Lowery v. State, A94A0757

• Citation: 443 S.E.2d 304,212 Ga.App. 870
• Decision Date: 11 April 1994
• Docket Number: No. A94A0757,A94A0757
• Parties: LOWERY v. The STATE.
• Court: United States Court of Appeals (Georgia)

Page 304

443 S.E.2d 304

212 Ga.App. 870

LOWERY v. The STATE.

No. A94A0757.

Court of Appeals of Georgia.

April 11, 1994.

McDonald, Kinnamon & Thames, Todd L. Ray, Dalton, for appellant.

Roger Queen, Dist. Atty., William B. Britt, Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Defendant Lowery appeals his conviction of two counts of aggravated assault and of possession of a firearm by a convicted felon. Held:

The victims on the two counts of aggravated assault were defendant's son and the son's girl friend. The State presented evidence that the victims made a trip to Fannin County to visit defendant and other family members. A family fishing trip ensued involving defendant, his two sons, and a friend of defendant's. After the fishing trip the victim-son drove back to defendant's home with him. The victim-son and defendant were concerned about the absence of defendant's other son and friend who had driven back separately, so they, along with defendant's wife, went driving around looking for them. During this drive an argument involving familial issues erupted and defendant stopped the vehicle. The argument continued with the victim-son and defendant standing near the vehicle until defendant walked over to the truck, got a handgun and pointed it at the victim-son, who ran away. A shot was fired, and defendant drove away while the victim-son ran to a nearby store. Later, at defendant's home the other victim, the girl friend of the victim-son, encountered defendant, who was still accompanied by his wife, and who pointed a gun at her, ordered her off his property, and threatened her.

The State rested after the testimony of the two victims. Defendant's first witness was his wife, who first testified as to various relationships in the family and then acknowledged that the victim-son had been put out of a vehicle following an argument. However, defendant's wife denied that defendant had a firearm. Defense counsel then asked if there was any reason defendant did not have a gun and defendant's wife answered: "Because he's not allowed to carry one. Because he's a convicted felon." Shortly thereafter, at a bench conference held outside the hearing of the jury, the State raised the contention that the introduction of this evidence opened the door for the State to cross-examine defendant's wife concerning his felony convictions and defense counsel acknowledged that the State was entitled to do so. Both of defendant's enumerations of error on appeal are centered on these circumstances.

First, defendant contends that the trial court erred in ruling that the door for placing the defendant's character in issue was opened. However, this enumeration lacks merit since there was no objection preserving this issue for appeal nor any ruling by the trial court on this issue which we may review. The trial court's only remark on this matter was to note for the record the acknowledgment made by defense counsel. Gambrel v. State, 260 Ga. 197, 201(5), 391 S.E.2d 406; Norman v. State, ...