Opinion
A03A1369.
DECIDED: SEPTEMBER 18, 2003
Armed robbery, etc. Chatham Superior Court. Before Judge Falligant, pro hac vice.
Calhoun, Cerbone Sapp, William S. Lewis, for appellant.
Spencer Lawton, Jr., District Attorney, Patricia P. Stone, David T. Lock, Assistant District Attorneys, for appellee.
Defendant David Eugene Cammer was convicted by a jury of armed robbery, kidnaping with bodily injury, hijacking a motor vehicle, aggravated assault, and possession of a firearm during the commission of a felony. He appeals following the denial of his motion and amended motion for new trial.
1. Relying on Hicks v. State, 231 Ga. App. 552, 553(1) ( 499 S.E.2d 341) (1998), Cammer argues that his conviction was void because the procedures outlined in OCGA § 15-1-9.1(f) were not followed in appointing the pro tem probate court judge who presided over his trial. However, our Supreme Court recently overruled Hicks "to the extent it holds that an intra-county designation order must comply with OCGA § 15-1-9.1(f))." Lewis v. McDougal, 276 Ga. 861, 862(1) ( 583 S.E.2d 859) (2003). And this court has rejected the contention also urged on appeal that failure to file the designation on the minutes of the court prior to the commencement of the proceedings voids the proceedings. Marsh v. Resolution Trust Corp., 211 Ga. App. 216, 217-218(3) ( 439 S.E.2d 75) (1993). Furthermore, the record shows that Cammer did not raise any objection to the designation of the judge when the trial commenced, or in his original motion for new trial, but raised this issue for the first time in his amended motion for new trial. Our state appellate courts have made plain that "[p]arties cannot wait until after they see the result of the hearing to challenge a presiding judge's authority under OCGA § 15-1-9.1. Bennett v. Jones, 218 Ga. App. 714, 715(1) ( 463 S.E.2d 158) (1995)." Albright v. Peterson, 247 Ga. App. 203(1) ( 539 S.E.2d 919) (2000). Thus, failure to raise this issue prior to the commencement of the proceedings upon which the appeal is based precludes appellate review of this issue. Troncone v. Troncone, 261 Ga. 662, 663(3) ( 409 S.E.2d 516) (1991); Hurst v. State, 260 Ga. App. 708(2) ( 580 S.E.2d 666) (2003) (failure to timely challenge appointment under OCGA § 15-1-9.2); Maldonado v. State, 240 Ga. App. 497(1) ( 523 S.E.2d 917) (1999); Kittler v. State, 234 Ga. App. 120(1) ( 506 S.E.2d 231) (1998).
2. Contrary to Cammer's remaining enumeration of error, the trial court did not err by failing to give Cammer's request to charge on reckless conduct as a lesser included offense of aggravated assault under the facts of this case. Cammer's testimony that he fired shots in the air instead of directly at the victim after he ordered the victim out of the car on a deserted road showed "[his] intent was to put the [victim] in fear of an immediate bodily injury. [Cit.] Thus, a charge on reckless conduct was not warranted." Huguley v. State, 242 Ga. App. 645, 648-649(1)(a) (b) ( 529 S.E.2d 915) (2000). Moreover, testimony that at some point he handed the gun to his accomplice, and that his accomplice fired the gun at the victim, would support Cammer's conviction as a party to the crime of aggravated assault. Cammon v. State, 269 Ga. 470, 471(1) ( 500 S.E.2d 329) (1998); Tolbert v. State, 215 Ga. App. 113, 114(1) ( 449 S.E.2d 671) (1994). Cammer's argument that his conviction must be reversed because of the trial court's failure to charge on reckless conduct is thus without merit.
Judgment affirmed. Andrews, P.J., and Barnes, J., concur.