Jones v. State

• Decision Date: 12 October 2012
• Docket Number: No. A12A1552.,A12A1552.
• Citation: 733 S.E.2d 72,318 Ga.App. 26
• Parties: JONES v. The STATE.
• Court: Georgia Court of Appeals

318 Ga.App. 26

733 S.E.2d 72

JONES

v.The STATE.

No. A12A1552.

Court of Appeals of Georgia.

Oct. 12, 2012.

Robert M. Bearden Jr., for Appellant.

Gregory Warren Winters, Dorothy Vinson Hull, for Appellee.

DILLARD, Judge.

Following a jury trial, Nickholas Jones was convicted of six counts of aggravated assault and one count of participating in criminal street-gang activity. On appeal, Jones contends that the evidence was insufficient to support his convictions and that the trial court erred in (1) excluding two witnesses' testimony regarding telephone conversations; (2) denying several of his requests to charge the jury on motive, mere presence, and aiding and abetting; and (3) denying his motion for severance. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury's verdict,¹ the evidence shows that on the night of September 19, 2009, R.M. picked up his friends, M.B., K.M., T.L., D.D., and D.J.,² in his mother's SUV and drove to a birthday party for a local teenage girl that was being hosted by the Black Velvet Lounge in Macon, Georgia. With invitations spread by word-of-mouth and text messages, the party was attended by over 100 teenagers. The event was monitored by the nightclub's security personnel, and most of the attendees were searched for weapons before being allowed on the premises. But shortly before midnight, a fight started between some of the guests. The nightclub's security guards quickly intervened to stop the fight, and after calling police, the club's security guards and police officers shut down the party and ordered everyone to leave.

Upon departing from the club, R.M. and his five friends—none of whom had been involved in the fight—returned to their SUV and started to drive home. A few blocks away from the club, R.M. slowed the vehicle so that he and his friends could speak with a group of girls they knew, who were walking home from the party. As the vehicle slowed, T.L. yelled “Bloomfield” at the girls, referencing the neighborhood from which he and his friends in the SUV hailed. A moment or two following this brief encounter, gunfire erupted from some nearby abandoned buildings on the left side of the street and several bullets struck the SUV, wounding both K.M. and D.J. R.M. then sped off and, within a few minutes, came upon a police officer who was responding to a call that gunshots had been fired near the Black Velvet Lounge. After bringing the SUV to a halt, R.M. and his friends, except for D.J. who was unconscious, spilled out of the vehicle and informed the officer that D.J. and K.M. had been shot. The officer immediately called an ambulance, and D.J. and K.M. were taken to the hospital.

Thereafter, the remaining occupants of the SUV traveled to the police station to provide statements, but none of them witnessed who fired shots at the vehicle. However, law enforcement's investigation of the incident was aided by some of the girls who had spoken with the occupants of the SUV just prior to the shooting. Specifically, one of those girls, I.G., informed the police that she saw Yovanis Whisby, Jamarcus Adams, Charles Iwo, and Nickholas Jones shoot at the SUV. I.G. also advised the police that all four of the young men were members of a local street gang, the Bottomside Gangster Boys, that operated on the south side of Macon. In addition, two of the girls who were with I.G. that evening told the police during their interviews that although they did not see who actually perpetrated the shooting, Adams approached them and warned them to move out of the way just prior to the shooting. Furthermore, one of the girls stated that Iwo and Jones were with Adams when he issued the warning.

Based on the foregoing information, the lead detective investigating the shooting arrested Whisby and questioned him regarding the incident. During that interview, Whisby admitted that he, Adams, Iwo, and Jones were outside of the Black Velvet Lounge on the night in question and that Adams, Iwo, and Jones were armed with handguns and shot at the victims' SUV. Consequently, Adams, Iwo, and Jones were also arrested, and all four were jointly charged, via a single indictment, with six counts of aggravated assault with a deadly weapon ³ and one count of participation in criminal street-gang activity.⁴

Thereafter, Iwo and Jones were jointly tried on the charges.⁵ During the trial, the six occupants of the targeted SUV testified about the incident but admitted that they had not seen the gunmen. However, two of the occupants, T.L. and his brother, D.D., recounted an incident involving Jones that occurred approximately three weeks prior to the shooting. Specifically, T.L. and D.D. testified that on August 28, 2009, the school bus had just dropped them off at their stop when they were approached by Jones and several other young men, all of whom were claiming affiliation with the Bottomside Gangster Boys. T.L. responded by exclaiming “Bloomfield” and a fight ensued, which ended with Jones firing a handgun at the ground near T.L. and then fleeing with the rest of the crowd.

The State also offered the testimony of the girls who spoke to the SUV occupants just prior to the shooting, including I.G. And although I.G. testified at trial that she saw Iwo and Jones with guns but did not witness the actual shooting, the investigating detective who interviewed I.G. testified regarding her initial statement, in which she claimed that both defendants shot at the victims' SUV. In addition, the State called Yovanis Whisby as a witness. However, after Whisby claimed at trial that he and his friends were outside the club that night but were not involved in the shooting, the State—through the testimony of the same investigating detective and a video recording of Whisby's custodial interview—introduced Whisby's earlier statement to the police, which implicated Iwo and Jones in the shooting.

At the conclusion of the trial, the jury found both Iwo and Jones guilty on all counts of the indictment. Thereafter, Jones filed a motion for new trial, which the trial court denied. This appeal follows.

1. Jones contends that the evidence was insufficient to support his convictions. We disagree.

At the outset, we note that 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.⁶ And in evaluating the sufficiency of the evidence, “we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.” ⁷ Thus, the jury's verdict will be upheld “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case.” ⁸ With these guiding principles in mind, we now address Jones's specific challenges to the sufficiency of the evidence.

(a) Aggravated assault with a deadly weapon. Jones was charged with six counts of aggravated assault under OCGA § 16–5–21(a)(2), which provides that “[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.” ⁹ Furthermore, it is well settled that “the act of firing a weapon into a group makes each individual in the group a separate victim and justifies a separate count of aggravated assault for each victim.” ¹⁰

In the case sub judice, there was evidence showing that Jones, Iwo, Adams, and Whisby were present outside the Black Velvet Lounge on the night in question, shot at the victims' SUV, and wounded two of the victims in the process. Nevertheless, Jones argues that the evidence was insufficient because both Whisby and I.G.'s respective statements implicating him in the shooting were inconsistent with their trial testimony and, therefore, lacked credibility. However, any alleged inconsistencies in the evidence and issues of the witnesses' credibility “were for the jury, not this Court, to resolve....” ¹¹ And here, the jury obviously resolved those issues against Jones. Accordingly, the evidence was sufficient to allow the jury to find that Jones was guilty of the charges of aggravated assault beyond a reasonable doubt. ¹²

(b) Participation in criminal street gang activity. Jones was also charged with one count of participation in criminal street-gang activity under OCGA § 16–15–4(a), which makes it unlawful for persons associated with a “criminal street gang” to engage in “criminal gang activity” by committing certain enumerated predicate offenses, including aggravated assault.¹³ A “criminal street gang” is defined as a “group of three or more persons associated in fact, whether formal or informal, which engages in criminal gang activity....” ¹⁴ And the statute clearly contemplates that the existence of such an organization, and that its members are “associated in fact,” may be established by “evidence of a common name or common identifying signs, symbols, tattoos, graffiti, or attire or other distinguishing characteristics....” ¹⁵ Additionally, our Supreme Court has held that a conviction under OCGA § 16–15–4(a) requires that there “be some nexus between the [enumerated] act and an intent to further street gang activity.” ¹⁶

Here, I.G., in her initial statement to the police, claimed that Jones was a member of the Bottomside Gangster Boys, and both T.L. and D.D. testified that Jones touted his affiliation with the gang during the fight at the school bus stop that occurred nearly three weeks prior to the shooting outside the nightclub. Thus, there was some evidence that Jones was a member of an existing street gang that was involved in ongoing criminal gang activities. ¹⁷ Furthermore, given that T.L. and D.D. were also occupants of the SUV that Jones targeted, an...