                               THIRD DIVISION
                                BARNES, P. J.,
                            BOGGS and BRANCH, 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/


                                                                  September 24, 2014


In the Court of Appeals of Georgia
 A14A1175. TREMBLAY v. THE STATE.

      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 SE2d

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

                                          2
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 believe 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

                                           3
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 towards 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 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.



                                          4
         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 SE2d 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 SE2d 395) (2014). See OCGA § 16-5-21 (a) (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

                                            5
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 combined testimony of the victim, the police officer who interviewed him

and found the metal bar in the woods, and the two friends who accompanied

Tremblay to the parking lot, along with the introduction into evidence of the metal

bar used in the attack, was more than sufficient to sustain Tremblay’s conviction for

aggravated assault. And while Tremblay argues that the State failed to disprove that

he was acting in self-defense,1 Georgia law is clear that “a person is not justified in

using force in self-defense if he is the initial aggressor.” (Citation and punctuation

omitted.) Muckle v. State, 307 Ga. App. 634, 637 (1) (a) (705 SE2d 721) (2011).

Because all of the testimony presented at trial pointed to Tremblay as the initial

aggressor who attacked the unarmed victim, a rational jury was authorized to find

beyond a reasonable doubt that the State disproved Tremblay’s self-defense claim and




      1
         Tremblay also argues that the evidence presented by the State failed to
exclude every alternative, reasonable hypothesis of his innocence, but the reasonable
hypothesis rule applies only when all of the evidence against the defendant was
circumstantial. See Meeks v. State, 281 Ga. App. 334, 337 (636 SE2d 77) (2006).
There was direct evidence of Tremblay’s guilt based on the eyewitness testimony of
the victim and Tremblay’s two friends.

                                           6
that he was guilty of aggravated assault as alleged in the indictment. See Jackson v.

Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

      2. Tremblay further contends that the trial court committed reversible error by

charging the jury that a defendant claiming justification must show that he did not act

in a “spirit of revenge.” We are unpersuaded.

      Because Tremblay did not object to the jury charge on justification, we review

the charge only for plain error. See OCGA § 17-8-58 (b); Booker v. State, 322 Ga.

App. 257, 260 (2) (744 SE2d 429) (2013).

      Reversal based on plain error is authorized if the instruction was
      erroneous, the error was obvious, the instruction likely affected the
      outcome of the proceedings, and the error seriously affects the fairness,
      integrity or public reputation of judicial proceedings. Satisfying all four
      prongs of this standard is difficult, as it should be.


(Citation and punctuation omitted.) Booker, 322 Ga. App. at 260 (2). See White v.

State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012); State v. Kelly, 290 Ga. 29, 33 (2) (a)

(718 SE2d 232) (2011).




                                           7
      Regardless of whether any of the other prongs were satisfied,2 Tremblay has

failed to show plain error in this case because he cannot demonstrate that the alleged

error in the jury charge likely affected the outcome of the proceedings. The evidence

was overwhelming that Tremblay was the initial aggressor who attacked the unarmed

victim with the metal bar, and thus that Tremblay did not act in self-defense and was

guilty of aggravated assault. Given the overwhelming evidence of Tremblay’s guilt,

there was no plain error in the jury charge. See McBurrows v. State, 325 Ga. App.

303, 314 (7) (750 SE2d 436) (2013).

      3. Lastly, Tremblay contends that his trial counsel rendered ineffective

assistance by failing to object to the “spirt of revenge” language in the jury charge on

justification. Notably, Tremblay was appointed new counsel after his conviction who

filed an amended motion for new trial on his behalf, but his counsel did not raise any

ineffective assistance claims in the amended motion or at the hearing on the motion.

      Any ineffective counsel challenge will be deemed waived if the new
      attorney files an amended motion for new trial and does not raise the
      issue before the trial court so that the challenge can be heard at the


      2
         In the recent case of Hodges v. State, 319 Ga. App. 657, 660 (3), n. 3 (738
SE2d 111) (2013), we questioned whether the suggested pattern jury instruction on
justification and several of our cases indicating that an absence of revenge is an
essential element of justification are still good law.

                                           8
      earliest practicable moment, i.e., during the hearing on the amended
      motion.


(Citation and punctuation omitted.) Pye v. State, 274 Ga. 839, 840 (1) (561 SE2d 109)

(2002). See also Jones v. State, 294 Ga. 501, 503 (2) (755 SE2d 131) (2014).

Accordingly, Tremblay has waived his claim of ineffective assistance, and we

therefore will not consider it on appeal.

      Judgment affirmed. Boggs and Branch, JJ., concur.




                                            9
