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Kosturi v. State

Supreme Court of Georgia

February 16, 2015


Murder. Clayton Superior Court. Before Judge Carter.

Judgment affirmed.

Charles M. Evans, for appellant.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Michael D. Thurston, Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Meghan H. Hill, Assistant Attorney General, for appellee.

NAHMIAS, Justice. All the Justices concur.


Nahmias, Justice.

Appellant Kevin Kosturi was convicted of malice murder and other crimes in connection with the shooting death of Angel Hope Freeman. On appeal, he argues only tat the evidence presented at his trial was legally insufficient to sustain his convictions. We affirm.[1]

Page 295

[296 Ga. 513] 1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. Appellant was 15 years old, and Freeman was 16, when she was killed. The two teenagers had started dating in the fall of 2010. Over the next several months, they had numerous arguments and break-ups, which often stemmed from Appellant's being jealous of Freeman's male friends. After one such argument, two friends of the couple heard Appellant say, " I'm going to kill her." Both witnesses testified that Appellant made similar statements on other occasions when he was upset with Freeman, and after another argument, Appellant told a classmate, " If I can't have her, no one can." On Valentine's Day 2011, a former boyfriend contacted Freeman, which led to another argument and break-up. After that, one of Freeman's friends testified, Freeman became concerned that " something had changed in [Appellant]."

A few days later, on February 20, 2011, Appellant's 21-year-old neighbor, Robert Bethune, gave Appellant a loaded .38-caliber revolver. That night, Appellant exchanged text messages with Freeman, telling her that he had a gun and suggesting that he was going to kill himself. Freeman told Appellant that she loved him and agreed to meet him at his home the next day. When Freeman met Appellant on the afternoon of February 21, he led her to a small wooden fort in the woods nearby, where he was keeping the gun. Appellant then killed Freeman with a single shot fired through her heart at close range. At some point thereafter, Appellant called 911. When the police arrived, Appellant told them that a Hispanic male had shot Freeman from 40 yards away as they were sitting on the fort. The police initiated a search but determined that a shot as Appellant had described would be nearly impossible.

Appellant was taken to the police station for further questioning. His mother arrived shortly thereafter. Appellant was then advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (86 S.Ct. 1602, 16 L.Ed.2d 694) (1966), which he waived. Appellant's mother was [296 Ga. 514] present for the remainder of the interview. After the investigators told Appellant that stippling around the entrance wound indicated that Freeman had been shot at close range, he changed his story, claiming that she shot herself and that he threw the gun into the lake behind the fort because he " didn't want anyone to think she was a bad person." The police then took Appellant back to the crime scene to show them where he threw the gun, which was recovered the next day. During a later interview at the police station, Appellant changed his story again after the investigators told him that they did not believe that Freeman shot herself. This time, Appellant claimed that he accidentally shot her while playing with the gun. A test performed on Appellant's hands revealed the presence of gunshot residue.

At trial, Appellant relied on a defense of accident, but he did not testify. The State's firearms expert testified that the revolver used to shoot Freeman required 2.5 pounds of trigger-pressure to fire if the hammer was cocked and 11.25 pounds of trigger-pressure to fire if the hammer was not cocked. Appellant's firearms expert agreed that if the gun was not cocked, the heavy trigger-pull " rules out accident," but he testified that an accidental discharge was much more likely if the gun was cocked before being fired. On cross-examination, the defense expert conceded that " if somebody pulls the hammer back, he's about to shoot."

2. Under OCGA § 16-2-2, " [a] person shall not be found guilty of any crime committed by misfortune or accident where it

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satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence." Appellant argues that the evidence presented at trial was legally insufficient to support his convictions because no evidence established a criminal scheme or undertaking, nor did the evidence overcome the defense theory that Appellant lacked intent to commit the crimes. As we have often explained, however,

" '[i]t was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.' " Vega v. State, 285 Ga. 32, 33 (673 S.E.2d 223) (2009) (citation omitted). When viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to reject Appellant's accident defense and find him guilty beyond a reasonable doubt of [the crimes charged]. See Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979); Smith v. State, 292 Ga. 620, 621 (740 S.E.2d 158) (2013); Brown v. State, 292 Ga. 454, 456 (738 S.E.2d 591) (2013).

[296 Ga. 515] Thompson v. State, 295 Ga. 96, 98 (757 S.E.2d 846) (2014). Appellant's challenge to his convictions is therefore without merit.[2]

Judgment affirmed. All the Justices concur.

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