Cert. applied for.
Involuntary manslaughter, etc. Carroll Superior Court. Before Judge Simpson.
Jennifer A. Trieshmann, for appellant.
Peter J. Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney, for appellee.
RAY, Judge. Andrews, P. J., and McFadden, J., concur.
Roderick Lanier Springer was indicted for felony murder (OCGA § 16-5-1 (c)), aggravated assault (OCGA § 16-5-21), and possession of a gun during the commission of a felony (OCGA § 16-11-106). A Carroll County jury found him guilty of involuntary manslaughter as a lesser-included offense of felony murder, as well as aggravated assault and possession of a gun during the commission of a felony. He appeals from the denial of his motion for new trial, arguing that his convictions must be set aside because the jury returned mutually exclusive verdicts. He also contends that the trial court erred in determining which jury instructions to issue. For the reasons that follow, we reverse Springer's convictions and remand the case to the trial court for a new trial.
" It is well established that on appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence[.]" (Citation and punctuation omitted.) Barber v. State, 273 Ga.App. 129 (1) (614 S.E.2d 105) (2005). The evidence presented at trial shows that, in the early morning hours of August 2, 2002, there was a large crowd of people in the parking lot of a Krystal restaurant when a fight broke out. Springer's co-defendant, Travis Barber, arrived with several friends during the melee. Shortly after he arrived, Barber climbed on top of a car, pulled a gun out of his pants, waved it around, and started shooting. There was also evidence that Springer was in the crowd and shooting a gun. When police officers arrived at the scene, they found a man lying between two cars in the parking lot. The victim, Latorrious Mitchell, was an innocent bystander who had been shot in the back and killed.
1. Springer contends that the trial court should have granted his motion for new trial because the jury returned mutually exclusive verdicts of involuntary manslaughter and aggravated assault, resulting in a reasonable probability that it concluded that Springer acted with both criminal intent (with the intent to harm) and criminal negligence (without the intent to harm). We agree.
" Verdicts are mutually exclusive where a guilty verdict on one count logically excludes a finding of guilt on the other." (Citations and punctuation omitted.) Jackson v. State, 276 Ga. 408, 410 (2) (577 [328 Ga.App. 655] S.E.2d 570) (2003). Georgia courts have held that " verdicts are mutually exclusive where a jury returns verdicts of guilt as to both criminal intent and criminal negligence offenses in those factual situations involving the same act by the accused as to the same victim at the same instance of time." (Citations and punctuation omitted.) Allaben v. State, 294 Ga. 315, 316 (2) (751 S.E.2d 802) (2013). This is because
" [s]uch verdicts reflect an illogical finding by the jury that the defendant acted with both criminal intent and criminal negligence toward the victim." (Citation and punctuation omitted.) Id. Further, if a guilty verdict is returned on a crime that can be committed in two ways,
one of which is, and one of which is not, mutually exclusive of a guilty verdict for a second crime, the guilty verdicts are considered mutually exclusive unless we can conclusively state that the verdict on the first crime rested exclusively on the non-mutually exclusive ground so as to eliminate the ...