Barnett v. State

343 S.E.2d 155, 178 Ga. App. 383, 1986 Ga. App. LEXIS 2528

• Court: Court of Appeals of Georgia
• Decided: March 21, 1986
• Docket: 71322
• Status: Published

Opinions

Pope, Judge.

Joseph Barnett was tried and convicted as a party to the crime of aggravated assault. He was sentenced to serve seven years with an additional thirteen years on probation. In his appeal, defendant argues that the evidence at trial was insufficient to show that he was a party to the crime charged.

Defendant gave a party at his home on December 19, 1982 starting in the early afternoon. Besides food and intoxicating beverages furnished by the host there was also a dice game in the basement conducted by one Bilbo. Among the participants were two, Milligan and Couch, who figure prominently in the chain of events. In the late afternoon Milligan became convinced that the game was “crooked” and forcibly induced Bilbo to repay all the losers. Couch, after getting his money, went up to defendant’s kitchen and told defendant he had better go downstairs, there was a “big problem.” Since defendant and Couch had a past history of antagonism, one word led to another, culminating in defendant’s ordering Couch to leave. When Couch tarried, defendant moved toward a utility room where it later appeared he kept a 12-gauge shotgun and Couch grabbed him. A scuffle ensued. At this point Milligan arrived in the kitchen and, according to his testimony, attempted to stop the fracas. When the two combatants persisted, with defendant cursing and threatening Couch, Milligan told them to “finish it.” There was a fight during which the defendant was apparently badly mauled. The fight was stopped but defendant hollered at Couch that he was going to kill him. Defendant then got his shotgun but Milligan took it away from him and told Couch to leave. While Couch was leaving defendant told him “you’ll be dead before morning.” Defendant then obtained a “30-06” rifle but Milligan again disarmed him.

The party then broke up with most of the invitees leaving. At this point Johnson and Kaplan returned to the house. They had been cutting wood and drinking beer throughout the day and had dropped in on the party before leaving to deliver the wood to Johnson’s house. They were both friends of defendant (Kaplan sometimes stayed at his house and did odd jobs for him) and stayed to commiserate with him. As the three drank into the evening, the principal topic was revenge against Couch for beating the defendant. According to Johnson and Kaplan, but not defendant, each of them alternately cursed and threatened Couch with bodily harm.

The three then decided to visit Cason who would presumably aid in convincing defendant he should go to the hospital to have his wounds tended. Kaplan put the 30-06 rifle in the truck¹ and the three went to Cason’s. Nothing was achieved there and according to Johnson’s version, they then proceeded, “cussing and wanting to get him back,” to Couch’s house which was nearby. Since Johnson did not know where Couch lived, defendant and Kaplan gave directions. After defendant pointed out the house, Johnson drove back to defendant’s home. The parties disembarked leaving the 30-06 rifle in the truck.

Johnson’s version of what followed is that defendant lay down on a couch in the den while he and Kaplan continued drinking in the kitchen.² Kaplan then went into the den for a minute. Johnson did not hear if anything was said, and Kaplan returned, saying “let’s ride” to Cason’s house. After another unsuccessful venture at Cason’s, Kaplan directed Johnson, who was again driving and who did not remember where Couch lived, back to Couch’s house. As they were driving by with the house on the passenger’s side of the truck, Kaplan raised the rifle and fired a shot in the direction of the house.³ Johnson “took off” and returned to defendant’s place. Johnson then had a brief conversation with defendant and told him where they had been and what they had done.

The bullet from the 30-06 rifle passed through the front door and a wall and struck Couch’s 5-year-old son in the leg as he was sleeping. In response to a call by Couch’s wife the police arrived and shortly thereafter the investigating officer then went to defendant’s place. This was a result of Kaplan’s call about a problem with Bilbo’s van which had been left at defendant’s and which Milligan and some others wanted to tow off as security for further gambling losses they had discovered. While there, the officer saw the 30-06 rifle in the truck. This eventually led to the arrest and indictment of Johnson and Kaplan and finally defendant. As a result of plea bargaining Johnson pled guilty and testified at Kaplan’s and defendant’s trial. They also testified. Both were convicted. Held:

We reverse. OCGA § 16-2-20 (a) provides: “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.” The pertinent subsections of OCGA § 16-2-20 are (b) (3) and (4) which read: “A person is concerned in the commission of a crime only if he: . . . (3) Intentionally aids or abets in the commission of a crime; or (4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime.”

The evidence adduced is insufficient to enable a rational trier of fact to find that defendant was a party to the crime committed by Johnson and Kaplan under the test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). While there is evidence that defendant, still smarting from his beating at the hands of Couch, made general threats against Couch and made rumblings about getting even, there is no evidence to suggest that this “talking big” ever took any direction. In fact, when a specific means of taking revenge was suggested to Barnett by Johnson, hiring someone to burn Couch’s house, Barnett rejected it and told Johnson and Kaplan not to get involved, that he would get even.

Both Johnson and Kaplan testified that Barnett was unaware of the second trip to Cason’s and then to Couch’s. In fact, the evidence shows that Johnson and Kaplan did not formulate the idea of going to Couch’s on the second trip until they left Cason’s. Of course, the evidence shows that defendant was at home asleep during this entire second trip. Both Johnson and Kaplan testified that defendant did nothing and said nothing to suggest, direct, or encourage the second trip, or any means of taking revenge upon Couch. Thus, there is no evidence that defendant aided, abetted, advised, or encouraged the crime.

“Although circumstances create suspicion of defendant’s guilt of the offense charged, the circumstantial evidence presented by the [Sjtate fails to preclude every other reasonable hypothesis. . . .” Wright v. State, 147 Ga. App. 111, 112 (248 SE2d 183) (1978). “ ‘To 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.’ ” Brown v. State, 250 Ga. 862, 864 (302 SE2d 347) (1983). The evidence in the present case does not do this and, thus, is insufficient to support defendant’s conviction. See Brown v. State, supra at (1); Parker v. State, 155 Ga. App. 617 (2) (271 SE2d 871) (1980). Therefore, defendant’s conviction must be reversed.

Judgment reversed.

Banke, C. J., Birdsong, P. J., Carley, Sognier, and Benham, JJ., concur. Deen, P. J., McMurray, P. J., and Beasley, J., dissent.

1 According to Johnson; however, Kaplan testified the rifle was already in the truck.

2 Kaplan testified defendant went to sleep.

3 Kaplan stated Johnson picked up the rifle and fired it at the house.