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Smith v. State

Trial counsel was not deficient for failing to request a continuance to secure missing witnesses, who would have given cumulative testimony.

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Following a jury trial, Donald Frank Smith was convicted of aggravated assault on a peace officer, obstruction of a law enforcement officer, possession of a firearm during commission of a felony, boarding a bus with a concealed weapon, and giving false information to a law enforcement officer. Smith appeals, claiming that the trial court erred i in failing to properly address the jury’s stated confusion as to the elements of aggravated assault and ii in failing to correctly instruct the jury on the requirement that they find beyond a reasonable doubt that the handgun was used as a deadly weapon. Smith also contends i that he received ineffective assistance of counsel and ii that the evidence was insufficient to prove beyond a reasonable doubt that he concealed a weapon. For the reasons which follow, we disagree and affirm. On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict. Jones v. State , 289 Ga. App. 219 656 SE2d 556 2008. So viewed, the evidence shows that Nadia Boothe and her husband encountered a man, later identified as Smith, at an Atlanta gas station. Smith reached into Boothe’s vehicle, tried to take a cigarette out of her hand, and then “grabbed on” her vagina. Boothe’s husband drove away, but he decided to return and confront Smith.

After the car made a U-turn, Smith ran towards the vehicle with his hand on his hip, which Boothe described as “running like he had a gun.” Boothe’s husband made another U-turn and drove to a second gas station, where Boothe called the police. Smith appeared at that station as well, and “said something negative,” but continued walking. Boothe and her husband waited 45 minutes for the police, who never arrived, before proceeding to the restaurant where Boothe worked.

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