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Byrd v. State

Defense counsel was ineffective in failing to object to that portion of the trial court's jury charge on aggravated assault which removed from the jury's province the issue of whether the handgun that the defendant used in a home invasion armed robbery was a deadly weapon based on the manner in which the defendant allegedly used it.

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Following a jury trial, Darryl Byrd was found guilty beyond a reasonable doubt of one count of armed robbery OCGA § 16-8-41 a, two counts of burglary OCGA § 16-7-1 b, two counts of aggravated assault OCGA § 16-5-21 a, two counts of possession of a firearm during the commission of a felony OCGA § 16-11-106, and one count of possession of marijuana with the intent to distribute OCGA § 16-13-30 j. He appeals from his convictions and the denial of his motion for new trial, contending that the trial court erred by allowing certain hearsay evidence to be introduced at trial. Byrd also contends that he received ineffective assistance of counsel. For the reasons that follow, we reverse the conviction for one count of aggravated assault Count 3, and affirm his convictions on the remaining counts.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence. We determine only whether the evidence authorized the jury to find the defendant guilty beyond a reasonable doubt, and in doing so we neither weigh that evidence nor judge the credibility of the witnesses.

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