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Chavez v. State

Supreme Court of Georgia

January 13, 2020

CHAVEZ
v.
THE STATE.

          PETERSON, JUSTICE.

         Juan Rabadan Chavez appeals his convictions for malice murder, participation in criminal street gang activity, possession of a firearm during the commission of a felony, and possession of a firearm by a first-offender probationer all stemming from the shooting death of Ricardo Hernandez Ovalle.[1] Chavez challenges the sufficiency of the evidence as to his conviction for participation in criminal street gang activity and the felony murder count predicated on that felony. He also argues that his lawyers at trial were ineffective in their handling of his prior first-offender disposition and that the trial court erred by denying his motion for a mistrial based on the State's failure to disclose a witness's prior inconsistent statement. Per our usual practice of reviewing the sufficiency of the evidence in murder cases, we conclude that the evidence was sufficient to sustain all but one of Chavez's convictions; the evidence was insufficient to sustain Chavez's conviction for possession of a firearm by a first-offender probationer, and we reverse that conviction. Chavez has not shown that his trial counsel were ineffective or that the State's failure to disclose the alleged witness statement violated his constitutional rights, and so we affirm his other convictions.

         The trial evidence in the light most favorable to the verdicts showed the following. On July 23, 2015, Ovalle asked fellow Westside Locos gang member Andres Duartes[2] to give him a ride. While they were out, Duartes sold someone prescription medication at the Azalea Parks apartment complex in the Sandy Springs area of Fulton County. As Duartes began to drive out of the complex, Ovalle yelled out expletives toward someone and used the name "Joker," asked Duartes to pull over, and jumped out of the car. Duartes heard Ovalle say, "where you from," meaning what gang are you from, and, "oh, s***." Ovalle ran out of sight, at which point Duartes heard gunshots. Police who responded to the scene found Ovalle lying on the ground; he died from gunshot wounds.

         Duartes claimed that he did not see the shooter's face, but he considered the shooting to be gang-related because the name "Joker" was from a rival gang, Sox Los. Duartes also testified that Ovalle had been shot previously by a member of Sox Los. Police determined that Lionel Marron of Sandy Springs, who was in the Sox Los gang with Chavez, went by "Joker." But witnesses failed to pick Marron out of a photo array.

         Several sources, including Ovalle's girlfriend, Dakota Parmelle, identified "Chucky" as a possible culprit. Chavez went by the name "Chucky." An Azalea Parks resident who knew Chavez testified that he saw Chavez shoot Ovalle. Other witnesses picked Chavez out of a photo array with "50% certainty," although one said that the man he identified, whom he saw walking up a hill immediately after he heard gunshots, could not have fired the shots.

         Cell phone data showed that Chavez and Marron had many phone conversations on the day of the shooting, both before and after. Chavez called Marron at the same time as the initial 911 call reporting the shooting, at which point Chavez was in the vicinity of Azalea Parks and Marron was more than 15 miles away.

         No ballistics evidence was found at the scene of the shooting. Three Remington brand .38-caliber bullets were recovered from Ovalle's body during his autopsy; they all came from the same firearm. Three spent shell casings and one live round found in Chavez's room were all .38 caliber, but none was a Remington brand.

         A few days after the shooting, Chavez left his apartment in a hurry with only a backpack, telling his roommate he was going out of state. He did not return to the apartment. On March 2, 2016, more than seven months after the shooting, he was arrested reentering the United States at the Mexican border.

         Because Chavez was charged with possession of a firearm by a first-offender probationer, the trial court admitted evidence that Chavez had been sentenced to two years of probation under the First Offender Act in July 2013. The jury was presented evidence that Chavez received that disposition after he pleaded guilty to possession of cocaine, possession of a firearm during the commission of a felony, driving without a license, and failure to maintain lane.

         1. Chavez first argues that the evidence was insufficient to convict him of criminal street gang activity, as well as the felony murder count predicated on that felony. We conclude that the evidence was sufficient to convict him of criminal street gang activity, as well as malice murder and possession of a firearm during the commission of a felony.[3] But we conclude that the evidence was insufficient to sustain Chavez's conviction for possession of a firearm by a first-offender probationer.

         When evaluating the sufficiency of evidence, the proper standard of review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). We do not resolve conflicts in the evidence or determine the credibility of witnesses; instead, we view the evidence in the "light most favorable to the verdict, with deference to the jury's assessment of the weight and credibility of the evidence." Hayes v. State, 292 Ga. 506, 506 (739 S.E.2d 313) (2013) (citation and punctuation omitted). The jury's resolution of these issues "adversely to the defendant does not render the evidence insufficient." Graham v. State, 301 Ga. 675, 677 (1) (804 S.E.2d 113) (2017) (citation and punctuation omitted).

         (a) Chavez was charged with violating the Street Gang Act on the basis that, while associated with a criminal street gang, he participated in criminal gang activity through the commission of at least one of several crimes: murder, felony murder, aggravated assault with a deadly weapon, and possession of a firearm during the commission of a felony. To convict Chavez, the State had to prove beyond a reasonable doubt the existence of a "criminal street gang," that Chavez was associated with the gang, that he committed one of the offenses listed in OCGA § 16-15-3 (1), and that the commission of the predicate offense was intended to further the interests of the gang. See McGruder v. State, 303 Ga. 588, 591-592 (II) (814 S.E.2d 293) (2018). Chavez's sole argument as to the sufficiency of his criminal street gang activity conviction is that the State did not prove that Sox Los met the definition of a criminal street gang, defined in OCGA § 16-15-3 (3) as "any organization, association, or group of three or more persons associated in fact, whether formal or informal, which engages in criminal street gang activity as defined in" OCGA § 16-15-3 (1). In particular, Chavez argues that the evidence failed to show that the gang consisted of three or more members.

         The State's gang expert testified that he was familiar with the presence of the Sox Los gang in Georgia, saying that it was a "subset" of the Sureños 13 gang. He said he had "seen a few" members of the "Sureños Sox Los gang" migrate from the west coast to the South, but acknowledged he had not "seen many" and could not "say [that he had seen] more than three." He then testified that the Sox Los gang "absolutely" has more than three members. Police testified that Chavez was associated with the Sox Los gang, and the State admitted multiple photos of Chavez displaying gang signs and symbols and having tattoos representing the Sox Los gang.

         We conclude that the evidence presented was sufficient for the jury to conclude that Sox Los is a criminal street gang. Evidence that Chavez displayed signs, symbols, and tattoos of the Sox Los gang was itself evidence of that gang's existence. See OCGA § 16-15-3 (3) ("The existence of [a criminal street gang] may be established 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."). And the State's expert testified that the Sox Los gang "absolutely" has more than three members. Although Chavez points to the expert's testimony that he had not observed more than three Sox Los members in the South, the statutory definition does not require the existence of more than two members in Georgia or a particular geographic region.[4] To the extent that Chavez argues that this testimony shows the expert lacked personal knowledge when he testified that Sox Los had more than three members generally, Chavez raised no such objection to this testimony. He also has not shown that such an objection would have had merit. And even if the evidence were wrongfully admitted, such evidence may be considered in determining whether the trial evidence was sufficient to sustain a defendant's conviction. See Green v. State, 291 Ga. 287, 289 (1) (728 S.E.2d 668) (2012).

         (b) Although Chavez has not challenged the sufficiency of the evidence as to his other convictions, we have reviewed them according to our usual practice in murder cases. We conclude that the evidence was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Chavez was guilty of malice murder and possession of a firearm during the commission of a felony. But we also conclude that the ...


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