Tremblay v. State

329 Ga.App. 139

764 S.E.2d 163

TREMBLAY

v.The STATE.

No. A14A1175.

Court of Appeals of Georgia.

Sept. 24, 2014.

Sharon Lee Hopkins, Duluth, for Appellant.

Daniel J. Porter, Dist. Atty., Wesley Charles Ross, Asst. Dist. Atty., for Appellee.

Opinion

BARNES, Presiding Judge.

A jury found Jahaziel Tremblay guilty of aggravated assault, and the trial court denied his motion for new trial. On appeal, Tremblay contends that the evidence was insufficient to support his conviction, the trial court erred by charging the jury that a defendant claiming justification must show that he did not act in a “spirit of revenge,” and his trial counsel rendered ineffective assistance. For the reasons discussed below, we affirm.

Following a criminal conviction, we view the evidence in the light most favorable to the jury's verdict. See Flemister v. State, 317 Ga.App. 749, 732 S.E.2d 810 (2012). So viewed, the evidence showed that on the night of July 26, 2011, a group of North Gwinnett High School students, including the victim, were at a party in the Wild Timber subdivision. Tremblay, who was older and no longer in high school, came to the party with some of his friends and got into a heated argument with one of the students. Tremblay and the student went outside as they continued their argument and many other party goers, including the victim, followed them. The street where the party was taking place dead-ended into the parking lot for the subdivision's clubhouse, and the group walked down the street in that direction as Tremblay and the student continued to argue. Near the parking lot, the student began punching Tremblay. Tremblay did not fight back and after he was struck several times by the student, he got in his car and drove off.

Around midnight, Tremblay drove back to the subdivision with two friends and parked in the clubhouse parking lot. The victim, who was still hanging out with several other students, saw the car approach and walked down to the parking lot to see who had just arrived to join the party. As the victim approached the car, he realized that it was Tremblay and stopped. The victim, who has witnessed the prior altercation but had not participated in it, expected Tremblay to ask him to go find the student who had punched him. Instead, Tremblay walked up to the victim and struck him several times in the head with a hard object. The victim fell to the ground but then got up and ran into the woods as Tremblay began to chase him. Tremblay ultimately returned to his car with his two friends and drove off when a parent in the neighborhood came outside and shouted that she was calling the police and they needed to leave. The victim was taken to the hospital and received seven staples in the back of his head.

The next day, a police officer met with the victim, who identified Tremblay as his assailant and told the officer that he believed he had been struck with “something like a tire iron.” The officer accompanied the victim to the parking lot where the attack had occurred and found the victim's hat, his broken cell phone, and a metal bar “all in the same area” of the woods. The officer noted that the metal bar was approximately 18–20 inches long with a 90 degree bend at the end, and at night could have easily been mistaken for a tire iron. The officer also noted that the metal bar had a tip on it that was consistent with the shape of the wound on the victim's head.

Tremblay was arrested and indicted on one count of aggravated assault. At the ensuing jury trial, the victim and the police officer who interviewed him the day after the attack testified to the events as summarized above, and the State introduced into evidence the metal bar found in the woods after the attack.

Among other witnesses, the State also called one of Tremblay's two friends who had returned with him to the clubhouse parking lot on the night of the attack. The friend testified that when he met up with Tremblay at his house that night after the student had punched him, Tremblay had been extremely angry and wanted to return to confront the student. According to the friend, when they subsequently returned to the subdivision and the victim approached them in the parking lot, Tremblay pulled the metal bar out of his car and struck the victim with it when the victim questioned why they were returning to the party. The friend further testified that the victim “might have said something smart” but had not been armed, had not attacked or otherwise been physically aggressive toward Tremblay, and, in fact, had only been wearing a bathing suit and a hat.

Tremblay elected not to testify in his own defense. He did call as a defense witness his other friend who had returned with him to the subdivision that night. The friend testified that he had not been “paying attention” and thus had not seen Tremblay hit the victim, but he had seen the victim fall to the ground after being hit. When asked if the victim had been “threatening or loud” when he approached them in the parking lot, the friend said that the victim had simply had an “attitude.”

After hearing all of the testimony, the jury found Tremblay guilty of the charged offense. Tremblay filed a motion for new trial, and then an amended motion after he was appointed new counsel. Following a hearing, the trial court denied Tremblay's amended motion for new trial, resulting in this appeal.

1. Tremblay contends that there was insufficient evidence to convict him of aggravated assault. When evaluating the sufficiency of the evidence, “[w]e neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citations and punctuation omitted.) Sidner v. State, 304 Ga.App. 373, 374, 696 S.E.2d 398 (2010). Applying this standard to the record in this case, we conclude that Tremblay's challenge to the sufficiency of the evidence is without merit.

“A person may be found guilty of aggravated assault if the State proves (1) an assault and (2) aggravation by use of any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” (Citations and punctuation omitted.) Myrick v. State, 325 Ga.App. 607, 608(1), 754 S.E.2d 395 (2014). See OCGA § 16–5–21(b)(2). The State may prove an assault by showing that the defendant “[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.” OCGA § 16–5–20(a). The indictment in the present case alleged that Tremblay committed aggravated assault by hitting the victim in the head with “a piece of metal, which, when used offensively against another person is likely to result in serious bodily injury.”

The...