Barber v. State, No. A05A0618.

• Decision Date: 07 April 2005
• Docket Number: No. A05A0618.
• Citation: 614 S.E.2d 105,273 Ga. App. 129
• Parties: BARBER v. The STATE.
• Court: Georgia Court of Appeals

273 Ga. App. 129

614 S.E.2d 105

BARBER v. The STATE.

No. A05A0618.

Court of Appeals of Georgia.

April 7, 2005.

Reconsideration Denied April 29, 2005.

Shawna M. Woods, Head, Thomas, Webb & Willis, Atlanta, for appellant.

Peter J. Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney, for appellee.

ELLINGTON, Judge.

A Carroll County jury convicted Travis Barber of aggravated assault, OCGA § 16-5-21(a)(2), and possession of a gun during the commission of a crime, OCGA § 16-11-106(b)(1).¹ He appeals from the denial of his motion for new trial. For the following reasons, we affirm.

1. Barber contends the evidence was insufficient to support his conviction for aggravated assault. "It is well established that on appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility." (Citation and punctuation omitted.) Taylor v. State, 226 Ga.App. 254, 255, 485 S.E.2d 830 (1997). It is the job of the factfinder to resolve conflicts in the evidence. Id.

So viewed, the evidence showed that at approximately 12:30 a.m. on August 2, 2002, at least 50 people were at a Krystal restaurant when a fight broke out in the parking lot. Barber arrived with several friends during the melee. Barber's co-defendant, Roderick Lanier Springer, was not with the group of friends. Shortly after he arrived, Barber climbed on top of a car, pulled a . 50 caliber gun out of his pants, waved it around, and started shooting. Eyewitnesses testified that, after Barber shot once in the air, he pointed his gun at a group of people who were fighting near some cars. He then became involved in a gun battle with someone in the crowd and he shot at least five times toward the crowd. Other witnesses testified that Barber ran through the crowd and was "firing back" at someone. There was also evidence that Springer was in the crowd and was shooting a gun. Barber was shot twice and left the area before officers arrived.

According to an officer responding to a "fight with shots fired" emergency call, the Krystal parking lot was "chaotic" when he arrived, with hundreds of people "running everywhere." Police officers found a man lying between two cars in the parking lot. The victim, who was an innocent bystander, had been shot in the back and died before an ambulance arrived. The officers did not find a weapon on or near the victim. While investigating the crime scene, officers found five shell casings from a .50 caliber gun scattered throughout the parking lot, as well as seven casings from a .380 revolver in the parking lot. They also found a stain that was later determined to be Barber's blood.

The evidence also showed that Barber's friends drove him to an Atlanta-area hospital about an hour away instead of taking Barber to a local hospital, even though Barber was severely bleeding from two gunshot wounds. Barber told hospital personnel that he had been wounded in a drive-by shooting on the side of a road while he was changing a tire. He admitted at trial that the drive-by story was a lie. Barber also testified that he shot "all of the bullets out" of his gun at the Krystal restaurant, but claimed he only fired into the air.

In arguing that the evidence was insufficient to support the jury's verdict, Barber contends there was no evidence that he intended to injure the victim or that he, in fact, shot the victim. When viewed in favor of the verdict, however, the evidence showed that Barber willingly participated in a gunfight in a crowded parking lot and that an innocent bystander was fatally wounded during the exchange of gunfire. This evidence was sufficient to sustain Barber's conviction for aggravated assault. Wyman v. State, 278 Ga. 339, 339-340(1), 602 S.E.2d 619 (2004) (finding that evidence of defendant's participation in a gunfight which resulted in the shooting of a bystander was sufficient to support his conviction for aggravated assault); Smith v. State, 267 Ga. 372, 373(1), 375(5), 477 S.E.2d 827 (1996).

2. Barber claims that his conviction for aggravated assault cannot stand because his co-defendant, Springer, was convicted of involuntary manslaughter based upon the underlying crime of reckless conduct.² He argues that an aggravated assault conviction is mutually exclusive of a finding of reckless conduct as a matter of law. See Jackson v. State, 276 Ga. 408, 409-413(2), 577 S.E.2d 570 (2003) (finding a conviction for felony murder predicated upon aggravated assault, which is an intentional crime, is mutually exclusive of a conviction for...