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Sullins v. State

Court of Appeals of Georgia, Second Division

May 8, 2019


          MILLER, P. J., RICKMAN and REESE, JJ.

          Reese, Judge.

         A jury found Brandon Sullins guilty of committing an aggravated assault by shooting a handgun toward a woman while he was riding as a passenger in a car.[1] He appeals from the trial court's denial of his motion for new trial, arguing that the evidence was insufficient to support his conviction, that the trial court erred in denying his request for a continuance, and that his trial counsel provided ineffective assistance. For the reasons set forth, infra, we affirm.

         Viewed in the light most favorable to the jury's verdict, [2] the evidence presented at trial showed the following facts. At around 10:30 p.m. on June 12, 2016, the Appellant exchanged some text messages with an acquaintance, Terrie Mitchell. Based on the Appellant's messages, Mitchell became concerned that the Appellant was coming to her apartment and "[t]hat there were going to be problems." Mitchell asked the Appellant not to "do anything crazy because [her] kids" were with her at the Floyd County apartment she shared with her sister, Paula Gonzalez. Shortly thereafter, Mitchell and Gonzalez were standing outside of their apartment with some of their children when a car drove by slowly and they heard a gunshot coming from the vehicle. Mitchell saw the arm of the passenger in the car extending out of the window, and Gonzalez testified that she saw the passenger stick his hand out of the window and shoot a handgun toward her, Mitchell, and their children. Gonzalez also testified that the passenger who shot the gun was the Appellant.[3]

         The car sped away after the gunshot. Mitchell immediately called 911; she also texted the Appellant and asked him "why he did it." The Appellant responded that he "didn't do it."

         A neighbor also saw the vehicle drive slowly past the apartments, and she heard the gunshot. The neighbor testified that the gunshot definitely came from the vehicle and that, right after she heard the gunshot, she heard Mitchell and Gonzalez call out the Appellant's name.

         A responding police officer spoke with both Mitchell and Gonzalez, who told him that the Appellant drove by their apartment and shot at them. According to the officer, both Mitchell and Gonzalez recognized the passenger in the car as the Appellant and were "positive[ ]" that he was the shooter. The officer described Mitchell as being "real[ly] hysterical" and "showing signs that she was just scared for her life." Mitchell and Gonzalez also showed the officer the place where the Appellant was when he shot at them from the car, and another officer found a spent shell casing from a handgun on the ground at that spot.

         Following his arrest for aggravated assault, the Appellant was incarcerated in the county jail pending trial. About two weeks before the trial was set to begin, Mitchell and Gonzalez met with an investigator from the Floyd County District Attorney's Office. Mitchell and Gonzalez told the investigator that the Appellant had called one of their friends while they were sitting next to the friend. According to the investigator, Mitchell and Gonzalez overheard portions of the phone call, during which the Appellant said something that concerned them and made them feel "threatened." Based on that information, the Appellant's phone calls from the jail were monitored and recorded, and the investigator downloaded the recordings that were relevant to the instant case. Redacted versions of the recordings were played for the jury at trial.[4]

         The recordings show that, in all but one of the phone calls the Appellant made from jail between February 24 and March 2, 2017, the Appellant used other inmates' accounts to call different individuals.[5] According to the investigator, the phone call that Mitchell and Gonzalez had told him about, and which prompted him to monitor the Appellant's phone calls, occurred on February 24. During a phone call on February 25, the Appellant talked to a woman whom he had never met, and he told her his name was "Brandon Sullins" (even spelling out his last name). The Appellant told the woman, "Amber," that he had lied to his lawyer, claiming he had an alibi, and he convinced "Amber" to make up an alibi for him for the night of June 12, 2016, when the shooting in this case had occurred.[6] The Appellant also spoke to other women over the next week, and specifically asked one woman, "Crystal," to "coach" "Amber" and take her to court to tell his lawyer about the alibi. The Appellant also asked "Crystal" to go to court and provide an alibi for him.

         During another call, the Appellant said that he had tried to pay Mitchell and Gonzalez $1, 000 so they would not testify against him, but they refused because they had received subpoenas from the State. The Appellant also tried to convince his mother to help sneak money to him in the jail, but she refused, so the Appellant had another inmate convince someone to do it, instead. And, finally, in a call on February 27, the Appellant tried to call "Crystal," but an unidentified man answered the phone and, during their conversation, the Appellant admitted committing the instant crime.

         Following his conviction for aggravated assault, the Appellant filed a motion for new trial, which the trial court denied. This appeal followed.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [7] and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, we must uphold the jury's verdict.[8]

         "The standard of Jackson v. Virginia[9] is met if the evidence is sufficient for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crime charged."[10] With these guiding principles in mind, we turn now to the Appellant's specific claims of error.

         1. The Appellant contends that the State presented insufficient evidence to show that he discharged the handgun "toward" Mitchell, as alleged in the indictment.[11] He argues that the trial testimony of Mitchell and Gonzalez about what they saw during the incident was inconsistent and that their trial testimony conflicted with what they told the officer shortly after the shooting.

         The trial transcript shows, however, that Gonzalez testified at trial that the Appellant shot his handgun toward her, Mitchell, and their children, who were all standing outside the apartment.[12] To the extent that other evidence conflicted with Gonzalez's testimony, such conflicts or inconsistencies were solely for the jury to resolve.[13]

         In addition, there was circumstantial evidence to support a finding that, when the Appellant shot a handgun out the window while riding in a car outside Mitchell's apartment, he shot "toward" Mitchell.[14] Such evidence included Mitchell's testimony that she had been texting with the Appellant and that, based on his text messages, she was afraid that he was going to come to her apartment and "[t]hat there were going to be problems." Circumstantial evidence that the Appellant was shooting "toward" Mitchell also included what Mitchell and Gonzalez told the police officer minutes after the shooting and the officer's description of Mitchell's demeanor at that time.

         Thus, we conclude that there was sufficient evidence for the jury to conclude, beyond a reasonable doubt, that the Appellant discharged a handgun toward Mitchell and that he was guilty of aggravated assault, as indicted.[15]

         2. The Appellant contends that his attorneys provided ineffective assistance by their failure to raise a "best evidence" objection to the witnesses' testimony about the content of text messages he sent to Mitchell shortly before the drive-by shooting occurred. He argues that the testimony was inadmissible because the State failed to produce an original or duplicate copy of the text messages, pursuant to OCGA §§ 24-10-1002, 24-10-1003, and 24-10-1004.[16]

         In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel's performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different.[17] The criminal defendant must overcome the strong presumption that trial counsel's conduct falls within the broad range of reasonable professional conduct. [The appellate court] accept[s] the trial court's factual findings and credibility determinations unless clearly erroneous, but . . . independently appl[ies] the legal principles to the facts.[18]

         Pretermitting whether a "best evidence" objection would have had merit and whether trial counsel's failure to raise such an objection constituted deficient performance, [19] we agree with the trial court's conclusion that the Appellant has failed to show that he was prejudiced by the lack of an objection. Specifically,

[the Appellant] did not show that[, ] if trial counsel had made such objection[, ] the [S]tate could not have introduced the original [text messages] or satisfactorily accounted for their absence. [The Appellant] has thus failed to demonstrate to a reasonable probability that, but for counsel's failure to assert [a] best evidence rule objection[ ], the trial's result would have been different.[20]

         Moreover, one of his trial attorneys[21] testified during the motion for new trial hearing that, even if an objection had been raised and the testimony had been excluded, he did not think that the exclusion would have made any difference on the outcome of the trial. He also testified that he did not believe the testimony about the text messages had been "fatal" to the Appellant's ...

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