Veal v. State, 191 Ga. App. 445, 446 (2) ( 382 SE2d 131) (1989). See also Mitchell v. State, 222 Ga. App. 866, 867 (1) ( 476 SE2d 639) (1996) ("the proper test is whether the [weapon] reasonably appeared to the victim to be a deadly weapon"). Accordingly, this Court has upheld convictions for aggravated assault where the crime involved a blank gun, a BB gun, an inoperable pellet gun, and a toy gun.
Regardless of whether the rifle that Stancil pointed at the officer was loaded and capable of firing, a jury could have found Stancil guilty of aggravated assault based on evidence that he pointed a gun at the officer and that the gun reasonably appeared to be a deadly weapon. See OCGA ยง 16-5-21 (a) (2); Mitchell v. State, 222 Ga. App. 866, 867 (1) ( 476 SE2d 639) (1996). The evidence sufficed to sustain the conviction.
A pellet gun can be, and certainly was in this case, a deadly weapon. See Mitchell v. State, 222 Ga. App. 866, 867 (1) ( 476 S.E.2d 639) (1996), citing Adsitt v. State, 248 Ga. 237, 240 (6) ( 282 S.E.2d 305) (1981). In fact, Flores was separately charged with and found guilty of the aggravated assault of Williamson "with a pellet gun, a deadly weapon and an object which, when used offensively, is likely to and actually did result in serious bodily injury."
See, e.g., Mitchell v. State.Mitchell v. State, 222 Ga. App. 866, 867 (1) ( 476 SE2d 639) (1996). Jackson contends that the trial court erred by allowing Officer Thrift and Officer Burke to state their opinion that the toy gun used by Jackson looked real because that determination was the ultimate issue for the jury and not beyond the ken of the average layman.
When the deadly weapon used in the commission of aggravated assault is in fact a B B gun, the proper test is whether the gun that the accused used reasonably appeared to the victim to be a deadly weapon. See Mitchell v. State, 222 Ga. App. 866, 867 (1) ( 476 S.E.2d 639) (1996). We have already determined, supra, that there is evidence that C.A. did point the gun at B.M., who testified that when C.A. pointed the gun at him, he was "real scared."
That Anderson's gun was a toy replica is of no import, because Halliday reasonably believed that it was real. Mitchell v. State, 222 Ga. App. 866, 867 (1) ( 476 S.E.2d 639) (1996). Anderson also challenges the sufficiency of the evidence supporting his conviction for the armed robbery of Mason Shives, arguing there was no evidence that Anderson used a handgun to intimidate Shives. Pursuant to OCGA ยง 16-8-41, "a person commits the offense of armed robbery when, with intent to commit theft, he . . . takes the property of another from the person . . . by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon."
Assuming arguendo, that defendant's testimony on direct examination regarding his prior convictions had not already placed his character in issue, the instructions given to the jury were an adequate corrective measure, and the trial court did not abuse its discretion by denying the motion for a mistrial. Williams v. State, 262 Ga. 422 ( 420 S.E.2d 301) (1992); Mitchell v. State, 222 Ga. App. 866 ( 476 S.E.2d 639) (1996). 3.
Where, as here, it is not apparent that a mistrial was essential to the preservation of Tanner's right to a fair trial, we cannot say the trial court abused its discretion in opting for the instruction over a mistrial. Young v. State, 221 Ga. App. 462, 463 (1) ( 471 S.E.2d 523) (1996); see Mitchell v. State, 222 Ga. App. 866, 868 (2) ( 476 S.E.2d 639) (1996). 3. Nor do we find error in the trial court's rejection of the motion for mistrial Tanner sought during closing when the State sarcastically argued that if the jury members found Tanner's actions reasonable, they should acquit and let him shop in their stores.
"The decision to give curative instructions to the jury rather than grant the mistrial request following the introduction of bad character evidence was within the discretion of the trial court and was not error. [Cit.]" Mitchell v. State, 222 Ga. App. 866, 868 (2) ( 476 S.E.2d 639) (1996). We find the court properly exercised its discretion by giving an appropriate curative instruction.
The trial judge did not abuse his discretion in deciding that cautionary instructions were sufficient in this case. See Mitchell v. State, 222 Ga. App. 866, 867-868 (2) ( 476 S.E.2d 639) (1996). 3.