Moore v. State

• Decision Date: 05 July 2007
• Docket Number: No. A07A0472.,A07A0472.
• Parties: MOORE v. The STATE.
• Court: Georgia Court of Appeals

286 Ga. App. 313

649 S.E.2d 337

MOORE v. The STATE.

No. A07A0472.

Court of Appeals of Georgia.

July 5, 2007.

Althea L. Buafo, Macon, for appellant.

Richard G. Milam, District Attorney, Rita B. Lewis, Assistant District Attorney, for appellee.

ELLINGTON, Judge.

A Butts County jury found Richard Moore guilty beyond a reasonable doubt of involuntary manslaughter, OCGA § 16-5-3(a); aggravated assault, OCGA § 16-5-21(a)(2); possession of a firearm during the commission of a felony, OCGA § 16-11-106(b)(1); and carrying a pistol without a license, OCGA § 16-11-128.¹ He appeals from the denial of his motion for new trial, contending there was insufficient evidence to support the aggravated assault conviction and that the trial court should have vacated his possession of a firearm conviction. Moore also argues that the trial court improperly commented on the evidence, admitted similar transaction evidence, and charged the jury. As explained below, we find that Moore's firearm conviction under OCGA § 16-11-106 must be vacated. Moore's remaining enumerations of error present no basis for reversing his convictions, however, so his other convictions are affirmed.

Viewed in favor of the jury's verdict,² the evidence showed the following relevant facts. At about 1:30 a.m. on the morning of May 29, 2005, eighteen-year-old Moore went to a party, accompanied by two other teenagers, the victim and a mutual friend, Melissa Black. Moore pulled his car into the driveway, got out of his car, and stood on the driver's side; the victim and Black stood near the door on the passenger's side. Several people from the party walked over to Moore's car and stood on the passenger's side, talking to the victim and Black. A few minutes later, Moore called the victim a "smart ass." In response, the victim flicked a lit cigarette toward Moore. The cigarette went through the car's sun roof and landed on the leather seat on the driver's side. Moore frantically grabbed the cigarette, then he pulled a .357 revolver out of his car, told the victim, "I'd shoot you over my car, don't do nothing like that," cocked the gun, and pointed it directly at the victim. After a moment, Moore uncocked the gun and put it back in the car under the driver's seat. Someone asked Moore if the gun was loaded, and Moore said yes. None of the eyewitnesses saw Moore unload the gun after that point.

The victim then said something like, "I thought you didn't pull out a gun unless you were planning on using it" or "I thought you never cocked it without firing it." Without responding, Moore grabbed the gun, cocked it, stretched his arm over the top of the car so that the gun was only about two feet from the victim, and pointed the gun at the victim. The weapon immediately discharged, and a bullet struck the victim in the chest. An eyewitness testified that he saw Moore pull the trigger and shoot the victim.

Bystanders called 911, and a responding police officer saw Moore sitting on the ground near his car, holding the victim's head. Moore and the victim were covered in blood. The officer asked who shot the victim, and Moore immediately responded that he did. Moore also told the officer that the gun was underneath the front seat of his car. A police officer handcuffed Moore and put him in the back of a patrol car. Emergency personnel who arrived shortly thereafter determined that the victim was dead.

Later, when officers removed Moore from the patrol car, they found five bullets for a .357 magnum revolver clustered in the seat where Moore had been sitting. The bullets had blood on them. An officer testified that the handgun that he retrieved from Moore's car had five empty chambers and one spent round in a chamber. There was also blood on the gun's handle, hammer, and cylinder. According to the officer, the position of the cylinder and the empty round in the chamber indicated that either the gun had been fired more than once or the cylinder had been opened after the gun had been fired.

Moore was arrested and taken to the Butts County jail. During a custodial interview, Moore admitted that he told the victim, "I'll shoot you," and pulled out the gun after the victim flicked the cigarette into his car, but he claimed that he and the victim were just joking around. He denied that he pointed the gun at the victim during the first incident, but admitted that he pointed the gun at the victim during the second incident, just before it discharged.

At trial, however, Moore admitted that he pointed the gun at the victim during the first incident. He also admitted that the reason he got the gun out of his car was because the victim had flicked a lit cigarette into his car. In addition, Moore testified that he knew the gun was loaded at that time because he had personally loaded the gun with copper-jacketed hollow point bullets sometime in the weeks prior to the shooting. According to Moore, after the first incident, he put the gun back in his car, but a bystander asked to look at the gun, so he (Moore) picked up the gun to show it to the bystander. Moore testified that he unloaded and cocked the gun before holding it out to show the bystander. Moore admitted that he grasped the handle of the gun and held it like a weapon, as opposed to setting it down or holding it out on the palm of his hand. Moore testified that, as he stretched out his arm across the roof of the car to display the gun, he must have accidentally pulled the trigger because the gun went off, killing the victim.

The bystander referred to by Moore testified at trial, however, and denied that he ever asked Moore to show him the gun and also denied that Moore had ever held out the gun so he could see it. Other eyewitnesses also testified that no one asked to see the gun before Moore pulled it out the second time.

In addition to this evidence, the State introduced evidence of a similar transaction that occurred two days before Moore shot the victim. Two teenaged girls testified that they were parked at a McDonald's restaurant when Moore parked alongside them and called them over to his car. One of the girls was wearing a t-shirt that said, "I Have Issues." Moore told her, "I hate people that have issues," and he pointed a handgun at the girl's chest. According to the witnesses, Moore had a serious look on his face, but then he smirked and laughed about it and claimed that the gun was just a water gun. Both witnesses testified, however, that the gun did not look like a water gun. Further, the girl testified that she was frightened by the incident.

1. Moore contends that the evidence was insufficient for the jury to have found him guilty of aggravated assault as alleged in Count 3 of the indictment. When a criminal defendant challenges the sufficiency of the evidence supporting his or her 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." (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The jury, not this Court, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from the evidence. Id. "As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld." (Citation and punctuation omitted.) Miller v. State, 273 Ga. 831, 832, 546 S.E.2d 524 (2001).

Under OCGA § 16-5-20(a)(2), an assault occurs when a person commits an act "which places another in reasonable apprehension of immediately receiving a violent injury." Under OCGA § 16-5-21(a)(2), a person commits aggravated assault when he or she assaults someone with a deadly weapon. In this case, Count 3 of the indictment charged that Moore committed aggravated assault by pointing a revolver, a deadly weapon, at the victim. The charge was based upon the first time Moore pointed the gun at the victim.

According to Moore, the evidence showed that, during the first incident, he and the victim were merely "joking around." Therefore, Moore argues that there was no evidence to prove that the victim was in reasonable apprehension of immediately receiving a violent injury. We disagree.

The Supreme Court of Georgia has held that "[r]easonable apprehension of injury is not the same as simple fear, and the fact that the victim does not necessarily experience fear does not preclude a finding of reasonable apprehension." (Citations and punctuation omitted.) Bates v. State, 275 Ga. 862, 865(4), 572 S.E.2d 550 (2002). "The Supreme Court, as well as [this] Court, seems to have interpreted the statute to require not that the victim have a reasonable fear of immediately receiving a violent injury but rather that the victim have a reasonable perception that he is about to receive a violent injury." (Emphasis in original.) Lemming v. State, 272 Ga.App. 122, 124-125(1), 612 S.E.2d 495 (2005). In addition, this Court has repeatedly found that the presence of a deadly weapon "would normally place a victim in reasonable apprehension of being injured violently." (Punctuation and footnote omitted.) Jackson v. State, 251 Ga.App. 578, 579(1), 554 S.E.2d 768 (2001) (evidence was sufficient to show the victims experienced a reasonable apprehension of receiving a violent injury when the defendant pointed a gun at them, even though only one of the three victims testified that he was afraid).³ Moreover, a jury could find that a victim experienced a reasonable apprehension of receiving a violent injury when confronted by a loaded gun, even when the victim affirmatively testified that he was not afraid⁴ or the evidence showed that the victim exhibited bravado, not fear, when confronted.⁵

In this case, Moore admitted that, moments after the victim flicked a lit cigarette onto the leather seat of his (Mo...