Jamal Gant and Dominique Billings were jointly tried and convicted of two counts of aggravated assault and two counts of possession of a firearm during commission of a crime. Billings was also convicted of aggravated
Case No. A08A0127
1. The evidence was sufficient to sustain Gant’s convictions for aggravated assault and possession of a firearm during commission of a crime.
On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia,443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [s]tate’s case, the jury’s verdict will be upheld.
(Citation omitted.)
Millender v. State,
So viewed, the evidence showed that on the date of the incident, victim Antione Coon called Billings and asked Billings to sell him some marijuana. Later that evening, Billings went to an apartment where Coon was visiting friends. Billings was accompanied by Gant and two other unidentified men. Billings knocked on the door, which was answered by Anthony Gibbs, the second victim. Coon came outside the apartment into the hallway where Coon asked Billings for the marijuana, and Billings asked Coon for a scale to weigh it. Because Coon did not know how to operate the scale, he asked Gibbs to come outside and assist him. Although Gibbs had observed three individuals when he answered the door, he only saw two individuals standing outside when he went to operate the scale. Gibbs began to feel uncomfortable about the situation and felt that “something was [about] to happen.”
As Gibbs kneeled down to operate the scale, Billings pulled out a pistol. A struggle ensued between Gibbs and Billings, as Gibbs attempted to push away the gun. At that time, Billings’s accomplice shot Coon in the head, rendering his eye useless, and then shot Coon several more times in his shoulder and in both of his legs. Gibbs continued to struggle with Billings and was shot in his side and in his shoulder.
After being shot, Gibbs ran away from Billings and his accomplice. As Gibbs ran away, he saw Gant holding a rifle and standing nearby. Moments later, Gibbs saw Gant and Billings flee from the scene together.
The shootings were reported to the police and a lookout (BOLO) call describing Billings’s vehicle was transmitted over the police radio. An officer in the area observed Billings’s vehicle and followed it to another apartment location. When the vehicle arrived at the apartment complex’s gated entrance, the officer activated the patrol car’s blue lights to initiate the stop. Billings then jumped out of the car and fled into the nearby woods. Thereafter, the vehicle sped through the gate and Gant, along with the other occupants, jumped out of the vehicle and led the officer on a foot chase around the apartment complex. Gant and Billings were later apprehended by police during a search of the area.
Police searched Billings’s vehicle and discovered a rifle and semi-automatic handgun in the back seat area. Another handgun was discovered laying in the bushes where the co-defendants had fled. Forensic testing showed that the shell casings found at the crime scene matched the handgun recovered from the vehicle.
After Gant was arrested and advised of his
Miranda
rights, he waived his rights and spoke with the investigating officer. Although
Gant initially gave conflicting information, he later admitted that while the shootings were taking place, he was standing outside the vehicle holding a rifle. Gant further admitted that he had observed the physical altercation between Billings and Gibbs, that he fled from the crime scene with Billings after the incident, and that Billings
Gant argues that this evidence showed only his presence at the crime scene and failed to establish that he intentionally aided and abetted in the commission of the crimes. We disagree. The evidence was sufficient to authorize Gant’s convictions as a party to the crimes.
“Any party to a crime who did not directly commit the crime may be indicted, tried, convicted, and punished for commission of the crime upon proof that the crime was committed and that he was a party thereto.” OCGA § 16-2-21. Whether a defendant was a party to the crime and aided and abetted in the commission of a crime is a matter for the jury. See
Burks v. State,
Gant’s admission that he was holding the rifle throughout the crimes’ commission, along with evidence of his flight, authorized the jury to conclude that Gant participated in the crimes by acting as a lookout. See
Millender,
Case No. A08A0191
2. In this appeal, Billings contends that the trial court erred in admitting evidence of the attempt or conspiracy to sell marijuana without prior notice and a hearing pursuant to Uniform Superior Court Rule (USCR) 31.3. His trial counsel, however, failed to object to this testimony at trial.
1
As such, this claim of error has not been preserved for appellate review. See
Corn v. State,
We nevertheless note that the complained-of testimony was part of the circumstances surrounding the commission of the charged offense. As such, it was admissible as part of the res gestae of the crime, and was not subject to the notice and hearing provisions of USCR 31.3. See
Goldsby v. State,
3. Billings further contends that the trial court erred in failing to merge the aggravated assault charge of Count 1 and the firearm possession charges of Counts 4 and 6 with the aggravated battery charge of Count 3. We discern no error.
Under OCGA § 16-1-6 (1), “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether
Judgments affirmed.
Notes
In fact, Billings’s trial counsel cross-examined Coon extensively regarding the issue of the drug transaction. Billings, who testified in his defense at trial, also gave testimony on direct examination about the drug transaction.
Billings was responsible for the acts of his accomplice as a party to the crime. See OCGA