CRIMINAL PRACTICE: Aggravated Assault, Jury Charges; EVIDENCE: Similar Transaction, Relevance
Alert: Evidence that defendant had previously threatened two people with a handgun because he was angry at them was sufficiently similar to his shooting the victim and showed his propensity to settle disputes with a gun.
Subject Matter Index: Convictions for aggravated assault, battery, false imprisonment and impersonating an officer affirmed; court properly admitted evidence that defendant previously threatened others with a gun as it was sufficiently similar to his shooting the victim and showed his propensity to settle disputes with a gun; court's exclusion of nolle prosse order on previous incident was harmless as witness testified that charges were dropped; witness's testimony regarding victim's dogs was irrelevant since it did not show defendant was afraid of the dogs; similar transaction, voluntary intoxication and aggravated assault instructions were proper; defendant could not complain of court's erroneous charge on justification which he requested.
Headnote: The Court of Appeals affirmed Ted Lamar Griffin's convictions for aggravated assault, battery, false imprisonment and impersonating an officer, holding that the trial court properly admitted evidence that Griffin previously threatened two people with a handgun since each incident showed his temper and propensity to settle disputes with a gun and were sufficiently similar to his shooting the victim. Next, the Court held that any error in the trial court's exclusion of a nolle prosse order on one of the similar incidents was harmless since a witness testified that the charges were dropped. Additionally, the trial court properly excluded irrelevant rebuttal testimony involving the victim's dogs in one of the incidents, since the witness could not say that Griffin was afraid of the dogs. The Court also approved the trial court's jury instructions on voluntary intoxication, aggravated assault and the use of similar transaction evidence. Although the trial court erred in instructing the jury to consider Griffin's justification defense in light of his knowledge of the victim's violent acts, the Court held that Griffin was not entitled to reversal since he requested the charge. Finally, the Court held that the evidence was sufficient for the jury to find that Griffin was not acting in self-defense when he shot the victim in the leg, handcuffed him and beat him in the head with a pistol.
Text: Eldridge, Frank M., JudgeA Clayton County jury found Ted Lamar Griffin guilty of aggravated assault, battery, false imprisonment, and impersonating an officer. The charges arose when Griffin, out of anger, shot Raul Molina in the leg, then handcuffed him and beat him in the head with a pistol. Griffin appeals, raising eleven enumerations of error. Because each of Griffin's enumerated errors lacks merit, we affirm his conviction.
1. Griffin first contends that, between his own testimony alleging self-defense and other evidence offered by the defense, a rational trier of fact could not have believed the testimony of the victim so as to find Griffin guilty of aggravated assault. This contention, however, goes to the issue of credibility and the weight to be given the testimony of the victim. This is an issue within the jury's exclusive province. Norris v. State, 258 Ga. 889, 890 (1) (376 SE2d 653) (1989). "Our role is limited to evaluating the sufficiency of the evidence, not reweighing it." Jones v. State, 232 Ga. App. 630 (502 SE2d 557) (1998). The victim's testimony supplied the essential elements of the offenses and was corroborated by six other witnesses. Any contradictory evidence was rejected by the jury, as reflected by its verdict. Accordingly, Griffin's challenge to the sufficiency of the evidence fails. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Browning v. State, 236 Ga. App. 893 (1) (513 SE2d 779) (1999).
2. Following a Williams1 hearing, the trial court permitted the State to introduce two similar transactions. In his second enumeration of error, Griffin challenges that ruling and claims the independent acts were not sufficiently similar to the indicted act to warrant admission. The record shows that, in the first independent act, Griffin was angry with James Moore for permitting Moore's dogs to get loose. Griffin obtained a handgun, went to Moore's house, and threatened to shoot the occupants with the gun. In the second independent act, Griffin was angry with William Apple for the way in which Apple was managing their mutual business, a barbecue restaurant. Griffin obtained a handgun, went to the restaurant, and threatened to shoot Apple with the gun.
In the case-in-chief, Griffin was angry with Raul Molina for the way in which Molina was treating Jamie Molina, Raul Molina's ex-wife and Griffin's girlfriend. Griffin obtained a handgun, went to Jamie Molina's apartment to wait for Raul Molina to pick up his daughter for visitation, and then shot Raul Molina with the gun. All three incidents occurred in broad daylight with witnesses present. All three incidents occurred without immediate provocation, when the victims were not expecting an attack. All three incidents resulted from Griffin's anger.
We find that the independent acts were of sufficient similarity to the crimes charged so that the court did not err in admitting evidence of them for the limited purpose of showing a course of conduct by Griffin. Each incident showed Griffin's temper and his propensity to settle his disputes with a gun. See Willis v. State, 214 Ga. App. 479, 480 (3) (a) (448 SE2d 223) (1994). In addition, "[s]ince appellant claimed self-defense, evidence of previous unprovoked attacks was relevant to show malice, intent, motive, and bent of mind. [Cit.]" Farley v. State, 265 Ga. 622, 624 (458 SE2d 643) (1995).
3. (Enumerations of error Nos. 5 & 6) Griffin contends that the trial court erred in refusing to admit evidence to rebut the State's similar transactions. His contentions are meritless for the reasons that follow:
(a) Griffin proffered the testimony of his neighbor, Mr. Crable, who allegedly would provide evidence that Griffin's act of arming himself when dealing with James Moore's dogs was reasonable, because the dogs were vicious and placed Griffin in fear. Initially, the trial court let the evidence in as rebuttal to the extent that it showed Griffin's acts were reasonable. When called to the stand, however, Mr. Crable testified about his own perceptions of the dogs' viciousness and his own fear of the dogs. He could not provide any testimony about Griffin's fear of the dogs so as to bear upon the reasonableness of Griffin's actions. The trial court found that Crable's perception of the dogs was irrelevant and ruled out that testimony. Absent a manifest abuse of discretion, a trial court's refusal to admit evidence on grounds of lack of relevance will not be disturbed on appeal. Bevil v. State, 220 Ga. App. 1, 2 (4) (467 SE2d 586) (1996). We find no abuse of discretion here.
(b) Griffin contends that the trial court erred by refusing to permit the introduction of certified copies of two court documents which showed a nolle prosequi was ordered as to each similar transaction incident. However, the record shows the trial court permitted the introduction of the nol pros order on one of the similar transactions. As to the second similar transaction, any error in failing to admit the nol pros order was harmless: the victim of the similar transaction incident testified at trial that the charges against Griffin were dropped. "Because the document in question would have given the jury no information not already provided by other evidence concerning the incident, we find no error in the trial court's exclusion of it from evidence." James v. State, 270 Ga. 675, 678 (513 SE2d 207) (1999).
4. (Enumerations of error Nos. 3, 4, 9 & 11) Next, Griffin contends the trial court's final jury instructions contained several errors which require reversal. We disagree as follows:
(a) Griffin claims the trial court's limiting instruction as to the use of similar transaction evidence was insufficient pursuant to our decision in Rivers v. State, 236 Ga. App. 709 (513 SE2d 263) (1999). However, the error that caused reversal in Rivers was not duplicated here. The jury was not permitted to use the similar acts to show any "element of the offense charged in this indictment." (Emphasis omitted.) Rivers v. State, supra at 710. Here, the trial court twice limited the jury's consideration of the similar transaction evidence to the state of mind or course of conduct of the defendant and instructed the jury that "[s]uch evidence, if any, may not be considered by you for any other purpose." There was no error.
(b) Griffin contends the following charge was error because a defendant's knowledge of a victim's violent acts, offered as part of a justification defense, is not a relevant enquiry in a jury's consideration of such evidence:
Ladies and gentlemen of the jury, what a defendant reasonably believes may be viewed by the jury in the light of what the defendant knew as to the alleged victim's character for violence, that knowledge is relevant whether it was obtained by the defendant's experience with the alleged victim or by hearing of other specific acts of violence by the alleged victim that were not committed in his presence or by knowledge of the alleged victim's reputation for violence unconnected to any specific act. The alleged victim's violent acts against a third party, if any, are relevant in considering the defendant's claim of justification in this case.
We agree that a defendant need not have knowledge of a victim's violent acts and, to the extent the trial court charged the jury to the contrary, the charge was wrong. Marks v. State, 210 Ga. App. 281, 282-283 (1) (435 SE2d 703) (1993). But considering that the trial court gave the charge only because Griffin requested it, we find no reversible error. Taylor v. State, 195 Ga. App. 314, 316 (4) (393 SE2d 690) (1990).
(c) Griffin contends that the trial court erroneously instructed the jury on an unindicted form of aggravated assault. That is not so. The aggravated assault count of the indictment charged Griffin with "making an assault on the person of Raul Molina with a certain pistol, a deadly weapon." The trial court instructed the jury on the definition of "assault" and that a person commits aggravated assault when "that person assaults another person with a deadly weapon." There was no error.
(d) Also without error is the trial court's charge on voluntary intoxication. The off-duty police officer who initially detained Griffin testified that Griffin appeared to be inebriated at the time of the incident and that he could smell alcohol on Griffin's breath. "Where there is any evidence, however slight, upon a particular point, it is not error to charge the law in relation to that issue." (Citation and punctuation omitted.) Adams v. State, 193 Ga. App. 628 (388 SE2d 747) (1989).
5. (Enumeration of error No. 7) Griffin contends the trial court abused its discretion by denying his request to voir dire a juror who informed the court during trial that her step-daughter knew the co-defendant. However, following the trial court's denial of his voir dire request, Griffin did not object to the court's ruling, move for mistrial, or in any fashion attempt to preserve this issue for appellate review. Since he acquiesced in the trial court's ruling, this claim of error is waived. Sanders v. State, 181 Ga. App. 117, 120 (2) (351 SE2d 666) (1986).
6. (Enumeration of error No. 8) An indictment for aggravated assault that tracks the language of OCGA § 16-5-21 (a) (2) and alleges an accused made "an assault upon the person of (victim), with a handgun, a deadly weapon," is not subject to demurrer for failure to inform the accused of the charges against him. Wallace v. State, 216 Ga. App. 718, 719 (1) (455 SE2d 615) (1995). Griffin's contentions to the contrary are without merit.2
7. (Enumeration of error No. 10) Finally, Griffin alleges the trial court improperly restricted his cross-examination of the victim. However, as a factual basis for this contention, Griffin cites to a portion of the transcript where defense counsel was conducting a direct examination of a defense witness, and the trial court properly sustained an objection to an irrelevant question. Since the restriction to which Griffin directs our attention involved neither cross-examination nor the victim, there is no factual basis in the record for the legal arguments made. The error as enumerated is without merit.
Judgment affirmed. Blackburn, P.J., and Barnes, J., concur.
1Williams v. State, 261 Ga. 640, 642 (2) (409 SE2d 649) (1991).
2Griffin also contends that the indictment failed to allege the essential element of "intent." But this issue was not raised as a basis for the demurrer filed below and is waived. Sosebee v. State, 169 Ga. App. 370, 371-372 (5) (312 SE2d 853) (1983).
Trial Judge: Deborah C. Benefield, Clayton Superior Court.,
Attorneys: Brian Steel (The Steel Law Firm PC), Atlanta, for appellant. Robert E. Keller, District Attorney, and Staci L. Guest, Assistant District Attorney, Jonesboro, for appellee.,