Stephens v. State

609 S.E.2d 344 (2005) 279 Ga. 43

STEPHENS
v.
THE STATE.

No. S04A1894.

Supreme Court of Georgia.

February 21, 2005.

Veronica Evette Brinson, Macon, for Appellant.

Howard Zachary Simms, Dist. Atty., Dorothy V. Hull, Asst. Dist. Atty., Hon. Thurbert E. Baker, Atty. Gen., Vonnetta Leatrice Benjamin, Asst. Atty. Gen., for Appellee.

HUNSTEIN, Justice.

Jasper Stephens was indicted for malice murder, felony murder with possession of a firearm by a convicted felon as the underlying offense, and possession of a firearm during the commission of a felony, all in connection with the shooting death of Otis Stallion.^[1] The trial court granted Stephens's motion to bifurcate the malice murder count from the remainder of the counts predicated upon the status offenses of possession of a firearm by a convicted felon. The jury found Stephens not guilty of malice murder, but in the succeeding phase of the trial, determined he was guilty of felony murder and the possession charges. He appeals from the denial of his amended motion for new trial. Finding no error, we affirm.

The jury was authorized to find that Stephens was at his grandmother's residence on May Avenue in Macon when a vehicle pulled up to the house. Philip Evans, the victim's cousin, sat in the driver's seat, Jarryl Clark in the front seat and the victim, in the back seat. Several eyewitnesses testified that Stephens opened the back door of the car, slapped the victim in the face several times, and demanded the fifteen dollars the victim owed him. Evans gave Stephens a twenty dollar bill and Stephens gave him change. After the exchange of money, Stephens slapped the victim again and told the victim that he was "going to die tonight anyway." Stephens then leaned in and shot the victim. The victim died from a single gunshot wound to the upper abdomen. There was conflicting testimony as to whether the victim had a gun or appeared to reach for something under the car seat. Stephens testified that during the altercation he shot and killed the victim after the victim reached for a weapon.

1. We conclude there was sufficient evidence from which a rational trier of fact could have found Stephens guilty beyond a reasonable doubt of felony murder and the multiple possession of a firearm charges. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Accordingly, the trial court did not err by denying Stephens's motion for new trial.

2. Stephens's assertion that the trial court erred in finding the status offense of possession of a firearm by a convicted felon was sufficiently dangerous and connected to the murder to serve as the underlying felony for the felony murder conviction lacks merit. The record shows that Stephens was a convicted felon, possessed a firearm, and used the firearm during the altercation which resulted in the victim's death. Thus, the possession charge was sufficiently connected to the murder to serve as the underlying felony for a felony murder conviction.^[2]Metts v. State, 270 Ga. 481(1), 511 S.E.2d 508 (1999). See also Mosley v. State, 272 Ga. 881(3), 536 S.E.2d 150 (2000); Roller v. State, 265 Ga. 213(2), 453 S.E.2d 740 (1995). Compare Ford v. State, 262 Ga. 602, 423 S.E.2d 255 (1992) (act of discharging pistol while trying to empty it was not inherently dangerous to human life).

3. Stephens's contention that his felony murder and possession of a firearm convictions must be set aside because the jury returned an acquittal on the malice murder count lacks merit. See Jones v. State, 276 Ga. 663(2), 581 S.E.2d 546 (2003). Furthermore, this case does not involve mutually exclusive verdicts, compare Dumas v. State, 266 Ga. 797(2), 471 S.E.2d 508 (1996), and to the extent Stephens complains that his convictions are inconsistent with the malice murder acquittal, we note that any alleged inconsistency cannot be used as an avenue to challenge the conviction since the "inconsistent-verdict rule" has been abolished in this state. See Milam v. State, 255 Ga. 560(2), 341 S.E.2d 216 (1986) (a defendant cannot attack as inconsistent a jury verdict of guilty on one count and not guilty on a different count). See also Huntley v. State, 271 Ga. 227(3), 518 S.E.2d 890 (1999).

Judgment affirmed.

All the Justices concur.

NOTES

[1] The crimes occurred on November 2, 2001. Stephens was indicted May 14, 2002 in Bibb County and found guilty on August 15, 2002. He was sentenced to life imprisonment for the felony murder and fifteen years to be served consecutively for possession of a firearm during the commission of a felony. His motion for new trial, filed September 18, 2002, and amended December 2, 2003, was denied January 12, 2004. A notice of appeal was filed January 23, 2004. The appeal was docketed July 26, 2004 and orally argued November 8, 2004.

[2] We decline Stephens's request to apply Griffin v. Commonwealth, 33 Va.App. 413, 533 S.E.2d 653 (2000) to change the established law in Georgia regarding status offenses.