THE STATE v. WILKERSON
A18A1253
In the Court of Appeals of Georgia
July 30, 2018
BROWN, Judge.
SECOND DIVISION MILLER, P. J., ANDREWS and BROWN, JJ. NOTICE: Motions for reconsideration must be physically received in our clerk‘s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
A jury convicted Jason Edwin Wilkerson of five counts each of aggravated assault with a deadly weapon and aggravated assault with a motor vehicle, but acquitted him of three counts of kidnapping. The trial court sentenced him consecutively on the ten counts of aggravated assault to a total of 60 years to serve followed by 140 years of probation. Wilkerson filed an amended motion for new trial asking the trial court to modify his sentence, and challenging the sufficiency of the evidence to support his convictions. The trial court granted the motion in part, reducing Wilkerson‘s sentence, and finding insufficient evidence to support three of the five counts of aggravated assault with a deadly weapon. The trial court also granted a new trial under the general grounds, finding that the three aggravated assault convictions were against the weight of the evidence and the principles of equity and justice, and that there was insufficient evidence to find Wilkerson guilty of those three counts. The State appeals. For the reasons set forth below, the appeal is dismissed in part; the court‘s order is reversed in part, vacated in part, and the vacated portion of the order is remanded with direction.
The evidence viewed in the light most favorable to the jury‘s verdict, see State v. Sims, 296 Ga. 465 (1) (769 SE2d 62) (2015), shows that on June 24, 2013, Wilkerson‘s sister and her boyfriend were riding in a car with the sister‘s three young children, ages three, two, and one.1 The car was stopped on the side of the road when the boyfriend and sister saw Wilkerson riding as a passenger in a red pick-up truck traveling towards them. The truck stopped and then plowed into the car, pushing it into a ditch and destroying two tires and the driver‘s side door.
At trial, the boyfriend testified that “the gun stayed pointed at me. [Wilkerson] never pointed it at the kids.” When asked if Wilkerson had the gun in his hand when the kids were getting out of the car, the boyfriend testified, “[i]f he did, it wasn‘t never pointed at the kids. He never had the intent of hurting the children at all.” The sister testified that Wilkerson “wasn‘t pointing [the gun] at us, he was pointing it at the car.” When asked by the State to clarify whether the gun, which was pointed at the car was also pointed at the occupants of the car, the sister responded, “I don‘t know, I guess so if we‘re in the car.” According to the sister, when she handed the baby to Wilkerson, he was not holding a gun. The State introduced into evidence the sister‘s statement to police following the incident. In that statement, the sister wrote that Wilkerson pointed the gun at her and at the car.
The State indicted Wilkerson on thirteen counts, including three counts of kidnapping (Counts 1, 2, and 3), and five counts each of aggravated assault with a deadly weapon (Counts 4, 5, 6, 7, and 8) and aggravated assault with a motor vehicle (Counts 9, 10, 11, 12, and 13). Counts 6, 7, and 8 alleged that “Wilkerson [made] an assault upon the person of [each child], with a deadly weapon, to-wit: a gun.” Following a hearing, the trial court granted Wilkerson‘s amended motion for new trial as to Counts 6, 7, and 8, finding as follows:
Although there was testimony that [Wilkerson] pointed a firearm at “the car,” there was no evidence that [Wilkerson] ever pointed a gun at, or threatened, any of the children. Nor was there any evidence that the children felt threatened by the firearm or were aware in any way that a firearm had been pointed at them. The fact that a victim is unaware that a firearm has been pointed at the victim precludes a conviction of aggravated assault. State v. Harlachen, 336 Ga. App. 9, 783 SE2d 411 (2016).
The [c]ourt finds that the convictions for Counts 6, 7, and 8, are strongly against the weight of the evidence and the principles of equity and justice and there was not sufficient evidence to allow a rational trier of fact to
find [Wilkerson] guilty of these Counts. OCGA §§ 5-5-20 and21 ; Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
The trial court also found the original sentence to be excessive, and modified it to seven concurrent terms of twenty years with five to serve. The trial court entered an amended final disposition, memorializing the new sentence and indicating “New Trial Granted” as to Counts 6, 7, and 8.
1. The State argues that the trial court erred in granting the motion for new trial on Counts 6, 7, and 8, because awareness is not an essential element of the crime of aggravated assault and there was evidence that Wilkerson pointed the gun at the children when he pointed it at the car in which the children were riding. We agree.
We review the trial court‘s ruling that there was insufficient evidence to sustain Counts 6, 7, and 8 under the standard espoused in Jackson v. Virginia. See Batten v. State, 295 Ga. 442, 444 (1) (761 SE2d 70) (2014).
The standard of Jackson v. Virginia for assessing the legal sufficiency of the evidence is different than the discretion given a trial court in an evidentiary challenge based upon the general grounds. Indeed, evidence may be less than overwhelming, but still sufficient to sustain a conviction. When we consider the legal sufficiency of the evidence, we must put aside any questions about conflicting evidence, the credibility of witnesses, or the weight of the evidence, leaving the resolution of such things to the discretion of the trier of fact. Instead, we must view the evidence in the light most favorable to the verdict, and we inquire only whether any rational trier of fact might find beyond a reasonable doubt from that evidence that the defendant is guilty of the crimes of which he was convicted.
(Citations and punctuation omitted.) State v. Cash, 302 Ga. 587, 592 (807 SE2d 405) (2017).
“A person may be found guilty of aggravated assault if the State proves (1) an assault and (2) aggravation by use of any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” (Citation and punctuation omitted.) Petro v. State, 327 Ga. App. 254, 257 (1) (a) (758 SE2d 152) (2014). See also
“The indictment only specifies that [Wilkerson] made an ‘assault’ with a deadly weapon, and such general language sufficiently charges an assault by way of either manner contained in the assault statute.” (Citation and punctuation omitted.) Thompson v. State, 277 Ga. App. 323, 324 (1) (626 SE2d 825) (2006). Accordingly, the State could have proved the charged crime with evidence that Wilkerson either used the gun in an attempt to violently injure the children or that he used it to place the children in fear of being violently injured. See Tucker v. State, 245 Ga. App. 551, 553 (1) (538 SE2d 458) (2000).
Relying on Harlachen, supra, the trial court found no evidence that the children were aware that a firearm had been pointed at them. Thus, the trial court reasoned that Wilkerson could not be convicted of aggravated assault. But, the law is clear that “[w]here the ‘assault’ at issue consists of an attempt to commit a violent injury to the person of another, awareness on the part of the victim is not an essential element of the crime.” Goforth v. State, 271 Ga. 700, 701 (3) (523 SE2d 868) (1999). See also Tiller v. State, 267 Ga. 888, 890 (4) (485 SE2d 720) (1997), overruled on other grounds by Dunagan v. State, 269 Ga. 590, 593, n. 3 (502 SE2d 726) (1998); Sutton v. State, 245 Ga. 192, 193 (1) (264 SE2d 184) (1980); Brown v. State, 200 Ga. App. 537 (1) (408 SE2d 836) (1991). Here, the State charged an assault by way of either manner contained in the assault statute. Accordingly, the children‘s awareness is immaterial; it is enough that Wilkerson‘s sister confirmed that Wilkerson intentionally pointed the shotgun at the vehicle in which the children were riding in an effort to get the boyfriend and sister to stop the vehicle. See, e.g., Veal v. State, 242 Ga. App. 873, 874 (1) (a) (531 SE2d 422) (2000) (evidence the defendant fired in direction of trailer sufficient to support aggravated assault convictions as to occupants of trailer, two of whom were sleeping); Tiller, 267 Ga. at 890 (evidence the defendant fired a gun into an occupied building with the intent to harm someone he mistakenly believed to be inside sufficient to support aggravated assault convictions as to other unknown inhabitants even in the absence of injury and in the absence of evidence the victims were in reasonable apprehension of being injured). Accordingly, we reverse the trial court‘s ruling that the evidence was insufficient to sustain Wilkerson‘s convictions for Counts 6, 7, and 8.
2. Wilkerson contends that the State fails to enumerate as error the trial court reversal of Counts 6, 7, and 8 on the general grounds. On the contrary, given the wording of this portion of the trial court‘s order, we find that the State implicitly challenges this ruling in its claim that the trial court erred in finding the evidence insufficient to sustain the three convictions.
“It has long been the rule in this state that the trial judge is vested with the strongest of discretions to review the case and to set the verdict aside if he is not satisfied with it.” (Citations and punctuation omitted.) Manuel v. State, 289 Ga. 383, 386 (711 SE2d 676) (2011). See also
In Choisnet, supra, the defendant moved for a new trial asserting the general grounds. 292 Ga. at 861. The trial court reviewed the evidence under Jackson v. Virginia and denied the motion, concluding “that [it] was more than sufficient to allow a rational trier of fact to find [defendant] guilty beyond a reasonable doubt but mentally ill of the offense charged.” Id. The defendant appealed and our Supreme Court vacated the ruling and remanded the case for consideration of the motion under the proper legal standard, finding that “a trial court does not fulfill its duty to exercise its discretion when it applies the standard set out in Jackson v. Virginia to the statutory grounds for new trial.” Id. See also Wiggins v. State, 330 Ga. App. 205, 211 (c) (767 SE2d 798) (2014).
The trial court here similarly applied the standard set out in Jackson v. Virginia when it granted Wilkerson‘s motion for new trial under the general grounds, while simultaneously tracking the language of
[T]he use of the phrase “sufficient evidence,” which echoes the appellate standard of Jackson v. Virginia, . . . denotes that the trial court failed to apply its discretion, as the determination if there is sufficient evidence to support the verdict is
a matter of law, not discretion. . . . [T]he sufficiency of the evidence standard and the discretionary standard given to the trial court pursuant to OCGA § 5-5-21 address two distinct legal issues, illustrated by the fact that the double jeopardy clause applies when a court finds the evidence insufficient, but not when a court holds that the verdict was against the weight of the evidence.
(Citations and punctuation omitted.) Manuel, 289 Ga. at 386-387 (2).
Given the wording of the trial court‘s order and its finding with regard to the sufficiency of the evidence as discussed in Division 1, supra, we are unable to determine which standard the trial court applied to its ruling under the general grounds. Accordingly, we vacate this ruling and remand the case to the trial court for reconsideration of the general grounds in light of this opinion.
3. The State challenges the trial court‘s modification of Wilkerson‘s sentence contending that the original sentence imposed by the judge presiding over the trial was “within the minimum and maximum sentences prescribed by law” under
“Appeals by the State in criminal cases are construed strictly against the State and the State may not appeal any issue in a criminal case, whether by direct or discretionary appeal, unless that issue is listed in
For the reasons outlined above, we reverse the trial court‘s ruling as to the sufficiency of the evidence on Counts 6, 7, and 8. We vacate its ruling on the general grounds as applied to those counts and remand the case for the trial court to reconsider – utilizing the correct legal standard – whether a new trial is warranted under the general grounds as to Counts 6, 7, and 8. We dismiss for lack of jurisdiction the State‘s appeal of the modified sentences imposed on Counts 4, 5, 9, 10, 11, 12, and 13.
Judgment reversed in part and vacated in part, and case remanded with direction. Appeal dismissed in part. Miller, P. J., and Andrews, J., concur.