Parks v. State

• Decision Date: 20 August 2018
• Docket Number: S18A0949
• Citation: 818 S.E.2d 502,304 Ga. 313
• Parties: PARKS v. The STATE.
• Court: Georgia Supreme Court

304 Ga. 313

818 S.E.2d 502

PARKS

v.The STATE.

S18A0949

Supreme Court of Georgia.

Decided: August 20, 2018

Mark Allen Yurachek, YURACHEK & ASSOCIATES, LLC, 55 Ivan Allen Jr. Blvd. NW, Ste. 830, Atlanta, Georgia 30308, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Vanessa Therese Meyerhoefer, Assistant Attorney General, Christopher M. Carr, Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, John Stuart Melvin, A.D.A., D. Victor Reynolds, District Attorney, Amelia Greeson Pray, A.D.A., Grady A. Moore, A.D.A., Michael Scott Carlson, Deputy Chief A.D.A., COBB COUNTY DISTRICT ATTORNEY’S OFFICE, 70 Haynes Street, Marietta, Georgia 30090, for Appellee.

Boggs, Justice.

Appellant Dexter Lamar Parks was tried before a jury and found guilty of felony murder, aggravated assault with a deadly weapon, possession of a firearm during the commission of a crime, and participation in criminal gang activity.¹ He now appeals, asserting that the trial court erred in failing to exclude expert testimony over his objection and that the evidence was insufficient to sustain his convictions. We disagree on both grounds asserted and affirm.

Construed in the light most favorable to the verdict, the evidence showed that on the afternoon of April 16, 2008, Parks, Rodger Jackson and other members of GMC ("Get Money Click") drove to a neighborhood in Austell, Georgia. The fourteen or more young men pulled up in about six or seven cars and began shouting "GMC" while "trying to fight. They circled around, then they came back. When they came back, they all got out [of] the car[s] [except Parks], just trying to fight." Jackson and other members approached Lavita Harrison’s house. One in the group told Harrison that her brothers and cousins "shouldn’t mess with their homeboys at school." As Harrison was telling the members to go away and the residents of the neighborhood to go inside, her cousin, the victim Caleb Burroughs, walked up the street toward Harrison’s home. Moments later, Parks, who was sitting in one of the cars, yelled, "[b]ust that sh*t," and Jackson fired twice into the air. Jackson then lowered his gun and fired once into the crowd, shooting the victim in the abdomen. All of the GMC members fled the scene and reconvened at Parks’ home. There, Jackson spoke about the incident saying that "those boys are always trying to buck" and that "[he] burnt that a**." The victim died from the gunshot wound.

Multiple witnesses testified that GMC was a gang in the Austell area, and two of Parks’ friends testified that Parks was a member of GMC. However, two witnesses maintained that GMC was a music group, not a gang. One of these witnesses was impeached with his testimony from an earlier hearing, where he stated that he and Parks were members of GMC, which he admitted was a gang.

The State presented an expert, an agent assigned to the Marietta/Cobb/Smyrna organized crime unit or CAGE ("Cobb Anti-Gang Enforcement"). He testified that, in his expert opinion, GMC was a gang that has been operating since 2006. He stated that GMC stands for "Get Money Click," which he explained is a loosely-organized, nontraditional or hybrid criminal street gang that operates on the south side of Cobb County. The expert explained further that he personally had interviewed known and suspected GMC members, that the gang uses the color green and the letters "GMC" with one or two dollar signs in front of and behind them, and that the members usually wear black attire. The State also presented evidence of clothing from Parks’ room that had GMC letters and symbols on it, and Parks was wearing a GMC hat in a videotape played at trial.

1. Parks challenges the sufficiency of the evidence to sustain his convictions. When evaluating a challenge to the sufficiency of the evidence, we view the evidence admitted at trial in the light most favorable to the verdict and ask whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. McGruder v. State, 303 Ga. 588, 590 (II), 814 S.E.2d 293 (2018). And "[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." Former OCGA § 24-4-6.² In that regard:

Questions regarding the reasonableness of hypotheses are generally to be decided by the jury that heard the evidence, and so long as the evidence, even though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, this Court will not disturb a finding of guilt unless the verdict is insupportable as a matter of law.

(Citations and punctuation omitted.) Taylor v. State, 304 Ga. 41, 44 (1), 816 S.E.2d 17 (2018).

Although the evidence was certainly not overwhelming as the State argues, we conclude that it was sufficient to authorize a rational jury to find Parks guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; Veal v. State, 298 Ga. 691, 694 (1), 784 S.E.2d 403 (2016).

(a) Parks argues that the circumstantial evidence failed to establish that he was a party to the crimes. "Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime." OCGA § 16-2-20 (a). In relevant part, "[a] person is concerned in the commission of a crime only if he: ... (3) Intentionally aids or abets in the commission of the crime; or (4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime." OCGA § 16-2-20 (b) (2), (b) (3). "While mere presence at the scene of a crime is not sufficient evidence to convict one of being a party to a crime, criminal intent may be inferred from presence, companionship, and conduct before, during and after the offense." (Citations and punctuation omitted.)

Navarrete v. State, 283 Ga. 156, 158 (1), 656 S.E.2d 814 (2008). The evidence here showed that Parks, Jackson, and other members of GMC, driving multiple cars, entered the neighborhood. All of the members, except for Parks, exited the cars and shouted "GMC," and one in the group told Harrison that her family members "shouldn’t mess with their homeboys." Parks shouted "bust that sh*t," and Jackson fired a gun three times with the third shot striking the victim, killing him. The group reconvened at Parks’ home, where Jackson stated that "those boys always trying to buck." This evidence of Parks’ presence at the scene, his companionship with other members of GMC, and his actions during and after the crimes was sufficient for a jury to conclude that Parks was a party to the crimes charged. See OCGA § 16-2-20 (a) and (b) (4) ; see also, e.g., Downey v. State, 298 Ga. 568, 570 (1), 783 S.E.2d 622 (2016) ("accomplice need only have knowledge that the principal is engaging in reckless conduct and intentionally assist or encourage that conduct with the intent to promote or facilitate its commission. [Cits.]"); Sims v. State, 281 Ga. 541, 542 (1), 640 S.E.2d 260 (2007) (evidence that defendant had recently threatened to shoot victim, encouraged his brother to shoot victim, and fled with his brother and others immediately after his brother shot victim, was sufficient to show defendant was a party to the victim’s murder). While Parks argues that there was no evidence of the meaning of "bust that sh*t," the jury could have reasonably inferred that the statement, made at the same time the GMC members who accompanied Parks attempted to start a fight with residents, meant for Jackson to fire a weapon.³ See Welbon v. State, 301 Ga. 106, 110 (2), 799 S.E.2d 793 (2017) (interpreting witness statement was for factfinder having had the opportunity to listen to the testimony and make judgments about credibility, tone, and context); see also, e.g., Burney v. State, 299 Ga. 813, 814 (1) (a), 792 S.E.2d 354 (2016) (witness heard accomplice say "I ought to bust this f**king n***a" just before accomplice handed gun to appellant, who then fired shots at victim); Hill v. State, 310 Ga. App. 695, 697, 713 S.E.2d 891 (2011) (defendant claimed he believed victim was reaching for a gun when victim threw a bottle at him, reached under his shirt, and said, "Now I’m going to bust you").

(b) Parks asserts that the evidence was insufficient as to the gang count because the State relied on inadmissible hearsay—the gang expert’s testimony that GMC had tagged⁴ a sign in a neighborhood—to establish an element of his conviction under Georgia’s gang statute.

Former OCGA § 16-15-4 (a), applicable at the time of Parks’ trial, provided, "It shall be unlawful for any person employed by or associated with a criminal street gang to conduct or participate in criminal street gang activity through the commission of any offense enumerated in paragraph (1) of [former] Code Section 16-15-3."⁵ Former OCGA § 16-15-3 provided in relevant part:

As used in this chapter, the term:

(1) "Criminal gang activity" means the commission, attempted commission, conspiracy to commit, or solicitation, coercion, or intimidation of another person to commit any of the following offenses on or after July 1, 2006: ...

(H) Any offense of criminal trespass or criminal damage to property resulting from any act of gang related painting on, tagging, marking on, writing on, or creating any form of graffiti on the property of another; ... (J) Any criminal offense in the State of Georgia, any other state, or the United States that involves violence, possession of a weapon, or use of a weapon, whether designated as a felony or not, and regardless of the maximum sentence that could be imposed or actually was imposed.

(2) "Criminal street gang" means any organization, association, or group of three or more persons associated in fact, whether formal or informal, which engages

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