Strong v. State

477 S.E.2d 866, 223 Ga. App. 434, 96 Fulton County D. Rep. 3942, 1996 Ga. App. LEXIS 1183

• Court: Court of Appeals of Georgia
• Decided: November 1, 1996
• Docket: A96A1409
• Status: Published

Opinions

Johnson, Judge.

Tabitha Strong was charged by indictment with two counts of aggravated assault, possession of a firearm during commission of a felony, and discharge of a firearm on or near a public highway. Each of these charges arose out of the same domestic incident. The indictment charging Strong with possession of a firearm during the commission of,a felony clearly specified that this charge was predicated upon the two alleged aggravated assaults with which she was also charged. Upon the trial of the case, the jury returned a verdict of not guilty as to the two counts of aggravated assault, but found Strong guilty of the remaining two charges. On appeal, Strong maintains that because she was acquitted on the aggravated assault charges, her felony conviction of possession of a firearm during the commission of a felony is void and must be reversed. We agree.

The Georgia Supreme Court abolished the inconsistent verdict rule in Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986). This Court applied Milam in Cleveland v. State, 212 Ga. App. 361 (441 SE2d 820) (1994) and concluded that a jury’s acquittal of a defendant on aggravated assault charges had no relevance to the question of whether that jury was authorized to convict the defendant of possession of a firearm during the commission of a felony. For the reasons which follow, Cleveland is overruled.

OCGA § 16-11-106 (b) provides that any person having a firearm during the commission of, or attempt to commit, a crime which is categorized by law as a felony commits a felony. The existence of a felony or an attempted felony is thus an essential element of the separate firearm offense. In this case, the indictment expressly premised the possession óf a firearm during the commission of a felony charge upon the two aggravated assault charges. The jury acquitted Strong of both aggravated assault charges. It found her guilty only of a violation of OCGA § 16-11-103, discharge of a gun or pistol near a public highway or street, a misdemeanor. Because the jury acquitted Strong of an essential element of the felony firearm charge, the aggravated assault charges upon which her felony firearms indictment was predicated, the jury’s verdict on the felony firearms charge is not merely inconsistent within the contemplation of Milam, it is mutually exclusive and therefore contrary to law. See Harrison v. State, 213 Ga. App. 366, 368 (3) (444 SE2d 613) (1994). The abolition of the inconsistent verdict rule in Milam v. State, supra, is inapplicable here. See Thomas v. State, 199 Ga. App. 586 (1) (405 SE2d 512) (1991) (mutually exclusive verdicts not within the contemplation of Milam).

Because this situation does occur with some frequency, some trial courts, often at the request of the State, have adopted the practice of bifurcating the trial, presenting the jury with the felony firearm charge only after it has convicted a defendant of the underlying predicate felony. The wisdom of such a practice is self-evident, and it avoids the dilemma presented by this and similar cases.

A conviction of possession of a weapon during the commission of a felony must stand or fall in conjunction with the underlying felony upon which the charge is predicated. Strong’s conviction of possession of a firearm during the commission of a felony is reversed. To the extent Cleveland, supra, is inconsistent with this holding, it is overruled.

Judgment reversed.

Birdsong, P. J, Pope, P. J., Blackburn, Smith and Ruffin, JJ, concur. Beasley, C. J., McMurray, P. J, and Andrews, J., dissent.