Brown v. the State.

• Court: Georgia Supreme Court
• Writing for the Court: CARLEY, Presiding Justice.
• Citation: Brown v. the State., 288 Ga. 364, 703 S.E.2d 609 (Ga. 2010)
• Decision Date: 14 December 2010
• Docket Number: No. S10A1315.,S10A1315.
• Parties: BROWNv.The STATE.

288 Ga. 364

703 S.E.2d 609

10 FCDR 3497

BROWN

v.The STATE.

No. S10A1315.

Supreme Court of Georgia.

Nov. 1, 2010.Reconsideration Denied Dec. 14, 2010.

H.B. Edwards, III, Edwards & Edwards, Valdosta, for appellant.J. David Miller, District Attorney, Tracy K. Chapman, Assistant District Attorney, Thurbert E. Baker, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Mary K. Ware, Assistant Attorney General, for appellee.CARLEY, Presiding Justice.

After a jury trial, Anthony Demetrius Brown was found guilty of the felony murder of Veronica Norwood during the commission of aggravated assault, criminal damage to property in the second degree, and hindering a person making an emergency telephone call. The trial court entered judgments of conviction and sentenced Appellant to life imprisonment for murder, a consecutive five-year term for the property damage charge, and 12 months for hindering an emergency call. A motion for new trial was denied, and Brown appeals.^*

1. Construed most strongly in support of the verdicts, the evidence shows that the victim was Brown's girlfriend, resided with him in a rented mobile home, and was verbally and physically abused by him. The victim began residing with her friend Kerlanda Reynolds and, on May 25, 2003, the two women went to the mobile home to retrieve the victim's belongings. Brown's cousin Antwan McBride also came to the mobile home. After Brown and the victim had argued for some time, Brown struck her, causing her mouth to bleed. When the victim exited through the front door, Brown pushed her off the steps to the ground and poured gasoline on her, some of which got on him. Brown followed the victim back inside, asked McBride and Ms. Reynolds for a lighter, lit a paper towel on a hotplate, and went to the master bathroom where he threw the paper onto the victim, causing her to burst into flames. When Ms. Reynolds attempted to call 9–1–1, Brown snatched the phone from her hand and hung it up, causing her to flee to a neighbor to call 9–1–1.

After McBride began to drive Brown and the victim to the hospital, they were stopped by a deputy and told to wait for an ambulance. Brown told paramedics that he and the victim were mowing grass and had to get more gasoline and that, as they were entering the shower, he decided to smoke a cigarette and lit it, and they both went up in flames. They were taken to the hospital and eventually airlifted to another hospital. On July 15, 2003, Brown told investigators that, as he was leaving, the victim swiped him with a piece of paper with gasoline on it, they became covered in gasoline as they struggled over a gasoline can and, when he went into the bedroom, the victim was holding a lit match which she dropped when he drew back and she may have thought that he was going to hit her. The victim, who suffered third-degree burns over 90% of her body, remained in a medically induced coma for several months and died just two weeks after returning home.

Brown contends that the felony murder conviction must be reversed because the evidence is insufficient to show that he caused the victim's death. Brown argues that the victim died of community-acquired pneumonia and would have survived if she had gone to the hospital on the day before her death as her doctor directed, where she would have received antibiotics. However, the forensic pathologist who conducted the autopsy testified that the victim died as a delayed result of extensive thermal injuries, that her heart problems, pneumonia, and death were all related to those injuries, and that consideration of any refusal of antibiotics would not change his opinion. The victim's doctor testified that, because of her pulmonary edema, antibiotics would not have made any difference in her chance of recovery, that she died of respiratory insufficiency which was consistent with her previous burns, that she did agree to home care including an unsuccessful IV, and that he seriously doubted that hospital care would have caused her to live. Based on this evidence, a rational jury was authorized to conclude that the victim's thermal injuries directly and materially contributed to the happening of a subsequent accruing immediate cause of her death. Bryant v. State, 270 Ga. 266, 268(1)(a), 507 S.E.2d 451 (1998). See also Dyers v. State, 277 Ga. 859, 860(1), 596 S.E.2d 595 (2004); Green v. State, 266 Ga. 758, 760(2)(b), 470 S.E.2d 884 (1996); Dunbar v. State, 263 Ga. 769, 770(5), 438 S.E.2d 356 (1994).

Brown also contends that the underlying aggravated assault conviction was based on insufficient evidence, as no one other than he and the victim could see what happened in the bedroom when the fire started because the door was closed. Contrary to Brown's argument, his statement that the victim started the fire when she dropped a lighted match was not the only evidence of what happened. Ms. Reynolds testified that the door was open, she could see into the bathroom, and she saw Brown run into the bathroom with a burning paper towel and throw it onto the victim. Although McBride testified that the door was closed, his testimony also provided support for a finding that Brown intended to set the victim on fire. Conflicts in the testimony of witnesses “ ‘ “ ‘are a matter of credibility for the jury to resolve. 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.’ (Cit.)” (Cit.)' [Cit.]” Williams v. State, 287 Ga. 199, 200, 695 S.E.2d 246 (2010). Considered in the light most favorable to the verdict, the evidence clearly was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Brown caused the victim's death while committing an aggravated assault against her by intentionally pouring gasoline onto her and throwing a lighted paper towel on her body. See Sanders v. State, 281 Ga. 36(1), 635 S.E.2d 772 (2006); Lowe v. State, 276 Ga. 538–539(1), 579 S.E.2d 728 (2003); Alexander v. State, 263 Ga. 474, 475(1), 435 S.E.2d 187 (1993); Johnson v. State, 246 Ga.App. 109, 111(2), 539 S.E.2d 605 (2000).

Contrary to Brown's further contention, the same evidence supports the guilty verdict with respect to criminal damage to property in the second degree. Brown also asserts that the State failed to produce any evidence that the owner of the mobile home did not consent to the fire. However, in charging on criminal damage to property in the second degree as a lesser included offense of arson in the first degree, the trial court charged only on that method of committing the property damage offense which is contained in subsection (a)(2) of OCGA § 16–7–23. Lack of consent is not an element of the offense defined in that subsection, unlike subsection (a)(1).

Brown urges that the conviction for hindering an emergency phone call must be reversed because there was no evidence that he ever intended to cause or allow physical harm to Ms. Reynolds. However, that offense is set forth in OCGA § 16–10–24.3, which applies to “[a]ny person who verbally or physically obstructs, prevents, or hinders another person with intent to cause or allow physical harm or injury to another person from making or completing a 9–1–1 telephone call....” This repeated use of the phrase “another person” is analogous to the language of the robbery statute prohibiting a person from taking “property of another from the person or the immediate presence of another....” OCGA § 16–8–40(a). That statute clearly does not require that the “property of another” be taken from the same person who owns the property. Instead, it can be taken from yet another. The property may be owned by and taken from two different persons. “[I]t does not matter exactly whose property was taken so long as it was taken from a ‘person or the immediate presence of another.’ [Cit.]” Ward v. State, 304 Ga.App. 517, 522(1)(a), 696 S.E.2d 471 (2010). The legislature knows how to indicate that two references to a person other than the perpetrator both refer to the same person. See OCGA §§ 16–6–22.1(b) (“another person without the consent of that person”), 16–6–22.2(b) (“another person without the consent of that person”), 16–7–21(a) ( “property of another without consent of that person” or “that other person”). We conclude that OCGA § 16–10–24.3 does not require that the perpetrator intend to cause or allow harm to the person who is hindered from making a 9–1–1 call. The evidence in this case authorized the jury to find that Brown, with the intent to cause or allow physical harm to the victim, hindered Ms. Reynolds from making a 9–1–1 call.

The evidence was sufficient to enable a rational trier of fact to find Brown guilty beyond a reasonable doubt of all of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Brown enumerates as error the trial court's refusal to give his requests to charge on involuntary manslaughter, simple assault, and simple battery as lesser included offenses.

Brown argues that instructions on simple assault and on involuntary manslaughter during commission of that unlawful act were authorized by his statement that the victim dropped a lighted match when he drew back and she may have thought that he was going to hit her. That statement constituted some proof only that the gasoline caught fire accidentally while Brown was trying to prevent the consequences of the victim's dangerous conduct. Thus, this evidence did not show that Brown committed any crime at all with respect to the lighting of the gasoline, while all of the other evidence in this regard showed that Brown intentionally set the victim on fire. See McClure v. State, 278 Ga. 411, 413(4), 603 S.E.2d 224 (2004); Bellamy v. State, 272 Ga. 157, 159(2), 527 S.E.2d 867 (2000). “ ‘ “Where, as here, the evidence shows either the commission...