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Harris v. State

Court of Appeals of Georgia, First Division

September 18, 2017



          MERCIER, JUDGE.

         In a 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.

         1. When 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.

         The 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[1] 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.

         Shortly 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.

         Johnson's 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 this happened.

         Fann, 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]."

         When 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]."

         Edward 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.

         We 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).

         Harris's 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.

         2. 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.

         OCGA § 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 ...

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