Jones v. State, S12A1626.

• Decision Date: 25 March 2013
• Docket Number: No. S12A1626.,S12A1626.
• Citation: 292 Ga. 656,740 S.E.2d 590
• Parties: JONES v. The STATE.
• Court: Georgia Supreme Court

292 Ga. 656

740 S.E.2d 590

JONES

v.The STATE.

No. S12A1626.

Supreme Court of Georgia.

March 25, 2013.

James N. Finkelstein, Albany, for appellant.

Matthew Breedon, Asst. Dist. Atty., Gregory W. Edwards, Dist. Atty., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., for appellee.

BLACKWELL, Justice.

Tchywaskie Lamar Jones was tried by a Dougherty County jury and convicted of aggravated assault and a violation of the Georgia Street Gang Terrorism and Prevention Act, OCGA § 16–15–1 et seq., in connection with a shooting at a public pool in Albany in which a bystander was wounded. Jones appeals and raises several claims of error, including that the evidence is insufficient to sustain his convictions and that the trial court failed to respond as required by OCGA § 17–8–75 when the prosecuting attorney spoke in his closing argument of facts outside the record.¹ We agree that the evidence is insufficient to sustain the conviction for violation of the Street Gang Act, and we agree that the trial court failed to fulfill its obligations under OCGA § 17–8–75. For those reasons, we reverse the judgment below.

1. Viewed in the light most favorable to the verdicts, the evidence shows that on June 16, 2009, Sequoia Jefferson went to a crowded public swimming pool in Albany, accompanied by at least four other women and their children, including Jefferson's infant son. Around 6:00 p.m., as Jefferson and her companions were waiting to be admitted into the pool, they were approached by another group of women, and an altercation occurred. An unidentified woman apparently attempted to strike the woman who was carrying Jefferson's son, and she struck the baby instead. Jefferson called the baby's biological father, Dabkowski Luke, and told him of the assault.

About 30 minutes later, an off-duty police officer went to the pool because he had information that made him think that a fight might soon break out. Shortly after the officer arrived, he saw two cars pull into the south side of the pool parking lot. The first car, a silver Chrysler 300, was driven by Brandon Taylor and was occupied by Jones, Luke, and Jarnay Evans as passengers. The second car, a Chevrolet Impala, was occupied by a heavy-set man known as “Reggie.” A witness who saw both of these cars as they approached the pool told another police officer that he heard Taylor ask about the “girl fight” and that he saw men who had exited from the cars loading weapons. Evans subsequently admitted to police officers that he and the other occupants of the 300 and the Impala went to the pool for the purpose of fighting with any men who might have been involved in the earlier altercation in which Luke's infant son was struck.

Around the same time as the 300 and the Impala arrived at the pool, the off-duty officer also saw a third car, which was driven by Jerry Harris, park across the street from the pool. The officer noticed that Harris had a “bulge” in his pants, and he watched as Harris walked to the north side of the parking lot. The officer then saw Harris pull a 9mm handgun out of his pants and start shooting in a southerly direction, toward Jones and the other occupants of the first two cars. One of those shots struck Donald Winchester, an innocent bystander, in the hip. Although the officer did not see Jones firing a weapon, he heard an exchange of gunfire between Harris and others,² including at least one shot fired with a shotgun. Evans later told police officers that he saw Jones fire one shot with a .22–caliber pistol and that “Reggie” fired a shotgun.³ Police found a .22–caliber shell casing on the south side of the parking lot, and they later found a .22–caliber pistol, which Jones admitted was his, in the trunk of a car that was owned by Luke's grandmother and that was parked in front of the house that Jones and Luke shared. An expert witness testified that the .22–caliber shell casing “was probably” discharged from Jones's pistol.

(a) We first consider whether the evidence is sufficient to sustain the aggravated assault conviction, applying the familiar standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in which we view the evidence in the light most favorable to the verdict and ask whether any rational trier of fact might have found beyond a reasonable doubt from that evidence that the defendant is guilty of the crimes of which he was convicted, leaving questions of credibility and the resolution of conflicts in the evidence to the jury. So viewed, the evidence in this case shows that Jones went to the pool with his firearm and several accomplices to settle a dispute, that he and his accomplices loaded weapons as they approached the pool, that they arrived at the pool at roughly the same time as Harris, that a gunfight ensued between Harris, on the one hand, and Jones and his accomplices, on the other, and that Jones participated in the gunfight by firing his weapon. Although it is undisputed that Winchester was shot by Harris, OCGA § 16–2–20(a) provides that “[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” Jones is correct, of course, that mere presence or approval of a criminal act is not sufficient to render one a party to the crime, and a conviction as a party to a crime requires proof that the defendant shared a common criminal intent with the principal perpetrator of the crime. But criminal intent is a question for the jury, and it may be inferred from that person's conduct before, during, and after the commission of the crime. Perkinson v. State, 273 Ga. 814, 816, 546 S.E.2d 501 (2001); see also Brown v. State, 291 Ga. 887, 888(1), 734 S.E.2d 41 (2012); Pruitt v. State, 282 Ga. 30, 32(1), 644 S.E.2d 837 (2007); Eckman v. State, 274 Ga. 63, 65(1), 548 S.E.2d 310 (2001); Jordan v. State, 272 Ga. 395, 396(1), 530 S.E.2d 192 (2000). From the circumstances proven in this case, a rational jury could have inferred that Jones shared a common criminal intent with Harris to engage in a gunfight in the presence of the innocent bystanders at the pool. See Emmanuel v. State, 300 Ga.App. 378, 380(1), 685 S.E.2d 361 (2009).⁴ And even though Winchester evidently was not an intended victim of the gunfight, the evidence was sufficient for a rational trier of fact to find that Jones was a party to the crime of aggravated assault under the doctrine of transferred intent. See id. See also Hendricks v. State, 290 Ga. 238, 240(1), 719 S.E.2d 466 (2011); Smith v. State, 279 Ga. 423, 614 S.E.2d 65 (2005) (“[W]hen an unintended victim is struck down as a result of an unlawful act actually directed against someone else, the law prevents the actor from taking advantage of his own wrong and transfers the original intent from the one against whom it was directed to the one who actually suffered from it.”) (citation and punctuation omitted); Perry v. State, 276 Ga. 836, 837(1), 585 S.E.2d 614 (2003) (evidence sufficient to sustain appellants' convictions for aggravated assault (and other charges) either directly or as a party to the crime where one of the appellants fired a weapon during a dispute with a rival group and two innocent bystanders were shot). Accordingly, the evidence adduced at trial is legally sufficient to sustain the aggravated assault conviction.

(b) We next consider whether the evidence is sufficient to sustain the conviction for a violation of the Street Gang Act. Jones was charged in the indictment with violating the Street Gang Act by participating in criminal street gang activity through the commission of an aggravated assault “while associated with a criminal street gang, to wit: the Southside Bloods,” and to prove that he violated the Street Gang Act in this way, the State was required to show that Jones was, in fact, associated with the Southside Bloods, that the Southside Bloods was a “criminal street gang,” that Jones committed a predicate act of “criminal street gang activity,” namely the aggravated assault upon Winchester, and that the commission of the predicate act was intended to further the interests of the Southside Bloods. See Rodriguez v. State, 284 Ga. 803, 806–807(1), 671 S.E.2d 497 (2009). See also OCGA § 16–15–4(a) (2009).⁵

Although there was some evidence presented at trial about the existence and activities of the Southside Bloods, the State inexplicably failed to adduce any evidence that Jones was associated with the Southside Bloods or that his commission of an aggravated assault was intended in any way to further the interests of the Southside Bloods. No witness testified that Jones was a member of the Southside Bloods. No witness testified that those accompanying Jones at the time of the shooting were members of the Southside Bloods. No witness testified that Jones was associated in any way with the Southside Bloods. And although officers testified at trial that members of the Southside Bloods often display certain symbols and colors, no evidence was presented that Jones or any of his accomplices displayed those symbols or colors, either on the day of the shooting or at any other time.

In an effort to tie Jones to the Southside Bloods, the State points to evidence presented at trial that police officers found a “grill,” bearing a symbol of the “Crips” gang, approximately 50 feet from the location from which Harris fired his weapon. But even if the grill was in some way connected to the shooting, the State did not show how that grill tends to prove that anyone at the pool at the time of the shooting, much less Jones, was associated with the Southside Bloods. The State also points to evidence that, prior to the shooting, the off-duty police officer heard someone say, “Y'all take y'all's slob asses back where you came from,” ⁶ and that “ slob” is a derogatory term for a member of the Southside Bloods. But even if the statement about “slob asses” was not hearsay, the...