309 Ga. 28 FINAL COPY
S20A0857. DIXON v. THE STATE.
ELLINGTON, Justice.
Stanley Dixon shot a handgun at Cedric Clark and Warren
Boyd, killing Clark. A jury found Dixon guilty of malice murder,
aggravated assault, possession of a handgun by an underaged
person, and multiple counts of participating in criminal gang
activity.1 On appeal, Dixon contends that the evidence was
1 The shooting occurred on November 1, 2016. A Clayton County grand
jury returned an indictment on January 31, 2018, charging Dixon and Demarco Reid with malice murder (Count 1), felony murder predicated on the aggravated assaults against Clark and Boyd (Counts 2 and 3), aggravated assault against Clark (Count 4), aggravated assault against Boyd (Count 5), violations of Georgia’s Street Gang Terrorism and Prevention Act (Counts 6 through 17), and possession of a handgun by a person under the age of 18 years (Count 18). The indictment also charged Dixon and Markee Brown with threatening a witness in a proceeding (Count 19) and participating in criminal gang activity (Counts 20 and 21) in connection with an alleged attempt in late 2017 to dissuade co-defendant Reid from testifying against Dixon. Following a jury trial against Dixon alone that ended on November 9, 2018, Dixon was found guilty on Counts 1 through 5, 6, 8, 10, 12, 14, and 16. The jury found Dixon not guilty of six of the November 2016 criminal gang activity violations (Counts 7, 9, 11, 13, 15, and 17) and not guilty on all of the 2017 counts (Counts 19 through 21). By judgment entered on November 9, 2018, and amended on February 11, 2019, and October 8, 2019, the trial court sentenced Dixon to life imprisonment for malice murder (Count 1), 20 years to serve for the insufficient as to all counts of participating in criminal gang activity
and that the trial court erred in denying his motion for a new trial.
In addition, he contends that the trial court erred in instructing the
jury on the offense of participating in criminal gang activity and that
he received ineffective assistance of counsel. For the reasons
explained below, we affirm.
Viewed in the light most favorable to the verdicts, the evidence
showed the following. Boyd testified as follows. On November 1,
2016, he was one of approximately ten boys who were playing
basketball in the gym at Charles Drew High School in Clayton
County. Boyd, who associated with members of the Gangster
Disciples gang, and Dixon, who was part of a “little crew” called
aggravated assault against Boyd (Count 5), 20 years to serve each for two counts of participating in criminal gang activity (Counts 6 and 14) concurrently with each other and consecutively to Count 1, 10 years to serve followed by 10 years’ probation on another count of participating in criminal gang activity (Count 16) to run consecutively to Count 6, and 12 months to serve for possession of a handgun by a person under the age of 18 years (Count 18) to run concurrently with Count 16. Counts 2, 3, 4, 8, 10, and 12 either were vacated as a matter of law or merged. Dixon filed a timely motion for new trial, which he amended on August 6, 2019. After a hearing on October 24, 2019, the trial court denied Dixon’s motion for a new trial on October 30, 2019. Dixon filed a timely notice of appeal, and his appeal was docketed in this Court to the April 2020 term and submitted for decision on the briefs. “Slime,” began “play fighting.” Dixon took offense when Boyd
touched and commented derisively on the “YSL” logo necklace that
Dixon was wearing, which Boyd described as a “Slime chain.” Dixon
told Boyd not to touch his chain, and Boyd replied, “f*ck your chain.”
Dixon told Boyd to “stop playing with [him] about [his] chain and
Slime,” and then choked Boyd. Boyd then forcefully slapped Dixon’s
face as other students looked on. Another student broke up the fight.
After school was dismissed, Dixon sent word to Boyd that he wanted
to fight after school to “squash the beef,” and Boyd agreed.
On his way to Dixon’s neighborhood that evening, Boyd saw his
close friend, Clark, and told him he was going to fight. Clark
volunteered to go with Boyd to protect his friend from being
“jumped,” because that was “how [Dixon’s] group [got] down.” After
Boyd and Clark reached Dixon’s neighborhood, Boyd texted Dixon
that he had arrived. When Boyd and Clark were a few houses away
from Dixon’s house, Dixon stepped out into the street toward them,
holding a handgun. He cocked the gun and fired two shots in their
direction. Boyd and Clark scattered as Dixon chased them. Boyd made it back to Clark’s home unharmed; Clark died in a neighboring
yard of a gunshot wound that pierced his thoracic aorta.
The State presented the testimony of lay and expert witnesses
showing that the shooting was gang-related. Dixon’s cousin and
roommate, Demarco Reid, testified that it was his gun that Dixon
used to shoot at Boyd and Clark.2 Reid testified that he was in a
group called “Slime,” although he denied knowing whether Dixon
was a member of Slime. Reid also admitted that Slime was “bigger”
than just students at Drew High School. Another Drew High School
student testified that he was in Slime, along with Dixon and Reid,
although he described Slime as “just a clique” of “less than ten . . .
guys [who] would hang out together.” That student testified that
Slime members participated in group text messaging chats.
Markee Brown testified that he met Dixon in jail while both
were awaiting trial. Dixon told Brown that he was innocent and that
his cousin, Reid, was “telling on him.” Dixon asked Brown to “get”
2 Reid was indicted along with Dixon. The record shows that, before he
testified against Dixon, Reid agreed to plead guilty to one count of participating in criminal gang activity, with the sentence to be determined later. Reid and to have Reid sign an affidavit that would free Dixon.
Thereafter, Brown was transferred to another housing unit of the
jail, where Reid was also housed. The following week, Brown beat
up Reid. Later, Brown arranged for letters to be passed to Dixon. In
one letter, Brown explained to Dixon what he had done, saying that
he “ate that rat b**ch”; Brown testified that this meant that, “on
[Dixon’s] behalf,” he beat up Reid.3 In another letter, Brown told
Dixon, “I’ll do anything to prove my loyalty.” Brown admitted
associating with members of the Bloods, including while in jail,
although he denied being a gang member. Before Dixon’s trial,
Brown pleaded guilty to threatening a witness in connection with
beating Reid and to participating in criminal gang activity
predicated on that offense.
At trial, a Clayton County police department lieutenant was
qualified as an expert in gang investigations. The expert, who had
interviewed numerous gang members, particularly members of the
3 At trial, Brown contradicted himself to some extent, testifying also that
he beat up Reid on his own initiative and for his own reasons. Bloods and the Gangster Disciples, testified as follows. At the
relevant time, there was a large gang presence at Drew High School.
The East Coast Bloods criminal street gang had a large presence in
Clayton County. Members of the Bloods used certain hand signs and
took distinctive stances in photographs. The Bloods commonly wore
the color red, and to a lesser extent yellow and green, to signal their
affiliation, sometimes wearing bandanas, called “flags,” of those
colors. Some Bloods subgroups or “sets” used the term “Slime” to
identify themselves because they consider blood to be slimy, and the
expert had never seen any gang other than the Bloods use the term.
The acronym “YSL” stands for “Young Slime Life.” Slime members
often used the color green, instead of red, and used a gang sign
where the member places his index finger underneath his nose as if
wiping the nose. Members of Slime often employed a snake graphic
symbol when texting and using social media.
The expert reviewed numerous photographs and screen shots
taken from Reid’s cell phone that depicted Dixon and others. The
expert pointed out details in the photos that signified that Dixon was affiliated with the Bloods: Dixon wearing a green bandana; wearing
“YSL” clothing items; making Slime hand signs, including in group
photographs with other individuals who were flashing common
Bloods hand signs; and using the snake symbol in messages.
The expert also testified that one of the common ways to
become a Bloods member was by a “beat-in” where the joining
member has to fight three other Bloods for 31 seconds. Bloods called
this type of gang initiation a “trey one.” The expert testified that
these “beat-ins” have taken place in schools, often in bathrooms. The
expert reviewed videos recovered from Reid’s cell phone. Some of the
videos depicted three or four young males, including Dixon and Reid,
fighting a single male inside a public bathroom while others
watched. Someone off camera can be heard directing the fighters
when to begin and when to stop fighting. Fights were stopped when
the single fighter fell to the ground or moved out of reach of the
group. Some of the fights were deemed not to count because they are
“not 31” or “only 12 seconds.” In one video, someone asked if that
was “trey one” after the group stopped beating the single fighter. At the end, Reid began a handshake with the single fighter. The expert
testified that the videos were consistent with “beat-in” initiations.
The expert reviewed a series of group text messages recovered
from Reid’s cell phone. On October 12, 2016, Dixon messaged the
group that certain people were not Slime because they had not paid
their dues yet. When questioned about this text message, the expert
testified that most gangs require members to pay monetary dues.
Also on October 12, 2016, Dixon messaged, “All Slimes meet me on
the culinary arts hall right now” and “[we’ve] got to walk deep
because [they’re] going to try something.” Several others responded
on the group chat as they planned to congregate. The expert testified
that Dixon’s messages were consistent with a gang member
soliciting fellow gang members to assemble in a large group to
intimidate their rivals. On October 13, 2016, Dixon messaged to the
group that they were about to “eat” someone who “said f slime.” The
expert testified that Bloods call fighting “eating” and that Dixon’s
message was consistent with a gang associate’s response to his gang
being disrespected. The expert further testified to the following. In addition to the
presence of the Bloods in Clayton County, there was a large presence
of a rival gang, the Gangster Disciples. Many gang-related shootings
have been in retaliation for rival gang members having disrespected
the aggressors’ gang. A Gangster Disciple member slapping a Bloods
member in front of a crowded gym or a Gangster Disciple breaking
a Blood’s YSL necklace would be interpreted as a sign of disrespect.
Gang associates often would threaten others with violence to keep
them from testifying, and beating up a “snitch” for another gang
associate could show loyalty to the gang. Finally, the expert testified
that loyalty between gang members was “paramount” and their
“number one responsibility.”
1. (a) Dixon does not challenge the sufficiency of the evidence
presented at his trial as to malice murder (Count 1), aggravated
assault (Count 5), and possession of a handgun by an underaged
person (Count 18). Nevertheless, as is our customary practice in
murder cases, we have independently reviewed the record and
conclude that the evidence was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Dixon
was guilty of these crimes. See Jackson v. Virginia, 443 U. S. 307,
319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
(b) Dixon contends that the evidence was insufficient to find
him guilty of participating in criminal gang activity. In Counts 6, 14,
and 16, the indictment charged Dixon with participating in criminal
gang activity “through the commission of” the offenses of malice
murder, aggravated assault, and possession of a handgun by an
underaged person.4
The Georgia Street Gang Terrorism and Prevention Act (the
“Gang Act”) appears at OCGA §§ 16-15-1 through 16-15-11. OCGA §
4 Whether the trial court erred in denying Dixon’s motion for a directed
verdict with regard to Counts 8, 10, and 12 is moot because these counts either were vacated by operation of law or merged for sentencing. Rosser v. State, __ Ga. __, __ (842 SE2d 821) (2020). Whether the trial court erred in denying Dixon’s motion for a directed verdict with regard to Counts 7, 9, 11, 13, 15, and 17, which alleged participating in criminal gang activity in violation of OCGA § 16-15-4 (b), through the commission of the specified felony offenses “with the intent to increase his status” in the Bloods, is moot because the jury found him not guilty of those charges. And whether the trial court erred in denying Dixon’s motion for a directed verdict with regard to Count 19, threatening a witness, and Counts 20 and 21, gang-activity offenses predicated on Count 19, is likewise moot because the jury found him not guilty of those charges. See Lupoe v. State, 284 Ga. 576, 577 n.2 (669 SE2d 133) (2008); Matthews v. State, 268 Ga. 798, 803 (5) (493 SE2d 136) (1997). 16-15-4 (a) provides that “[i]t shall be unlawful for any person
employed by or associated with a criminal street gang to conduct or
participate in criminal gang activity through the commission of any
offense enumerated in paragraph (1) of Code Section 16-15-3.”
OCGA § 16-15-3 (1) (J) provides that criminal gang activity means,
inter alia, “the commission [or] attempted commission [of] . . . [a]ny
criminal offense in the State of Georgia . . . that involves violence,
possession of a weapon, or use of a weapon[.]” The State was
required to prove four elements to establish that Dixon violated
OCGA § 16-15-4 (a) as alleged in the indictment:
(1) the existence of a “criminal street gang,” defined in OCGA § 16-15-3 (2) as “any organization, association, or group of three or more persons associated in fact, whether formal or informal, which engages in criminal gang activity”; (2) the defendant’s association with the gang; (3) that the defendant 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.
Boyd v. State, 306 Ga. 204, 209 (1) (b) (830 SE2d 160) (2019)
(citations and punctuation omitted). “[T]here must be some nexus
between the act and an intent to further street gang activity.” Rodriguez v. State, 284 Ga. 803, 807 (1) (671 SE2d 497) (2009)
(punctuation omitted).5 Dixon contends that there was no evidence
that Slime was a criminal gang as defined by the Act or that any
members of Slime engaged in criminal gang activity. In addition, he
contends that the State failed to prove that he was associated with
Slime, or any other gang, and failed to prove that there was a nexus
between his commission of murder, aggravated assault, and illegal
possession of a weapon and any intent to further the interests of any
gang. We disagree.
The expert’s testimony, summarized above, authorized the jury
to find that the Bloods was a criminal street gang engaged in
criminal gang activity in Georgia as defined in the Gang Act. The
evidence authorized the jury to find that Dixon was associated with
Slime, which was a nickname for a set of the Bloods gang, and that
he participated in criminal gang activity with other associates and
5 See also Stripling v. State, 304 Ga. 131, 134 (1) (b) (816 SE2d 663)
(2018) (“Proof that the commission of the predicate act was intended to further the interests of the gang is essential to prove a violation of OCGA § 16-15-4 (a).” (citations and punctuation omitted)). members of Slime, such as initiating new members through “trey
one” beatings. And the evidence authorized the jury to find that
Dixon possessed a firearm and committed the violent felonies of
murder and aggravated assault and that he did so in order to
retaliate for Boyd’s verbal and physical conduct that Dixon viewed
as disrespectful of Dixon’s gang, Slime. Thus, the State’s evidence
was sufficient to establish a nexus between the predicate acts and
an intent to further the interests of the gang.
Based on this evidence, the jury was authorized to find Dixon
guilty of the violations of OCGA § 16-15-4 (a) charged in Counts 6,
14, and 16. See Jackson v. State, 306 Ga. 706, 709-710 (1) (832 SE2d
809) (2019) (Evidence showing that the defendant shot and killed a
rival gang member in retaliation for the victim’s having shot at a
member of the defendant’s gang authorized the jury to find a
violation of OCGA § 16-15-4 (a).); Parks v. State, 304 Ga. 313, 316-
319 (1) (b) (818 SE2d 502) (2018) (Evidence that the defendant and
other gang members drove through a neighborhood shouting the
gang’s name and got out of their cars “trying to fight” the residents authorized the jury to find a violation of OCGA § 16-15-4 (a).); In the
Interest of W. B., 342 Ga. App. 277, 282 (801 SE2d 595) (2017)
(“Evidence showing that a crime was done in retaliation for some act
or insult committed against the gang or its members will also serve
to show that the crime furthered the gang’s interests.” (citations
omitted)).
2. Dixon contends that the trial court erred in instructing the
jury on violations of the Gang Act. Specifically, he contends that the
instruction given by the trial court failed to limit the scope of the
jury’s inquiry to the specific predicate criminal acts alleged in the
indictment and instead permitted the jury to find him guilty of the
Gang Act violation based on evidence that he participated in any of
the gang’s criminal activities. Dixon also contends that the trial
court erred in giving an instruction regarding parties to a crime.
Dixon did not object to the charges given, so our review is for plain
error. See OCGA § 17-8-58 (b) (Instructional error “may be
considered on appeal” despite the defendant’s failure to object when
the instructional error “constitutes plain error which affects substantial rights of the parties.”).
To show plain error, [the appellant] must demonstrate that the instructional error was not affirmatively waived, was obvious beyond reasonable dispute, likely affected the outcome of the proceedings, and seriously affected the fairness, integrity, or public reputation of judicial proceedings. Satisfying all four prongs of this standard is difficult, as it should be.
Hood v. State, 303 Ga. 420, 425-426 (2) (a) (811 SE2d 392) (2018)
(citations and punctuation omitted). See State v. Herrera-
Bustamante, 304 Ga. 259, 264 (2) (b) (818 SE2d 552) (2018) (The
Court need not analyze all of the elements of the plain error test
when the appellant fails to establish one of them.).
(a) With regard to the criminal gang activity instruction, the
record contradicts Dixon’s assertion that the instruction failed to
limit the scope of the jury’s inquiry to the specific predicate criminal
acts alleged in the indictment. The trial court gave the pattern jury
instruction in full,6 as Dixon requested. That instruction listed the
four elements of the offense, see Division 1 (b), supra, including that
6 See Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 2.02.25 (4th ed., updated January 2020). “the State must prove that the defendant conducted or participated
in the alleged predicate act consisting of the crimes constituting the
criminal gang activity . . . that are alleged in each count” and
instructed the jury that “the State must prove that there is a nexus,
that is a connection, between the crime committed and the gang
[and] that the crime was committed to further the interest of the
gang[.]” Reading the trial court’s charge as a whole, as we are
required to do, the trial court’s instruction for the offense of
participating in criminal gang activity was a correct and complete
statement of the law applicable to the charges of participation in
criminal gang activity under OCGA § 16-15-4 (a). See OCGA §§ 16-
15-3 (1) (J), (3); 16-15-4 (a); 16-15-9; Jackson, 306 Ga. at 712 (3) (b);
Boyd, 306 Ga. at 209 (1) (b); Rodriguez, 284 Ga. at 807 (1); see also
Jackson v. State, 306 Ga. 475, 477 (2) (831 SE2d 755) (2019) (“A jury
instruction must be adjusted to the evidence and embody a correct,
applicable, and complete statement of law.” (citation and
punctuation omitted)). Dixon fails to show error, much less plain
error. See Jackson, 306 Ga. at 712 (3) (b); Jackson, 306 Ga. at 477- 478 (2).
(b) With regard to the jury instruction on parties to a crime,
Dixon contends that the principle of “party to the crime” is not
available for a charge of participating in criminal gang activity
under OCGA § 16-15-4 (a).7 This is incorrect. See Broxton v. State,
306 Ga. 127, 137 (4) (829 SE2d 333) (2019) (Evidence authorized the
jury to find the defendant guilty as a party to the crime of Gang Act
violations predicated on the malice murder of one victim and the
aggravated assault of another, where there was evidence that the
defendant was in a car with fellow gang members, driving around
and looking for rival gang members to shoot, participated in one
shooting, continued riding with his fellow gang members to another
location, waited in the car while the gang members who actually
committed the predicate murder and aggravated assault got out of
the car and shot the victims, and then fled the scene with them.).
7 The record shows that the State requested, and the trial court gave, the
pattern jury instruction on parties to a crime. See Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.42.10 (4th ed., updated January 2020). Dixon has not argued or shown that the jury instruction was
erroneous for any other reason. See OCGA § 16-2-20; Sharpe v.
State, 272 Ga. 684, 688-689 (6) (531 SE2d 84) (2000) (The pattern
jury instruction concerning parties to a crime fully and adequately
informs a jury of the correct legal principles.). Consequently, this
claim of error fails. See Jackson, 306 Ga. at 477-478 (2).
3. Dixon contends that he received ineffective assistance of
counsel. Specifically, he contends that his trial counsel’s failure to
object to the jury instructions on criminal gang activity and parties
to a crime, as required in order to preserve errors in the instructions
for ordinary appellate review, constituted deficient performance. He
also argues that the trial court failed to conduct a proper inquiry
into his ineffective assistance of counsel claim and improperly
applied a sufficiency of the evidence standard to the claim.
To establish ineffective assistance of counsel, a defendant must
show that his trial counsel’s performance was professionally
deficient and that, but for such deficient performance, there is a
reasonable probability that the result of the trial would have been different. Strickland v. Washington, 466 U. S. 668, 695 (III) (B) (104
SCt 2052, 80 LE2d 674) (1984). If Dixon fails to show either
deficiency or prejudice, this Court need not examine the other prong
of the Strickland test. See DeLoach v. State, 308 Ga. __, __ (2) (840
SE2d 396) (2020). “In reviewing a ruling on a claim of ineffective
assistance of counsel, we defer to the trial court’s findings of fact
unless they are clearly erroneous, but we apply the law to the facts
de novo.” State v. Spratlin, 305 Ga. 585, 591 (2) (826 SE2d 36) (2019)
(citation omitted).
Although the trial court failed to make specific factual findings
regarding Dixon’s claim of ineffective assistance of counsel, the
threshold issue is Dixon’s argument that the jury instructions were
not correct statements of applicable law, an issue which does not
require specific findings of fact. Consequently, Dixon’s arguments
that the trial court failed to conduct a proper inquiry into his
ineffective assistance of counsel claim and improperly applied a
sufficiency of the evidence standard to the claim are off point.
As we explained in Division 2, supra, the jury instructions for participating in criminal gang activity and for parties to a crime
were correct and complete statements of applicable law. An objection
to either of these instructions would have lacked merit, and “[t]he
failure to pursue a futile objection does not amount to ineffective
assistance.” Ventura v. State, 284 Ga. 215, 218 (4) (663 SE2d 149)
(2008) (citation omitted). Dixon’s claim of ineffective assistance of
counsel therefore fails. See Anglin v. State, 302 Ga. 333, 342-345 (8)
(806 SE2d 573) (2017).
4. Dixon contends that, in ruling on his motion for a new trial
on the general grounds,8 the trial court failed to fulfill its role as the
“thirteenth juror.”
In the order denying Dixon’s motion for a new trial, the trial
court noted its broad discretion to sit as a “thirteenth juror” and to
weigh the evidence on a motion for new trial alleging the general
8 See OCGA §§ 5-5-20 (“In any case when the verdict of a jury is found
contrary to evidence and the principles of justice and equity, the judge presiding may grant a new trial before another jury.”); 5-5-21 (“The presiding judge may exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding.”). grounds and its duty to exercise its discretion and weigh the
evidence and consider the credibility of the witnesses. See Alvelo v.
State, 288 Ga. 437, 438-439 (1) (704 SE2d 787) (2011). “Having
performed this duty to sit as a ‘thirteenth juror’ and having weighed
the evidence and considered the credibility of the witnesses,” the
trial court found that the verdicts were “amply supported by the
evidence, not contrary to the evidence, not strongly and decidedly
against the weight of the evidence and not contrary to evidence and
the principles of justice and equity.” Nothing in the record supports
Dixon’s claim that the trial court failed to exercise its discretion as
the thirteenth juror. We have no basis for disturbing the trial court’s
denial of Dixon’s motion for new trial on the general grounds. See
Smith v. State, 300 Ga. 532, 534 (1) (796 SE2d 671) (2017) (because
“the evidence was sufficient to support the verdict,” the trial court
did not abuse its discretion as the thirteenth juror where, in its order
denying the motion for new trial, “the trial court recited it had
weighed the evidence, including the credibility of the witnesses, and
found [the defendant] was not entitled to a new trial on the general grounds”).
Judgment affirmed. All the Justices concur.
DECIDED JUNE 1, 2020. Murder. Clayton Superior Court. Before Judge Benefield, Senior Judge. Christina M. Kempter, for appellant. Tasha M. Mosley, District Attorney, Jeffrey M. Hawkins, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Meghan H. Hill, Assistant Attorney General, for appellee.