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Martin v. State

Court of Appeals of Georgia, Fifth Division

January 9, 2019

MARTIN
v.
THE STATE.

          MCFADDEN, P. J., RICKMAN and MARKLE, JJ.

          McFadden, Presiding Judge.

         After a jury trial, Ricky Martin was convicted of second-degree burglary (OCGA § 16-7-1 (c)), aggravated assault (OCGA § 16-5-21), criminal attempt to commit a felony (OCGA § 16-4-1), and possession of a firearm during the commission of a felony (OCGA § 16-11-106). He appeals the trial court's denial of his motion for new trial.

         Martin challenges the sufficiency of the evidence as to aggravated assault and possession of a firearm, but the evidence authorized the jury to find him guilty of both offenses. Martin argues that the trial court erred in failing to charge the jury on the lesser-included offense of pointing a firearm (OCGA § 16-11-102), but because he did not request the charge in writing the trial court's ruling was not error. Martin argues that the trial court erred in sentencing him to more than the maximum permissible sentence on the burglary conviction, but the sentence imposed was proper.

         Martin also argues that, to the extent his trial counsel failed to preserve any of these claims of error for appeal, he received ineffective assistance of counsel. Although Martin asserted this claim in his motion for new trial, the trial court did not address the merits of the claim, instead treating it as moot. This treatment was error, because Martin's trial counsel did not preserve the challenge to the trial court's failure to give a jury charge on the lesser-included offense.

         So we vacate that portion of the trial court's order on the motion for new trial that addresses Martin's claim for ineffective assistance of counsel, and we remand the case for the trial court to consider the merits of that claim. We affirm the remaining portions of the trial court's order.

         1. Sufficiency of the evidence.

         In considering the sufficiency of the evidence supporting a criminal conviction, "the relevant question is 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; emphasis in original). It is the function of the jury, not the reviewing court, to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the evidence. Id. "As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [s]tate's case, the jury's verdict will be upheld." Miller v. State, 273 Ga. 831, 832 (546 S.E.2d 524) (2001) (citations and punctuation omitted).

         So viewed, the record shows that on the morning of October 4, 2012, Brian Conner saw Martin attempting to enter Conner's parked truck. Conner confronted Martin, who began to walk away. When he was at a distance from Conner, Martin pulled a handgun from his jacket and began waving it around, screaming and cursing at Conner, as he continued to walk away. Conner called 911 and described Martin, who was spotted and stopped by a responding police officer about five minutes later. When he was stopped, Martin was in possession of an empty gun holster, ammunition, various food items, a specialty clock in a box, and a pair of pants with a label bearing another person's name. The officer found a handgun on the ground nearby.

         Also that morning, it was discovered that a nearby alterations shop had been broken into. The shop was located across the street from the location where Martin waved the gun at Conner. The alterations shop owner identified the food, clock, and pants in Martin's possession as having been taken from her shop. She had not given Martin permission to enter the shop or to take those items.

         (a) Aggravated assault.

         Martin argues that this evidence was insufficient to support his conviction for aggravated assault. We disagree.

         Pertinently, "[a] person commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly weapon," OCGA § 16-5-21 (a) (2), and "[a] person commits the offense of simple assault when he or she . . . [c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury." OCGA § 16-5-20 (a) (2). Martin contends that the state did not show that Conner was in reasonable apprehension of immediately receiving a violent injury because Conner testified otherwise at trial. But Conner's testimony on that point was ambiguous. When asked at trial whether he "had any apprehension about what could happen" after Martin pulled out the gun, Conner responded "[n]ot necessarily to myself." He also testified that he was not scared during the encounter because Martin was walking away from him. Instead, Conner explained that he was concerned for other people whom Martin might encounter as he walked away from the scene. But elsewhere in his testimony, Conner stated that he felt "panic[ked and] scared" when he saw the gun. The jury was authorized to credit Conner's statement that he felt "panic[ked and] scared" and infer from that statement that Conner had the necessary reasonable apprehension to support a guilty verdict on the aggravated assault charge, even though other statements of Conner suggested that he did not have the necessary apprehension. See Flores v. State, 277 Ga. 780, 782 (2) (596 S.E.2d 114) (2004) (victim's testimony that he told defendant he was scared and did not like guns was evidence that victim was in reasonable apprehension of receiving violent injury when defendant pointed gun at him), overruled on other grounds by State v. Springer, 297 Ga. 376, 383 & n. 4 (2) (774 S.E.2d 106) (2015); Garza v. State, 347 Ga.App. 335, 337-338 (1) (b) (819 S.E.2d 497) (2018) (it is role of jury to decide how to understand witness's ambiguous testimony).

         (b) Possession of a firearm during the ...


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