Following an earlier mistrial, a Morgan County jury convicted defendant of four counts of aggravated assault.1 The superior court thereafter sentenced defendant consecutively and concurrently to 50 years confinement, to serve 40 and the remainder probated.2 Defendant now appeals upon the superior court’s denial of his motion for new trial, as amended. Held:
Viewed in a light most favorable to the jury’s verdict, the evidence pertinently shows that defendant, and his friend, Derek Bray, were guests at a 1996 Fourth of July party at the home of the victim, John Thomas Cathey, II. At about 11 p.m. while outside, two brothers attending the party, Todd and James Copeland, overheard the defendant and Bray in a discussion about “loading the clip” as they walked to their car. The brothers reported what they had heard to a number of the guests at the party and went back outside to further check on the defendant and Bray. While doing so, James Copeland observed defendant in the act of loading a 9 mm semi-automatic pistol. The Copelands returned to the party to further report this information, and, at approximately 12:30 a.m., July 5, 1996, Douglas Phelps, the victim, John Thomas Cathey, II, and Grey Lewis left the party to investigate. Finding defendant and Bray on the driveway of the residence, the three asked the defendant about the gun. The defendant denied the claim of the loaded weapon, explaining that he had only been rolling a marijuana cigarette. The three young men accepted defendant’s explanation and went back to the party.
