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State v. Wilkerson

Court of Appeals of Georgia, Second Division

July 30, 2018

THE STATE
v.
WILKERSON.

          MILLER, P. J., ANDREWS and BROWN, JJ.

          Brown, Judge.

         A jury convicted Jason Edwin Wilkerson of five counts each of aggravated assault with a deadly weapon and aggravated assault with a motor vehicle, but acquitted him of three counts of kidnapping. The trial court sentenced him consecutively on the ten counts of aggravated assault to a total of 60 years to serve followed by 140 years of probation. Wilkerson filed an amended motion for new trial asking the trial court to modify his sentence, and challenging the sufficiency of the evidence to support his convictions. The trial court granted the motion in part, reducing Wilkerson's sentence, and finding insufficient evidence to support three of the five counts of aggravated assault with a deadly weapon. The trial court also granted a new trial under the general grounds, finding that the three aggravated assault convictions were against the weight of the evidence and the principles of equity and justice, and that there was insufficient evidence to find Wilkerson guilty of those three counts. The State appeals. For the reasons set forth below, the appeal is dismissed in part; the court's order is reversed in part, vacated in part, and the vacated portion of the order is remanded with direction.

         The evidence viewed in the light most favorable to the jury's verdict, see State v. Sims, 296 Ga. 465 (1) (769 S.E.2d 62) (2015), shows that on June 24, 2013, Wilkerson's sister and her boyfriend were riding in a car with the sister's three young children, ages three, two, and one.[1] The car was stopped on the side of the road when the boyfriend and sister saw Wilkerson riding as a passenger in a red pick-up truck traveling towards them. The truck stopped and then plowed into the car, pushing it into a ditch and destroying two tires and the driver's side door. As the boyfriend tried to drive the car out of the ditch, he and the sister noticed the truck drive up behind them with Wilkerson hanging out the passenger side brandishing a shotgun. Wilkerson pointed the gun at the boyfriend and told him to pull over or he would "blow his brains out." The boyfriend pulled over and Wilkerson exited the truck, pointed the gun at the boyfriend's face, and told the sister to get the kids out of the car.[2] Wilkerson then went to the passenger side of the car and got the children out and took them back to their grandmother. The boyfriend and sister drove the car to a friend's farm, called police, and then entered and hid in a pond until the police arrived because the boyfriend was "scared as hell of all of it."

         At trial, the boyfriend testified that "the gun stayed pointed at me. [Wilkerson] never pointed it at the kids." When asked if Wilkerson had the gun in his hand when the kids were getting out of the car, the boyfriend testified, "[i]f he did, it wasn't never pointed at the kids. He never had the intent of hurting the children at all." The sister testified that Wilkerson "wasn't pointing [the gun] at us, he was pointing it at the car." When asked by the State to clarify whether the gun, which was pointed at the car was also pointed at the occupants of the car, the sister responded, "I don't know, I guess so if we're in the car." According to the sister, when she handed the baby to Wilkerson, he was not holding a gun. The State introduced into evidence the sister's statement to police following the incident. In that statement, the sister wrote that Wilkerson pointed the gun at her and at the car.

         The State indicted Wilkerson on thirteen counts, including three counts of kidnapping (Counts 1, 2, and 3), and five counts each of aggravated assault with a deadly weapon (Counts 4, 5, 6, 7, and 8) and aggravated assault with a motor vehicle (Counts 9, 10, 11, 12, and 13). Counts 6, 7, and 8 alleged that "Wilkerson [made] an assault upon the person of [each child], with a deadly weapon, to-wit: a gun." Following a hearing, the trial court granted Wilkerson's amended motion for new trial as to Counts 6, 7, and 8, finding as follows:

Although there was testimony that [Wilkerson] pointed a firearm at "the car," there was no evidence that [Wilkerson] ever pointed a gun at, or threatened, any of the children. Nor was there any evidence that the children felt threatened by the firearm or were aware in any way that a firearm had been pointed at them. The fact that a victim is unaware that a firearm has been pointed at the victim precludes a conviction of aggravated assault. State v. Harlachen, 336 Ga.App. 9, 783 S.E.2d 411 (2016).
The [c]ourt finds that the convictions for Counts 6, 7, and 8, are strongly against the weight of the evidence and the principles of equity and justice and there was not sufficient evidence to allow a rational trier of fact to find [Wilkerson] guilty of these Counts. OCGA §§ 5-5-20 and 21; Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         The trial court also found the original sentence to be excessive, and modified it to seven concurrent terms of twenty years with five to serve. The trial court entered an amended final disposition, memorializing the new sentence and indicating "New Trial Granted" as to Counts 6, 7, and 8.

         1. The State argues that the trial court erred in granting the motion for new trial on Counts 6, 7, and 8, because awareness is not an essential element of the crime of aggravated assault and there was evidence that Wilkerson pointed the gun at the children when he pointed it at the car in which the children were riding. We agree.

         We review the trial court's ruling that there was insufficient evidence to sustain Counts 6, 7, and 8 under the standard espoused in Jackson v. Virginia. See Batten v. State, 295 Ga. 442, 444 (1) (761 S.E.2d 70) (2014).

The standard of Jackson v. Virginia for assessing the legal sufficiency of the evidence is different than the discretion given a trial court in an evidentiary challenge based upon the general grounds. Indeed, evidence may be less than overwhelming, but still sufficient to sustain a conviction. When we consider the legal sufficiency of the evidence, we must put aside any questions about conflicting evidence, the credibility of witnesses, or the weight of the evidence, leaving the resolution of such things to the discretion of the trier of fact. Instead, we must view the evidence in the light most favorable to the verdict, and we inquire only whether any rational trier of fact might find beyond a reasonable doubt from that evidence that the defendant is guilty of the crimes of which he was convicted.

(Citations and punctuation omitted.) State v. Cash, 302 Ga. 587, 592 (807 S.E.2d 405) (2017).

         "A person may be found guilty of aggravated assault if the State proves (1) an assault and (2) aggravation by use of any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury." (Citation and punctuation omitted.) Petro v. State, 327 Ga.App. 254, 257 (1) (a) (758 S.E.2d 152) (2014). See also OCGA ยง 16-5-21 (a) (2). "The State may prove an assault by showing that the defendant attempt[ed] to commit a violent injury to the person of another or commit[ed] an act which place[d] another in reasonable apprehension ...


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