DocketNumber: S18A0949
Judges: Boggs
Filed Date: 8/20/2018
Status: Precedential
Modified Date: 10/19/2024
**313Appellant Dexter Lamar Parks was tried before a jury and found guilty of felony murder, aggravated assault with a deadly weapon, possession of a firearm during the commission of a crime, and participation in criminal gang activity.
Construed in the light most favorable to the verdict, the evidence showed that on the afternoon of April 16, 2008, Parks, Rodger Jackson and other members of GMC ("Get Money Click") drove to a neighborhood in Austell, Georgia. The fourteen or more young men pulled up in about six or seven cars and began shouting "GMC" while "trying to fight. They circled around, then they came back. When they came back, they all got out [of] the car[s] [except Parks], just trying to fight." Jackson and other members approached Lavita Harrison's house. One in the group told Harrison that her brothers and cousins "shouldn't mess with their homeboys at school." As Harrison was telling the members *504to go away and the residents of the neighborhood to go inside, her cousin, the victim Caleb Burroughs, walked up the street toward Harrison's home. Moments later, Parks, who was sitting in one of the cars, yelled, "[b]ust that sh*t," and Jackson fired twice into the air. Jackson then lowered his gun and fired once into the crowd, shooting the victim in the abdomen. All of the GMC members fled the scene and reconvened at Parks' home. There, Jackson spoke about the incident saying that "those boys are always trying to buck" and that "[he] burnt that a**." The victim died from the gunshot wound.
Multiple witnesses testified that GMC was a gang in the Austell area, and two of Parks' friends testified that Parks was a member of GMC. However, two witnesses maintained that GMC was a music group, not a gang. One of these witnesses was impeached with his testimony from an earlier hearing, where he stated that he and Parks were members of GMC, which he admitted was a gang.
The State presented an expert, an agent assigned to the Marietta/Cobb/Smyrna organized crime unit or CAGE ("Cobb Anti-Gang Enforcement"). He testified that, in his expert opinion, GMC was a gang that has been operating since 2006. He stated that GMC stands for "Get Money Click," which he explained is a loosely-organized, nontraditional or hybrid criminal street gang that operates on the south side of Cobb County. The expert explained further that he personally had interviewed known and suspected GMC members, that the gang uses the color green and the letters "GMC"
**315with one or two dollar signs in front of and behind them, and that the members usually wear black attire. The State also presented evidence of clothing from Parks' room that had GMC letters and symbols on it, and Parks was wearing a GMC hat in a videotape played at trial.
1. Parks challenges the sufficiency of the evidence to sustain his convictions. When evaluating a challenge to the sufficiency of the evidence, we view the evidence admitted at trial in the light most favorable to the verdict and ask whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. McGruder v. State,
Questions regarding the reasonableness of hypotheses are generally to be decided by the jury that heard the evidence, and so long as the evidence, even though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, this Court will not disturb a finding of guilt unless the verdict is insupportable as a matter of law.
(Citations and punctuation omitted.) Taylor v. State,
Although the evidence was certainly not overwhelming as the State argues, we conclude that it was sufficient to authorize a rational jury to find Parks guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia,
(a) Parks argues that the circumstantial evidence failed to establish that he was a party to the crimes. "Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime." OCGA § 16-2-20 (a). In relevant part, "[a] person is concerned in the commission of a crime only if he: ... (3) Intentionally aids or abets in the commission of the crime; or (4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime." OCGA § 16-2-20 (b) (2), (b) (3). "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." (Citations and punctuation omitted.)
**316*505Navarrete v. State,
(b) Parks asserts that the evidence was insufficient as to the gang count because the State relied on inadmissible hearsay-the gang **317expert's testimony that GMC had tagged
Former OCGA § 16-15-4 (a), applicable at the time of Parks' trial, provided, "It shall be unlawful for any person employed by or associated with a criminal street gang to conduct or participate in criminal street gang activity through the commission of any offense enumerated in paragraph (1) of [former] Code Section 16-15-3."
As used in this chapter, the term:
(1) "Criminal gang activity" means the commission, attempted commission, conspiracy to commit, or solicitation, coercion, or intimidation of another person to commit any of the following offenses on or after July 1, 2006: ...
(H) Any offense of criminal trespass or criminal damage to property resulting from any act of gang related painting on, tagging, marking on, writing on, or creating any form of graffiti on the property of another; ...
*506(J) Any criminal offense in the State of Georgia, any other state, or the United States that involves violence, possession of a weapon, or use of a weapon, whether designated as a felony or not, and regardless of the maximum sentence that could be imposed or actually was imposed.
(2) "Criminal street gang" means any organization, association, or group of three or more persons associated in fact, whether formal or informal, which engages in criminal gang activity as defined in paragraph (1) of this Code section. The existence of such organization, association, or group of individuals associated in fact may be established by evidence of a common name or common identifying signs, symbols, tattoos, graffiti, or attire or other distinguishing **318characteristics. Such term shall not include three or more persons, associated in fact, whether formal or informal, who are not engaged in criminal gang activity.6
When asked how long GMC has been operating in Cobb County, the gang expert explained, "The first documented incident from them was 2006." Trial counsel objected that the expert's testimony was "just a way to get hearsay in." The trial court overruled the objection, and the expert explained the details of the "documented incident": "[T]hey had tagged a sign in the neighborhood ... and we got a complaint through the-got an anonymous complaint through one of the citizens for that incident."
Parks complains that the expert's testimony about tagging a sign, which qualifies as "criminal gang activity" under OCGA § 16-15-3 (1) (H), is hearsay and therefore cannot be used to satisfy the State's burden of showing that GMC had engaged in a prior incident of gang activity. Contrary to Parks' argument, former OCGA §§ 16-15-3 and 16-15-4 do not require evidence of a prior incident of criminal gang activity, although such evidence may be used to establish the existence of a criminal street gang or that a defendant is associated with a gang. See Lang v. State,
2. Parks asserts that the trial court erred in allowing the testimony of the State's gang expert. He complains that the expert's testimony was based on inadmissible hearsay that was not beyond the ken of the jurors.
Former OCGA § 24-9-67, applicable at the time of Parks' trial, provided, "In criminal cases, the opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given in the facts as proved by other witnesses." It is true, as Parks argues, that
[a]n expert may not give an opinion that is based entirely on the hearsay reports, knowledge, or opinions of other experts. A testifying expert is not to serve as a conduit for the opinions of others, and must base his opinion on facts **320supported by evidence in the case; he cannot base his opinion on what he has heard in private conversations with others.
(Citations, punctuation and footnotes omitted.) Cobb v. State,
Judgment affirmed.
Hines, C.J., Melton, P.J., Benham, Hunstein, Nahmias, Blackwell, and Peterson, JJ., concur.
The crimes occurred on April 16, 2008. On October 30, 2009, a Cobb County grand jury indicted Parks on charges of malice murder, felony murder (two counts), aggravated assault with a deadly weapon, possession of a firearm during the commission of a crime, and participation in a criminal street gang. Following a February 22-26, 2010 trial, the jury acquitted Parks of malice murder but found him guilty on the remaining counts, and he was sentenced to life plus five years in prison. Parks' motion for new trial was filed on March 5, 2010 and denied on April 21, 2014. His notice of appeal was filed on May 20, 2014, and amended on October 30, 2017. This case was docketed in this Court for the April 2018 term and was orally argued on June 4, 2018.
Parks was tried in 2010, under the old Evidence Code.
Parks suggests that "bust that sh*t" could have been an instruction for "others to bust out of the neighborhood, to quit harassing Harrison and the others, or perhaps to begin rapping (i.e., bust a rhyme)."
See OCGA § 16-15-3 (1) (H) describing "criminal gang activity" to include "[a]ny offense of criminal trespass or criminal damage to property resulting from any act of gang related painting on, tagging , marking on, writing on, or creating any form of graffiti on the property of another." (Emphasis supplied.) "Tagging" is defined as "to provide or mark with" or "to supply with an identifying marker." Webster's New Collegiate Dictionary (9th Ed. 1991). It is a term that describes a type of graffiti. See Sifuentes v. State,
The current version of OCGA § 16-15-4 (a) contains the same language except for the deletion of "street" preceding "gang activity." See Ga. L. 2010, p. 230, § 3.
In 2010, the phrase "including, but not limited to, common activities, customs, or behaviors," was added to this subsection following "distinguishing characteristics." See Ga. L. 2010, p. 230, § 2.
The existence of GMC was established by the expert's testimony concerning the name, identifying signs and symbols, and the attire used by the group. See OCGA § 16-15-3 (2) ; see also McGruder, supra,
Under Georgia's old Evidence Code, improperly admitted hearsay was deemed to have no probative value and could not therefore be used to determine the sufficiency of the evidence. See Livingston v. State,
Parks cites Rodriguez v. State,