*1 157 S09A0119. MOORE THE STATE.
MELTON, Justice.
Following Craig appeals trial, a bench Michael Moore his con- Jeffrey Stephenson, viction for the assault and murder of contending by allowing handgun trial court erred both a ,9mm proof appropriate a custody.1 bullet into evidence without of an chain of below,
For the reasons set forth we affirm. 1. Viewed in verdict, most favorable to the the record approximately July shows 25, 2002, 3:00 a.m. on Moore frequented entered a convenience store he often and walked to the refrigerator kept. refrigerator where the beers were was located register. end farthest of the store from the cash At the refrigerator, placed pants, intending Moore a beer into his to it. steal According Stephenson, duty, Moore, the clerk on then confronted by refrigerator. Stephenson There, him at the far end of the store grabbed him Moore’s shirt and warned not to steal.2 also police. point threatened to call the At that time at the far end of refrigerator, pulled gun the store pointed Moore a on the victim and completing him, it at the crime of
pointing gun. Then, a crossed back across the store to register, presumably phone the cash to use the located there to call police. apparently Stephenson. followed Moore then shot Stephenson three times. The medical examiner determined that Stephenson’s multiple gunshot death was the result of wounds period investigation Furthermore, which occurred a brief of time. money register,
showed that was stolen from the cash and five bullet casings testing proved were recovered from the scene. Forensic pistol possessed the bullets were fired from a Glock which Moore had shortly and sold after the murder.3 search of Moore’s home cartridge matching type revealed an additional intact of ammu- 1 13, 2002, County murder, On December Moore was indicted in Cobb for the malice felony murder, assault, robbery Stephenson. and armed He was also indicted for by receiving regarding pistol improperly George Following a theft Glock taken from Benitt. a 16-19, 2007, January bench trial held on Moore was found of all crimes. sought penalty, imprisonment State death Moore was sentenced to life without parole assault, possibility twenty years twenty for malice consecutive for years robbery, years by receiving. armed consecutive and ten consecutive for theft felony by operation murder conviction was vacated of law. Malcolm v. 263 Ga. 369 21, 2007, February On Moore filed motion for new and this May appeal September motion was denied on 2008. This was docketed in this Court on 2008, and submitted for on the briefs. decision well, The defendant stated that the victim on him as but no evidence supported this contention. improperly pistol The evidence also showed that Moore had taken a second Glock belonging George compartment Benitt from hidden in the latter’s truck. *2 testing weapon, showed and forensic fired from the murder
nition cartridge previously murder been chambered the the had that weapon. pair shoes, addition, of Moore’s tennis recovered testing spatters to determined DNA blood on the shoes were Upon questioning, Stephenson’s his Moore confessed to blood. be crimes. to deter- to enable the trial court
This evidence was sufficient
he was convicted
was
of the crimes for which
mine that Moore
Virginia,
beyond
assault does not into fact. It is fundamental reweigh does not resolve conflicts
this Court testimony, judge credibility when in evaluating of witnesses sufficiency appeal. Instead, of evidence on we review the evidence most favorable to the verdict and determine whether a trier rational of fact could guilty beyond have found the defendant a reasonable doubt.
(Footnotes omitted.) Roop State,
Properly light, viewed this the facts of this case aggra trial court’s decision not to Moore’s convictions for *3 taped expressly vated and confession, murder.4 his Moore attempting states while he was to steal a beer on the far side of refrigerator, Stephenson the store near the walked over to that refrigerator During confront him. Moore’s trial counsel questioned extensively, and, officer who took Moore’s confession both the officer who took the confession and Moore’s interpreted part stating trial counsel of Moore’s confession as that initially pulled gun by Moore in his on the store refrigerators, part shooting register.5 not as behind the cash facts,
Under these assault and the murder do not contrary, as a matter of fact. To the the evidence would finding this case involves an interval between completed crimes, as 241 276 Ga. Stockford 889) (2003). There, we held: involving merger rapid Unlike the cases based on a succes- shots, sion of the evidence this case showed two distinct separated by attempt away. sets of shots the victim’s to run Because State used different evidence to the two [the completed defendant] crimes and showed that firing assault before the three shots that caused [the victim’s] death, we conclude that the trial court had authority separate judgment to enter a of conviction and sentence for the (3). Here,
Id. at 243 based on the the trier of fact had the authority completed to conclude that an assault was on one side of the convenience store before the and murder opposite occurred on the side of the convenience store. Id. See also (b) 762) (1996); Lowe v. Drane v. 27) (1995); Grace v. 4 charged unlawfully Moore was in that he “did make an assault firearm, upon [Stephenson] deadly weapon, by pointing [Stephenson].” with a said firearm at unlawfully aforethought Moore was with murder in that he “did and with malice [Stephenson] by shooting cause the death of him with a firearm.” conflicting. We note that were Moore’s statements often (425 SE2d that Moore’s conviction
The dissent’s erroneous conclusion murder as into his conviction for assault must be re-weighing by improperly of fact can be reached a matter conflicting failing to view favor of the defendant transcript For favorable to the verdict.6 most record and “[M]y reading example, of Moore’s statements dissent states: [he pulled [Moore] . . his once reflects that . officers store].” [in Stephenson] the front of the were at the counter by conflicting reading, made statements which has its basis some wholly ignores portions of Moore’s confession Moore, testimony both agreed by by to Moore’s trial counsel
at trial elicited back indicated that Moore which supports reading of the facts The dissent also its of the store. stating elsewhere “there was no evidence of transcript shows, however, that an investi- store.” The convenience gating pulling described officer testified that the shirt *4 signs struggle. necessarily any Likewise, the of a not leave would pointing gun of the would authorized to find that trier of fact was Finally, struggle physical behind. left evidence of a not have involving only “quick succession of this case as one dissent treats Again, of record which would however, there is evidence shots.” otherwise, and the dissent has no trier of fact to find allow a authority disregard this evidence. argument that, in its alternative The dissent is also incorrect read to show that he even if Moore’s confession can be agreed store, as Moore’s counsel at the back actually used to said, that confession cannot be that the confession aggravated there is assault because show that Moore committed the § corroborating 24-3-53. that confession. See OCGA no evidence ample evidence from assertion, there was to the dissent’s corroborating multiple example, As but one Moore’s confession. sources weapon possessed shown that Moore it was committing alone corroborates the crimes. This evidence used pointed statement that he Moore’s ultimately him. Sands v. store and murdered
convenience (1992) 55) (“Although an uncorroborated Ga. 367 part support, of the dissent cites Gibson v. As its (2007), implying Taylor that these cases cases, however, provide precedent no consideration of direct on this issue. Those contain charge. aggravated charge properly was into a murder whether an assault opinion any merger which sets forth the mention of procedural history such occurs footnote one each any history represent procedural not each This recitation of does case. relating merger holding by and murder in those cases. this Court assault § confession cannot 24-3-53, require- a conviction under OCGA any particular corroboration of a confession satisfies the statute.”). ments of the See also Miller v.
The dissent nonetheless contends that there is no corroboration any of the confession evidence, “the because record establishes a total lack of physical otherwise, that there was a at the far end of the store.” Even if a valid summation of the this fact change place would not the result in this case. within bearing the store where the assault occurred has merger dispositive issue, above, as discussed it is not of the issue of sufficiently whether the confession was corroborated. confession only by any particular, every particular. need be corroborated not corroborating exactly Therefore, evidence of where Moore and the standing victim were at the time of the assault was not necessary for the ultimate corroboration of the confession. Evidence showing present that Moore was at the scene of the weapon sufficiently assault with the used particular any corroborated his confession in properly confession, fact occurred. The therefore, was
considered as substantive evidence. Judgment except concur, Hunstein, All the Justices affirmed. J.,P. who dissents. Presiding dissenting. Justice, HUNSTEIN, fully
IWhile concur with the affirmance of the robbery sentence entered on Moore’s convictions armed *5 by receiving, my and theft review of the record establishes that Moore’s conviction for as a matter of fact Thus, into the murder conviction. I would vacate the respectfully conviction and sentence entered on that and conviction majority’s dissent from the affirmance thereof. unlawfully
Moore was with murder in that he “did and aforethought by shooting [the victim] with malice cause the death of firearm,” him with a and with assault in he “did that unlawfully upon person [the victim] make an assault with a deadly weapon, by pointing [the victim].” firearm, a said firearm at The evidence adduced at trial showed that the victim was shot to death behind the counter at an Exxon gas store station/convenience County. testimony investigating in Cobb As established investigator, very officers and the crime scene there was little any struggle indication of sort of behind the counter and no evidence struggle of a elsewhere in the convenience store. The victim was shot jaw abdomen, neck, three times: in the and in the with the traveling body cavity lodge latter bullet into the in the victim’s According spine, paralyzing examiner, medical the three him. to the “very period a short of time.” occurred within shots to the victim sitting in victim was a chair testified that the The medical examiner probably having backwards a fear or counter, rocked behind the response, flight abdomen; shot in the when he received the first put up left, himself and shifted to his then his hand to defend victim exposing two wounds. the medical his neck for the final in what order the final two wounds examiner could not determine basically “they in the same that were both received, were he testified —very angle probably other.” within seconds each were at stipling gun powder evidence, were fired the shots Based on approximate distance from the victim. within the same he confessed Moore wrote that was admitted a letter sitting I remember “I he wasn’t shot down. can’t missed, then he fell back the chair twice and one of them the man majority’s supposedly times.” I shot two more police position, my reading statements to officers reflects of Moore’s pulled a “tussled”; the victim the victim that he claimed that he and appellee pulled they him; once were leg. As counter, time he shot the victim the counsel at which weapon was a conceded, his claim that the victim had a testimony “fantasy”; victim was not medical established that the leg; above, were fired within and, as noted all of the shots shot reading very period my statement, of Moore’s of time. Under short any nothing “deliberate interval existed in his account indicates that completion of one criminal the assaults that indicated between Ingram separate act.” before the start of a criminal act Ga. majority’s reading if of Moore’s statement is However, even the pointing gun at the victim at the accurate and that Moore admitted by sustaining majority store, the still errs far end of the convenience record conviction. review of the Moore’s any physical otherwise, absence of establishes a total majority can at the far end of the store. that there was a identify no other than Moore’s statement to pointed weapon support his for an at the victim to conviction he *6 shootings aggravated prior behind the assault committed “[a] alone, confession The law is well established that counter. justify by any not a conviction.” uncorroborated other shall majority’s theory § Applying case, of the it OCGA 24-3-53. own necessarily assault conviction would have to reverse the corroborating for lack of evidence. transcript, recognize my I would
Based on
review of the
predicated
in the indictment was
assault
while the victim was seated behind
shots Moore fired at the victim
recently
the counter at the convenience store. As we
held in Bell v.
815) (2009):
State,
790,
284 Ga.
791-792
SE2d
(a) (1)
§
prohibits
being
OCGA 16-1-7
a defendant of
con-
victed of more than one crime when the same conduct of the
accused establishes the commission of more than one crime
one crime is included
the other. The
assault
conviction is included
the malice murder convic-
(1)
§
tion under OCGA 16-1-6
since the same conduct of the
aggra-
defendant
..
. establishes the commission of both
vated assault and malice
assault is
by proof
“established
of the same or less than all the facts
required
proof
[murder]
that were
to establish
(636
Walker,
offense.” Drinkard v.
281 Ga.
SE2d
(659
372) (2008)
e.g.,
See,
State,
Gibson v.
(1992), disapproved in which we case law that each of a series of quick attacks in assault”; succession constituted a “renewed Brown 545) (2000) App. thorough v. 246 Ga. for a addressing firing multiple gun discussion of cases whether the may separate charges. Although shots serve as the basis for these these pre-date supra, holdings Drinkard, cases factually analysis cases are still sound as reflected our in Bell v. Taylor supra. as well as Gibson v. State (a) (1) § Accordingly, prohibits because OCGA 16-1-7 a defen- being
dant from convicted of more than one crime where one crime another, I is included would vacate the of conviction and imposed the sentence on Moore for *7 9, 2009. March
Decided Mary appellant. Erickson, for Pray, Attorney, Head, Dana J. Amelia G. H. District
Patrick Attorney Attorneys, Baker, Norman, Thurbert E. Assistant District appellee. Attorney Sahni, General, General, Sara K. Assistant v. THE STATE. S09A0275. WILKINS SEARS, Chief Justice. appeals appellant, Wilkins, Jr., from his convictions
The Edward shootings stemming of from the Charles for three counts of murder aggra- Pringle, Wiggins, of and Jan one count Bolden, Jonandrea Grayman, Tracy stemming from vated assault during possession of a firearm the commission four counts of the felony.1 appeal, erred in contends that the trial court a admitting On Wilkins gave and that a statement he
into evidence These conten- insufficient to his convictions. the evidence is tions, merit, however, without and we affirm. are span, The evidence shows over a fourteen-month 1. prostitutes, working were each shot victims, who were as four neighborhood general Savannah, in the same numerous times Georgia. Pringle injuries, Wiggins, died from their but Bolden,2 Grayman that the dozens of survived. Forensic evidence established casings from the crime scenes and the and bullets recovered shell Ruger handgun 9mm owned victims’ bodies were fired from a Moreover, discovered at two of the crime Wilkins. two condoms Grayman matching Wilkins’s DNA. scenes contained DNA evidence 1999, 15, 2000, 26, 2000, 15, July on October November The crimes occurred 24, 2003, 25, September indicted on three counts of malice December 2000. On Wilkins was 3, 2007, January superseding indictment and one assault. On murder charged count murder, felony possession plus four counts of the the same four crimes three counts of during felony, On the commission of a and one more count of of a firearm 2007, jury four February on three counts of malice found Wilkins (both jury counts, against Grayman). possession The and on the two assault counts 5, 2007, February felony counts. On the trial court did not return a verdict on the murder convictions, Wilkins to consecutive life sentences for the malice sentenced convictions, twenty years five-year possession and to concurrent consecutive sentences the other for one assault conviction. The court 5, 2007, February Wilkins filed a motion for new November conviction. On 2007, 7, 2007, appeal, Wilkins filed a notice of the trial court denied that motion. On December 31, 2008, subsequently appeal was docketed in this Court. case was and on October parties’ submitted for decision on the briefs. wearing women’s clothes at the time of his death. Bolden was