Vega v. State, No. S09A0023.

• Court: Supreme Court of Georgia
• Writing for the Court: Carley
• Citation: 673 S.E.2d 223,285 Ga. 32
• Parties: VEGA v. The STATE.
• Docket Number: No. S09A0023.
• Decision Date: 09 February 2009

285 Ga. 32 673 S.E.2d 223 VEGA
v.
The STATE. No. S09A0023. Supreme Court of Georgia. February 9, 2009.

[673 S.E.2d 224]

Krista C. Dunning, William S. Lewis, Jennifer R. Burns, Savannah, for appellant.

Spencer Lawton, Jr., District Attorney, Ann M. Elmore, Assistant District Attorney, Thurbert E. Baker, Attorney General, for appellee.

CARLEY, Justice.

After a jury trial, Tito Flores Vega was found guilty of the felony murder of Sammy Avilla during the commission of arson in the first degree. The trial court entered judgment of conviction and sentenced Vega to life imprisonment. The trial court denied a motion for new trial, and Vega appeals.^*

1. Vega contends that the trial court erred in denying a motion for directed verdict. Construed most strongly in support of

673 S.E.2d 225

the jury's verdict, the evidence shows that Carlos Maye saw a fire in an abandoned building as he drove by. He turned around, stopped, and observed Vega tossing several tires onto the fire while it continued to grow larger. After being restrained by Maye, Vega said that somebody died and told another person that someone was inside the building. Subsequent to his arrest, Vega admitted his involvement to two other inmates. The victim's body was discovered in the building, and the cause of the fire was determined to be arson. The victim's death was caused by smoke inhalation and thermal injury.

Vega argues that the evidence fails to show that he deliberately or intentionally set the fire, or that he had ignitable materials with him. He relies on evidence that a man matching the description of Jesse Padilla, who was an acquaintance of the victim and was known as a troublemaker, left the burning building and subsequently told people that the victim was burned. However, a "person commits the offense of arson in the first degree when, by means of fire or explosive, he or she knowingly damages or knowingly causes, aids, abets, advises, encourages, hires, counsels, or procures another to damage" specified property under certain circumstances. OCGA § 16-7-60(a). That statute does not require that the accused personally set the fire or possess ignitable materials. The evidence is sufficient where, as here, the defendant knowingly damages or knowingly aids or abets another to damage property by adding fuel to a fire. Although Vega further relies on evidence that tires do not catch fire easily and that an attempt to use the tires to smother the fire could inadvertently worsen it, there was not any evidence that Vega was trying to put out the fire. Indeed, he never made that claim when Maye asked him what he was doing or when he was talking to [285 Ga. 33] another person on the scene. Furthermore, the evidence shows that the fire continued to grow larger as Vega tossed the tires on it.

The particular subsection of the arson statute which Vega was charged with violating requires that the defendant's acts take place "under such circumstances that it is reasonably foreseeable that human life might be endangered." OCGA § 16-7-60(a)(5). Vega claims that, even if he had knowingly damaged the building by means of fire, he would not have had any way of knowing that he was endangering human life, because the building was abandoned, and the victim, who was in a small bedroom area, was so intoxicated that he was likely unconscious. To the contrary, the evidence shows that Vega had actual knowledge that he was endangering human life. Vega's statements immediately after adding fuel to the fire and upon being restrained outside the building indicate that he knew that someone else was still in the building and probably died in the fire.

Vega further asserts that part of the inmates' testimony was contradicted by the medical examiner's testimony. However, "`[t]his Court does not reweigh evidence or resolve conflicts in testimony. ... [Cit.]' [Cit.]. ... It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence. [Cits.]" Mickens v. State, 277 Ga. 627-629, 593 S.E.2d 350 (2004). Viewed in the light most favorable to the verdict, the evidence was sufficient for a rational trier of fact to find Vega guilty of felony murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Green v. State, 283 Ga. 126, 129(1), 657 S.E.2d 221 (2008); Funderburk v. State, 276 Ga. 554, 555(1), 580 S.E.2d 234 (2003); Crumbley v. State, 267 Ga. 354(1), 478 S.E.2d 132 (1996).

2. Vega also contends that he was denied the right to a fair trial because of the State's failure to comply with the discovery requirements of OCGA § 17-16-4(a)(1) and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) with respect to the videotaped interviews of Maye and of Vega himself.

Several months prior to trial, the prosecutor notified defense counsel that the videotaped interview of Maye did not have any sound and would only be provided upon express request. The interview of Vega was on the same tape, and examination of the original tape revealed that there was no sound for either interview. Vega's attorney raised the

673 S.E.2d 226

issue about two weeks before trial, while the prosecutor was on leave, and the soundless recording...