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Thompson v. State

Court of Appeals of Georgia, Fifth Division

June 21, 2017

THOMPSON
v.
THE STATE.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          McFadden, Presiding Judge.

         After a jury trial, Cedric Thompson was convicted of three counts of aggravated battery and one count of possession of a firearm during the commission of a felony. Thompson challenges the sufficiency of the evidence, but there was enough evidence to authorize the jury to find guilt beyond a reasonable doubt. He complains of the omission of certain language from a jury instruction that the testimony of a single witness is sufficient to establish a fact, but that instruction was not objected to and did not constitute plain error. And he challenges the effectiveness of his trial counsel, but trial counsel's performance was not both deficient and prejudicial. So we affirm.

         1. Sufficiency of the evidence.

         Thompson contends that there was insufficient evidence to support his convictions. The contention is without merit.

         The applicable standard of review directs that

When reviewing a defendant's challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the jury's verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

Kilby v. State, 289 Ga.App. 457 (1) (657 S.E.2d 567) (2008) (citations omitted).

         So viewed, the evidence showed that on October 8, 2011, Thompson was outside at an apartment complex in Atlanta, yelling that anyone selling drugs in the neighborhood would have to give him a 10 percent commission. Darrice Smith, who was standing with a group of men, laughed as Thompson yelled. Thompson then went into his apartment and returned with a handgun. Thompson began shooting the gun, hitting Smith in the leg with a bullet. As Thompson continued firing, his gunshots hit two other victims - Sandra Howell was shot in the arm as she ran back to an apartment and 14-year-old T. D. was shot in the foot as she ran down steps. The evidence was sufficient to authorize a rational trier of fact to find Thompson guilty beyond a reasonable doubt of the charged offenses of aggravated battery (OCGA § 16-5-24) and possession of a firearm during the commission of a felony (OCGA § 16-11-106). See Fulton v. State, 278 Ga. 58, 59 (1) (597 S.E.2d 396) (2004).

         2. Jury instruction on testimony of a single witness.

         Thompson asserts that the trial court erred in instructing the jury that the "[t]estimony of a single witness is sufficient to establish a fact." He argues that the instruction should have included the following emphasized language, as set forth in the suggested pattern jury instructions: the "testimony of a single witness, if believed, is sufficient to establish a fact." Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, §1.31.90 (emphasis supplied). As Thompson concedes in his brief, no objection to the instruction was raised at trial, and therefore we review it for plain error under OCGA § 17-8-58 (b).

[T]he test for determining whether there is plain error in jury instructions under OCGA § 17-8-58 (b) [is] as follows. First, there must be an error or defect - some sort of deviation from a legal rule - that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error - discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

Cheddersingh v. State, 290 Ga. 680, 683 (2) (724 S.E.2d 366) (2012) (citation omitted). "Thus, beyond showing a clear or obvious error, plain-error analysis requires the appellant to make an affirmative showing that the error probably did affect the outcome below." Gates v. State, 298 Ga. 324, 327 (3) (781 S.E.2d 772) (2016) (citation and punctuation omitted).

         In this case, even if we assume, without deciding, that the jury instruction was erroneous, Thompson has not shown that such error probably affected the outcome below. "[A]n erroneous jury instruction cannot be considered in isolation, but must be considered in the context of the entire jury charge on the record as a whole to determine whether there is a reasonable likelihood that the jury improperly applied the challenged instruction." Davis v. State, 329 Ga.App. 797, 801 (2) (764 S.E.2d 588) (2014) (citation omitted). Here, after the trial court gave the single witness jury charge, it fully charged the jury on the credibility of witnesses. Amongst other things, the court instructed the jurors that they must determine the credibility of the ...


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