Marshall v. StateMarshall v. State
Demario Antwon Marshall appeals his convictions for aggravated assault and possession of a firearm during the commission of a felony. He contends that he received ineffective assistance of сounsel, that the trial court erred in its instructions to the jury, that the evidence was insufficient to support the conviction, and that the trial court erred in allowing the district attorney to recite his arrest record at sentencing. Finding no reversible error, we affirm.
Construed in favor of the verdict, the evidence shows that while the victim, Marshall’s ex-girlfriend, was lying across the passenger seat of her car attempting to release the hood of the car and talking to her mother on her cell phone, Marshall approached her and attempted to strike up a conversation. The victim, who had recently broken off their relationship, continued “talking to [her] mother like he wasn’t there.” Marshall grabbed the victim’s legs, pulled her out of the car and across the pavement, and shot at her at least three times but did not hit her. A neighbor, who had observed Marshall standing ovеr the victim in the parking lot, interrupted the confrontation, enabling the victim to escape to her own apartment and call the police. Marshall fled the scene.
At trial, Marshall testified that the gun did not belong tо him, but that the victim had retrieved the gun from the glove box of her car when he confronted her about stealing his laptop. He also testified that the gun discharged as they struggled for control of it. Marshall denied that he and thе victim had a romantic relationship.
As a preliminary matter, we note that, for the most part, Marshall’s appellate brief does not comply with Court of Appeals Rule 25, which requires citation to both the reсord and authorities, and a reasoned argument. “[NJonetheless, we will review [his] claims of error to the extent we can, based on what we perceive [his] arguments to be.” (Citation and punctuation omitted.) Sevostiyanova v. State,
1. Marshall сontends that he received ineffective assistance of counsel because his attorney did not investigate the case, did not request a continuance so that a private investigator would be availаble to testify, and did not object to the prosecutor’s statements at sentencing.
[To] prevail on a claim of ineffective assistance of trial counsel, an appellant has to demonstrate that his оr her attorney’s performance was deficient, and that the deficiency caused such prejudice that there is a reasonable likelihood that, but for the attorney’s error, the outcome at trial would hаve been different; in so doing, appellant must overcome the strong presumption that counsel’s conduct fell within the range of reasonable professional conduct, which is broad. In its review, this Court gives deference to the trial court’s factual findings, which are to be upheld unless clearly erroneous, and examines the lower court’s legal conclusions de novo.
(Citations omitted.) Dulcio v. State,
(a) Marshall maintains that, had his attorney properly investigated the case, he would have uncovered the victim’s admission that she and Marshall were not previously in a romantic relationship and her complaint against the responding police officer for sеnding an inappropriate text message. These contentions of ineffectiveness, however, were not raised in Marshall’s motion for a new trial or at the motion hearing, and thus are waived. Whorton v. State,
(b) Marshall also maintаins that trial counsel provided ineffective assistance for failing to request a continuance so that an investigator could appear at trial to testify on his behalf. But the investigator did not testify
(c) Marshall also argues that trial counsel should have objected to the prosecutor’s statements at sentencing regarding his prior arrests. He contends that the prosecutor’s statements amounted to a denial of his constitutional rights, but Marshall does not recount the improper statements or describe how they affected his rights. At the sentencing hearing, the prosecutor stated that “this wаs [Marshall’s] ninth arrest,” and that although he did not have any felony convictions on his record, he had a 2007 arrest for domestic violence which the victim declined to prosecute.
At the motion hearing, appellаte counsel “never asked defense counsel to explain why he did not object. Thus, [he] failed to overcome the strong presumption that the inaction was a strategic decision.” (Punctuation omitted.) Goodman v. State,
2. Marshall maintains that the trial court erred by failing to charge the jury on the elements of simple assault.
Because Marshall did not object to the jury charges at trial, we review his contention on appeal for “plain error.”
The plain error test... authorizes reversal of a conviction if the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affected the fairnеss, integrity or public reputation of judicial proceedings.
(Citation omitted.) Holloman v. State,
In this case, although unclear, Marshall seems to be arguing that the trial court should have charged the jury on the elements of simple assault as well as aggravated assault bеcause the victim suffered no injury and “the jury would need to understand the substantive points or issues involved in the aggravated assault case.”
Under
[a] person commits the offense of aggravated assault when that person assaults another person with a deadly weapon. To constitute such an assault, actual injury to the victim need not be shown.It is only necessary that the evidence show beyond a reasonable doubt that the defendant intentionally committed an act that placed the alleged victim in reasonable fear of immediately receiving a violent injury. The State must prove as a material еlement of aggravated assault, as alleged in this case, that the assault was made with a deadly weapon. And I charge you that a firearm, when used as such, is a deadly weapon as a matter of law.
Thus, the trial court properly charged the jury with the applicable assault definition, which was an act that places another in reasonable apprehension of immediately receiving a violent injury. Absent an erroneous charge, Marshall has not established the existence of plain error.
3. Marshall contends that the evidence was insufficient to support his conviction.
On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence. Further, we neither resolve conflicts in the evidence nor assess witness credibility, but merely determine the legal sufficiency of the evidence. When an appellant challenges the sufficiency of the evidence to uphold [his] conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rаtional trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Hines v. State,
Marshall merely contends that there was “conflicting evidence as to whether the victim actually was assaulted or whether it was a struggle over a firearm pulled by the victim and resulting in the errant shot seen by the only eyewitness.” This argument is without merit.
The victim testified that Marshall shot at her at least three times, and her neighbor testifiеd that she saw “the young lady ... on the groundf,] and [Marshall] was [standing] over her.” “The testimony of a single witness is generally sufficient to establish a fact.” Former
Thus, in this case, the evidence was sufficient to authorize the jury to convict Marshall of aggravated assault and possession of a firearm during the commission of a felony.
4. Marshall’s contention that the trial court erred in allowing the district attorney to recount his arrest record at sentencing is merit-less. The prosecutor did not give a “lengthy diatribe” or address Marshall’s prior arrest in “such detail” as he alleges. Marshall’s former arrests were not discussed, other than to point out that the present сase was his ninth arrest, that he was arrested in 2007 for domestic violence, and that the victim in that case did not want to pursue the charges.
As noted earlier, absent evidence showing otherwise, “we must apply the presumption that the judge considered only those matters which may be lawfully considered in determining a sentence.” (Citation and punctuation omitted.) Wright,
Judgment affirmed.
Notes
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