Rebel Keith Lee was tried by a Douglas County jury and convicted of two counts of aggravated assault,
On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favоrable to the jury’s guilty verdict. Martinez v. State,
The following morning, officers with the Douglas County Sheriff’s Department werе advised to be on the lookout for the stolen vehicle, which was described as a silver Town and Country minivan with a “breast cancer” license plate. Shortly after receiving this advisory, Sergeant Rodney Houston of the Sheriff’s Department saw a vehicle matching that description, being driven by Lee, near the intersection of Lee Road and Highway 92. Sergeant Houston began to follow the minivan and transmitted its license plate number to dispatch. Dispatch responded that the vehicle had been reported as stolen, and the sergeant requested backup. As Sergeant Houston was following the minivan in his marked patrol car, the stolen vehicle suddenly accelerated. Thе sergeant kept pace with the minivan and, after he was joined by a second patrol car, he activated the lights and siren on his vehicle. Rather than pulling over and stopping the minivan, however, Lee accelerated in an apparent attempt to outrun the police. During this part of the pursuit, the minivan reached spеeds of between 70 and 80 mph, in an area where the posted speed limit was 35 mph.
As the pursuit proceeded southbound on Lee Road, the minivan came up behind another vehicle, being driven by Henry Carter. In an attempt to pass Carter’s car, Lee pulled the minivan into the middle of the road, driving between Carter’s car and oncoming cаrs in the opposite lane of traffic. Before he could pass Carter’s car, Lee saw another vehicle traveling in the northbound lane and headed for a collision with the minivan. Rather than decelerating and pulling in behind Carter’s car, Lee steered back into the southbound lane, making contact with Carter’s vehicle and forcing it оff the road.
The pursuit of Lee then continued, with Sergeant Houston driving at speeds of up to 104 mph simply to maintain sight of the minivan. Lee eventually missed a turn he was attempting to make and ran the minivan up onto a curb, causing significant damage to the vehicle.
Henry Carter testified at trial about being forced off the road by Lee, as did his son, who was a passenger in Carter’s car at the time of the incident. As Carter explained, the minivan first approached him from behind and rode his bumper, and Lee then pulled the stolen minivan into the middle of the road, driving between Carter’s car and two cars traveling in the opposite direction. After seeing a third car headed toward the minivan in the northbound lane, Lee turned the van into Carter’s car, made contact with it, and then рroceeded to “keep pushing [Carter’s car] off the road,” eventually forcing it off the road entirely. Carter also stated that when the minivan made contact with his car, he feared both he and his son would be injured.
Carter’s son, Royce Davis, testified that he was unaware of the minivan until it made contact with his father’s car, but that when the contаct occurred and when Lee forced his father’s car off the road, Davis was frightened.
A video of the entire police chase, recorded by the camera in Sergeant Houston’s patrol car, was introduced into evidence and played for the jury at trial. That video corroborated the testimony of the officers involvеd in the pursuit of Lee as well as the testimony of Henry Carter and his son.
The State also introduced similar transaction evidence, which showed that on five different prior occasions between November 1995 and August 2006, Lee led law enforcement officers on high speed chases after they attempted a traffic stop of the vehicle Lee was driving. On one of those occasions, Lee was driving a stolen car. Additionally, during each of these five prior incidents, Lee drove at speeds well in excess of the posted speed limit and committed numerous traffic violations in his efforts to avoid police. The evidence showed that on multiple occasions Lee drove in the opposite lane of traffic, forced police cars and civilian vehicles off the road, and deliberately crashed his vehicle into a patrol car. Video of two of these police chases was introduced into evidence and played for the jury.
Based on the foregoing evidence, the jury fоund Lee guilty. The trial court then held a sentencing hearing to receive evidence regarding, inter alia, the State’s request that Lee be sentenced as a recidivist pursuant to OCGA § 17-10-7 (c). At that hearing the State introduced certified copies of Lee’s four previous felony convictions, which included one conviction for fleeing from аnd eluding a police officer and three convictions for possession of cocaine. Based on this evidence, the trial court sentenced Lee as a recidivist.
After the entry of his conviction and sentence, Lee filed a motion for a new trial, which was denied. This appeal followed.
1. “When we consider whether the evidence is sufficient to sustain a conviction, we ask 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.” (Citation and punctuation omitted.) Louisyr v. State,
it is the function of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. So, if the record contains some competent evidence to prove each element of the crime [s] of which the defendant was convicted, even though that evidence may be contradicted, we must uphold the cоnviction.
(Citation and punctuation omitted.) Ferguson v. State,
(a) Lee argues that the evidence cannot support his conviction for aggravated assault of Henry Carter, because the State proved only that his contact with Carter’s car was accidental, and it therefore failed to prove that he intended to injure Carter. This argument, however, ignores the fact that the Stаte is not required to prove an intent to injure in all aggravated assault cases.
Here, Lee does not dispute that, under the circumstances of this case, the stolen minivan constituted a deadly weapon. See Barnes v. State,
(b) Lee next argues that the evidence was insufficient to sustain his conviction for the aggrаvated assault of Royce Davis, because the State failed to show that his conduct placed Davis in apprehension of receiving an injury. In support of this argument, Lee cites Davis’s testimony that he was unaware of the stolen minivan before it struck his father’s car. This argument, however, ignores the evidence showing that Lee intentionally stеered the minivan into Carter’s car, as well as Davis’s testimony that when the minivan struck his father’s car, Davis was scared. It also ignores the evidence, including the video evidence, showing that Lee did not succeed in forcing Carter’s car off the road until after he struck it with the minivan, i.e., until after Davis was aware of the minivan and its actions. Davis’s testimony, togethеr with the other evidence of record, sufficed to show that Davis was in reasonable fear of receiving a bodily injury as a result of Lee’s assault with the minivan. See Williams v. State,
(c) Under Georgia law, “[a] person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner.”
As we have previously recognized, “[b]eeause of its very nature, [the] crime [of theft by receiving] is one that is usually proved in whole or in part by circumstantial evidence.” (Citation and punctuation omitted.) Gillis v. State,
2. Lee further contends that the trial court erred in refusing to give his requested jury charge on accident. “We reviеw a trial court’s refusal to give a requested jury charge under an abuse of discretion standard.” (Footnote omitted.) Turner v. State,
Under OCGA § 16-2-2, “[a] person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.” Accident represents an affirmative defense on which the defendant bears the burden of proof at trial. Davis v. State,
Moreover, all of the evidence presented at trial showed that at the time he committed the crimes at issue, Lee was engaged in a criminal scheme to elude the police. And his actions showed an utter disregard for the safety of both law enforcement and the driving public, all of whom Lee should have reasonably anticipated might be injured by his conduct. “Consequently, the trial court did not err in refusing to give [Lee’s] requested charge on accident.” (Citation omitted.) Parks, supra at 179 (3) (a). See also Davis, supra at 280 (3) (holding that a jury instruction on the defense of accident is not warranted where a person deliberately uses a deadly weapon “to place someone in reasonable apprehension of immediate bodily injury,” even where the resulting injury to the victim was not intended) (citations omitted).
3. Lee contends that the trial court erred in sentencing him as a recidivist under OCGA § 17-10-7 (c) because the State’s evidence showed only that he had been convicted of two felonies. This assertion is meritless.
OCGA § 17-10-7 (c) provides, in relevant part:
... [A]ny person who, after having been convicted under the laws of this state for three felonies . . . , commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses,serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.
In connection with the similar transaction evidence it offered at trial, the State also introduced into evidence certified copies of two of Lee’s prior convictions, only one of which was a felony conviction. At the sentencing hearing held after Lee was convicted, however, the State introduced certified copies of four prior felony convictions of Lee, which included one priоr felony conviction for fleeing from and eluding a police officer, and three prior felony convictions for possession of cocaine.
For the reasоns set forth above, we affirm the trial court’s denial of Lee’s motion for a new trial.
Judgment affirmed.
Notes
OCGA § 16-5-21 (a) (2),
OCGA § 16-8-7 (a).
OCGA § 40-6-395 (a).
OCGA § 16-10-24 (a).
OCGA § 40-6-270 (a).
OCGA § 40-6-390 (a).
The owner of the minivan testified that the vehicle “was destroyed.”
For purposes of the statute, “receiving” is defined as “acquiring possession or control or lending on the security of the property.” OCGA § 16-8-7 (a).
Lee was convicted for felony attempt to еlude a police officer on November 16, 2004, in Cobb County for an incident that occurred on June 4, 2004. Lee’s convictions for possession of cocaine were entered in Cobb County on July 18,1996, in Douglas County on August 12, 2002, and in Fayette County on August 16,2002. These convictions resulted from incidents occurring on November 25, 1995, December 6, 2001, and December 7, 2001, respectively.