State v. OWENS (And Vice Versa) ( 2021 )

In the Supreme Court of Georgia
Decided: August 10, 2021
S21A0640. THE STATE v. OWENS.
S21X0641. OWENS v. THE STATE.
MCMILLIAN, Justice.
After Stephan Joseph Owens was convicted of felony murder
and other crimes related to the shooting death of Richard Osadebe
Egoegonwa, he was granted a new trial on the felony murder charge.
The State appeals, and Owens cross-appeals. Because the trial court
erred in granting a new trial on the ground that the verdicts as
rendered were repugnant, we reverse that portion of the order
granting the new trial. In Owens’s cross-appeal, we affirm except to
correct a sentencing error. 1
1 Egoegonwa died on July 5, 2015. On October 9, 2015, a Fulton County
grand jury returned an indictment for malice murder, felony murder, and two
counts each of aggravated assault, possession of a firearm during the
commission of a felony, and cruelty to children in the third degree. Owens’s
first trial ended in a mistrial. At a second trial held from December 12 to 15,
The evidence presented at trial showed that Jonathan
Hampton invited his friends Egoegonwa, Owens, and Owens’s
girlfriend, Jasmine Keith, to a barbeque hosted by Hampton’s niece
on July 4, 2015. Hampton drove them all to the party in Keith’s
minivan that evening. Along the way, they dropped off two of Keith’s
older children at her mother’s apartment but brought two toddlers
and a newborn baby to the party.
Egoegonwa purchased liquor to share at the party and became
intoxicated that evening; his postmortem blood alcohol level was
.236. The partygoers lit firecrackers, and as the guests were eating,
drinking, and laughing together after midnight, Egoegonwa started
2016, the jury found him not guilty of malice murder but guilty of felony
murder and the remaining counts. The jury also found Owens not guilty of
voluntary manslaughter as a lesser offense of malice murder and felony
murder. One aggravated assault count merged with the felony murder count.
Owens was sentenced to serve life in prison for felony murder, twenty years in
prison for aggravated assault to be served concurrently, five years in prison to
be served consecutively for each firearm-possession count, and twelve months
in prison for each child-cruelty count to be served concurrently. On January
10, 2017, Owens filed a motion for new trial, which he amended on April 13,
2018. After a hearing, the trial court granted in part and denied in part his
motion for new trial on December 14, 2020. The State timely appealed, and
Owens timely cross-appealed. These cases were docketed to the April 2021
term of court and submitted for decision on the briefs.
2
rambling belligerently, insulting Owens, and insisting that Owens
“owe[d]” him, presumably for the liquor. They “exchanged words,”
and Owens pushed Egoegonwa, who stumbled and fell to the ground.
Egoegonwa exclaimed that Owens could not treat him like “an ant.”
The two were separated, and seeing the potential for violence, the
hosts asked them to leave.
Hampton, Owens, and Keith packed up and went to secure the
children in the van, but in the driveway Egoegonwa staggered and
ran toward Owens angrily, fists closed, telling Owens, “[Y]ou can’t
keep treating me like this.” Owens pointed a gun at Egoegonwa, who
was unarmed, and expressed anger at the hosts for insisting that he
and his family leave. Hampton convinced Owens to put away his
gun, and others held Egoegonwa back so that Owens could enter the
van. Hampton drove, Egoegonwa sat in the front passenger seat, and
Owens sat immediately behind the driver’s seat. The baby was in a
car seat behind Egoegonwa, and Keith and the two toddlers were in
the back.
On their way to pick up Keith’s older children, who were 10 to
3
15 minutes away, Egoegonwa turned toward Owens, and they were
“fussing back and forth.” Egoegonwa continued to ramble loudly
about how poorly he had been treated, but Hampton and Owens
ignored and talked over him, telling jokes to lighten the mood. When
Egoegonwa persisted, Owens shoved Egoegonwa’s shoulder and told
him, “[S]hut up, turn around, nobody wants to hear you talking.”
Then, Egoegonwa pushed Owens’s head, and Hampton saw Owens’s
gun come close to Egoegonwa’s face. As they parked at Keith’s
mother’s apartment, Owens shot Egoegonwa once, and Egoegonwa
died at the scene. Hampton testified that he was “not sure if [the
children] were [a]sleep” at the moment of the shooting. After exiting
the van, Owens briefly kissed Keith and the children, told Hampton
that he was sorry, and fled on foot. Owens turned himself in to the
police a few days later.
At trial, Owens testified that he acted in self-defense because
he thought Egoegonwa would strike him, that Egoegonwa had
grabbed for Owens’s gun, and that the gun went off accidentally as
the two men were struggling over the gun in the minivan. The trial
4
court agreed to give a jury instruction on voluntary manslaughter
as a lesser offense at Owens’s request, including an instruction that
the jury must consider whether mitigating circumstances existed
before rendering verdicts on malice murder and felony murder. As
for completing the verdict form, the trial court instructed that on the
one hand, if the jury found Owens guilty of an offense beyond a
reasonable doubt, the form of the verdict would be “we, the jury, find
the defendant guilty.” On the other hand, the trial court instructed
that if the jury did not believe that Owens was guilty of the offense,
the form of the verdict would be “we, the jury, find the defendant not
guilty.”
Both the prosecutor and defense counsel reviewed the verdict
form, and neither objected before the jury returned its verdict. The
verdict form had separate lines for each offense, and the final one
directed the jury to consider voluntary manslaughter:
As to Count 1, MURDER, and Count 2, FELONY
MURDER, if you found mitigating circumstances as
provided in the Court’s charge, then, as to VOLUNTARY
MANSLAUGHTER, We, the members of the jury, find the
Defendant Stephan J. Owens,
5
NOT GUILTY_________ GUILTY_________
The jury checked guilty on the lines for felony murder, both counts
of aggravated assault, both counts of possession of a firearm during
the commission of a felony, and both counts of cruelty to children in
the third degree, but it checked not guilty on the lines for malice
murder and voluntary manslaughter. In a conference outside the
jury’s presence before the verdicts were published, the trial court
discussed the verdicts with the parties, at which point the defense
objected to accepting the verdicts, arguing, without explanation,
that they were confusing and required speculation to discern the
jury’s intent. The court overruled the objection and accepted the
verdicts. After the verdicts were published, the defense objected
again to the form and legality of the verdicts.
Following a hearing on the motion for new trial, a different
trial judge than the one who presided over Owens’s trial vacated the
jury’s verdicts on felony murder and voluntary manslaughter as
6
repugnant and granted a new trial. 2 See McElrath v. State, 308 Ga.
104, 111 (839 SE2d 573) (2020) (when a jury makes affirmative
findings as shown on the record that cannot logically or legally exist
at the same time, such verdicts are repugnant and must be vacated).
First, the court determined that Owens properly preserved the issue
of whether the verdicts were repugnant because he timely objected
to accepting the verdicts. Second, citing Cheddersingh v. State, 290
Ga. 680 (724 SE2d 366) (2012), the court concluded that the verdict
form was erroneous because it instructed the jury to consider
voluntary manslaughter only if the jury found mitigating
circumstances, and because the jury returned a verdict on that
charge, the jury must have decided that there were mitigating
circumstances “as a precondition.” Citing Edge v. State, 261 Ga. 865(414 SE2d 463) (1992), which held that “where a jury renders a
[guilty] verdict for voluntary manslaughter, it cannot also find
2 The trial court denied the motion for new trial on all other grounds
asserted, except it concluded that one of Owens’s two guilty verdicts for
possession of a firearm during the commission of a felony should have merged
into the other count and ordered that Owens be resentenced accordingly.
7
felony murder based on the same underlying aggravated assault,”
the court concluded that the jury, “having found mitigation as
expressed in the verdict form, could not [legally] return a verdict of
guilty on felony murder and not guilty on voluntary manslaughter,”
and therefore that the verdicts were repugnant under McElrath, 308
Ga. at 111 (2) (c).
Case No. S21A0640 (State’s Appeal)
1. The State asserts that the trial court erred in granting a
new trial as to felony murder due to the court’s view that the verdict
form was erroneous and that the verdicts were repugnant.
(a) As an initial matter, both parties argue that the other has
waived its claims on appeal regarding the verdicts. Owens contends
that because the State focused its initial appellate brief on the
verdict form rather than the trial court’s determination that the
verdicts were repugnant, the State abandoned any argument on
appeal that the verdicts were repugnant. In reviewing the State’s
briefing on appeal, we note that in its opening brief, the State
enumerated as error the grant of the new trial but focused its
8
argument on problems with the verdict form and why the trial court
erred in determining that the jury must have found mitigating
circumstances; it then expanded its argument as to why the verdicts
were not repugnant in its reply brief. We conclude that although the
State’s initial brief was inartful in how it presented its arguments,
the State sufficiently challenged the basis for the grant of a new trial
such that it has not abandoned this argument on appeal. See
Supreme Court Rules 19, 22 (regarding enumerations of error,
argument, and citation of authority).
Conversely, the State contends that because Owens did not
object to the verdict form before the jury retired to deliberate, the
trial court erroneously found that Owens had preserved his claim
regarding the verdict. See OCGA § 17-8-58 (a) (“Any party who
objects to any portion of the charge to the jury . . . shall inform the
court of the specific objection . . . before the jury retires to
deliberate.”). Therefore, the State argues, the trial court should have
applied plain error review, and under plain error review, the trial
court should not have granted a new trial. See id. (b) (limiting review
9
to plain error when party fails to object in accordance with
subsection (a)).
The State is fundamentally mistaken in its views. Whether
Owens properly objected to the verdict form is distinct from the
question of whether the verdicts as rendered were repugnant.
Assuming without deciding that the trial court should have applied
the plain error test in reviewing the issues with the verdict form,
Owens separately asserted at the motion for new trial that the
verdicts were repugnant. In considering whether verdicts were
repugnant and thus void, we have held that “no valid judgment may
be entered on a void verdict.” Allaben v. State, 294 Ga. 315, 321 (2)
(b) (751 SE2d 802) (2013), overruled on other grounds, State v.
Springer, 297 Ga. 376, 382-83 & n.4 (2) (774 SE2d 106) (2015).
Accordingly, any judgment and sentence entered on repugnant
verdicts are void and can be challenged in any proper proceeding,
including a timely filed motion for new trial and a properly filed
direct appeal. See Nazario v. State, 293 Ga. 480, 485 (2) (b) (746
SE2d 109) (2013). Thus, Owens has not waived this claim for review
10
by the trial court or on appeal.
(b) Turning to the merits, the State asserts that because the
verdict form – when properly considered with the jury charges, the
trial court’s written instructions, and the closing arguments – does
not necessarily show that the jury found mitigating circumstances,
the resulting guilty verdict for felony murder and not guilty verdict
for voluntary manslaughter were not repugnant. We agree.
Repugnant verdicts “occur when, in order to find the defendant
not guilty on one count and guilty on another, the jury must make
affirmative findings shown on the record that cannot logically or
legally exist at the same time.” McElrath, 308 Ga. at 111 (2) (c)
(emphasis in original). When verdicts are repugnant, they must be
vacated and a new trial must be conducted. Id. In contrast,
“inconsistent verdicts occur when a jury in a criminal case renders
seemingly incompatible verdicts of guilty on one charge and not
guilty on another.” Id. at 108 (2) (a) (emphasis in original).
Inconsistent verdicts are permitted to stand because the jury’s
rationale is not apparent from the record and courts generally are
11
not permitted to make inquiries into the jury’s deliberation process. 3
Compare Guajardo v. State, 290 Ga. 172, 174 (2) (718 SE2d 292)
(2011) (repugnant verdicts require reversal “in the rare instance
where, instead of being left to speculate as to the jury’s
deliberations, the appellate record makes transparent the jury’s
rationale”), with Thornton v. State, 298 Ga. 709, 713-14 (2) (784
SE2d 417) (2016) (jury may render inconsistent verdicts because of
“mistake, compromise, or lenity” (citing United States v. Powell, 469
U.S. 57, 65 (105 SCt 471, 83 LE2d 461) (1984))).
Ordinarily, a guilty verdict on felony murder and a not guilty
verdict on voluntary manslaughter would not be inconsistent, much
less repugnant, because they are separate offenses upon which the
jury would be free to find the defendant guilty or not guilty based on
the facts of the case. See Carter v. State, 298 Ga. 867, 869 (785 SE2d
274) (2016) (no repugnant verdict on “two different offenses upon
3 A third category of verdicts – mutually exclusive verdicts – does not
apply here because that category involves “two guilty verdicts that cannot
legally exist simultaneously.” McElrath, 308 Ga. at 110 (2) (b) (emphasis in
original).
12
which the jury was free to find [the defendant] guilty or not guilty
based on the facts of the case as interpreted by the jury”); cf. Edge,
261 Ga. at 865 (2) (applying a modified merger rule to reverse felony
murder conviction when the jury also found defendant guilty of
voluntary manslaughter based on the same underlying aggravated
assault). However, Owens argues that because of the conditional “if”
statement in the voluntary manslaughter line on the verdict form,
the fact that the jury returned a verdict on voluntary manslaughter
at all, rather than leaving that section blank, constitutes an
affirmative finding of mitigating circumstances, so the verdicts for
voluntary manslaughter and felony murder based on the same
aggravated assault were repugnant.
Owens’s argument relies solely on the language in the verdict
form, but in determining the meaning of the verdicts, it is critical to
consider the jury instructions as a whole. See Cheddersingh, 290 Ga.
at 683 (2) (“Preprinted verdict forms have been treated as a portion
of the jury instructions.”) As to voluntary manslaughter, the trial
court charged:
13
After consideration of all of the evidence[, and] before you
would be authorized to return a verdict of guilty of malice
murder or felony murder[,] you must first determine
whether mitigating circumstances if any would cause the
offense to be reduced to voluntary manslaughter as
defined below.
The jury was then charged on the elements of voluntary
manslaughter and that the burden of proof was on the State to prove
beyond a reasonable doubt that the offense was not so mitigated.
Near the close of the charge, the jury was also instructed that,
should it find beyond a reasonable doubt that Owens committed the
offenses alleged in the indictment, the jury would be authorized to
find Owens guilty, and in that event, the form of the verdict would
be “we, the jury find the defendant guilty.” The jury was further
instructed that if it did not believe that Owens was guilty, then it
would have a duty to acquit, in which event the form of the verdict
would be “we, the jury find the defendant not guilty.” The
instructions were provided to the jury in writing during their
14
deliberations.4
The jury was not instructed orally or in writing to leave the
voluntary manslaughter line blank if it concluded that there were
no mitigating circumstances. To the contrary, the State argued in
closing that the jury should find Owens guilty of malice murder and
felony murder, explained the consequences of also marking guilty
for voluntary manslaughter, and urged the jury to mark “not guilty”
on voluntary manslaughter. 5
Although when viewed in isolation, the verdict form could
suggest that the jury found mitigating circumstances, the trial
4 Neither the State nor Owens argues on appeal that the charges were
improper.
5 In its closing the argument, the State told the jury, after explaining
voluntary manslaughter:
[I]f you find him guilty of voluntary manslaughter, you
automatically find him not guilty of malice murder and felony
murder. . . . [I]f you write guilty of malice murder, guilty of felony
murder, and guilty of voluntary manslaughter[,] it’s like you wrote
not guilty of murder and not guilty of felony murder . . . .
So please do not if you think that he’s guilty of the first two
and continue down the line and find him guilty of voluntary
manslaughter. It’s either or, okay. So I’d ask that you find him
guilty of malice murder, felony murder . . . but not guilty on
voluntary manslaughter because he wasn’t justified when he
committed the act.
15
court’s other instructions and the State’s explanations during
closing argument support the conclusion that the jury, by marking
“not guilty” on the line for voluntary manslaughter, found that there
were no mitigating circumstances and thus that Owens had not
committed voluntary manslaughter. 6 Because the record does not
show that the jury made an affirmative finding that mitigating
circumstances existed, the verdicts were not repugnant, and the
trial court erred in granting a new trial on this basis. See Guajardo,
290 Ga. at 174-75 (2) (despite jury’s question suggesting that it
found appellant not guilty of malice murder due to self-defense,
guilty verdicts on felony murder and other counts were not
repugnant because jury did not make its reasoning transparent); cf.
McElrath, 308 Ga. at 112 (2) (verdicts of not guilty by reason of
insanity on malice murder and guilty but mentally ill on felony
murder were repugnant because “it is not legally possible for an
6Though we see no reversible error under the circumstances of this case,
we do not endorse the language used in the verdict form for voluntary
manslaughter as a lesser offense of malice murder and felony murder.
16
individual to simultaneously be insane and not insane during a
single criminal episode against a single victim”); Turner v. State, 283
Ga. 17, 21 (2) (655 SE2d 589) (2008) (verdicts were repugnant based
on jury’s express finding of justification that was clear from verdict
form).
2. The State does not challenge the trial court’s determination
in its order granting the motion for new trial that one of the firearm-
possession counts should have merged into the other and that
resentencing is required, so we do not reach this issue, and that part
of the trial court’s order stands.
Case No. S21A0641 (Owens’s Cross-Appeal)
3. Owens contends that even if the Court concludes that the
verdicts are not repugnant, he is still entitled to a new trial because
the trial court plainly erred in using the verdict form, which made
“it impossible to know the jury’s true findings.” 7
7The State argues that Owens is precluded from asserting this claim
because the trial court found in its order granting his motion for new trial that
the verdict form was erroneous, and that because this issue was resolved in
17
To show plain error, the appellant must demonstrate that
the instructional error was not affirmatively waived, was
obvious beyond reasonable dispute, likely affected the
outcome of the proceedings, and seriously affected the
fairness, integrity, or public reputation of judicial
proceedings. Satisfying all four prongs of this standard is
difficult, as it should be.
Stewart v. State, __ Ga. __, __ (4) (b) (858 SE2d 456, 460) (2021)
(citation and punctuation omitted). Here, even assuming without
deciding that the instruction on voluntary manslaughter on the
verdict form was erroneous, Owens has not shown that the error
likely affected the outcome of his trial. Despite any ambiguity in the
form, the trial court properly instructed the jury on voluntary
manslaughter and how to complete the verdict form, and based on
those instructions, the jury clearly found Owens not guilty of
Owens’s favor, it could not be the subject of Owens’s cross-appeal. However,
the State misapprehends the nature of Owens’s argument. Owens asserts that
if this Court were to reverse the grant of the new trial, as we have done here,
he is nonetheless entitled to a new trial because the trial court committed plain
error in using the verdict form. See OCGA §§ 5-7-1 (b) (“In any instance in
which any appeal is taken by and on behalf of the State of Georgia in a criminal
case, the defendant shall have the right to cross appeal. Such cross appeal shall
be subject to the same rules of practice and procedure as provided for in civil
cases under Code Section 5-6-38.”); 5-6-38 (a) (“[A]ppellee may present for
adjudication on the cross appeal all errors or rulings adversely affecting
him[.]”).
18
voluntary manslaughter. Because Owens is not entitled to “know the
jury’s true findings,” apart from what is revealed on the face of the
record, Owens has failed to carry his burden of proving plain error.
See Williams v. State, 304 Ga. 455, 459-60 (3) (818 SE2d 653) (2018)
(appellant could not show that error in jury instruction likely
affected the outcome of trial).
4. Owens asserts that he was denied his right to effective
assistance of trial counsel because (1) counsel failed to preserve the
alleged error in the verdict form and (2) counsel did not generally
demur to the child-cruelty counts. To succeed on these claims,
Owens must demonstrate both that his trial counsel performed
deficiently and that he was prejudiced by this deficient performance,
meaning that a reasonable probability exists that absent counsel’s
deficient performance, the outcome at trial would have been
different. See Strickland v. Washington, 466 U.S. 668 (III) (104 SCt
2052, 80 LE2d 674) (1984). We need not address both prongs if the
defendant makes an insufficient showing on one. See id.(a) Even assuming that trial counsel should have objected to
19
the verdict form, Owens cannot show that a reasonable probability
exists that the outcome of the trial would have been different, so
Owens’s ineffective assistance of counsel claim on this ground fails.
See Bozzie v. State, 302 Ga. 704, 711 (4) (b) (808 SE2d 671) (2017)
(“The prejudice step of the plain-error standard is equivalent to the
prejudice prong for an ineffective assistance of counsel claim.”).
(b) Owens also contends that his trial counsel rendered
ineffective assistance by failing to challenge the child-cruelty counts
by general demurrer because those counts did not name the child
victims or specify the forcible felony that was the basis for the
charges. A general demurrer challenges the legality, validity, and
substance of an indictment by asserting that the indictment is
fatally defective and thus incapable of supporting that a crime was
committed; it can be granted only if the defendant could admit each
and every fact alleged in the indictment and still be innocent of any
crime. See State v. Mondor, 306 Ga. 338, 340-44 (1) (830 SE2d 206)
(2019).
Here, the two third-degree child-cruelty counts were
20
identical—both alleged that Owens committed the offense of cruelty
to children in the third degree by “commit[ting] a forcible felony” “on
the 5th day of July, 2015[,] being the primary aggressor and having
knowledge that a child under the age of 18 was present and saw or
heard the act.” Although the counts incorrectly cite OCGA § 16-5-70
(d) (1), they track the language of OCGA § 16-5-70 (d) (2), which
provides that a person commits the offense of cruelty to children in
the third degree when “[s]uch person, who is the primary aggressor,
having knowledge that a child under the age of 18 is present and
sees or hears the act, commits a forcible felony, battery, or family
violence battery.”
Owens is correct that as a general rule, an indictment for an
offense against the person should include the name of the victim.
See Irwin v. State, 117 Ga. 722 (45 SE 59) (1903) (“[I]t is necessary
that, in an indictment for an offense against the person of another,
the person injured should be referred to by his correct name[.]”).
However, we have explained that this rule is in place to comport
with constitutional due process, and thus,
21
an indictment charging a defendant with a criminal
offense must satisfy two criteria: (1) it must contain the
essential elements of the crimes and apprise a defendant
of what he must be prepared to meet at trial; and (2) it
must show with accuracy to what extent the defendant
may plead a former acquittal or conviction.
State v. Grube, 293 Ga. 257, 260 (2) (744 SE2d 1) (2013). An
indictment charging a crime against a person meets these
requirements “best when it provides the full and correct name of the
victim.” Id.“But the lack of notice of the charges or allegations goes to the
form of the indictment, which is challenged by a special demurrer,
rather than a general demurrer.” State v. Heath, 308 Ga. 836, 839
(843 SE2d 801) (2020); see also Grube, 293 Ga. at 260 (2) (treating
challenge under Irwin as an issue for a special demurrer); Dennard
v. State, 243 Ga. App. 868, 877 (2) (534 SE2d 182) (2000)
(recognizing failure of indictment to allege victim’s name in attempt
crime was subject to special demurrer). Because Owens only asserts
on appeal that his counsel performed deficiently by failing to file a
general demurrer, rather than a special demurrer, his
22
ineffectiveness claim on this ground fails.8
Owens further argues that trial counsel performed deficiently
by not filing a general demurrer on the ground that the forcible
felony was not set out in the indictment, citing Polk v. State, 275 Ga.
App. 467, 468-69 (620 SE2d 857) (2005), and Everhart v. State, 337
Ga. App. 348, 355 (3) (a) (786 SE2d 866) (2016). However, neither
Polk nor Everhart considered the question of whether a third-degree
child-cruelty count that does not name the forcible felony is subject
to a general demurrer, and neither case expressly extended its
reasoning to the failure to allege the forcible felony to third-degree
child cruelty. See Polk, 275 Ga. App. at 468-69 (challenge to a
burglary charge on the basis that it did not put the defendant on
notice of the charges against him); Everhart, 337 Ga. App. at 355
(considering different subsection of the child-cruelty statute and
whether the State alleged the essential elements of that crime to
8 In his amended motion for new trial, Owens argued that his trial
counsel performed deficiently by failing to file both a general demurrer and a
special demurrer, but he does not renew the special-demurrer argument on
appeal. See Heath, 308 Ga. at 840 (failure to specially demur is generally not
prejudicial because it must be raised pretrial and State can re-indict).
23
avoid being subject to general demurrer). It is well settled that “[t]he
standard for effectiveness of counsel does not require a lawyer to
anticipate changes in the law or pursue novel theories of defense.”
Brooks v. State, 309 Ga. 630, 637 (2) (847 SE2d 555) (2020) (citation
and punctuation omitted); see also Esprit v. State, 305 Ga. 429, 438
(2) (c) (826 SE2d 7) (2019) (“A criminal defense attorney does not
perform deficiently when he fails to advance a legal theory that
would require an extension of existing precedents and the adoption
of an unproven theory of law.” (citation and punctuation omitted)).
Consequently, Owens cannot show that his counsel’s performance
was constitutionally deficient.
5. Owens further argues that the evidence was insufficient to
support that he committed child cruelty because it is not clear that
the children heard or saw the shooting, but we disagree. Cruelty to
children in the third degree is committed when a primary aggressor
either intentionally or knowingly allows a child to see or hear the
act of committing “a forcible felony.” See OCGA § 16-5-70 (d) (1) - (2);
McCluskey v. State, 307 Ga. 740, 743 (1) (a) (838 SE2d 270) (2020)
24
(child victim must see or hear criminal act rather than just
encounter or experience its aftermath).
When reviewing the sufficiency of the evidence, an appellate
court no longer presumes the innocence of the defendant and instead
views the evidence in a light most favorable to the jury’s verdict. See
Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61
LE2d 560) (1979). Viewed in this light, the evidence presented at
trial regarding cruelty to children was that Owens loaded three
children into the minivan who were then present at close quarters
when Owens shot Egoegonwa in the early hours of the morning.
Hampton testified that he did not know if the children were awake
or asleep, and none of the children or their mother testified about
whether they were awake or affected by the shooting. However,
Owens knew that the children were present in the van at the time
of the shooting, and the jury could infer that a gunshot in the
minivan would awaken the children even if they were sleeping.
Therefore, there was sufficient evidence to enable a rational trier of
fact to infer that the children at least heard the shooting and to
25
conclude beyond a reasonable doubt that Owens was guilty of cruelty
to children in the third degree. Compare McCluskey, 307 Ga. at 743-
45 (1) (a) (evidence was insufficient where teenagers witnessed
attack’s aftermath but did not hear attack itself), with White v.
State, 319 Ga. App. 530, 533 (3) (737 SE2d 324) (2013) (even though
there was no evidence that two-year-old was awake to witness
defendant’s attack on her mother, older sibling testified that two-
year-old was shaking after it, and therefore “the jury was authorized
to infer that . . . [the two-year-old] awoke when she heard the adult
victim screaming during the attack”).
6. Finally, Owens asserts two sentencing errors. First, he
argues on appeal, and the State concedes, that one of the counts for
cruelty to children in the third degree should have merged with the
other because these counts in the indictment were identical, and the
jury could have found Owens guilty of child cruelty based on the
same child seeing or hearing the same crime. We agree, vacate
Owens’s convictions for cruelty to children, and remand for
resentencing on only one of the child-cruelty counts. Cf. Dukes v.
26
State, __ Ga. __, __ (4) (858 SE2d 510, 518) (2021) (defendant may
not be convicted and sentenced for the identical crime twice).
We reach a different result with respect to Owens’s contention
that his two aggravated assault convictions should have merged.
One count alleged that Owens committed aggravated assault with a
deadly weapon under OCGA § 16-5-21 (a) (2) “by brandishing a
handgun and pointing it at, toward, and in the direction of . . .
Egoegonwa,” and the other accused Owens under the same statute
of “shooting him with a handgun.” Neither count averred a specific
time or location of the assault. Owens argues that the jury could
have found him guilty of both aggravated assault counts based on
only the evidence that he shot the victim in the minivan because “[i]t
is virtually impossible to shoot someone without first brandishing a
weapon in their direction.”
Where a merger analysis involves multiple counts of the same
crime, as here, we look at the unit of prosecution criminalized by the
legislature. See Dukes, __ Ga. at __ (4) (858 SE2d at 518). OCGA §
16-5-21 (a) (2) provides, in pertinent part, that “[a] person commits
27
the offense of aggravated assault when he or she assaults . . . [w]ith
a deadly weapon[.]” The unit of prosecution is thus the assault with
the deadly weapon. It is clear here that there were two assaults
separated by a significant period of time, in different locations, and
with separate potential injuries to the victim. The evidence
supported, and the State argued, that Owens brandished his gun at
Egoegonwa while still at the party in a manner that was likely to
cause him serious bodily injury, and then 10 to 15 minutes later
Owens shot Egoegonwa in the minivan at the apartment complex
parking lot. The aggravated assault convictions do not merge under
the circumstances of this case. See Ortiz v. State, 291 Ga. 3, 6-7 (3)
(727 SE2d 103) (2012) (evidence supported two distinct assaults
against the victim, separated by a “deliberate interval” during which
the defendant shot someone else); cf. Jeffrey v. State, 296 Ga. 713,
718 (3) (770 SE2d 585) (2015) (four aggravated assault convictions
merged when “there was no evidence that the shooting occurred in
a manner other than in a single transaction, with no ‘deliberate
interval’ separating any of the shots”).
28
Judgment reversed in Case No. S21A0640. Judgment affirmed
in part and vacated in part, and case remanded with direction in
Case No. S21X0641. All the Justices concur, except Colvin, J., not
participating.
29