Banks v. State

329 Ga.App. 174

764 S.E.2d 187

BANKS

v.The STATE.

No. A14A1084.

Court of Appeals of Georgia.

Sept. 26, 2014.

Certiorari Denied Jan. 12, 2015.

G. Richard Stepp, for Appellant.

Daniel J. Porter, Dist. Atty., Christopher Michael Quinn, Asst. Dist. Atty., for Appellee.

Opinion

PHIPPS, Chief Judge.

Joshua Banks was indicted on charges of felony murder, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a felony. A jury found him guilty of involuntary manslaughter¹ as a lesser included offense of felony murder,² and guilty of the firearm possession charges.³ Banks appeals from the convictions and the denial of his motion for new trial, contending that the court erred by failing to include on the verdict form reckless conduct as a lesser included offense of felony murder. We affirm.

Viewed in the light most favorable to the verdict,⁴ the evidence showed the following. On January 18, 2010, Banks was with several people in the parking lot of an apartment complex. Banks displayed a handgun and “play [ed] with it.”⁵ He then fired the gun in the air, said “that's building 16,” and fired several shots into the building. One of the bullets entered a window of an apartment in that building, fatally striking thirteen-year-old T. S., who resided in the apartment.

In September 2010, police officers interviewed Banks about the shooting. After officers advised Banks of his Miranda rights, he admitted that on the night of the shooting, he had been drinking heavily and “just started shooting.” Banks claimed that what happened had been an accident, and that he had been reflecting on how he “had taken ... this boy's young life.”

In its charge, the court pertinently instructed the jury to consider whether mitigating circumstances would cause the felony murder charge to be reduced to involuntary manslaughter. The court then defined for the jury involuntary manslaughter, instructed that involuntary manslaughter would be predicated on the offense of reckless conduct, and defined reckless conduct. The verdict form submitted to the jury listed involuntary manslaughter as a lesser included offense of felony murder, but did not list reckless conduct as a lesser included offense.⁶

In his motion for new trial, Banks challenged, inter alia, the court's failure to include reckless conduct on the verdict form as a lesser included offense of felony murder. In its order denying the motion, the court stated that a separate reckless conduct option was not required to be on the verdict form because there was no evidence of reckless conduct other than that which directly related to the death of the victim; the reckless conduct charge “had to be in the context of involuntary manslaughter.”

1. Although Banks does not challenge on appeal the sufficiency of the evidence, a rational jury was authorized to find him guilty beyond a reasonable doubt of the crimes for which he was convicted.⁷

2. Banks contends that reversal is required because the trial court failed to include on the verdict form reckless conduct⁸ as a lesser included offense of felony murder. Assuming that Banks informed the court of this specific objection before the jury retired to deliberate,⁹ the contention is nonetheless without merit.

“If a death occurs as the result of reckless conduct, a defendant is guilty of involuntary manslaughter. Here, there was no evidence of [Banks's] allegedly reckless conduct other than that directly related to the death of the victim.”¹⁰ Thus, as the trial court stated, a charge on reckless conduct had to be in the context of involuntary manslaughter.¹¹ In this case, the verdict form was consistent with the jury charges and was properly adjusted to the evidence.¹² Accordingly, the court did not err by failing to include reckless conduct on the verdict form.¹³ We note that the cases relied upon by Banks are inapposite and do not support his position that the trial court must include on a verdict form reckless conduct as a lesser-included offense of felony murder.¹⁴

Judgment affirmed.

ELLINGTON, P.J., and McMILLIAN, J., concur.

1 OCGA § 16–5–3(a).

2 OCGA § 16–5–1(c).

3 OCGA §§ 16–11–131 ; 16–11–106.

4 See Van v. State, 294 Ga. 464, 465(1), 754 S.E.2d 355 (2014).

5 The state introduced evidence showing that Banks previously had been convicted of a felony.

6 The verdict form showed:

COUNT ONE—FELONY MURDER

___ ... NOT GUILTY of Felony Murder.

OR

___ ... GUILTY of Felony Murder.

OR

___ ... GUILTY of the lesser included offense of Involuntary Manslaughter.

7 See OCGA § 16–5–3(a) (“A person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony”; this offense is punishable by imprisonment of not less than one year nor more than ten years (i.e., a felony (OCGA § 16–1–3 ))); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; Roscoe v. State, 288 Ga. 775(1), 707 S.E.2d 90 (2011) (possession of a firearm by a convicted felon); Hickson v. State, 308 Ga.App. 50, 51(1), 706 S.E.2d 670 (2011) (possession of a firearm during the commission of a felony); Snell v. State, 306 Ga.App. 651, 653(1), 703 S.E.2d 93 (2010) (involuntary manslaughter).

8 OCGA § 16–5–60 (“Reckless conduct ... (b) A person who causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation is guilty of a misdemeanor.”).

9 At trial, Banks argued that “reckless conduct” should be included on the verdict form as a lesser included offense of involuntary manslaughter. See Cheddersingh v. State, 290 Ga. 680, 682–683(2), n. 2, 724 S.E.2d 366 (2012) (stating that appellant had a duty to inform the trial court of the specific objection to the verdict form before the jury retired to deliberate; failure to object in accordance with OCGA § 17–8–58(a) “shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties”; further, treating preprinted verdict form as a portion of the jury instructions in determining whether there was error in jury instructions).

10 Simmons v. State, 266 Ga. 223, 229(7)(b), 466 S.E.2d 205 (1996) (citation omitted); Reed v. State, 238 Ga.App. 297, 298, 517 S.E.2d 824 (1999) ; see Snell, supra.

11 Simmons, supra; Snell, supra; Reed, supra.

12 See Reed, supra.

13 Reed, supra. See generally Arvinger v. State, 276 Ga.App. 127, 129(2), 622 S.E.2d 476 (2005) (verdict form was not required to remind jury of its alternatives as to lesser included offenses); McElroy v. State, 244 Ga.App. 500, 502(1)(b), 536 S.E.2d 188 (2000) (finding no error in the form of the verdict where the form did not include lesser included offenses; noting that appellant had cited no precedent which would have required the trial court to submit a special...