Salaam v. State
| Docket Number | A23A0091 |
| Decision Date | 01 May 2023 |
| Parties | SALAAM v. THE STATE. |
| Court | Georgia Court of Appeals |
On appeal from his convictions for armed robbery and gang activity, Ishmael Salaam asserts that the evidence was insufficient. We disagree, but also conclude that one of the gang activity counts merges into another. We therefore vacate Salaam's conviction and remand for resentencing.
"On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence." (Citation omitted.) Reese v. State, 270 Ga.App. 522 523 (607 S.E.2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis omitted.) Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
Thus viewed in favor of the verdict, the record shows that in July 2017, Bruce Chambers and Dylan Grant, members of the 64 Brims gang, planned a "lick on a plug," meaning a robbery of a marijuana dealer. Chambers and Grant believed their target to be a member of the Piru Bloods, an offshoot of the national Bloods gang. According to gang protocol, Chambers and others needed the permission of their leader Salaam, whom they knew as "G5" or "Big Homie," before conducting any crime against another gang member. Members were also expected to share crime proceeds with their leader. Salaam and others dressed in the dark red colors of the gang which used violence to keep its members in line.
In the days before July 31, 2017, Chambers, Grant, and Isis McCloud met with Salaam at his house to obtain permission for the robbery. After receiving that permission, Chambers texted Grant: On July 31, 2017, as planned, McCloud drove the two men to the victim's address and acted as lookout while Chambers and Grant entered the victim's home and robbed him, stealing his marijuana, his cellphone and his bookbag, and shooting him as well. Police responded to the scene, pursued a car described by witnesses, and apprehended Grant and McCloud as they fled on foot after the car crashed. After the robbery, McCloud admitted that she had called and texted Salaam, whom she knew as "G5," hoping that he would pick her up. Chambers' cell phone also showed that he had contacted Salaam under the contact name "5" numerous times before the robbery.
Salaam, Chambers and Grant were arrested and charged with two counts of armed robbery, one count of aggravated assault, and 14 counts of gang activity.[1] After the second armed robbery charge and four of the gang charges were dropped, the jury acquitted Salaam of the aggravated assault and five of the gang charges, but found him guilty of the armed robbery (Count 5) and the remaining five gang charges (Counts 1-4 and 13). Counts 1-4 alleged that the three men had violated the Street Gang Terrorism and Prevention Act (OCGA § 16-15-4) by participating in the armed robbery, by doing so with the intent to maintain their positions in the gang, by acquiring an interest in the victim's marijuana and cell phone through their gang activity, and by conspiring to engage in such activity. Count 13 alleged that Salaam, Chambers and Grant had participated in gang activity when they acquired an interest in the victim's marijuana and cell phone by means of the aggravated assault alleged in Count 15 (of which Salaam was acquitted). Salaam was convicted and sentenced to life in prison without parole plus 100 years. His motion for new trial was denied.
1. Salaam first argues that the evidence was insufficient to find him guilty of the armed robbery (Count 5) and the various activities associated with the gang (Counts 1 through 4). We disagree.
OCGA § 16-15-4 provides in relevant part:
(Emphasis supplied.)
Counts 1 through 4 of the indictment track this statute when they charge Salaam with participating and maintaining his position in the gang and acquiring an interest in the victim's property, all by means of the armed robbery, as well as engaging in the gang's activity from a supervisory position. OCGA § 16-15-4 (a) -(d). As we have previously held, each of the statutory subsections quoted above, even if arising from the same transaction, "expresses the Legislature's intention to create a single crime, committed by a person already a member or associated with the gang," with the Legislature having "the power to criminalize multiple convictions or punishments arising out of the same transaction." Nolley v. State, 335 Ga.App. 539, 547 (2) (782 S.E.2d 446) (2016); see also Johnson v. State, 313 Ga. 155, 159 (4) (868 S.E.2d 226) (2022) () (citation and punctuation omitted). In other words, each subsection of OCGA § 16-15-4 provides an individual unit of prosecution, even if the conduct underlying the multiple charges is the same. See Smith v. State, 290 Ga. 768, 772-774 (3) (723 S.E.2d 915) (2012) (the act of fleeing from officers after being given five different signals to stop, "and not just the act of fleeing itself," formed the proper unit of prosecution such that five counts of attempting to elude did not merge, even though all the crimes occurred in a "single episode").
In order to establish that Salaam violated subsection (a) or (b) of this statute, the State was required to prove four elements:
(1) the existence of a criminal street gang, [as] defined in OCGA § 16-15-3 (2) . . .; (2) [his] association with the gang; (3) that [he] committed one of the offenses identified in OCGA § 16-15-3 (1); and (4) that the crime was intended to further the interests of the gang.
(Citation and punctuation omitted.) Boyd v. State, 306 Ga. 204, 209 (1) (b) (830 S.E.2d 160) (2019). Counts 1 and 2 could thus be proven by showing that Salaam was a member of the gang and committed the predicate offense of armed robbery with the intent to further the interests of the gang and for the purpose of accomplishing specifically outlawed goals - that is, to participate in the gang (subsection (a)) and to maintain or increase status in it (subsection (b)). The outlawed goals of Counts 3 and 4 - that is, to acquire an interest in personal property (subsection (c)), or to engage or conspire concerning a criminal activity while in a supervisory position (subsection (d)) - could be proved in the same way, but without the requirement of a predicate offense.
In this context, as in others, "[c]riminal intent is a question for the jury and may be inferred from conduct before, during and after the commission of the crime." (Citation and punctuation omitted.) Boyd, 306 Ga. at 201-211 (1) (b); see also Morris v. State, 340 Ga.App. 295, 300-301 (1) (797 S.E.2d 207) (2017) (). The evidence outlined above was sufficient to show that Salaam was a leader of the gang, authorized the armed robbery, and was responsible for it as well as the specific violations of OCGA § 1615-4 charged in the first four counts of the indictment against him. Nolley, 335 Ga.App. at 543-544 (1) (); see also Morris, 340 Ga.App. at 299 ().
2. Salaam also argues that because he was acquitted of the aggravated assault charge that was the predicate offense for Count 13, which charged him with acquiring an interest of the victim's marijuana and cell phone by means of that assault, the evidence was insufficient as to that gang activity offense. We disagree, but we hold that Count 13 merges into Count 3, which charged Salaam with acquiring an interest in the same property by means of armed robbery.
(a) A conviction for aggravated assault will merge into a conviction for armed robbery based on the same course of conduct because aggravated assault is a lesser included offense of armed robbery. See, e.g., Long v. State 287 Ga. 886, 889 (2) (700 S.E.2d 399) (2010) (). Here, however, the jury acquitted Salaam of aggravated assault but found him guilty of armed robbery. The first...
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