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Talton v. State

Since defendant was indicted for aggravated assault by shooting the victim with a pistol, the trial court reversibly erred in charging the jury that it could find defendant guilty if he pointed a firearm at the victim.

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A Taylor County jury convicted Xavier A. Talton of aggravated assault, OCGA § 16-5-21, and possession of firearm during the commission of a crime, OCGA § 16-11-106 b 1. Talton appeals from the denial of his motion for new trial, challenging his conviction for aggravated assault on several grounds. Because the trial court gave an erroneous and misleading jury instruction defining aggravated assault that resulted in a violation of Talton’s due process rights, we must reverse.

The record reveals the following relevant facts: On September 26, 1998, Talton attended a birthday party, uninvited. He wanted to continue an argument he started earlier that day with the victim. Talton approached the victim and said: “My girl said you were picking at her.” Before the victim could respond, Talton struck him and then pointed a pistol at his chest. When a friend of Talton’s tried to intervene, Talton fired the pistol, hitting the victim in the toe. Upon his arrest, Talton admitted taking the pistol to the party because he expected trouble; however, he said he fired the pistol accidently during the scuffle with his friend. Talton’s defense at trial was accident.

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