Bashir v. State

• Decision Date: 24 June 2019
• Docket Number: A19A0653
• Citation: 830 S.E.2d 353,350 Ga.App. 852
• Parties: BASHIR v. The STATE.
• Court: Georgia Court of Appeals

350 Ga.App. 852

830 S.E.2d 353

BASHIR

v.The STATE.

A19A0653

Court of Appeals of Georgia.

June 24, 2019

Thomas William Curvin, Atlanta, for Appellant.

Paul L. Howard Jr., Atlanta, Francis McDonald Wakeford IV, for Appellee.

McFadden, Presiding Judge.

After a jury trial, Khalid Bashir was convicted of three counts of aggravated assault with a deadly weapon ( OCGA § 16-5-21 (a) (2) ) and one count each of possession of a firearm during the commission of a felony ( OCGA § 16-11-106 ) and possession of a firearm by a convicted felon ( OCGA § 16-11-131 ). On appeal, he challenges the sufficiency of the evidence of assault, but the evidence met the standard of Jackson v. Virginia , 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). He challenges the charge given to the jury on assault, but he did not object to this charge at trial and he has not shown plain error. And he challenges the trial court’s admission of his prior convictions as impeachment evidence, but he has not shown that the trial court abused her discretion. So we affirm.

1. Sufficiency of the evidence.

Bashir claims that there was insufficient evidence to support his convictions for aggravated assault with a deadly weapon, because the evidence did not show that he either intended to commit a violent injury to the three victims named in the indictment or that those persons were in reasonable apprehension of immediately receiving a violent injury. See OCGA § 16-5-21 (a) (2) ("A person commits the offense of aggravated assault when he or she assaults ... [w]ith a deadly weapon[.]"). See also OCGA § 16-5-20 (a) ("A person commits the offense of simple assault when he or she either: (1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury."). In considering this claim, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U. S. at 319 (III) (B), 99 S.Ct. 2781 (citation omitted; emphasis in original). "As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [s]tate’s case, the jury’s verdict will be upheld." Miller v. State , 273 Ga. 831, 832, 546 S.E.2d 524 (2001) (citations and punctuation omitted).

So viewed, the trial evidence showed that, after getting into verbal and physical altercations with his live-in girlfriend and her brother, Bashir fired several shots from a gun toward a departing car carrying the three aggravated assault victims named in the indictment — his girlfriend, her brother, and her mother. A bullet struck the car near where one of the victims was sitting. A jury could find from this evidence that Bashir had intentionally fired the gun in the three victims’ direction. "(I)ntentionally firing a gun at another, absent justification, is sufficient in and of itself to support a conviction of [ OCGA § 16-5-20 ] (a) (1) aggravated assault." Chase v. State , 277 Ga. 636, 638 (1), 592 S.E.2d 656 (2004) (citation and punctuation omitted). See also Howard v. State , 288 Ga. 741, 743 (1), 707 S.E.2d 80 (2011) ; Dukes v. State , 264 Ga. App. 820, 823-824 (4), 592 S.E.2d 473 (2003). So the evidence was sufficient to support Bashir’s convictions for aggravated assault.

2. Jury charge.

Bashir argues that the trial court erred by failing, in her charge to the jury, "to inform the jury of the definition of simple assault even though that offense is an essential element of aggravated assault." Howard , 288 Ga. at 743 (2), 707 S.E.2d 80. Because he did not object to the charge at trial, we review this claim only for plain error affecting the substantial rights of the parties. OCGA § 17-8-58 (b). Bashir has not shown plain error.

As our Supreme Court has explained, the plain-error analysis contains four prongs:

First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

Walker v. State , 301 Ga. 482, 485 (2), 801 S.E.2d 804 (2017) (citation omitted).

The error asserted by Bashir in this case is the trial court’s failure to charge on simple assault. Bashir argues that the trial court should have charged that, to find Bashir guilty of aggravated assault with a deadly weapon under OCGA § 16-5-21 (a) (2), the jury must find that he committed an assault by one of the methods set forth in the simple assault statute, OCGA § 16-5-20 (a). Pertinently, OCGA § 16-5-21 (a) (2) provides that a "person commits the offense of aggravated assault when he or she assaults ... [w]ith a deadly weapon[,]" and OCGA § 16-5-20 (a) provides that a "person commits the offense of simple assault when he or she either: (1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury."

Bashir requested the pattern jury charge on aggravated assault, which contains the above-quoted language from both the aggravated assault statute and the simple assault statute. See Suggested Pattern Jury Charges, Vol. II: Criminal Cases, § 2.20.21. But the trial court did not give the requested charge. Instead, the trial court charged the following:

A person also commits the offense of aggravated assault with a deadly weapon by shooting at, toward, and in the direction of the alleged victim with a handgun, the same being a deadly weapon. In this instance, to constitute such an assault, actual injury to the alleged victim need not be shown. It is only necessary that the evidence show beyond a reasonable doubt that the defendant unlawfully committed an assault upon the alleged victim by pointing at, toward, and in the direction of the alleged victim with a handgun.

The trial court also charged the jury on general intent:

Criminal intent does not mean an intention to violate the law or to violate a penal statute, but simply means the intention to commit the act that is prohibited by a statute. The defendant will not be presumed to have acted with criminal intent; but you may find such intention, or the absence of it, upon a consideration of words, conduct, demeanor, motive, and other circumstances connected with the act for which the accused is being prosecuted.

And the trial court charged the jury on justification of the use of force in defense of oneself or others or of one’s residence.

Bashir is correct that, in certain circumstances, it is error for a trial court in an aggravated assault case to fail to charge on the methods of committing a simple assault set forth in OCGA § 16-5-20 (a). This case arguably presents such circumstances. It is undisputed in this case that Bashir intentionally shot at the victims, but missed and caused them no injury.¹ In Cantera v. State , 289 Ga. 583, 713 S.E.2d 826 (2011), our Supreme Court held that, under a similar set of facts presented in the decision as a hypothetical, "a jury would have to be informed that the perpetrator could still be found guilty of aggravated assault despite the fact that he or she did not cause any physical injury to the victim. In this regard, the jury would have to be instructed on the elements of simple assault." Id. at 585 (2), 713 S.E.2d 826. The Court explained that "[i]n cases where intent is in question, a charge on simple assault must be given so that the jury can see that, although no physical harm may have been done, the defendant could still be found guilty of aggravated assault if the jury finds that the defendant attempted to commit a violent injury or if the defendant performed an act which placed the victim in reasonable apprehension of immediately receiving a violent injury." Id. at 586 (2), 713 S.E.2d 826. Bashir argues on appeal that his intent to commit a simple assault in one of these two ways was in question, requiring the simple assault language to be included within the aggravated assault charge. For the purpose of our plain error analysis we will assume that the trial court’s failure to include that language was clear or obvious error.

We do not agree with the state that Bashir invited the error by withdrawing his request for the charge in question. In Walker , supra, our Supreme Court held that where an appellant "explicitly withdrew his request for a [particular] instruction, [he] affirmatively waived any right to [the] charge and cannot show plain error in this regard[.]" 301 Ga. at 485 (2) (a), 801 S.E.2d 804.

But the record does not show that Bashir explicitly withdrew his request for a proper charge on aggravated assault. Bashir requested a simple assault charge twice, once as a part of the charge on aggravated assault and once as an adjunct to a charge on lesser-included offenses. He expressly withdrew only the latter.

As to the former, in a written request numbered "26," Bashir asked the trial court to charge the jury on "2.20.21 Assault, Aggravated (Weapon)." This referred to the pattern jury charge on aggravated assault, which included the necessary simple assault language. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases § 2.20.21.

As to the latter, in written requests numbered "21" and "27," Bashir asked the trial court to charge the jury, respectively, on ...