Hayden Gonzalez v. State

• Court: Court of Appeals of Georgia
• Decided: May 29, 2019
• Docket: A19A0684
• Status: Published

Opinion

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

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules

May 29, 2019

In the Court of Appeals of Georgia A19A0684. GONZALEZ v. THE STATE.

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

2 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.

3 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

4 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 SE2d 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

sister “with a handgun, a deadly weapon, by pointing a handgun at [the victim’s

sister.]”

The trial court gave the following charge regarding aggravated assault:

A person commits the offense of aggravated assault when that person assaults another person with a deadly weapon. To constitute such an

5 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 intentionally committed an act that placed the alleged victim in reasonable fear of immediately receiving a violent injury. The State must also prove as a material element of aggravated assault, as alleged in this case, that the assault was made with a deadly weapon. A firearm, when used as such, is a deadly weapon as a matter of law.

The jury found Gonzalez guilty of aggravated assault on count 4 and not guilty

of aggravated assault on counts 3 and 5. Gonzalez argues that the jury charge was

erroneous with regard to count 4 because in that count, the firearm was alleged to

have been used as an object to hit the victim, not used as a firearm is ordinarily used.

Gonzalez contends that the final sentence of the charge on aggravated assault

amounted to a mandatory presumption and removed from the jury the determination

of whether the firearm was a deadly weapon.

In Byrd v. State, 325 Ga. App. 24 (752 SE2d 84) (2013), the defendant was

similarly charged with aggravated assault for striking the victim in the head with a

handgun. In that case, we found that the defendant’s trial counsel was ineffective for

failing to object to the jury instruction that a “firearm, when used as such, is a deadly

weapon as a matter of law.” Id. at 27-28 (2) (a). In so holding, we found that the

charge was not applicable to the facts of the case because the handgun was not

6 alleged to have been used in the ordinary manner in which a gun is used - i.e., by

pointing the gun or using it to shoot at someone; it was alleged to have been used as

a bludgeon or club. Id. at 28 (2) (a). The State failed to introduce evidence showing

the circumstances surrounding the use of the handgun, such as the degree of force

used, the likelihood of serious injury, or the nature of the victim’s injuries. Id. In

reversing the aggravated assault conviction, we found that there was a reasonable

probability that, but for counsel’s error, the outcome of the trial would have been

different because the evidence did not support a conclusion that the handgun had

been used as a deadly weapon. Id. at 29 (2) (a).

We have subsequently distinguished Byrd. In Howell v. State, 330 Ga. App.

668 (769 SE2d 98) (2015), as in Byrd, the defendant was charged with aggravated

assault for striking the victim in the head with a handgun. The trial court instructed

the jury that “the State had the burden of proving the material element that the assault

was made with a deadly weapon, as alleged in the indictment.” Id. at 673 (2). The trial

court also instructed the jury that “a handgun, when used as such, is a deadly weapon

as a matter of law.” Id. (punctuation omitted). In Howell, we found that there was

overwhelming evidence to establish that the handgun constituted a deadly weapon.

Id. at 674 (2). The evidence in that case showed that the defendant struck the victim

7 on the side of her head with a handgun so violently that it knocked her down and

caused the side of her head to swell and bleed. Id. Applying a plain error analysis, we

noted that the “jury was told that the State must prove that the assault was with a

deadly weapon and that a handgun would be one, depending on how it was used. The

jury was free to decide either way.” Id. We held that, even if the jury instructions

were erroneous, the defendant had failed to show that any error in the charge likely

affected the outcome of his trial or that any error seriously affected the fairness,

integrity, or public reputation of the proceedings. Id. at 674-675 (2).

Here, the jury instructions were similar to those in Howell. The jury was told

that the State must prove that the assault was made with a deadly weapon and that a

firearm, when used as such, is a deadly weapon as a matter of law. The jury was free

to decide that a firearm, when not used as such, is not a deadly weapon. As in Howell,

there was overwhelming evidence to establish that the handgun constituted a deadly

weapon. The evidence was undisputed that the victim was struck several times in the

head with the handgun, which resulted in open, bleeding wounds. The victim’s sister

described his head as being “split open” where she “could see inside and everything.”

After being taken to the hospital, the victim received numerous staples in his head.

8 One of the responding officers observed a puddle of blood on the ground and

described the victim as being “dazed from his injuries.”

Even if the jury instructions were erroneous as to count 4, Gonzalez has not

demonstrated that any error probably affected the outcome of the trial court

proceedings. Gonzalez has failed to show that, had the correct charges been given,

the jury probably would have acquitted him of the aggravated assault charge.

Moreover, in light of the overwhelming evidence that the handgun constituted a

deadly weapon under the circumstances of this case, we find that any error in the

charge did not seriously affect the fairness, integrity, or public reputation of the

proceedings. As Gonzalez has failed to satisfy the third and fourth prongs of the plain

error analysis set forth above, we find no reversible error.

2. Gonzalez next contends that his trial counsel rendered ineffective assistance

by failing to object to the trial court’s jury instruction that a firearm, when used as

such, is a deadly weapon as a matter of law. To prevail on an ineffective assistance

of counsel claim, a criminal defendant must show that (1) his counsel’s performance

was deficient and (2) the deficient performance so prejudiced him that there is a

reasonable probability that, but for the counsel’s errors, the outcome of the trial

would have been different. Strickland v. Washington, 466 U. S. 668, 687 (III), 694

9 (III) (B) (104 SCt 2052, 80 LEd2d 674) (1984). “The likelihood of a different result

must be substantial, not just conceivable.” Hill v. State, 291 Ga. 160, 164 (4) (728

SE2d 225) (2012) (citation omitted).

To establish deficient performance, the defendant must show that [his] counsel’s acts or omissions were objectively unreasonable, considering all of the circumstances at the time and in light of prevailing professional norms. To establish prejudice, the defendant must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Scott v. State, 301 Ga. 573, 575 (2) (802 SE2d 211) (2017) (citation and punctuation

omitted). If Gonzalez fails to satisfy either prong of the Strickland test, we need not

address the other prong. See Lupoe v. State, 300 Ga. 233, 240 (2) (794 SE2d 67)

(2016). When a trial court determines that a defendant did not receive ineffective

assistance of counsel, we will affirm that decision unless it is clearly erroneous.

Muldrow v. State, 322 Ga. App. 190, 193 (2) (b) (744 SE2d 413) (2013).

In its order denying Gonzalez’s motion for new trial, the trial court determined

that Gonzalez failed to meet the standard to prove ineffective assistance of counsel.

The trial court concluded that even if the jury charge was erroneous and Gonzalez’s

10 trial counsel should have objected, Gonzalez cannot show a reasonable probability

that the outcome of the trial would have been different if he had objected. As

discussed in Division 1, the overwhelming evidence introduced at trial showed that

the handgun was used as a deadly weapon. Thus, Gonzalez has not demonstrated that

there is a reasonable probability that the outcome of his trial would have been

different if his counsel had objected to the charge. Because the trial court’s decision

that Gonzalez did not receive ineffective assistance of counsel was not clearly

erroneous, this enumerated error fails.

3. Finally, Gonzalez contends that the trial court erred when it prohibited him

from presenting evidence of a statement against interest made by Arnel. “We review

a trial court’s ruling on the admission of evidence under an abuse of discretion

standard.” Ford v. State, 274 Ga. App. 695, 697 (1) (617 SE2d 262) (2005). Gonzalez

sought to introduce under OCGA § 24-8-804 (b) (3) a custodial statement by Arnel

that Gonzalez did not know that Arnel was not going to pay the victim for the

marijuana. The trial court ruled that this part of Arnel’s custodial statement was not

a statement against interest. Even if we assume that the trial court’s ruling was

incorrect, any error in not admitting this statement would be harmless error. Whether

Gonzalez knew that Arnel was not going to pay for the marijuana is not relevant to

11 the aggravated assault, false imprisonment, and possession of less than one ounce of

marijuana charges of which he was convicted. Regardless of whether Gonzalez knew

that Arnel was going to take the marijuana without paying for it, the evidence

presented at trial showed that Gonzalez was an active participant in the crimes of

which he was convicted. Georgia law is clear that “[e]very person concerned in the

commission of a crime is a party thereto and may be charged with and convicted of

commission of the crime.” OCGA § 16-2-20 (a). Accordingly, this enumeration of

error fails.

Judgment affirmed. Doyle, P. J., and Markle, J., concur.