Tyler v. State

859 S.E.2d 73, 311 Ga. 727

• Court: Supreme Court of Georgia
• Decided: June 1, 2021
• Docket: S21A0553
• Status: Published

Opinion

311 Ga. 727 FINAL COPY

S21A0553. TYLER v. THE STATE.

BETHEL, Justice.

A Richmond County jury found Charles Tyler guilty of felony

murder, armed robbery, and other crimes in connection with the

shooting death of David Fulkrod and theft of copper from a recycling

facility. On appeal, Tyler challenges the sufficiency of the evidence

as to all of his convictions. Because the evidence was sufficient to

support each conviction, we affirm.1

1 The crimes occurred on June 4, 2008. In September 2008, a Richmond

County grand jury indicted Tyler for malice murder (Count 1), felony murder predicated on aggravated assault (Count 2), armed robbery (Count 3), burglary (Count 4), possession of a firearm during the commission of a felony (Count 5), and possession of a firearm by a convicted felon (Count 6). At a jury trial held from August 31 to September 3, 2009, Tyler was found not guilty on Count 1 and guilty on Counts 2 through 5. The State elected not to pursue Count 6, for which the trial court entered an order of nolle prosequi. The trial court sentenced Tyler to consecutive sentences of life in prison on Counts 2 and 3, a consecutive term of 20 years in prison on Count 4, and a consecutive term of five years in prison on Count 5. On September 10, 2009, Tyler filed a motion for new trial, which he subsequently amended. The trial court denied the motion for new trial, as amended, on December 16, 2015, and Tyler filed a timely notice of appeal on December 30, 2015. The case was docketed in this 1. Viewed in the light most favorable to the verdicts, the

evidence presented at trial showed the following. In the weeks

preceding the murder, CMC Recycling Augusta in Richmond County

terminated Tyler’s employment with the company. During the

afternoon of June 3, 2008, Tyler rented a U-Haul box truck and a

storage unit.

In the early morning hours of June 4, Fulkrod was working as

a security guard at CMC Recycling. He was stationed at a guard

shack at the facility’s entrance where he would maintain a log

recording the names of people arriving, their times of arrival, and

other activity. He spoke to his supervisor at 3:00 a.m. and

documented that he “made rounds” between 3:30 and 3:45 a.m.

Fulkrod left a voicemail with his supervisor that all was clear at

around 4:00 a.m. Fulkrod began an entry with a time notation of

Court on April 27, 2017, as case number S17A1524, but was remanded to the trial court on June 30, 2017, so that the complete record of the proceedings could be transmitted to this Court. On January 28, 2019, the trial court entered an order certifying that the record was complete and ordering the clerk of court to transmit the complete record to this Court upon the filing of a new notice of appeal by Tyler. On February 15, 2019, Tyler filed a notice of appeal. This case was docketed in this Court to the April 2021 term and submitted for a decision on the briefs. 2 4:40 a.m., but there was no description of what happened at that

time.

At around 5:30 a.m., another employee arriving for work found

the gate open but did not see anyone in the guard shack to grant him

entrance. The employee exited his vehicle, looked through the guard

shack window, and observed Fulkrod lying in a pool of blood.

Fulkrod had been shot in the head and died from his wounds. A 9mm

cartridge casing was found next to Fulkrod’s body.

Investigators discovered that a copper bale was missing from

the “lower” warehouse. A forklift, normally stored in the “upper”

warehouse, was also out of place, and a welding torch appeared to

have been used to cut the upper warehouse lock. Investigators also

located forklift tire tracks leading to the lower warehouse and tire

tracks from a vehicle with four rear tires leading from the company’s

front entrance to a lane between the upper and lower warehouses

and back out. They also located work boot impressions in the dirt at

the crime scene, a pair of bolt cutters, and a destroyed lock by the

front entry gate.

3 The police provided information about the incident to the

public and requested reports of anyone seen in possession of large

amounts of copper. On June 5, the police received a call from a man

reporting that on the preceding day at approximately 5:45 a.m., he

was driving behind a U-Haul truck and observed “a big cube of

metal” that “looked like copper” in the back of the truck.

At around 7:00 a.m. on June 5, investigators discovered a large

copper cube in a delivery area of a grocery store. About seven miles

away from the grocery store, the police found Tyler lying beside a U-

Haul truck in the parking lot of a gas station. Tyler initially gave

the police a false name, and after being given Miranda warnings,2

Tyler told investigators that he was using the U-Haul truck to move

himself and his wife from his mother’s house into a new apartment.

Tyler was then transferred to a hospital to be treated for

dehydration.

That same day, Tyler’s wife told investigators that she had

2 See Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694)

(1966). 4 been living with her mother and was not moving into a new

apartment with Tyler. She also stated that she brought Tyler a

broom at his request to clean out the U-Haul. Tyler’s mother told

investigators that she had not seen her son in five years. When

investigators returned to the hospital later that day and told Tyler

what they had learned from his wife and mother, Tyler could not

provide an explanation, and “his eyes watered up with tears.”

Investigators also found copper scraps, a pallet, and some cardboard

boxes on the floor of the U-Haul. When told of this discovery by

investigators, Tyler denied that those items had been in the U-Haul

when he rented it, but stated that he was the only one who had

driven or had access to the truck. Investigators also found that the

tires on the U-Haul had the same characteristics as the impressions

left at the crime scene.

Investigators executed a search warrant at Tyler’s storage unit

and discovered approximately 2,700 pounds of copper in piles inside

and copper bits scattered around outside the unit. The amount of

copper discovered in the storage unit and behind the grocery store

5 was consistent with the amount of copper stolen from CMC

Recycling. Investigators then returned a third time to speak to Tyler

and again gave Miranda warnings to Tyler before questioning him.

Tyler initially denied renting a storage unit, but when investigators

revealed proof that he had done so, Tyler admitted that he rented

the unit. Tyler admitted that the storage unit’s key was on a lanyard

that officers had taken from him and stated that no one else had the

key. However, he denied that there was any copper in the unit and

disputed the account of a maintenance man who reported having

backed the U-Haul into the unit at Tyler’s request on the evening of

June 4.

The police searched Tyler’s apartment and found work boots

that matched the impressions documented at the crime scene.

Investigators also recovered documents in the apartment related to

renting a forklift, and notes detailing U-Haul truck rental costs and

weight limits, as well as documents listing various CMC Recycling

locations throughout the Southeast. Additionally, investigators

found Tyler’s resume, which listed that he was previously a

6 construction welder and that his skills included forklift operation.

2. In two separate enumerations of error, Tyler challenges the

sufficiency of the evidence presented at trial. Tyler first argues that

the evidence was insufficient to support his convictions because the

State did not establish each element of the offenses and because the

evidence was circumstantial, did not establish that he actively

engaged in any of the crimes, and did not preclude the possibility

that someone else committed the crimes. Tyler also argues that the

evidence was legally insufficient to sustain his convictions for armed

robbery and possession of a firearm during the commission of a

felony because it was equally possible that the copper was taken

before Fulkrod’s shooting, and thus a jury could not find that the

robbery was accomplished by use of force. For the reasons explained

below, each of these contentions fails.

When evaluating the sufficiency of evidence as a matter of

federal due process under the Fourteenth Amendment of the United

States Constitution, the proper standard of review is whether a

rational trier of fact could have found the defendant guilty beyond a

7 reasonable doubt. See Jackson v. Virginia, 443 U. S. 307, 319 (III)

(B) (99 SCt 2781, 61 LE2d 560) (1979). This Court views the evidence

in the “light most favorable to the verdict, with deference to the

jury’s assessment of the weight and credibility of the evidence.”

(Citation and punctuation omitted.) Hayes v. State, 292 Ga. 506, 506

(739 SE2d 313) (2013). The jury’s resolution of these issues

“adversely to the defendant does not render the evidence

insufficient.” (Citation and punctuation omitted.) Graham v. State,

301 Ga. 675, 677 (1) (804 SE2d 113) (2017).

Further, as a matter of Georgia statutory law, “[t]o warrant a

conviction on circumstantial evidence, the proved facts shall not only

be consistent with the hypothesis of guilt, but shall exclude every

other reasonable hypothesis save that of the guilt of the accused.”

See former OCGA § 24-4-6.3 Whether an alternative hypothesis is

reasonable or whether the circumstantial evidence excludes every

3 This case was tried prior to the current Evidence Code becoming effective in 2013. However, this provision “was carried forward into the new Evidence Code, and it now can be found at OCGA § 24-14-6.” Gibson v. State, 300 Ga. 494, 495 (1) n.4 (796 SE2d 712) (2017). 8 reasonable hypothesis save that of guilt is generally a question left

to the jury, and this Court “will not disturb that finding unless it is

insupportable as a matter of law.” Johnson v. State, 307 Ga. 44, 48

(2) (834 SE2d 83) (2019). “[I]t was for the jury to determine the

credibility of the witnesses and to resolve any conflicts or

inconsistencies in the evidence. Likewise, it was for the jury to

decide whether the defense theory . . . was reasonable and not

excluded by other evidence.” (Citations and punctuation omitted.)

Bamberg v. State, 308 Ga. 340, 343 (1) (a) (839 SE2d 640) (2020).

We first consider the sufficiency of the evidence presented as

to the offense of felony murder predicated on aggravated assault.

OCGA § 16-5-1 (c) provides that “[a] person commits the offense of

murder when, in the commission of a felony, he or she causes the

death of another human being irrespective of malice.” Tyler’s felony

murder conviction was predicated on his aggravated assault of

Fulkrod. OCGA § 16-5-21 (a) (2) provides, in relevant part, that “[a]

person commits the offense of aggravated assault when he or she

assaults . . . [w]ith a deadly weapon[.]” A person commits an assault

9 when he or she “[a]ttempts to commit a violent injury to the person

of another [or c]ommits an act which places another in reasonable

apprehension of immediately receiving a violent injury.” OCGA § 16-

5-20 (a) (1), (2).

Here, the evidence presented at trial was sufficient to support

Tyler’s conviction for felony murder predicated on aggravated

assault. The jury could conclude from the evidence presented at trial

and summarized above that Tyler shot Fulkrod so that he could steal

copper from CMC Recycling.

Likewise, the evidence was sufficient to support Tyler’s

conviction for burglary. Under the statute in effect at the time of the

crimes, OCGA § 16-7-1 (a) provided that “[a] person commits the

offense of burglary when, without authority and with the intent to

commit a felony or theft therein, he . . . enters or remains within any

other building . . . or any room or any part thereof. . . .” Here, the

evidence presented at trial authorized the jury to determine that

Tyler entered the CMC Recycling upper and lower warehouses

without authority and for the purpose of stealing copper. See

10 Blackshear v. State, 309 Ga. 479, 484 (1) (847 SE2d 317) (2020). The

evidence was therefore sufficient to support his conviction for

burglary.

Tyler was also convicted of armed robbery and possession of a

firearm during the commission of a felony predicated on armed

robbery or murder. OCGA § 16-8-41 (a) provides that “[a] person

commits the offense of armed robbery when, with intent to commit

theft, he or she takes property of another from the person or the

immediate presence of another by use of an offensive weapon, or any

replica, article, or device having the appearance of such weapon. . .

.” A person commits the offense of possession of a firearm during the

commission of a felony when he has within arm’s reach or on his

person a firearm during the commission of “[a]ny crime against or

involving the person of another . . . and which crime is a felony[.]”

OCGA § 16-11-106 (b) (1).

The indictment alleged that Tyler committed armed robbery in

violation of OCGA § 16-8-41 “with the intent to commit theft, [by]

tak[ing] copper, the property of CMC [Recycling, Inc.], from the

11 immediate presence of David Fulkrod, by use of a certain firearm[.]”4

“The State therefore was required to prove beyond a reasonable

doubt that [Tyler]’s use of the [firearm] occurred ‘prior to or

contemporaneously with the taking’” of the copper in order to

sustain his conviction for armed robbery and unlawful possession of

a firearm during that offense. (Citation omitted.) Harrington v.

State, 300 Ga. 574, 577 (2) (a) (797 SE2d 107) (2017). A defendant

may be convicted of committing a robbery if he kills the victim first

and then takes property in his possession. See Hester v. State, 282

Ga. 239, 240 (2) (647 SE2d 60) (2007). The evidence was sufficient

for the jury to conclude beyond a reasonable doubt that the State

made such a showing here. The evidence showed that Fulkrod

regularly recorded the name and time of people arriving at the gate,

and there was an incomplete entry at 4:40 a.m. The jury could

4 It is immaterial that the copper belonged to CMC Recycling, not Fulkrod. See Holcomb v. State, 268 Ga. 100, 104 (5) (485 SE2d 192) (1997) (“Robbery is a crime against possession, and is not affected by concepts of ownership. . . . [T]he gravamen of the offense of armed robbery is the taking of items from the possession of another by use of an offensive weapon, and not the ownership status of the item taken.” (footnotes omitted)). 12 conclude that Tyler arrived in the rented U-Haul at the main gate

and then shot Fulkrod before entering the property to complete the

theft. Investigators located tire marks matching the rented U-Haul

entering the main gate between the two warehouses, greatly

diminishing the theory that Tyler gained entry to the facility

through some other means. Further, from the evidence presented at

trial, the jury could infer that he needed time to cut the upper

warehouse lock with a welding torch and to drive the forklift from

that warehouse to the lower warehouse to load copper onto the

truck. And there was no evidence that Fulkrod was restrained in

any way to keep him from calling the police while the theft was

completed. Accordingly, as a whole, when viewed in the light most

favorable to the verdicts, this evidence was sufficient for the jury to

conclude that Tyler shot Fulkrod before stealing the copper. See

Lumpkin v. State, 310 Ga. 139, 146 (1) (a) (849 SE2d 175) (2020)

(evidence sufficient to prove defendant’s use of an offensive weapon

occurred prior to or contemporaneously with the taking); Johnson v.

State, 307 Ga. 44, 49-50 (2) (b) (834 SE2d 83) (2019) (same). The

13 evidence was therefore sufficient to sustain his convictions for

armed robbery and possession of a firearm during the commission of

a felony as a matter of due process.

Finally, we consider Tyler’s argument that the evidence was

insufficient under former OCGA § 24-4-6. Tyler denied any

involvement in the crimes and now argues that the State’s evidence

was circumstantial and did not exclude the possibility that someone

else committed the crimes. However, significant physical evidence

found by the police tied Tyler to the crimes, including a large volume

of copper and copper scraps found in and around the storage unit

and U-Haul that he had rented, work boots found in Tyler’s

possession the soles of which matched impressions found at the

crime scene, and documentation detailing information on forklift

and U-Haul rentals, U-Haul weight limits, and CMC Recycling

locations, as well as a resume detailing Tyler’s skills as a welder and

forklift operator. The jury was authorized to accept the State’s

theory of the crimes and was not required to conclude that the

hypothesis proposed by Tyler that someone else committed the

14 crimes was reasonable. See Blackshear, 309 Ga. at 483 (1).

Based on the foregoing, the jury was authorized to find that the

evidence, even if considered entirely circumstantial, was sufficient

to exclude every reasonable hypothesis other than that of Tyler’s

guilt as to each offense for which he was convicted. See former

OCGA § 24-4-6; Blackshear, 309 Ga. at 484 (1). Moreover, viewing

the evidence in the light most favorable to the verdicts and deferring

to the jury’s assessment of the evidence’s weight and credibility, we

conclude that the evidence presented at trial was sufficient as a

matter of constitutional due process to authorize a rational trier of

fact to find Tyler guilty beyond a reasonable doubt of the crimes of

felony murder, armed robbery, burglary, and possession of a firearm

during the commission of a felony. See Jackson, 443 U. S. at 319 (III)

(B); see also Vega v. State, 285 Ga. 32, 33 (673 SE2d 223) (2009) (“It

was for the jury to determine the credibility of the witnesses and to

resolve any conflicts or inconsistencies in the evidence.” (citation

omitted)).

Judgment affirmed. All the Justices concur.

15 Decided June 1, 2021.

Murder. Richmond Superior Court. Before Judge Brown.

Michael W. Tarleton, for appellant.

Jared T. Williams, District Attorney, Joshua B. Smith,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K.

Smith, Senior Assistant Attorney General, Leslie A. Coots, Assistant

Attorney General, for appellee.