Falay v. State

740 S.E.2d 738, 320 Ga. App. 781, 2013 Fulton County D. Rep. 951, 2013 WL 1197934, 2013 Ga. App. LEXIS 278
CourtCourt of Appeals of Georgia
DecidedMarch 26, 2013
DocketA12A1921
StatusPublished
Cited by7 cases

This text of 740 S.E.2d 738 (Falay v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Falay v. State, 740 S.E.2d 738, 320 Ga. App. 781, 2013 Fulton County D. Rep. 951, 2013 WL 1197934, 2013 Ga. App. LEXIS 278 (Ga. Ct. App. 2013).

Opinion

BARNES, Presiding Judge.

Omar Falay appeals from the denial of his motion for new trial following his conviction for aggravated assault. He contends on appeal that the evidence was insufficient to sustain the conviction, that the trial court erred in denying his motion to exclude a witness’s testimony, and that the trial court erred in refusing to charge the jury on abandonment. Following our review, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the evidence shows that on the night of December 23, 2008, the two victims drove to meet two men at a subdivision in Grayson. When the men, later identified as Falay and co-defendant Zachary Bivens, got into the car, the victim showed them a bag of marijuana and asked to see their money. Falay and Bivens pulled out guns and said, “This is a jack move,” meaning a robbery. Falay and Bivens told the victims to get out of the car, and then ordered them to empty their pockets. The first victim attempted to take the gun from Falay, and while the two men struggled, Falay called out for help. Bivens walked over to help Falay and shot his gun three times, after which the second victim ran toward the woods, while Falay and Bivens ran in the opposite direction. The second victim went back to help the first victim, who had been shot. The first victim later died at the hospital.

While the victims were at the hospital, Gwinnett County police responded to a “person shot” call and discovered Falay, who had also been shot, on the front porch of a house approximately a quarter of a mile from the robbery. He refused to cooperate with police, and after police conducted an area check of the surrounding area, they were able to find and secure the crime scene. Another detective testified that uniform patrol officers had responded to another person shot call from the hospital within four minutes of the call about Falay, and he surmised that because of the shootings’ close proximity in time and place, they might be related. He interviewed the surviving victim, who identified Falay from a photographic lineup.

[782]*782At trial, a ballistics expert testified that the bullets recovered from Falay and the first victim, the decedent, were from the same gun. A crime scene specialist testified that a shoe print found at the scene of the shooting matched the size, pattern, and wear characteristics of the shoe worn by Falay. Police received a telephone call from a friend of the decedent’s who said that on the night of the shooting he had provided the decedent’s number to a person looking to buy marijuana. Police contacted the person, who was identified as co-defendant Francelis Dorce.

At the trial, Dorce, who was granted testimonial immunity, testified that he, Falay, and Bivens were hanging out at a gas station the night of the incident and decided to buy some marijuana from the decedent. The three placed several calls to the surviving victim over the period of several hours as they waited to meet him. While they waited, Dorce heard Falay mention “hitting a lick.” Dorce also testified that Bivens had a gun, but did not recall seeing Falay with a gun. Dorce testified that he left before the victim came to pick up Falay and Bivens, and that he did not warn the victim because he did not know if Falay and Bivens were serious about the robbery. Dorce also admitted during his testimony that he had given the police several inconsistent statements, and that he had wanted to protect Bivens.

Falay testified that he had gone to the area to see a girl and that he saw Dorce and Bivens and smoked marijuana with them. He further testified that Dorce called someone to buy more marijuana, and that he, Bivens and Dorce went to meet the seller at the place where the shooting occurred. Falay testified that he saw Dorce give Bivens a gun, but when he heard Dorce say that he was going to “hit a lick,” Falay walked away into the woods because he did not want to participate. Falay further testified that he waited around to see what would happen and saw Dorce and the decedent fighting, saw Bivens come around the car to help, and saw Bivens raise his gun. Falay testified that he heard three gunshots. Bivens and Dorce ran toward him in the woods, and after he asked Bivens, “what the hell did you just do,” Bivens shot him. Falay admitted that he had initially told police that he had gone to the area to visit a girl, and that he was in the woods urinating when he was approached by two males, and one of the men shot him.

1. Falay and Bivens were indicted for two counts of felony murder, and two counts of aggravated assault, and Falay, Bivens and Dorce were indicted for criminal attempt to commit armed robbery and armed robbery. Falay was convicted of only one count of aggravated assault for the shooting of the victim.

[783]*783On appeal Falay contends that based on the verdict on the other counts the jury believed his account of the events of the shooting, and thus he could not have been guilty of committing aggravated assault.

As noted earlier, our review is not of the weight to be given the evidence, but “whether the evidence viewed in the light most favorable to the conviction is sufficient to support the verdict.” (Citation omitted.) Fields v. State, 263 Ga. App. 11 (587 SE2d 171) (2003). Thus, notwithstanding Falay’s acquittal for felony murder of the decedent, we consider whether the evidence in this case, viewed in the light most favorable to the verdict, was sufficient for any rational trier of fact to conclude that he was guilty beyond a reasonable doubt of the aggravated assault of the decedent “with a handgun, a deadly weapon, by shooting the handgun at [the victim].”

In our cases endorsing the abolition of the inconsistent verdict rule, we have determined it is not generally within the court’s power to make inquiries into the jury’s deliberations, or to speculate about the reasons for any inconsistency between guilty and not guilty verdicts. As we observed[,] appellate courts cannot know and should not speculate why a jury acquitted on one offense and convicted on another offense. The reason could be an error by the jury in its consideration or it could be mistake, compromise, or lenity. Stated another way, it is imprudent and unworkable to allow criminal defendants to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenity, but of some error that worked against them. Such an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury’s deliberations that the courts generally will not undertake.

(Citations and punctuation omitted.) Turner v. State, 283 Ga. 17, 20 (2) (655 SE2d 589) (2008).

We find that the evidence was sufficient. See State v. Robinson, 275 Ga. App.

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Cite This Page — Counsel Stack

Bluebook (online)
740 S.E.2d 738, 320 Ga. App. 781, 2013 Fulton County D. Rep. 951, 2013 WL 1197934, 2013 Ga. App. LEXIS 278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/falay-v-state-gactapp-2013.