McNeely v. StateMcNeely v. State
Appellant Nebula McNeely was convicted of two counts of felony murder and other offenses related to shoplifting and the deaths of two individuals arising from an automobile collision. The collision occurred when appellant and her accomplice were fleeing or attempting to elude a police officer after they had been confronted for shoplifting.1 For the reasons set forth below, we affirm in part with respect to the convictions, but we vacate in part, with respect to the separate sentence imposed for the conviction for felony fleeing or eluding, because we find, for purposes of sentencing, that conviction merged as a matter of law with the convictions for felony murder.
Viewed in the light most favorable to the verdict, the evidence shows appellant‘s accomplice, Tiara Smith, drove her SUV into an intersection against a red light, causing a deadly automobile collision while speeding away from the scene where Smith and appellant had been involved in shoplifting. Smith was the girlfriend of appellant‘s son. Appellant asked Smith to drive her to go shopping for a birthday gift. Three months earlier, appellant had been released from incarceration for shoplifting and other offenses, and Smith knew appellant intended to shoplift merchandise on the day in question. Without permission, appellant took along a friend‘s six-year-old daughter, who was used as a diversion during the shoplifting episode. At Marshall‘s department store, a loss prevention detective observed the women place various items in a shopping cart. Leaving the cart inside, they then went outside to the parking lot where they reached into an SUV and dumped items out of a shopping bag. The women returned to the store with the empty bag, placed items previously collected in their cart into the shopping bag, and left the store without paying for them. The store detective had already alerted police, and she and the store manager followed the women out to the parking lot and confronted appellant about the merchandise. Appellant denied the items were stolen and started shoving the detective. Appellant refused the detective‘s request to go back into the store. Instead, when she saw that Smith and the child had gotten into the SUV, appellant dropped the merchandise and jumped into the SUV, and the women drove away.
A Columbia County Sheriff‘s motorcycle officer heard a dispatch about the shoplifting and was headed in the direction of the store when he observed an SUV speeding in the opposite direction at 70 miles per hour. After turning around to pursue the SUV and turning on the motorcycle‘s blue lights and siren, he heard additional information that the getaway car was a dark-colored SUV with a South Carolina license plate. The SUV he was pursuing matched the description of the getaway car. The SUV did not stop or slow down as it went through two intersections, and then collided with another vehicle after running a stop light. Two occupants in the other car were killed upon impact. A third occupant was five months
Both Smith and appellant were indicted. Smith pleaded guilty and testified against appellant at her trial. Smith testified that she saw the motorcycle officer pursuing her and told appellant to put on her seatbelt because she was going to pull over. She further testified that appellant argued with her and demanded that she not stop, and further demanded that she run the light at the intersection where the collision occurred. When interviewed by authorities after the collision, Smith said appellant repeatedly demanded that Smith drive faster to get away from the pursuing officer because she could not afford to get into more trouble. Appellant testified at trial and admitted shoplifting. She also admitted having gotten out of prison about three months before this incident and admitted knowing that violating her parole and probation by shoplifting would send her back to prison. She denied, however, that she encouraged Smith to avoid being pulled over and claimed she told Smith to slow down.
1. Pursuant to
Appellant testified and admitted shoplifting, and further admitted she had a prior record of shoplifting, that she had only recently been released from prison, and that she knew getting caught the day of these events would be a parole violation that would send her back to prison. The evidence showed appellant avoided detention and questioning by store personnel and that she physically assaulted one of the store employees who confronted her. When appellant saw Smith was about to pull out of the store parking lot, she fled the scene to jump into the car with Smith. When questioned in the hospital after the collision, appellant denied her involvement with the shoplifting. These circumstances serve as ample corroboration of the accomplice‘s testimony that appellant urged her to drive fast and ordered her to
2. Appellant was convicted of two counts of felony murder for causing the deaths of the two victims, as set forth in the indictment, “while in the commission of the felony of Fleeing and Attempting to Elude a Police Officer....” Appellant was also convicted of feticide,
3. Along the same vein, appellant asserts the evidence was insufficient to support a finding that she was engaged in reckless driving because she was not the driver of the vehicle involved in this case. Consequently, she argues her convictions for two counts of serious injury by vehicle based on the allegation of reckless driving, and the conviction for cruelty to a child in the second degree by operating a vehicle in a reckless manner, cannot be sustained.
Reckless driving is defined as “[driving] any vehicle in reckless disregard for the safety of persons or property....”
4. Pursuant to the analysis set forth in the previous divisions of this opinion, we conclude the evidence was sufficient to sustain a conviction for each crime for which appellant was found guilty, in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
5. The trial court did err, however, in imposing a separate sentence of five
6. Appellant also urges that the convictions for cruelty to children in the second degree (by operating a vehicle recklessly with the child unrestrained, thereby causing serious bodily injuries, as alleged in the indictment)³ and serious injury by vehicle (by the act of reckless driving)⁴ with respect to the same victim should merge for the purpose of sentencing. According to appellant, the count alleging serious injury by vehicle is, pursuant to
We reject these assertions. The test for whether convictions for multiple criminal offenses must be merged is “whether each provision requires proof of a fact which the other does not.” (Citation and punctuation omitted.) Drinkard v. Walker, 281 Ga. 211, 215 (636 SE2d 530) (2006). These two counts do not require merger because each offense requires proof of a different wrongful act. Conviction for cruelty to children in the second degree requires the person charged to have caused, with criminal negligence, cruel or excessive physical or mental pain to a child under the age of 18.
Judgment affirmed in part and vacated in part. All the Justices concur.
DECIDED JANUARY 20, 2015.
McMillan & Rawlings, Thomas C. Rawlings, Brandi D. Payne, for appellant.
Ashley Wright, District Attorney, Henry W. Syms, Jr., Madonna M. Little, Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Christian A. Fuller, Assistant Attorney General, for appellee.