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Clary v. State

Court of Appeals of Georgia, Second Division

February 26, 2018

CLARY
v.
THE STATE.

          MILLER, P. J., DOYLE, P. J., and REESE, J.

          DOYLE, PRESIDING JUDGE.

         Following a jury trial, Chelsea Brooke Clary was convicted of two counts of first-degree arson, [1] concealing the death of another, [2] and three counts of theft by bringing stolen property into the State.[3] Clary appeals the subsequent denial of her motion for new trial, arguing that the evidence was insufficient to support the verdict; trial counsel was ineffective; and the trial court erred by failing to give a curative instruction following improper closing argument by the State. For the reasons that follow, we affirm.

On appeal, the
appellant is no longer presumed innocent[, ] and all of the evidence is to be viewed in the light most favorable to the jury verdict. This Court does not reconsider evidence or attempt to confirm the accuracy of testimony. Assessing a witness's credibility is the responsibility of the factfinder, not this Court. Instead, we review the case to determine if the evidence, when viewed in the light most favorable to the prosecution, supports the verdict. Upon review of the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.[4]

         So viewed, the record shows that on September 28, 2014, Clary and her boyfriend, Jonathan Cann, drove from South Carolina to Elbert County, Georgia, in two separate cars. Cann drove a Kia Spectra belonging to Charles Paul Mills, whose deceased body was in the trunk wrapped in carpet. Clary followed behind driving a Dodge Ram truck containing an assault rifle and coins stolen from Charles Wayne Jackson during a burglary in South Carolina five days earlier. Cann's friend, Blair Leroy, was a passenger in the Dodge.

         During the drive, the trunk to the Kia popped open, and Leroy observed what appeared to be the underside of carpeting in the trunk. She asked Clary what was inside the trunk, and Clary told her that it was a deer. Cann stopped the Kia and closed the trunk, and the trio proceeded to Elbert County.

         Once in Elbert County, Cann pulled off the highway onto a dirt road leading into the woods. Clary followed in the truck, but she ran it into a guardrail, where it became stuck. Leroy observed Cann standing next to the Kia, which was on fire. After unsuccessfully attempting to dislodge the truck from the guardrail, Cann set the truck on fire and began walking away.

         Meanwhile, Jason Blanton, a volunteer fireman, and his son, Joseph Blanton, observed the smoke from the nearby road, and he drove into the woods to assist. When the Blantons got out to offer aid, Cann exited the truck, aimed the assault rifle at them, told them their help was not needed, and then fled into the woods with Clary.

         Police responded, where they found Mills's charred body in the trunk of the Kia. A subsequent autopsy revealed that he had died before the fire. After several hours, Clary and Cann were located in the woods, attempting to conceal themselves under leaves and branches. When she was apprehended, Clary had in her possession a backpack containing the stolen coins. While in jail, Clary gave her cell mate a hand- drawn map depicting the location of the rifle and asked her to find and dispose of the gun because Clary and Cann had used it to kill someone and did not want police to find it. Authorities ultimately confiscated the map and used it to locate the rifle, which had a serial number belonging to Jackson.

         Clary was charged with two counts of first-degree arson (Counts 1 and 7), concealing the death of another (Count 2), and four counts of theft by bringing stolen property into the State (Counts 3, 4, 5, and 6). The jury found her not guilty on Count 4, but guilty on the remaining six counts.[5] Clary filed a motion for new trial, which the trial court denied, and this appeal followed.

         1. Sufficiency of the evidence.

         (a) Arson (Count 1). Clary contends that the evidence was insufficient to support her conviction for Count 1, arson. We disagree.

Count 1 charged that Clary
did knowingly damage, by means of fire, a Kia Spectra, a motor vehicle, under such circumstances that it was reasonably foreseeable that human life might be endangered in that said accused did immolate said vehicle by use of accelerant in a wooded area adjacent to a residential neighborhood where it was foreseeable that the accused's actions could ignite a forest fire and burn down said residential neighborhood. . . .
OCGA § 16-7-60 (a) (5) provides in relevant part:
A person commits the offense of arson in the first degree when, by means of fire or explosive, . . . she knowingly damages or knowingly causes, aids, abets, advises, encourages, hires, counsels, or procures another to damage . . . [a]ny vehicle . . . under such circumstances that it ...

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