Richard McClure was tried by a jury and convicted on two
counts of aggravated assault. On appeal, McClure contends
that his sentence violates his right against double jeopardy,
the trial court erred by failing to instruct the jury on the
affirmative defense of justification, and the trial court
abused its discretion by overruling his objection to an
argument the State made during its closing that he alleges
violated the "golden rule." For the following
reasons, we affirm.
On appeal from a criminal conviction, we view the evidence in
the light most favorable to support the jury's verdict,
and the defendant no longer enjoys a presumption of
innocence. We do not weigh the evidence or judge the
credibility of the witnesses, but determine only whether the
evidence authorized the jury to find the defendant guilty of
the crimes beyond a reasonable doubt in accordance with the
standard set forth in Jackson v. Virginia, 443 U.S.
307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). (Citation and
punctuation omitted.) Hall v. State, 335 Ga.App. 895
(783 S.E.2d 400) (2016).
viewed, the evidence showed that on the night of April 2,
2015, the two victims drove to McClure's residence to
pick up a friend who was unable to drive herself. When they
arrived, the male victim parked his car on the sidewalk in
front of McClure's residence. The friend was arguing with
McClure outside, and when she got in the victims' car,
she was upset.
the friend got in the car, the female victim observed McClure
disappear and then come back carrying something. It was dark
outside, but the female victim told the male victim that she
thought McClure was carrying a long gun similar to something
used for hunting. McClure pointed the barrel of the gun
toward the victims. Once the male victim saw the barrel of
the gun pointed towards him, he decided to leave.
victims called 911 and met at a nearby food store with a
corporal with the City of Griffin police department at a
nearby food store. The corporal went to McClure's
residence to speak with him. McClure told the corporal that
he did not point a gun at anyone. McClure granted permission
for the corporal to enter his residence and showed the
corporal a gun. The corporal's initial impression of the
weapon was that it was a small caliber rifle, but, upon
closer inspection, he realized that it was actually a BB gun.
trial, McClure testified that, during the incident, he
grabbed the BB gun to use as a club because the friend
threatened to have the male victim "get [McClure]."
However, he denied ever pointing the gun at anyone,
maintaining that he had the gun over his shoulder throughout
the entire incident.
grand jury returned an indictment charging McClure with four
counts of aggravated assault and two counts of terroristic
threats. The four counts of aggravated assault included two
different variations of aggravated assault, with a
"deadly weapon" and with an "object, device,
and instrument which, when used offensively against a person,
is likely to result in serious bodily injury, " one
count of each variation for each victim. McClure was found
guilty on two counts of aggravated assault and two counts of
reckless conduct, a lesser included offense of aggravated
assault; he was acquitted on the two counts of terroristic
threats. The reckless conduct counts merged into the
convictions for aggravated assault for the purposes of
sentencing. McClure timely filed a motion for new trial,
which was denied. McClure appeals from his convictions and
the denial of his motion for new trial.
McClure contends that the trial court erred by failing to
"vacate the verdicts" for the two aggravated
assault counts because they violated McClure's right
against double jeopardy.
When the same conduct of an accused may establish the
commission of more than one crime, the accused may be
prosecuted for each crime. He may not, however, be convicted
of more than one crime if: (1) One crime is included in the
other; or (2) The crimes differ only in that one is defined
to prohibit a designated kind of conduct generally and the
other to prohibit a specific instance of such conduct.
OCGA § 16-1-7 (a).
argues that, under OCGA § 16-1-7, the State was
prohibited from prosecuting him for two different variations
of aggravated assault, with a "deadly weapon" and
with an "object, device, and instrument which, when used
offensively against a person, is likely to result in serious
bodily injury." However, "OCGA § 16-1-7 (a)
permits the state to prosecute an individual for each crime
his conduct established. It is the conviction of
more than one crime established by the same conduct that
§ 16-1-7 (a) forbids." Chitwood v. State,
170 Ga.App. 599, 600 (3) (317 S.E.2d 589) (1984) (emphasis in
original). McClure was convicted of two counts of aggravated
assault with an "object, device, and instrument which,
when used offensively against a person, is likely to result
in serious bodily injury, " one for each victim. Thus,
this argument has no merit. See generally id.
McClure contends that the trial court erred by failing to
instruct the jury on the affirmative defense of justification
in defense of self and defense of habitation. These defenses
require a defendant to admit all of the elements of the crime
With a legal affirmative defense, the accused admits the
elements of the crime, but seeks to justify, excuse, or
mitigate by showing no criminal intent; all elements of the
parts of the crime are admitted with the exception of the
intent. All defenses which have been held to be statutory
affirmative defenses meet these criteria, i.e.,
justification, self-defense or defense of others, rendering
assistance to law enforcement officers, defense of
habitation, defense of property other than habitation,
entrapment, and coercion. Each of these affirmative defenses
requires that the defendant admit the crime before he can
raise such defense.
(Citation and punctuation omitted.) Lightning v.
State, 297 Ga.App. 54, 60 (5) (676 S.E.2d 780) (2009).
"Thus, to assert a defense of justification, like
self-defense, a defendant must admit the act, or he is not
entitled to a charge on that defense." Id.
McClure did not admit to aiming the BB rifle at the victims,
an element of aggravated assault as charged. Therefore the
trial court did not err in refusing to give a charge on the
affirmative defense of justification. See Ojemuyiwa v.
State, 285 Ga.App. 617, 619-620 (1) (647 S.E.2d 598)
(2007); see also Rutland v. State, 282 Ga.App. 728,
729-730 (1) (639 S.E.2d 628) (2006).
McClure contends that the trial court abused its discretion
by overruling his objection to an argument the State made
during its closing that he ...