Carter v. State

305 Ga. 863

828 S.E.2d 317

CARTER

v.The STATE.

S19A0409

Supreme Court of Georgia.

Decided: May 20, 2019

Brandon A. Bullard, GEORGIA PUBLIC DEFENDER COUNCIL, 104 Marietta Street, NW, Suite 600, Atlanta, Georgia 30303, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Ashleigh Dene Headrick, Christopher M. Carr, Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Paul L. Howard, Jr., District Attorney, Lyndsey Hurst Rudder, Deputy D.A., Stephany Julissa Luttrell, A.D.A., FULTON COUNTY DISTRICT ATTORNEY'S OFFICE, 136 Pryor Street, S.W., 4th Floor Atlanta, Georgia 30303, for Appellee.

Warren, Justice.

Jehaziel Carter was convicted of malice murder, financial-transaction card fraud, and other crimes in connection with the shooting death of Eric Chepkuto.¹ On appeal, Carter contends that the evidence was insufficient to sustain his convictions, and in particular that the evidence was insufficient to support his conviction for financial-transaction card fraud. For the reasons described below in Division 3, we reverse Carter’s conviction for financial-transaction card fraud. But because the evidence was legally sufficient to support the jury’s guilty verdicts on the other counts, we affirm Carter’s remaining convictions.

1. Viewed in the light most favorable to the jury’s verdicts, the evidence presented at Carter’s trial showed that Chepkuto lived with his wife, Katina Stoudemire, in a one-bedroom apartment in Fulton County. Stoudemire worked a night laundry shift at a nearby motel from 11:00 p.m. to 7:00 a.m. and usually left the apartment at 10:30 p.m. On December 27, 2013, Stoudemire went about this schedule as usual and left for work around 10:30 p.m. Shortly before then, however, Carter texted Chepkuto "Wussuup."² Chepkuto did not respond, but Carter texted again at 12:06 a.m. The following texts were exchanged from 12:06 a.m. to 12:30 a.m.:

Carter: "Wana see me tonight"

Carter: "Whatever u want"

Chepkuto: "I want to f**k"

Carter: "Ok...Can you host? ?"

Chepkuto: "Yeah"

Carter: "What’s you address I got the car I’ll come now"

Chepkuto: "I got scared by what you were carrying last time."

Carter: "Lol oh na that’s my bros I don’t have it no more he sold it"

Chepkuto: "Y[ou] sure?"

Carter: "My word"

Chepkuto: "8101 colquitt road. Text me when you get to the gate."

Carter: "Omw" [on my way]

Carter: "I’m here"

Carter: "Which door? ?"

At 12:41, 2:19, 2:23, and 2:48 a.m., calls were made from Chepkuto’s cell phone to Bank of America, which was the bank associated with his debit card. Cell-tower data indicated that the 12:41 a.m. call was placed from a location close to Chepkuto’s apartment, while the latter three were placed from a location near the residence where Carter was staying. Bank records and other evidence show that five attempts were made—at 3:11, 3:59, 4:00, 4:03, and 4:05 a.m.—to use the account number associated with Chepkuto’s debit card to place one or more orders with Guitar Center. The order attempted at 3:11 a.m. was for the purchase of a microphone that cost $ 3,874.98; it used Carter’s e-mail address, and specified that the microphone was to be delivered to the address of the mother of Carter’s child.

Stoudemire returned home around 8:00 a.m. and found Chepkuto dead and lying naked on his side next to their bed, which she said had been turned the wrong way and had the sheets taken off. She quickly left the apartment and called 911. When police responded, Stoudemire was "very frantic." Investigators found no sign of forced entry, and a TV and laptop in the apartment had not been taken. Notably, however, neither Chepkuto’s work phone nor personal cell phone were found. An opened box of three condoms was in the room; two were unopened, and the third wrapper was opened, but the condom was not found. Stoudemire testified that she and Chepkuto did not use condoms, that none were kept in their apartment, and that they were trying to conceive children. A 9mm shell casing was found on the floor, and a bullet was found beside the bed in a location consistent with having ricocheted off the wall, where it left a mark. Carter’s fingerprints were not found anywhere in the room, but his DNA was a match for saliva found on Chepkuto’s penis.

Chepkuto died of a gunshot to his face. The placement of his body and blood-spatter patterns found on the wall indicated that he had been shot while seated at the edge of the bed.

A review of Chepkuto’s cell phone and bank records led police to Carter, who was unemployed and living with his cousin at the time. Carter slept on a couch in his cousin’s living room, and his few possessions included a backpack, laptop, and cell phone. When police arrested Carter and later searched his cousin’s house, they found Chepkuto’s work phone behind the couch where Carter slept. Carter’s backpack contained paperwork and other items belonging to Carter, as well as ammunition and a gun—a Helwan 9mm—that was later determined to have fired the bullet that killed Chepkuto. Examination of Carter’s cell phone revealed internet searches about the functionality of a Helwan 9mm gun, including how to eject its magazine. Carter’s cell phone also showed that he searched for Chepkuto’s phone number around the same time that he first texted Chepkuto on December 27, 2013.

2. Carter contends that the evidence was insufficient to support his convictions. Specifically, he contends that the evidence presented at trial was only circumstantial and that it failed to exclude every reasonable hypothesis except his guilt. With the exception of Carter’s conviction for financial-transaction card fraud, which we address separately in Division 3, we disagree that the evidence was insufficient to support Carter’s convictions and therefore affirm them.

When evaluating a challenge to the sufficiency of the evidence, we view the evidence presented at trial in the light most favorable to the verdicts and ask whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the crimes of which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Our review leaves to the jury the resolution of conflicts or inconsistencies in the evidence, credibility of witnesses, and reasonable inferences to be made from the evidence. See id. ; Menzies v. State , 304 Ga. 156, 160, 816 S.E.2d 638 (2018). " ‘As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.’ " Williams v. State , 287 Ga. 199, 200, 695 S.E.2d 246 (2010) (citation omitted).

According to Carter, the evidence presented at trial showed only that Carter and Chepkuto had a sexual encounter and that Chepkuto was found dead the next morning. He contends that the evidence did not show what happened in the intervening hours; that his fingerprints were not found in Chepkuto’s apartment or on the gun; that nobody in the neighborhood saw or heard anything; and that the State did not present evidence that he had a motive to kill Chepkuto. But Carter’s argument ignores the strong circumstantial evidence of the crimes he committed, and "[t]he fact that the evidence of guilt was circumstantial does not render it insufficient." Brown v. State , 304 Ga. 435, 437, 819 S.E.2d 14 (2018).

Moreover, the fact of Carter’s sexual encounter with Chepkuto is not the totality of the evidence against Carter. To that end, the text messages between Carter and Chepkuto and Carter’s saliva on Chepkuto’s penis showed that Carter was actually in Chepkuto’s apartment around the time of Chepkuto’s death. See Winston v. State , 303 Ga. 604, 607, 814 S.E.2d 408 (2018) (circumstantial evidence supporting murder conviction included evidence that the defendant was "the last person known to be with the victim at the time the killing took place"); Phillips v. State , 287 Ga. 560, 561, 697 S.E.2d 818 (2010) (circumstantial evidence supporting murder conviction included an admission that placed the defendant at the victim’s "home within, at most, a very few hours of the death"). The evidence also revealed that calls were made from Chepkuto’s personal cell phone on the night of his death—and showed the general locations from which those calls were made—in ways that implicated Carter. Notably, 12 minutes after Carter texted Chepkuto about his arrival at Chepkuto’s apartment, a call from Chepkuto’s personal cell phone to the customer service number of Chepkuto’s bank pinged off a cell tower near Chepkuto’s apartment complex. Less than two hours later, three more calls from Chepkuto’s cell phone to the same bank pinged off a tower near the residence where Carter was staying. See Winston , 303 Ga. at 607, 814 S.E.2d 408 (circumstantial evidence of murder included that "[t]he victim’s cell phone continued to ping after his death in neighborhoods surrounding the crime scene and in Atlanta, where [the defendant] told police he went that afternoon"). Moreover, Chepkuto’s debit card and billing information were used in attempts to order items online, but the email and shipping addresses used for at least one attempted order were connected to Carter. See Benson v. State , 294 Ga. 618, 619, 621, 754 S.E.2d 23 (2014) (circumstantial evidence supporting murder conviction included attempted use of the victim’s credit card at the defendant’s business); Johnson v. State , 288 Ga. 771, 774, 707 S.E.2d 92 (2011) (circumstantial evidence supporting murder conviction included the defendant’s use of the victim’s debit card...