Johnson meet her in a nearby town, where Kitсhens was going to visit her child’s father to tell him about the alleged molestation. Johnson did so, and when Johnson arrived home that day, several of Johnson’s family members were standing in Johnson’s mother’s yard (which was adjacent to her own home). This group included, amоng others, Harris, Johnson’s ten-year-old son, Johnson’s seven-year-old nephew, and Harris’s brother and sister, Edward Harris
Shortly thereafter, Johnson heard someone screaming. Edward Harris then turned
Johnson’s son testified at trial that Harris was at the driver’s side door of Johnson’s car, behind Edward Harris, and Edward Harris was “trying to block.” Harris had a gun and pointed the gun at Jоhnson in her car, and Edward Harris was trying to take the gun away from Harris. Johnson’s son was frightened and ran to the porch when this happened.
Fann, Harris’s sister and Johnson’s cousin, testified at trial that on the day in question, Fann met her brother Edward Harris at Johnson’s mother’s house, and Fann and Edward Harris were planning to fire a rifle and were “just hanging out.” Harris was upset about the accusation that he had molested Kitchens’s daughter. When Johnson pulled into her driveway, Harris approached Johnson’s car, and Edward Harris gave the rifle to Fann and went to Johnson’s car “to calm [Harris].”
When asked if someone took the rifle from her, Fann testified that Harris approached her and the two “had a scuffle.” When asked, she confirmed that Harris was fighting with her for the gun. Although Fann wasn’t “sure if he actually took it, . . . when [she] felt that [she] was losing,” she called for Edward Harris. When asked why she felt that she had to prevent Harris from getting the gun, Fann said, “[h]e was upset. Never know what may happen.” The prosecutor asked, “why were you upset he was going to do something with the gun with regard to . . . Johnson? What was the problem? What led you to believe that if he got that gun he might do some harm to somebody?” Fann responded, “[h]e went over there into [an] altercation with [Johnson].”
Edward Harris testified as follows. On May 19, 2015, Harris was angry with Johnson аnd Kitchens regarding the molestation accusation. When Johnson came home, Edward Harris went out to her car because Harris was approaching it, and Edward Harris wanted to prevent an altercation between Harris and Johnson. Edward Harris gave Fann his gun and ran over to Johnson’s vehicle, where Harris was yelling at Johnson. Edward Harris then heard Fann call for help, saw that she was struggling with Harris, and went to help her.
We disagree with Harris that “[t]here was no competent evidence introduced at trial thаt [he] intentionally pointed the gun at [Johnson], or that [he] was ever completely in possession of the gun.” The evidence at trial included Johnson’s testimony and that of her son describing Harris pointing the gun at Johnson’s car window, Johnson’s testimony describing Harris’s angry bеhavior, the testimony from other witnesses describing Harris’s anger, and testimony from Fann describing her fear about what Harris would do with the rifle. Thus, the evidence was sufficient for a reasonable jury to conclude that Harris took possession of the rifle and intentionally pointed it at Johnson, thereby assaulting her with the rifle. See Short, supra at 634 (1); OCGA § 16-5-21 (a) (2).
Harris’s argument relies on conflicting evidence presented at trial regarding the details of the incident. He argues that, among other things, testimony from Edward Harris and from Fann demonstrates that Harris did not point the gun at Johnson. However, this Court is not tasked with weighing evidence or determining witness credibility Short, supra; Westbrooks v. State,
2. Harris contends that the trial court erred in failing to charge the jury on the lesser included offense of reckless conduct as an alternative to aggravated assault, as he requested. We are constrained to agree.
OCGA § 16-5-21 pertinently provides that “(a) A per son commits the offense of aggravated assault when he or she assaults ... (2) [w]ith a deadly weapon. . . .” The trial
caus[ing] bodily harm to or endangering] the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that [one’s] act or omission will cause harm or endanger the safety of the other person and the disrеgard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. . . .
“[A]ny evidence that the defendant is guilty of the lesser included offense . . . mandates giving [a] requested written charge” on the lеsser included offense. Edwards v. State,
It was undisputed at trial that Harris angrily confronted Johnson, that Edward Harris tried to block Harris’s access to Johnson, that Harris tried to wrestle the rifle away from Fann during the confrontation, and that Johnson was afraid that Harris would use the gun against her. “If the victim reasonably fears an immediate violent injury from a firearm, the aggravated assault has occurred.” Shaw, supra at 759 (1); see Patterson v. State,
However, we find that Harris was entitled to a reckless conduct charge as a lеsser included offense of aggravated assault with a deadly weapon based on OCGA § 16-5-20 (a) (1) for attempting to commit a violent injury to the person of another. Based on the testimony regarding the struggle between Harris, Edward Harris and Fann, the jury could have fоund that Harris pointed the gun at Johnson accidentally, and therefore endangered her by consciously disregarding a substantial and unjustifiable risk that his act or omission would cause harm to or endanger the safety of J ohnson, and the disregard constituted a grоss deviation from the standard of care which a reasonable person would have exercised in the situation. See OCGA § 16-5-60 (b). Though this evidence of reckless conduct was slight, it was sufficient to mandate the charge on the lesser included offense. See Edwards, supra; Shaw, supra at 758 (1).
A charging error is presumed to be prejudicial and harmful unless the record shows that it was harmless. Foskey v. Foskey,
3. Finally, Harris contends that the trial court erred in sentencing him as a recidivist pursuant to OCGA § 17-10-7 (a). He argues that “[his] one conviction led to his probation being revoked, being given the maximum sentence to be served consecutively on the current case, and being given an additional five years of probation on the possession of a firearm by a convicted felon charge.”
Harris’s arguments relate mоstly to his sentence on the aggravated assault conviction. First, he essentially asks this Court to ignore the ruling in Hillman v. Johnson,
Harris also argues that his sentence “should violate the Court’s sense of due process and fundamental fairness.” He does not contend that any portion of his sentence exceeds the statutorily prescribed parameters, and “[t]his [C]ourt is without authority to review sentences within the statutory range.” Trammell v. State,
Judgment affirmed in part and reversed in part.
Notes
For clarity, Edward Harris will be referred to by his full name so as to distinguish him from Appellant Donald Harris, referred to herein as “Harris.”