Jones v. State, S16A0314

• Decision Date: 05 July 2016
• Docket Number: S16A0314
• Parties: Jones v. The State.
• Court: Georgia Supreme Court

299 Ga. 377

788 S.E.2d 477

Jones

v.The State.

S16A0314

Supreme Court of Georgia.

Decided: July 05, 2016

Stanley W. Schoolcraft, III, for Appellant.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Kevin Christopher Armstrong, Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Michael A. Oldham, Assistant Attorney General, for Appellee.

THOMPSON, Chief Justice.

Appellant Quinton Jones was found guilty of malice murder, felony murder, aggravated assault with a deadly weapon, criminal attempt to commit armed robbery, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a felony in connection with the shooting death of Lamaurice Westbrook.¹ Appellant appeals, challenging the sufficiency of the evidence and asserting that the State failed to prove venue, the trial court erred in admitting similar transaction evidence, and his trial counsel was ineffective. Finding no error, we affirm appellant's conviction for malice murder and possession of a firearm during the commission of a felony. Due to a sentencing error, however, we vacate a portion of the sentencing order and remand this case to the trial court for resentencing.

1. Viewed in the light most favorable to the jury's verdict, the evidence at trial showed that on June 13, 2011, the victim and his girlfriend picked up Tony Goolsby and some marijuana and went to a Shell gas station on Lakewood Avenue in Atlanta, Georgia, to meet with a buyer as part of a pre-arranged drug deal. Both the victim's girlfriend and Goolsby testified that the victim was not carrying a gun. While they waited for the buyer to appear, Goolsby, who had the marijuana stashed in his pants, got nervous and left, walking from the Shell station to a Marathon gas station five blocks away. Thereafter, an unidentified man driving a silver Pontiac pulled into the Shell station's parking lot. Appellant, who was a passenger in the Pontiac, exited the vehicle and approached the victim. Following a discussion, the victim got in the front passenger seat of the Pontiac with appellant taking the back seat directly behind him. The group in the Pontiac then traveled to the Marathon gas station to pick up Goolsby, who got in the back seat behind the driver.

According to Goolsby, when he got in the back seat of the car next to appellant, he recognized appellant as someone he previously had been locked up with in the Fulton County jail.² Goolsby testified that after picking him up, the men left the Marathon gas station in the Pontiac and rode around the block. When the victim told Goolsby he had received payment for the drugs, Goolsby retrieved the marijuana from inside his pants and gave it to appellant. Thereafter, as the car circled past a post office near the intersection of Lakewood Avenue and Jonesboro Road, appellant pulled out a handgun, pointed it at Goolsby and stated: “You know what it is, get out.” Goolsby immediately exited the car and, after taking two steps, heard gunshots. Looking back, he saw the victim's body slump over the front seat. The victim, who was shot several times, died as the result of a close-range gunshot wound to the head.

A second witness also testified to hearing the shots, and stated that immediately thereafter she noticed a silver car pull into the parking lot of a mini mart store and saw the victim's body thrown from the passenger's side of the vehicle before the car drove away. The police, who arrived quickly at the scene, found no guns, drugs or money on or near the victim's body. One of the responding officers testified that the mini mart store where the victim's body was found was located on Lakewood Avenue in Fulton County.

Appellant, who testified at trial on his own behalf, denied knowing the victim or Goolsby, claimed he was the one selling the drugs, and asserted it was the victim who pulled a gun on the driver of the Pontiac and that the gun went off during a struggle between the victim and the driver.

(a) Appellant argues that the evidence presented was insufficient to support his conviction under the federal due process standard. See Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We disagree.

It is a function of the jury, not the reviewing court, to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the evidence. See Jackson v. Virginia , 443 U.S. at 319, 99 S.Ct. 2781. “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.” (Punctuation omitted.) Williams v. State , 287 Ga. 199, 200, 695 S.E.2d 246 (2010) (quoting Miller v. State , 273 Ga. 831, 832, 546 S.E.2d 524 (2001) ). Here, when construed most strongly in support of the verdict, the evidence was sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia , 443 U.S. at 319, 99 S.Ct. 2781.

(b) Appellant nonetheless characterizes the State's evidence against him as circumstantial and insufficient to support his convictions for the crimes charged under Georgia law because it fails to exclude every other reasonable hypothesis save that of his guilt. See OCGA § 24–14–6.³ The record, however, reveals that at appellant's trial the State presented a mixture of direct and circumstantial evidence against him with respect to the various counts on which he was convicted. Among the direct evidence is Goolsby's testimony that he was in the car with appellant, the victim and the driver; that he gave the marijuana to appellant in exchange for money provided to the victim; that appellant pointed a gun at him; that he exited the car at appellant's command; that as he exited the car, he saw the victim turn around and face appellant; and that after hearing three to five shots as he ran away, he looked back toward the car and saw the victim fall limp over the back of the front seat. See Harper v. State , 298 Ga. 158, 161, 780 S.E.2d 308 (2015) ; Evans v. State , 288 Ga. 571, 575–576, 707 S.E.2d 353 (2011).

Even assuming, arguendo, that the evidence against appellant with respect to the murder charges was entirely circumstantial because no witness testified to actually seeing him shoot the victim, we conclude that the circumstantial evidence presented was sufficient for the jury to reject as unreasonable any other theory save that of appellant's guilt with respect to these charges. See Clark v. State , 296 Ga. 543, 546, 769 S.E.2d 376 (2015). The jury was not required to believe appellant's testimony that the victim was the one who pulled a gun on the driver of the Pontiac or that the gun went off during a struggle between the victim and the driver. See Warbington v. State , 281 Ga. 464, 465, 640 S.E.2d 11 (2007) (“[T]he jury is the arbiter of a witness' credibility.”). Nor was the jury obligated to accept as reasonable appellant's hypothesis that any of the individuals in the Pontiac at the time of the shooting could have fired the fatal shot, including the victim himself. Id. (explaining that the jury “decides the reasonableness of hypotheses”). Accord Clark , 296 Ga. at 546, 769 S.E.2d 376. This is especially true in light of evidence introduced at trial which showed the victim sustained no fewer than three gunshot wounds and died from a close-range gunshot wound to the head.

The jury in this case was properly instructed on direct and circumstantial evidence, as well as on the requirements of OCGA § 24–14–6. Given the evidence presented, the jury was authorized to exclude every reasonable explanation save that of appellant's guilt, and its findings will not be disturbed by this Court. See Clark , 296 Ga. at 546, 769 S.E.2d 376. See also Merritt v. State , 285 Ga. 778, 779, 683 S.E.2d 855 (2009) (“[The circumstantial evidence] need not exclude every conceivable inference or hypothesis—only those that are reasonable.” (emphasis in original)).

2. Although not raised by the State on appeal, we find that the trial court erred in merging appellant's convictions on certain counts of the indictment for judgment and sentencing. See Brannon v. State , 298 Ga. 601, 603, 783 S.E.2d 642 (2016) (holding that in a direct appeal, this Court may resolve sentencing errors based on merger issues even where such errors have not been raised on appeal); Hulett v. State , 296 Ga. 49, 53, 766 S.E.2d 1 (2014). In this case, appellant was charged with malice murder (Count 1), felony murder based on aggravated assault with a handgun (Count 2), aggravated assault with a deadly weapon (Count 3), felony murder based on conspiracy to commit the crime of purchasing marijuana (Count 4), conspiracy to commit the crime of purchasing marijuana (Count 5), felony murder based on criminal attempt to commit armed robbery (Count 6), criminal attempt to commit armed robbery (Count 7), felony murder based on possession of a firearm by a convicted felon (Count 8), possession of a firearm by a convicted felon (Count 9), and possession of a firearm during the commission of a felony (Count 10). Counts 4 and 5 were dead docketed by the State and a jury convicted appellant on the remaining counts. After correctly sentencing appellant on the malice murder conviction, see Malcolm v. State , 263 Ga. 369, 372, 434 S.E.2d 479 (1993), the trial court failed to recognize that the felony murder counts thereafter were vacated. See Hulett , 296 Ga. at 54, 766 S.E.2d 1. Because the felony murder counts no longer existed, the trial court erred in merging Counts 3, 7, and 9 into their corresponding felony murder counts and then merging all the felony murder counts into the malice murder count. Id. Instead, the trial court was required to determine whether each of the underlying felonies merged, as a matter of fact, into the malice...