Fortson v. State ( 2022 )

In the Supreme Court of Georgia
Decided: February 15, 2022
S21A1038. FORTSON v. THE STATE.
ELLINGTON, Justice.
A Fulton County jury found Demetruis Fortson guilty of felony
murder predicated on armed robbery, hijacking a motor vehicle, and
possession of a firearm during the commission of a felony, among
other offenses, related to the shooting death of Nicholas Hagood. 1 On
1 Hagood was shot to death on March 26, 2014. Fortson and his co-
defendants, Tavius Bates, Octavious Jordan, Jeremy Southern, and Stephen
Willis, were indicted by a Fulton County grand jury on July 18, 2014, for malice
murder, felony murder predicated on armed robbery, felony murder predicated
on hijacking a motor vehicle, felony murder predicated on aggravated assault,
armed robbery, hijacking a motor vehicle, aggravated assault, and possession
of a firearm during the commission of a felony. Willis was also indicted for
possession of a firearm by a convicted felon and for felony murder predicated
on that possession charge. Fortson and his co-defendants were jointly tried in
August and September 2017. The jury found Fortson not guilty of malice
murder and guilty of the remaining counts with which he was charged. The
jury found Southern guilty of all charges and Bates, Jordan, and Willis not
guilty of malice murder and guilty of the remaining counts with which they
were charged. Fortson was sentenced to life imprisonment for felony murder
predicated on armed robbery, 20 years in prison for hijacking a motor vehicle
to be served concurrently with the sentence for felony murder, and a
consecutive five year suspended sentence for possession of a firearm during the
appeal, Fortson contends that the evidence presented at his trial
was insufficient to support his convictions, and that the trial court
erred in denying his motions for a new trial in its capacity as the
“thirteenth juror” and for a directed verdict. For the reasons that
follow, we affirm.
Viewed in a light most favorable to the jury’s verdicts, the
evidence presented at trial showed the following. On March 26,
2014, two men carrying handguns robbed Rayshon Smith at an
apartment complex in Cobb County and took his wallet, his cell
phone, and his mother’s keys. Approximately 40 minutes later,
Hagood was shot to death at a nearby apartment complex in Fulton
County. The perpetrators took Hagood’s car and cell phone. Police
found items taken from Smith at the earlier robbery, his wallet and
commission of a felony. The counts of felony murder predicated on hijacking a
motor vehicle and aggravated assault were vacated as a matter of law, and the
armed robbery and aggravated assault counts merged into the felony murder
conviction. Fortson filed a timely motion for new trial on September 25, 2017,
which he amended on September 7, November 23, and December 15, 2020.
Following a hearing, the trial court denied the motion for new trial, as
amended, on January 13, 2021. Fortson filed a timely notice of appeal, and the
case was docketed to the August 2021 term of this Court and submitted for a
decision on the briefs.
2
his mother’s keys, near Hagood’s body.
At the joint trial of Fortson, Tavius Bates, Octavious Jordan,
Jeremy Southern, and Stephen Willis, the State sought to establish
Fortson’s participation in the crimes against Hagood by
circumstantial evidence. This included evidence of movement on the
day of the shooting of cell phones associated with Fortson’s co-
defendants to the area of Fortson’s home, then to the area of the
armed robbery and shooting, back to the area of Fortson’s home, and
then to the area where Hagood’s stolen phone was located; testimony
showing that a participant in the crimes against Smith and Hagood
wore a dreadlock or “twists” hairstyle, and testimony and
photographic evidence showing that Fortson had a dreadlock or
twists hairstyle while Fortson’s co-defendants all had close-cut hair;
Fortson’s access to his mother’s phone; the movement of that phone
from the area of Fortson’s home to the area where Hagood’s phone
was located several hours after the shooting; and calls made after
the crimes by the phone stolen from Smith to persons closely
associated with Fortson.
3
More specifically, the evidence showed that on the morning of
March 26, Alexis Brewer picked up Fortson at his home in Decatur
and they drove to their child’s doctor’s appointment. Afterwards, she
dropped Fortson off at his home between 11:30 a.m. and noon.
Also on March 26, Smith and his mother drove to an apartment
in Austell to visit cousins. Smith went outside, where he phoned his
grandmother at 12:34 p.m. While he was on the phone, Smith
noticed a car carrying three or four occupants as it slowly drove by.
Shortly thereafter, two men walked up to him. Both of the men
pointed guns at Smith. One of the men went through Smith’s
pockets, taking his wallet, his cell phone, and his mother’s car keys.
According to Smith, the other man, who was skinny with his hair
styled in “low dreads or twists,” asked him for the code to unlock his
phone.
After the robbery, Smith went inside and informed his mother,
who called 911 at 12:39 p.m. In a later interview, Smith identified
Southern from a photographic lineup as the man who went through
his pockets.
4
At 1:16 p.m. on March 26, Joseph James called 911 to report
that a man was being robbed at an apartment complex on Martin
Luther King drive in Fulton County. During that call, James said
that he had seen two cars, with one person in one car and four people
in the other car. 2 The apartments were located approximately two
miles from the Austell area in Cobb County, where Smith was
robbed. Officers responding to the scene found Hagood lying dead on
the sidewalk. Police recovered a wallet, a set of keys, and a spent
.380 shell casing at the scene. The wallet and keys were the ones
stolen from Smith during the earlier armed robbery. The medical
examiner determined that Hagood was killed by a gunshot wound to
the torso.
James testified at trial that on the afternoon of March 26, he
looked out his apartment window and saw that two cars had pulled
up. James saw a white male, later determined to be Hagood, whom
he described as seeming to be “out of place and slightly disoriented,”
2At trial, James testified that there were two people in the first car and
four people in the second car.
5
and a man with a “dreads” hairstyle standing next to the first car.
One person remained in the first car. The second car, which was
parked closely behind the first car, appeared to James to be “full to
capacity,” although he only got a good look at the person in the front
passenger’s seat.
The man with the dreadlocks appeared to want something from
Hagood, who checked his pockets and said, “I don’t have it.” James
testified that the man with the dreadlocks began to “check” Hagood
as if to determine whether he did have something, while a man
holding a firearm exited the second car. When James saw the man
with the gun, he told the other people in his apartment to get down,
and he then heard a gunshot. After the gunshot, James looked out
the window and saw the two cars driving off in the same direction.
He then called 911. 3
Robin Bailey, another resident of the apartment complex,
3James later identified Bates in a photographic lineup as the man who
went through Hagood’s pockets. James acknowledged at trial that he had been
“troubled” at the time of his identification because that “guy had dreads,” while
the photograph of Bates did not show Bates wearing dreadlocks. James
affirmed during his testimony that Bates’s face “[stuck] out” to him when he
made the identification.
6
testified at trial that she looked out her window on March 26 and
saw what she described as a “commotion” and a car “rolling slow.”
She also saw a second car. A person wearing a hood ran up to the
first car, jumped inside, then stuck his hand out the window, which
was followed by a “pow” sound. Bailey took cover, and the police had
arrived by the time she looked outside again.
An Atlanta police detective investigated the shooting of
Hagood. The detective testified at trial and offered his opinions as
an expert in cell phone technology and forensics data recovery and
analysis. In reviewing the records associated with Hagood’s phone,
the detective saw that a text message was sent to that phone at 1:29
p.m. on March 26, which was after James had called 911. But the
message was not received by the phone until 3:10 p.m. Based on the
cell tower the phone “pinged” off, the detective determined that at
the time Hagood’s phone received the text message, it was located
at the Whispering Pines Apartments complex in Decatur. Co-
defendant Jordan’s aunt lived in those apartments, and Jordan and
Bates were staying at a hotel less than a mile away.
7
After Smith’s phone was stolen, it showed activity beginning at
approximately 9:00 p.m. on March 26 and for several days
thereafter. Smith’s phone was used to call phones associated with
Southern, Willis, Jordan’s girlfriend Kiara Shy, as well as Fortson’s
mother, Fortson’s cousin Maurice, and Brewer, among others. Most
of the calls placed and received by Smith’s phone after the robbery
utilized cell towers in the area of Candler Road and Interstate 20.
Similarly, two hours after Hagood was killed, his cell phone was
located within what the detective described as the “Candler Road/I-
20 corridor.” The detective canvassed apartment complexes in that
area until he found Hagood’s car about a quarter mile from the hotel
where Jordan and Bates were staying.
After determining that Smith’s stolen phone had been in
contact with Fortson’s mother’s phone and Southern’s phone, the
detective interviewed Fortson’s mother. He asked her for the names
of her children, and she named three but failed to mention Fortson.
She initially denied knowing Southern, but eventually
acknowledged that she had known him for a long time. The
8
detective later drove west from Fortson’s home to the area of Smith’s
robbery and found that the trip took approximately 20 minutes.
At trial, Fortson’s mother testified that Fortson did not have a
phone and used her phone sometimes, and that people got in touch
with Fortson by calling her phone. Fortson’s mother said that she
received a call from Southern around noon on the day of the robbery
and shooting, when she was eating breakfast at a neighbor’s house.
Southern was looking for Fortson, and she told Southern that
Fortson had taken his baby to the doctor. According to Fortson’s
mother, when Fortson got home she told him that Southern had
called. She also testified that she received a call around 4:00 p.m.
from a person she did not know who was looking for Fortson and
that she told the caller that Fortson had left with his cousin. 4
In addition to the records of the victims’ phones, the detective
4 The evidence showed that Fortson’s mother was using her phone
between 12:05 p.m. and 3:19 p.m. The State identified people who were in
contact with Fortson’s mother’s phone during that time period, and those
individuals were called as witnesses at trial and testified that they had spoken
with Fortson’s mother. Fortson’s mother was not asked during her testimony
if she traveled during the day of the robbery and shooting, or whether Fortson
or another person used her phone that day.
9
reviewed the cell phone records of Bates, Jordan, Southern, Willis,
and Fortson’s mother. The detective testified that on March 26,
Jordan’s and Southern’s cell phones communicated with Willis’s cell
phone around 10:45 and 11:00 a.m., at which time all three phones
were in the Stone Mountain area. When Southern called Fortson’s
mother’s cell phone at 12:05 p.m., Southern’s phone utilized a tower
approximately 1.6 miles south of Fortson’s home on Bouldercrest
Road.5 According to the detective, the data showed that Southern’s
phone was moving in the direction of Fortson’s home during the
course of the call. 6 Willis’s, Southern’s, and Jordan’s phones later
utilized cell towers near the area and around the times of Smith’s
robbery and Hagood’s shooting. Approximately 30 minutes after the
5 According to the detective, Southern lived about five or six miles east
of Bouldercrest Road.
6 Southern’s phone’s exact location at the time of the call was not
specified, and there was no testimony as to how long it would have taken for
Southern to reach Fortson’s home after the call, only that it was an
approximately 20 minute drive from Fortson’s home to the scene of Smith’s
robbery. As the crimes against Smith occurred at 12:34 p.m., 29 minutes after
the 12:05 p.m. call, Southern would have had an approximately nine-minute
window to pick up Fortson after that call in order for Fortson to have driven
with others to Smith’s robbery.
10
shooting, Bates’s, Jordan’s, and Willis’s phones utilized cell towers
near Fortson’s home. 7 From around noon to 1:45 p.m., after Hagood
was shot, none of Fortson’s co-defendants phones called each other,
which contrasted to other times during the day.
At 2:09 p.m., Bates’s phone called Jordan’s phone while in
the vicinity of the apartment complex where Hagood’s phone
received the text message at 3:10 p.m. that day. At 2:11 p.m.,
Southern’s phone used cell towers in that area, as did Jordan’s
phone at 2:39 p.m., and Willis’s phone at 2:55 p.m. At 3:53 p.m., a
call by Fortson’s mother’s phone utilized the same cell tower used by
Hagood’s phone approximately 40 minutes earlier. 8 The detective
determined that the call was made to a landline belonging to
Fortson’s grandmother.
7 As noted above, Bates and Jordan were then staying at a hotel in the I-
20/Candler Road area. Phone calls made in that area utilized cell towers
different than those utilized by calls made in the Bouldercrest Road area. The
evidence did not show where Willis was living on the day of the robbery and
shooting, but Willis’s phone records did not show any previous activity by his
phone within the Bouldercrest Road area.
8 On cross-examination, the detective acknowledged that Fortson’s
mother’s phone could have been up to two miles away from the tower when it
made the 3:53 p.m. phone call.
11
Shy, who was Bates’s cousin as well as Jordan’s girlfriend,
testified that she also knew Fortson and Southern, and that she had
been in the same room with Bates, Fortson, Jordan, and Southern
as they talked and played cards. 9 Shy also testified that Bates’s hair
was “cut low,” and that he had not to her knowledge ever worn a
twist or dreadlocks hair style. However, she identified two pictures
of Fortson and said that he was depicted as wearing a twist hairstyle
in one photograph and a dreadlocks hairstyle in the other. 10
The State also entered into evidence photographs of the five co-
defendants which showed their physical appearance at the time the
detective encountered them in 2014. Fortson, who the detective
encountered in June, is the only defendant depicted with what could
be called a dreadlocks hairstyle.
1. Fortson contends that the evidence was insufficient for a
rational trier of fact to find him guilty of felony murder predicated
9 Shy was not asked to specify when she had been in the same room as
Bates, Fortson, Jordan, and Southern.
10 The State did not establish when the photographs were taken.
12
on armed robbery, carjacking, and possession of a firearm during the
commission of a felony. 11 When evaluating the sufficiency of
evidence, the proper standard of review is whether a rational trier
of fact could have found the defendant guilty beyond a reasonable
doubt. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt
2781, 61 LE2d 560) (1979). This Court views the evidence in the
“light most favorable to the verdict, with deference to the jury’s
assessment of the weight and credibility of the evidence.” Hayes v.
State, 292 Ga. 506, 506 (739 SE2d 313) (2013) (citation and
punctuation omitted.).
Further, as a matter of Georgia statutory law, “[t]o warrant a
conviction on circumstantial evidence, the proved facts shall not only
be consistent with the hypothesis of guilt, but shall exclude every
11 Fortson also contends that the evidence was insufficient to support his
convictions for the felony murder counts predicated on aggravated assault and
hijacking a motor vehicle, which were vacated by operation of law, and the
armed robbery and aggravated assault counts, which merged into the count of
felony murder predicated on armed robbery. Any challenge as to the sufficiency
of the evidence as to these counts is moot. See Collett v. State, 305 Ga. 853, 855
n.2 (828 SE2d 632) (2019) (holding that the appellant’s challenges to the
sufficiency of the evidence to sustain guilty verdicts on counts that were
merged or vacated by operation of law were moot).
13
other reasonable hypothesis save that of the guilt of the accused.”
OCGA § 24-14-6. However, “not every hypothesis is a reasonable
one, and the evidence need not exclude every conceivable inference
or hypothesis — only those that are reasonable.” Graves v. State, 306
Ga. 485, 487 (1) (831 SE2d 747) (2019) (citation and punctuation
omitted; emphasis in original). “Whether alternative hypotheses are
reasonable . . . is principally a question for the jury, and this Court
will not disturb the jury’s finding unless it is insupportable as a
matter of law.” Robinson v. State, 309 Ga. 729, 731 (1) (a) (848 SE2d
441) (2020) (citation omitted).
Fortson argues that the crimes were committed by four people,
not five, because James identified five men at the scene in his 911
call, one of whom was the victim. Fortson also contends that the
State relied on evidence of calls to or from his mother’s cell phone,
which did not connect him to the crimes, and that the wholly
circumstantial evidence was insufficient to establish he was a party
to the crimes. The State failed, Fortson asserts, to carry its burden
of disproving any reasonable hypothesis other than his guilt.
14
James testified at trial that there were “four guys in the one
car and it was two people in the other car,” and when confronted
with the difference between that statement and his 911 call,
responded, “I can’t remember.” It was for the jury to resolve any
conflicts in the evidence. See Bonner v. State, 311 Ga. 466, 468 (2)
(858 SE2d 496) (2021). They were not bound to conclude that only
four people were involved in the crimes against Hagood.
Notwithstanding Fortson’s argument regarding the calls made
by Fortson’s mother’s phone, the circumstantial evidence connecting
Fortson to the crimes is not limited to these calls, as discussed below.
The calls are also relevant to whether Fortson participated in the
crimes. The first two calls show that Southern was attempting to
contact Fortson, and the detective testified that Southern’s phone
was in the vicinity of and moving towards Fortson’s home when the
second call was made at 12:05 p.m. Brewer’s testimony places
Fortson at his home before the second call. The 3:53 p.m. call shows
that Fortson’s mother’s phone was near the location of Hagood’s
phone when Hagood’s phone received a text at 3:10 p.m. This
15
location was in what the detective described as the Candler Road
and I-20 area, and not the Bouldercrest Road area near Fortson’s
home where Fortson’s mother’s phone had been located earlier in the
day. And in her testimony, Fortson’s mother acknowledged that
Fortson sometimes used her phone.
Turning to evidence in addition to the calls involving Fortson’s
mother’s phone, testimony showed that Fortson was friends with
Bates, Jordan, and Southern. The phone records of Fortson’s co-
defendants, as more particularly discussed above, show movement
from Stone Mountain in the morning, to near Fortson’s home around
noon, to the scenes of Smith’s robbery and Hagood’s shooting in the
early afternoon, back to the area of Fortson’s home, and then to the
area where Hagood’s stolen phone was located at 3:10 p.m. A trier
of fact could reasonably conclude that the evidence concerning
Fortson’s co-defendant’s phones was consistent with Fortson’s
involvement in the crimes.
A trier of fact could also conclude that the men who robbed
Smith participated in the crimes against Hagood about 40 minutes
16
later, given the testimony that Smith’s wallet and his mother’s keys
were taken from him and then found by police at the location of the
shooting. A man wearing a dreadlocks hairstyle participated in both
crimes. James identified Bates in a photographic lineup as the man
with “dreads” who went through Hagood’s pockets. However, James
admitted at trial that he was “troubled” when he identified Bates
because the photograph of Bates did not show him wearing a
dreadlocks hairstyle. According to Bates’s cousin, Shy, she had
never known Bates to wear a dreadlocks hairstyle. Of the
photographs of the five defendants authenticated by the detective,
only Fortson is shown with a full head of hair wearing what could
be described as a dreadlocks hairstyle, while the other defendants
were shown with close-cut hair. There was no testimony that any of
the defendants with close-cut hair had previously worn dreadlocks.
Based on all of the above, the jury was authorized to conclude that
Fortson, and not Bates, was the person who James saw going
through Hagood’s pockets.
After Smith’s phone was stolen, it was used to call the phones
17
of Fortson’s mother, Fortson’s cousin, and Brewer, among others.
Fortson argued to the jury that calls made by that phone to people
connected to Fortson could be reasonably explained as attempts by
Jordan to connect with Fortson. However, according to Brewer’s
testimony, the only one of Fortson’s co-defendants she knew was
Southern. 12 A trier of fact could conclude that at least the call to
Brewer was made by Fortson while in possession of the phone stolen
from Smith.
We acknowledge that this is a close case based on
circumstantial evidence, and that the testimony of some witnesses,
if believed by the jury, was exculpatory. For example, Fortson’s
mother maintained that she was not at home, but was at a
neighbor’s house when she received the 12:05 p.m. call from
Southern, and that she told Fortson about that call some unspecified
time later. But in order for Fortson to have joined Southern and
driven with him to Austell, where Smith was robbed, Fortson had to
12 Although Southern knew Brewer, Southern had his own phone, and
Smith’s stolen phone was used to call Southern’s phone, among others. A trier
of fact could conclude that it was unlikely that Southern used Smith’s stolen
phone to call Brewer.
18
have left his home within a few minutes of the 12:05 p.m. call.
Fortson’s mother also testified that she received a call around 4:00
p.m. that afternoon from someone looking for Fortson, but she told
them that Fortson had left with his cousin. If that were the case,
Fortson would not have been in possession of his mother’s phone
when it made the 3:53 p.m. phone call that “pinged” off the cell tower
used by the phone stolen from Hagood. And James identified Bates,
not Fortson, in a photographic lineup as the man who went through
Hagood’s pockets. However, it was for the jury to assess, among
other issues, whether Fortson’s mother’s testimony was untruthful
and whether James had recognized Bates’s face but mistakenly
identified him as the man with the dreadlocks who went through
Hagood’s pockets. See, e.g., Davis v. State, 306 Ga. 594, 597 (1) (832
SE2d 341) (2019). The evidence authorized the jury to conclude that
the proved facts were consistent with Fortson’s guilt and excluded
every reasonable hypothesis other than Fortson’s guilt. See OCGA §
24-14-6. See also Carter v. State, 305 Ga. 863, 867-868 (2) (828 SE2d
317) (2019) (circumstantial evidence implicating the appellant
19
included location of the victim’s phone after the victim’s death);
Eckman v. State, 274 Ga. 63, 64-66 (1) (548 SE2d 310) (2001)
(circumstantial evidence supporting murder conviction included
appellant’s use of the “the fruits of the multi-county crime spree”).
The State did not establish that Fortson personally shot
Hagood, took Hagood’s cellphone through the use of a handgun, or
took Hagood’s car by force and intimidation while in possession of a
handgun. However, “[e]very person concerned in the commission of
a crime is a party thereto and may be . . . convicted of commission
of the crime.” OCGA § 16-2-20 (a). A person is a party to a crime if
that person “[d]irectly commits the crime; . . . [i]ntentionally aids or
abets in the commission of the crime; or . . . [i]ntentionally advises,
encourages, hires, counsels, or procures another to commit the
crime.” OCGA § 16-2-20 (b). “While mere presence at the scene of a
crime is not sufficient evidence to convict one of being a party to a
crime, criminal intent may be inferred from presence,
companionship, and conduct before, during and after the offense.”
Parks v. State, 304 Ga. 313, 315-316 (1) (a) (818 SE2d 502) (2018)
20
(citation and punctuation omitted). The jury could reasonably
conclude that Fortson was present at the scene and went through
Hagood’s pockets, participated in the armed robbery of Smith
shortly before, and traveled to and from the scene with his co-
defendants, and so shared in the criminal intent. See Eckman, 274
Ga. at 65-66 (1) (evidence showing that the appellant shared in the
criminal intent included that she was willingly present at the scene
when the victims were killed and had been involved in her
companions’ commission of crimes in the previous 24 hours). A
rational trier of fact could have found beyond a reasonable doubt
that Fortson was a party to the crimes of which he was convicted.
See Jackson, 443 U.S. at 307 (III).
2. Fortson contends that the trial court erred when it failed to
grant his motion for new trial while sitting as the “thirteenth juror.”
OCGA §§ 5-5-20 and 5-5-21, respectively, allow the trial court to
grant a new trial “[i]n any case when the verdict of the jury is found
contrary to evidence and the principles of justice and equity,” or
when “the verdict may be decidedly and strongly against the weight
21
of the evidence even though there may appear to be some slight
evidence in favor of the finding.” The two statutes give “the trial
court broad discretion to sit as a thirteenth juror and weigh the
evidence on a motion for new trial alleging these general grounds.”
Holmes v. State, 306 Ga. 524, 527-528 (2) (832 SE2d 392) (2019)
(citation and punctuation omitted).
In its order on Fortson’s motion for new trial, the trial court
stated that, having reviewed “the entire record,” it “weighed the
evidence and made determinations of credibility of witnesses as is
its obligation under Georgia law in acting as the ‘thirteenth juror.’”
The trial court then found that “the jury’s verdict is not contrary to
the evidence or decidedly and strongly against the weight of the
evidence, nor do the principles of justice and equity demand a new
trial,” and so denied the motion for new trial on the general grounds.
The trial court having exercised its discretion as the “thirteenth
juror,” 13 and this Court having concluded that the evidence was
13 “[W]here, as in this case, the judge who hears the motion for a new
trial is not the same judge as the one who presided over the original trial, the
22
sufficient to support the verdicts under the constitutional standard,
we discern no abuse of discretion in the trial court’s denial of the
motion for new trial. See Smith v. State, 300 Ga. 532, 534 (1) (796
SE2d 671) (2017).
3. Lastly, Fortson contends that the trial court committed
reversible error when it denied his request for a directed verdict
of acquittal. “The standard of review for the denial of a motion for a
directed verdict of acquittal is the same as for determining the
sufficiency of the evidence to support a conviction.” Hester v. State,
282 Ga. 239, 240 (2) (647 SE2d 60) (2007) (citation omitted). We
concluded in Division 1, above, that the evidence was sufficient to
support Fortson’s convictions. The trial court did not err in denying
Fortson’s motion for a directed verdict.
Judgment affirmed. All the Justices concur except Colvin, J.,
who dissents and Peterson, J., not participating.
discretion of the successor judge is narrower in scope.” State v. Harris, 292 Ga.
92, 95 (734 SE2d 357) (2012) (citation omitted). Nevertheless, “after a thorough
review of the case, even a successor judge may exercise a significant discretion
to grant a new trial on the general grounds.” White v. State, 293 Ga. 523, 525
n.4 (2) (753 SE2d 115) (2013) (citation omitted).
23
COLVIN, Justice, dissenting.
In affirming Fortson’s convictions based upon circumstantial
evidence, the majority opinion relies upon the deference we give to
the jury’s assessment of the evidence. See Worthen v. State, 304
Ga. 862, 867 (823 SE2d 291) (2019) (“Jurors are normally entitled
to make reasonable inferences from circumstantial evidence
regarding all sorts of facts, including the facts necessary to find
defendants guilty beyond a reasonable doubt of capital crimes.”).
However, even giving the jury’s credibility determinations proper
deference, the State is still required to prove that Fortson was a
party to the crimes beyond a reasonable doubt. Because the
circumstantial evidence in this case connecting Fortson to the
crimes is insufficient to satisfy the beyond-a-reasonable-doubt
standard and does not exclude every reasonable hypothesis save
that of Fortson’s guilt, I cannot agree with the majority’s
conclusion. Accordingly, I respectfully dissent.
The crux of this case is whether the limited circumstantial
evidence presented by the State was sufficient to sustain Fortson’s
24
convictions for being a party to the crimes. See OCGA § 16-2-20
(defining party to a crime). To show that a person was a party to a
crime, “[p]roof that the defendant shares a common criminal intent
with the actual perpetrators is necessary.” Slaton v. State, 296 Ga.
122, 124 (765 SE2d 332) (2014) (citation and punctuation omitted).
Although “shared criminal intent may be inferred from the
defendant’s conduct before, during, and after the crime,” id., mere
presence “is not sufficient to show that a defendant is a party to the
crime under OCGA § 16-2-20. . . . Even approval of the act, not
amounting to encouragement, will not suffice,” Bullard v. State, 263
Ga. 682, 685 (436 SE2d 647) (1993). See also Parks v. State, 304 Ga.
313, 315-316 (1) (a) (818 SE2d 502) (2018) (“While mere presence at
the scene of a crime is not sufficient evidence to convict one of being
a party to a crime, criminal intent may be inferred from presence,
companionship, and conduct before, during, and after the offense.”
(citation and punctuation omitted)).
Here, the circumstantial evidence that would allow a jury to
infer that Fortson shared a common criminal intent with the known
25
perpetrators is insufficient and there is no direct evidence that
Fortson was at either crime scene or that he possessed any of the
stolen items. Unlike his co-defendants, no one identified Fortson as
being at either crime scene, none of the cell-phone evidence directly
places him at or near either crime scene, and Fortson made no
statements implicating himself in the crimes. In other words, the
record, which shows no more than Fortson’s friendship with his co-
defendants, lacks sufficient evidence connecting Fortson to the
crimes from which the jury could reasonably infer a common
criminal intent. See Mattox v. State, 196 Ga. App. 64, 65 (395 SE2d
288) (1990) (“[M]ere presence, association or suspicion, without any
evidence to show further participation in the commission of the
crime, is insufficient to authorize a conviction.” (citation and
punctuation omitted)). Furthermore, due to the weak
circumstantial evidence in this case, the State failed to exclude
Fortson’s reasonable, alternative hypothesis that he did not
participate in the crimes charged and that, instead, the men who
committed the crimes were attempting to contact him before and
26
after the crime spree. See OCGA § 24-14-6 (“To warrant a conviction
on circumstantial evidence, the proved facts shall not only be
consistent with the hypothesis of guilt, but shall exclude every other
reasonable hypothesis save that of the guilt of the accused.”
(emphasis supplied)).
Contrary to the majority’s conclusion, the cell-phone evidence
does not provide sufficient circumstantial evidence that Fortson was
a party to any of the crimes charged. In my mind, the strongest
circumstantial evidence introduced at trial was the cell-phone
records from Smith’s stolen phone. The State heavily relied upon
these records in its attempt to establish Fortson’s alleged motive for
participating in the crimes – namely, that he was broke and needed
money and a cell phone. The cell phone evidence, however, does not
support the State’s theory. The record shows that the first calls
placed on Smith’s stolen phone were to Kiara Shy’s phone – Jordan’s
girlfriend and Bates’s cousin. 14 Prior to March 26, Shy’s and
14A review of Fortson’s phone records shows no contact between Fortson
and Shy at any time.
27
Jordan’s phones were in constant contact, calling and texting
numerous times a day. However, after Smith’s phone was stolen,
the contact between Jordan’s and Shy’s phones diminished
significantly, and, instead, Shy’s phone began calling Smith’s stolen
phone numerous times a day. More importantly, Jordan’s phone
shows no activity whatsoever from 5:00 p.m. on March 27 through
10:24 a.m. on March 29. 15 Notably, the first phone call from Smith’s
stolen phone to Ms. Fortson was not placed until 6:42 p.m. on March
27, more than 24 hours after Smith’s phone was stolen and over an
hour and a half after Jordan stopped using his phone completely.
The evidence also shows that Jordan’s friend, Dionte Wooten,
had the phone number for Smith’s stolen phone saved in his contacts
as “Tay Tay,” which is Jordan’s nickname. This corroborates the
portion of Jordan’s custodial statement wherein he admitted to
having Smith’s phone. Finally, the record shows that all of the
phone calls to and from Smith’s stolen phone pinged off towers in
15 A review of all of the cell phone records shows that Jordan was the
only co-defendant to stop using his phone at any point after the crimes.
28
the area of Candler Road and I-20 where Jordan and Bates were
staying. Based on the evidence, I disagree that a jury could
reasonably infer beyond a reasonable doubt that, because Fortson
was using Smith’s stolen phone after the crimes were committed,
Fortson was a party to Hagood’s murder. See Maj. Op. at 18, 20.
Accordingly, I must also disagree that the State put forth sufficient
evidence to exclude Fortson’s reasonable alternate hypothesis that
Jordan was using Smith’s stolen cell phone after the crimes to
contact people he knew, including Fortson. 16
Regarding the evidence that Smith’s stolen phone called
Brewer, the phone records show that Brewer was contacted once
from Smith’s stolen phone, and that phone call took place on March
28 at 1:14 a.m., 36 hours after Smith’s phone was stolen. The call
also pinged a tower in the I-20/Candler Road corridor, which was not
in the area where Fortson lived with his mother. Meanwhile, the
16The record also shows that Southern’s phone was in contact with the
stolen phone for the same two days that Jordan’s phone sat idle, but that
Fortson’s mother’s phone continued to call and text Southern’s phone.
Consequently, I also disagree that the jury could have reasonably inferred that
Fortson was using the stolen phone to call Southern.
29
phone Fortson shared with his mother continued to call and text
Brewer numerous times after the crimes were committed.
Consequently, I cannot say it was reasonable for the jury to infer
that Fortson used the phone to call Brewer. However, even
assuming that the jury could reasonably infer Fortson called Brewer
(and his cousin) from the stolen phone, as the majority contends,
these calls do not establish beyond a reasonable doubt that Fortson
shared a common criminal intent with his co-defendants. Instead,
these phone calls, at best, show mere knowledge of the crimes after
the fact, and not that Fortson participated in or encouraged an
armed robbery and murder.
I am not swayed that any of the remaining evidence could prove
beyond a reasonable doubt that Fortson was a party to Hagood’s
murder or that the State excluded Fortson’s reasonable alternative
hypothesis that he was not a participant in the crimes. The majority
relies on the potential location of Southern’s cell phone at the time
of the 12:05 call and the State’s 29-minute timeline as sufficient to
establish Fortson’s involvement. However, Smith’s own testimony,
30
coupled with the cell phone records, does not sufficiently establish
that Southern picked up Fortson and drove him to the locations of
Smith’s armed robbery and to Hagood’s murder.
Smith testified that there were three to four men involved in
his armed robbery. The State corroborated this testimony with
other evidence. Southern, Jordan, and Willis were placed at Smith’s
armed robbery by their phone records; Smith positively identified
Southern as one of his assailants; Jordan and Bates admitted to
being at both Smith’s armed robbery and Hagood’s murder; and, the
jury heard evidence that Bates pled guilty to Smith’s armed robbery
in Cobb County and that Fortson was never charged. The State
presented no evidence whatsoever that more than four men
participated in Smith’s armed robbery or that a second car was
involved. Moreover, while the evidence shows that a second car was
present at the scene of Hagood’s murder, that car belonged to, and
was driven by, Hagood.
The State’s entire timeline concerning Fortson’s alleged
involvement in Hagood’s murder revolved around Southern picking
31
up Fortson after the 12:05 phone call and then driving to Austell
where the group robbed Smith. However, because the evidence
shows that four men were at Smith’s armed robbery, it is
unreasonable for the jury to have inferred that Southern picked up
Fortson, a fifth person, after the 12:05 phone call17 and that Fortson
was present at Smith’s armed robbery and Hagood’s murder,
dreadlocks or not. 18
The majority also relies on the 3:53 p.m. call “by Fortson’s
mother’s phone [that] utilized the same cell tower used by Hagood’s
phone approximately 40 minutes earlier.” Maj. Op. at 11. The
record shows that the call was to Ms. Fortson’s grandmother who
lived in Ousley Court, a residential area less than one mile from the
area where Haygood’s car and phone were located. The State
17 While the lead detective testified that, at the time of the 12:05 call,
Southern’s cell phone pinged off a cell tower that was 1.6 miles south of
Fortson’s home “as the crow flies,” he later clarified that the tower itself was a
2.6-mile drive to Fortson’s home.
18 I agree with the majority that it was reasonable for the jury to infer
that Fortson had dreadlocks on the date of Hagood’s murder and that it was
reasonable for the jury to infer that a man with dreadlocks participated in both
crimes. However, based upon the weak circumstantial evidence in this case, I
must disagree that the State sufficiently proved beyond a reasonable doubt
that “the man with dreads” present at either crime scene was Fortson.
32
presented testimony that Ms. Fortson frequented Ousley Court
because her grandmother lived there. The record further shows that
Ms. Fortson’s cell phone pinged off that cell tower twice in 40
minutes before moving elsewhere, and that the cell phone pinged off
a tower near the Fortson’s home in Bouldercrest at 6:09 p.m.,
approximately three hours before Smith’s stolen cell phone was
reset. In my mind, there are two reasonable inferences a jury could
draw from this evidence. First, and more likely, Ms. Fortson was on
the way to visit her grandmother when the 3:53 call was placed.
Second, a jury could also infer that Fortson met up with Southern,
Willis, Jordan, and Bates after his friends committed the crimes. I
disagree with the majority, however, that this evidence creates a
reasonable inference that Fortson participated in Hagood’s murder.
If anything, this evidence supports only a finding that Fortson knew
that his friends had committed criminal acts after the fact. See
Bullard, supra, 263 Ga. at 685.
Based upon these considerations, I must conclude that the
evidence as a whole was insufficient as a matter of law to support
33
Fortson’s convictions. Accordingly, I would reverse.
34