Tiller v. State, A11A1616.

• Decision Date: 01 March 2012
• Docket Number: No. A11A1616.,A11A1616.
• Citation: 12 FCDR 406,314 Ga.App. 472,724 S.E.2d 397
• Parties: TILLER v. The STATE.
• Court: Georgia Court of Appeals

12 FCDR 406
314 Ga.App. 472
724 S.E.2d 397

TILLER
v.
The STATE.

No. A11A1616.

Court of Appeals of Georgia.

Feb. 1, 2012.Reconsideration Denied March 1, 2012.

[724 S.E.2d 398]

Jessica Irene Benjamin, for Tiller.

Layla Hinton Zon, Dist. Atty., Walter Cliff Howard, Asst. Dist. Atty., for appellee.

BOGGS, Judge.

[314 Ga.App. 472] Eldrick Tiller appeals from his convictions of aggravated assault, battery, and possession of a firearm by a convicted felon.¹ Tiller asserts that insufficient evidence supports his aggravated assault and battery convictions, that the trial court erred in its charge on [314 Ga.App. 473] battery, and that he received ineffective assistance of counsel. For the reasons explained below, we affirm.

On appeal from a criminal conviction, this court views the evidence in the light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence. Rankin v. State, 278 Ga. 704, 705, 606 S.E.2d 269 (2004); Bautista v. State, 305 Ga.App. 210(1), 699 S.E.2d 392 (2010). Rather, “this [c]ourt determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).” Rankin, supra.

So viewed, the record shows that Tiller confronted the victim in a convenience store because he believed the victim had “jumped” into a fight that had occurred one month earlier between Tiller's female cousin and another woman. The victim testified that Tiller “was mad” and asked him to “[c]ome outside.” The victim refused to go outside because he was worried about “getting jumped.” The victim waited inside the store for five to ten minutes until Tiller left the store and went to the right toward a barber shop.

The victim then exited the store and turned left toward a fast food restaurant. As the victim was walking, he heard a gunshot and started running. When he turned around, he saw that Tiller was shooting at him. He testified that Tiller fired three or four shots at him. The victim ran down a path through a wooded area to escape Tiller,

[724 S.E.2d 399]

but Tiller caught up with him when he emerged onto a street. The victim testified that Tiller hit him “[i]n the eye” with “[h]is hand” before he ran away again onto the path. The victim testified that his eye was swollen “[a] little bit” after being hit by Tiller.

A friend of Tiller who accompanied him to the convenience store testified that the victim started the altercation. He also testified that he did not remember whether Tiller had a gun that day or that he told a police detective that Tiller fired a gun. He admitted that he heard a gun fire several times after Tiller left the convenience store. In a recorded statement given to a police detective, the friend identified Tiller as the person who fired shots at the victim. During cross-examination, defense counsel established that the friend violated his probation by being present in Walton County at the time of the shooting and that he was afraid of being arrested for that violation when he was questioned by the police detective about the incident.

An eyewitness who worked in the drive-through window at the fast food restaurant testified that she saw Tiller pull a gun from his pants, extend his hand, fire it four or five times, and then run away. She did not see the person at whom Tiller was shooting. She called 911 and told the police that Tiller had fired the gun. During cross-examination, she admitted that her written statement to police [314 Ga.App. 474] did not identify Tiller by name. Instead, it stated that she saw “a young black male with a white t-shirt khaki short....”

1. We find no merit in Tiller's contention that insufficient evidence supports his aggravated assault conviction. Contrary to Tiller's summation of the evidence, the victim testified that he saw Tiller shooting at him. Any gaps and inconsistencies in the evidence, as well as any witness bias, were for the jury to consider and weigh. Moe v. State, 297 Ga.App. 270, 272(1), 676 S.E.2d 887 (2009). “Because [Tiller]'s arguments go to the weight, rather than to the sufficiency, of the evidence, he presents no basis for reversing his conviction[ ].” (Citation omitted.) Id.

2. Tiller contends that insufficient evidence supports his battery conviction because “the State failed to produce evidence of any visible bodily harm to [the victim].” OCGA § 16–5–23.1(a) provides: “A person commits the offense of battery when he or she intentionally causes substantial physical harm or visible bodily harm to another.” “Visible bodily harm” is defined as “bodily harm capable of being perceived by a person other than the victim and may include, but is not limited to, substantially blackened eyes, substantially swollen lips or other facial or body parts, or substantial bruises to body parts.” OCGA § 16–5–23.1(b).

In this case, the victim testified that his eye was swollen after Tiller hit him in the eye with his hand. We find this evidence sufficient to support his battery conviction. See Seritt v. State, 237 Ga.App. 665, 668(3)(c), 516 S.E.2d 366 (1999) (victim's account that defendant kicked him in face causing swollen lip sufficient to prove battery).

3. Tiller argues, and the State concedes,² that he is entitled to a new trial because the trial court charged the jury on a method of...