Craft v. the State.

• Decision Date: 03 October 2011
• Docket Number: No. A11A0162.,A11A0162.
• Citation: 710 S.E.2d 891,309 Ga.App. 698
• Parties: CRAFTv.THE STATE.
• Court: Georgia Court of Appeals

309 Ga.App. 698

710 S.E.2d 891

11 FCDR 1669

CRAFT

v.THE STATE.

No. A11A0162.

Court of Appeals of Georgia.

May 31, 2011.Certiorari Denied Oct. 3, 2011.

John Walter Donnelly, Athens, for appellant.Kenneth W. Mauldin, Dist. Atty., David T. Lock, Asst. Dist. Atty., for appellee.PHIPPS, Presiding Judge.

In connection with a shooting at an apartment complex, Eldreco Craft was convicted of aggravated assault, disorderly conduct, possession of a firearm by a convicted felon, criminal damage to property in the first degree, and possession of a firearm during the commission of a felony. He argues on appeal that the state violated Batson v. Kentucky ¹ during jury selection; the evidence was insufficient to support his aggravated assault conviction; a count of the indictment was defective; the judge improperly expressed an opinion during trial; the court improperly charged the jury; and he received ineffective assistance of counsel. Craft has shown that the court committed reversible error when it charged the jury on possession of a firearm during the commission of a felony, and thus we reverse Craft's conviction for that offense; because the evidence was sufficient to support that conviction, however, Craft may be retried.² There is no merit in Craft's remaining contentions, and accordingly we affirm his other convictions.

1. Craft argues that the trial court erred in denying his Batson challenge to one of the state's peremptory jury strikes.

The evaluation of a Batson challenge involves a three-step process: (1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven discriminatory intent.³

The findings of the trial court are entitled to great deference, and should not be disturbed unless clearly erroneous.⁴

The court found that Craft had made a prima facie showing of racial discrimination because the state used six of eight peremptory strikes against prospective jurors who were members of racial minority groups. After the state offered explanations for the strikes, the court reinstated one juror (the alternate) but allowed the other five strikes to stand, ruling that the state's proffered explanations for those five strikes were race-neutral and that Craft had failed to show discriminatory intent.

Craft challenges the court's ruling regarding one of the five permitted strikes. The state's explanation for striking the prospective juror was that he had been “slumped down in his chair” during voir dire and “seemed disinterested in what was going on.” This was a race-neutral explanation for exercising the strike.⁵

Craft questions whether the prospective juror was in fact disinterested and notes that the court failed to make a specific finding on this point. But the court was not required to make a finding on the juror's actual disinterest; it was required to determine, considering the totality of the circumstances, whether Craft had shown that the state was motivated by discriminatory intent in the exercise of the strike.⁶ Under the circumstances, we cannot conclude that the court's Batson ruling was clearly erroneous.⁷ There was not, for example, a showing that “similarly situated jurors of another race were not struck or that the [state's] race-neutral reason for [the] strike [was] so implausible or fantastic that it render[ed] the explanation pretextual.” ⁸ Nor was there any other ground shown that required a finding that the prosecutor had a discriminatory intent. That the court reinstated another juror, against whom the state used a peremptory strike for a different reason,⁹ does not demand a different result.¹⁰ George v. State,¹¹ cited by Craft, is inapposite; in that case, the record did not support the state's proffered explanations for several peremptory strikes.¹²

The trial court was authorized to find that Craft failed to carry his burden of showing purposeful discrimination.¹³ Consequently, the court did not clearly err in denying Craft's Batson motion.¹⁴

2. Craft was charged with aggravated assault against a specific resident of the apartment complex, into whose apartment a bullet had passed during the shooting. He argues that there was insufficient evidence to support his conviction for this offense. When an appellant challenges the sufficiency of the evidence to support the conviction, “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.” ¹⁵

So viewed, the evidence showed that on March 19, 2008, Craft, while standing outside an apartment complex amid a group of people, waved a gun in the air and then intentionally fired it several times toward an apartment building. A bullet entered an apartment through a window, passed through the living room, and lodged in a closet door. The apartment's resident and her children were in the living room at the time. The resident testified that she heard the sounds of bullets and breaking glass, that she and her children were on the floor of her apartment when the bullet came through the window, that she was “paranoid,” that she remained on the floor of her apartment for about ten minutes afterward, and that she crawled to her telephone to call for help and crawled to her door when assistance arrived.

A person commits an aggravated assault, among other ways, by assaulting another with a deadly weapon.¹⁶ A person commits an assault by, among other things, committing an act which places another in reasonable apprehension of immediately receiving a violent injury.¹⁷ The jury was authorized to find from the evidence that Craft intentionally committed an act that placed the apartment resident in reasonable apprehension of immediately receiving a violent injury.¹⁸ The evidence thus was sufficient to support his conviction for aggravated assault.¹⁹

3. The indictment charged Craft with possessing a firearm during the commission of the felony of criminal damage to property in the first degree. Craft argues that this count was defective because the felony alleged in the count could not serve as a predicate for the possession offense. He raised this argument to the trial court at the close of the state's case through a motion for directed verdict of acquittal on the charge of possession of a firearm during the commission of a felony. But a “motion for directed verdict of acquittal addresses the sufficiency of the evidence, not the sufficiency of the underlying indictment.” ²⁰ Because Craft moved for a directed verdict of acquittal, the issue presented for appellate review is the propriety of the court's denial of that motion, which issue “is determined, not by the sufficiency of the indictment, but by whether the evidence adduced at trial demanded a verdict of ‘not guilty,’ under the standard of Jackson v. Virginia.” ²¹

OCGA § 16–11–106 provides, in pertinent part, that a person commits a felony by having on or within arm's reach of his or her person a firearm during the commission of certain enumerated felonies.²² The indictment alleged that Craft violated OCGA § 16–11–106 by possessing a firearm while committing criminal damage to property in the first degree. Although the Code section does not specifically list criminal damage to property in the first degree as a predicate felony, it more generally enumerates as a predicate offense any crime which is a felony “against or involving the person of another.” ²³

A person commits the offense of criminal damage to property in the first degree when he or she, among other things, “[k]nowingly and without authority interferes with any property in a manner so as to endanger human life.” ²⁴ This statutory language contemplates that the defendant's actions create an actual risk of danger to a person.²⁵ Accordingly, the offense of criminal damage to property in the first degree “involves” a person, and thus may serve as a predicate for a conviction for possession of a firearm during the commission of a felony under OCGA § 16–11–106(b)(1). ²⁶ And the requirements of Jackson v. Virginia were met as to this conviction, because the evidence authorized the jury to find that Craft, while possessing a firearm, knowingly and without authority interfered with property in a manner endangering human life, by shooting at an inhabited apartment building.²⁷

4. Craft contends that the judge violated OCGA § 17–8–57, which provides: “It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” He does not claim that any specific statement made by the judge before the jury violated this Code section, but he asserts that throughout the trial the judge advised and assisted the state in various ways, including questioning witnesses and helping the state lay evidentiary foundations. Craft argues that, “[w]hen a trial court so blatantly helps the State admit inculpatory evidence through its own questioning of witnesses, and advice to the prosecutor, it not only intimates, but expresses an opinion that it supports the State's theory that the accused is guilty.”

Although the record shows that the judge asked numerous questions of witnesses during trial,

[i]t has long been a part of Georgia jurisprudence that a trial judge may propound questions to any witness for the purpose of developing fully the truth of the case, and the extent of such an examination is a matter for the trial court's discretion. The trial court's examination of a witness called by either side is not cause for a new trial unless the court, during its examination of the witness, expresses or intimates an opinion on the facts of the case or as to what has or...