Via indictment, defendant was accused of two counts of aggravated assault (Counts 1 and 2), criminal damage to property in the second degree (Count 4), and possession of a firearm by a convicted felon (Count 3). More specifically, with regard to the assault and criminal damage counts, the indictment alleged that on or about November 30, 1991, defendant shot at Lewis Burns (Count 1) and Lee Burns (Count 2), and damaged Lee Burns’ truck by shooting a bullet into the side of it (Count 4). Following a jury trial, defendant was convicted upon Counts 1 and 4 of the indictment. (Defendant was acquitted upon Count 2; Count 3 was nolle prossed.) He was sentenced tо serve twenty years on Count 1 and five years on Count 4 and he moved for a new trial. The trial court denied the motion for a new trial and defendant apрealed. Held:
1. In his first enumeration of error, defendant asserts the evidence was insufficient to enable a rational trier of fact to find defendant guilty of аggravated assault beyond a reasonable doubt. We disagree.
Viewing the evidence in a light favorable to the State, as we are bound to do, we find the following: On the day in question, Lee Burns and his father, Lewis Burns, were returning from a hunting trip. Lee Burns was driving; Lewis Burns was in the passenger seat. They took a detour on a country road so Lee Burns, a Georgia Forestry Commission fire fighter, could show his father where he had put out a fire a few days previously. They drove past defendant who was standing out in a field, carrying a pistol. The road came to an end and they turned around. They approached defendant; he was now stаnding on the side of the road, facing the passenger side of the truck. They slowed down “to talk to him, be polite . . . and just mosey on. ...” The next thing they knew, defendant rаised the gun to “an aiming level,” pointed it in Lewis Burns’ direction, and fired. Lewis Burns knew that defendant fired a shot at him. Lee Burns did not see defendant shoot the gun; but he heard the shot and drove off hurriedly. When *481 he was out of defendant’s sight, Lee Burns stopped the truck. Lewis Burns examined the truck and observed a bullet hole on the passеnger’s side, “right behind [him].” He was scared.
We have no hesitation in concluding that the evidence was sufficient to support defendant’s conviction for aggrаvated assault beyond a reasonable doubt. See
Jackson v. Virginia,
2. In his second enumeration of error, defendant contends the trial court erred in admitting his gun into evidence. In this connection, defendant points out that he was not given a
Miranda (Miranda v. Arizona,
The arresting officer testified that he obtained an arrest warrant for defendant and went to defendant’s house to arrest him. Before he placed defendant under arrest, the officer told defendant about the shooting incident, adding that he was “not quite clear on everything that happened,” but that hе did know that a “shiny nickel weapon” was used in the incident. Then he asked defendant if he owned a similar weapon. Defendant replied that he did; he “went insidе,” brought the gun out and “voluntarily” gave it to the officer. Thereupon, the officer placed defendant under arrest, advised him of his rights, and put him in a police vehicle.
In
Ingle v. State,
In the case sub judice, defendant was asked whether he had a gun when he was apрroached initially by the arresting officer. As the court said in
Ingle,
supra, “ [t]his is not the sort of ‘in-custody interrogation’ forbidden by the Miranda case. . . .” After all, “ [t] he issue of custody involves an objective standard: Would a reasonable person in the defendant’s situation have believed that he was physically deprived оf his freedom of action in any significant way? If not, he is not subject to the compulsive atmosphere of an actual arrest, and
Miranda
does not apply. [Cits.]”
Childs v. State,
3. “ ‘Where the State seeks to introduce evidence of a fungible nature, it must show a chain of custody adequate to preserve the identity of the evidence. (Cit.) The burden is оn the State “to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution.” (Cits.) The Stаte need not negative every possibility of tampering, and “need only establish reasonable assurance of the identity” of the evidence. (Cit.)’
Anderson v. State,
The State showed with “reasonable certainty” that the bullet offered into evidence remained in the custody of law enforcement personnel and the crime laboratory, that it had not been tampered with, and that it was the same as that taken from Lee Burns’ truck. It follows that the State established a proper chain of custody for the bullet and that the trial court did not err in admitting it into evidence. Defendant’s third enumeration of error is without merit.
4. The trial court did nоt err in permitting evidence of a photographic lineup and Lewis Burns’ identification of a photograph of de
*483
fendant in the lineup. The photographic lineup was by no means unduly suggestive and Lewis Burns’ in-court identification was not tainted in any way.
Zilinmon v. State,
Contrary to defendant’s assertion,
Duffey v. State,
supra, does not stand for the proposition that evidence of a photographic lineup is only admissible in rebuttal. Although other jurisdictions may not permit testimony of a photographic identification during the State’s case-in-chief, e.g.,
People v. Hines,
Judgment affirmed.