A Fulton County jury convicted Ali Nejad of rape, aggravated sodomy, aggravated assault with a deadly weapon two counts, and aggravated battery two counts. Nejad was also indicted on the charge of possession of a firearm during the commission of a felony, but the trial court directed a verdict on that count. On appeal, Nejad argues that his convictions must be reversed for three reasons: 1 the trial court erroneously charged the jury that a pellet gun was a per se deadly weapon; 2 a juror failed to disclose that she was a rape victim; and 3 trial counsel was ineffective. Although we find that there was sufficient evidence to support Nejad’s convictions under Jackson v. Virginia ,1 we must reverse the convictions because trial counsel provided ineffective assistance when he refused to allow Nejad to testify and did not inform Nejad that he had a right to do so. We also find error in the trial court’s charge to the jury that a pellet gun was a per se deadly weapon. 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.2 So viewed, the records shows that there were two alleged victims of the crimes for which Nejad was tried, Linda Lankford and Melissa Hoy. Lankford testified that on May 11, 2004, she was talking to Nejad at a gas station, and he offered her a ride to the hotel where she was staying. Lankford recalled that Nejad was driving a SUV and that there was a baby car seat in the back of the vehicle. During the ride, Nejad offered her $200 in exchange for sex or an agreement to masturbate him, and Lankford refused, telling Nejad that she was not a prostitute. Lankford recalled that they also talked about smoking marijuana and that Nejad told her that he and his friends smoked behind a building where he worked. After purchasing baby wipes from a grocery store, Nejad drove Lankford to a secluded area where he parked the SUV near a factory, which Lankford assumed was Nejad’s place of employment. Nejad then pointed a gun at Lankford, demanded that she take off her clothes and put on pantyhose with a hole in the crotch area, and made her perform oral sex on him, while pointing the gun at the back of her head. Nejad also had intercourse with Lankford after ordering her to remove a tampon from her body. Nejad then ejaculated on Lankford’s stomach and gave her a baby wipe to clean up. Lankford recalled that the gun was pointed at her face while they had intercourse. When they were done, Nejad ordered Lankford to exit his vehicle, naked with her clothes in her hand. Lankford dressed herself with the clothes that she could find and then ran to a nearby building where she banged on the door and told the people inside to call the police because she had been raped. David Vance, a supervisor at the building, testified that Lankford was pounding on the door and was hysterical as she screamed and hollered that she had been raped. Detective Lisa Roey of the Atlanta Police Department testified that she responded to the scene and interviewed Lankford. Lankford told her that she agreed to accept $200 from Nejad to watch him masturbate because she needed the money as she was new to Atlanta. When Roey went to the scene of the crime, she found Lankford’s identification, hotel room key, pictures of Lankford’s children, a tampon, and some baby wipes.
Melissa Hoy testified that she was a prostitute and that she voluntarily entered Nejad’s white SUV on June 5, 2004, after Nejad offered her $150 to perform sexual acts. Nejad gave her thigh-high nylon stockings to wear and drove to a secluded area. Hoy further testified that once Nejad stopped the vehicle, he took a backpack and a black gun from the back of the vehicle, which was later determined to be a plastic pellet gun, put the baby car seat into the back of the vehicle, and told Hoy to get into the back seat. Nejad urinated then got into the back seat with Hoy. When asked why she did not run away, Hoy testified that she could have but that “it was a job.” Nejad fondled and digitally penetrated Hoy’s anus and vagina while holding the gun, then put the gun down while he masturbated. Over two hours later, Nejad ejaculated, using Hoy’s clothing to clean up the semen. Nejad gave Hoy her clothes and told her to exit the vehicle and said he would leave $100 on the concrete at the end of the street. Hoy never looked for the money. Instead, she dressed herself then walked to a nearby restaurant where she called a client, who picked her up and with whom she had sex in exchange for money. Weeks later, Hoy spoke to another prostitute to warn her about the driver of the white SUV, and that person advised that she already knew about him.
