                               SECOND DIVISION
                                ANDREWS, P. J.,
                             MCFADDEN and RAY, 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/


                                                                  December 18, 2014




In the Court of Appeals of Georgia
 A14A1582. STALEY v. THE STATE.

      MCFADDEN, Judge.

      After a jury trial, Carlos Sylvon Staley was convicted of burglary, armed

robbery, aggravated assault, false imprisonment, and possession of a firearm during

the commission of a crime. Staley argues that the trial court erred in charging the jury

on aggravated assault, but he did not object to the charge at trial and we find no plain

error that would require reversal. Staley also argues that his trial counsel was

ineffective in allowing copies of his certified convictions to go to the jury, but the

record does not show that this in fact occurred. Accordingly, we affirm.

      1. Facts.

      Viewed in the light most favorable to the verdict, the evidence showed that on

November 27, 2009, Tony Lindsey returned home from work to find two men had
broken into his house. The men, who each had a handgun, forced Lindsey to the

ground. At that moment, Lindsey’s friend Tasha Williams entered the house. One of

the men pointed a gun at Williams’s head and she also dropped to the ground. The

men forced Lindsey and Williams into a back room and fled the house, taking cash,

a laptop computer, and Lindsey’s Pomeranian puppy.

      As the men left, Lindsey called 911 and described them and their location.

Lindsey and a friend then attempted to follow the men but abandoned the chase when

one of the men shot at them. An off-duty law enforcement officer also saw the men

running through the neighborhood and reported their location to dispatch.

      Law enforcement officers quickly arrived and soon found Staley hiding in the

open garage of a vacant house in the neighborhood, a gun within arm’s reach.

Lindsey’s puppy was found in a nearby yard and his laptop computer was found in

a nearby driveway. Lindsey identified Staley as one of the men who had broken into

his house, and Staley’s fingerprint was on a thumb drive in the laptop computer.

      2. Jury charge.

      Staley argues that the trial court erred in its charge to the jury on aggravated

assault. Because Staley did not object to the charge at trial, “the matter is subject only

to plain error review on appeal.” Givens v. State, 294 Ga. 264, 266 (2) (751 SE2d

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778) (2013) (citations omitted). See OCGA § 17-8-58 (b). In considering whether the

giving of a charge was plain error, “we must consider whether the instruction was

erroneous, whether it was obviously so, and whether it likely affected the outcome of

the proceedings.” Givens, 294 Ga. at 266 (2) (citation and punctuation omitted).

      The trial court gave an erroneous charge on aggravated assault. He charged:

      A person commits the offense of aggravated assault when that person
      assaults a person with a deadly weapon with the intent to murder, rape
      or rob. To constitute such an assault actual injury to alleged victim need
      not be shown. It is only necessary that the evidence showed beyond a
      reasonable doubt that the defendant intentionally committed an act that
      placed the alleged victim in reasonable fear of receiving or immediately
      receiving a violent injury. I charge you that a firearm when used as such
      is a deadly weapon as a matter of law.


(Emphasis supplied.) The above-emphasized language in the charge incorrectly

suggested that a person assaulting with a deadly weapon must also have the intent to

murder, rape, or rob. Contrary to that incorrect suggestion, a person commits the

offense of aggravated assault, among other methods, when he or she assaults “[w]ith

intent to murder, to rape, or to rob,” OCGA § 16-5-21 (b) (1), or “[w]ith a deadly

weapon[.]” OCGA § 16-5-21 (b) (2).




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      Nevertheless, there was no plain error. Staley argues that the charge permitted

the jury to find him guilty of aggravated assault by a method not alleged in the

indictment. See Richardson v. State, 276 Ga. 548, 551 (2) (b) (580 SE2d 224) (2003)

(“The potential for reversible error occurs when the indictment specifies the

commission of a crime by only one of several methods possible under the statute . .

. and the entire Code section is charged.”) (citation omitted). But that is not what the

charge did. The indictment alleged that Staley committed the offense of aggravated

assault by “mak[ing] an assault upon the person of T[a]sha Williams, with a certain

handgun, a deadly weapon, by pointing it at her”; the charge required the jury to find

that Staley committed aggravated assault by that method: with a deadly weapon. The

charge erred in placing on the state the extra burden of showing that, in addition to

assaulting with a deadly weapon, Staley also assaulted with the intent to murder, rape,

or rob.

      A variety of things might be said about an appellant’s contention that the trial

court erred by placing an unwarranted burden on the appellee. In the present case, it

is enough to say that, as Staley was convicted of aggravated assault, this additional

burden on the state cannot be deemed to have “likely affected the outcome[.]” Givens,



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294 Ga. 266 (2) (citation and punctuation omitted). Consequently, there was no plain

error. Id. at 267 (2).

       3. Ineffective assistance of counsel.

       Staley argues that his trial counsel was ineffective in failing to object when

copies of his prior convictions went to the jury for their deliberations. The record,

however, does not show that this occurred. Staley asserts in his brief that “[t]he prior

convictions went to the jury as Exhibits 78-84.” But the record reflects that these

exhibits were not tendered or marked until the sentencing phase of the trial, after the

jury had deliberated, rendered a guilty verdict, and been released. Consequently,

Staley has not met his burden of showing either that his trial counsel rendered

deficient performance or that he was prejudiced thereby. See generally Batten v.

State, 295 Ga. 442, 445 (3) (761 SE2d 70) (2014) (discussing “heavy” burden placed

on appellant to demonstrate that he received ineffective assistance of trial counsel).

       Judgment affirmed. Andrews, P. J., and Ray, J., concur.




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