Dеrrick Lynn Johnson appeals his convictions for felony murder, aggravated assault, and possession of a firearm during the commission of a crime, all arising from the killing of Pedro Huerta and the attemptеd shooting of Antonio Lonuza. 1 For the reasons that follow, we affirm.
Construed to support the verdicts, the evidence showed that Johnson asked his girlfriend, co-indictee Tanica Mosley, to go for a drive with him. Earlier that day, Mosley had, at Johnsоn’s request, placed Johnson’s handgun, a 9 mm automatic, in the trunk of Johnson’s car. Johnson drove to an apartment complex and picked up coindictees, Niki Pennington and Triwick Waters. The four drove to Antwjuan Mitchell’s residence. Johnson left the car for a few minutes and returned with Mitchell. After a short stop, the group drove to the Montega apartment complex. Mitchell was in possession of a .357 magnum handgun, which Mosley had previously seen Johnson take from Castillo’s closet and give to Mitchell.
At the Montega complex, Johnson parked close to its exit. Johnson and Mitchell got out, told thе others to remain in the car, and walked around the side of one of the apartment buildings, to visit the apartment of a bootlegger, who was not there. After ten to fifteen minutes elapsed, Johnson аnd Mitchell
A few seconds later, the taxi, driven by Huerta, arrived at the complex’s exit; Lonuza was a passenger in the back seat. Huerta stopped and honked his horn. Johnson and Mitchell approached the cab; Mitchell opened the driver’s door, and Johnson opened the back door. Mitchell pointed the .357 pistol at Huerta’s head, and Johnson pointed the 9 mm pistol at Lonuza. Johnson sat next to Lonuza, placed the 9 mm against his head, and forced his head down toward the floor. Johnson said something, including the words “m_ f_,” to him. Mitchell said something to Huerta, who mumbled a response; Lonuza could not understand the conversation as he does not speak English. Johnson grabbed Huerta by the neсk and pushed him down. Mitchell fired the .357 at Huerta; a fatal bullet entered his head.
Johnson ran and got into his car as Mosley began driving away. Lonuza opened the right rear door of the cab to escаpe. Mitchell, who had started back to Johnson’s car, turned, approached the taxi, and fired two shots at Lonuza, which missed him. Johnson’s car had now moved some distance away, but Johnson told Moslеy to stop for Mitchell, who ran and jumped in the car. Shortly after leaving the apartment complex, Johnson threw the pistols out of the car. The weapons were recovered and ballistiс tests showed that the .357 matched the bullets fired at the scene.
1. Johnson argues that the evidence was insufficient to support his conviction for aggravated assault with intent to rob Huerta, which was the underlying felony in the felony murder of Huerta for which Johnson was sentenced, and insufficient to support his conviction for aggravated assault with intent to rob Lonuza. Specifically, he contends that there is no еvidence that he had any intent to rob either Huerta or Lonuza.
The trial court instructed the jury as to the law on “party to a crime.” Under OCGA § 16-2-20, one is a party to a crime if he intentionally aids or abets the commission of the crime, or advises, encourages, hires, counsels, or procures another to commit it. That a person is a party to a crime may be inferred from that person’s presence, companionship, and conduct, before and after the crime was committed.
Walsh v. State,
Similarly as a party to the aforementioned crimes, Johnson’s claim that there is insufficient evidence that he possessed the .357 pistol during the commission of a crime is meritless. Although the evidence showed that this weapon was in the physical possession of his co-indictee, Mitchell, during the assaults and murder, Johnson is guilty of this offense if it is shown that he is the accomplice of the person who was in physical possession of the pistol.
Tesfaye v. State,
Johnson urges that even if there is evidence that he participated in conduct that developed into a crime, he abandoned the conduct once Mitchell fired the first shot, and that abandonment is an affirmative defense to an attempted crime. See OCGA § 16-4-5 (a). First, even if Johnson’s running from the taxi is seen as evidence of abandonment, the crime of aggravated assault with intent to rob Huerta was completed when Mitchell pointed the pistol at Huerta. See OCGA § 16-5-21 (a) (1). Further, under OCGA § 16-4-5 (a), an abandonment must be “a voluntary and complete renunciation of [the] criminal purpose.” See
Barnett v. State,
The evidence was sufficient to enable a rational trier of fact to find Johnson guilty beyond a reasonable doubt of all of the crimes for which he was convicted.
Jackson v. Virginia,
2. Mosley testified for the State. On cross-examination, Johnson asked her about an exhibit marked Defense Exhibit One, purportedly a letter she had sent him shortly after Huеrta’s death. He sought to introduce the exhibit, and the State objected on relevance grounds. After some discussion, Johnson asserted that the letter was admissible to impeach Mosley’s direct testimony. Further colloquy was held off the record, and the court sustained the objection. John son contends this is error.
We note that the letter is not in the record before this Court, and thus Johnson has failed to meet his burden to ensure that the record on appeal reveals what occurred in the trial court so that this Court may conduct its review.
Kegler v. State,
Judgments affirmed.
Notes
The crimes occurred on April 30, 2000. On December 20, 2000, a Clayton County grand jury indicted Johnson, together with Idris Antwjuan Mitchell, Tanica Laquanta Mosley, Niki Lynn Pennington, Triwick Dechavion Waters, and Anthony Jacob Castillo, for malice murder, two counts of felony murder in the commission of aggravated assault (one count with intent to rob, and one count with a deadly weapon), and five cоunts of aggravated assault (two counts with intent to rob, and three counts with a deadly weapon); Johnson and Mitchell were also charged with two counts of possession of a firearm during the commission оf a felony, based on the possession of two separate firearms. Johnson was tried alone before a jury on April 11-13, 2001, and found guilty on all counts. On June 19, 2001, he was sentenced to: life in prison for felony murder; four terms of twenty years in prison for aggravated assault, one term to be served consecutively to the life term, and the other three terms to be served concurrently with that twenty-year term; and five yеars in prison for each count of possession of a firearm during the commission of a felony, one term to be served consecutively to the life term, and the other to be served concurrently therewith. One count of aggravated assault merged with the felony murder for which Johnson was sentenced, and the malice murder charge and the remaining count of felony murder stood vacated by oрeration of law. See
Malcolm v. State,
See
Mitchell v. State,