Misty Sunshine Moran appeals her convictions for crimes
related to the death of Isaias Tovar-Murillo. For the reasons
set forth below, we affirm.
Viewed in a light most favorable to upholding the jury's
verdicts, the record shows appellant and her friends
conspired to rob a taxi driver. Appellant called for a taxi
to pick her up, while her friends followed the taxi in a
Honda which was to serve as the "getaway" vehicle.
The taxi was driven by Isaias Tovar-Murillo. During the ride,
appellant pulled a gun on the victim and demanded money. When
the victim begged for his life and then attempted to exit the
vehicle, appellant shot him in the back of the head. Although
shot, the victim's foot remained on the gas pedal and the
vehicle continued to move, eventually crashing into a tree in
a wooded area off the road. Appellant exited the vehicle
before it crashed. When appellant met up with her friends
again, she tried to get them to collect any money inside the
taxi, but they refused to do so upon seeing the carnage at
the crash site. The group then decided to burglarize a home.
Later that night, appellant and one of her compatriots hid
the gun under a cement slab in appellant's driveway;
however, appellant eventually returned the gun, which was a 9
millimeter gun, to the person from whom she had borrowed it.
after the shooting, appellant confessed to a friend that she
had killed the victim and shared details of the killing,
including details that the victim had begged for his life,
was crying, and tried to escape when appellant shot him.
Appellant's friend contacted authorities. Although
appellant initially denied any involvement in the murder, she
eventually admitted to police that she was in the
victim's taxi with a gun, but she claimed the gun
discharged by accident while cradled under her arm. One of
appellant's compatriots testified that appellant told
them she shot the victim because he tried to grab the gun.
The firearm examiner testified the gun used in the shooting
was in good working order and determined it could not be
discharged without someone pulling its trigger. The firearms
examiner also confirmed that the 9mm shell casing recovered
from the taxi's backseat was fired from the gun appellant
had possessed. The medical examiner testified that the victim
died from a single gunshot to the back of the head and that
stippling at the entrance wound indicated the gun was fired
within a foot of the victim's head.
Appellant contends the evidence was insufficient to convict
her for malice murder and insufficient to prove that she was
guilty of aggravated assault (intent to kill) because there
was no evidence that she intended to kill the victim. We
[I]n Georgia, the crime of malice murder is committed when
the evidence shows either an express or, in the alternative,
an implied intent to commit an unlawful homicide. This
meaning of malice murder is consistent with the general rule
that crimes which are defined so as to require that the
defendant intentionally cause a forbidden bad result are
usually interpreted to cover one who knows that his conduct
is substantially certain to cause the result, whether or not
he desires the result to occur. Thus, a malice murder can be
shown not only by evidence that the defendant acted with the
deliberate intention unlawfully to take the life of another
human being which is manifested by external circumstances
capable of proof, but also by evidence that the defendant
acted where no considerable provocation appears and where all
the circumstances of the killing show an abandoned and
malignant heart. In other words, evidence that the defendant
acted with implied malice is, for purposes of demonstrating
[her] guilt of the crime of malice murder, no less probative
than proof that [s]he acted with a specific intent to kill.
(Citations and punctuation omitted.) Parker v.
State, 270 Ga. 256 (4) (507 S.E.2d 744) (1998). See also
OCGA §16-5-1 (b). The malice necessary to establish
malice murder may be formed in an instant, as long as it is
present at the time of the killing. See Platt v.
State, 291 Ga. 631, 633 (732 S.E.2d 75) (2012). Here,
there was evidence of malice. Appellant made admissions that
she shot the victim as he tried to escape and while he was
begging for his life. The evidence also showed appellant shot
the victim in the back of the head at a range close enough to
cause stippling to the wound. The evidence was sufficient to
authorize a rational trier of fact to find appellant guilty
beyond a reasonable doubt of malice murder, as well as the
other crimes for which she was convicted. Id. at
634; Jackson v. Virginia, 443 U.S. 307 (99 S.Ct.
2781, 61 L.Ed.2d 560) (1979).
trial, the trial court admitted into evidence photographs of
text messages on appellant's cell phone. A law
enforcement officer testified she obtained the cell phone
from appellant's probation officer and took pictures of
the text messages. After the officer testified, the State
moved to admit the photographs and the following colloquy
THE COURT: Any objection?
[DEFENSE COUNSEL]: I don't have any objection based on
the foundation for the photograph[s]. But I would reserve
perhaps as it relates to how -- whether or not they legally
came into possession of her cell phone.
trial court admitted the photographs without any further
discussion. Pretermitting whether defense counsel's
comment constituted a valid objection, appellant has failed
to show her cell phone was obtained unlawfully.
initial matter, the record is silent as to how
appellant's probation officer came to be in possession of
appellant's cell phone and appellant made no proffer that
his possession of the cell phone was unlawful. Furthermore,
the record shows that at the time the crimes occurred and
during the investigation, appellant was on probation for a
2006 offense. As a condition of her probated sentence,
appellant had executed a Fourth Amendment waiver whereby she
agreed to be subject to warrantless searches during the term
of her probation. The United States Supreme Court has held
that probationers do not enjoy the "absolute"
liberty afforded to other citizens. United States v.
Knights, 534 U.S. 112, 119 (122 S.Ct. 587, 151 L.Ed.2d
497) (2001). As such, a probationer may be subject to a
warrantless search if there is reasonable suspicion of
criminal activity. Id. at 121. "The degree of
individualized suspicion required of a search is a
determination of when there is a sufficiently high
probability that criminal conduct is occurring to make the
intrusion on the individual's privacy interest
reasonable." Id. Here, at the time authorities
were examining appellant's cell phone, there was
reasonable suspicion that appellant was involved in a murder.
Under the circumstances, we cannot say the trial court erred
when it admitted the photographs at issue.