BARNES, P. J., MCMILLIAN and MERCIER, JJ.
bifurcated jury trial, Donald Harris, Jr. was found guilty of
aggravated assault and possession of a firearm by a convicted
felon. Following the trial court's denial of his motion
for a new trial, and having been granted an out-of-time
appeal by the trial court, Harris appeals the judgment of
conviction entered against him. He contends on appeal that
the evidence was insufficient to support the jury's
verdicts, that the trial court erred in failing to charge the
jury on the lesser included offense of reckless conduct, and
that the trial court erred in sentencing him as a recidivist
pursuant to OCGA § 17-10-7 (a). For the reasons that
follow, we reverse Harris's conviction for aggravated
assault and affirm his conviction for possession of a firearm
by a convicted felon.
examining the sufficiency of the evidence to support a
criminal conviction, we view the evidence in the light most
favorable to the jury's verdict, and do not weigh the
evidence or determine witness credibility; we determine
whether a rational trier of fact could have found beyond a
reasonable doubt that the defendant was guilty of the charged
offense. Short v. State, 234 Ga.App. 633, 634 (1)
(507 S.E.2d 514) (1998). So viewed, the evidence at trial
demonstrated the following.
criminal charges against Harris in this case arose from an
incident that occurred on May 19, 2015. Harris's cousin,
Keyellow Johnson, testified that prior to that day, Harris
was dating Johnson's friend April Kitchens. Kitchens
accused Harris of molesting her daughter. Kitchens requested
that Johnson meet her in a nearby town, where Kitchens was
going to visit her child's father to tell him about the
alleged molestation. Johnson did so, and when Johnson arrived
home that day, several of Johnson's family members were
standing in Johnson's mother's yard (which was
adjacent to her own home). This group included, among others,
Harris, Johnson's ten-year-old son, Johnson's
seven-year-old nephew, and Harris's brother and sister,
Edward Harris and Carrie Fann. As Johnson approached her
house, Edward Harris rushed to her car and prevented her from
exiting, telling her not to get out of the car. Harris was
behind Edward Harris. Johnson testified that Harris was
"fussing, " angry, and using profanity. Harris
tried to unlock the doors and enter Johnson's car, and
Edward Harris remained at the driver side window preventing
Johnson from getting out of the car.
thereafter, Johnson heard someone screaming. Edward Harris
then turned around, and when he did so, Johnson could see
Harris "pointing a rifle" at Johnson's window
and Fann (Harris's sister) "screaming because [she
was] trying to get it from him." When Edward Harris
turned around, "they all rush[ed] [Harris]."
Johnson was afraid because Harris was angry and she thought
that he might use the gun against her. She phoned the police,
and Harris ran away.
son testified at trial that Harris was at the driver's
side door of Johnson's car, behind Edward Harris, and
Edward Harris was "trying to block." Harris had a
gun and pointed the gun at Johnson in her car, and Edward
Harris was trying to take the gun away from Harris.
Johnson's son was frightened and ran to the porch when
Harris's sister and Johnson's cousin, testified at
trial that on the day in question, Fann met her brother
Edward Harris at Johnson's mother's house, and Fann
and Edward Harris were planning to fire a rifle and were
"just hanging out." Harris was upset about the
accusation that he had molested Kitchens's daughter. When
Johnson pulled into her driveway, Harris approached
Johnson's car, and Edward Harris gave the rifle to Fann
and went to Johnson's car "to calm [Harris]."
asked if someone took the rifle from her, Fann testified that
Harris approached her and the two "had a scuffle."
When asked, she confirmed that Harris was fighting with her
for the gun. Although Fann wasn't "sure if he
actually took it, . . . when [she] felt that [she] was
losing, " she called for Edward Harris. When asked why
she felt that she had to prevent Harris from getting the gun,
Fann said, "[h]e was upset. Never know what may
happen." The prosecutor asked, "why were you upset
he was going to do something with the gun with regard to . .
. Johnson? What was the problem? What led you to believe that
if he got that gun he might do some harm to somebody?"
Fann responded, "[h]e went over there into an
altercation with [Johnson]."
Harris testified as follows. On May 19, 2015, Harris was
angry with Johnson and Kitchens regarding the molestation
accusation. When Johnson came home, Edward Harris went out to
her car because Harris was approaching it and Edward Harris
wanted to prevent an altercation between Harris and Johnson.
Edward Harris gave Fann his gun and ran over to Johnson's
vehicle, where Harris was yelling at Johnson. Edward Harris
then heard Fann call for help, saw that she was struggling
with Harris, and went to help her.
disagree with Harris that "[t]here was no competent
evidence introduced at trial that [he] intentionally pointed
the gun at [Johnson], or that [he] was ever completely in
possession of the gun." The evidence at trial included
Johnson's testimony and that of her son describing Harris
pointing the gun at Johnson's car window, Johnson's
testimony describing Harris's angry behavior, the
testimony from other witnesses describing Harris's anger,
and testimony from Fann describing her fear about what Harris
would do with the rifle. Thus, the evidence was sufficient
for a reasonable jury to conclude that Harris took possession
of the rifle and intentionally pointed it at Johnson, thereby
assaulting her with the rifle. See Short, supra at
635 (1); OCGA § 16-5-21 (a) (2).
argument relies on conflicting evidence presented at trial
regarding the details of the incident. He argues that, among
other things, testimony from Edward Harris and from Fann
demonstrate that Harris did not point the gun at Johnson.
However, this Court is not tasked with weighing evidence or
determining witness credibility. Short, supra;
Westbrooks v. State, 309 Ga.App. 398, 399 (1) (710
S.E.2d 594) (2011). The evidence at trial was sufficient to
support Harris's convictions.
Harris contends that the trial court erred in failing to
charge the jury on the lesser included offense of reckless
conduct as an alternative to aggravated assault, as he
requested. We are constrained to agree.
§ 16-5-21 pertinently provides that "(a) A person
commits the offense of aggravated assault when he or she
assaults . . . (2) [w]ith a deadly weapon. . . ." The
trial court instructed the jury as to both types of assault
that could support an aggravated assault charge (attempting
to commit a violent injury to another or committing an act
that places another in reasonable apprehension of immediately
receiving a violent injury). See OCGA § 16-5-20 (a). The
indictment alleged in one count that Harris made an assault
upon the person of Johnson with a rifle by pointing it at
her, without specifying which of the two types of assault he
committed. Harris contends that "the jury could have
been allowed to consider the possibility that in fighting
over the gun, [he] negligently pointed the gun at
[Johnson]." At trial he requested that the jury be
instructed on the lesser included offense of reckless conduct
pursuant to OCGA § 16-5-60 (b), defined as caus[ing]
bodily harm to or endanger[ing] the bodily safety of another
person by consciously disregarding a ...