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Carter v. State

Court of Appeals of Georgia, Fifth Division

October 23, 2017

CARTER
v.
THE STATE.

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

          Branch, Judge.

         On appeal from his conviction for aggravated assault and other crimes, Robert Carter argues that the trial court committed plain error and violated the former version of OCGA § 17-8-57 when it reminded a witness during her direct examination that she was "in the room" when a co-defendant uttered a threat. We find no error and affirm.

         "On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence." Reese v. State, 270 Ga.App. 522, 523 (607 S.E.2d 165) (2004) (citation omitted). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979) (citation omitted).

         So viewed, the record shows that late on the evening of November 18, 2009, the male and female victims were at their home in DeKalb County when Edward Brooks knocked on their door. When the male victim let Brooks into the house, Carter entered behind Brooks. Brooks brandished a handgun and told the male victim that Brooks was going to kill him. Carter, who was also carrying a gun, pointed it at the male victim's feet. Brooks and the male victim grappled over Brooks's gun, which discharged into the floor during the struggle. When Brooks and Carter fled, the male victim ran across the street and called 911.

         Brooks and Carter went to the home of Justin Moore, where Brooks asked for a ride to a store. The three men got into a van with Brooks driving. Police soon located the van and pulled it over. As they did so, Brooks threw the handgun he was carrying to Moore, who put it "up under the seat." The officer making the traffic stop of the van saw a handgun between the door jamb and seat on the passenger side and a second handgun at Moore's feet in the back seat.

         Brooks and Carter were arrested, and each man was charged with two counts of aggravated assault, two counts of possession of a firearm during the commission of a felony, and one count of possession of a firearm by a convicted felon. Brooks pled guilty in the middle of trial and testified for the defense. Moore was charged with and pled guilty to possession of a firearm by a convicted felon.

         On direct examination by the State, the female victim testified that she was in the living room when Brooks entered it with a gun. The following colloquy then took place:

[Q] And what was [Brooks] saying while he had that gun in his hand?
[A] He had said what I said he said before[, ] and he said it once, he was holding the gun, and it wasn't pointed, and I left, I left the room.
[Q] What else was he saying?
[A] Like what? Such as?

         At this point, the trial court addressed the female victim: "Ma'am, you were in the room. What else did [Brooks] say in your presence that you know [of]?" (Emphasis supplied.) The State then resumed its examination by asking, "What did [Brooks] say about Felicia Putney?"[1] The victim responded:

[A] Oh, okay. He said that we were trying to hook her up with somebody else, you know, ...

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