Jones v. State

740 S.E.2d 590, 292 Ga. 656, 2013 Fulton County D. Rep. 749, 2013 Ga. LEXIS 296
Supreme Court of Georgia·Decided March 25, 2013·No. S12A1626·Published·Cited by 65 cases

Opinion

Blackwell, Justice.

Tchywaskie Lamar Jones was tried by a Dougherty County jury and convicted of aggravated assault and a violation of the Georgia Street Gang Terrorism and Prevention Act, OCGA § 16-15-1 et seq., in connection with a shooting at a public pool in Albany in which a bystander was wounded. Jones appeals and raises several claims of error, including that the evidence is insufficient to sustain his convictions and that the trial court failed to respond as required by OCGA § 17-8-75 when the prosecuting attorney spoke in his closing argument of facts outside the record.1 We agree that the evidence is insufficient to sustain the conviction for violation of the Street Gang Act, and we agree that the trial court failed to fulfill its obligations under OCGA § 17-8-75. For those reasons, we reverse the judgment below.

1. Viewed in the light most favorable to the verdicts, the evidence shows that on June 16, 2009, Sequoia Jefferson went to a crowded public swimming pool in Albany, accompanied by at least four other women and their children, including Jefferson’s infant son. Around 6:00 p.m., as Jefferson and her companions were waiting to be admitted into the pool, they were approached by another group of women, and an altercation occurred. An unidentified woman apparently attempted to strike the woman who was carrying Jefferson’s son, and she struck the baby instead. Jefferson called the baby’s biological father, Dabkowski Luke, and told him of the assault.

About 30 minutes later, an off-duty police officer went to the pool because he had information that made him think that a fight might [657]*657soon break out. Shortly after the officer arrived, he saw two cars pull into the south side of the pool parking lot. The first car, a silver Chrysler 300, was driven by Brandon Taylor and was occupied by Jones, Luke, and Jarnay Evans as passengers. The second car, a Chevrolet Impala, was occupied by a heavy-set man known as “Reggie.” A witness who saw both of these cars as they approached the pool told another police officer that he heard Taylor ask about the “girl fight” and that he saw men who had exited from the cars loading weapons. Evans subsequently admitted to police officers that he and the other occupants of the 300 and the Impala went to the pool for the purpose of fighting with any men who might have been involved in the earlier altercation in which Luke’s infant son was struck.

Around the same time as the 300 and the Impala arrived at the pool, the off-duty officer also saw a third car, which was driven by Jerry Harris, park across the street from the pool. The officer noticed that Harris had a ‘bulge” in his pants, and he watched as Harris walked to the north side of the parking lot. The officer then saw Harris pull a 9mm handgun out of his pants and start shooting in a southerly direction, toward Jones and the other occupants of the first two cars. One of those shots struck Donald Winchester, an innocent bystander, in the hip. Although the officer did not see Jones firing a weapon, he heard an exchange of gunfire between Harris and others,2 including at least one shot fired with a shotgun. Evans later told police officers that he saw Jones fire one shot with a .22-caliber pistol and that “Reggie” fired a shotgun.3 Police found a .22-caliber shell casing on the south side of the parking lot, and they later found a .22-caliber pistol, which Jones admitted was his, in the trunk of a car that was owned by Luke’s grandmother and that was parked in front of the house that Jones and Luke shared. An expert witness testified that the .22-caliber shell casing “was probably” discharged from Jones’s pistol.

(a) We first consider whether the evidence is sufficient to sustain the aggravated assault conviction, applying the familiar standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), in which we view the evidence in the light most favorable to the verdict and ask whether any rational trier of fact might have found beyond a reasonable doubt from that evidence that the defendant is guilty of the crimes of which he was convicted, leaving [658]*658questions of credibility and the resolution of conflicts in the evidence to the jury. So viewed, the evidence in this case shows that Jones went to the pool with his firearm and several accomplices to settle a dispute, that he and his accomplices loaded weapons as they approached the pool, that they arrived at the pool at roughly the same time as Harris, that a gunfight ensued between Harris, on the one hand, and Jones and his accomplices, on the other, and that Jones participated in the gunfight by firing his weapon. Although it is undisputed that Winchester was shot by Harris, OCGA § 16-2-20 (a) provides that “[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” Jones is correct, of course, that mere presence or approval of a criminal act is not sufficient to render one a party to the crime, and a conviction as a party to a crime requires proof that the defendant shared a common criminal intent with the principal perpetrator of the crime. But criminal intent is a question for the jury, and it may be inferred from that person’s conduct before, during, and after the commission of the crime. Perkinson v. State, 273 Ga. 814, 816 (546 SE2d 501) (2001); see also Brown v. State, 291 Ga. 887, 888 (1) (734 SE2d 41) (2012); Pruitt v. State, 282 Ga. 30, 32 (1) (644 SE2d 837) (2007); Eckman v. State, 274 Ga. 63, 65 (1) (548 SE2d 310) (2001); Jordan v. State, 272 Ga. 395, 396 (1) (530 SE2d 192) (2000). From the circumstances proven in this case, a rational jury could have inferred that Jones shared a common criminal intent with Harris to engage in a gunfight in the presence of the innocent bystanders at the pool. See Emmanuel v. State, 300 Ga. App. 378, 380 (1) (685 SE2d 361) (2009).4 And even though Winchester evidently was not an intended victim of the gunfight, the evidence was sufficient for a rational trier of fact to find that Jones was a party to the crime of aggravated assault under the doctrine of transferred intent. See id. See also Hendricks v. State, 290 Ga. 238, 240 (1) (719 SE2d 466) (2011); Smith v. State, 279 Ga. 423 (614 SE2d 65) (2005) (“[W]hen an unintended victim is struck down as a result of an unlawful act actually directed against someone else, the law prevents the actor from taking advantage of his own wrong and transfers the original intent from the one against whom it was directed to the one who actually suffered from it.”) (citation and [659]*659punctuation omitted); Perry v. State, 276 Ga. 836, 837 (1) (585 SE2d 614) (2003) (evidence sufficient to sustain appellants’ convictions for aggravated assault (and other charges) either directly or as a party to the crime where one of the appellants fired a weapon during a dispute with a rival group and two innocent bystanders were shot).

Free access — add to your briefcase to read the full text and ask questions with AI

Jones v. State, 740 S.E.2d 590, 292 Ga. 656, 2013 Fulton County D. Rep. 749, 2013 Ga. LEXIS 296 (Ga. 2013).

740 S.E.2d 590 (Jones v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Sims v. State
321 Ga. 627 (Supreme Court of Georgia, 2025)
Johnny L. Ebersole v. State
Court of Appeals of Georgia, 2024
Janorris Spears v. State
Court of Appeals of Georgia, 2023
Mathews v. State
877 S.E.2d 188 (Supreme Court of Georgia, 2022)
Jones v. State
875 S.E.2d 737 (Supreme Court of Georgia, 2022)
Caldwell v. State
Supreme Court of Georgia, 2022
Geoffrey Craig Pickens v. State
Court of Appeals of Georgia, 2022
Peter Ulbrich v. State
Court of Appeals of Georgia, 2022
Overstreet v. State
864 S.E.2d 14 (Supreme Court of Georgia, 2021)
Poole v. State
863 S.E.2d 93 (Supreme Court of Georgia, 2021)
McIntyre v. State
863 S.E.2d 166 (Supreme Court of Georgia, 2021)
Baker v. State
863 S.E.2d 55 (Supreme Court of Georgia, 2021)
United States v. Roosevelt Coats, III
8 F.4th 1228 (Eleventh Circuit, 2021)
Merritt v. State
860 S.E.2d 455 (Supreme Court of Georgia, 2021)
Guzman-Perez v. State
853 S.E.2d 76 (Supreme Court of Georgia, 2020)
Kim v. State
847 S.E.2d 546 (Supreme Court of Georgia, 2020)
Strong v. State
845 S.E.2d 653 (Supreme Court of Georgia, 2020)
Jackson v. State
306 Ga. 706 (Supreme Court of Georgia, 2019)
State v. Jackson
306 Ga. 626 (Supreme Court of Georgia, 2019)
In the Interest Of: K. S., a Child
823 S.E.2d 536 (Court of Appeals of Georgia, 2019)