FIFTH DIVISION

RICKMAN, C. J.,

MCFADDEN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS

COURT. ALL FILINGS MUST BE SUBMITTED WITHIN

THE TIMES SET BY OUR COURT RULES.

August 18, 2021

In the Court of Appeals of Georgia

A21A1013. TURKIA v. THE STATE.

PHIPPS, Senior Appellate Judge.

A jury found Jari Kalevi Turkia guilty of aggravated battery, battery, and

simple assault as a lesser-included offense of aggravated assault. Following the denial

of his motion for new trial, Turkia appeals. He argues that the trial court erred by

addressing jury questions during deliberations without first soliciting his input and

by failing to properly instruct the jury on the deadly weapon element of aggravated

assault. We find no error and affirm.

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 enjoysthe presumption of innocence; moreover, an

appellate court determines evidence sufficiency and does not weigh the

evidence or determine witness credibility.
Zerbarini v. State, 359 Ga. App. 153, 153-154 (855 SE2d 87) (2021) (citation

omitted). See also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61

LE2d 560) (1979). Viewed in that light, the record shows that in November 2016,

Turkia knocked on the door of the victim’s house. Believing Turkia was a

salesperson, the victim opened the door. Turkia told the victim that he was looking

for “the turkey house.” The victim informed Turkia that he had the wrong house, and

Turkia walked away. 

A few minutes later, the victim again heard a knock at the door and saw that

Turkia had returned.Believing Turkia needed directions, the victimagain opened the

door. “The minute” he opened the door, however, Turkia “pushed it open, full force,”

throwing the victim back a few feet. Turkia then held the victim tightly, tried to force

him out of the house, and yelled, “You need to get out, this is my house, you need to

get out,” and “My wife owns this house.” The victim tried to explain to Turkia that

he owned the house, but Turkia “pushed [him]so hard [he] actually went through the

drywall.” The victim continued to try and reason with Turkia, but Turkia put the

victim in a chokehold, causing the victim to collapse to his knees, and started

suffocating him. Turkia then pushed the victim down into the floor and pressed his

whole body weight onto the victim. The victim thought Turkia was going to kill him.

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Ultimately, however, Turkia threw the victim out of the house, and he slammed and

locked the door. As a result of Turkia’s attack, the victim was bleeding, sustained a

cracked rib, and had scratches, bruises, and red marks where Turkia choked him.

The victim called 911, and officers arrived on the scene shortly thereafter. The

officers entered the house and arrested Turkia. A responding officer testified that

Turkia looked like he had been in a fight, was flushed, and appeared to be under the

influence of illegal drugs. An audio recording of the victim’s 911 call was admitted

at trial and played for the jury. 

A jury found Turkia guilty of aggravated battery, battery, and simple assault

as a lesser-included offense of aggravated assault. The trial court denied Turkia’s

motion for new trial, and Turkia filed this timely appeal. 

1. Turkia first alleges that the trial court erred by failing to follow the

procedure established by Lowery v. State, 282 Ga. 68, 72-76 (4) (b) (646 SE2d 67)

(2007), for responding to a deliberating jury’s questions. The record shows that the

deliberating jury sent the trial court two notes. We find no reversible error in the trial

court’s response to either note.

The procedure for addressing a deliberating jury’s question is well settled. A

trial court is required

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to have jurors’ communications submitted to the court in writing; to

mark [each] written communication as a court exhibit in the presence of

counsel; to afford counsel a full opportunity to suggest an appropriate

response; and to make counsel aware of the substance of the trial court’s

intended response in order that counsel may seek whatever

modifications counsel deems appropriate before the jury is exposed to

the instruction.

Lowery, 282 Ga. at 76 (4) (b) (ii). 

a. The first note. In the first note, the jury asked to review Turkia’s and the

victim’s testimony, as well as the 911 call. The trial court informed the jury that

testimony was not reduced to writing, and the jurors needed to rely on their notes and

collective memory regarding any testimony. However, the trial court replayed the

audio recording of the 911 call in the courtroom for the jury. The record indicatesthat

the State and Turkia, who was proceeding pro se after firing his trial counsel midtrial,

1 were present when the trial court addressed the jury’s note and replayed the 911

tape. Neither party objected to the trial court’s recharge. 

1

 We note that pro se litigants are held to the same standard as attorneys. See

Lewis v. State, 330 Ga. App. 650, 652 (768 SE2d 821) (2015) (“A party is not held

to a different or more lenient standard merely because he elected to proceed pro se.

One who knowingly elects to represent himself assumes full responsibility for

complying with the substantive and procedural requirements of the law.”) (citation

and punctuation omitted). Turkia later obtained counsel to represent him at

sentencing and for his motion for a new trial. 

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It is important to note that Turkia does not challenge the substance of the

recharge given to the jury in response to this first note. In fact, his counsel at the

motion for new trial hearing stated that the trial court’s responses were “correct and

accurate.” Instead, Turkia claims that the trial court failed to follow the procedure

prescribed by Lowery for handling jury notes. The State acknowledges that the trial

court failed to follow the Lowery procedure with respect to the first note because “the

trial court did not address the jury’s questions with the prosecutor and [Turkia] prior

to bringing the jury in and discussing the questions with the jury.” Notwithstanding

the trial court’s failure to follow the proper procedure, Turkia “did not object at trial

to the procedure that the court followed in handling the jury note here. [He] therefore

waived this claim and is not entitled even to plain error review.” Suggs v. State, 310

Ga. 762, 768 (6) (854 SE2d 674) (2021) (citation omitted).

b. The second note. The second note asked, “In order to meet the criteria of

aggravated assault, would the defendant have to have intended (intent to) strangle?”

and requested the full definition of aggravated assault. The State and Turkia were

apprised of the jury’s note, and both weighed in on the appropriate response to this

note before the jury was brought to the courtroom. The trial court then recharged the

jury with the full definition of aggravated assault, adjusted to the indictment and the

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facts in the case, and gave an additional charge on criminal intent. Following the

recharge, the trial court solicited objections, and Turkia stated that he had none. 

As with the first note, Turkia does not challenge the substance of the recharge

given to the jury in response to thissecond note, but, rather, claims again that the trial

court failed to follow the procedure prescribed by Lowery for handling jury notes.

However, even Turkia’s motion for new trial counsel conceded that he did not “see

much of a problem with the handling of the second question.” Moreover, once again,

Turkia “did not object at trial to the procedure that the court followed in handling the

jury note here. [He] therefore waived this claim and is not entitled even to plain error

review.” Suggs, 310 Ga. at 768 (6) (citation omitted).

The trial court did not err in denying Turkia’s motion for new trial based on the

handling of the jury’s notes.

2. Turkia next challenges the trial court’s failure to charge the jury on its duty

to determine whether an offensive weapon was used for purposes of the aggravated

assault charge, citing suggested Pattern Jury Instructions, Vol. II: Criminal Cases, §

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2.20.23.

2 He asserts by omitting this charge, the trial court failed to instruct the jury

as to a material element of the aggravated assault count. We find no error.

First and foremost, the jury found Turkia guilty of the lesser-included offense

of - and the trial court sentenced him for - simple assault, not aggravated assault.

Because the trial court did not enter a judgment of conviction and sentence as to

aggravated assault, “any issues concerning those jury instructions are moot.” Allen

v. State, 296 Ga. 785, 791 (9) (770 SE2d 824) (2015). Accord Parker v. State, 282

Ga. 897, 899 (4) (655 SE2d 582) (2008) (enumerated errors concerning jury charge

given in connection with felony murder and aggravated assault counts of an

indictment were moot because trial court entered a judgment of conviction and

sentence only on malice murder verdict). 

Regardless, Turkia’s claim nevertheless fails because “[s]uch an instruction

was simply inapplicable to the case at bar.” Boyd v. State, 289 Ga. App. 342, 345 (3)

(656 SE2d 864) (2008). OCGA § 16-5-21 (a) provides for distinct methods of

2 Pattern Jury Instruction 2.20.23 is labeled “Aggravated Assault; Deadly

Weapon; Other Weapons.” The instruction informs the jury that it “may or may not

infer the (lethal) (serious injury-producing) character of the instrument in question

from the nature and extent of the injury, if any, inflicted upon the person allegedly

attacked” and that it must decide fromthe evidence in the case whether the implement

used constituted a deadly weapon or a weapon likely to cause serious bodily injury. 

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committing aggravated assault.As applicable toTurkia’s argument, OCGA§ 16-5-21

(a) (2) statesthat a person commitsthe offense of aggravated assault when he assaults

“[w]ith a deadly weapon or with any object, device, or instrument which, when used

offensively against a person, is likely to or actually does result in serious bodily

injury,” whereas OCGA § 16-5-21 (a) (3) states that a person commits an ggravated

assault when he assaults “[w]ith any object, device, or instrument which, when used

offensively against a person, is likely to or actually does result in strangulation.”

Here, the State alleged the latter method when it asserted in the indictment that Turkia

assaulted the victim with his “hands and an arm . . . which when used offensively

against a person are likely to and actually did result in strangulation.” Thus, “[t]here

was no need to instruct the jury on hands as deadly weapons, as that method of

aggravated assault was [neither] alleged nor pursued by the State.” Boyd, 289 Ga.

App. at 345 (3).

Judgment affirmed. Rickman, C. J., and McFadden, P. J., concur.

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