                             SECOND DIVISION
                               MILLER, P. J.,
                          ANDREWS and BROWN, 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


                                                                      July 30, 2018




In the Court of Appeals of Georgia
 A18A1253. THE STATE v. WILKERSON.

      BROWN, Judge.

      A jury convicted Jason Edwin Wilkerson of five counts each of aggravated

assault with a deadly weapon and aggravated assault with a motor vehicle, but

acquitted him of three counts of kidnapping. The trial court sentenced him

consecutively on the ten counts of aggravated assault to a total of 60 years to serve

followed by 140 years of probation. Wilkerson filed an amended motion for new trial

asking the trial court to modify his sentence, and challenging the sufficiency of the

evidence to support his convictions. The trial court granted the motion in part,

reducing Wilkerson’s sentence, and finding insufficient evidence to support three of

the five counts of aggravated assault with a deadly weapon. The trial court also

granted a new trial under the general grounds, finding that the three aggravated
assault convictions were against the weight of the evidence and the principles of

equity and justice, and that there was insufficient evidence to find Wilkerson guilty

of those three counts. The State appeals. For the reasons set forth below, the appeal

is dismissed in part; the court’s order is reversed in part, vacated in part, and the

vacated portion of the order is remanded with direction.

      The evidence viewed in the light most favorable to the jury’s verdict, see State

v. Sims, 296 Ga. 465 (1) (769 SE2d 62) (2015), shows that on June 24, 2013,

Wilkerson’s sister and her boyfriend were riding in a car with the sister’s three young

children, ages three, two, and one.1 The car was stopped on the side of the road when

the boyfriend and sister saw Wilkerson riding as a passenger in a red pick-up truck

traveling towards them. The truck stopped and then plowed into the car, pushing it

into a ditch and destroying two tires and the driver’s side door. As the boyfriend tried

to drive the car out of the ditch, he and the sister noticed the truck drive up behind

them with Wilkerson hanging out the passenger side brandishing a shotgun.

Wilkerson pointed the gun at the boyfriend and told him to pull over or he would

“blow his brains out.” The boyfriend pulled over and Wilkerson exited the truck,


      1
         The two older children were in the backseat and the baby was on the sister’s
lap in the front passenger seat.

                                           2
pointed the gun at the boyfriend’s face, and told the sister to get the kids out of the

car.2 Wilkerson then went to the passenger side of the car and got the children out and

took them back to their grandmother. The boyfriend and sister drove the car to a

friend’s farm, called police, and then entered and hid in a pond until the police arrived

because the boyfriend was “scared as hell of all of it.”

      At trial, the boyfriend testified that “the gun stayed pointed at me. [Wilkerson]

never pointed it at the kids.” When asked if Wilkerson had the gun in his hand when

the kids were getting out of the car, the boyfriend testified, “[i]f he did, it wasn’t

never pointed at the kids. He never had the intent of hurting the children at all.” The

sister testified that Wilkerson “wasn’t pointing [the gun] at us, he was pointing it at

      2
         The boyfriend testified that Wilkerson believed that the boyfriend had taken
“the children by force from [their grandmother, Wilkerson’s mother,] and manhandled
his mother. . . . [Wilkerson] did what any kind of family man would do to try to
protect his nephews. . . . All [Wilkerson] was trying to do was get the kids and get
them back to [their grandmother].” At trial, the boyfriend explained that he did not
want Wilkerson prosecuted because “it was [all] a misunderstanding.” Ever since the
date of the incident, “[Wilkerson] has been right there around us, we’ve all sat down
and ate dinner as a family.” The sister echoed this testimony. According to the
boyfriend and sister, the children live with Wilkerson and his mother at Wilkerson’s
home, and Wilkerson helps to raise them because the sister is homeless. At trial and
during the motion for new trial hearing, evidence was presented that (a) the sister had
custody of the children, but that the Early County Department of Family and Children
Sevices had an “open investigation involving the [children]”; (b) the sister had
disappeared with the father of her oldest child the night before the incident; and (c)
the sister had a drug problem and was in an abusive relationship with the boyfriend.

                                           3
the car.” When asked by the State to clarify whether the gun, which was pointed at

the car was also pointed at the occupants of the car, the sister responded, “I don’t

know, I guess so if we’re in the car.” According to the sister, when she handed the

baby to Wilkerson, he was not holding a gun. The State introduced into evidence the

sister’s statement to police following the incident. In that statement, the sister wrote

that Wilkerson pointed the gun at her and at the car.

      The State indicted Wilkerson on thirteen counts, including three counts of

kidnapping (Counts 1, 2, and 3), and five counts each of aggravated assault with a

deadly weapon (Counts 4, 5, 6, 7, and 8) and aggravated assault with a motor vehicle

(Counts 9, 10, 11, 12, and 13). Counts 6, 7, and 8 alleged that “Wilkerson [made] an

assault upon the person of [each child], with a deadly weapon, to-wit: a gun.”

Following a hearing, the trial court granted Wilkerson’s amended motion for new trial

as to Counts 6, 7, and 8, finding as follows:

      Although there was testimony that [Wilkerson] pointed a firearm at “the
      car,” there was no evidence that [Wilkerson] ever pointed a gun at, or
      threatened, any of the children. Nor was there any evidence that the
      children felt threatened by the firearm or were aware in any way that a
      firearm had been pointed at them. The fact that a victim is unaware that
      a firearm has been pointed at the victim precludes a conviction of



                                           4
      aggravated assault. State v. Harlachen, 336 Ga. App. 9, 783 SE2d 411
      (2016).


      The [c]ourt finds that the convictions for Counts 6, 7, and 8, are strongly
      against the weight of the evidence and the principles of equity and
      justice and there was not sufficient evidence to allow a rational trier of
      fact to find [Wilkerson] guilty of these Counts. OCGA §§ 5-5-20 and
      21; Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560)
      (1979).


The trial court also found the original sentence to be excessive, and modified it to

seven concurrent terms of twenty years with five to serve. The trial court entered an

amended final disposition, memorializing the new sentence and indicating “New Trial

Granted” as to Counts 6, 7, and 8.

      1. The State argues that the trial court erred in granting the motion for new trial

on Counts 6, 7, and 8, because awareness is not an essential element of the crime of

aggravated assault and there was evidence that Wilkerson pointed the gun at the

children when he pointed it at the car in which the children were riding. We agree.

      We review the trial court’s ruling that there was insufficient evidence to sustain

Counts 6, 7, and 8 under the standard espoused in Jackson v. Virginia. See Batten v.

State, 295 Ga. 442, 444 (1) (761 SE2d 70) (2014).


                                           5
      The standard of Jackson v. Virginia for assessing the legal sufficiency
      of the evidence is different than the discretion given a trial court in an
      evidentiary challenge based upon the general grounds. Indeed, evidence
      may be less than overwhelming, but still sufficient to sustain a
      conviction. When we consider the legal sufficiency of the evidence, we
      must put aside any questions about conflicting evidence, the credibility
      of witnesses, or the weight of the evidence, leaving the resolution of
      such things to the discretion of the trier of fact. Instead, we must view
      the evidence in the light most favorable to the verdict, and we inquire
      only whether any rational trier of fact might find beyond a reasonable
      doubt from that evidence that the defendant is guilty of the crimes of
      which he was convicted.


(Citations and punctuation omitted.) State v. Cash, 302 Ga. 587, 592 (807 SE2d 405)

(2017).

      “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.” (Citation and punctuation omitted.) Petro v. State, 327 Ga. App. 254, 257 (1)

(a) (758 SE2d 152) (2014). See also OCGA § 16-5-21 (a) (2). “The State may prove

an assault by showing that the defendant attempt[ed] to commit a violent injury to the

person of another or commit[ed] an act which place[d] another in reasonable


                                           6
apprehension of immediately receiving a violent injury. OCGA § 16-5-20 (a).”

(Citation and punctuation omitted.) Petro, 327 Ga. App. at 257 (1) (a).

      “The indictment only specifies that [Wilkerson] made an ‘assault’ with a deadly

weapon, and such general language sufficiently charges an assault by way of either

manner contained in the assault statute.” (Citation and punctuation omitted.)

Thompson v. State, 277 Ga. App. 323, 324 (1) (626 SE2d 825) (2006). Accordingly,

the State could have proved the charged crime with evidence that Wilkerson either

used the gun in an attempt to violently injure the children or that he used it to place

the children in fear of being violently injured. See Tucker v. State, 245 Ga. App. 551,

553 (1) (538 SE2d 458) (2000).

      Relying on Harlachen, supra, the trial court found no evidence that the children

were aware that a firearm had been pointed at them. Thus, the trial court reasoned that

Wilkerson could not be convicted of aggravated assault. But, the law is clear that

“[w]here the ‘assault’ at issue consists of an attempt to commit a violent injury to the

person of another, awareness on the part of the victim is not an essential element of

the crime.” Goforth v. State, 271 Ga. 700, 701 (3) (523 SE2d 868) (1999). See also

Tiller v. State, 267 Ga. 888, 890 (4) (485 SE2d 720) (1997), overruled on other

grounds by Dunagan v. State, 269 Ga. 590, 593, n. 3 (502 SE2d 726) (1998); Sutton

                                           7
v. State, 245 Ga. 192, 193 (1) (264 SE2d 184) (1980); Brown v. State, 200 Ga. App.

537 (1) (408 SE2d 836) (1991). Here, the State charged an assault by way of either

manner contained in the assault statute. Accordingly, the children’s awareness is

immaterial; it is enough that Wilkerson’s sister confirmed that Wilkerson

intentionally pointed the shotgun at the vehicle in which the children were riding in

an effort to get the boyfriend and sister to stop the vehicle. See, e.g., Veal v. State,

242 Ga. App. 873, 874 (1) (a) (531 SE2d 422) (2000) (evidence the defendant fired

in direction of trailer sufficient to support aggravated assault convictions as to

occupants of trailer, two of whom were sleeping); Tiller, 267 Ga. at 890 (evidence the

defendant fired a gun into an occupied building with the intent to harm someone he

mistakenly believed to be inside sufficient to support aggravated assault convictions

as to other unknown inhabitants even in the absence of injury and in the absence of

evidence the victims were in reasonable apprehension of being injured). Accordingly,

we reverse the trial court’s ruling that the evidence was insufficient to sustain

Wilkerson’s convictions for Counts 6, 7, and 8.

      2. Wilkerson contends that the State fails to enumerate as error the trial court

reversal of Counts 6, 7, and 8 on the general grounds. On the contrary, given the

wording of this portion of the trial court’s order, we find that the State implicitly

                                           8
challenges this ruling in its claim that the trial court erred in finding the evidence

insufficient to sustain the three convictions.

      “It has long been the rule in this state that the trial judge is vested with the

strongest of discretions to review the case and to set the verdict aside if he is not

satisfied with it.” (Citations and punctuation omitted.) Manuel v. State, 289 Ga. 383,

386 (711 SE2d 676) (2011). See also OCGA §§ 5-5-20 and 5-5-21. “These statutes

afford the trial court broad discretion to sit as a ‘thirteenth juror’ and weigh the

evidence on a motion for new trial alleging these general grounds.” (Citation and

punctuation omitted.) Choisnet v. State, 292 Ga. 860, 861 (742 SE2d 476) (2013). We

review a trial court’s ruling under OCGA §§ 5-5-20 and 5-5-21 for an abuse of

discretion; OCGA § 5-5-50 provides that “[t]he first grant of a new trial shall not be

disturbed by an appellate court unless the appellant shows that the [trial court] abused

[its] discretion in granting it and that the law and facts require the verdict

notwithstanding the judgment of the presiding judge.” But, “[t]he court’s discretion

should be exercised with caution, and the power to grant a new trial on this ground

should be invoked only in exceptional cases in which the evidence preponderates

heavily against the verdict.” (Citation and punctuation omitted.) State v. Reid, 331

Ga. App. 275, 278 (770 SE2d 665) (2015).

                                           9
       In Choisnet, supra, the defendant moved for a new trial asserting the general

grounds. 292 Ga. at 861. The trial court reviewed the evidence under Jackson v.

Virginia and denied the motion, concluding “that [it] was more than sufficient to

allow a rational trier of fact to find [defendant] guilty beyond a reasonable doubt but

mentally ill of the offense charged.” Id. The defendant appealed and our Supreme

Court vacated the ruling and remanded the case for consideration of the motion under

the proper legal standard, finding that “a trial court does not fulfill its duty to exercise

its discretion when it applies the standard set out in Jackson v. Virginia to the

statutory grounds for new trial.” Id. See also Wiggins v. State, 330 Ga. App. 205, 211

(c) (767 SE2d 798) (2014).

       The trial court here similarly applied the standard set out in Jackson v. Virginia

when it granted Wilkerson’s motion for new trial under the general grounds, while

simultaneously tracking the language of OCGA §§ 5-5-20 and 5-5-21, which adopts

the discretionary standard. By so ruling, the trial court conflated the legal issues.

       [T]he use of the phrase “sufficient evidence,” which echoes the appellate
       standard of Jackson v. Virginia, . . . denotes that the trial court failed to
       apply its discretion, as the determination if there is sufficient evidence
       to support the verdict is a matter of law, not discretion. . . . [T]he
       sufficiency of the evidence standard and the discretionary standard
       given to the trial court pursuant to OCGA § 5-5-21 address two distinct

                                            10
      legal issues, illustrated by the fact that the double jeopardy clause
      applies when a court finds the evidence insufficient, but not when a
      court holds that the verdict was against the weight of the evidence.


(Citations and punctuation omitted.) Manuel, 289 Ga. at 386-387 (2).

      Given the wording of the trial court’s order and its finding with regard to the

sufficiency of the evidence as discussed in Division 1, supra, we are unable to

determine which standard the trial court applied to its ruling under the general

grounds. Accordingly, we vacate this ruling and remand the case to the trial court for

reconsideration of the general grounds in light of this opinion.

      3. The State challenges the trial court’s modification of Wilkerson’s sentence

contending that the original sentence imposed by the judge presiding over the trial

was “within the minimum and maximum sentences prescribed by law” under OCGA

§ 17-10-1 (a) (1). Wilkerson contends that the State has no right to appeal the

sentence modification because it is not enumerated as an “appealable issue” under

OCGA § 5-7-1. We agree.

      “Appeals by the State in criminal cases are construed strictly against the State

and the State may not appeal any issue in a criminal case, whether by direct or

discretionary appeal, unless that issue is listed in OCGA § 5-7-1.” (Citations and


                                         11
punctuation omitted.) State v. Cash, 298 Ga. 90, 91 (1) (a) (779 SE2d 603) (2015).

See also State v. Land-O-Sun Dairies, Inc., 204 Ga. App. 485, 486 (419 SE2d 743)

(1992). The grant of a request to modify a sentence is not one of the issues listed in

OCGA § 5-7-1 as an issue appealable by the State. The fact that the trial court

included the sentence modification in its order granting Wilkerson’s motion for new

trial does not render the issue directly appealable as it has long been established that

alleged irregularities in a sentence do not authorize the grant of a new trial. See

Wilson v. State, 84 Ga. App. 703, 708 (5) (67 SE2d 164) (1951). Cf. State v. Hasson,

334 Ga. App. 1, 3 (1) (778 SE2d 15) (2015) (“[t]here is no magic in nomenclature,

and we judge pleadings, motions and orders not by their name but by their function

and substance, being always mindful to construe such documents in a manner

compatible with the best interests of justice”) (citation and punctuation omitted). The

State’s appeal of the modified sentences imposed on Counts 4, 5, 9, 10, 11, 12, and

13 is therefore dismissed for lack of jurisdiction.

      For the reasons outlined above, we reverse the trial court’s ruling as to the

sufficiency of the evidence on Counts 6, 7, and 8. We vacate its ruling on the general

grounds as applied to those counts and remand the case for the trial court to

reconsider – utilizing the correct legal standard – whether a new trial is warranted

                                          12
under the general grounds as to Counts 6, 7, and 8. We dismiss for lack of jurisdiction

the State’s appeal of the modified sentences imposed on Counts 4, 5, 9, 10, 11, 12,

and 13.

       Judgment reversed in part and vacated in part, and case remanded with

direction. Appeal dismissed in part. Miller, P. J., and Andrews, J., concur.




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