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Final Copy 288 Ga. 741

S10A2028. HOWARD v. THE STATE. S11A0026. ROSS v. THE STATE.

CARLEY, Presiding Justice.

Appellants Jarmmal Howard and Joe Ross were tried jointly before a jury. Ross was found guilty of the malice murder of Quatavius Bell, felony murder during the commission of possession of a firearm by a convicted felon, and a separate count charging that underlying offense. Both Appellants were found guilty of felony murder during the commission of an aggravated assault against Bell, four counts of aggravated assault against four other individuals, and possession of a firearm during the commission of a felony. The felony murder verdicts against Ross were vacated by operation of law, and the count of aggravated assault involving Bell was merged into the remaining murder verdicts. The trial court entered judgments of conviction on those guilty verdicts which were neither vacated nor merged, and sentenced both Appellants to life imprisonment for murder, consecutive 20-year terms for the four remaining aggravated assault counts, and a consecutive five-year term for

firearm possession during the commission of a felony. Ross was also sentenced to a consecutive five-year term for firearm possession by a convicted felon. Thereafter, separate motions for new trial were denied and separate notices of appeal were filed.* The two appeals are consolidated for disposition in this single opinion. 1. Construed most strongly in support of the verdicts, the evidence, including the testimony of several eyewitnesses, shows that Carlos White, who was with a large group of friends, pulled a gun on Howard at an apartment complex. After Howard left, he was angry and told his friends that he would return and start shooting. Howard called his mother and was picked up by her and Ross, who is his stepfather. When White and his friends later drove into the apartment complex, Howard began firing an AK-47 and Ross began firing a

The crimes occurred on November 7, 2004, and the grand jury returned an indictment on February 4, 2005. The jury found Appellants guilty on March 27, 2008 and, on the following day, the trial court entered the judgments of conviction and sentences. Howard's motion for new trial was filed on April 10, 2008, amended on October 8, 2009, and denied on April 29, 2010. Ross' motion for new trial was filed on April 25, 2008, amended on December 29, 2008, and denied on May 17, 2010. Both notices of appeal were filed on May 26, 2010. Howard's appeal was docketed in this Court for the September 2010 term as Case Number S10A2028, and Ross' appeal was docketed for the January 2011 term as Case Number S11A0026. Both cases were orally argued on January 24, 2011.
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pistol in their direction while many people were in the parking lot, including Bell and four of his friends. Bell was fatally wounded by a bullet which matched shell casings that were found at the scene and came from a Bryco or Lorson .380 caliber pistol. With respect to the convictions for aggravated assault of Bell's friends Kenneth Sanders, Tavarus Simon, and Demarcus Smith, Howard argues that the evidence shows only that these alleged victims heard gunshots and ran, that Sanders testified that he was not afraid that he would be shot, and that Smith testified that he witnessed the shooting but did not know if the shots were coming in his direction. "The state of mind of the victim of an assault is a question of fact, which may be established by circumstantial evidence. [Cit.]" Lewis v. State, 215 Ga. App. 161, 163 (2) (450 SE2d 448) (1994). "(P)roof that the victim has been placed in apprehension of immediately receiving a violent injury need not necessarily be solely by reason of the victim's testimony of his mental state but may be inferred from the conduct of the victim such as when he retreats to secure his safety. (Cits.)" [Cit.] Heard v. State, 204 Ga. App. 757, 759 (2) (420 SE2d 639) (1992). Testimony that the victims ran from the gunfire is sufficient evidence that Appellants placed them in reasonable apprehension of immediately receiving a violent
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injury. See Adkins v. State, 279 Ga. 424, 425-426 (2) (614 SE2d 67) (2005); Roberts v. State, 267 Ga. 669, 671 (1) (482 SE2d 245) (1997); Lewis v. State, supra; Heard v. State, supra. Sanders testified that he was sitting on the ground, could have been shot, and would have been if he had stood up. A jury could find that Sanders experienced a reasonable apprehension of receiving a violent injury even though he affirmatively testified that he was not afraid. Lunsford v. State, 260 Ga. App. 818, 821 (2) (581 SE2d 638) (2003). "`(R)easonable apprehension of injury is not the same as simple fear,' and the fact that the victim does not necessarily experience fear does not preclude a finding of reasonable apprehension. [Cits.]" Bates v. State, 275 Ga. 862, 865 (4) (572 SE2d 550) (2002). Thus, the evidence was sufficient to prove the three counts of aggravated assault of which Howard complains. See In the Interest of C. D. G., 279 Ga. App. 718, 719 (632 SE2d 450) (2006). Moreover, other evidence showed that all of the victims were positioned in or very near the line of fire. "[D]eliberately firing a gun in the direction of another person constitutes aggravated assault[.]" Baker v. State, 273 Ga. App. 297, 299 (1), fn. 8 (614 SE2d 904) (2005) (citing Williams v. State, 249 Ga. 6, 8 (4) (287 SE2d 31) (1982)). See also Willis v. State, 214 Ga. App. 479-480 (1) (448 SE2d 223)
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(1994). Compare Merrell v. State, 162 Ga. App. 886, 887 (2) (293 SE2d 474) (1982). Reviewing the evidence in the light most favorable to the verdicts, we conclude that it was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that each Appellant was guilty of all of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 2. Howard contends that the trial court committed reversible error by failing to inform the jury of the definition of simple assault even though that offense is an essential element of aggravated assault. As the trial court found, no objections to the jury instructions relevant to this assertion of error were raised at trial. Because Howard "was tried after the effective date of the 2007 amendment to OCGA

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