McCrary v. State

On plain error review, the defendant could not show that the jury instruction on level of certainty affected his substantial rights because the victim observed the defendant at close range, immediately described the defendant to police, and identified the defendant in a photo array.

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A jury convicted Dezreal McCrary of aggravated assault and aggravated assault with intent to rob. On appeal from the denial of his motion for a new trial, McCrary contends that there was insufficient evidence to support his convictions; that the trial court erred by giving the “level of certainty” portion of the jury charge on the reliability of eyewitness identification; and that his trial counsel was ineffective. For the reasons discussed below, we affirm. Following a criminal conviction, we view the evidence in the light most favorable to the jury verdict. Paul v. State , 231 Ga. App. 528 499 SE2d 9141998. So viewed, the evidence showed that on the evening of December 8, 2005, the victim was standing outside a bar in Fulton County. While outside the bar, the victim was speaking on his cell phone with his father when he noticed an individual later identified as McCrary approaching him. McCrary pulled a gun from his pocket and pointed it directly at the victim. McCrary and the victim then struggled over the cell phone, and the victim called out to the patrons in the bar for help. When a friend of the victim ran out of the bar to aid the victim, McCrary “cut and ran.” As he did so, McCrary turned around and fired three shots, and one bullet struck the victim’s arm. McCrary got into the passenger seat of a Nissan Sentra and fled from the scene. Both the victim and his friend gave a description of the vehicle and McCrary to a police officer responding to the scene.

The next day, officers responded to a call of “shots fired.” The officers encountered a vehicle that was similar to the vehicle described by the victim and his friend. When the officers approached the vehicle, it sped off. A few minutes later, officers found the vehicle abandoned and wrecked. While searching for the passengers of the wrecked vehicle, officers found McCrary under a stairwell and took him into custody.

McCrary v. State

On plain error review, the defendant could not show that the jury instruction on level of certainty affected his substantial rights because the victim observed the defendant at close range, immediately described the defendant to police, and identified the defendant in a photo array.

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