Nixon v. State

349 Ga.App. 277

826 S.E.2d 150

NIXON

v.The STATE.

A18A1446

Court of Appeals of Georgia.

March 8, 2019

Kurt Allen Worthington, for Appellant

Joshua Bradley Smith, Augusta, Natalie Spires Paine, Henry Wayne Syms Jr., for Appellee

McMillian, Judge.

Kevin D. Nixon appeals the trial court’s denial of his motion for new trial after a jury convicted him of voluntary manslaughter,¹ aggravated assault, and two counts of possession of a firearm during the commission of a crime. Nixon argues on appeal that the trial court erred in (1) finding that the evidence was sufficient to convict him of voluntary manslaughter; (2) denying his motion for directed verdict as to the aggravated assault charge; and (3) instructing the jury on aggravated assault. Finding no merit to these arguments, we affirm.

Viewed in the light most favorable to the verdict,² the evidence at trial showed that on the night of July 16, 2011, Nixon and others were attending a party in a residential neighborhood, where a large group of people were gathered in a cul-de-sac. During the evening, a fight broke out between Nixon’s brother and another attendee, Antonio Jimperson, in the driveway of a house several houses up the street from the cul-de-sac (the "House"). At one point during the fight, Jimperson looked up to see Nixon near the driveway holding a gun, and he ran. Less than a minute later, he heard gunshots. Other witnesses testified that shots were fired into the crowd from the House, and after a few moments other shooters returned fire. Police later determined that other firearms, using two other calibers of ammunition, were also fired during this exchange.

Once the gunfire began, the party attendees began running in all directions. One party guest, Naquan Henderson, was struck by a bullet as he ran away from the fight. He later died from his injuries. Octavious Davis, another guest, was watching the fight, but when he saw a man get off the ground with a gun in his hand, he began to run away. As he was running, he was shot in the back of his right shoulder. Nixon also received a through-and-through shot to his calf.

Although Nixon initially denied being involved in any fight and said that he knew he did not "pull the trigger," he eventually admitted to police that after his brother and he arrived at the party, people began coming at them and jumped them. Nixon admitted that during the fight, he found a gun on the ground, which had one round in it (he checked), and he shot it into the air. He said he only shot the gun once. Nixon said he dropped the gun when he was shot, but it was never recovered by police.

Another party attendee, Latron Sledge, testified that he did not know who was fighting or who did the shooting. However, Sledge admitted that around the time of the incident, he told police that Nixon was the shooter, identifying him from a photograph, and this statement was admitted into evidence as a prior inconsistent statement. In his earlier statement, Sledge told police that after Nixon’s brother became involved in the fight, Nixon asked where his gun was, grabbed a gun "from one of his homeboys," and then started shooting. Sledge also admitted, and his earlier statement reflects, that he told police that he was standing near the shooter when he fired multiple shots from in front of the House.

After Nixon was convicted and his motion for new trial was denied, this appeal followed.

1. Nixon asserts that this and the other evidence presented by the State was insufficient to support his convictions for voluntary manslaughter and aggravated assault. Therefore, he argues that the trial court erred: (a) in denying his motion for new trial as to his conviction for voluntary manslaughter and (b) in denying his motion for directed verdict on the charge of aggravated assault.

"The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction." Hester v. State , 282 Ga. 239, 240 (2), 647 S.E.2d 60 (2007). On appeal from the denial of a directed verdict and a jury verdict, Nixon no longer enjoys the presumption of innocence, Scott v. State , 344 Ga. App. 412, 413, 810 S.E.2d 613 (2018), and

the proper standard for review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. See Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury’s assessment of the weight and credibility of the evidence.

(Citation and punctuation omitted.) Thomas v. State , 300 Ga. 433, 436 (1), 796 S.E.2d 242 (2017). See also Hayes v. State , 292 Ga. 506, 506, 739 S.E.2d 313 (2013).

(a) Nixon argues that the trial court erred in finding that the evidence supported his conviction for voluntary manslaughter because the State failed to present evidence showing that he shot Henderson, as it failed to link Nixon to the weapon that fired the projectile later found in Henderson’s body.

Here, the State presented direct and circumstantial evidence to show that Nixon was shooting a gun the night of the party. First and foremost, Nixon admitted to shooting a gun that night in the area of the fight. Jimperson testified he looked up during the fight, saw Nixon with a gun, and began running before he heard gunshots less than a minute later. Jimperson testified he did not hear any gunshots before he saw Nixon holding the gun, and Davis testified that he first heard gunshots after he heard someone yell during the fight, "He got a gun." Sledge told police that he was standing near Nixon and saw him shoot a gun multiple times in front of the House. Although this evidence came in the form of a prior inconsistent statement, the jury was entitled to consider the statement as substantive evidence. See Terrell v. State , 300 Ga. 81, 85 (1), 793 S.E.2d 411 (2016) (prior inconsistent statements by a witness can be used at trial both to impeach the witness and as substantive evidence); OCGA § 24-8-801 (d) (1) (A). Sledge also testified at trial that the shooter was wearing a hat and a camouflage bandanna, and he told police in his earlier statement that Nixon was wearing a gray hat and a camouflage bandanna. Police found a gray hat and camouflage bandanna in the House’s driveway.

In addition, although the gun used to shoot Henderson was never recovered, a .40-caliber projectile was removed from Henderson’s body. Police found all the .40-caliber ballistic evidence at the scene only in or around the driveway of the House where Nixon admits to shooting a gun. No other .40 caliber evidence was found on the scene, and no other ballistic evidence was located in that vicinity. All the other ballistic evidence was located elsewhere: north of the House (.45 caliber casings), in the road (unspent 9 mm rounds and magazine), and in the cul-de-sac (.38 caliber casings). Therefore, all the ballistic evidence matching the projectile found in Henderson’s body was located in the vicinity where Nixon was firing a weapon. Moreover, drops of blood later identified as belonging to Nixon were found in the driveway near a .40-caliber cartridge and also by a car parked in the driveway near the gray hat and camouflage bandanna.

We find that this and other evidence at trial, though circumstantial, was sufficient to support the jury’s verdict on the voluntary manslaughter charge under OCGA § 16-5-2³ beyond a reasonable doubt. Nixon was the only person identified as shooting a gun near the ballistic evidence matching the fatal bullet, and substantial physical evidence puts him near and around that evidence. We are aware that OCGA § 24-14-6 provides that "[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." However, "unless the verdict is unsupportable as a matter of law, it is for the jury to determine whether the circumstantial evidence is sufficient to exclude every reasonable hypothesis save that of defendant’s guilt." (Citation omitted.) Murphy v. State , 272 Ga. App. 287, 289-90 (2), 612 S.E.2d 104 (2005). Therefore, "questions as to the reasonableness of a defendant’s explanation of circumstantial facts or an alternative hypothesis of events are also for the jury to resolve." Kelly v. State , 313 Ga. App. 582, 583, 722 S.E.2d 175 (2012). Accordingly, we affirm Nixon’s conviction for voluntary manslaughter.

(b) Nixon further asserts that the trial court erred in denying his motion for directed verdict on aggravated assault as charged in the indictment. The indictment charged that Nixon committed the offense of aggravated assault in that he "did make an assault upon the person of Octavious Anthony Davis, with an unknown type handgun, a deadly weapon, by shooting him, contrary to the laws of said State, the good order, peace and dignity thereof." Nixon argues that the State presented no evidence showing that he shot Davis.

As with Henderson, the State presented circumstantial evidence to establish this element of the crime as charged. Davis testified that he was about three houses down from the fight when it began, and he walked up from the cul-de-sac toward the House and sat on a car about 20 feet away.⁴ Davis was just getting off the car and standing in the middle of the street when he heard someone say "he got a gun," and he heard gunshots "right after." He ran and was across the street from the House when he got shot, standing in the street at about the third house on that side of the road. Davis told his friends he had been shot, and they got in a car and sped off. Both Davis and another man in the car testified that as they were leaving the scene, they heard more gunshots. Davis received medical treatment for his injuries, but at the...