Smith v. State

• Decision Date: 11 February 2022
• Docket Number: A21A1483
• Parties: SMITH v. The STATE.
• Court: Georgia Court of Appeals

362 Ga.App. 610

869 S.E.2d 554

SMITH

v.The STATE.

A21A1483

Court of Appeals of Georgia.

February 11, 2022

Rex Barron Abernathy, for Appellant.

Leigh Ellen Patterson, District Attorney, Rome, Leah Cristina Mayo, Assistant District Attorney, for Appellee.

Reese, Judge.

A jury found Bristol Smith guilty of two counts of aggravated assault and one count of aggravated battery.¹ On appeal, Smith argues that: (1) the trial court plainly erred in failing to instruct the jury on self-defense or justification; (2) the trial court plainly erred in giving an incomplete jury instruction on aggravated assault with a deadly weapon; and (3) trial counsel provided ineffective assistance. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury's verdict,² the record shows the following. Smith, Abby Shetter, and M. M. lived in the same neighborhood and went to the same high school. M. M. had been friends with Smith, but ended that friendship after an incident involving all three individuals in the high school parking lot. M. M. testified that Smith had pulled up next to M. M.’s car with Shetter in the passenger seat. M. M. and Shetter started yelling at each other, and Shetter punched M. M. in the face. M. M. felt humiliated by this incident and ultimately changed high schools. Smith texted M. M. to apologize for his role in the incident, and M. M. responded that she no longer wanted him to message her and wanted him out of her life. M. M. testified that Smith was interested in her romantically, but when she did not return those feelings, Smith became aggressive and mean.

In July 2018, M. M. received text messages from an unknown number that she thought was Shetter. Shetter wanted to fight M. M. M. M. consulted her parents, Mr. and Mrs. Minter, and they recommended that M. M. come home, and for Shetter to meet her at their house. M. M. waited for Shetter at the Minter residence. Smith dropped off Shetter about two houses down, and Smith drove off.

Mrs. Minter called the police when she saw Smith's car to try and stop the situation before it escalated any further. Meanwhile, Shetter walked toward the Minters’ yard while yelling at M. M. Shetter then hit M. M., and a fight ensued. Mrs. Minter tried to break up the fight after getting off the phone with the police.

At that point, Smith returned in his vehicle, and Mrs. Minter stepped into the road and yelled at Smith to leave. Mr. Minter told his wife to get out of the road and moved toward her. Smith then sped up, swerved into the opposing lane, and hit Mr. Minter with the car. Mrs. Minter managed to avoid the vehicle. As Smith passed Mr. Minter, Smith said "[y]ou stupid mother[fucker,]" and drove away. Mr. Minter suffered a "fairly large rotator cuff tear

[,]" which required surgery, and was not able to recover full use of his arm for seven months.

After Smith struck Mr. Minter with the vehicle, Smith returned to the Minter residence, this time with his father, Shawn Smith. Shawn Smith started yelling at Mr. Minter. The Minters showed Shawn Smith the text messages Smith had sent M. M. following the parking lot incident. Shawn Smith calmed down, chastised Smith, then got in the car and left.

Smith testified to a different version of events at trial. According to Smith, he was giving Shetter a ride home and was unaware that she had been texting M. M. Smith let Shetter out of the car a few houses down from the Minter residence because she said she wanted to walk the rest of the way home. On his way back to his house, Smith noticed that Shetter had left her pocketbook in the car, and returned to give it to her. Upon arriving at the Minter residence, he noticed a conflict, and Mrs. Minter started yelling at him from the middle of the road. He then heard Mrs. Minter tell her husband, "Tim, no," as Mr. Minter jumped in the car and punched Smith in the face. Smith testified that he sped off, "fearing for [his] life." At the time, he did not notice the damage to his car, or that Mr. Minter had made contact with it. He denied cursing at the Minters as he drove off. On cross-examination, Smith acknowledged that he had told the police officers at the scene that Shetter was never in his car, because he was scared of being arrested. He did tell the officers, however, that Mr. Minter had punched him.

The jury found Smith guilty of all counts. The trial court denied his motion for new trial after a hearing, and this appeal followed.

Because Smith did not object to the complained-of jury instructions at trial, we review only for plain error.³ "[U]nless clearly erroneous, this Court will uphold a trial court's factual determinations with respect to claims of ineffective assistance of counsel; however, a trial court's legal conclusions in this regard are reviewed de novo."⁴ With these guiding principles in mind, we now turn to Smith's claims of error.

1. Smith argues that the trial court erred in failing to instruct the jury on self-defense or justification.

At trial, defense counsel requested "standard" jury charges. The court asked whether defense counsel wanted a jury charge for self-defense, and defense counsel responded, "I would, if the Court's requesting it." The trial court declined to issue this jury charge because it "really didn't hear any evidence of self-defense[.]" At the end of the jury charge, defense counsel stated that he had no objections.

"A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other's imminent use of unlawful force[.]"⁵ "[I]n asserting an affirmative defense, a defendant may accept certain facts as true for the sake of argument, and the defendant may do so for the limited purpose of raising the specific affirmative defense at issue."⁶ "To authorize a requested jury instruction, there need only be slight evidence supporting the theory of the charge."⁷ However, "[i]t is not error to refuse a justification charge where there is no evidence to support it."⁸

At trial, Smith testified that "[a]ll of [a] sudden I get hit in my face, and I take off, because my glasses were in the passenger's seat, and I was just fearing for my life. I didn't know what he was going to do." The defense's theory of the case was that Mr. Minter caused his own injuries and the damage to the car (which was on the driver's side door) by "diving" into the vehicle and punching Smith. Smith did not testify that he intentionally threatened or used force in an attempt to defend himself, and there was no other evidence supporting a theory of self-defense.⁹ Accordingly, the trial court did not err, plainly or otherwise, in declining to give this jury instruction.¹⁰

2. Smith argues that the trial court erred in giving an incomplete jury instruction regarding the aggravated assault with a deadly weapon charge. Specifically, he contends that the trial court omitted the instruction for simple assault, and failed to include a complete instruction as to whether the vehicle was a deadly weapon.

A trial court's instruction for aggravated assault must include the essential elements of assault as well.¹¹ Under OCGA § 16-5-20 (a), a person commits assault when he "[a]ttempts to commit a violent injury to the person of another[ ]" or "[c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury." Here, the trial court's jury instruction included this definition, instructing the jury:

A person commits the offense of aggravated assault when that person assaults another person with any object, device, or instrument that, when used offensively against a person, is likely to or actually does result in serious bodily injury.

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 attempted to cause a violent injury to the alleged victim or intentionally committed an act that placed the alleged victim in reasonable fear of immediately receiving a violent injury.¹²

We have held that a similar jury instruction included the essential elements of simple assault.¹³ Accordingly, the trial court did not err, plainly or otherwise, in giving this instruction.

With respect to whether Smith's car was a deadly weapon, he contends that the trial court should have included the following instruction: "automobiles, if and when used in making an assault upon another person, are not deadly weapons per se but may or may not be deadly weapons, depending upon the manner in which they are used and the circumstances of the case." At trial, the court instructed:

The State must also prove as a material element of aggravated assault as alleged in this case that the assault was made with an object, device, or instrument that, when used offensively against a person, is likely to or actually does result in serious bodily injury.

Whether or not, under all of the facts and circumstances of this case, the motor vehicle alleged in this Bill of Indictment to have been used in making an assault upon the alleged victim did, in fact, constitute an object likely to cause serious bodily injury, is a matter to be decided by the jury from all of the evidence in the case.

You may or may not infer the serious injury-producing character of the instrument in question from the nature and extent of the injury, if any, inflicted upon the person allegedly attacked.¹⁴

Under OCGA § 16-5-21 (a) (2), a person commits aggravated assault when he assaults "[w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury[.]" Here, the trial court's instruction "substantially covered the principle that the jury should consider the manner and means of the object's use."¹⁵ Moreover, "when considered as a whole, the...