Thornton v. State

653 S.E.2d 361, 288 Ga. App. 60, 2007 Fulton County D. Rep. 3338, 2007 Ga. App. LEXIS 1141
CourtCourt of Appeals of Georgia
DecidedOctober 25, 2007
DocketA07A1146
StatusPublished

This text of 653 S.E.2d 361 (Thornton v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thornton v. State, 653 S.E.2d 361, 288 Ga. App. 60, 2007 Fulton County D. Rep. 3338, 2007 Ga. App. LEXIS 1141 (Ga. Ct. App. 2007).

Opinion

Phipps, Judge.

In a bifurcated trial, a jury found Timothy Nathaniel Thornton guilty of aggravated assault with a gun and possession of a firearm by a convicted felon. On appeal, he challenges the sufficiency of the evidence. In addition, he contends that the trial court gave erroneous jury instructions, impermissibly communicated with the jury, and erroneously rejected his claim of ineffective assistance of counsel. Because Thornton has shown no reversible error, we affirm.

1. Thornton contests the sufficiency of the evidence.

When a criminal defendant challenges the sufficiency of the evidence supporting a conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. As an appellate court, we do not weigh the evidence, judge the credibility of [61]*61witnesses, or resolve evidentiary conflicts. The relevant question for this court is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. As long as there is some competent evidence to support each element necessary to make out the state’s case, the jury’s verdict will be upheld.1

Clifton Daniel, the victim of the aggravated assault, testified about the incident giving rise to the charges. One day in March 2004, Thornton confronted him about a girl while he was standing outside a residence with his sister. Thornton had a gun, shot rounds in the air, and threatened to hurt Daniel. Daniel did not have a gun and told Thornton that he did not want to fight him. Thornton passed the gun to a friend; Thornton and Daniel argued; Thornton then grabbed Daniel; and a fight between the two ensued.

Daniel’s sister testified that when Thornton arrived at the residence that day, he “jumped out of the car” with a gun in his hand and confronted Daniel about money. Daniel had no gun and told Thornton that he did not want to fight him. Thornton then passed the gun to a person she identified at trial as Fred Wells; Thornton next hit Daniel; and a fistfight between Thornton and Daniel ensued. After the fistfight, Thornton took the gun back from Wells, shot in the air, and threatened to shoot Daniel. Daniel’s sister called the police.

An officer who responded to the scene within minutes of the emergency dispatch testified that shell casings were found on the ground where the shooting incident reportedly happened. The officer testified that the casings had been recently fired because they were not “weathered.” In other words, the officer explained, the casings did not appear to have been “stepped on, . . . rained on, or anything like that. They appeared to be fresh.” Another responding officer testified that Thornton was soon found in a nearby, abandoned, “burned-out” trailer. He was alone, sweating, and sitting in a back room.

Thornton neither testified nor called witnesses, but introduced documentary evidence, including impeachment evidence that Daniel’s sister had been convicted of a felony drug offense and the misdemeanor offense of giving a false statement to a police officer.

After the jury returned a guilty verdict on the charge of aggravated assault, the state introduced in evidence a certified copy of Thornton’s 2003 conviction for aggravated assault. Thereupon, the jury returned a guilty verdict on the charge of possession of a firearm by a convicted felon.

[62]*62On appeal, Thornton points to what he claims are weaknesses and inconsistencies in the evidence against him, including the impeachment evidence against Daniel’s sister and discrepancies between her and Daniel’s testimony. But such evidentiary issues were for the jury to resolve. Because there was competent evidence to support each element necessary to make out the state’s case relative to the offenses of aggravated assault with a gun and possession of a firearm by a convicted felon, we uphold the jury verdicts.2

2. Thornton contends that the jury instruction on impeachment did not permit the jurors to find Daniel’s sister impeached by her felony drug conviction. Thornton acknowledges, however, that the instruction as a whole did authorize the jurors to find Daniel’s sister impeached by her misdemeanor conviction of giving a false statement to police.

Thornton takes issue with particular language in the impeachment instruction that a witness could be found impeached by a conviction “of a crime involving moral turpitude and that crime is a felony offense.” But the Supreme Court of Georgia has said, “[F]or purposes of witness impeachment, crimes involving moral turpitude are restricted to the gravest offenses, constituting of felonies. . . .”3 Further, “a witness may be impeached by proof of a conviction of any crime involving moral turpitude,” which “term seems equivalent in this state to infamy, and would encompass all felonies.”4 Accordingly, the language cited in this case was not reversible error, but it was sufficiently tailored to the evidence and adequately conveyed the relevant principles, such that there is no reasonable probability that it confused or misled the jurors in any way prejudicial to Thornton.5

3. Thornton contends that language used to instruct the jury on the offense of possession of a firearm by a convicted felon was erroneous. The court instructed the jury:

[A]ny person who has been previously convicted of any forcible felony shall be prohibited from thereafter possessing a firearm. A forcible felony is any felony which involves the use or threat of physical force or violence against another person. An aggravated assault is considered a forcible felony. A firearm includes any type of handgun, rifle, shotgun, or [63]*63any other weapon which will or which can be converted to expel any projectile by the action of an explosive or electrical charge.

Thornton points out that the indictment in this case did not allege a previous conviction of a “forcible felony” and that the definition of possession of a firearm by a convicted felon does not require that the previous felony was “forcible.”

OCGA§ 16-11-131 provides that “[a]ny person ... who has been convicted of a felony by a court of this state . . . and who . . . possesses . . . any firearm commits a felony. . . .”6 It further defines “felony” as “any offense punishable by imprisonment for a term of one year or more,”7 which includes the offense of aggravated assault.8 The indictment pertinently charged that Thornton was in possession of a firearm, after having been convicted of “ [aggravated [ajssault, a felony under the laws of this State. . . .” Regarding the underlying aggravated assault, the state showed that, in 2003, Thornton pled guilty and was convicted of aggravated assault upon a person “by discharging [a] firearm from within a motor vehicle toward [the person], thereby attempting a violent injury to said person. . . .”

Although the cited language did not charge the jury in the precise statutory language defining possession of a firearm by a convicted felon, no reversible error occurred. “Jury instructions must be read and considered as a whole.”9

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Bluebook (online)
653 S.E.2d 361, 288 Ga. App. 60, 2007 Fulton County D. Rep. 3338, 2007 Ga. App. LEXIS 1141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thornton-v-state-gactapp-2007.