[Copyrighted Material Omitted]
Gang activity. Whitfield Superior Court. Before Judge Blevins.
Michael R. McCarthy, J. Chris Matthews, for appellant (case no. A14A1783).
Tyler R. Conklin, James C. Bonner, Jr., for appellant (case no. A14A2023).
Herbert M. Poston, Jr., District Attorney, Susan L. Franklin, J. Scott Helton, G. Jason Souther, Assistant District Attorneys, for appellee.
Barnes, Presiding Judge.
Antonio Jesus Zamudio and Carlos Gonzalez were jointly indicted, tried, and convicted of attempted murder, aggravated assault, aggravated battery, and a violation of the Georgia Street Gang Terrorism and Prevention Act, OCGA § 16-15-1 et seq. The attempted murder, aggravated assault, and aggravated battery charges served as the predicate offenses for the criminal street gang count pursuant to OCGA § 16-15-4 (a), which makes it " unlawful for any person employed [332 Ga.App. 38] 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 Code Section 16-15-3." Both men appeal the denial of their respective motions for new trial, asserting that the evidence was insufficient to affirm the gang activity convictions.
Zamudio also contends that the indictment for aggravated assault was void and that the trial court erred in denying his motion to sever, in admitting testimony about pictures seen on the Internet, in failing to give his requested charge on simple assault, and in merging the aggravated battery conviction into the attempted murder conviction instead of vice versa. We conclude that the evidence was sufficient and find no merit in any of Zamudio's enumerations of error except as to the merger issue. Thus, we affirm the judgments of conviction in both cases. We agree with Zamudio, however, that the trial court erred in merging his aggravated battery conviction into his attempted murder conviction, and thus vacate both appellants' sentences in part and remand their cases for resentencing.
1. Construed in the light most favorable to the verdict, the evidence at trial established that Gonzalez, Zamudio, and the victim grew up in a neighborhood that was known to be the territory of a local street gang, the Surenos 13. The victim moved in 2009 to a neighborhood called " Little Mexico," which was known to be the territory of a rival gang, the Tiny Winos. Zamudio and Rosalio Jacobo went to the victim's house in April 2011, called him out, and asked him to " hang out" with them, but the victim said no and went back inside his house. Zamudio and Jacobo were not happy about the victim's response, which Zamudio described as " messed up."
A few days later, Zamudio called the victim, who knew it was Zamudio calling from the caller I.D. and declined to answer. The victim walked outside around 1:00 a.m. to smoke a cigarette, and Zamudio, Gonzalez, and Jacobo approached his porch, calling for the victim to come out to them. The victim " had a bad feeling," but they said a mutual friend was with them and wanted to talk. The victim had not seen the friend in about two years, so he came down from his porch to say hello. The friend and victim shook hands and had friendly conversation, then Gonzalez approached the victim saying " gang stuff" about " Sur 13" and arguing about Surenos and Winos. Gonzalez said he thought the victim wanted to call the police and get him in trouble, and then Gonzalez punched the victim. The victim knocked Gonzalez down, and their mutual friend pulled them apart. The friend thought the fight was over and got in his car to leave.
Zamudio told the victim that he had changed and should not " be like how he was on Friday and stuff" because they had grown up [332 Ga.App. 39] together. Gonzalez ran up and punched the victim again, and as they struggled, Zamudio joined in, kicking the victim two or three times. The friend saw that the fight had re-ignited and returned to the scene, because it was no longer one-on-one since Zamudio had joined Gonzalez in fighting the victim.
The victim testified that after he knocked Gonzalez down the second time, Gonzalez got up and said he had a gun, but the victim's glasses had been knocked off so he could not see what was in Gonzalez's hand. Someone else said " no, no" in response to Gonzalez's threat about the gun, then Zamudio handed Gonzalez a box cutter and Gonzalez slashed the victim's throat. After Gonzalez cut the victim's throat, the victim wrestled the cutter away and tried to toss it, but Zamudio got on top of the victim, took the cutter away, and gave it back to Gonzalez. After the fight ended, the friend saw Gonzalez " reach down into his pant leg," retrieve the box cutter, and put it in his sock. Jacobo saw something drop and heard a " metal kind of sound." The friend gave the victim his shirt, told him to wrap it around his neck, and drove him to the hospital, where the victim received multiple stitches to close the wound in his neck.
Although neither Zamudio nor Gonzalez challenges the sufficiency of the evidence as to the charges of attempted murder, aggravated assault, and aggravated battery, we conclude that the evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that they were guilty of those crimes. Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
2. Zamudio and Gonzalez do challenge the sufficiency of the evidence as to their conviction for gang activity. The indictment charged them with the offense of
participation in criminal gang activity for that said accused ... did, being associated with a criminal street gang, to wit: Surenos 13, participate in criminal gang activity through the commission of ... a criminal offense ... that involves violence, to wit: aggravated assault, aggravated battery, battery and simple battery when said accused possessed a cutting device in the presence of [the victim], cut [the victim's] neck, grabbed [the victim] and struck [the victim], contrary to the laws of said State, the good order, peace and dignity thereof.
To prove that Gonzalez and Zamudio violated the Street Gang Act as charged, the State was required to show three things: (1) that they were, in fact, associated with a " criminal gang," (2) that they [332 Ga.App. 40] committed a predicate act of " criminal gang activity," namely the aggravated assault, aggravated battery, battery, and simple battery upon the victim, and (3) that the commission of the predicate act was intended to further the interests of the " criminal gang." See Rodriguez v. State, 284 Ga. 803, 806-807 (1) (671 S.E.2d 497) (2009). See also OCGA § 16-15-4 (a).
While Gonzalez admitted being a member of Surenos 13, he argues that the State failed to prove that his assault on the victim was intended to further the interests of the gang. Zamudio argues the evidence was insufficient to prove he was even associated with Surenos 13.
OCGA § 16-15-3 (2) defines " criminal street gang" as " any organization, association, or group of three or more persons [that] engages in criminal gang activity" as defined by subsection (1) of the statute. " Criminal gang activity" includes the commission or attempted commission of certain offenses, including any crime " that involves violence, possession of a weapon, or use of a weapon." OCGA § 16-15-3 (1) (J). Finally, OCGA § 16-15-4 (a) makes it unlawful to participate in criminal gang activity through the commission of any of the offenses listed in OCGA § 16-15-3 (1), which include racketeering, stalking, rape, aggravated sodomy, possessing or distributing dangerous instrumentalities such as knives and guns, posting gang-related graffiti, or committing any criminal offense involving violence or the possession or use of a weapon, among other things.
The State may prove the existence of a criminal gang " by evidence of a common name or common identifying signs, symbols, tattoos, graffiti, or attire or other distinguishing characteristics, including, but not limited to, common activities, customs, or behaviors." OCGA § 16-15-3 (2). A detective assigned to the Conasauga Safe Streets Task Force, operated by the FBI to control gang activity in the area, testified both as an expert on gang recognition and as to the facts he uncovered through his ...