Brooks v. State

369 Ga.App. 450

892 S.E.2d 400

BROOKS v. The STATE.

A23A1119

Court of Appeals of Georgia.

September 1, 2023

Review Denied October 16, 2023

Adam Marshall Hames, Atlanta, for Appellant.

Chris Allen Arnt, Benjamin Bruce Kenemer, John Scott Helton, Clayton McLean Fuller, Herbert McIntosh Poston Jr., Mark Patrick Higgins Jr., Dalton, for Appellee.

McFadden, Presiding Judge.

After a jury trial, Robin Brooks was convicted of criminal attempt to commit murder; two counts of aggravated assault, family violence; aggravated assault; aggravated battery; and two counts of possession of a firearm during the commission of a felony.

Brooks appeals the denial of her motion for new trial.

She argues that the trial court erred by limiting its jury instruction on the lesser-included offense of reckless conduct to only one of the three counts of aggravated assault. We agree that the court erred, but hold that the error affects only the single aggravated assault conviction that was not merged into another conviction. She argues that she received the ineffective assistance of counsel. But she has failed to show both deficient performance and prejudice. She argues that the trial court should have merged three of her convictions into other convictions. We hold that as for two of them, she was properly sentenced. As for the third, we reverse that conviction for the jury instruction error, and so do not reach the alleged sentencing error.

So we reverse the aggravated assault, family violence conviction entered on Count 3 of the indictment. We affirm the remainder of the convictions and the sentence.

1. Facts and procedural posture.

"Because in this case we must consider whether the trial court's error was harmful and therefore requires reversal, we review the evidence in some detail and not only in the light most favorable to the jury's verdicts." McIver v. State , 314 Ga. 109, 110 (1) n. 3, 875 S.E.2d 810 (2022). The evidence presented at trial showed that Brooks and her husband were physically and verbally abusive toward each other. ¹ In August 2020, Brooks obtained a temporary protective order (which remained in effect at the time of this incident), and by agreement, the husband moved out of their house.

The Brookses began divorce proceedings in September 2020. The primary issues of contention were who would retain possession of their house and who would have custody of their daughter.

On the evening of November 13, 2020, the husband and Brooks were arguing via text messages about child custody and the division of property, when Brooks told the husband to come get the child. The husband believed that under the terms of the temporary protective order he needed a third party to be present, so he had a neighbor accompany him when he drove to the house to pick up his daughter. The husband stopped his car on the street in front of the mailbox.

The daughter heard her father's car. When she looked out the window, she saw two people in the car, in which the interior lights were illuminated. Brooks exited the house and walked down the driveway toward the car, holding her phone, a cup, and a handgun, which had a chambered round. She appeared to be intoxicated.

When the husband saw the handgun in Brooks's hand, he attempted to speed off in his car. As the car was driving away, Brooks shot the handgun toward the driver's side of the car. A bullet passed through the rear, driver's side window; traveled through the passenger compartment; and entered the left temple of the passenger, the neighbor who had accompanied the husband. The neighbor was seriously injured.

Brooks testified in her own defense. She testified that she heard her husband's car drive up so she went outside, carrying her phone, her gun, and a protein shake. She remained on her porch and asked the husband through the open car window what was he doing coming to the house. The husband yelled back. To avoid disturbing the neighbors, Brooks began walking down the driveway toward the car, telling the husband that he needed to leave.

When she was three-quarters of the way down the driveway, the light came on in her husband's car because he was opening the car door. She was afraid because the husband often carries a firearm, although she did not see one that night. As she turned to run back to the house with her finger on the gun's trigger, the gun discharged.

2. Jury instruction.

Brooks argues that the trial court erred by refusing to charge the jury on reckless conduct as a lesser-included offense of all three aggravated assault counts and instead charging it as to only one of them. We agree that the court erred in its charge.

Three counts of the indictment charged Brooks with aggravated assault. Count 2 charged Brooks with aggravated assault, family violence, alleging that she "did attempt to commit a violent injury to the person of another, to wit: [the husband], a spouse of the accused, and a person formerly living in the same household as the accused, with a handgun, a deadly weapon, by firing said handgun toward such person ...." Count 3 charged Brooks with aggravated assault, family violence, alleging that she "did intentionally commit an act which placed another, to wit; [the husband], the spouse of the accused, and a person formerly living in the same household as the accused, in reasonable apprehension of immediately receiving a violent injury, when she fired a handgun, a deadly weapon, toward him ...." Count 5 charged Brooks with aggravated assault, alleging that she "did intentionally commit an act which placed another, to wit; [the neighbor], in reasonable apprehension of immediately receiving a violent injury, when she fired a handgun, a deadly weapon, toward him ...."

Brooks was convicted on all three of those aggravated assault counts. But the trial court correctly charged on the lesser included offense as to one of those counts. Another count merged with a different offense. We reverse as to the third. The trial court merged the conviction on Count 2, aggravated assault, family violence into the criminal attempt to commit murder conviction. And moreover the trial court did charge reckless conduct on Count 2. The court also merged the conviction on Count 5, aggravated assault against the neighbor, into the aggravated battery conviction. So we address the jury charge issue only as it pertains to the conviction on Count 3 aggravated assault, family violence, which was not merged. See McCluskey v. State , 307 Ga. 740, 745 (2), 838 S.E.2d 270 (2020) (holding that trial court's alleged error in failing to charge reckless conduct as a lesser-included offense of aggravated assault was moot because aggravated assault count of the indictment merged with the malice murder conviction).

We now turn to the merits of the argument. "A written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.... Whether the evidence warranted the requested instruction is a legal question that we review de novo." Wilson v. State , 315 Ga. 728, 736 (6), 883 S.E.2d 802 (2023) (citation and punctuation omitted). We hold that there is at least slight evidence that warranted the requested instruction.

A person commits reckless conduct when he "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." OCGA § 16-5-60 (b).... [I]n some cases [it] may be a lesser included offense of aggravated assault.

Prince v. State , 306 Ga. App. 604, 605-606 (2), 702 S.E.2d 785 (2010) (citation and punctuation omitted).

As detailed above, Count 3 alleged that Brooks "intentionally commit[ed] an act which placed ... the spouse of the accused, and a person formerly living in the same household as the accused, in reasonable apprehension of immediately receiving a violent injury, when she fired a handgun, a deadly weapon, toward him ...." See OCGA §§ 16-5-20 (a) (2) ("A person commits the offense of simple assault when he or she ... [c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury."); 16-5-21 (a) (2) ("A person commits the offense of aggravated assault when he or she assaults ... [w]ith a deadly weapon ...."); 16-5-21 (i) ("If the offense ... is committed between past or present spouses, persons who are parents of the same child, ... or other persons ... living or formerly living in the same household, the defendant shall be punished by imprisonment for not less than three nor more than 20 years."). Reckless conduct can be a lesser-included offense of that kind aggravated assault if a factual predicate reasonably raises it. Cain v. State , 288 Ga. App. 535, 537 (2), 654 S.E.2d 456 (2007).

And here, Brooks's testimony — that she carried a gun with a chambered round and her finger on the trigger as she walked toward the husband's car while they were yelling at each other, and that the gun discharged as she turned to run with her finger still on the trigger — reasonably raised reckless conduct. See Reed v. State , 279 Ga. 81, 86 (7), 610 S.E.2d 35 (2005), disapproved in part on other grounds at McIver , 314 Ga. at 135 (2) (f), 875 S.E.2d 810 (evidence showed reckless conduct when defendant drove car while his finger was "undisputedly inside the trigger guard" of loaded revolver in close proximity to his intoxicated girlfriend).

The state argues that Georgia courts have repeatedly held that a reckless conduct charge is not warranted for an aggravated assault committed by placing another in reasonable fear of injury. It cites five cases: Dunagan v. State , 269 Ga. 590, 502 S.E.2d 726 (1998) ; Patterson v. State, 332 Ga. App. 221, 770 S.E.2d 62 (2015) ; Craft...