312 Ga. 212 FINAL COPY
S21A0640, S21X0641. THE STATE v. OWENS; and vice versa.
MCMILLIAN, Justice.
After Stephan Joseph Owens was convicted of felony murder
and other crimes related to the shooting death of Richard Osadebe
Egoegonwa, he was granted a new trial on the felony murder charge.
The State appeals, and Owens cross-appeals. Because the trial court
erred in granting a new trial on the ground that the verdicts as
rendered were repugnant, we reverse that portion of the order
granting the new trial. In Owens’s cross-appeal, we affirm except to
correct a sentencing error.1
1 Egoegonwa died on July 5, 2015. On October 9, 2015, a Fulton County
grand jury returned an indictment for malice murder, felony murder, and two counts each of aggravated assault, possession of a firearm during the commission of a felony, and cruelty to children in the third degree. Owens’s first trial ended in a mistrial. At a second trial held from December 12 to 15, 2016, the jury found him not guilty of malice murder but guilty of felony murder and the remaining counts. The jury also found Owens not guilty of voluntary manslaughter as a lesser offense of malice murder and felony murder. One aggravated assault count merged with the felony murder count. The evidence presented at trial showed that Jonathan
Hampton invited his friends Egoegonwa, Owens, and Owens’s
girlfriend, Jasmine Keith, to a barbeque hosted by Hampton’s niece
on July 4, 2015. Hampton drove them all to the party in Keith’s
minivan that evening. Along the way, they dropped off two of Keith’s
older children at her mother’s apartment but brought two toddlers
and a newborn baby to the party.
Egoegonwa purchased liquor to share at the party and became
intoxicated that evening; his postmortem blood alcohol level was
0.236. The partygoers lit firecrackers, and as the guests were eating,
drinking, and laughing together after midnight, Egoegonwa started
rambling belligerently, insulting Owens, and insisting that Owens
“owe[d]” him, presumably for the liquor. They “exchanged words,”
Owens was sentenced to serve life in prison for felony murder, twenty years in prison for aggravated assault to be served concurrently, five years in prison to be served consecutively for each firearm-possession count, and twelve months in prison for each child-cruelty count to be served concurrently. On January 10, 2017, Owens filed a motion for new trial, which he amended on April 13, 2018. After a hearing, the trial court granted in part and denied in part his motion for new trial on December 14, 2020. The State timely appealed, and Owens timely cross-appealed. These cases were docketed to the April 2021 term of court and submitted for a decision on the briefs.
2 and Owens pushed Egoegonwa, who stumbled and fell to the ground.
Egoegonwa exclaimed that Owens could not treat him like “an ant.”
The two were separated, and seeing the potential for violence, the
hosts asked them to leave.
Hampton, Owens, and Keith packed up and went to secure the
children in the van, but in the driveway Egoegonwa staggered and
ran toward Owens angrily, fists closed, telling Owens, “[Y]ou can’t
keep treating me like this.” Owens pointed a gun at Egoegonwa, who
was unarmed, and expressed anger at the hosts for insisting that he
and his family leave. Hampton convinced Owens to put away his
gun, and others held Egoegonwa back so that Owens could enter the
van. Hampton drove, Egoegonwa sat in the front passenger seat, and
Owens sat immediately behind the driver’s seat. The baby was in a
car seat behind Egoegonwa, and Keith and the two toddlers were in
the back.
On their way to pick up Keith’s older children, who were 10 to
15 minutes away, Egoegonwa turned toward Owens, and they were
“fussing back and forth.” Egoegonwa continued to ramble loudly
3 about how poorly he had been treated, but Hampton and Owens
ignored and talked over him, telling jokes to lighten the mood. When
Egoegonwa persisted, Owens shoved Egoegonwa’s shoulder and told
him, “[S]hut up, turn around, nobody wants to hear you talking.”
Then, Egoegonwa pushed Owens’s head, and Hampton saw Owens’s
gun come close to Egoegonwa’s face. As they parked at Keith’s
mother’s apartment, Owens shot Egoegonwa once, and Egoegonwa
died at the scene. Hampton testified that he was “not sure if [the
children] were [a]sleep” at the moment of the shooting. After exiting
the van, Owens briefly kissed Keith and the children, told Hampton
that he was sorry, and fled on foot. Owens turned himself in to the
police a few days later.
At trial, Owens testified that he acted in self-defense because
he thought Egoegonwa would strike him, that Egoegonwa had
grabbed for Owens’s gun, and that the gun went off accidentally as
the two men were struggling over the gun in the minivan. The trial
court agreed to give a jury instruction on voluntary manslaughter
as a lesser offense at Owens’s request, including an instruction that
4 the jury must consider whether mitigating circumstances existed
before rendering verdicts on malice murder and felony murder. As
for completing the verdict form, the trial court instructed that on the
one hand, if the jury found Owens guilty of an offense beyond a
reasonable doubt, the form of the verdict would be “we, the jury, find
the defendant guilty.” On the other hand, the trial court instructed
that if the jury did not believe that Owens was guilty of the offense,
the form of the verdict would be “we, the jury, find the defendant not
guilty.”
Both the prosecutor and defense counsel reviewed the verdict
form, and neither objected before the jury returned its verdict. The
verdict form had separate lines for each offense, and the final one
directed the jury to consider voluntary manslaughter:
As to Count 1, MURDER, and Count 2, FELONY MURDER, if you found mitigating circumstances as provided in the Court’s charge, then, as to VOLUNTARY MANSLAUGHTER, We, the members of the jury, find the Defendant Stephan J. Owens, NOT GUILTY _________ GUILTY _________
The jury checked guilty on the lines for felony murder, both counts
5 of aggravated assault, both counts of possession of a firearm during
the commission of a felony, and both counts of cruelty to children in
the third degree, but it checked not guilty on the lines for malice
murder and voluntary manslaughter. In a conference outside the
jury’s presence before the verdicts were published, the trial court
discussed the verdicts with the parties, at which point the defense
objected to accepting the verdicts, arguing, without explanation,
that they were confusing and required speculation to discern the
jury’s intent. The court overruled the objection and accepted the
verdicts. After the verdicts were published, the defense objected
again to the form and legality of the verdicts.
Following a hearing on the motion for new trial, a different
trial judge than the one who presided over Owens’s trial vacated the
jury’s verdicts on felony murder and voluntary manslaughter as
repugnant and granted a new trial.2 See McElrath v. State, 308 Ga.
2 The trial court denied the motion for new trial on all other grounds
asserted, except it concluded that one of Owens’s two guilty verdicts for possession of a firearm during the commission of a felony should have merged into the other count and ordered that Owens be resentenced accordingly.
6 104, 111 (2) (c) (839 SE2d 573) (2020) (when a jury makes
affirmative findings as shown on the record that cannot logically or
legally exist at the same time, such verdicts are repugnant and must
be vacated). First, the court determined that Owens properly
preserved the issue of whether the verdicts were repugnant because
he timely objected to accepting the verdicts. Second, citing
Cheddersingh v. State, 290 Ga. 680 (724 SE2d 366) (2012), the court
concluded that the verdict form was erroneous because it instructed
the jury to consider voluntary manslaughter only if the jury found
mitigating circumstances, and because the jury returned a verdict
on that charge, the jury must have decided that there were
mitigating circumstances “as a precondition.” Citing Edge v. State,
261 Ga. 865, 865 (2) (414 SE2d 463) (1992), which held that “where
the jury renders a [guilty] verdict for voluntary manslaughter, it
cannot also find felony murder based on the same underlying
aggravated assault,” the court concluded that the jury, “having
found mitigation as expressed in the verdict form, could not [legally]
return a verdict of guilty on felony murder and not guilty on
7 voluntary manslaughter,” and therefore that the verdicts were
repugnant under McElrath, 308 Ga. at 111 (2) (c).
Case No. S21A0640 (State’s Appeal)
1. The State asserts that the trial court erred in granting a
new trial as to felony murder due to the court’s view that the verdict
form was erroneous and that the verdicts were repugnant.
(a) As an initial matter, both parties argue that the other has
waived its claims on appeal regarding the verdicts. Owens contends
that because the State focused its initial appellate brief on the
verdict form rather than the trial court’s determination that the
verdicts were repugnant, the State abandoned any argument on
appeal that the verdicts were repugnant. In reviewing the State’s
briefing on appeal, we note that in its opening brief, the State
enumerated as error the grant of the new trial but focused its
argument on problems with the verdict form and why the trial court
erred in determining that the jury must have found mitigating
circumstances; it then expanded its argument as to why the verdicts
were not repugnant in its reply brief. We conclude that although the
8 State’s initial brief was inartful in how it presented its arguments,
the State sufficiently challenged the basis for the grant of a new trial
such that it has not abandoned this argument on appeal. See
Supreme Court Rules 19, 22 (regarding enumerations of error,
argument, and citation of authority).
Conversely, the State contends that because Owens did not
object to the verdict form before the jury retired to deliberate, the
trial court erroneously found that Owens had preserved his claim
regarding the verdict. See OCGA § 17-8-58 (a) (“Any party who
objects to any portion of the charge to the jury . . . shall inform the
court of the specific objection . . . before the jury retires to
deliberate.”). Therefore, the State argues, the trial court should have
applied plain error review, and under plain error review, the trial
court should not have granted a new trial. See id. at (b) (limiting
review to plain error when party fails to object in accordance with
subsection (a)).
The State is fundamentally mistaken in its views. Whether
Owens properly objected to the verdict form is distinct from the
9 question of whether the verdicts as rendered were repugnant.
Assuming without deciding that the trial court should have applied
the plain error test in reviewing the issues with the verdict form,
Owens separately asserted at the motion for new trial that the
verdicts were repugnant. In considering whether verdicts were
repugnant and thus void, we have held that “no valid judgment may
be entered on a void verdict.” Allaben v. State, 294 Ga. 315, 321 (2)
(b) (751 SE2d 802) (2013), overruled on other grounds, State v.
Springer, 297 Ga. 376, 382-83 (2) & n.4 (774 SE2d 106) (2015).
Accordingly, any judgment and sentence entered on repugnant
verdicts are void and can be challenged in any proper proceeding,
including a timely filed motion for new trial and a properly filed
direct appeal. See Nazario v. State, 293 Ga. 480, 485 (2) (b) (746
SE2d 109) (2013). Thus, Owens has not waived this claim for review
by the trial court or on appeal.
(b) Turning to the merits, the State asserts that because the
verdict form — when properly considered with the jury charges, the
trial court’s written instructions, and the closing arguments — does
10 not necessarily show that the jury found mitigating circumstances,
the resulting guilty verdict for felony murder and not guilty verdict
for voluntary manslaughter were not repugnant. We agree.
Repugnant verdicts “occur when, in order to find the defendant
not guilty on one count and guilty on another, the jury must make
affirmative findings shown on the record that cannot logically or
legally exist at the same time.” McElrath, 308 Ga. at 111 (2) (c)
(emphasis in original). When verdicts are repugnant, they must be
vacated and a new trial must be conducted. Id. In contrast,
“inconsistent verdicts occur when a jury in a criminal case renders
seemingly incompatible verdicts of guilty on one charge and not
guilty on another.” Id. at 108 (2) (a) (emphasis in original).
Inconsistent verdicts are permitted to stand because the jury’s
rationale is not apparent from the record and courts generally are
not permitted to make inquiries into the jury’s deliberation process.3
3 A third category of verdicts — mutually exclusive verdicts — does not
apply here because that category involves “two guilty verdicts that cannot legally exist simultaneously.” McElrath, 308 Ga. at 110 (2) (b) (emphasis in original).
11 Compare Guajardo v. State, 290 Ga. 172, 174 (2) (718 SE2d 292)
(2011) (repugnant verdicts require reversal “in the rare instance
where, instead of being left to speculate as to the jury’s
deliberations, the appellate record makes transparent the jury’s
rationale”), with Thornton v. State, 298 Ga. 709, 713-14 (2) (784
SE2d 417) (2016) (jury may render inconsistent verdicts because of
“mistake, compromise, or lenity” (citing United States v. Powell, 469
U.S. 57, 65 (105 SCt 471, 83 LE2d 461) (1984))).
Ordinarily, a guilty verdict on felony murder and a not guilty
verdict on voluntary manslaughter would not be inconsistent, much
less repugnant, because they are separate offenses upon which the
jury would be free to find the defendant guilty or not guilty based on
the facts of the case. See Carter v. State, 298 Ga. 867, 869 (785 SE2d
274) (2016) (no repugnant verdict on “two different offenses upon
which the jury was free to find [the defendant] guilty or not guilty
based on the facts of the case as interpreted by the jury”); cf. Edge,
261 Ga. at 865-66 (2) (applying a modified merger rule to reverse
felony murder conviction when the jury also found defendant guilty
12 of voluntary manslaughter based on the same underlying
aggravated assault). However, Owens argues that because of the
conditional “if” statement in the voluntary manslaughter line on the
verdict form, the fact that the jury returned a verdict on voluntary
manslaughter at all, rather than leaving that section blank,
constitutes an affirmative finding of mitigating circumstances, so
the verdicts for voluntary manslaughter and felony murder based on
the same aggravated assault were repugnant.
Owens’s argument relies solely on the language in the verdict
form, but in determining the meaning of the verdicts, it is critical to
consider the jury instructions as a whole. See Cheddersingh, 290 Ga.
at 683 (2) (“Preprinted verdict forms have been treated as a portion
of the jury instructions.”). As to voluntary manslaughter, the trial
court charged:
After consideration of all of the evidence[, and] before you would be authorized to return a verdict of guilty of malice murder or felony murder[,] you must first determine whether mitigating circumstances if any would cause the offense to be reduced to voluntary manslaughter as defined below.
13 The jury was then charged on the elements of voluntary
manslaughter and that the burden of proof was on the State to prove
beyond a reasonable doubt that the offense was not so mitigated.
Near the close of the charge, the jury was also instructed that,
should it find beyond a reasonable doubt that Owens committed the
offenses alleged in the indictment, the jury would be authorized to
find Owens guilty, and in that event, the form of the verdict would
be “we, the jury find the defendant guilty.” The jury was further
instructed that if it did not believe that Owens was guilty, then it
would have a duty to acquit, in which event the form of the verdict
would be “we, the jury find the defendant not guilty.” The
instructions were provided to the jury in writing during their
deliberations.4
The jury was not instructed orally or in writing to leave the
voluntary manslaughter line blank if it concluded that there were
no mitigating circumstances. To the contrary, the State argued in
4 Neither the State nor Owens argues on appeal that the charges were
improper.
14 closing that the jury should find Owens guilty of malice murder and
felony murder, explained the consequences of also marking guilty
for voluntary manslaughter, and urged the jury to mark “not guilty”
on voluntary manslaughter.5
Although when viewed in isolation, the verdict form could
suggest that the jury found mitigating circumstances, the trial
court’s other instructions and the State’s explanations during
closing argument support the conclusion that the jury, by marking
“not guilty” on the line for voluntary manslaughter, found that there
were no mitigating circumstances and thus that Owens had not
5 In its closing the argument, the State told the jury, after explaining
voluntary manslaughter: [I]f you find him guilty of voluntary manslaughter, you automatically find him not guilty of malice murder and felony murder. . . . [I]f you write guilty [of] malice murder, guilty [of] felony murder, and guilty [of] voluntary manslaughter[,] it’s like you wrote not guilty of murder and not guilty of felony murder . . . . So please do not if you think that he’s guilty of the first two and continue down the line and find him guilty of voluntary manslaughter. It’s either or, okay. So I’d ask that you find him guilty of malice murder, felony murder . . . but not guilty of voluntary manslaughter because he wasn’t justified when he committed the act.
15 committed voluntary manslaughter.6 Because the record does not
show that the jury made an affirmative finding that mitigating
circumstances existed, the verdicts were not repugnant, and the
trial court erred in granting a new trial on this basis. See Guajardo,
290 Ga. at 174-75 (2) (despite jury’s question suggesting that it
found appellant not guilty of malice murder due to self-defense,
guilty verdicts on felony murder and other counts were not
repugnant because jury did not make its reasoning transparent); cf.
McElrath, 308 Ga. at 112 (2) (c) (verdicts of not guilty by reason of
insanity on malice murder and guilty but mentally ill on felony
murder were repugnant because “it is not legally possible for an
individual to simultaneously be insane and not insane during a
single criminal episode against a single victim”); Turner v. State, 283
Ga. 17, 21 (2) (655 SE2d 589) (2008) (verdicts were repugnant based
on jury’s express finding of justification that was clear from verdict
6 Though we see no reversible error under the circumstances of this case,
we do not endorse the language used in the verdict form for voluntary manslaughter as a lesser offense of malice murder and felony murder.
16 form).
2. The State does not challenge the trial court’s determination
in its order granting the motion for new trial that one of the firearm-
possession counts should have merged into the other and that
resentencing is required, so we do not reach this issue, and that part
of the trial court’s order stands.
Case No. S21X0641 (Owens’s Cross-Appeal)
3. Owens contends that even if the Court concludes that the
verdicts are not repugnant, he is still entitled to a new trial because
the trial court plainly erred in using the verdict form, which made
“it impossible to know the jury’s true findings.”7
7 The State argues that Owens is precluded from asserting this claim
because the trial court found in its order granting his motion for new trial that the verdict form was erroneous, and that because this issue was resolved in Owens’s favor, it could not be the subject of Owens’s cross-appeal. However, the State misapprehends the nature of Owens’s argument. Owens asserts that if this Court were to reverse the grant of the new trial, as we have done here, he is nonetheless entitled to a new trial because the trial court committed plain error in using the verdict form. See OCGA §§ 5-7-1 (b) (“In any instance in which any appeal is taken by and on behalf of the State of Georgia in a criminal case, the defendant shall have the right to cross appeal. Such cross appeal shall be subject to the same rules of practice and procedure as provided for in civil cases under Code Section 5-6-38.”); 5-6-38 (a) (“[A]ppellee may present for adjudication on the cross appeal all errors or rulings adversely affecting him[.]”).
17 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.
Stewart v. State, 311 Ga. 471, 475-76 (1) (b) (858 SE2d 456) (2021)
(citation and punctuation omitted). Here, even assuming without
deciding that the instruction on voluntary manslaughter on the
verdict form was erroneous, Owens has not shown that the error
likely affected the outcome of his trial. Despite any ambiguity in the
form, the trial court properly instructed the jury on voluntary
manslaughter and how to complete the verdict form, and based on
those instructions, the jury clearly found Owens not guilty of
voluntary manslaughter. Because Owens is not entitled to “know the
jury’s true findings,” apart from what is revealed on the face of the
record, Owens has failed to carry his burden of proving plain error.
See Williams v. State, 304 Ga. 455, 459-60 (3) (818 SE2d 653) (2018)
(appellant could not show that error in jury instruction likely
affected the outcome of trial).
18 4. Owens asserts that he was denied his right to effective
assistance of trial counsel because (1) counsel failed to preserve the
alleged error in the verdict form and (2) counsel did not generally
demur to the child-cruelty counts. To succeed on these claims,
Owens must demonstrate both that his trial counsel performed
deficiently and that he was prejudiced by this deficient performance,
meaning that a reasonable probability exists that absent counsel’s
deficient performance, the outcome at trial would have been
different. See Strickland v. Washington, 466 U.S. 668, 687 (III) (104
SCt 2052, 80 LE2d 674) (1984). We need not address both prongs if
the defendant makes an insufficient showing on one. See id.
(a) Even assuming that trial counsel should have objected to
the verdict form, Owens cannot show that a reasonable probability
exists that the outcome of the trial would have been different, so
Owens’s ineffective assistance of counsel claim on this ground fails.
See Bozzie v. State, 302 Ga. 704, 711 (4) (b) (808 SE2d 671) (2017)
(“The prejudice step of the plain-error standard is equivalent to the
prejudice prong for an ineffective assistance of counsel claim.”).
19 (b) Owens also contends that his trial counsel rendered
ineffective assistance by failing to challenge the child-cruelty counts
by general demurrer because those counts did not name the child
victims or specify the forcible felony that was the basis for the
charges. A general demurrer challenges the legality, validity, and
substance of an indictment by asserting that the indictment is
fatally defective and thus incapable of supporting that a crime was
committed; it can be granted only if the defendant could admit each
and every fact alleged in the indictment and still be innocent of any
crime. See State v. Mondor, 306 Ga. 338, 340-44 (1) (830 SE2d 206)
(2019).
Here, the two third-degree child-cruelty counts were
identical—both alleged that Owens committed the offense of cruelty
to children in the third degree by “commit[ting] a forcible felony” “on
the 5th day of July, 2015[,] being the primary aggressor and having
knowledge that a child under the age of 18 was present and saw or
heard the act.” Although the counts incorrectly cite OCGA § 16-5-70
(d) (1), they track the language of OCGA § 16-5-70 (d) (2), which
20 provides that a person commits the offense of cruelty to children in
the third degree when “[s]uch person, who is the primary aggressor,
having knowledge that a child under the age of 18 is present and
sees or hears the act, commits a forcible felony, battery, or family
violence battery.”
Owens is correct that as a general rule, an indictment for an
offense against the person should include the name of the victim.
See Irwin v. State, 117 Ga. 722 (2) (45 SE 59) (1903) (“[I]t is
necessary that, in an indictment for an offense against the person of
another, the person injured should be referred to by his correct
name[.]”). However, we have explained that this rule is in place to
comport with constitutional due process, and thus,
an indictment charging a defendant with a criminal offense must satisfy two criteria: (1) it must contain the essential elements of the crimes and apprise a defendant of what he must be prepared to meet at trial; and (2) it must show with accuracy to what extent the defendant may plead a former acquittal or conviction.
State v. Grube, 293 Ga. 257, 260 (2) (744 SE2d 1) (2013). An
indictment charging a crime against a person meets these
21 requirements “best when it provides the full and correct name of the
victim.” Id.
“But the lack of notice of the charges or allegations goes to the
form of the indictment, which is challenged by a special demurrer,
rather than a general demurrer.” State v. Heath, 308 Ga. 836, 839
(843 SE2d 801) (2020) (emphasis in original); see also Grube, 293
Ga. at 260 (2) (treating challenge under Irwin as an issue for a
special demurrer); Dennard v. State, 243 Ga. App. 868, 877 (2) (534
SE2d 182) (2000) (recognizing failure of indictment to allege victim’s
name in attempt crime was subject to special demurrer). Because
Owens only asserts on appeal that his counsel performed deficiently
by failing to file a general demurrer, rather than a special demurrer,
his ineffectiveness claim on this ground fails.8
Owens further argues that trial counsel performed deficiently
by not filing a general demurrer on the ground that the forcible
8 In his amended motion for new trial, Owens argued that his trial counsel performed deficiently by failing to file both a general demurrer and a special demurrer, but he does not renew the special-demurrer argument on appeal. See Heath, 308 Ga. at 840 (failure to specially demur is generally not prejudicial because it must be raised pretrial and State can re-indict).
22 felony was not set out in the indictment, citing Polk v. State, 275 Ga.
App. 467, 468-69 (1) (620 SE2d 857) (2005), and Everhart v. State,
337 Ga. App. 348, 355 (3) (a) (786 SE2d 866) (2016). However,
neither Polk nor Everhart considered the question of whether a
third-degree child-cruelty count that does not name the forcible
felony is subject to a general demurrer, and neither case expressly
extended its reasoning to the failure to allege the forcible felony to
third-degree child cruelty. See Polk, 275 Ga. App. at 468-69 (1)
(challenge to a burglary charge on the basis that it did not put the
defendant on notice of the charges against him); Everhart, 337 Ga.
App. at 355 (3) (a) (considering different subsection of the child-
cruelty statute and whether the State alleged the essential elements
of that crime to avoid being subject to general demurrer). It is well
settled that “[t]he standard for effectiveness of counsel does not
require a lawyer to anticipate changes in the law or pursue novel
theories of defense.” Brooks v. State, 309 Ga. 630, 637 (2) (847 SE2d
555) (2020) (citation and punctuation omitted); see also Esprit v.
State, 305 Ga. 429, 438 (2) (c) (826 SE2d 7) (2019) (“A criminal
23 defense attorney does not perform deficiently when he fails to
advance a legal theory that would require an extension of existing
precedents and the adoption of an unproven theory of law.” (citation
and punctuation omitted)). Consequently, Owens cannot show that
his counsel’s performance was constitutionally deficient.
5. Owens further argues that the evidence was insufficient to
support that he committed child cruelty because it is not clear that
the children heard or saw the shooting, but we disagree. Cruelty to
children in the third degree is committed when a primary aggressor
either intentionally or knowingly allows a child to see or hear the
act of committing “a forcible felony.” See OCGA § 16-5-70 (d) (1)-(2);
McCluskey v. State, 307 Ga. 740, 743 (1) (a) (838 SE2d 270) (2020)
(child victim must see or hear criminal act rather than just
encounter or experience its aftermath).
When reviewing the sufficiency of the evidence, an appellate
court no longer presumes the innocence of the defendant and instead
views the evidence in a light most favorable to the jury’s verdict. See
Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61
24 LE2d 560) (1979). Viewed in this light, the evidence presented at
trial regarding cruelty to children was that Owens loaded three
children into the minivan who were then present at close quarters
when Owens shot Egoegonwa in the early hours of the morning.
Hampton testified that he did not know if the children were awake
or asleep, and none of the children or their mother testified about
whether they were awake or affected by the shooting. However,
Owens knew that the children were present in the van at the time
of the shooting, and the jury could infer that a gunshot in the
minivan would awaken the children even if they were sleeping.
Therefore, there was sufficient evidence to enable a rational trier of
fact to infer that the children at least heard the shooting and to
conclude beyond a reasonable doubt that Owens was guilty of cruelty
to children in the third degree. Compare McCluskey, 307 Ga. at 743-
44 (1) (a) (evidence was insufficient where teenagers witnessed
attack’s aftermath but did not hear attack itself), with White v.
State, 319 Ga. App. 530, 533 (3) (737 SE2d 324) (2013) (even though
there was no evidence that two-year-old was awake to witness
25 defendant’s attack on her mother, older sibling testified that two-
year-old was shaking after it, and therefore “the jury was authorized
to infer that . . . [the two-year-old] awoke when she heard the adult
victim screaming during the attack”).
6. Finally, Owens asserts two sentencing errors. First, he
argues on appeal, and the State concedes, that one of the counts for
cruelty to children in the third degree should have merged with the
other because these counts in the indictment were identical, and the
jury could have found Owens guilty of child cruelty based on the
same child seeing or hearing the same crime. We agree, vacate
Owens’s convictions for cruelty to children, and remand for
resentencing on only one of the child-cruelty counts. Cf. Dukes v.
State, 311 Ga. 561, 570 (4) (858 SE2d 510) (2021) (defendant may
not be convicted and sentenced for the identical crime twice).
We reach a different result with respect to Owens’s contention
that his two aggravated assault convictions should have merged.
One count alleged that Owens committed aggravated assault with a
deadly weapon under OCGA § 16-5-21 (a) (2) “by brandishing a
26 handgun and pointing it at, toward, and in the direction of . . .
Egoegonwa,” and the other accused Owens under the same statute
of “shooting him with a handgun.” Neither count averred a specific
time or location of the assault. Owens argues that the jury could
have found him guilty of both aggravated assault counts based on
only the evidence that he shot the victim in the minivan because “[i]t
is virtually impossible to shoot someone without first brandishing a
weapon in their direction.”
Where a merger analysis involves multiple counts of the same
crime, as here, we look at the unit of prosecution criminalized by the
legislature. See Dukes, 311 Ga. at 570 (4). OCGA § 16-5-21 (a) (2)
provides, in pertinent part, that “[a] person commits the offense of
aggravated assault when he or she assaults . . . [w]ith a deadly
weapon[.]” The unit of prosecution is thus the assault with the
deadly weapon. It is clear here that there were two assaults
separated by a significant period of time, in different locations, and
with separate potential injuries to the victim. The evidence
supported, and the State argued, that Owens brandished his gun at
27 Egoegonwa while still at the party in a manner that was likely to
cause him serious bodily injury, and then 10 to 15 minutes later
Owens shot Egoegonwa in the minivan at the apartment complex
parking lot. The aggravated assault convictions do not merge under
the circumstances of this case. See Ortiz v. State, 291 Ga. 3, 6-7 (3)
(727 SE2d 103) (2012) (evidence supported two distinct assaults
against the victim, separated by a “deliberate interval” during which
the defendant shot someone else); cf. Jeffrey v. State, 296 Ga. 713,
718 (3) (770 SE2d 585) (2015) (four aggravated assault convictions
merged when “there was no evidence that the shooting occurred in
a manner other than in a single transaction, with no ‘deliberate
interval’ separating any of the shots”).
Judgment affirmed in part and vacated in part, and case remanded with direction in Case No. S21X0641. Judgment reversed in Case No. S21A0640. All the Justices concur, except Colvin, J., not participating.
28 Decided August 10, 2021.
Murder. Fulton Superior Court. Before Judge Russell.
Fani T. Willis, District Attorney, Lyndsey H. Rudder,
Burke O. Doherty, Assistant District Attorneys; Christopher M.
Carr, Attorney General, Patricia B. Attaway Burton, Deputy
Attorney General, Paula K. Smith, Senior Assistant Attorney
General, for appellant.
Lauren B. Shubow, for appellee.