Vonhagel v. State

651 S.E.2d 793, 287 Ga. App. 507, 2007 Fulton County D. Rep. 2854, 2007 Ga. App. LEXIS 1012
Court of Appeals of Georgia·Decided September 11, 2007·No. A07A1374·Published·Cited by 2 cases

Opinion

JOHNSON, Presiding Judge.

After a jury trial, Paul Vonhagel was convicted of aggravated assault and criminal trespass. He appeals, challenging the sufficiency of the evidence supporting his aggravated assault conviction; the effectiveness of his trial counsel; and the trial court’s failure to declare a mistrial after certain character evidence, failure to answer a jury question and failure to poll the jury after its verdict. The challenges are without merit, and we therefore affirm Vonhagel’s conviction.

1. On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence.1 Moreover, this court determines only the sufficiency of the evidence and does not weigh the evidence or determine the credibility of witnesses.2

Viewed in the light most favorable to the verdict, the evidence shows that on December 27, 2000, Lisa Weckerly called Vonhagel, whom she had been dating for several months, to tell him that she was spending the night at the home of her friend Karen Ward and that she would see him at work the next morning. At approximately 11:30 that night, Vonhagel drove to Ward’s house to see Weckerly. Ward let Vonhagel come into the house, where he saw that Weckerly was asleep on a couch.

Vonhagel went out to the carport where an argument ensued about whether he could remain on Ward’s property. Vonhagel told Ward that he was going to sleep in his truck in her driveway, but she told him that he could not do that and that he had to leave. Vonhagel then pulled a handgun out of a holster he was wearing and hit Ward on the side of her head with the gun, threatening her in a loud voice.

Ward retreated into the house as Weckerly, who had been awakened by the commotion, came to the carport door. Upon seeing Vonhagel standing outside with his gun, she slammed the door shut and locked it. She and Ward crawled into the kitchen, and Ward then went into a bedroom to call the police.

[508]*508While Ward was on the phone, Vonhagel kicked the carport door in and entered the house holding his gun. A short time later, the police arrived at the house and Vonhagel was placed under arrest. According to the arresting officer, Vonhagel admitted that after Ward had told him to leave he hit her on the side of the head with his gun and kicked in the door to get into the house.

Vonhagel argues that the evidence does not support the verdict of guilt as to aggravated assault because there is no evidence that he used his gun as a deadly weapon. Vonhagel’s argument is misplaced because he was not indicted for using his gun as a deadly weapon. Rather, he was indicted for committing an assault by striking Ward on the side of her head with his handgun, an object when used offensively is likely to result in serious injury.

Under OCGA § 16-5-21 (a) (2), a person commits the offense of aggravated assault when he assaults “with a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” This subsection is a disjunctive clause that provides alternative bases for conviction.3

Because the indictment in the instant case charged that Vonhagel’s gun was an object which, when used offensively, is likely to result in serious injury, no evidence of a deadly weapon was required at trial.4 Having reviewed the evidence in the light most favorable to the verdict, we conclude that there is sufficient evidence from which a rational trier of fact could have found Vonhagel guilty beyond a reasonable doubt of aggravated assault as charged in the indictment.5

2. Vonhagel argues that his conviction should be reversed because he received ineffective assistance of trial counsel. We disagree.

To prevail on a claim of ineffective assistance of trial counsel, appellant must show counsel’s performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different. In making this showing, [appellant] must rebut by clear and convincing evidence the strong presumption that [509]*509his attorney was effective. The standard of our review of the trial court’s determination of the effectiveness of counsel is whether its findings are clearly erroneous.6

(a) Vonhagel contends his trial counsel was ineffective because he told the trial court that Vonhagel had placed his character in issue by testifying that he had never before had any police intervention in his life, had never been arrested and had not even had a speeding ticket. Even if we assume for the sake of argument that counsel’s statement was deficient, Vonhagel has not shown that it prejudiced his defense.

Counsel’s statement came outside the presence of the jury during a discussion between the parties and the court about whether the state could present evidence that during a prior traffic incident Vonhagel had pointed his gun at another motorist. The trial court ultimately ruled that the state could introduce the evidence, not to show bad character, but to impeach Vonhagel’s statement on direct examination that he had not threatened Ward by pointing his gun at her, testifying that he “would never ever do anything like that.”

As the trial court ruled, regardless of whether Vonhagel had placed his character in issue, his testimony that he would never threaten someone by pointing a gun at her is subject to impeachment to show its lack of truthfulness.7 “[T]he state is permitted to rebut statements of a defendant who testifies at trial by disproving the facts testified to.”8 Since the trial court correctly ruled that the state could impeach the truthfulness of Vonhagel’s testimony, there is no reasonable probability that but for counsel’s purportedly deficient statement the outcome of the trial would have been different.

(b) Vonhagel claims his trial counsel was ineffective in failing to object to the prosecutor asking each of his four character witnesses whether their opinion of Vonhagel would change if they knew he had brandished a handgun at someone during a traffic confrontation. However, once a defendant puts his character in issue, the state may cross-examine the character witnesses about specific acts in order to test the extent and foundation of their knowledge of the defendant’s character.9 Since the state was authorized to cross-examine Vonhagel’s character witnesses about specific acts of bad conduct, any [510]*510challenge to the questioning would have been futile and the failure to pursue a meritless challenge cannot amount to ineffective assistance of counsel.10

(c) Vonhagel argues counsel was ineffective in not demanding a mistrial after Weckerly testified on rebuttal that there was an incident when Vonhagel got out of his car with his gun on him and went back to yell at the driver of another vehicle, but she could not recall if he brandished the gun.

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Vonhagel v. State, 651 S.E.2d 793, 287 Ga. App. 507, 2007 Fulton County D. Rep. 2854, 2007 Ga. App. LEXIS 1012 (Ga. Ct. App. 2007).

651 S.E.2d 793 (Vonhagel v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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