Allen v. State

• Decision Date: 04 October 2021
• Docket Number: A21A0709
• Citation: 361 Ga.App. 300,864 S.E.2d 149
• Parties: ALLEN v. The STATE.
• Court: Georgia Court of Appeals

361 Ga.App. 300

864 S.E.2d 149

ALLEN

v.The STATE.

A21A0709

Court of Appeals of Georgia.

October 4, 2021

Tradd Alister Bosch, Roswell, for Appellant.

David Parks White, District Attorney, Michael Martin Coveney, Branden Pollett, Assistant District Attorneys, for Appellee.

Brown, Judge.

Following a jury trial, Marcellous Allen was convicted of three counts of violation of the Georgia Street Gang Terrorism and Prevention Act, OCGA § 16-15-1 et seq. He appeals his convictions and the denial of his motion for new trial, challenging the sufficiency of the evidence and contending that his convictions violate his constitutional right to free association. Allen also contends that the trial court erred in (1) admitting a recording over his hearsay and Confrontation Clause objections; (2) admitting evidence of Allen's gang involvement; and (3) denying his motions for mistrial. For the reasons that follow, we affirm.

"On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence." (Citation and punctuation omitted.) Solomon v. State , 342 Ga. App. 836, 805 S.E.2d 293 (2017). So viewed, the record shows that around 3:00 p.m. on October 3, 2017, a "shootout" occurred outside the G&T Snack Bar in Hartwell. Employees working in nearby offices testified that they heard multiple sets of gunfire and observed men running by outside, including one man wearing a white tank top who was armed with a gun. Police responded to the shooting and, after speaking with witnesses, learned that Ray Tate, Allen, and some other men were involved in the shootout. Shortly after the incident, police found Tate hiding with a gun in a nearby apartment and apprehended him. On the following day, police arrested Allen. Allen did not have a gun at the time of his arrest. In his interview with police, Allen admitted being present during the shootout but said that he ran when Ray Tate started shooting and did not return fire.

Police also interviewed a bystander who witnessed the shootout. In the interview, which was played for the jury, the bystander stated he saw three men, including Allen and "Young Money," start shooting at Ray Tate. When the bystander was called to testify, he denied seeing anything to do with the shootout. A female eyewitness testified that she heard gunshots and saw Allen, Ray Tate, and "Young Money" running, but she did not see a gun.

One of Allen's associates,¹ "Slime," testified that on the day of the incident, he met Allen and some others near the G&T Snack Bar, that they walked to the G&T and approached Ray Tate, that Tate started shooting, and that another associate called "Young Money"² shot back at Tate before everyone started running. Slime testified that he saw Allen with a gun and that Allen ran into an alley before Slime heard more shots fired. According to Slime, Allen was a member of the Sex-Money-Murder gang.³

On the night prior to the shootout, Ray Tate was on Facebook Live, repeatedly asking "where murder gang at, stop hiding" and calling Allen a "bitch." Tate also called out "Slime" and "Young Money." An audio recording of this Facebook Live was played for the jury. Records obtained from Allen's cell phone showed that at 9:46 that same night, Allen received a text message stating, "Ray on live talkin bout murder gang stop hiding." The records reflected the text message was "read." Allen's phone records also established that Allen and Slime exchanged multiple phone calls in the approximately twenty minutes leading up to the shootout.

In a joint indictment,⁴ Allen was charged with four counts of violation of the Street Gang Terrorism and Prevention Act and one count each of aggravated assault, possession of a firearm during the commission of a felony, possession of marijuana with intent to distribute, illegal use of a communication facility, and possession of a firearm by a convicted felon. The jury found Allen guilty of three counts of violation of the Street Gang Terrorism and Prevention Act (Counts 1-3) and not guilty of aggravated assault and possession of a firearm during the commission of a felony (Counts 4 and 5). The trial was bifurcated, and the jury returned a not guilty verdict on possession of a firearm by a convicted felon and one count of violation of the Street Gang Terrorism and Prevention Act (based on possession of a firearm by a convicted felon). The counts charging possession of marijuana with intent to distribute and illegal use of communication facility were severed and tried separately. Allen filed a motion for new trial, and the trial court denied the motion, as amended.

1. Allen argues that the evidence was insufficient to sustain his convictions for violation of the Street Gang Terrorism and Prevention Act. Specifically, he contends that the State failed to establish that he committed the predicate acts of "criminal street gang activity" because he was acquitted of the predicate offenses charged in the indictment. We disagree.

Allen was charged with three counts of violating the Georgia Street Gang Terrorism and Prevention Act by participating in criminal street gang activity through the commission of aggravated assault (Count 1), possession of a firearm during the commission of a felony (Count 2), and discharging a firearm near a public highway (Count 3), while associated with "Sex-Money-Murder, a subset of the Bloods, a criminal street gang."⁵ The indictment charged Allen with two of the predicate offenses, namely aggravated assault and possession of a firearm during commission of a felony.

In order to establish that Allen violated the Street Gang Terrorism and Prevention Act, the State was required to prove four elements: "(1) the existence of a criminal street gang, [as] defined in OCGA § 16-15-3 [(3)] ...; (2) [Allen's] association with the gang; (3) that [Allen] committed one of the offenses identified in OCGA § 16-15-3 (1) ; and (4) that the crime was intended to further the interests of the gang." (Citation and punctuation omitted.) Boyd v. State , 306 Ga. 204, 209 (1) (b), 830 S.E.2d 160 (2019). Accord Broxton v. State , 306 Ga. 127, 133 (2), 829 S.E.2d 333 (2019). Allen only disputes the sufficiency of the evidence with regard to the third element because he was acquitted of the predicate offenses, and we conclude that sufficient evidence supports the remaining elements.

"An acquittal on one charge does not affect the sufficiency of the evidence as to another charge, even if the conviction is a compound offense, and the acquittal was for a predicate offense." Houseworth v. State , 348 Ga. App. 119, 124 (1) (c), 820 S.E.2d 231 (2018). Accordingly, even though Allen was acquitted of aggravated assault and possession of a firearm during commission of a felony, any evidence offered during the trial may be used to evaluate the sufficiency of the evidence for his convictions for violation of the Street Gang Terrorism and Prevention Act. See Allen v. State , 351 Ga. App. 680, 684, 832 S.E.2d 659 (2019). On appeal, "[w]e neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Citation and punctuation omitted.) Bynes v. State , 336 Ga. App. 223, 784 S.E.2d 71 (2016). "[T]he jury's verdict will be upheld so long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case." Morris v. State , 340 Ga. App. 295, 297, 797 S.E.2d 207 (2017).

Here, the State presented sufficient evidence from which a jury could conclude that Allen committed the predicate offenses of aggravated assault, possession of a firearm during the commission of a felony, and discharging a firearm near a public highway. Eyewitness testimony established that a shootout involving multiple men took place outside the G&T Snack Bar, that at least one of the men was armed with a gun, and that Allen was involved. One of the men involved in the shootout testified that Allen had a gun and that he heard gunshots after Allen ran into an alley. Further, one bystander stated that he saw Allen shooting at Ray Tate. Although the bystander recanted his statement at trial, "it is the jury's role to resolve conflicts in the evidence and determine the credibility of witnesses, and the presence of such conflicts does not render the evidence insufficient." (Citation and punctuation omitted.) Benton v. State , 356 Ga. App. 441, 444 (1) (c), 847 S.E.2d 625 (2020) ("[t]his law applies even when a witness recants her previous statement"). See also Walker v. State , 348 Ga. App. 273, 275 (1), n.1, 821 S.E.2d 567 (2018). Finally, the State presented evidence of Allen's motive in the form of Ray Tate's Facebook Live, in which he called out the "Sex-Money-Murder" gang as well as Allen individually.

Moreover, the trial court charged the jury on the law regarding party to a crime. Under this theory, "[o]ne is culpable as a party to a crime, even if he did not directly commit it, if he intentionally aids or abets in the commission of the crime or intentionally advises, encourages, hires, counsels, or procures another to commit the crime." (Citations and punctuation omitted.) Stewart v. State , 243 Ga. App. 860, 861 (1), 534 S.E.2d 544 (2000). "Presence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred." (Citation and punctuation omitted.) Id. at 861-862 (1), 534 S.E.2d 544. Although the jury acquitted Allen of the charged predicate offenses, we conclude that evidence was sufficient to prove that Allen committed the predicate offenses as a party to the crimes. Cf. Daniely v. State , 309 Ga. App. 123, 124-125 (1), 709 S.E.2d 274 (2011) (finding evidence sufficient to affirm conviction...