                                FIFTH DIVISION
                               MCFADDEN, P. J.,
                            BRANCH and BETHEL, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                    October 18, 2017




In the Court of Appeals of Georgia
 A17A0819. SALAZAR-BALDERAS v. THE STATE.

      BETHEL, Judge.

      Salavador Salazar-Balderas appeals from the denial of his motion for a new

trial following his convictions for serious injury by vehicle, reckless driving, failure

to stop at or return to the scene of an accident, following too closely, and driving

without a license. Salazar-Balderas argues that the trial court erred when it refused

to charge the jury on the defense of habitation. He further argues that he received

ineffective assistance when his trial counsel did not effectively manage the request

for a jury charge on habitation, and when trial counsel failed to renew his motion for

a mistrial following the court’s curative instructions on the State’s improper closing

argument. We agree that the trial court erred by refusing to charge the jury on the

defense of habitation and reverse.
      “On appeal from a criminal conviction, we view the evidence in the light most

favorable to the verdict, and the defendant no longer enjoys the presumption of

innocence.” Fields v. State, 263 Ga. App. 11, 11 (587 SE2d 171) (2003) (citation

omitted). So viewed, the evidence shows that on December 29, 2006, Salazar-

Balderas rear-ended the victim’s vehicle. The victim testified that both she and

Salazar-Balderas exited their vehicles to inspect the damage, which was minimal.

Salazar-Balderas showed the victim an identification card of some sort and returned

with the victim to his car so that he could give her his insurance card. However,

instead of producing an insurance card to the victim, Salazar-Balderas got into his

vehicle and fled the scene, running the victim over in the process. A witness, who did

not see any prior interaction between the parties, observed Salazar-Balderas running

over the victim and testified to his observation at trial. The victim sustained serious

injury, including broken bones.

      At trial, Salazar-Balderas testified that when he returned to his car with the

victim to retrieve his insurance information, the victim reached through his open

driver’s side window into his vehicle and started grabbing and pulling his left

shoulder, saying she did not believe Salazar-Balderas had insurance. The two began

arguing, and Salazar-Balderas’ nine year-old son, who was a passenger in his vehicle,

                                          2
started crying. Salazar-Balderas became scared and then decided to drive away from

the victim, who continued holding onto his vehicle as he began driving away.

Salazar-Balderas testified that he was unaware he had hit the victim. Police

apprehended Salazar-Balderas a few minutes after leaving the scene, and he was

charged with serious injury by vehicle, reckless driving, failure to stop at or return to

scene of accident, following too closely, and driving without a license.

      Trial counsel for Salazar-Balderas did not include a pattern jury charge for

habitation in his original requests to charge. But Salazar-Balderas’ trial counsel orally

requested the additional pattern jury charge on habitation1 during the charge



      1
        Georgia Suggested Pattern Jury Instructions, 3.12.10 Justification; Use of
Force in Defense of Habitation (Motor Vehicle), provides:

      A person is justified in threatening or using force against another person
      when, and to the extent that, the person reasonably believes that such
      threat or force is necessary to prevent or terminate the other’s unlawful
      entry into or attack upon a [motor vehicle]. A person is justified in the
      use of force that is intended or likely to cause death or great bodily harm
      only if (a) the entry is made or attempted in a violent and disorderly
      manner and the person reasonably believes that the entry is attempted or
      made for the purpose of assaulting or offering personal violence to any
      person living or present in the [motor vehicle] and that such force is
      necessary to prevent the assault or offer of personal violence[.]

                                           3
conference. After revewing the pattern jury charge in question and considering the

request, the trial court declined to give the charge, noting that a motor vehicle can be

a deadly weapon, and that use of a deadly weapon to defend oneself was not justified

under the facts of the case because Salazar-Balderas testified that the victim was

merely grabbing him through the window. Instead, the trial court charged the jury on

justification and knowledge. Trial counsel renewed his objection regarding the

requested jury charge on habitation following the trial court’s jury instruction.

      Salazar-Balderas was convicted on all counts. Following his conviction,

Salazar-Balderas filed a motion for a new trial, which the trial court denied. Salazar-

Balderas then filed a motion for an out-of-time appeal, which was granted. This

appeal followed.

      1. Salazar-Balderas first argues that the trial court erred when it failed to

instruct the jury on defense of habitation. We agree.

      “A requested charge must be legal, apt, and precisely adjusted to some

principle involved in the case and be authorized by the evidence. If any portion of the

request to charge fails in these requirements, denial of the request is proper.”

Kendrick v. State, 287 Ga. 676, 679 (3) (699 SE2d 302) (2010) (citation omitted). We



                                           4
review the trial court’s refusal to give a requested charge for abuse of discretion.2

Wallace v. State, 306 Ga. App. 118, 121 (701 SE2d 554) (2010).

      As an initial matter, we note that Salazar-Balderas failed to submit a written

request to charge on habitation. Instead, he made an oral request that the trial court

give the pattern jury charge on habitation. This request fails to comply with the

requirements of Uniform Superior Court Rule 10.3.3 See Kendrick, 287 Ga. at 678 (3).

This Court has previously observed that “[v]iolation of Rule 10.3 carries no express

penalties, although failure to adhere to the rule has been cited as justification for a

      2
         Salazar-Balderas preserved his objection regarding the requested habitation
charge when he renewed his objection following the trial court’s jury instruction. Nel
v. State, 252 Ga. App. 761, 765 (7) (557 SE2d 44) (2001) (once jury instructions are
given, “[i]n order to avoid waiver, if the trial court inquires if there are objections to
the charge, counsel must state his objections and/or follow the procedure of reserving
the right to objection on motion for new trial or on appeal.”). Thus, we review the
failure to give the charge for abuse of discretion instead of plain error. State v. Kelly,
290 Ga. 29, 32 (1) (718 SE2d 232) (2011) (appellate courts will review an objection
to jury instructions for plain error where the party fails to object at trial and the
appealing party properly asserts the error on appeal).
      3
          Uniform Superior Court Rule 10.3 reads:

      All requests to charge shall be numbered consecutively on separate
      sheets of paper and submitted to the court in duplicate by counsel for all
      parties at the commencement of trial, unless otherwise provided by pre-
      trial order; provided, however, that additional requests may be submitted
      to cover unanticipated points which arise thereafter.

                                            5
trial court’s refusal to give a later requested charge.” Gagnon v. State, 240 Ga. App.

754, 755 (1) (525 SE2d 127) (1999) (footnotes omitted). Although such failure would

authorize the trial court to reject Salazar-Balderas’ desired jury instruction,4 the trial

court did not decline to give the charge on this basis. Rather, the trial court was

directed to the requested pattern charge, reviewed it, and discussed it with the parties

before deciding not to give it because it did not find the instruction was warranted

under the circumstances of the case. The record does not reflect that the trial court or

the State were unclear about which provision of the charge applied, and it appears the

request was sufficient to direct the court’s attention accordingly. On appeal, there is

no ambiguity about what portion of the charge was relevant to the facts and was being

requested. Therefore, we will review the substance of this enumeration of error. See

Kendrick, 287 Ga. at 678 (3); Davis v. State, 285 Ga. 176, 178-79 (2) (674 SE2d 879)

(2009).




      4
        This Court has previously held that a trial court’s refusal to give a requested
charge was not in error when such refusal was based on the defendant’s failure to
comply with Uniform Superior Court Rule 10.3. See Temple v. State, 238 Ga. App.
146, 148 (3) (517 SE2d 850) (1999) (not error for trial court to refuse jury instruction
on the basis that it was not timely requested); Smith v. State, 222 Ga. App. 366, 370-
71 (5) (474 SE2d 272) (1996) (same).

                                            6
      The defense of habitation is available to prevent or terminate an “unlawful

entry into or attack upon a habitation” if the “entry is made or attempted in a violent

and tumultuous manner[,]” there is a reasonable belief that entry is made “for the

purpose of assaulting or offering personal violence to any person” therein, and “that

such force is necessary to prevent the assault or offer of personal violence[.]” OCGA

§ 16-3-23 (1); see also Benham v. State, 277 Ga. 516, 517 (591 SE2d 824) (2004);

Neverson v. State, 324 Ga. App. 322, 325 (2) (750 SE2d 397) (2013). A motor vehicle

is included in the definition of a “habitation.” OCGA § 16-3-24.1.

      The trial court explained that it did not give the requested instruction because

Salazar-Balderas’ use of deadly force was not warranted by the victim’s mere

grabbing his person, and because Salazar-Balderas claimed that he was entirely

unaware that he had run over the victim with his vehicle. The trial court is mistaken.

      “Unlike the defense of justification, the habitation defense, in recognition of

the sanctity of a person in his home or motor vehicle or place of business, allows the

use of deadly force in certain situations even if the occupant does not fear death or

great bodily injury.” Coleman v. State, 286 Ga. 291, 297 (6) (687 SE2d 427) (2009)

(citation and punctuation omitted). Thus, our analysis does not turn on whether

Salazar-Balderas was in any immediate fear of death or great injury or whether such

                                          7
fear was reasonable under the circumstances of this case. Nor does Salazar-Balderas’

claimed ignorance of having run over the victim bar the availability of the habitation

defense here. Rather, we must examine whether there is slight evidence that Salazar-

Balderas used force to prevent or terminate a violent or tumultuous entry into his

vehicle that he reasonably believed was for the purpose of assaulting or offering

personal violence against him. See OCGA § 16-3-23 (1); Coleman, 286 Ga. at 297 (6)

(“a request to charge the jury is appropriate where there is any evidence, however

slight, on which to predicate it”) (citation omitted)); Benham, 277 Ga. at 517.

      Under OCGA § 16-5-20 (a), “[a] person commits the offense of simple assault

when he or she either: (1) [a]ttempts to commit a violent injury to the person of

another; or (2) [c]ommits an act which places another in reasonable apprehension of

immediately receiving a violent injury.” Moreover, “the focus of a reasonable

apprehension of harm is on the apprehension of the victim, and it is for the factfinder

to determine whether the victim’s apprehension was reasonable.” Thompson v. State,

332 Ga. App. 204, 211-212 (2) (2015) (citation and punctuation omitted).

      Salazar-Balderas testified that when he returned to his vehicle to obtain his

insurance and other paperwork, the victim reached through his window and began

grabbing his shoulder while accusing him of not having insurance. Salazar-Balderas

                                          8
testified that he became nervous and frightened, and that his son, who was also in the

vehicle, began to cry. Salazar-Balderas’ testimony indicated that he intended to use

the force that resulted in victim’s injury — that is, driving his vehicle away from her

— so as to escape her reaching through his open vehicle window and grabbing him

while she was verbally accosting him. The victim’s actions provide the slight

evidence needed for the jury to decide whether Salazar-Balderas used the force

resulting in injury to escape a violent or tumultuous entry into his vehicle that he

reasonably believed was for the purpose of assaulting or offering personal violence

against him. Therefore, a jury instruction on the defense of habitation was warranted.

See Coleman, 286 Ga. at 297 (6); Benham, 277 Ga. at 517.

      “Where a defendant raises an affirmative defense and testifies to the same, the

burden is on the State to disprove the defense beyond a reasonable doubt.” Jones v.

State, 160 Ga. App. 209, 209-210 (2) (286 SE2d 764) (1981) (citation and

punctuation omitted). Because Salazar-Balderas’ requested charge was a correct

statement of the law and was adjusted to the evidence, we are constrained to hold that

the trial court’s failure to give the charge was harmful error demanding reversal of the

conviction. See id.



                                           9
      2. In view of our holding in Division 1, we need not address Salazar-Balderas’

remaining enumerations of error.

      Judgment reversed. McFadden, P. J., and Branch, J., concur.




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