Ward v. State

901 S.E.2d 189, 318 Ga. 884

• Court: Supreme Court of Georgia
• Decided: April 30, 2024
• Docket: S24A0352
• Status: Published

Opinion

318 Ga. 884 FINAL COPY

S24A0352. WARD v. THE STATE.

LAGRUA, Justice.

Appellant James Graham Ward appeals his convictions for

felony murder and other crimes related to two shootings that

occurred on March 24, 2021 — one of which resulted in the death of

Brian Belin.1 Ward contends on appeal that (1) the trial court erred

1 On August 4, 2021, a Paulding County grand jury indicted Ward for the

following counts: malice murder of Belin (Count 1); felony murder predicated on aggravated assault of Belin (Count 2); aggravated assault of Belin (Count 3); aggravated assault of Shadeja Rutledge (Count 4); aggravated assault of Jewell Porter (Count 5); aggravated assault of Russell Jones (Count 6); and possession of a firearm during the commission of a felony (Count 7). The grand jury also indicted Ward and his co-defendant Annias Brooks — individually and as parties concerned in the commission of a crime — for the following counts: aggravated assault of Belin (Count 8); aggravated assault of Rutledge (Count 9); aggravated assault of Porter (Count 10); aggravated assault of Jones (Count 11); and possession of a firearm during the commission of a felony — specifically, the aggravated assault of Rutledge (Count 12). Ward and Brooks were jointly tried from March 14 to March 23, 2022. At trial, the jury found Ward guilty on Counts 2, 3, 7, 8, and 12 and not guilty on the remaining counts. The jury found Brooks not guilty on all counts. The trial court sentenced Ward to life in prison without the possibility of parole on the felony murder count (Count 2), plus a total of 20 consecutive years to serve for Counts 7, 8, and 12. The aggravated assault count (Count 3) merged with the felony murder count (Count 2) for sentencing purposes. Ward filed a timely motion for new trial, which he later amended through new counsel on January 9, 2023, and April 17, 2023. After holding an evidentiary hearing on the motion for new trial, the trial court denied the motion on August 21, 2023. Ward filed a timely notice of in denying his request to charge the jury on voluntary manslaughter

because there was “some evidence” to support such a charge; (2) the

trial court erred in denying his motion for a directed verdict on

Count 8 (aggravated assault) and Count 12 (possession of a firearm

during the commission of a felony) because those counts were not

supported by the evidence and because his convictions on those

counts constituted repugnant verdicts since he was acquitted of the

other aggravated assault charges based on the same conduct; and

(3) his trial counsel rendered ineffective assistance by agreeing to

the trial court’s ruling on the State’s motion in limine and by failing

to file a “reverse 404 (b) motion” under OCGA § 24-4-404 (b) related

to Belin’s propensity to carry firearms because this evidence was

relevant to Ward’s self-defense claim and prejudiced his ability to

support this defense at trial. Seeing no merit to these claims, we

affirm Ward’s convictions.

appeal to this Court on September 8, 2023, and the case was docketed to the term of this Court beginning in December 2023 and submitted for a decision on the briefs. 2 The evidence presented at Ward’s trial, viewed in the light

most favorable to the verdicts, showed that, prior to the shootings

on March 24, 2021, Belin was spending the evening with his

girlfriend, Shadeja Rutledge, and a few friends. Rutledge, who

started dating Belin in 2020, had previously been in an “on-

again/off-again” sexual relationship with Ward, which Ward

described as “friends with benefits.” Several months after Belin and

Rutledge started dating, Belin was incarcerated, and during that

timeframe, Rutledge and Ward saw each other again — but no more

than “once or twice.” When Belin was released from jail, he and

Rutledge resumed their relationship.

On the evening of March 24, Belin and Rutledge went to the

home of Russell Jones, a “close friend” of Belin’s, who lived with his

parents in the Regency Park subdivision. Belin, Rutledge, and Jones

“decided [they] were going to chill at [Jones’s] house” that night to

“drink and play music.” The group left the house briefly to purchase

liquor and pick up Rutledge’s friend, Anisa Karim, and then

3 returned to Jones’s house. They were later joined by Jones’s

girlfriend, Jewell Porter. Around 8:00 p.m., Jones’s parents came

home, and his mother told the group to leave. According to Jones, he

had previously gotten into trouble with his parents because Porter

“was caught spending the night,” and he was not allowed to have

company at the house.

The group got into Belin’s car. Belin drove to the common area

of the subdivision — an area next to the entrance of the subdivision

where the swimming pool and tennis courts are located — and he

parked the car. Jones was very angry about being forced to leave his

house, and he and Belin got out of the car while Belin tried to calm

Jones down. Belin and Jones talked outside the car for about ten or

fifteen minutes, and then, the two men started walking along a

paved path leading from the common area to other homes in the

subdivision. Rutledge, Karim, and Porter stayed in the car, listening

to music and talking. Rutledge testified that she did not see Belin

4 and Jones walk away from the car, and according to Porter, she

“los[t] sight” of where the men went.

As Belin and Jones were walking along the path, Jones heard

“a [woman]’s voice coming from [a] house” adjacent to the common

area, and Jones realized it was Ward’s house.2 Jones testified that

he and Belin did not intentionally walk to Ward’s house; they were

“just walking and talking” when they heard a woman’s voice and

saw several people outside on the deck of the house, “playing music

and stuff.” Jones and Belin approached the fence running along the

back yard of the house, and Belin asked the woman if Ward was

home. She said Ward was not there. Jones testified that “a lot of

people” from the house then came over to the fence and “started

getting rowdy” and “making threats.”

2 The record reflects that, on March 24, 2021, Ward’s mother, Stacy Mason, rented a house in the Regency Park subdivision, which backs up to the tennis courts and swimming pool in the common area. Mason testified that several of her children and her husband’s children lived with her in this house, including Ward and his co-defendant Brooks. 5 Rutledge, Karim, and Porter — who were still sitting in Belin’s

car — heard “some noise” and “someone screaming,” so they got out

of the car and followed the path until they came upon Belin and

Jones “arguing” and “talking to some dudes over the fence.” Rutledge

testified that she was concerned because Belin was “on probation”

and was “extremely drunk,” so she grabbed his hand and told him to

come back to the car. Belin followed Rutledge toward the common

area, but the rest of the group stayed at the fence. Jones testified

that he was “still arguing” with the people on the other side of the

fence, and Porter was telling him, “[L]et’s go.” Jones testified that

he did not “trust the situation,” so he did not “want to turn [his]

back” and walk away.

Ward’s mother, Stacy Mason, testified that she was sitting in

her bedroom talking to Ward on the evening of March 24 when it

“came to [her] attention that something was going on outside of [her]

house.” Mason testified that Ward “got a phone call” around that

time, and he answered the phone, “shook his head,” and “went out

6 of the room.” Ward and Mason went downstairs, at which point

Ward exited “out the front door and [Mason] went out the back door”

onto the deck. Mason testified that “[t]here was a lot of yelling over

[their] fence,” and “it was commotion just all in the back of the

fence.” Mason said the people on the other side of the fence were

“calling for” Ward, and she told them to leave.

Rutledge testified that, when she and Belin got back to the

parking lot in the common area, “a car pull[ed] up, and [Ward]

hop[ped] out.” Ward approached Rutledge and Belin and “ask[ed] is

there a problem,” and she responded, “No. There ain’t no problem.”

Ward then started shooting at Belin. Porter testified that she saw

“someone come running up” to Belin and Rutledge in the parking lot

of the common area and heard “shots go off.” Porter said she could

not identify the person who was shooting, but she saw the person

“pointing at” Belin and saw Belin “go to the ground.” Karim also

testified that, while she was standing by Ward’s back yard, she

heard what she thought were “fireworks,” and when she turned

7 around, she saw “someone shoot at someone and then quickly run

away.” She could not see who the shooter was, but she heard

Rutledge screaming and yelling Ward’s name “over and over again.”

Ward’s sister, Amyris Avritte, testified that she was outside their

home on the evening of March 24 while an argument was going on

at their back yard fence, and she saw a car pull into the common

area and “heard shots.”3 Mason also testified to seeing a “dark car”

pull into the common area parking lot and to hearing gunshots “over

in the parking lot area.”4

According to Rutledge, after Ward shot Belin, she ran to grab

her phone out of Belin’s car to call 911, at which point a second round

of shots — which she assumed were intended for her — were fired.

Porter and Jones testified that they also heard a second round of

“shots pointed [their] way,” and Porter realized she had been struck

3 Avritte testified that she did not see Ward that night. 4 According to Mason, Ward did not have a gun on him while he was in

her bedroom that night and, “to [her] knowledge,” did not own a gun. 8 with a bullet.5 Karim similarly testified that, moments after the first

shooting, she heard “shots go again,” so she “duck[ed],” “roll[ed]

over,” and hid behind some bushes by the tennis courts.

Jones testified that, after Porter was struck, he picked her up

to carry her back to the common area, and as he was doing so, he

saw “Ward hop into” a car, which went “peeling off” away from the

common area and “out [of] the neighborhood.” Rutledge also testified

that she saw Ward “hop back into [a] car” in the common area, and

Karim said she saw “a dark gray or a black van” in the common area

“during the second shooting.”

Rutledge and Karim called 911,6 while Jones attended to Belin.

Jones “took up [Belin’s] shirt,” saw “bullet wounds and blood

squirting out,” and tried to “do CPR and pump [Belin’s] chest.”

Rutledge and Jones testified that Belin did not have a gun on him

that night and that they did not know him to ever “carry a gun.”

5 Jones testified that a bullet “grazed” Porter’s back. 6 Recordings of the 911 calls were played for the jury at trial. During the

phone calls, Rutledge and Karim identified Ward as the shooter. 9 Ronnie and Janelle Scogin, who lived in the Regency Park

subdivision,7 were at home around 8:30 p.m. on March 24 when they

heard “seven or eight bangs” that sounded like “gunshots.” The

Scoginses stepped outside and “could hear young women crying

really, really loud” and screaming for help. Ronnie hurried “towards

the [common] area where [he] heard them crying,” and “as [he] got

to the sidewalk, . . . [he] saw a guy get in a silver SUV and then come

down the road at a high rate of speed.” Ronnie next saw a “black

SUV Ford Explorer with New York plates” drive up “right behind”

the silver SUV,8 “heard several more shots,” and saw the black SUV

leave the subdivision, followed by the silver SUV “maybe a minute”

later. Ronnie ran back to the house and yelled for Janelle to call 911.

Janelle called 911 and advised the operator that there had been a

shooting and that a black SUV with New York plates involved in

7 The Scoginses’ house was located a few houses away from the common

area, between the house where Ward lived and the entrance to the subdivision. 8 Mason testified that, during this timeframe, she was renting a silver or

gray Nissan Pathfinder that Brooks was driving on March 24, and Ward was renting and driving a black Ford Explorer. 10 that shooting was driving out of the subdivision. The Scoginses had

a motion-sensitive video camera installed on the front of their house,

facing the street, which recorded the events of March 24. The video

footage from the camera, which was played for the jury at trial,

captured the sounds of multiple gunshots and screaming, followed

by images of a black Ford Explorer and a silver Nissan Pathfinder

driving toward the common area, the sound of more gunshots, and

images of a black Ford Explorer and a silver Nissan Pathfinder

driving away from the common area and out of the subdivision on

the night of March 24. The Scoginses shared this video with the law

enforcement officers investigating the case.

Around 8:30 p.m. on March 24, law enforcement officers with

the Paulding County Sheriff’s Office received a call regarding a

homicide in the common area of the Regency Park subdivision.

Detective Jacob Martin, one of the first responding officers, testified

that

[o]nce I arrived on the scene, a female identified as Shadeja Rutledge ran down the hill screaming and saying 11 that her boyfriend had been shot in the head and he is dying. I ran up the hill area at the tennis courts and I observed that there was a male lying on the ground and he was bleeding with shell casings around him and appeared to be lifeless. A male identified as “Russell Jones” was on top of him trying to give CPR. I observed two other females on the side.

Emergency medical services soon arrived and “attempted to

render aid” to Belin, but he was deceased. The medical examiner

testified that Belin sustained a total of four gunshot wounds — one

in “the anterior upper chest,” one in “the right side of the lower

abdomen,” one in “the left side of the head,” and one in “the left side

of the back” — as well as “shrapnel injuries” in his left hand.

According to the medical examiner, “each one of the gunshot wounds

in and of themselves would have been fatal,” but “the collective of all

of them [was] what led to [Belin’s] death.”

Detective Gregory Pauch, a crime scene technician, testified

that he collected 9mm shell casings from around Belin’s body, “in

the vicinity of the tennis courts,” and in the roadway. Detective

Pauch testified that some of the 9mm shell casings he discovered

12 were aluminum or metal, while others were brass, which led

investigators to believe that two guns might be involved. At trial,

the GBI firearms examiner testified that, after examining the shell

casings recovered during the autopsy and the shell casings collected

from the crime scene area, she was able to establish that all the shell

casings were fired from Smith & Wesson 9mm pistols. However, the

shell casings located inside and around the victim’s body and in the

common area, and the shell casings located in the roadway were

fired from two different firearms. No weapons were found on the

scene, and neither the murder weapon nor any other weapon

involved in the shootings was ever recovered by law enforcement.

Law enforcement officers learned that Ward was driving a

black Ford Explorer with New York plates on the night of the

shooting. During the early morning hours of March 25, law

enforcement officers located Ward and co-defendant Brooks at the

home of Shayla George, and Ward was arrested and taken into

13 custody.9 While he was in custody, Ward was swabbed for the

presence of gunshot residue (“GSR”). At trial, Kimberly Jewett, a

GBI expert in microanalysis, testified that GSR testing revealed

“four particles characteristic of gunshot primer residue” on Ward’s

hands, which meant that “either he discharged a firearm or he was

in the presence of a discharging firearm or he came into contact with

an item whose surface bears GSR[,] which would be like a recently

discharged firearm.”

Shortly after Ward’s arrest, law enforcement officers obtained

and executed a search warrant at George’s residence, and during

their search, they located Brooks’s cell phone, as well as a gray or

silver Nissan Pathfinder parked inside the garage. George testified

that Brooks drove the Pathfinder to her house on the night of March

24, and at some point during the night, he moved the vehicle into

9 At that time, Brooks was not a suspect in the shootings. When Detective

Dickson later interviewed Brooks about the events of March 24, Detective Dickson came to suspect that Brooks was a second shooter and took him into custody during the interview. 14 the garage.10 George also testified that Ward arrived at her house

about “an hour and 45 minutes” after Brooks, but she did not know

how Ward got there.

On the morning of March 25, law enforcement officers located

Ward’s Ford Explorer at a local park. After obtaining a search

warrant for the Ford Explorer and removing its computer system —

from which geolocation data was subsequently downloaded — law

enforcement officers found a black handgun holster in the pocket

behind the driver’s seat, as well as personal items belonging to

Ward, including Ward’s driver’s license. Law enforcement officers

also swabbed the interior and exterior of the Ford Explorer to test

for the presence of GSR, which testing revealed “four particles

characteristic of gunshot primer residue” on the driver’s side panel

and steering wheel of the vehicle.

10 Mason testified that she spoke to Brooks by phone on the night of the

shootings, and she told him to park the Pathfinder in the garage at George’s house because it was “linked” to Mason as the renter of the vehicle. 15 On March 30, 2021, law enforcement officers executed a search

warrant at Ward’s residence and located Ward’s cell phone. Law

enforcement officers then obtained search warrants for the cell

phones of Ward, Brooks, and Mason. Detective Tyler Brown, who

was admitted as an expert in geolocation analysis and forensic

analysis of electronic data at trial, testified that he reviewed and

analyzed the cell phone records in this case, as well as the

geolocation data taken from the Ford Explorer. Detective Brown

testified that the recovered data showed that, during certain periods

of time, Ward’s cell phone and the Ford Explorer were “synced up

to” one another. According to Detective Brown, the data recovered

from Ward’s cell phone and the Ford Explorer also demonstrated

that, between approximately 8:20 and 8:30 on the night of the

shootings, Ward’s cell phone and the Ford Explorer were positioned

and traveled as follows: (1) the cell phone and vehicle were first

located near Ward’s residence; (2) the car and phone traveled near

the parking lot of the common area by the tennis courts, but did not

16 remain in one spot; (3) the car and phone left the vicinity of the

parking lot and common area — traveling out of the crime scene area

and in the direction of the back of the subdivision; (4) the car and

phone traveled near the common area and the entrance of the

subdivision, “paused briefly,” and then traveled in the direction of

the exit of the subdivision; (5) the car and phone traveled near the

area around the park where Ward’s Ford Explorer was located, after

which there was “no more data for the Ford Explorer”; and (6) the

cell phone then traveled near the northern part of Paulding County.

Detective Brown testified that, about 15 to 20 minutes after the

shooting, Ward’s cell phone “didn’t communicate anymore, and it

wasn’t used.” Additionally, Detective Brown noted that ten calls

were exchanged between Mason and Ward between 8:30 and 8:45

p.m. on March 24, and 27 calls were exchanged between Mason and

Brooks during the same timeframe.

Ward testified in his own defense at trial. According to Ward,

on the evening of March 24, he had just “pull[ed] in the driveway” of

17 his house and had “run in” to “grab something out of [his] room” and

then “leave again,” when Avritte — who was outside in the back yard

— called him on the phone. Ward was inside talking to Mason at the

time, and Avritte said, “There’s people out here asking for you and

they’re cursing or whatever.” Ward said he did not think it was

anything serious — he assumed it was “some of her little friends” —

but he decided he would drive over to the common area, “see what’s

going on,” and try to defuse the situation. Ward testified that he got

in his car and “went to the parking lot” by the common area, where

he thought “it was going to be like a little situation with the kids

that my siblings went to school with or whatever.”

According to Ward, when he got to the parking lot, the

following occurred:

I went and I got out of the car and walked up the path — and started walking up the path and then I seen Mr. Belin and Ms. Rutledge and then I was just like — like, basically, I just asked him like, What’s going on — or basically, What’s your problem or whatever, and then he didn’t really say nothing. He was like, Who’s that and walked closer, and then he just lunged at me and hit me with the gun. 18 Ward testified that, after “Belin came at [him]” and “hit [him] with

the gun,” they “tussled for like maybe 15 seconds.” Ward said he was

not armed, but he “took the gun from” Belin, and then Belin “backed

up maybe like five or [six] feet and then he just lunged at [Ward]

again and that’s when [Ward] shot him.” Ward testified that he did

not “have any intentions of fighting anybody,” and he was just

“defending” himself.

When Ward’s trial counsel asked why several shots were fired,

Ward responded that he was “scared for [his] life,” so he “just shot

until [Belin] dropped.” After shooting Belin, Ward said he “dropped

the gun and ran and hopped in [his] car and left.” Ward testified that

he thought about going back to his house, but he knew his “family

[wa]s not going to be safe,” so he “left the neighborhood” and went to

the “courts in Ben Hill Park.” Ward said he left his Ford Explorer at

the park because he was “too shaken up to drive” and “asked a friend

to drop [him] off” at George’s house. Ward recalled leaving his wallet

19 and driver’s license inside the Explorer but testified that he did not

know a gun holster was also in the vehicle.

On cross-examination, Ward testified that he was “justified” in

shooting Belin “because it was self-defense.” Ward insisted that he

was not in “like a heat of passion” nor had he “lost [his] cool or

anything.” Ward said, “[I]t was him or me,” and he “had to” shoot

Belin. According to Ward, he was not sure where he shot Belin

because he “didn’t really look.” Ward believed he shot Belin in the

chest and “didn’t know anything” about the shots to Belin’s back,

stomach, or head. Ward said he just “pulled the trigger” multiple

times, acknowledging that he was responsible for shooting and

killing Belin, but emphasizing that he shot Belin in “self-defense.”

Ward testified that he was aware that — other than his trial

testimony — no other evidence or testimony had been presented to

show that Belin was armed on the night of the shootings.

As for the second shooting on the night of March 24, Ward

testified that he was not present, he “didn’t shoot at nobody,” and he

20 was not the one who shot Porter in the back. Ward admitted that

the video recording from the Scoginses’ house showed a black Ford

Explorer driving toward the common area “right before the second

shots” were heard and that he could hear the “second volley of

gunshots” on the video. However, Ward insisted that he was “not

there at the time of that second shooting.”

1. On appeal, Ward contends that the trial court erred in failing

to instruct the jury on voluntary manslaughter, see OCGA § 16-5-2

(a),11 because his trial testimony constituted sufficient evidence of

provocation for the issue of voluntary manslaughter to have been

charged to the jury. We see no merit to this claim because there was

not even slight evidence presented to support this charge. See Smith

v. State, 296 Ga. 731, 738 (3) (770 SE2d 610) (2015) (“As the evidence

11 OCGA § 16-5-2 (a) states, in pertinent part, that

[a] person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person[.] 21 in this case does not rise to a level sufficient to support a voluntary

manslaughter charge, the trial court did not err in refusing to give

the charge requested.”).

At trial, Ward submitted a written request to charge the jury

on voluntary manslaughter. At the close of the evidence, the trial

court held a charge conference and advised the parties that it would

not give the voluntary manslaughter charge because Ward’s trial

testimony demonstrated that he did not shoot Belin as the result of

“serious provocation which was sufficient to excite [sudden] passion

in a reasonable person.” The trial court did not charge the jury on

voluntary manslaughter, and Ward objected.

Later, in denying Ward’s motion for new trial alleging that the

trial court’s refusal to give this charge was error, the trial court

rejected this claim, explaining that, to “merit a voluntary

manslaughter charge as a lesser included offense of malice murder

or felony murder,” the evidence “must demonstrate the requisite

provocation.” The trial court determined that Ward failed to

22 demonstrate the “requisite provocation” at trial, and thus, the trial

court properly denied Ward’s request for a charge on voluntary

manslaughter. We agree.

If there is any evidence, however slight, to support a properly requested charge of voluntary manslaughter, then the trial court must give it. But a charge on voluntary manslaughter is warranted only where it can be shown that the accused was so influenced and excited that he reacted passionately rather than simply in an attempt to defend himself. A charge on voluntary manslaughter is not available to a defendant whose own statement unequivocally shows that he was not angered or impassioned when a killing occurred, and when the other evidence does not show otherwise.

Thompson v. State, 312 Ga. 254, 257-258 (2) (862 SE2d 317) (2021)

(quoting Beck v. State, 310 Ga. 491, 496-497 (2) (852 SE2d 535)

(2020)).

Here, there was not even slight evidence presented that could

meet this standard. At trial, Ward testified that, on the night of

March 24, 2021, Belin was armed with a gun when Ward

encountered him in the common area, and the two men “tussled”

before the shooting occurred. Ward then testified that he was

23 “justified” in shooting Belin “because it was self-defense,” and when

asked on cross-examination whether he shot Belin in the “heat of

passion” or whether he had “lost [his] cool,” Ward plainly denied

both, insisting that “it was him or me” and that he shot Belin

because he was “scared for [his] life.”

“This Court has repeatedly held that neither fear that

someone is going to pull a gun nor fighting prior to a homicide are

types of provocation demanding a voluntary manslaughter

charge[,]” Funes v. State, 289 Ga. 793, 795 (2) (716 SE2d 183) (2011),

and Ward points to no evidence whatsoever of provocation other

than a tussle between him and Belin. “[A]cting out of fear is not the

same as acting in the heat of a sudden irresistible passion[,]” id.,

“and only evidence of the latter supports a voluntary manslaughter

conviction,” Burke v. State, 302 Ga. 786, 791 (2) (809 SE2d 765)

(2018). See also Dugger v. State, 297 Ga. 120, 123-124 (7) (772 SE2d

695) (2015) (holding that, where the appellant claimed that he shot

the victim in self-defense, “not out of anger or other passion,” and

24 there was no other evidence supporting a voluntary manslaughter

charge, such a charge was not warranted). For these reasons, we

conclude there was “no error in the trial court’s failure to instruct

the jury that it might consider voluntary manslaughter.” Thompson,

312 Ga. at 258 (2).

2. Ward next contends that the trial court erred in denying his

motion for a directed verdict on the aggravated assault and

possession of a firearm during the commission of a felony counts

related to the second shooting because the evidence was insufficient

to establish that he was present when that shooting occurred. The

record reflects that Ward did not move for a directed verdict at trial,

so this enumeration is without merit. However, even if Ward had

moved for a directed verdict, we disagree that the evidence was

insufficient to support Ward’s convictions for aggravated assault

and possession of a firearm as a matter of constitutional due process.

Ward also argues that the verdict was repugnant because he

was acquitted of the other aggravated assault charges related to the

25 second shooting. We conclude that the verdict in this case was not

repugnant, see Rutland v. State, 315 Ga. 521, 522 (1) (883 SE2d 730)

(2023), and this claim also fails.

The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction. Under this review, we leave to the trier of fact the resolution of conflicts or inconsistencies in the evidence, credibility of witnesses, and reasonable inferences to be derived from the facts, we do not reweigh the evidence, and as long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

Ellington v. State, 314 Ga. 335, 339 (2) (877 SE2d 221) (2022)

(citations and punctuation omitted). See also Jackson v. Virginia,

443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979)

(holding that, when evaluating challenges to the sufficiency of the

evidence as a matter of constitutional due process, “the relevant

question is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have

26 found the essential elements of the crime beyond a reasonable

doubt”) (emphasis in original).

The evidence presented in this case established the following

with respect to Ward’s involvement in the second shooting: (1) Ward

was driving a black Ford Explorer with New York plates on the night

of March 24, 2021, which he later abandoned at a local park; (2)

testimony from Ronnie Scogin and video footage captured from the

Scoginses’ exterior motion-sensitive camera established that, on the

night of March 24 — moments before the second shooting — a black

Ford Explorer with New York plates drove past the Scoginses’ house

toward the common area, multiple shots were fired in the vicinity of

the common area, and the Ford Explorer then drove out of the

subdivision; (3) Jones testified that, right after the second shooting

occurred, he carried Porter — who had been grazed by a bullet —

back to the common area, and he saw “Ward hop into” a car, which

went “peeling off” away from the common area and drove out of the

subdivision; (4) Karim testified that, “during the second shooting,”

27 she saw “a dark gray or a black van” in the common area; and (5)

the GPS data from Ward’s cell phone and the Ford Explorer

confirmed that, around 8:30 p.m. on March 24, Ward’s cell phone

and his vehicle were in the crime scene area, moved out of the crime

scene area, returned briefly to the crime scene area, and then left

the subdivision.

The jury was “entitled to disbelieve” Ward’s testimony that he

was not involved with or present for the second shooting. McKinney

v. State, 300 Ga. 562, 567 (2) (797 SE2d 484) (2017) (“It was for the

jury to determine the credibility of the witnesses and to resolve any

conflicts or inconsistencies in the evidence.”) (citation and

punctuation omitted). Instead, the jury was entitled to believe the

testimony from other eyewitnesses and the other evidence

indicating that Ward left the common area in the Ford Explorer

after the first shooting; drove back to the common area minutes later

in the Ford Explorer; shot multiple times toward the common area

where Belin was lying on the ground and other members of the

28 group had congregated; and drove out of the subdivision in his Ford

Explorer. See id.

Accordingly, after properly viewing the evidence in the light

most favorable to the verdict, we conclude that the evidence was

sufficient as a matter of constitutional due process for a jury to find

Ward guilty beyond a reasonable doubt of aggravated assault

against Belin and possession of a firearm during the commission of

a felony against Rutledge. See Jackson, 443 U. S. at 319 (III) (B).

See also Boyd v. State, 306 Ga. 204, 207 (1) (830 SE2d 160) (2019).

Additionally, Ward’s claim that the verdicts rendered in this

case were repugnant is meritless. “‘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.”

Rutland, 315 Ga. at 522 (1) (citation and punctuation omitted).

Here, the jury’s verdicts were not repugnant. While the jury found

Ward not guilty of aggravated assault as to Rutledge but guilty of

29 possession of a firearm during the aggravated assault of Rutledge,

these verdicts could “legally exist at the same time,” and the not

guilty verdict does not require any specific findings by the jury. Id.

(citation and punctuation omitted).

Instead, the jury’s verdicts were “inconsistent.” Rutland, 315

Ga. at 522 (1). “An example of ‘inconsistent verdicts’ is when a

defendant is convicted of possession of a firearm during the

commission of the crime of aggravated assault but found not guilty

of aggravated assault.” Id. “Although this Court once viewed

inconsistent verdicts as impermissible, we now allow inconsistent

verdicts to stand,” because “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.” Id. (citation and punctuation omitted). See also

Coleman v. State, 286 Ga. 291, 295-296 (4) (687 SE2d 427) (2009)

(concluding that, while the appellant “contends his conviction for

possession of a firearm during the commission of the crime of

30 aggravated assault of [the victim] cannot stand in light of his

acquittal of the underlying felony,” Georgia has rejected the

“inconsistent verdict rule,” and an appellant can no longer “attack

as inconsistent a jury verdict of guilty on one count and not guilty

on a different count”). As such, we conclude that the jury’s verdicts

on the aggravated assault of Rutledge and possession of a firearm

during the aggravated assault of Rutledge counts are permitted to

stand.12

3. In Ward’s final contention, he asserts that his trial counsel

provided ineffective assistance by failing to file a motion under

OCGA § 24-4-404 (b) (“Rule 404 (b)”) to present “reverse 404 (b)

evidence” related to Belin’s propensity to carry firearms and by

failing to object to the trial court’s pretrial ruling granting the

12 We question the continuing validity of our repugnant verdict case law

in the wake of the United States Supreme Court’s decision in McElrath v. Georgia, 601 U. S. 87, 95 (III) (144 SCt 651, 217 LE2d 419) (2024). However, our conclusion that the verdicts in this case were not repugnant means we need not reach the question here, and additionally, none of the parties raised this issue on appeal. 31 State’s motion in limine regarding this issue. This claim of

ineffective assistance of counsel fails.

“To prevail on a claim of ineffective assistance of counsel, a

defendant generally must show that counsel’s performance was

deficient and that the deficient performance resulted in prejudice to

the defendant.” Moss v. State, 311 Ga. 123, 126 (2) (856 SE2d 280)

(2021) (citing Strickland v. Washington, 466 U. S. 668, 687-695 (III)

(104 SCt 2052, 80 LE2d 674) (1984)). “To prove deficient

performance,” a defendant “must show that his counsel performed

in an objectively unreasonable way considering all the

circumstances and in the light of prevailing professional norms.”

Ward v. State, 313 Ga. 265, 272-273 (4) (869 SE2d 470) (2022)

The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the particular circumstances of the case, and decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course.

32 Taylor v. State, 312 Ga. 1, 15-16 (6) (860 SE2d 470) (2021) (citation

and punctuation omitted). See also Robinson v. State, 278 Ga. 31, 37

(3) (d) (597 SE2d 386) (2004) (“As a general rule, matters of

reasonable trial tactics and strategy, whether wise or unwise, do not

amount to ineffective assistance of counsel,” and “[a] reviewing court

evaluates trial counsel’s performance from counsel’s perspective at

the time of trial.”). Our assessment is an objective one, not based on

the subjective views of trial counsel. See Lane v. State, 312 Ga. 619,

623 (2) (a) (864 SE2d 34) (2021) (noting that “we are not limited in

our assessment of the objective reasonableness of lawyer

performance to the subjective reasons offered by trial counsel for his

conduct”) (citation and punctuation omitted).

“To satisfy the prejudice prong, a defendant must establish a

reasonable probability that, in the absence of counsel’s deficient

performance, the result of the trial would have been different.” Moss,

311 Ga. at 126 (2). “If an appellant fails to meet his or her burden of

proving either prong of the Strickland test, the reviewing court does

33 not have to examine the other prong.” Id. (citation and punctuation

omitted). “In reviewing a trial court’s ruling on an ineffective-

assistance claim, we accept the trial court’s factual findings and

credibility determinations unless they are clearly erroneous, but we

independently apply the relevant legal principles to the facts.”

Copeland v. State, 316 Ga. 452, 457 (3) (888 SE2d 517) (2023).

(a) Prior to trial, the State moved to exclude any character

evidence related to the witnesses, victims, and law enforcement

officers in this case. The trial court held a pretrial hearing on the

State’s motions in limine on the first morning of trial. During the

hearing, the prosecutor explained that the primary focus of the

State’s motion in limine was Belin’s incarceration from late 2020

until early 2021, which the State anticipated would be addressed

during trial because Belin’s incarceration “impacted his relationship

with [Rutledge].” The prosecutor indicated that the State would

“affirmatively” discuss the fact that Belin was “locked up,” but

argued that the “general rule” still prevailed — i.e., “the character

34 of witnesses, including victims, [was] not relevant.” The prosecutor

noted that the defense had not provided any discovery to the State,

such as certified copies of convictions or any other documents that

“could be used for proper impeachment,” so the State believed that

“any bad character of witnesses, victims, any police officers” was “off

limits.”

In response, Ward’s trial counsel argued that the defense had

some [photographs] of [Belin] with guns and [Ward’s] defense [was] that Mr. Belin brought the gun to the party rather than [Ward], and [Ward] would like to use those [photographs] as evidence, not for character, but for propensity to carry a gun, and also the conviction was for having a gun on school grounds. We believe it is relevant to our defense.13

The prosecutor responded that there had “not been any reverse

[Rule 404 (b)] notice,” and he believed “that would be required if [the

parties were] going to go into — or there’s going to be any attempt

to make pertinent any specific instances of alleged prior acts.”

13 The record reflects that Ward’s trial counsel did not show any of the

photographs or documentation pertaining to a gun-possession disposition to the trial court or the State during the pretrial hearing. 35 In ruling on the State’s motion in limine, the trial court agreed

with the State that this “type of evidence would require maybe a 404

(b) notice, which requires [the defense] to put the State on notice.”14

The trial court also observed that it did not “know what exactly the

relevance of that evidence would be at th[at] point” since Ward had

not included self-defense in the requests to charge he filed before

trial. The trial court granted the motion in limine, advising that,

[i]f during the course of this case, something comes to light or there does appear to be a reason to revisit this, the court is certainly open to doing so if that becomes necessary, but that needs to be done outside the presence of the jury and [the parties] need to notify the court that [they] intend to do it prior to any attempts or any references to that.

At trial, Ward did not raise the issue of introducing any photographs

or convictions of Belin as evidence.

In his motion for new trial, Ward contended that his trial

counsel “provided ineffective assistance of counsel when counsel

14 We express no opinion as to whether a Rule 404 (b) notice to the State

would have been required under these circumstances. 36 failed to file a [Rule 404 (b)] motion relating to [Belin’s] propensity

to carry firearms.”15 In support of this claim, Ward argued that “the

heart of [his] defense was self[-]defense,” and thus, his trial

“[c]ounsel’s failure to properly file a motion to introduce the

character of Mr. Belin related to the use of firearms under [Rule 404

(b)]” fell below “the standard of what a reasonable attorney would do

under the circumstances and prejudiced Mr. Ward’s ability to

support his self-defense claim” because that evidence was

“probative” of “whether a reasonable person under the

circumstances would have felt threatened sufficiently to justify the

use of deadly force.”

At the motion-for-new-trial hearing, evidence was presented to

show that Belin was arrested on May 25, 2018, and October 12,

2020, for, respectively: (1) possession of a firearm on school grounds

after law enforcement discovered a firearm inside a motor vehicle

15 Ward did not specify in his motion for new trial what evidence his trial

counsel should have sought to admit under Rule 404 (b). 37 associated with Belin parked at the local high school; and (2)

possession of a firearm after law enforcement discovered a firearm

inside a motor vehicle associated with Belin parked on a street

where law enforcement officers were responding to a noise

complaint.16 Ward’s trial counsel testified that, during trial

preparation, investigators in the public defender’s office ran a

criminal history report for Belin and “check[ed] social media for

anything that might be out there.” Ward’s trial counsel stated that,

based on Belin’s criminal history report, he was aware of Belin’s

May 2018 arrest “for firearm on school grounds.” However, trial

counsel indicated that, while he knew Belin had been incarcerated

in late 2020 for a probation violation, he did not know how Belin’s

probation had been violated or that Belin had been arrested again

in October 2020. Ward’s trial counsel testified that he advised Ward

16 At the motion-for-new-trial hearing, the prosecutor advised the trial

court that the State and Ward — through his motion-for-new-trial counsel — had “agreed to stipulate” that Belin was “in custody” for the October 2020 charge from October 12, 2020, until February 28, 2021, shortly before the crimes at issue occurred. 38 before trial that evidence of Belin’s May 2018 arrest “wasn’t

admissible because the judge had ruled on a motion in limine that it

was not admissible,” and the defense was “not going to be allowed to

go into it.” When trial counsel was asked whether he thought it

would have been “proper to try and file a 404 (b) motion to try to get

that evidence in” based on Ward’s self-defense claim, trial counsel

responded that he did not consider filing a Rule 404 (b) motion

because he “didn’t think it would do any good in view of [the trial

court’s] ruling on the motion in limine already.” On cross-

examination, Ward’s trial counsel confirmed that he argued during

the hearing on the State’s motion in limine that information about

Belin’s incarceration “should come in,” but he “gathered from [the

trial court’s] ruling that [the court] was going to put a very tight

[rein] on what [they] could get into with Mr. Belin,” and “the gun

was not one that I could get into.”

In the order denying Ward’s motion for new trial, the trial court

noted that, during the motion in limine hearing, Ward’s trial counsel

39 stated that the defense had “some photographs” of Belin with guns

and “a criminal case disposition for having carried a gun on school

grounds” that the defense wanted to use at trial to show Belin’s

“propensity to carry a gun,” but Ward’s trial counsel did not show

the trial court any such photographs or documentation. The trial

court observed that, in ruling on the State’s motion in limine, the

trial court advised the parties that it would “revisit the issue” at trial

if “a reason were to arise” for the court to do so, but Ward’s trial

counsel “did not later request [the trial court] to revisit the issue.”

The trial court then noted that, at the motion for new trial hearing,

“evidence was presented about 2 instances in which Mr. Belin had

been arrested for having possessed, constructively, a firearm,” but

concluded that this evidence did not demonstrate that Belin “had a

violent character trait” and would not have been “an essential

element of [Ward’s] self-defense claim.” The trial court also

concluded that this evidence did not “indicate that Mr. Belin had

ever used a firearm offensively against another person” or that Ward

40 “had been involved in either incident.” The trial court further

determined that evidence of Belin’s arrests and any photographs of

Belin with guns “would not have been admissible under [OCGA §

24-4-404 (a) (2) or § 24-4-405] to demonstrate that Mr. Belin had

allegedly possessed a firearm during his fatal encounter with

[Ward].”

On this basis, the trial court concluded that Ward’s trial

counsel was not deficient for electing not to file a Rule 404 (b) motion

seeking to admit this evidence because “if the [d]efense had filed

such [a] reverse Rule 404 (b) motion solely to try to show Mr. Belin’s

propensity for possessing or carrying a firearm, such purpose would

have constituted sheer propensity evidence that [the trial court]

would have been authorized to exclude from trial.” The trial court

also ruled that “any marginal relevance or probative value of that

other act evidence would have been substantially outweighed by the

danger of unfair prejudice” and, thus, “excludable under OCGA § 24-

4-403.” The trial court further determined that, “even pretermitting

41 any deficiency in this regard, [Ward] ha[d] not established the

prejudice prong” of Strickland.

On appeal, Ward contends that his trial counsel was deficient

in conceding to the trial court’s pretrial ruling on the State’s motion

in limine and in failing to file a Rule 404 (b) motion to introduce

evidence of Belin’s prior “gun charge” because this evidence was

admissible to show “the character of Mr. Belin related to the use of

firearms” and Belin’s “propensity to carry firearms” and was

relevant to Ward’s self-defense claim.17 Ward further argues that his

trial counsel’s failure to seek to admit this evidence prejudiced

17 In his briefing, Ward does not mention any photographs of Belin “with

guns” — i.e., the photographs referenced by his trial counsel during the motion in limine hearing — or argue that those photographs would have been admissible under Rule 404 (b) had his trial counsel filed the requisite Rule 404 (b) motion, so we assume Ward has abandoned any such claim on appeal. See Harris v. State, 313 Ga. 653, 665 (6) n.13 (872 SE2d 732) (2022) (noting that appellant abandoned any claim that a Brady violation occurred with respect to records from his prior trial “by failing to make any argument in support of it on appeal”) (citing former Supreme Court Rule 22 (“Any enumerated error not supported by argument or citation of authority in the brief shall be deemed abandoned.”)). Additionally, Ward does not make any argument or cite to any legal authority in support of his contention that his trial counsel was ineffective by failing to object to the trial court’s pretrial ruling granting the State’s motion in limine; thus, we assume this claim is similarly abandoned. See id. 42 Ward’s ability to support his self-defense claim. We see no merit to

these contentions, as Ward has not shown that this evidence would

have been admissible at trial.

(b) First, although OCGA § 24-4-404 (a) (2) provides that “an

accused may offer evidence of a pertinent trait of character of the

alleged victim, for the purpose of proving action in conformity

therewith,” that evidence “is generally limited [by OCGA § 24-4-405

(a)] to testimony as to reputation or by testimony in the form of an

opinion.” Copeland, 316 Ga. at 458 (3) (b) (citing OCGA §§ 24-4-404

(a) (2) and 24-4-405 (a)) (punctuation omitted). See also Wofford v.

State, 305 Ga. 694, 698 (2) (c) (827 SE2d 652) (2019) (“Character

evidence about a victim generally is limited to reputation or opinion,

not specific bad acts.”) (citation and punctuation omitted). And, in

cases where an accused is arguing self-defense, the accused may

only seek to introduce evidence of the victim’s violent character

through the admission of “reputation and opinion testimony.”

Strong v. State, 309 Ga. 295, 313-314 (3) (845 SE2d 653) (2020). We

43 have held that “‘specific instances’ of a victim’s conduct,” Copeland,

316 Ga. at 458 (3) (b) (quoting OCGA § 24-4-405 (b)), are not

admissible where the accused is arguing self-defense because “a

victim’s violent character is not an essential element of a self-defense

claim,” Strong, 390 Ga. at 313-314 (3) (holding that OCGA § 24-4-

404 (a) “allowed [an a]ppellant to offer evidence of [the victim’s]

violent character, as that trait was pertinent to [the a]ppellant’s

claim of self-defense,” but OCGA § 24-4-405 (a) required that this

trait be “proved only with reputation and opinion testimony”)

(emphasis in original).

Here, to the extent Belin’s purportedly violent character was

pertinent to Ward’s claim of self-defense at trial, Ward could only

prove this character trait by “reputation and opinion testimony,”

which Ward never sought to do and does not argue his trial counsel

should have done. Strong, 309 Ga. at 313-314 (3). See also Beck, 310

Ga. at 498 (3). Instead, Ward argues that his trial counsel should

have sought to prove Belin’s purportedly violent character through

44 the admission of his prior gun charge, which was not admissible for

this purpose. See Strong, 309 Ga. at 313-314 (3). And, because

Belin’s prior gun charge was not admissible for this purpose, Ward’s

trial counsel was not deficient in failing to introduce evidence of this

prior conviction at trial. See Wofford, 305 Ga. at 698-699 (2) (c)

(“Absent a showing that these prior convictions would have been

admissible at trial, [the appellant] cannot prove that his lawyer

rendered ineffective assistance when he failed to present evidence of

the prior convictions.”).

(c) Additionally, we have held that “[s]pecific instances of a

victim’s past conduct may also be admitted, not to show the victim’s

action in conformity therewith, but rather [to] establish the

defendant’s state of mind and the reasonableness of the defendant’s

use of force.” Copeland, 316 Ga. at 458 (3) (b) (citation and

punctuation omitted). See also OCGA § 24-4-404 (b) (allowing

evidence of “other crimes, wrongs, or acts” to be “offered to prove the

circumstances immediately surrounding the charged crime, motive,

45 or prior difficulties between the accused and the alleged victim”).18

However, “[b]ecause such evidence is offered as proof of the

defendant’s state of mind at the time of the charged crime, it is only

admissible if there is proof that the defendant actually knew about

the victim’s prior acts at that time.” Copeland, 316 Ga. at 458-459

(3) (b).

Here, there is no evidence that Ward “was aware at the time of

the shooting[ ]” of Belin’s 2018 conviction, “so the conviction[ ] would

not have been admissible to show” Ward’s “state of mind or the

reasonableness of his conduct” when he shot Belin in March 2021.

Wofford, 305 Ga. at 698 (2) (c) (citing OCGA § 24-4-404 (b)). Given

that nothing in the record shows that Ward “actually knew” about

Belin’s prior conviction, Copeland, 316 Ga. at 459 (3) (b), or had

“personal knowledge” of any “specific acts of violence” by Belin at the

time the shooting occurred, Ward’s claim of ineffective assistance

18 As we did in Roberts v. State, 305 Ga. 257, 260 (3) (824 SE2d 326)

(2019), we again assume without deciding that Rule 404 (b) applies to evidence regarding the other acts of a victim or third party. 46 based on his counsel’s alleged failure to seek to introduce evidence

of this conviction fails. Beck, 310 Ga. at 498 (3) (concluding that, only

where “the defendant had personal knowledge” of “a victim’s specific

acts of violence,” will those acts potentially “be admissible to show

the defendant’s state of mind with respect to . . . self-defense”).

For the reasons set forth above, we conclude that, because

Ward failed to establish that “his counsel performed in an objectively

unreasonable way considering all the circumstances and in the light

of prevailing professional norms,” Ward has failed to prove that his

counsel performed deficiently. Ward, 313 Ga. at 273 (4) (citation and

punctuation omitted). See also Copeland, 316 Ga. at 456 (3) (“To

overcome the strong presumption that counsel performed

reasonably, the defendant must show that no reasonable lawyer

would have done what his lawyer did, or would have failed to do

what his lawyer did not.”) (citation and punctuation omitted). Thus,

Ward’s claim of ineffective assistance of counsel fails.

Judgment affirmed. All the Justices concur.

47 Decided April 30, 2024.

Murder. Paulding Superior Court. Before Judge Lyles.

Katherine M. Mason, for appellant.

Matthew W. Rollins, District Attorney, A. Brett Williams,

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

Beth A. Burton, Deputy Attorney General, Meghan H. Hill, Clint C.

Malcolm, Senior Assistant Attorneys General, Ashleigh D. Headrick,

Assistant Attorney General, for appellee.