FIRST DIVISION
BARNES, P. J.,
MERCIER and BROWN, 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
June 17, 2019
In the Court of Appeals of Georgia
A19A0506. HARRIS v. THE STATE.
BROWN, Judge.
This is the second appearance of this case before this Court. In Harris v. State,
342 Ga. App. 829 (805 SE2d 281) (2017) (“Harris I”), we affirmed Donald Harris,
Jr.’s conviction for possession of a firearm by a convicted felon, but reversed his
conviction for aggravated assault because the trial court failed to charge the jury on
the lesser included offense of reckless conduct. Id. at 832-833 (2). Upon retrial,
Harris was again convicted of aggravated assault. He appeals the denial of his motion
for new trial, alleging that the verdict form was unlawful. We affirm.
Harris was convicted of aggravated assault arising out of an incident which
occurred on May 19, 2015, after Harris was accused of molesting his ex-girlfriend’s
daughter. The aggravated assault victim, Harris’ cousin and the ex-girlfriend’s best
friend, testified that she had just driven up to her home and was sitting in her car
when Harris’ brother blocked her from getting out of the car. When the victim
lowered her car window, she heard a big commotion and screams, and then observed
Harris pointing an assault rifle at her car window. The victim’s ten-year-old son, who
was standing on the porch of the home, also testified that Harris pointed the gun at
his mother. The victim testified that she felt threatened and afraid, and believed her
life was in jeopardy: “I didn’t know [if there were] bullets in the gun or not. I didn’t
know what he was going to do with it.” As the victim called 911, Harris ran off.
During cross-examination, the victim confirmed that during a prior hearing, she
testified that Harris pointed the gun at “his sister and brother” and “everybody there.”
Neither Harris’ brother nor his sister, both of whom were on the scene, saw Harris
point the gun at the victim; both testified that the gun belonged to the brother, that the
sister was holding the gun, and that Harris and the sister struggled over the gun. The
indictment charged Harris with “aggravated assault (OCGA § 16-5-21) for . . .
mak[ing] an assault upon [the victim] with a deadly weapon,” without specifying
which manner of simple assault (attempting to commit a violent injury to another or
committing an act which places another in reasonable apprehension of immediately
receiving a violent injury, OCGA § 16-5-21 (a) (1), (a) (2)). At trial, the trial court
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instructed the jury as to both types of assault that could support the aggravated assault
charge, as well as the lesser included charges of reckless conduct and pointing a gun
at another.
In his sole enumeration of error, Harris contends that the verdict form –
combined with the jury instructions1 – was confusing to the jury because it divided
the definitions of aggravated assault, thus giving the appearance that Harris was
charged with two separate counts of aggravated assault, i.e., (1) aggravated assault
by placing the victim in reasonable apprehension of receiving a violent injury and (2)
aggravated assault by attempting to commit a violent injury to the person of another
or a lesser charge. In evaluating the propriety of a verdict form, “we review the form’s
language in conjunction with the rest of the trial court’s jury instruction.” Rowland
v. State, __ Ga. __ (6) (Case No. S19A0289, decided June 3, 2019).
In this case, the verdict form returned by the jury, showed as follows:
Cho[o]se One
_____ “We, the jury, find the Defendant guilty of Aggravated Assault by
committing an act that placed another in reasonable apprehension of
immediately receiving violent injury.”
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Harris does not enumerate any error related to the trial court’s instructions to
the jury.
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_____ “We, the jury find the Defendant not guilty of Aggravated Assault in
that manner.”
OR
Cho[o]se One
_____ “We, the jury, find the Defendant guilty of Aggravated Assault by
attempting to commit a violent injury to the person of another.”
_____ “We, the jury[,] find the Defendant guilty of Reckless Conduct.”
_____ “We, the jury, find the Defendant guilty of Pointing a Gun at Another.”
_____ “We, the jury, find the Defendant not guilty.”
During its instruction, the trial court charged that Harris was indicted with “the
offense of aggravated assault”; differentiated between the two methods of simple
assault; and charged that the “lesser included offenses [of reckless conduct and
pointing a firearm at another] apply to aggravated assault by attempting to commit a
violent injury to another. They are not lesser included offenses of aggravated assault
by doing an act that places another in reasonable apprehension of immediately
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receiving a violent injury.”2 The court then instructed the jury how to complete the
verdict form, differentiating several times between the methods of aggravated assault.
We find no merit in Harris’ claim that alleged confusion caused by the verdict
form entitles him to a new trial. The jury had a copy of the indictment during
deliberations, and the trial court expressly instructed the jury that Harris was charged
with “the offense of aggravated assault” and that he could only be convicted of one
manner of aggravated assault. Additionally, inclusion of the capitalized, bolded “OR”
between the two sections of the verdict form necessarily communicated to the jury
that Harris could only be found guilty of one or the other type of aggravated assault,
but not both. Finally, the jury never voiced any confusion about the verdict form or
asked for a recharge on the issue. Because the verdict form was not one that would
mislead jurors of reasonable understanding, we find no merit in Harris’ challenge. See
Brown v. State, 283 Ga. 327, 331 (2) (658 SE2d 740) (2008). See, e.g., Arvinger v.
2
In Harris I, we concluded that Harris was entitled to a reckless conduct
charge as a lesser included offense of aggravated assault with a deadly weapon for
attempting to commit a violent injury to the person of another, OCGA § 16-5-20 (a)
(1), but not as a lesser included offense of aggravated assault with a deadly weapon
for committing an act which placed another in reasonable apprehension of
immediately receiving a violent injury. See Harris I, 342 Ga. App. at 832-833 (2).
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State, 276 Ga. App. 127, 129 (622 SE2d 476) (2005); McGuire v. State, 243 Ga. App.
899, 902 (4) (534 SE2d 549) (2000).
Judgment affirmed. Barnes, P. J., and Mercier, J., concur.
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