Deleon v. the State.

• Decision Date: 03 October 2011
• Docket Number: No. S11A0939.,S11A0939.
• Citation: 289 Ga. 782,716 S.E.2d 173,11 FCDR 3060
• Parties: DeLEONv.The STATE.
• Court: Georgia Supreme Court

289 Ga. 782
716 S.E.2d 173
11 FCDR 3060

DeLEON
v.
The STATE.

No. S11A0939.

Supreme Court of Georgia.

Oct. 3, 2011.

[716 S.E.2d 174]

Jennifer Adair Trieshmann, for appellant.James Bradley Smith, District Attorney, Robin Rowden Riggs, Asst. Dist. Atty., Samuel S. Olens, Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Mary Kimmey Ware, Assistant Attorney General, for appellee.BENHAM, Justice.

[289 Ga. 782] On April 7, 2006, Appellant Yonlenon DeLeon fatally shot the victim Servando–Duron Nieto and wounded Almanida Murilla in a restaurant in Winder, Georgia (Barrow County).¹ The evidence at trial showed that a week prior to the shooting, the victim and appellant's best friend had a physical altercation and appellant's friend confided to appellant that he wanted appellant's help in obtaining revenge against Nieto. Appellant admitted that, on the night of the shooting, he went to the restaurant with a loaded gun. Witnesses saw appellant shoot at the victim and then flee the restaurant. The victim, who was unarmed, was shot four times and died from his gunshot wounds, including a wound from a bullet that pierced his lung and aorta. An uninvolved restaurant patron Almanida Murilla was also wounded by the bullets shot by appellant, but she survived her injuries. Appellant confided to his employer and to his fiancée that he shot someone using a gun owned by the employer. Appellant's employer testified that appellant told him that he had thrown the gun away. Appellant then fled the country, but was arrested upon his return to Georgia on July 22, 2006.

1. The evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of felony murder, reckless conduct, aggravated battery, tampering with evidence, and possession of a

[716 S.E.2d 175]

firearm. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Appellant argues that the evidence was insufficient to convict him of felony tampering with evidence. We conclude that the evidence was sufficient to convict appellant of tampering with evidence, but that the trial court erred when it sentenced appellant [289 Ga. 783] for felony tampering with evidence. Inasmuch as the evidence showed appellant threw the murder weapon away thereby tampering with evidence in his own case and not that of another, he could not be convicted of a felony, but only convicted of a misdemeanor. White v. State, 287 Ga. 713(1)(d), 699 S.E.2d 291 (2010). Accordingly, it was erroneous for the trial court to impose a five-year probated sentence for the tampering with evidence conviction. The sentence for felony tampering with evidence is vacated, and the case is remanded for resentencing consistent with this opinion.

2. Two witnesses for the defense testified that, on the night of the shooting and prior to appellant's arrival at the restaurant, Nieto was drinking and making threats to beat and kill appellant. Appellant argues that the trial court erred when it allowed the two witnesses to testify on cross-examination that they did not take seriously the threats made by Nieto. Appellant asserts this testimony goes to the ultimate fact as to whether appellant acted in self-defense. We disagree. The witnesses were not asked and did not testify as to whether they believed appellant acted in self-defense and so they did not express an opinion on the ultimate issue of fact. Moreover, appellant was not present when the threats were made, and there was no evidence that he knew of these threats when he shot Nieto. Accordingly, this testimony had no bearing on whether appellant believed he faced an imminent threat at the time he shot Nieto. See, e.g., Baker v. State, 142 Ga. 619, 83 S.E. 531 (1914) ( “[A]pprehensions or opinions of third parties, that the accused is in imminent danger, are not relevant. But facts from which apprehension might reasonably be inferred, as distinct from opinion, are relevant when stated or shown by third parties.”). This enumerated error is without merit.

3. Appellant contends the charges given on justification, provocation, and voluntary manslaughter were conflated, causing confusion to the jury. Jury charges are to be...