Elkins v. State

• Decision Date: 24 June 2019
• Docket Number: A19A0503
• Citation: 830 S.E.2d 345,350 Ga.App. 816
• Parties: ELKINS v. The STATE.
• Court: Georgia Court of Appeals

350 Ga.App. 816

830 S.E.2d 345

ELKINS

v.The STATE.

A19A0503

Court of Appeals of Georgia.

June 24, 2019

Jackie Lynn Tyo, for Appellant.

Andrew J. Ekonomou, Atlanta, Jacquelyn Lee Johnson, Thomas Edward Buscemi, for Appellee.

Dillard, Chief Judge.

Following a jury trial, Karimah Elkins was convicted of evidence tampering. On appeal, Elkins argues that the evidence was insufficient to support her conviction and the trial court erred in denying a motion to sever her trial from that of her son, De’Marquise Elkins. For the reasons set forth infra , we affirm.

Viewed in the light most favorable to the jury’s verdict,¹ the record shows that on the morning of March 21, 2013, Dominique Lang encountered De’Marquise while walking to his uncle’s house; and after a brief conversation, De’Marquise asked Lang if he had "ever robbed somebody before." Lang responded that he had not, and the two began walking together. De’Marquise then showed Lang the handle of a gun on his waist, and said "I thought you were Mexican, so I was fixing to rob you." Later, Lang saw a woman, S. W., walking down the street with a baby stroller, at which point De’Marquise cut in front of Lang to confront her. De’Marquise approached S. W. and told her to give him her purse, but she refused. When S. W. continued to shun his repeated demands for her purse, De’Marquise pulled a small black and brown gun out of his pocket and struck her in the face with it.

A struggle then ensued between De’Marquise and S. W., during which her baby, A. S., was sitting in the stroller between them; and eventually, De’Marquise began threatening the baby. Nevertheless, after S. W. persisted in her refusal to give De’Marquise her purse, he counted five seconds aloud, walked around to the other side of the stroller, and fired a shot at the ground. De’Marquise then attempted to shoot S. W. in the head, but she ducked and was instead shot in the leg. Finally, De’Marquise pointed the gun at A. S. and fired a third shot, and Lang "took off running." S. W. tried to perform CPR on A. S., and he was later taken to the hospital for treatment, but did not survive.²

Later the same morning, sometime before 11:45 a.m., De’Marquise visited a friend, D. W., at her apartment, and just before leaving, he asked if he could hide a revolver under her couch.³ D. W., who had grown up with De’Marquise and his sister (Sabrina Elkins), agreed, and he hid the gun under her loveseat. The same day, some time after De’Marquise left, Elkins and Sabrina also visited D. W. While there, Elkins and Sabrina lifted D. W.’s loveseat and retrieved a black revolver from underneath it. Then, one of De’Marquise’s relatives, R. E., who had been upstairs sleeping, came downstairs, took the gun from Sabrina, and unloaded it. After doing so, R. E. gave the gun and bullets to Elkins before she and Sabrina left the apartment.

The next day, March 22, 2013, W. M., Elkins’s good friend, met her and Sabrina, and drove them to a fishing hole where he and Elkins had been fishing "lots of times." While there, W. M. did not see Elkins or Sabrina with a gun, and he did not see them "do anything." But at one point when Elkins and Sabrina were standing together near the water, W. M. heard a splash. W. M. then drove the two women back to Elkins’s house, which he found "kind of puzzling." Later, after being questioned by police officers, W. M. went back to the pond and showed the officers where he heard the splash. Then, on March 26, 2013, law-enforcement officers returned to the pond with a volunteer from Brunswick, Georgia’s Emergency Management Agency Search and Recovery Squad, and discovered a "small revolver-type handgun" floating in it. Immediately after he retrieved the firearm, the volunteer gave it to a nearby law-enforcement officer. The officer examined the gun and determined that it was a .22 caliber revolver with no live rounds or empty shell casings inside.

Ultimately, as a result of the investigation into A. S.’s murder, Elkins was charged with making a false statement to law enforcement and tampering with evidence. She was jointly indicted with several others,⁴ including De’Marquise, whose myriad charges included malice murder, felony murder, aggravated assault, attempted armed robbery, and aggravated assault.⁵ And after the trial court denied the motion to sever her trial from that of De’Marquise, they proceeded to a joint jury trial, after which Elkins was convicted of tampering with evidence but acquitted of making a false statement to law enforcement. Elkins then filed a motion for new trial, and following a hearing, the trial court granted the motion in part—as to sentencing issues—and denied it in part as to all other claims. This appeal by Elkins follows.⁶

1. Elkins first argues that the evidence was insufficient to support her conviction for evidence tampering because the State failed to prove that the gun she threw in the pond was the same gun used to murder A. S. We disagree.

When a criminal conviction is appealed, the evidence must be "viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence."⁷ And in evaluating the sufficiency of the evidence to support a conviction, we do not weigh the evidence or determine witness credibility but only resolve whether "a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt."⁸ Accordingly, the 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."⁹ With these guiding principles in mind, we turn now to Elkins’s specific challenge to the sufficiency of the evidence to support her evidence-tampering conviction.

Here, the indictment charged Elkins with

the offense of tampering with evidence ( [ OCGA §] 16-10-94 ) for that the said accused between the 21st day of March, 2013, and the 25th day of March, 2013, the exact date of the offense being unknown to the grand jury ... did knowingly conceal physical evidence, to wit: A .22 caliber revolver used in the shooting death of [A. S.], by throwing said firearm into a salt water pond with the intent to obstruct the prosecution of another person, to wit: De’Marquise Elkins for the crime of murder, a felony, all said act being contrary to the laws of said State ....¹⁰

OCGA § 16-10-94 (a) provides:

A person commits the offense of tampering with evidence when, with the intent to prevent the apprehension or cause the wrongful apprehension of any person or to obstruct the prosecution or defense of any person, he knowingly destroys, alters, conceals, or disguises physical evidence or makes, devises, prepares, or plants false evidence.

In challenging the sufficiency of the evidence to support her conviction, Elkins primarily argues that the State failed to prove that the firearm she disposed of was the same gun used to murder A. S. In support, she notes the lack of physical evidence found on the gun such as DNA or fingerprints, and quotes a forensic report submitted at trial, stating the bullet that killed A. S. was consistent with being fired "from a large number of different types of firearms produced by a wide variety of manufacturers." The report further stated that, although the forensic consultant did not have exact numerical data (because the type of rifle used had been produced for nearly a century), it would be "reasonable to expect" that over a million of such rifles had been produced. Finally, Elkins notes that Lang, the sole witness to the murder, testified he did not know what De’Marquise did with the gun.

It is undisputed that there was no direct physical or testimonial evidence to prove that Elkins took the murder weapon directly from De’Marquise and threw it in the pond. But although the State’s case against Elkins was entirely circumstantial, a criminal conviction may be based upon circumstantial evidence if "the proved facts are not only consistent with the hypothesis of guilt, but exclude every other reasonable hypothesis but the guilt of the accused."¹¹ And when the evidence meets this test, "circumstantial evidence is as probative as direct evidence, and whether this burden has been met is a question for the jury."¹² Furthermore, when the jury is authorized to find that the evidence, though circumstantial, excluded every reasonable hypothesis except the defendant’s guilt, the verdict will not be disturbed "unless the verdict is insupportable as a matter of law."¹³ Lastly, although circumstantial evidence must "exclude every other reasonable hypothesis but the defendant’s guilt, the evidence need not exclude every inference or hypothesis."¹⁴

In this case, there was ample circumstantial evidence to support a jury finding that it excluded every reasonable hypothesis except Elkins’s guilt. And while Elkins summarily concludes that "[o]ne reasonable hypothesis is that the pond gun was a different gun than the one used in [A. S.’s] murder," she provides no specific evidence to support her theory except that the type of bullet used in the murder could have been fired from different firearms. But given that Elkins obtained the gun before disposing of it the next day, this theory is purely speculative in nature.

Nevertheless, even when the circumstantial evidence "creates a strong suspicion of guilt, mere suspicion is insufficient to support a conviction."¹⁵ But as detailed supra , the State presented sufficient circumstantial evidence to support Elkins’s conviction. De’Marquise, Elkins’s son , shot and killed A. S. on the morning of March 21, 2013. Later that morning, De’Marquise hid the murder weapon under D. W.’s loveseat, where Elkins and Sabrina retrieved a firearm shortly thereafter. The next day, W. M., Elkins’s good friend, drove her and Sabrina to a fishing pond, and while the two women were near the pond, W. M. heard a splash. And ultimately, law enforcement recovered a firearm matching the description...