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Bashir v. State

Court of Appeals of Georgia, Fifth Division

June 24, 2019

BASHIR
v.
THE STATE

          MCFADDEN, P. J., MCMILLIAN and GOSS, JJ.

          McFadden, Presiding Judge

         After a jury trial, Khalid Bashir was convicted of three counts of aggravated assault with a deadly weapon (OCGA § 16-5-21 (a) (2)) and one count each of possession of a firearm during the commission of a felony (OCGA § 16-11-106) and possession of a firearm by a convicted felon (OCGA § 16-11-131). On appeal, he challenges the sufficiency of the evidence of assault, but the evidence met the standard of Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). He challenges the charge given to the jury on assault, but he did not object to this charge at trial and he has not shown plain error. And he challenges the trial court's admission of his prior convictions as impeachment evidence, but he has not shown that the trial court abused her discretion. So we affirm.

         1. Sufficiency of the evidence.

         Bashir claims that there was insufficient evidence to support his convictions for aggravated assault with a deadly weapon, because the evidence did not show that he either intended to commit a violent injury to the three victims named in the indictment or that those persons were in reasonable apprehension of immediately receiving a violent injury. See OCGA § 16-5-21 (a) (2) ("A person commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly weapon[.]"). See also OCGA § 16-5-20 (a) ("A person commits the offense of simple assault when he or she either: (1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury."). In considering this claim, "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. at 319 (III) (B) (citation omitted; emphasis in original). "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 trial evidence showed that, after getting into verbal and physical altercations with his live-in girlfriend and her brother, Bashir fired several shots from a gun toward a departing car carrying the three aggravated assault victims named in the indictment - his girlfriend, her brother, and her mother. A bullet struck the car near where one of the victims was sitting. A jury could find from this evidence that Bashir had intentionally fired the gun in the three victims' direction. "(I)ntentionally firing a gun at another, absent justification, is sufficient in and of itself to support a conviction of [OCGA § 16-5-20] (a) (1) aggravated assault." Chase v. State, 277 Ga. 636, 638 (1) (592 S.E.2d 656) (2004) (citation and punctuation omitted). See also Howard v. State, 288 Ga. 741, 743 (1) (707 S.E.2d 80) (2011); Dukes v. State, 264 Ga.App. 820, 823-824 (4) (592 S.E.2d 473) (2003). So the evidence was sufficient to support Bashir's convictions for aggravated assault.

         2. Jury charge.

         Bashir argues that the trial court erred by failing, in her charge to the jury, "to inform the jury of the definition of simple assault even though that offense is an essential element of aggravated assault." Howard, 288 Ga. at 743 (2). Because he did not object to the charge at trial, we review this claim only for plain error affecting the substantial rights of the parties. OCGA § 17-8-58 (b). Bashir has not shown plain error.

         As our Supreme Court has explained, the plain-error analysis contains four prongs:

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.

Walker v. State, 301 Ga. 482, 485 (2) (801 S.E.2d 804) (2017) (citation omitted).

         The error asserted by Bashir in this case is the trial court's failure to charge on simple assault. Bashir argues that the trial court should have charged that, to find Bahsir guilty of aggravated assault with a deadly weapon under OCGA § 16-5-21 (a) (2), the jury must find that he committed an assault by one of the methods set forth in the simple assault statute, OCGA § 16-5-20 (a). Pertinently, OCGA § 16-5-21 (a) (2) provides that a "person commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly weapon[, ]" and OCGA § 16-5-20 (a) provides that a "person commits the offense of simple assault when he or she either: (1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury."

         Bashir requested the pattern jury charge on aggravated assault, which contains the above-quoted language from both the aggravated assault statute and the simple assault statute. See Suggested Pattern Jury Charges, Vol. II: Criminal Cases, § 2.20.21. But the trial court did not give the requested charge. Instead, the trial court charged the following:

A person also commits the offense of aggravated assault with a deadly weapon by shooting at, toward, and in the direction of the alleged victim with a handgun, the same being a deadly weapon. In this instance, to constitute such an assault, actual injury to the alleged victim need not be shown. It is only necessary that the evidence show beyond a reasonable doubt that the defendant unlawfully committed an assault upon ...

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