MCFADDEN, P. J., RICKMAN and MARKLE, JJ.
McFadden, Presiding Judge.
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.
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.
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
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.
Sufficiency of the evidence.
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).
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.
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.
argues that this evidence was insufficient to support his
conviction for aggravated assault. We disagree.
"[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).
Possession of a firearm during the ...