Baker v. State

863 S.E.2d 55, 312 Ga. 363

• Court: Supreme Court of Georgia
• Decided: September 8, 2021
• Docket: S21A0686
• Status: Published

Opinion

312 Ga. 363 FINAL COPY

S21A0686. BAKER v. THE STATE.

COLVIN, Justice.

Following a jury trial, Nathaniel Baker was convicted of felony

murder and other offenses in connection with crimes committed

against Craigory Burch, Jr., Jasmine Hendricks, and C. B., a minor

child.1 On appeal, Baker argues that the evidence presented at trial

1 On April 4, 2016, a Ben Hill County grand jury indicted Baker along

with six co-defendants on a fifteen-count indictment. Baker was charged as follows: malice murder of Burch (Count 1), felony murder of Burch predicated on aggravated assault (Count 2), aggravated assault of Burch (Count 3), home invasion (Count 4), two counts charging a violation of Georgia’s Street Gang Terrorism and Prevention Act (“Gang Act”), predicated on home invasion and armed robbery (Counts 5 and 8), two counts of armed robbery (Count 6 — Burch, Count 7 — Hendricks), two counts of aggravated assault (Count 9 — Hendricks, Count 10 — C. B.), four counts of possession of a firearm during the commission of a felony (Counts 11 through 14), and one count of possession of a firearm by a convicted felon (Count 15). Baker was tried alone from January 23 through January 27, 2017. The jury acquitted Baker of malice murder but returned guilty verdicts on Counts 2 through 14, and the trial court nolle prossed the remaining firearm charge. On February 14, 2017, Baker was sentenced as a recidivist pursuant to OCGA § 17-10-7 (a) to life in prison without the possibility of parole for felony murder (Count 2), concurrent life sentences for home invasion and both armed robbery charges (Counts 4, 6, and 7), 20 years concurrent for both counts charging a violation of the Gang Act (Counts 5 and 8), 20 years concurrent for the two was insufficient to support his convictions and that the trial court

erred by allowing the State to present evidence of criminal gang

activity. We affirm.

1. Appellant contends that the evidence presented at trial

was insufficient to sustain his convictions for the felony murder of

Burch and the aggravated assaults of Hendricks and C. B. When

evaluating the sufficiency of evidence as a matter of constitutional

due process, “the relevant question is 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

counts of aggravated assault against Hendricks and C. B. (Counts 9 and 10), and five years on three of the firearm counts to run consecutive to the murder sentence but concurrent to each other (Counts 11, 12, and 14). The remaining aggravated assault and firearm charges were merged for sentencing purposes. Baker filed a motion for new trial on March 2, 2017. Baker amended his motion for new trial through new counsel on June 7, 2019, and filed a motion for resentencing that same day. The trial court heard argument on both motions on December 30, 2019, and entered two orders on January 23, 2020. In the first order, the trial court granted the motion for resentencing in part and resentenced Baker on the two Gang Act counts, reducing the sentences for each count to 15 years. In the second order, the trial court denied Baker’s amended motion for new trial. On June 25, 2020, Baker filed a motion for an out-of-time appeal, which the trial court granted on July 2, 2020. The appeal was docketed to the April 2021 term of this Court, and oral argument was heard on May 18, 2021.

2 beyond a reasonable doubt.” (Citation and emphasis omitted.)

Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61

LE2d 560) (1979). “This Court does not reweigh evidence or resolve

conflicts in testimony; instead, evidence is reviewed in a light most

favorable to the verdict, with deference to the jury’s assessment of

the weight and credibility of the evidence.” (Citation and

punctuation omitted.) Hayes v. State, 292 Ga. 506, 506 (739 SE2d

313) (2013).

Viewed in this light, the evidence presented at trial showed

that, at all relevant times, Baker was a member of the “G-Shine

Bloods,” a subsect of the Bloods gang, along with Dabrentise

Overstreet, Wayne Jordan,2 Anjevell Johnson, Earnest Holcomb,

and Rosalyn Swain. On the evening of January 20, 2016,

Overstreet, Jordan, Johnson, Holcomb, and Swain were hanging out

with Katherine Tillman at her house when the group decided to

commit a robbery. They settled on robbing Burch, whom the group

2 This Court affirmed Jordan’s convictions and sentences in Jordan v.

State, 307 Ga. 450 (836 SE2d 86) (2019). 3 knew had recently won over $400,000 playing the lottery and had

used a portion of his winnings to purchase a house where he lived

with Hendricks and their three children. Overstreet, Johnson, and

Baker had previously discussed robbing Burch because they

believed he had been “showing off” his lottery winnings.

Overstreet called Baker, informed him of the plan, and asked

Baker to bring a weapon. Baker and his girlfriend, Keyana Dyous,

arrived at Tillman’s house around 9:00 p.m., and Baker opened the

trunk of his car to show Overstreet an Intratec 9mm pistol that

Baker was known to carry. The two men then entered Tillman’s

house and further discussed the plan to rob Burch. Soon thereafter,

the group headed out in two vehicles to Burch’s house. Initially,

Dyous drove Baker and Johnson, while Swain drove Holcomb and

Overstreet. On the drive, the two cars pulled into a parking lot so

that Overstreet could get into Dyous’s car with Baker and Jordan.

Once together, the three men put on ski masks, tied white t-shirts

around their faces to obscure their identities, and directed Swain

and Holcomb to drive to a separate location and wait until the

4 robbery was complete. They also told Dyous that they would call her

when they needed to be picked up.

Burch and Hendricks were sitting in their living room with two

of their three children when Baker, Overstreet, and Jordan burst

through the front door with their guns drawn. Baker went to the

back of the house while Overstreet and Jordan held Burch and

Hendricks at gunpoint and demanded money. Burch handed the

men his wallet and said, “Don’t do it in front [of] my kids.”

Overstreet ignored Burch’s plea and fired three shots into Burch’s

legs while his two-year-old son, C. B., sat on his lap. The children

began to scream, and Jordan went through Hendricks’ purse,

removing three cell phones and a wallet. Jordan then fled through

the front door while Overstreet and Baker exited the house through

the back. As Hendricks was attempting to help Burch, she saw

Overstreet walk back to the front door of the house. She testified

that he “opened the door, stood at the door, and shot [Burch] some

more.” Overstreet then turned the weapon on Hendricks, but the

gun did not fire. Overstreet stated that he “ran out of bullets” before

5 he turned around and left.

The gang members, including Baker, fled the scene in their two

getaway cars, with Jordan mocking Hendricks as she screamed for

help. The group reconvened at Tillman’s house and divided the

stolen property amongst themselves. Overstreet wrapped a gun in

a white t-shirt and threatened to murder anyone who talked about

the robbery.

When officers arrived at the scene of the shooting, they found

Burch dead on the couch. The medical examiner testified that Burch

had died as a result of his numerous gunshot wounds. Officers

located five 9mm bullets and eleven shell casings inside the house

and sent the items to the GBI for further testing. A fingerprint lifted

from the back door handle was later matched to Baker’s thumb, and

ballistics testing determined that the bullets and shell casings found

at the scene were all fired from an Intertec 9mm pistol.3 Subsequent

investigation also revealed that Baker and his co-defendants used

some of the proceeds from the robbery to pay for a motel room in

3 The murder weapon was never located.

6 Moultrie and gas in Tifton, where Burch’s credit card was found on

the side of the road months later.

Phone records introduced at trial showed that Burch’s stolen

phone made several calls after his death to a bank where Burch had

an account, and that Baker’s phone and Overstreet’s phone were in

frequent contact with one another on the day of the murder. Finally,

after Baker’s arrest, he spoke with law enforcement officers. While

he initially denied any involvement in the crimes, he eventually

admitted to bringing a gun to Overstreet; kicking in the door of the

Burch residence; witnessing Overstreet shoot Burch in the legs; and

leaving the residence with Overstreet, after which Overstreet told

Baker that he was going to go back into the house to kill Burch.

Baker claims that the evidence was legally insufficient to

support his convictions for the felony murder of Burch and the

aggravated assault of Hendricks because the State failed to show

that Baker was a party to the crimes when Overstreet re-entered

the home to shoot Burch and attempt to shoot Hendricks. However,

“criminal intent is a question for the jury, and it may be inferred

7 from that person’s conduct before, during, and after the commission

of the crime.” Jones v. State, 292 Ga. 656, 658 (1) (a) (740 SE2d 590)

(2013). Also, “[w]hile 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.” (Citation and punctuation

omitted.) Parks v. State, 304 Ga. 313, 315-316 (1) (a) (818 SE2d 502)

(2018).

Here, the evidence presented at trial showed that Baker’s

phone was in frequent contact with Overstreet’s phone on the day of

the crimes, Baker agreed to take part in the robbery and home

invasion, he rummaged through the home while his co-defendants

held the victims at gunpoint, he continued to search the home after

Overstreet fired the first three shots into Burch’s legs, he heard

Overstreet state that he was going back to the house to kill Burch,

and he returned to Tillman’s house with his co-defendants and

participated in the division of the proceeds from the robbery.

Finally, the evidence showed that the murder weapon was an

8 Intratec 9mm pistol and that Baker brought such a weapon to be

used in the robbery.

Based on the foregoing, a rational jury could conclude that

Baker shared a common criminal intent with Overstreet, and the

jury was authorized to find Baker guilty beyond a reasonable doubt

of the felony murder of Burch and the aggravated assault of

Hendricks. See Jackson, 443 U. S. at 319. See also OCGA § 16-2-20

(defining “party to a crime”); Lofton v. State, 309 Ga. 349, 353 (1)

(846 SE2d 57) (2020) (“[A] shooting is a reasonably foreseeable

consequence of an armed robbery and thus a party to an armed

robbery is culpable for felony murder if a fatal shooting occurs.”);

Jordan v. State, 307 Ga. 450, 452 (1) (836 SE2d 86) (2019)

(concluding evidence was sufficient for Jordan’s convictions for the

malice murder of Burch and the aggravated assault of Hendricks

based on a shared criminal intent with Overstreet).4

4 At oral argument, Baker claimed that his role in the crimes ended when

he exited Burch’s home. However,

if a defendant has knowledge of the crime which is intended and

9 Baker also contends that the evidence was insufficient to

sustain his conviction for the aggravated assault of C. B. because the

two-year-old child could not testify at trial and because the State

failed to present any evidence that C. B. was placed in reasonable

apprehension of immediately receiving a violent injury. We

disagree.

A person commits the offense of aggravated assault when he uses a deadly weapon to commit an act which places another [person] in reasonable apprehension of immediately receiving a violent injury. Whether a victim has been placed in reasonable apprehension of injury is a question of fact, which may be established by indirect or circumstantial evidence. The presence of a deadly weapon would normally place a victim in reasonable apprehension of being injured violently.

(Citation and punctuation omitted.) Stewart v. State, 299 Ga. 622,

shares in the criminal intent of the principal actor, that defendant is an aider and abettor. Consequently, if such defendant is at the scene and does not oppose the commission of the crime, the trier of fact may consider such conduct in connection with prior knowledge and is authorized to conclude that the defendant assented and lent approval to the commission of the crime, and thus, was aiding and abetting it. (Citation omitted.) State v. Cash, 302 Ga. 587, 595-596 (807 SE2d 405) (2017). For the reasons discussed above, the jury could reasonably infer from Baker’s conduct that he assented to Overstreet’s return to the scene of the crimes to murder Burch and assault Hendricks. 10 626 (2) (a) (791 SE2d 61) (2016). See also Bostic v. State, 294 Ga.

845, 847 (1) (757 SE2d 59) (2014) (“[T]he failure of a victim of an

assault to testify at trial does not necessarily result in the evidence

against the defendant being insufficient.”). Here, in addition to

Hendricks’ extensive testimony concerning what occurred inside

Burch’s home, the State presented testimony from Hendricks’

neighbor that, after she heard the first few gunshots, she could hear

Hendricks’ children screaming and crying. A jury could infer from

this that C. B. was placed in reasonable apprehension and,

therefore, this evidence authorized a rational jury to find Baker

guilty beyond a reasonable doubt of the aggravated assault of C. B.

See Jackson, 443 U. S. at 319. See also Gaither v. State, 312 Ga.

App. 53, 54 (1) (717 SE2d 654) (2011) (“[T]estimony that the children

were crying and screaming when appellant fired into the group was

sufficient for the jury to conclude that they, too, had a reasonable

apprehension of receiving a violent injury.” (Citation and

punctuation omitted.) (quoting Robertson v. State, 245 Ga. App. 649,

651 (1) (538 SE2d 755) (2000) (evidence that two children (ages one

11 and three) began crying after being shot at while inside a vehicle

was sufficient to support conviction for aggravated assault on

children)).

2. Baker alleges, and the State concedes, that the trial court

erred by allowing the State to introduce the criminal convictions of

third-party gang members5 under OCGA § 16-15-9.6 See State v.

Jefferson, 302 Ga. 435, 443 (807 SE2d 387) (2017) (holding the

5 At trial, the State called two law enforcement officers to testify about

prior incidents of criminal activity committed by other members of the G-Shine Bloods, but not Baker. Specifically, one officer testified concerning a shooting that occurred in December 2015 involving Overstreet, Johnson, and Jordan, and the State tendered certified copies of the convictions stemming from that shooting. A second officer testified about a February 2016 car crash involving Overstreet and Johnson that occurred after a drive-by shooting. Baker argues that the trial court erred by allowing the introduction of the third-party convictions. He further argues, in passing, that the trial court erred by admitting the officers’ testimony concerning the events of December 2015 and February 2016. The State concedes that the trial court erred in admitting the third-party convictions, but does not address the additional testimonial evidence. For the purposes of our analysis, we will assume, without deciding, that the admission of the officers’ testimony was also error. 6 OCGA § 16-15-9 states:

For the purpose of proving the existence of a criminal street gang and criminal gang activity, the commission, adjudication, or conviction of any offense enumerated in paragraph (1) of Code Section 16-15-3 by any member or associate of a criminal street gang shall be admissible in any trial or proceeding. Evidence offered under this Code section shall not be subject to the restrictions in paragraph (22) of Code Section 24-8-803.

12 portion of OCGA § 16-15-9 allowing for the introduction of third-

party convictions at trial to be unconstitutional on its face for

violating a defendant’s confrontation rights).7 However, the State

argues that the error was harmless beyond a reasonable doubt. We

agree. It is well settled that

[b]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. Reversal is required where there is a reasonable possibility that the improperly admitted evidence contributed to the verdict.

(Citation and punctuation omitted.) Wingate v. State, 296 Ga. 21, 27

(2) (c) (764 SE2d 833) (2014).

Here, the State presented ample evidence at trial that Baker

was a member of the “G-Shine Bloods,” a criminal street gang, and

evidence connecting “G-Shine” to the crimes at issue in this case.

See OCGA § 16-15-3 (defining “criminal street gang” and “criminal

gang activity”). At trial, Swain testified to her knowledge of the

gang’s membership and hierarchy, much of which she learned

directly from Overstreet. Dyous also testified to the existence of the

7 The Jefferson opinion was issued after Baker’s trial.

13 gang, how they ran meetings, and the various roles everyone played,

including Baker’s role as the “enforcer” or “protector.” Even though

Baker characterized himself as a “former” member of G-Shine

during his custodial interview with law enforcement officials, other

evidence at trial contradicted Baker’s statement. For example,

numerous photographs posted to Baker’s social media page prior to

and after the crimes in this case depicted him wearing a red

bandana and holding up gang signs commonly associated with the

Bloods. Moreover, Baker had typed “G-Shine for Life” over one of

these photographs. Finally, the State presented evidence at trial

that, on the night of the murder, the members of G-Shine convened

a gang meeting where they planned the armed robbery of Burch, and

that, on a prior occasion, Overstreet, Baker, and Jordan discussed

robbing Burch because they believed he was showing off his

winnings. Because this evidence was largely cumulative of other

evidence already introduced regarding the G-Shine gang’s criminal

activity, and its prejudicial effect against Baker was limited because

he was not involved in the prior acts, we cannot say that there is a

14 reasonable possibility that the improperly admitted third-party

evidence contributed to the verdict.

Judgment affirmed. All the Justices concur.

Decided September 8, 2021.

Murder. Ben Hill Superior Court. Before Judge Hughes.

Betsey L. Tate, for appellant.

Bradford L. Digby, District Attorney, Jennifer D. Hart,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K.

Smith, Senior Assistant Attorney General, Mark S. Lindemann,

Assistant Attorney General, for appellee.