Donald Harris, Jr. v. State

• Court: Court of Appeals of Georgia
• Decided: September 18, 2017
• Docket: A17A0761
• Status: Published

Opinion

FIRST DIVISION BARNES, P. J., MCMILLIAN and MERCIER, JJ.

NOTICE: Motions for reconsideration m us t be physically re ceived in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules

September 18, 2017

In the Court of Appeals of Georgia A17A0761. HARRIS v. THE STATE.

MERCIER, Judge.

In a bifurcated jury trial, Donald Harris, Jr. was found guilty of aggravated

assault and possession of a firearm by a convicted felon. Following the trial court’s

denial of his motion for a new trial, and having been granted an out-of-time appeal by

the trial court, Harris appeals the judgment of conviction entered against him. He

contends on appeal that the evidence was insufficient to support the jury’s verdicts,

that the trial court erred in failing to charge the jury on the lesser included offense of

reckless conduct, and that the trial court erred in sentencing him as a recidivist

pursuant to OCGA § 17-10-7 (a). For the reasons that follow, we reverse Harris’s

conviction for aggravated assault and affirm his conviction for possession of a firearm

by a convicted felon. 1. When examining the sufficiency of the evidence to support a criminal

conviction, we view the evidence in the light most favorable to the jury’s verdict, and

do not weigh the evidence or determine witness credibility; we determine whether a

rational trier of fact could have found beyond a reasonable doubt that the defendant

was guilty of the charged offense. Short v. State, 234 Ga. App. 633, 634 (1) (507

SE2d 514) (1998). So viewed, the evidence at trial demonstrated the following.

The criminal charges against Harris in this case arose from an incident that

occurred on May 19, 2015. Harris’s cousin, Keyellow Johnson, testified that prior to

that day, Harris was dating Johnson’s friend April Kitchens. Kitchens accused Harris

of molesting her daughter. Kitchens requested that Johnson meet her in a nearby town,

where Kitchens was going to visit her child’s father to tell him about the alleged

molestation. Johnson did so, and when Johnson arrived home that day, several of

Johnson’s family members were standing in Johnson’s mother’s yard (which was

adjacent to her own home). This group included, among others, Harris, Johnson’s ten-

year-old son , Johnson’s seven-year-old nephew , and Harris’s brother and sister,

Edward Harris1 and Carrie Fann. As Johnson approached her house, Edward Harris

1 For clarity, Edward Harris will be referred to by his full name so as to distinguish him from Appellant Donald Harris, referred to herein as “Harris.”

2 rushed to her car and prevented her from exiting, telling her not to get out of the car.

Harris was behind Edward Harris. Johnson testified that Harris was “fussing,” angry,

and using profanity. Harris tried to unlock the doors and enter Johnson’s car, and

Edward Harris remained at the driver side window preventing Johnson from getting out

of the car.

Shortly thereafter, Johnson heard someone screaming. Edward Harris then

turned around, and when he did so, Johnson could see Harris “pointing a rifle” at

Johnson’s window and Fann (Harris’s sister) “screaming because [she was] trying to

get it from him.” When Edward Harris turned around, “they all rush[ed] [Harris].”

Johnson was afraid because Harris was angry and she thought that he might use the

gun against her. She phoned the police, and Harris ran away.

Johnson’s son testified at trial that Harris was at the driver’s side door of

Johnson’s car, behind Edward Harris, and Edward Harris was “trying to block.”

Harris had a gun and pointed the gun at Johnson in her car, and Edward Harris was

trying to take the gun away from Harris. Johnson’s son was frightened and ran to the

porch when this happened.

Fann , Harris’s sister and Johnson’s cousin, testified at trial that on the day in

question, Fann met her brother Edward Harris at Johnson’s mother’s house, and Fann

3 and Edward Harris were planning to fire a rifle and were “just hanging out.” Harris was

upset about the accusation that he had molested Kitchens’s daughter. When Johnson

pulled into her driveway, Harris approached Johnson’s car, and Edward Harris gave

the rifle to Fann and went to Johnson’s car “to calm [Harris].”

When asked if someone took the rifle from her, Fann testified that Harris

approached her and the two “had a scuffle.” When asked, she confirmed that Harris

was fighting with her for the gun. Although Fann wasn’t “sure if he actually took it, .

. . when [she] felt that [she] was losing,” she called for Edward Harris. When asked

why she felt that she had to prevent Harris from getting the gun, Fann said, “[h]e was

upset. Never know what may happen.” The prosecutor asked, “why were you upset

he was going to do something with the gun with regard to . . . Johnson? What was the

problem? What led you to believe that if he got that gun he might do some harm to

somebody?” Fann responded, “[h]e went over there into an altercation with

[Johnson].”

Edward Harris testified as follows. On May 19, 2015, Harris was angry with

Johnson and Kitchens regarding the molestation accusation. When Johnson came

home, Edward Harris went out to her car because Harris was approaching it and

Edward Harris wanted to prevent an altercation between Harris and Johnson. Edward

4 Harris gave Fann his gun and ran over to Johnson’s vehicle, where Harris was yelling

at Johnson. Edward Harris then heard Fann call for help, saw that she was struggling

with Harris, and went to help her.

We disagree with Harris that “[t]here was no competent evidence introduced at

trial that [he] intentionally pointed the gun at [Johnson], or that [he] was ever

completely in possession of the gun.” The evidence at trial included Johnson’s

testimony and that of her son describing Harris pointing the gun at Johnson’s car

window, Johnson’s testimony describing Harris’s angry behavior, the testimony from

other witnesses describing Harris’s anger, and testimony from Fann describing her fear

about what Harris would do with the rifle. Thus, the evidence was sufficient for a

reasonable jury to conclude that Harris took possession of the rifle and intentionally

pointed it at Johnson, thereby assaulting her with the rifle. See Short, supra at 635 (1);

OCGA § 16-5-21 (a) (2).

Harris’s argument relies on conflicting evidence presented at trial regarding the

details of the incident. He argues that, among other things, testimony from Edward

Harris and from Fann demonstrate that Harris did not point the gun at Johnson.

However, this Court is not tasked with weighing evidence or determining witness

5 credibility. Short, supra; Westbrooks v. State, 309 Ga. App. 398, 399 (1) (710 SE2d

594) (2011). The evidence at trial was sufficient to support Harris’s convictions.

2. Harris contends that the trial court erred in failing to charge the jury on the

lesser included offense of reckless conduct as an alternative to aggravated assault, as

he requested. We are constrained to agree.

OCGA § 16-5-21 pertinently provides that “(a) A person commits the offense

of aggravated assault when he or she assaults . . . (2) [w]ith a deadly weapon. . . .”

The trial court instructed the jury as to both types of assault that could support an

aggravated assault charge (attempting to commit a violent injury to another or

committing an act that places another in reasonable apprehension of immediately

receiving a violent injury). See OCGA § 16-5-20 (a). The indictment alleged in one

count that Harris made an assault upon the person of Johnson with a rifle by pointing

it at her, without specifying which of the two types of assault he committed. Harris

contends that “the jury could have been allowed to consider the possibility that in

fighting over the gun, [he] negligently pointed the gun at [Johnson].” At trial he

requested that the jury be instructed on the lesser included offense of reckless conduct

pursuant to OCGA § 16-5-60 (b), defined as

6 caus[ing] bodily harm to or endanger[ing] the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that [one’s] act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.

“[A]ny evidence that the defendant is guilty of the lesser included offense . . .

mandates giving [a] requested written charge” on the lesser included offense. Edwards

v. State, 264 Ga. 131, 132 (442 SE2d 444) (1994) (punctuation omitted); Shaw v.

State, 238 Ga. App. 757, 758 (1) (519 SE2d 486) (1999) (physical precedent only)

(“Slight evidence is sufficient to justify charging on a lesser included offense.”).

It was undisputed at trial that Harris angrily confronted Johnson, that Edward

Harris tried to block Harris’s access to Johnson, that Harris tried to wrestle the rifle

away from Fann during the confrontation, and that Johnson was afraid that Harris

would use the gun against her. “If the victim reasonably fears an immediate violent

injury from a firearm, the aggravated assault has occurred.” Shaw, supra at 759 (1);

see Patterson v. State, 332 Ga. App. 221, 228-229 (2) (b) (770 SE2d 62) (2015),

aff’d, 299 Ga. 491 (789 SE2d 175) (2016) (“[I]f [the victim] reasonably feared an

immediate violent injury . . ., the crime of aggravated assault occurred, not reckless

7 conduct.”). Therefore, Harris was not entitled to a reckless conduct charge as a lesser

included offense of aggravated assault with a deadly weapon based on OCGA § 16-5-

20 (a) (2) for committing an act which placed another in reasonable apprehension of

immediately receiving a violent injury. See Patterson, supra; Shaw, supra at 758-759

(1).

However, we find that Harris was entitled to a reckless conduct charge as a

lesser included offense of aggravated assault with a deadly weapon based on OCGA

§ 16-5-20 (a) (1) for attempting to commit a violent injury to the person of another.

Based on the testimony regarding the struggle between Harris, Edward Harris and

Fann, the jury could have found that Harris pointed the gun at Johnson accidentally,

and therefore endangered her by consciously disregarding a substantial and

unjustifiable risk that his act or omission would cause harm to or endanger the safety

of Johnson, and the disregard constituted a gross deviation from the standard of care

which a reasonable person would have exercised in the situation. See OCGA § 16-5-60

(b). Though this evidence of reckless conduct was slight, it was sufficient to mandate

the charge on the lesser included offense. See Edwards, supra; Shaw, supra at 758

8 A charging error is presumed to be prejudicial and harmful unless the record

shows that it was harmless. Foskey v. Foskey, 257 Ga. 736, 737 (2) (363 SE2d 547)

(1988); Shaw, supra at 759 (1). Because the indictment in this case did not specify the

type of assault underlying the aggravated assault charge, the jury received instructions

on both types of assault, and there was some evidence in the record to support a

conviction for aggravated assault based on either type of underlying assault (attempting

to commit a violent injury to the person of another pursuant to OCGA § 16-5-20 (a)

(1) or committing an act that places another in reasonable apprehension of immediately

receiving a violent injury pursuant to OCGA § 16-5-20 (a) (2)), nothing in the record

demonstrates that the jury convicted Harris of aggravated assault for putting Johnson

in reasonable apprehension of immediately receiving a violent injury, rather than for

attempting to commit a violent injury to her, with the rifle. Therefore, we cannot say

that the trial court’s failure to charge the jury on the lesser included offense of reckless

conduct was harmless where the charge was warranted with regard to the offense of

aggravated assault insofar as it was based on an underlying assault as defined in

OCGA § 16-5-20 (a) (1). See Foskey, supra; Shaw, supra. Therefore, we must reverse

for a new trial Harris’s conviction for aggravated assault.

9 3. Finally, Harris contends that the trial court erred in sentencing him as a

recidivist pursuant to OCGA § 17-10-7 (a). He argues that “[his] one conviction led

to his probation being revoked, being given the maximum sentence to be served

consecutively on the current case, and being given an additional five years of probation

on the possession of a firearm by a convicted felon charge.”

Harris’s arguments relate mostly to his sentence on the aggravated assault

conviction. First, he essentially asks this Court to ignore the ruling in Hillman v.

Johnson, 297 Ga. 609 (774 SE2d 615) (2015), and find that the evidence of his prior

felony conviction was “used up” in proving that he committed the offense of

possession of a firearm by a convicted felon and could not be used in aggravation of

his punishment on his aggravated assault conviction. Further, he argues that “there was

no evidence in this case that the Court even considered” that the aggravated assault

sentence could be probated These arguments are rendered moot by our holding in

Division 2. However, we note that even if this Court were inclined to do so, we are not

permitted to ignore precedent set by the Supreme Court of Georgia (See Ga. Const.

of 1983 Art. VI, Sec. VI, Par. VI), and the transcript contradicts Harris’s argument

regarding the trial court’s consideration of the permissible sentencing options.

10 Harris also argues that his sentence “should violate the Court’s sense of due

process and fundamental fairness.” He does not contend that any portion of his

sentence exceeds the statutorily prescribed parameters, and “[t]his [C]ourt is without

authority to review sentences within the statutory range.” Trammell v. State, 196 Ga.

App. 540, 542 (3) (396 SE2d 286) (1990) (citations and punctuation omitted). Thus,

even insofar as this argument pertains to Harris’s sentence on the charge of possession

of a firearm by a convicted felon, it presents nothing for our review.

Judgment affirmed in part, reversed in part. Barnes, P. J., concurs.

McMillian, J., concurs fully to Division 1 and concurs to judgment only in Divisions

2 and 3.