Jahsiah Lee v. State

• Court: Court of Appeals of Georgia
• Decided: February 12, 2025
• Docket: A24A1254
• Status: Published

Opinion

SECOND DIVISION MARKLE, J., LAND and DAVIS, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

February 12, 2025

In the Court of Appeals of Georgia A24A1254. LEE v. THE STATE.

DAVIS, Judge.

A Fulton County jury found Jahsiah Lee guilty of participation in criminal street

gang activity based on his commission of armed robbery and related offenses. Lee

appeals from the trial court’s denial of his motion for new trial. For the reasons that

follow, we affirm the denial of Lee’s motion for new trial.

Viewed in the light most favorable to the verdict,1 the evidence at trial showed

the following. Lee is a member of the criminal street gang known as the 59 Brims

Bloods. Lee and Amati Moore know each other through a mutual friend, and Lee has

been to Moore’s apartment and seen guns and jewelry there. Lee instructed his

1 See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). girlfriend, Kayla Johnson, to go to Moore’s apartment for a purported social visit on

the night of February 6, 2020. Johnson testified at trial that Lee actually wanted her

to scope out Moore’s apartment for a robbery. Upon arriving at the apartment

Johnson asked Moore to order food, and Johnson later notified Lee by text message

when Moore left the apartment to meet a pizza delivery driver.

As Moore was walking back to his apartment, two men wearing ski masks and

gloves and holding guns ran towards him in the hallway.2 The assailants pointed their

guns at Moore, said “you know what time it is” and “we’ll kill you,” ripped the

jewelry from his neck, forced him to the ground, and kicked and punched him. One

of the assailants said “I’m Blood,” and Moore recognized him as Lee based upon

Lee’s distinctive voice, his body demeanor, and a tattoo on his neck that says

“Blood.”3 Moore called Lee by his nickname, and the other assailant said “I’m

Blood” and asked if he could kill Moore, but Lee said that it would be too loud in the

hallway. Moore testified that he understood the assailants’ threats to mean that if he

2 Surveillance video of the men entering and exiting the apartment complex was played at trial. 3 Lee was wearing an ankle monitor as a bond condition at the time of the robbery, and GPS data from the monitor confirmed that he was at Moore’s apartment at the time of the robbery. 2 reported Lee to authorities, someone from Lee’s gang would kill him. The assailants

forced Moore to let them into his apartment at gunpoint. Moore and Johnson did not

recognize the second assailant, who was wearing a red bandana. The second assailant

pointed his gun at Moore while Lee stole Moore’s guns, jewelry, cash, and rare

magazines. Lee also smashed Moore’s television and cell phone. Lee and the second

assailant then ordered Moore to lay down on the floor before fleeing the apartment.

Moore approached a security guard in the apartment complex’s parking garage

and had the guard call 911. Police officers responding to the scene discovered an

unfired bullet round and a pizza on the ground in the hallway, and observed that

Moore was injured and that his apartment had been “rummaged through.” An online

video posted by a member of Lee’s gang before the robbery showed one of the guns

used in the robbery, while online photographs posted by one of Lee’s friends after the

robbery showed some of the jewelry and gun clips stolen from Moore. After Lee was

arrested for the robbery, he made a jail phone call where he referred to events that

happened with other criminal street gang members that resulted in their death

following disputes, and he asked his associate to put a “bat signal out.”

3 Lee was charged by indictment with participation in criminal street gang activity

(OCGA § 16-15-4 (a)), first-degree home invasion (OCGA § 16-7-5 (b)), armed

robbery (OCGA § 16-8-41), aggravated assault with a deadly weapon (OCGA § 16-5-

21), aggravated assault (OCGA § 16-5-21), possession of a firearm during the

commission of a felony (OCGA § 16-11-106), battery (OCGA § 16-5-23.1), and

criminal trespass (OCGA § 16-7-21).4 The jury acquitted Lee of battery but found him

guilty of all other charges. The trial court merged the two aggravated assault

convictions into the armed robbery conviction and sentenced Lee to a total of twenty-

five years, with the first twenty years to be served in confinement and the remaining

five years to be served on probation. Lee filed a motion for new trial, which the court

denied after a hearing. Lee then filed this appeal, in which he challenges the court’s

discharge of a juror, its admission of gang evidence, and its jury instructions. Because

these challenges lack merit, we affirm.

1. Lee argues that the trial court erred by discharging Juror Number 17 due to

her prepaid personal vacation and replacing her with an alternate before deliberations

4 Johnson was charged in the same indictment with the same offenses as Lee except participation in criminal street gang activity. Johnson was granted derivative use immunity and pled guilty after testifying at Lee’s trial. 4 began. Lee asserts that there is no evidence that Juror Number 17 (a) paid for her trip

prior to being selected as a juror, or (b) could not continue as a juror because she could

not alter her travel plans or her plans would create a hardship or distraction for her.

We disagree and conclude that the trial court did not abuse its discretion by

discharging Juror Number 17.

“OCGA § 15-12-172 vests the trial court with broad discretion to replace a juror

with an alternate at any point during the proceedings where, among other reasons, it

is shown that the juror is unable to perform his or her duty or legal cause exists.”

Morrell v. State, 313 Ga. 247, 263 (3) (869 SE2d 447) (2022); see OCGA § 15-12-172

(“If at any time, whether before or after final submission of the case to the jury, a juror

dies, becomes ill, upon other good cause shown to the court is found to be unable to

perform his duty, or is discharged for other legal cause, the first alternate juror shall

take the place of the first juror becoming incapacitated.”). “The trial court may

remove a juror even after deliberations have begun, . . . so long as the facts presented

to the court show some sound basis upon which the court exercises its discretion to

remove the juror.” (Citations and punctuation omitted.) Ware v. State, 305 Ga. 457,

462 (3) (826 SE2d 56) (2019). Additionally, in regard to a juror’s conflict with trial

5 proceedings due to impending travel plans, the Supreme Court of Georgia has stated

that “a trial court’s broad discretion is properly exercised in such cases after due

consideration of the totality of the circumstances surrounding the juror’s travel

plans.” Id. “This Court will not reverse a trial court’s decision to remove a juror from

a panel absent an abuse of discretion.” Smith v. State, 335 Ga. App. 497, 498 (1) (782

SE2d 305) (2016).

At voir dire on February 2, 2022, the trial court advised the venire panel that

the trial was expected to last until February 8 or 9 and that a juror could be excused

from jury duty due to an undue burden or serious hardship based on a conflicting

prepaid personal vacation. However, the trial ran longer than expected,5 and after the

State rested on February 8, Juror Number 17 indicated that she had a personal trip and

flight that she had “already paid for” scheduled on the afternoon of February 10.

Before deliberations began on the morning of February 10, the trial court excused

Juror Number 17, finding that it would be inappropriate for her to begin deliberations

with time pressure due to her looming trip, and replaced her with an alternate.

5 One of the trial days was delayed by several hours due to a security issue at the courthouse. 6 “Courts in other jurisdictions have held that good cause, which may encompass

any of the inevitable vagaries of the many trial participants’ complex lives, includes

prearranged business or personal travel plans, whether they come to light during voir

dire or not.” (Citation and punctuation omitted.) Ware, supra, 305 Ga. at 462 (3); see,

e.g., United States v. Jones, 747 Fed. Appx. 348, 355-356 (III) (6th Cir. 2018) (trial

court did not abuse its discretion by discharging juror whose prearranged travel plans

and business obligations conflicted with the proposed trial schedule); Commonwealth

v. Colton, 477 Mass. 1, 16 (2) (e) (Mass. Sup. Ct. 2017) (trial court did not abuse its

discretion by discharging juror due to his impending flight).

“Based on the trial court’s statements and questioning during voir dire, [Juror

Number 17] had a reasonable expectation that she would be discharged prior to her

scheduled flight.” Ware, supra, 305 Ga. at 462 (3). Because the trial ran longer than

expected and because deliberations conflicted with Juror Number 17’s prepaid trip,

we cannot say that the trial court abused its discretion by discharging her. See id. at

460-463 (3) (trial court did not abuse its discretion by discharging juror during

deliberations where the length of trial exceeded expectations and deliberations

conflicted with the juror’s scheduled flight to a wedding); Hines v. State, 320 Ga. App.

7 854, 860-861 (2) (b) (740 SE2d 786) (2013) (trial court did not abuse its discretion by

discharging juror during deliberations because he was distracted by his need to make

a business trip). Given the timing of the trial and Juror Number 17’s indication that

she had “already paid for” her flight, we disagree with Lee’s assertion that there is no

evidence that this juror made her travel plans before being selected to serve. And

while Juror Number 17 did not specifically state that her travel plans prevented her

from serving, the trial court was permitted to find that it would be inappropriate for

her to participate in deliberations with time pressure caused by her looming plans.

Accordingly, the trial court did not abuse its discretion by discharging Juror Number

17.6

2. Next, Lee argues that the trial court abused its discretion by admitting

evidence regarding his gang affiliation and his commission of prior gang activity

pursuant to OCGA § 24-4-418 (a). Lee asserts that this evidence was unnecessary and

unfairly prejudicial and was therefore inadmissible under OCGA § 24-4-403 because

6 We note that Lee “does not contend that the alternate juror who replaced [Juror Number 17] was not qualified to serve.” (Citation omitted.) Ware, supra, at 463 n.4 (3); see also Reynolds v. State, 271 Ga. 174, 175 (2) (517 SE2d 51) (1999) (“The defendant in a criminal proceeding has no vested interest in the service of any particular juror, but is entitled only to a legal and impartial jury.”). 8 other evidence amply established that he was a gang member. We disagree and

conclude that the trial court did not abuse its discretion by admitting the challenged

evidence.

At trial, Lee’s counsel admitted to the jury that Lee was a member of the 59

Brims Bloods gang. However, Lee’s counsel disputed that Lee committed the robbery

of Moore or that such offense was intended to further the gang’s interests. Lee

testified that he was a member of the gang, but he denied committing the robbery or

any other crimes for the gang, and he claimed that his role in the gang was limited to

planning parties and settling disputes between members.

The State called a special agent with the GBI’s State Gang Task Force to testify

as an expert witness on criminal street gangs. The trial court instructed the jury that

this witness’s testimony was related only to the charge of criminal street gang activity.

The expert witness discussed the history of the Bloods gang nationwide and testified

that the 59 Brims Bloods was a metro Atlanta gang affiliated with it. He testified that

the 59 Brims Bloods gang uses the color red as an identifier and has been linked to

homicides, robberies, and firearm and drug offenses.

9 The expert witness also testified that he previously conducted an investigation

into the 59 Brims Bloods and identified Lee as a member of the gang. He stated that

during this investigation officers initiated a traffic stop on a vehicle occupied by Lee

and two other gang members, the vehicle contained gang symbols or identifiers as well

as marijuana and firearms, and he charged Lee and his associates with offenses based

on their possession of these latter items. He explained that Lee promoted his

affiliation with the gang by posting videos and photographs online that showed

common gang identifiers, including using certain hand signs, wearing certain clothing

such as red bandanas, and displaying firearms, drugs, tattoos, and other gang

members. The State showed the jury some of these videos and photographs, including

a video titled “Robbery” where Lee discussed taking someone’s firearms. The expert

witness testified that the day before Moore’s robbery, Lee posted a video where he

said “we hitting licks,” which was a term for conducting robberies.

OCGA § 24-4-418 (a) provides that “[i]n a criminal proceeding in which the

accused is accused of conducting or participating in criminal gang activity in violation

of Code Section 16-15-4, evidence of the accused’s commission of criminal gang

activity, as such term is defined in Code Section 16-15-3, shall be admissible and may

10 be considered for its bearing on any matter to which it is relevant.” However, OCGA

§ 24-4-403 provides that “[r]elevant evidence may be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” Evidence that is otherwise admissible under

Rule 418 may be excluded by Rule 403. McKinney v. State, 318 Ga. 566, 571 (899 SE2d

121) (2024).

Still, “[e]xclusion of relevant evidence under [Rule 403] is an extraordinary

remedy, which should be used only sparingly, and the balance should be struck in

favor of admissibility.” (Citation and punctuation omitted.) Overstreet v. State, 312 Ga.

565, 575 (2) (864 SE2d 14) (2021). “Thus, in reviewing issues under this rule, courts

look at the evidence in a light most favorable to its admission, maximizing its probative

value and minimizing its undue prejudicial impact.” (Citation and punctuation

omitted.) Id. “The prejudicial effect of evidence is unfair if the evidence has the

capacity to lure the factfinder into declaring guilt on a ground different from proof

specific to the offense charged, or an undue tendency to suggest decision on an

improper basis, commonly, though not necessarily, an emotional one.” (Citation

11 omitted.) Jackson v. State, 317 Ga. 95, 102 (2) (a) (891 SE2d 866) (2023); see also

Hood v. State, 299 Ga. 95, 103 (4) (786 SE2d 648) (2016) (“The major function of

Rule 403 is to exclude matter of scant or cumulative probative force, dragged in by the

heels for the sake of its prejudicial effect.”) (citation and punctuation omitted).

Significantly, “although evidence of gang membership can be highly prejudicial, all

inculpatory evidence is inherently prejudicial; it is only when unfair prejudice

substantially outweighs probative value that the rule permits exclusion.” (Citation and

punctuation omitted.) Overstreet, supra, 312 Ga. at 575 (2). “Trial court decisions

under this rule regarding the admission of evidence of gang activity and membership

are reviewed for an abuse of discretion.” Id.

We conclude that the trial court did not abuse its discretion in finding that the

probative value of the gang evidence at issue was not substantially outweighed by the

danger of unfair prejudice. To convict Lee of participating in criminal street gang

activity, the State had to prove that (1) he was associated with the 59 Brims Bloods;

(2) the 59 Brims Bloods was a “criminal street gang,” which is defined in OCGA § 16-

15-3 (3) as “any organization, association, or group of three or more persons

associated in fact, whether formal or informal, which engages in criminal gang

12 activity”; (3) he committed first-degree home invasion, armed robbery, and

aggravated assault, which are predicate acts identified in OCGA § 16-15-3 (1) (J)7; and

(4) the commission of those offenses was intended to further the interests of the 59

Brims Bloods. See OCGA § 16-15-4 (a); Mahogany v. State, 366 Ga. App. 750, 753 (1)

(e) (884 SE2d 141) (2023). “The fourth element requires that the State prove some

nexus between the act and the intent to further street gang activity,” which “can be

established by proof of the defendant’s association with a gang and participation in its

activities before and during the crimes charged.” (Citation and punctuation omitted.)

Dunn v. State, 312 Ga. 471, 474 (1) (863 SE2d 159) (2021).

Although Lee admitted that he was a member of the 59 Brims Bloods, he

disputed that he committed the robbery of Moore or that such offense was intended

to further the gang’s interests.8 Thus, the State had to provide evidence establishing

7 Under OCGA § 16-15-3 (1) (J), “criminal gang activity” includes any crime involving “violence, possession of a weapon, or use of a weapon.” 8 We note that the State “retains broad control over how to present its case, so a defendant cannot always keep out damaging evidence simply by offering to stipulate to the element of a crime that such evidence would tend to prove.” Hood, supra, 299 Ga. at 102 (4). And “[a]n offer to stipulate to an issue does not eliminate the relevance of the issue under Rule 401 but rather is one factor that the court should consider in making the determination under Rule 403.” Id. at 102 n.4 (4). 13 the third and fourth elements of the crime of participation in criminal street gang

activity. Given the need to establish the elements of the offense, the evidence of Lee’s

prior gang activity involving firearms, his discussion of robberies, and his gang

identifiers had significant probative value in establishing a nexus between the armed

robbery of Moore, which also involved gang identifiers, and the intent to further the

gang’s interests. See Overstreet, supra, 312 Ga. at 576 (2) (“[W]hile there was other

evidence regarding the gang and [the defendant’s] participation in it (including [the

defendant’s] own statements), thus somewhat reducing the State’s need for this

evidence, we cannot say that evidence of the incident with the rival gang was

confusing, misleading, or unduly cumulative of the other evidence or that the trial

court otherwise abused its discretion in performing the balancing required by OCGA

§ 24-4-403.”); see also In the Interest of D. M., 307 Ga. App. 751, 752 (1) (706 SE2d

683) (2011) (expert testimony, that perpetrator’s wearing of gang colors at the time

of the predicate shooting was a proclamation that the shooting was a gang act,

established a nexus between the shooting and an intent to further gang activity).

Moreover, we have previously noted that criminal intent may be difficult to

prove, further underscoring the State’s need to use the evidence at issue to establish

14 an intent to further the interests of the 59 Brims Bloods. See McKibbons v. State, 226

Ga. App. 452, 453 (1) (486 SE2d 679) (1997) (“Criminal intent rarely can be proved

by direct evidence, but its existence may be inferred by the trier of fact upon

consideration of the words, conduct, demeanor, motive, and all other circumstances

connected with the act for which the accused is prosecuted.”) (citation omitted). And

the evidence of the history of Lee’s gang and its commission of robberies helped

establish a nexus between the robbery of Moore and the gang and helped provide

context for the evidence of Lee’s prior gang activity. See Middlebrooks v. State, 310 Ga.

748, 751 (2) (b) (854 SE2d 503) (2021) (trial court did not abuse its discretion in

finding that the probative value of gang evidence in establishing the context and

motive for the charged offenses was not substantially outweighed by the danger of

unfair prejudice).

Accordingly, the trial court did not abuse its discretion in admitting evidence

regarding Lee’s gang affiliation and his prior gang activity.

3. Finally, Lee argues that the trial court erred in instructing the jury on the

elements of participation in criminal street gang activity. Specifically, Lee asserts that

15 the court relieved the State of its burden to prove that he committed the predicate

offenses with the intent to further his gang’s interests by instructing that the State

only needed to show “[t]hat the crime was committed to further the interest of the

gang or that the crime committed is the type of crime that members of the alleged gang

are known to commit.” We disagree and conclude that when considered as a whole,

the court’s instructions were not improper.

“We review de novo an allegedly erroneous jury instruction, which is a legal

question.” (Citation omitted.) Wright v. State, 365 Ga. App. 288, 289 (1) (878 SE2d

137) (2022).

In assessing an assertion of an erroneous jury instruction, the instruction must be evaluated in the context of the trial court’s jury instructions as a whole. The only requirement regarding jury charges is that the charges, as given, were correct statements of the law and, as a whole, would not mislead a jury of ordinary intelligence.

(Citation and punctuation omitted.) Id. “Additionally, an erroneous charge does not

warrant a reversal unless it was harmful and, in determining harm, the entirety of the

jury instructions must be considered.” (Citation and punctuation omitted.) Id.

“Where a charge as a whole substantially presents issues in such a way as is not likely

16 to confuse the jury even though a portion of the charge may not be as clear and precise

as could be desired, a reviewing court will not disturb a verdict amply authorized by

the evidence.” (Citation omitted.) White v. State, 291 Ga. App. 249, 251 (661 SE2d

865) (2008).

OCGA § 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.” Our Supreme Court has held that based on the statute’s

use of the preposition “through,” an essential element of the offense is a “nexus

between the act and an intent to further street gang activity.” Rodriguez v. State, 284

Ga. 803, 807 (1) (671 SE2d 497) (2009). In other words, “[p]roof 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).” (Citation and punctuation omitted.) Nolley

v. State, 335 Ga. App. 539, 543 (1) (782 SE2d 446) (2016).

Here, the trial court instructed the jury that the State had to prove four

elements to support the charge of participation in criminal street gang activity. The

first three elements the court identified were that there was a criminal street gang, that

17 Lee was associated with the gang at the time of the alleged crimes, and that he

participated in criminal street gang activity. As to the fourth element, the court

explained that the State had to prove “that there is a nexus or connection between the

crimes that were committed and the gang. That is the crime was committed to further

the interest of the gang or that the crime committed is the type of crime that members

of the alleged gang are known to commit.” As an initial matter, we note that this

instruction largely tracked the pattern jury instructions for this offense, which

pertinently provide that the State must prove “that there is a nexus between the crime

committed and the gang, that the crime was committed to further the interests of the

gang; meaning proof that the crime committed was the sort of crime that the gang

does.” Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 2.02.25 (4th ed.

2024).

Significantly, the trial court unequivocally instructed the jury that the State

needed to show a nexus or connection between Lee’s crimes and the gang. The court

then explained that such nexus or connection meant that the crime was committed to

further the gang’s interests or that the crime was the type of crime that members of

the gang are known to commit. While the latter phrase does not track precisely the

18 suggested pattern jury instructions, when the jury instructions here are considered as

a whole it is apparent that the court did not authorize the jury to find Lee guilty simply

because he committed a category of crime that members of his gang are known to

commit.9 Again, the court explained that the State needed to show a nexus or

connection between Lee’s crimes and the gang, and a jury of ordinary intelligence

would not be misled to think that such nexus or connection existed simply because Lee

committed a robbery and his gang commits robberies. Instead, a review of the

instructions as a whole shows that the court was simply explaining, albeit imperfectly,

that the phrases “the crime was committed to further the interest of the gang” and

“the crime committed is the type of crime that members of the alleged gang are known

to commit” had the same or similar meanings. In other words, a showing that Lee’s

9 The court attempted to charge the jury in a conversational tone, stating that it wanted the charges to be “accessible” and something the jury would “understand if we were just talking about it over a cup of coffee.” While we appreciate the court’s well-intentioned approach, this case demonstrates some of the issues that may arise from such an approach. “[T]he better practice is for the court to follow the specific language of the statute at issue or the suggested pattern jury instructions, but such strict compliance is not required as long as the principle of law set forth is sufficiently imparted to the jurors.” Daniels v. State, 264 Ga. 259, 261 n.4 (2) (443 SE2d 622) (1994). 19 crime was the type of crime that members of his gang are known to commit meant that

he acted with the intent to further his gang’s interests.

Additionally, the indictment alleged that Lee “did unlawfully, while associated

with a criminal street gang known as the ‘Brims,’ participate in criminal gang activity

through commission” of first-degree home invasion, armed robbery, aggravated

assault with a deadly weapon, and aggravated assault. The trial court read the

indictment to the jury, instructed the jury that the State bore the burden of proving

the allegations in the indictment beyond a reasonable doubt, and provided the jury

with the indictment during deliberations. Therefore, the indictment’s allegation that

Lee participated in gang activity “through” the predicate crimes highlighted the

State’s burden of showing a nexus or connection between the crimes and Lee’s gang

and of showing that he committed the crimes with the intent to further his gang’s

interests. See Jackson v. State, 306 Ga. 706, 712 (3) (b) (832 SE2d 809) (2019) (trial

court’s jury charge “fairly covered the essential elements” of participation in criminal

street gang activity, where it explained that the State needed to show that the

defendant “conducted or participated in criminal street gang activity through the

commission of an actual criminal act,” and it defined “criminal street gang activity”

20 as the commission of certain offenses “by a confessed or proven gang member”); see

also State v. Thomas, 350 Ga. App. 763, 767 (1) (830 SE2d 296) (2019) (“A trial court

may cure an erroneous jury instruction by providing the jury with the indictment and

instructing the jury that the State was required to prove every material allegation in

the indictment and every essential element of the crime charged beyond a reasonable

doubt.”) (citation and punctuation omitted).

We also note that the State’s expert witness testified that in order to convict

Lee of the gang charge, the State needed to show that “the crime is connected

somehow or done through that criminal street gang. It’s what’s referred to as a nexus,

okay. So just because a gang member goes out and commits a crime doesn’t

automatically make them guilty of a gang offense. There has to be some type of

connection between that crime that they committed and the gang.” See MacMillan v.

State, 372 Ga. App. 796, 806 (2) ( 906 SE2d 876) (2024) (“[A]lthough it was not a

jury instruction given with the authority of the court, prejudice resulting from the

challenged jury instructions was also mitigated by the State when it told the jury about

the accomplice-corroboration requirement . . . during its closing argument.”).

Accordingly, there was no reversible error in the trial court’s jury instructions.

21 For the foregoing reasons, we affirm Lee’s judgment and sentence and the

denial of his motion for new trial.

Judgment affirmed. Markle and Land, JJ., concur.