Best v. State

• Court: Georgia Court of Appeals
• Writing for the Court: Hodges, Judge.
• Citation: Best v. State, 355 Ga.App. 881, 846 S.E.2d 157 (Ga. App. 2020)
• Decision Date: 26 June 2020
• Docket Number: A20A0418
• Parties: BEST v. The STATE.

355 Ga.App. 881

846 S.E.2d 157

BEST

v.The STATE.

A20A0418

Court of Appeals of Georgia.

June 26, 2020

Steven Mitchell Harrison, for Appellant.

Timothy G. Vaughn, District Attorney, Bradford N. Childers, Assistant District Attorney, for appellee.

Hodges, Judge.

Following a jury trial, the Superior Court of Bleckley County entered a judgment of conviction against Dixie Nicole Best on one count each of criminal attempt to commit a felony (murder) ( OCGA §§ 16-4-1, 16-5-1 ), aggravated assault on a peace officer ( OCGA § 16-5-21 ), and fleeing or attempting to elude a police officer ( OCGA § 40-6-395 ).¹ Best appeals from the denial of her motion for new trial as amended, arguing that: (1) the evidence was insufficient to support her convictions; (2) the trial court erred in admitting a sheriff deputy's opinion testimony; and (3) she received ineffective assistance of trial counsel. Finding no error, we affirm.

Viewed in a light most favorable to the verdict,² the evidence revealed that two Toombs County deputies were assisting a disabled tractor trailer on Line Center Road on the evening of June 15, 2015. As they directed traffic around the truck, the deputies noticed an approaching vehicle perform an abrupt U-turn and proceed down a dead-end road. The deputies also noticed that the vehicle had a broken tail light, and they decided to investigate. Once the tractor trailer cleared the roadway, the deputies proceeded to the dead-end road to look for the vehicle. As they drove down the road, they were met by the vehicle, a black Chevrolet Avalanche driven by a man later identified as Jim Lowery, returning to Line Center Road. The deputies turned around, started to follow the Avalanche, and activated their blue lights in an attempt to stop the vehicle to check the broken taillight. The Avalanche did not stop and returned to Line Center Road.

The pursuit then continued along dirt roads into Montgomery County from Toombs County at speeds exceeding 80 miles per hour. Because of poor visibility caused by dust, the Toombs County deputies slowed down and a Montgomery County deputy in the Avalanche's path took over the pursuit. A Mount Vernon police officer joined the chase, and he and the Montgomery County deputy attempted to "box in" the Avalanche and slow it down. The officers’ first attempt was unsuccessful; when the officers made a second attempt as they rounded a curve, Lowery positioned his upper torso out the driver's side window, pointed a long gun at the Montgomery County deputy, and fired, striking the deputy's left front tire. The Mount Vernon officer then took over the lead in the pursuit.

As the chase continued back into Toombs County at speeds between 70 and 90 miles per hour, Lowery continued shooting at the Mount Vernon officer. The Avalanche ultimately came to a complete stop at a T-junction, and when the Mount Vernon officer exited his patrol vehicle to engage Lowery, Lowery again shot at the officer. When the Montgomery County deputy arrived shortly thereafter, the Avalanche sped away, and the two officers lost the Avalanche.

As the officers monitored radio traffic, they heard Montgomery County Sheriff Ladson O'Connor state that he was behind the Avalanche in Montgomery County and that the driver was shooting at him. Sheriff O'Connor indicated that he was going to attempt to "take them out or something to that effect," but contact with the sheriff was lost shortly thereafter. In attempting to rejoin the pursuit, the Mount Vernon officer passed what appeared to be a vehicle on the side of the road and alerted dispatch to a possible wreck.

In the meantime, a Georgia State Patrol trooper located the Avalanche and continued the pursuit in Montgomery County, while the Mount Vernon officer rejoined the chase shortly thereafter. As the trooper pursued the Avalanche, the trooper saw Lowery position his upper torso out the driver's side window holding a long gun, "beaded [him] down[,] and pulled the trigger[,]" firing the long gun at the trooper. Over the course of the chase, the trooper estimated that Lowery shot at him around six times. To hasten the end of the pursuit, the Toombs County deputies, who had been stationed at two different locations in Montgomery County, applied two sets of stop sticks. At about the same time the Avalanche and the trooper drove over the second set of stop sticks, the trooper performed a PIT maneuver, struck the Avalanche, and the two vehicles came to rest. Lowery jumped out of the Avalanche and ran into the woods. Best, who appeared scared, exited the passenger side of the Avalanche, walked toward the officers, and was detained.

After the pursuit concluded, officers discovered the wreckage of Sheriff O'Connor's truck and the sheriff's body pinned underneath. Sheriff O'Connor died as a result of multiple severe injuries he sustained in the crash. In a search of the area around the sheriff's truck, officers found a .410 shotgun shell and shotgun wadding.³ Lowery was captured the next morning near the Altamaha River separating Montgomery County and Toombs County.

A Montgomery County grand jury indicted Best for three counts of felony murder arising from Sheriff O'Connor's death, three counts of criminal attempt to commit a felony, four counts of aggravated assault on a peace officer, and one count of fleeing or attempting to elude a peace officer. Lowery and Best were tried together and their trial was moved from Montgomery County to Bleckley County. A Bleckley County jury returned verdicts of guilty against Best on one count each of criminal attempt to commit a felony, aggravated assault on a peace officer, and fleeing or attempting to elude a peace officer.⁴ The trial court denied Best's motion for new trial as amended, and this appeal followed.

1. In her first enumeration of error, Best contends that the evidence was insufficient to support her convictions. In substance, Best contends that she was merely a passenger in Lowery's Avalanche and that there was no direct evidence that she participated in steering the Avalanche as Lowery fired at pursuing officers. We are not persuaded.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld.

(Citation and punctuation omitted.) Smith v. State , 333 Ga. App. 256, 258-259 (2), 775 S.E.2d 735 (2015). To that end, "[w]hen reviewing the sufficiency of the evidence this Court does not reweigh the evidence or resolve conflicts in testimony. Resolving evidentiary conflicts and inconsistencies and assessing witness credibility are the province of the fact finder, not the appellate court." (Citations and punctuation omitted.) McNeely v. State , 296 Ga. 422, 425 (1), 768 S.E.2d 751 (2015). Moreover, "[c]ircumstantial evidence need not exclude every other hypothesis save that of the accused's guilt but only reasonable inferences and hypotheses, and it is for the jury to determine whether all reasonable hypotheses have been excluded." (Citation and punctuation omitted; emphasis supplied.) Smith , 333 Ga. App. at 259 (2), 775 S.E.2d 735. Accordingly,

[a] passenger may be charged and convicted as a party to the crime if [she] aided and abetted in the commission of the crime, or if [she] intentionally advised or encouraged the driver to commit the crime. Whether a person was a party to a crime can be inferred from [her] conduct before, during, and after the commission of the crime.

(Citations omitted.) Abney v. State , 306 Ga. 448, 451 (1), 831 S.E.2d 778 (2019).

(a) Criminal Attempt to Commit a Felony (Murder). "A person commits the offense of criminal attempt when, with intent to commit a specific crime, [s]he performs any act which constitutes a substantial step toward the commission of that crime." OCGA § 16-4-1 ; see also OCGA § 16-5-1 (c) ("A person commits the offense of murder when, in the commission of a felony, he or she causes the death of another human being irrespective of malice.").

(b) Aggravated Assault on a Peace Officer. "A person commits the offense of aggravated assault when he or she 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[.]" OCGA § 16-5-21 (a) (2) ; see also OCGA § 16-5-21 (c) (range of punishment for aggravated assault against a public safety officer).

(c) Fleeing or Attempting to Elude a Police Officer. Under Georgia law, it is unlawful "for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop." OCGA § 40-6-395 (a) ; see also Abney , 306 Ga. at 451 (1), 831 S.E.2d 778.

(d) Analysis. Each of the charges for which Best was convicted was based upon the allegation that she steered the Avalanche while Lowery positioned himself outside the window to shoot at the Georgia State Patrol trooper. As recounted above, the trooper testified that Lowery placed his upper body out the driver's side window and, using both hands, took direct aim at the trooper and fired. During this time, there is no indication that the Avalanche swerved or lost control. To that end, the trooper testified that "to come out the window, maneuver that way to discharge a weapon and the vehicle not alter its course in the slightest would seem to be nearly impossible" and that he was confident that Lowery "had some kind of...