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Gonzalez v. State

Court of Appeals of Georgia, Fourth Division

May 29, 2019

GONZALEZ
v.
THE STATE.

          DOYLE, P. J., COOMER and MARKLE, JJ.

          Coomer, Judge.

         After a jury trial, Hayden Gonzalez ("Gonzalez") was convicted of aggravated assault (OCGA § 16-5-21), false imprisonment (OCGA § 16-5-41), and violation of the Georgia Controlled Substances Act: possession of less than one ounce of marijuana (OCGA § 16-13-30 (j)). Gonzalez filed a motion for new trial, which the trial court denied. Gonzalez appeals, arguing (1) that the trial court erred by instructing the jury that a firearm, when used as such, is a deadly weapon as a matter of law; (2) that he received ineffective assistance of counsel; and (3) that the trial court erred by prohibiting him from presenting evidence of a statement made by his brother. Finding no reversible error, we affirm Gonzalez's convictions.

         On December 23, 2016, the victim was at a restaurant with his girlfriend and her sister. Gonzalez came into the restaurant with his brother, Arnel Gonzalez ("Arnel"), and Sharise Williams ("Williams"). Arnel initiated a conversation with the victim, who agreed to sell a quantity of marijuana to Arnel for $60. However, the victim needed to get the marijuana from his house. The victim left the restaurant with his girlfriend and her sister and drove to his house. Gonzalez, Arnel, and Williams followed them in another car. Gonzalez was driving, Williams was in the front passenger seat, and Arnel was in the back seat.

         When they got to the house, the victim went inside and got the marijuana. The victim then came back outside and got into the back seat of the car Gonzalez was driving with Arnel. Arnel took the marijuana from the victim, then put a handgun to the victim's temple. Arnel demanded that the victim give him his money and started feeling the victim's pockets. Gonzalez started driving while Arnel was still holding the gun to the victim's head. The victim tried to get out of the car. Arnel told Gonzalez to make sure that the door was locked. However, the door unlocked and the victim was able to get out of the vehicle. When the victim got out of the car, Arnel got out on the other side and fired a shot into the air. He then pointed the gun at the victim while walking toward him. The victim stuck his finger inside the guard of the gun and he and Arnel wrestled for the gun. Gonzalez and Arnel both grabbed the victim and began hitting, kicking, and biting him. They hit the victim two or three times in the head with the gun. The victim took a knife from his pocket, but when he tried to open the knife, Gonzalez and Arnel were able to knock it out of his hands.

         The victim's sister came out of the house and ran to her brother. Arnel pointed the gun at both the victim and his sister. The victim's sister placed herself between the gun and her brother. Gonzalez, Arnel, and Williams got back in their car and drove away.

         The victim's girlfriend called 911. One of the responding officers described the victim as being "dazed from his injuries." The same officer found a puddle of blood on the ground. The victim had open wounds on the back of his head and was bleeding badly from being struck with the handgun. His sister described her brother's head as being "split open" and testified that she "could see like the inside and everything." The victim went to the hospital and received numerous staples in his head.

         Gonzalez was detained by police later the same day. Before being searched by a police officer, Gonzalez told the officer that he had a small amount of marijuana in his sock. The officer took the marijuana from Gonzalez and issued him a citation for possession of less than one ounce of marijuana.

         Gonzalez, Arnel, and Williams were all indicted on one count of kidnapping with bodily injury, one count of aggravated battery, three counts of aggravated assault, one count of false imprisonment, and one count of possession of a firearm during the commission of a felony. Gonzalez and Arnel were also indicted on one count of violation of the Georgia Controlled Substances Act: possession of less than one ounce of marijuana. Gonzalez was tried separately from his co-defendants. During his closing argument, Gonzalez's counsel admitted that Gonzalez possessed marijuana as alleged in the indictment. Gonzalez was convicted of aggravated assault, false imprisonment, and possession of less than one ounce of marijuana.

         Gonzalez filed a timely motion for new trial. After a hearing, the trial court denied the motion, and this appeal followed.

         1. Gonzalez contends that the trial court erred by instructing the jury that a firearm, when used as such, is a deadly weapon as a matter of law. Because Gonzalez did not object to the jury charge at trial, it is subject only to plain error review on appeal. See OCGA § 17-8-58 (b). The standard for reviewing for plain error provides:

First, there must be an error or defect - some sort of deviation from a legal rule - that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error -discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings. Thus, beyond showing a clear or obvious error, plain-error analysis . . . requires the appellant to make an affirmative showing that the error probably did affect the outcome below.

Gates v. State, 298 Ga. 324, 327 (3) (781 S.E.2d 772) (2016) (citations and punctuation omitted).

         Count 3 of the indictment charged Gonzalez with aggravated assault by assaulting the victim "with a handgun, a deadly weapon, by pointing a handgun at [the victim.]" Count 4 charged him with aggravated assault by assaulting the victim "with a handgun, a deadly weapon, by hitting [the victim] in the head with a handgun[.]" Count 5 charged him with aggravated assault by assaulting the victim's ...


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