Worthen v. State, S18A1212

• Citation: 823 S.E.2d 291,304 Ga. 862
• Decision Date: 22 January 2019
• Docket Number: S18A1212
• Parties: WORTHEN v. The STATE.
• Court: Supreme Court of Georgia

304 Ga. 862

823 S.E.2d 291

WORTHEN

v.The STATE.

S18A1212

Supreme Court of Georgia.

Decided: January 22, 2019

Clifford Louis Kurlander, Georgia Public Defender Council, Appellate Division, 104 Marietta Street, Suite 600, Atlanta, Georgia 30303, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Matthew David O'Brien, Assistant Attorney General, DEPARTMENT OF LAW 40 Capitol Square, S.W. Atlanta, Georgia 30334, Paul L. Howard, Jr., District Attorney, Stephany Julissa Luttrell, A.D.A., Lyndsey Hurst Rudder, Deputy D.A., FULTON COUNTY DISTRICT ATTORNEY'S OFFICE 136 Pryor Street, S.W. 4th Floor Atlanta, Georgia 30303, for Appellee.

NAHMIAS, Presiding Justice.

Appellant Trevis Worthen was convicted of malice murder and other crimes in connection with the shooting death of Tanieshia Evans. In this appeal, he contends that the trial court improperly purported to merge his felony murder counts into his malice murder conviction, when they actually were vacated by operation of law. That is true, but the error is harmless. He also contends that the State failed to prove venue for most of the crimes. That is not true – particularly because we have decided in this case to overrule Division 3 of Jones v. State, 272 Ga. 900, 537 S.E.2d 80 (2000), and to restore the authority of juries to make reasonable inferences regarding whether a location shown to be in a county is close enough to a crime scene to find that the crime was committed in the same county. Accordingly, we affirm.¹

1. Viewed in the light most favorable to the verdicts, the evidence at trial showed the following. Late on the evening of January 3, 2012, Appellant and his friend Rashad Ballard drove to Evans’s apartment building at 490 Angier Avenue in Fulton County to meet Brooke Stallworth, whom Appellant was dating, and Stallworth’s friend Michelle Johnson. Stallworth and Johnson were staying with Evans, the paternal grandmother of Stallworth’s son. Appellant parked his SUV on the street outside the apartment building, and he and Ballard remained in the vehicle as Stallworth and Johnson walked out to talk to them.

After Appellant, Ballard, Stallworth, and Johnson had been talking for about an hour, Evans called Johnson and Stallworth separately to ask them to come back to the apartment. During her call with Stallworth, Evans apparently heard Appellant say that he was going to take Stallworth home with him and that she would be back in the morning. Evans then came out of her apartment and walked to the driver’s side of Appellant’s SUV to stand by Stallworth and speak to Appellant, who was still sitting in the driver’s seat. Evans and Appellant began arguing. Evans told Appellant that he was not good enough for Stallworth, that he did not have enough money, and that he was not allowed to come to her apartment anymore. When Appellant tried to roll up his window, Evans grabbed it and pulled on it, causing the window to shatter.

Appellant then drove off. After stopping down the street at the stoplight at the intersection of Angier Avenue and Boulevard, however, Appellant drove in reverse back to where Stallworth, Johnson, and Evans were still standing outside the apartment building. Appellant asked Stallworth why Evans had broken his window, and Stallworth replied that Appellant should not have disrespected Evans. As Appellant and Stallworth argued, Evans walked up to the SUV and asked Appellant, "You want some more?" Appellant repeatedly said "move"; he then grabbed a .32-caliber revolver that was on his center console and fired a single shot at Evans, hitting her in the chest. Appellant drove away with Ballard. Evans was taken to a hospital, where she soon died from the gunshot wound

.

Stallworth and Johnson both identified Appellant as the man who shot Evans. In addition, tinted glass fragments found at the crime scene on Angier Avenue and down the road at the intersection of Angier Avenue and Boulevard were consistent with glass from the shattered window on Appellant’s SUV.

Nearly three months after the shooting, Appellant was arrested in Austin, Texas. After he was returned to Georgia and booked into the Fulton County Jail, he asked another inmate about "getting rid" of two female witnesses – one named Brooke and one whose name started with an "M" – in exchange for money. Appellant wanted the inmate to meet up with Appellant’s cousin, who had access to guns, to find out where the witnesses were living and kill them. The inmate instead provided this information to the police and testified against Appellant at trial.

Appellant also testified at trial, admitting that he shot and killed Evans but claiming that after she approached him and asked "You want some more?" he saw her reach for an object in her pants that looked like a black gun. Appellant said that he was afraid Evans would shoot and kill him. Johnson and Stallworth, however, testified that Evans never reached for a gun and did not have a gun, and there was no evidence that a gun was found at the crime scene. The State also called Ballard to testify at trial, but he claimed not to recall anything about the night of the shooting.

Aside from venue, which we address in Division 3 below, Appellant does not challenge the legal sufficiency of the evidence supporting his convictions. Nevertheless, in accordance with this Court’s practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Vega v. State, 285 Ga. 32, 33, 673 S.E.2d 223 (2009) (" ‘It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’ " (citation omitted) ).

2. Appellant correctly contends that the felony murder counts actually were "vacated by operation of law" rather than "merged" into his malice murder conviction. See Graves v. State, 298 Ga. 551, 556, 783 S.E.2d 891 (2016). This error in nomenclature was harmless, however, because Appellant was not convicted of or sentenced for the felony murder counts. See Southall v. State, 300 Ga. 462, 462 n.1, 796 S.E.2d 261 (2017).

3. Appellant, who was indicted and tried in Fulton County, argues that the State failed to prove venue for the charge of malice murder and the associated charge of possession of a firearm during the commission of a felony.² Appellant asserts that although there was evidence that Evans’s apartment building at 490 Angier Avenue was in Fulton County, this evidence was legally insufficient to establish that the location where Evans was fatally shot – the sidewalk or street just in front of the building – was in the same county. Appellant did not challenge venue at trial or present any evidence suggesting that the crimes were committed in another county. As explained below, we conclude that the evidence was sufficient to authorize the jury to find that the murder was committed in Fulton County as charged.

(a) Unless venue must be changed to obtain an impartial jury, a criminal case must be tried "in the county where the crime was committed." Ga. Const. of 1983, Art. VI, Sec. II, Par. VI. Generally, murder "shall be considered as having been committed in the county in which the cause of death was inflicted." OCGA § 17-2-2 (c). Under this Court’s precedent, "venue is a jurisdictional fact the State must prove beyond a reasonable doubt in every criminal case." Crawford v. State, 297 Ga. 680, 682, 777 S.E.2d 463 (2015). The State may meet its burden at trial using either direct or circumstantial evidence, and " ‘the determination of whether venue has been established is an issue soundly within the province of the jury.’ " Id. (citation omitted). On appeal, this Court reviews a challenge to the sufficiency of the venue evidence just like we review a challenge to the evidence of guilt: " ‘we view the evidence in a light most favorable to support the verdict and determine whether the evidence was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that the crime was committed in the county where the defendant was indicted.’ " Propst v. State, 299 Ga. 557, 561, 788 S.E.2d 484 (2016) (citation omitted).

(b) During Appellant’s trial, a detective and an officer from the City of Atlanta Police Department, both of whom had investigated the fatal shooting, testified that "490 Angier Avenue" is in Fulton County. Appellant maintains that "490 Angier Avenue" referred only to the location of Evans’s apartment building and did not include the sidewalk and street in front of the building where the shooting occurred.

The record shows, however, that the witnesses who testified that 490 Angier Avenue is in Fulton County used that address to refer to the entire crime scene. The detective testified that investigators "utilized that address as the crime scene location," and his crime scene drawing, which was admitted into evidence, describes the location of the crimes as "490 Angier Avenue NE," even though the sketch shows – in addition to Evans’s apartment building – the street, the buildings on either side of Evans’s building, and the intersection of Angier Avenue and Boulevard. The detective also identified several photographs of the "scene," which depict the buildings, sidewalk, street, and blood and broken glass on the street, as being "true and accurate representations of 490 Angier Avenue." In addition, the police officer testified that he responded to a call at "490 Angier Avenue" and that when he arrived "on the scene," he saw Evans lying on the sidewalk. The jury was entitled to conclude from this evidence that the witnesses who testified that "490...