FIFTH DIVISION
MCFADDEN, P. J.,
BRANCH and BETHEL, 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
October 18, 2017
In the Court of Appeals of Georgia
A17A0819. SALAZAR-BALDERAS v. THE STATE.
BETHEL, Judge.
Salavador Salazar-Balderas appeals from the denial of his motion for a new
trial following his convictions for serious injury by vehicle, reckless driving, failure
to stop at or return to the scene of an accident, following too closely, and driving
without a license. Salazar-Balderas argues that the trial court erred when it refused
to charge the jury on the defense of habitation. He further argues that he received
ineffective assistance when his trial counsel did not effectively manage the request
for a jury charge on habitation, and when trial counsel failed to renew his motion for
a mistrial following the court’s curative instructions on the State’s improper closing
argument. We agree that the trial court erred by refusing to charge the jury on the
defense of habitation and reverse.
“On appeal from a criminal conviction, we view the evidence in the light most
favorable to the verdict, and the defendant no longer enjoys the presumption of
innocence.” Fields v. State, 263 Ga. App. 11, 11 (587 SE2d 171) (2003) (citation
omitted). So viewed, the evidence shows that on December 29, 2006, Salazar-
Balderas rear-ended the victim’s vehicle. The victim testified that both she and
Salazar-Balderas exited their vehicles to inspect the damage, which was minimal.
Salazar-Balderas showed the victim an identification card of some sort and returned
with the victim to his car so that he could give her his insurance card. However,
instead of producing an insurance card to the victim, Salazar-Balderas got into his
vehicle and fled the scene, running the victim over in the process. A witness, who did
not see any prior interaction between the parties, observed Salazar-Balderas running
over the victim and testified to his observation at trial. The victim sustained serious
injury, including broken bones.
At trial, Salazar-Balderas testified that when he returned to his car with the
victim to retrieve his insurance information, the victim reached through his open
driver’s side window into his vehicle and started grabbing and pulling his left
shoulder, saying she did not believe Salazar-Balderas had insurance. The two began
arguing, and Salazar-Balderas’ nine year-old son, who was a passenger in his vehicle,
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started crying. Salazar-Balderas became scared and then decided to drive away from
the victim, who continued holding onto his vehicle as he began driving away.
Salazar-Balderas testified that he was unaware he had hit the victim. Police
apprehended Salazar-Balderas a few minutes after leaving the scene, and he was
charged with serious injury by vehicle, reckless driving, failure to stop at or return to
scene of accident, following too closely, and driving without a license.
Trial counsel for Salazar-Balderas did not include a pattern jury charge for
habitation in his original requests to charge. But Salazar-Balderas’ trial counsel orally
requested the additional pattern jury charge on habitation1 during the charge
1
Georgia Suggested Pattern Jury Instructions, 3.12.10 Justification; Use of
Force in Defense of Habitation (Motor Vehicle), provides:
A person is justified in threatening or using force against another person
when, and to the extent that, the person reasonably believes that such
threat or force is necessary to prevent or terminate the other’s unlawful
entry into or attack upon a [motor vehicle]. A person is justified in the
use of force that is intended or likely to cause death or great bodily harm
only if (a) the entry is made or attempted in a violent and disorderly
manner and the person reasonably believes that the entry is attempted or
made for the purpose of assaulting or offering personal violence to any
person living or present in the [motor vehicle] and that such force is
necessary to prevent the assault or offer of personal violence[.]
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conference. After revewing the pattern jury charge in question and considering the
request, the trial court declined to give the charge, noting that a motor vehicle can be
a deadly weapon, and that use of a deadly weapon to defend oneself was not justified
under the facts of the case because Salazar-Balderas testified that the victim was
merely grabbing him through the window. Instead, the trial court charged the jury on
justification and knowledge. Trial counsel renewed his objection regarding the
requested jury charge on habitation following the trial court’s jury instruction.
Salazar-Balderas was convicted on all counts. Following his conviction,
Salazar-Balderas filed a motion for a new trial, which the trial court denied. Salazar-
Balderas then filed a motion for an out-of-time appeal, which was granted. This
appeal followed.
1. Salazar-Balderas first argues that the trial court erred when it failed to
instruct the jury on defense of habitation. We agree.
“A requested charge must be legal, apt, and precisely adjusted to some
principle involved in the case and be authorized by the evidence. If any portion of the
request to charge fails in these requirements, denial of the request is proper.”
Kendrick v. State, 287 Ga. 676, 679 (3) (699 SE2d 302) (2010) (citation omitted). We
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review the trial court’s refusal to give a requested charge for abuse of discretion.2
Wallace v. State, 306 Ga. App. 118, 121 (701 SE2d 554) (2010).
As an initial matter, we note that Salazar-Balderas failed to submit a written
request to charge on habitation. Instead, he made an oral request that the trial court
give the pattern jury charge on habitation. This request fails to comply with the
requirements of Uniform Superior Court Rule 10.3.3 See Kendrick, 287 Ga. at 678 (3).
This Court has previously observed that “[v]iolation of Rule 10.3 carries no express
penalties, although failure to adhere to the rule has been cited as justification for a
2
Salazar-Balderas preserved his objection regarding the requested habitation
charge when he renewed his objection following the trial court’s jury instruction. Nel
v. State, 252 Ga. App. 761, 765 (7) (557 SE2d 44) (2001) (once jury instructions are
given, “[i]n order to avoid waiver, if the trial court inquires if there are objections to
the charge, counsel must state his objections and/or follow the procedure of reserving
the right to objection on motion for new trial or on appeal.”). Thus, we review the
failure to give the charge for abuse of discretion instead of plain error. State v. Kelly,
290 Ga. 29, 32 (1) (718 SE2d 232) (2011) (appellate courts will review an objection
to jury instructions for plain error where the party fails to object at trial and the
appealing party properly asserts the error on appeal).
3
Uniform Superior Court Rule 10.3 reads:
All requests to charge shall be numbered consecutively on separate
sheets of paper and submitted to the court in duplicate by counsel for all
parties at the commencement of trial, unless otherwise provided by pre-
trial order; provided, however, that additional requests may be submitted
to cover unanticipated points which arise thereafter.
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trial court’s refusal to give a later requested charge.” Gagnon v. State, 240 Ga. App.
754, 755 (1) (525 SE2d 127) (1999) (footnotes omitted). Although such failure would
authorize the trial court to reject Salazar-Balderas’ desired jury instruction,4 the trial
court did not decline to give the charge on this basis. Rather, the trial court was
directed to the requested pattern charge, reviewed it, and discussed it with the parties
before deciding not to give it because it did not find the instruction was warranted
under the circumstances of the case. The record does not reflect that the trial court or
the State were unclear about which provision of the charge applied, and it appears the
request was sufficient to direct the court’s attention accordingly. On appeal, there is
no ambiguity about what portion of the charge was relevant to the facts and was being
requested. Therefore, we will review the substance of this enumeration of error. See
Kendrick, 287 Ga. at 678 (3); Davis v. State, 285 Ga. 176, 178-79 (2) (674 SE2d 879)
(2009).
4
This Court has previously held that a trial court’s refusal to give a requested
charge was not in error when such refusal was based on the defendant’s failure to
comply with Uniform Superior Court Rule 10.3. See Temple v. State, 238 Ga. App.
146, 148 (3) (517 SE2d 850) (1999) (not error for trial court to refuse jury instruction
on the basis that it was not timely requested); Smith v. State, 222 Ga. App. 366, 370-
71 (5) (474 SE2d 272) (1996) (same).
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The defense of habitation is available to prevent or terminate an “unlawful
entry into or attack upon a habitation” if the “entry is made or attempted in a violent
and tumultuous manner[,]” there is a reasonable belief that entry is made “for the
purpose of assaulting or offering personal violence to any person” therein, and “that
such force is necessary to prevent the assault or offer of personal violence[.]” OCGA
§ 16-3-23 (1); see also Benham v. State, 277 Ga. 516, 517 (591 SE2d 824) (2004);
Neverson v. State, 324 Ga. App. 322, 325 (2) (750 SE2d 397) (2013). A motor vehicle
is included in the definition of a “habitation.” OCGA § 16-3-24.1.
The trial court explained that it did not give the requested instruction because
Salazar-Balderas’ use of deadly force was not warranted by the victim’s mere
grabbing his person, and because Salazar-Balderas claimed that he was entirely
unaware that he had run over the victim with his vehicle. The trial court is mistaken.
“Unlike the defense of justification, the habitation defense, in recognition of
the sanctity of a person in his home or motor vehicle or place of business, allows the
use of deadly force in certain situations even if the occupant does not fear death or
great bodily injury.” Coleman v. State, 286 Ga. 291, 297 (6) (687 SE2d 427) (2009)
(citation and punctuation omitted). Thus, our analysis does not turn on whether
Salazar-Balderas was in any immediate fear of death or great injury or whether such
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fear was reasonable under the circumstances of this case. Nor does Salazar-Balderas’
claimed ignorance of having run over the victim bar the availability of the habitation
defense here. Rather, we must examine whether there is slight evidence that Salazar-
Balderas used force to prevent or terminate a violent or tumultuous entry into his
vehicle that he reasonably believed was for the purpose of assaulting or offering
personal violence against him. See OCGA § 16-3-23 (1); Coleman, 286 Ga. at 297 (6)
(“a request to charge the jury is appropriate where there is any evidence, however
slight, on which to predicate it”) (citation omitted)); Benham, 277 Ga. at 517.
Under OCGA § 16-5-20 (a), “[a] person commits the offense of simple assault
when he or she either: (1) [a]ttempts to commit a violent injury to the person of
another; or (2) [c]ommits an act which places another in reasonable apprehension of
immediately receiving a violent injury.” Moreover, “the focus of a reasonable
apprehension of harm is on the apprehension of the victim, and it is for the factfinder
to determine whether the victim’s apprehension was reasonable.” Thompson v. State,
332 Ga. App. 204, 211-212 (2) (2015) (citation and punctuation omitted).
Salazar-Balderas testified that when he returned to his vehicle to obtain his
insurance and other paperwork, the victim reached through his window and began
grabbing his shoulder while accusing him of not having insurance. Salazar-Balderas
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testified that he became nervous and frightened, and that his son, who was also in the
vehicle, began to cry. Salazar-Balderas’ testimony indicated that he intended to use
the force that resulted in victim’s injury — that is, driving his vehicle away from her
— so as to escape her reaching through his open vehicle window and grabbing him
while she was verbally accosting him. The victim’s actions provide the slight
evidence needed for the jury to decide whether Salazar-Balderas used the force
resulting in injury to escape a violent or tumultuous entry into his vehicle that he
reasonably believed was for the purpose of assaulting or offering personal violence
against him. Therefore, a jury instruction on the defense of habitation was warranted.
See Coleman, 286 Ga. at 297 (6); Benham, 277 Ga. at 517.
“Where a defendant raises an affirmative defense and testifies to the same, the
burden is on the State to disprove the defense beyond a reasonable doubt.” Jones v.
State, 160 Ga. App. 209, 209-210 (2) (286 SE2d 764) (1981) (citation and
punctuation omitted). Because Salazar-Balderas’ requested charge was a correct
statement of the law and was adjusted to the evidence, we are constrained to hold that
the trial court’s failure to give the charge was harmful error demanding reversal of the
conviction. See id.
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2. In view of our holding in Division 1, we need not address Salazar-Balderas’
remaining enumerations of error.
Judgment reversed. McFadden, P. J., and Branch, J., concur.
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