Fowler v. State

Carley, Chief Judge.

Appellant was tried before a jury and found guilty of two counts of aggravated assault. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts and from the denial of his motion for new trial.

1. Appellant enumerates the general grounds. Contrary to appellant’s contention, the victim’s “[a]wareness is not an essential element of the crime of aggravated assault. [Cit.]” Sutton v. State, 245 Ga. 192, 193 (1) (264 SE2d 184) (1980). Accordingly, the trial court did not err by refusing to direct a verdict of acquittal on that ground. Stevens v. State, 176 Ga. App. 583, 584 (1) (336 SE2d 846) (1985). A rational trior of fact could reasonably have found from the evidence adduced at trial proof of appellant’s guilt of aggravated assault beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Sutton v. State, supra at 193 (3).

Decided April 16, 1990. William D. Hentz, for appellant. Stephen F. Lanier, District Attorney, for appellee.

2. Appellant enumerates as error the failure of the trial court to give a timely written request to charge on the use of force in defense of habitation.

The evidence is in conflict as to who first displayed a weapon. However, it is undisputed that appellant shot the victims while they were seated in a truck approximately 100 feet from the porch of his mother’s home. The trial court charged the jury on the defense of justification and on the use of force to prevent a violent felony. As there is no evidence that either of the victims was attempting an unlawful entry into the home in a violent or tumultuous manner, the trial court did not err in refusing to give the additional instruction on defense of habitation. Harvard v. State, 162 Ga. App. 218, 219 (3) (290 SE2d 202) (1982). Compare Fannin v. State, 165 Ga. App. 24 (299 SE2d 72) (1983).

Judgments affirmed.

McMurray, P. J., and Sognier, J., concur.