Kuhn v. State, 301 Ga. 741

On Sept. 30, 2013, Curtis Todd Kuhn shot and killed his stepfather, Robert Donald “Don” May II, after an argument at the family home; Don sustained multiple gunshot wounds to his back and died at the hospital.
Ten spent casings were found (five .40 cal from Kuhn’s Glock; five 9mm from Don’s H&K); Kuhn had a gunshot wound to his upper right arm; guns were later found in a trashcan.
Witness Rusty testified he tackled Don to the ground and then saw Kuhn shoot Don in the back; GBI agent Murphy (State’s crime-scene expert) concluded Don was backing away and was shot in the back after being tackled.
Kuhn gave statements asserting self-defense; he and a defense expert testified that Kuhn fired from the grassy area and that Don’s back wounds occurred while Don was falling after being tackled.
A Polk County jury convicted Kuhn of malice murder and related offenses (cruelty to children in the first degree); he received life for malice murder and concurrent 20 years for the cruelty charge; felony murder vacated and aggravated assault merged.
Kuhn appealed, arguing (1) insufficient evidence to support convictions and (2) error in denying his request to have the trial judge hear his motion for new trial; the motion for new trial was heard by a different judge who had presided over pretrial immunity proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of the evidence to support murder convictions	Kuhn argued the State’s proof was insufficient; inconsistencies and credibility issues (self-defense claim) meant no rational jury could convict	State relied on eyewitness testimony, crime-scene analysis, autopsy showing fatal back wounds, and Kuhn’s statements; jury could reject self-defense	Affirmed — viewed in light most favorable to verdict, evidence was sufficient; credibility and weight issues are for the jury (Jackson standard applied)
Whether the motion-for-new-trial judge erred by not assigning the original trial judge	Kuhn argued he was entitled to have the trial judge preside over the motion for new trial	State: OCGA § 5-5-432 allows a judge who did not try the case to hear and decide a timely motion for new trial; the judge who heard the motion had presided over related pretrial immunity proceedings	Affirmed — no error; statute permits non-trial judge to decide the motion and the hearing judge had prior involvement in the case

Jackson v. Virginia, 443 U.S. 307 (standard for reviewing sufficiency of the evidence)
Hayes v. State, 292 Ga. 506 (deference to jury on credibility and weight of evidence)
Thomas v. State, 300 Ga. 433 (issues of credibility and justification are for the jury)
Shaw v. State, 292 Ga. 871 (jury may reject defendant’s self-defense claim)
State v. Harris, 292 Ga. 92 (OCGA § 5-5-432 permits non-trial judge to decide motion for new trial)
Weathersby v. State, 263 Ga. App. 341 (same statutory principle permitting non-trial judge)