Thelusma v. State

356 Ga.App. 495

847 S.E.2d 852

THELUSMA

v.The STATE.

A20A1076

Court of Appeals of Georgia.

August 27, 2020

Jason Hansol Kang, for Appellant.

Layla Hinton Zon, Jillian Rachael Hall, for Appellee.

Per Curiam.

A jury found Jafney Thelusma guilty of three counts of violating the Street Gang and Terrorism Prevention Act (Counts 3-5) and one count each of fleeing or attempting to elude an officer (Count 6), theft by receiving stolen property (Count 7), possession of a firearm by a first offender probationer (Count 8), discharging a gun near a highway or street (Count 9), and driving with a suspended license (Count 10).¹ The trial court entered a written sentence on these convictions, and Thelusma moved for a new trial. The trial court denied the motion as to Counts 6 and 9-10, but granted it as to Counts 3-5 and 7-8. The trial court also entered an order of nolle prosequi as to Counts 3-5 and 7-8. Thelusma filed an appeal, but this Court dismissed it as interlocutory because the trial court had not entered a new sentencing order.² The trial court subsequently entered a new sentencing order, and the appeal has now been redocketed.

On appeal, Thelusma argues that the evidence was insufficient to support his convictions on Counts 6 and 9-10, and that the trial court erred in resentencing him. For the following reasons, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury's verdict, and the defendant no longer enjoys a presumption of innocence; moreover, this Court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court. As long as there is some evidence, even though contradicted, to support each necessary element of the state's case, this Court will uphold the jury's verdict.³

Here, the evidence at trial showed that around 8:00 or 8:30 p.m. on August 17, 2012, Thelusma was driving his vehicle in an apartment complex when he engaged in a dispute with Josteen Mosley, the security guard for the complex. Several witnesses testified that Thelusma fired gunshots as he was driving away from Mosley at the exit of the apartment complex. However, Thelusma testified that: Mosley threatened him and pointed a gun in his face; he heard gunshots as Mosley was heading away from him; and he only fired his gun into the air in self-defense.

Nearby police officers, including Deputy Matthew Holbrook of the Newton County Sheriff's Department, observed or heard the gunshots, and multiple police cars immediately began pursuing Thelusma with blue lights and sirens activated. Thelusma fled from the officers — reaching speeds of approximately 90 miles per hour in a residential neighborhood with a speed limit of 25 miles per hour — before wrecking the vehicle and fleeing on foot. Although Thelusma subsequently reported that his vehicle had been stolen, he admitted at trial that he was driving. Thelusma testified that he did not know police officers were pursuing him, and he believed Mosley had placed a portable siren on his own vehicle and was pursuing Thelusma.

1. Thelusma argues that the evidence was insufficient to support his convictions. We disagree.

(a) Regarding his conviction on Count 6 for fleeing or attempting to elude an officer, Thelusma argues that the State did not prove Deputy Holbrook's uniform prominently displayed his badge of office and that his vehicle was appropriately marked as an official police vehicle. However, the evidence belies this argument.

OCGA § 40-6-395 (a) provides:

It shall be unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such signal shall be in uniform prominently displaying his or her badge of office, and his or her vehicle shall be appropriately marked showing it to be an official police vehicle.

In Cook v. State ,⁴ the defendant challenged his conviction for fleeing or attempting to elude an officer by arguing that the State failed to show the pursuing officer was in uniform and driving an appropriately marked vehicle. This Court held that the evidence supported the conviction, because the officer testified that he was in his patrol car when he signaled the defendant to stop and that he activated his blue lights and siren, and because there was no suggestion that the officer was not in uniform in an appropriately marked vehicle.⁵ This Court explained that the object of OCGA § 40-6-395 (a) is to

ensure the offense of "attempting to elude" is not found unless the evidence allows a rational jury to conclude beyond a reasonable doubt that the person fleeing could not reasonably mistake the pursuing police car for something else.... When the evidence shows that the officer was on patrol and in his patrol car and had his blue light flashing and siren sounding, the jury may rationally conclude the elements of the code section are proved beyond a reasonable doubt.⁶

Here, Deputy Holbrook testified that at the time he heard the gunshots at the apartment complex, saw Thelusma's vehicle, and began to pursue Thelusma, he was on duty and responding to an incident across the street from the complex. Other witnesses testified that Holbrook was in a patrol car, and Holbrook testified that he activated his blue lights and siren during the pursuit. Two other patrol cars joined in the pursuit with lights and sirens activated. Under these facts, the jury was authorized to find that Thelusma was aware he was fleeing from police and was therefore guilty of fleeing or attempting to elude.⁷

(b) Regarding his conviction on Count 9 for discharging a gun near a highway or street, Thelusma argues that the evidence showed he had legal justification to fire his gun because he acted in self-defense while responding to Mosley pointing a gun in his face and the sound of gunshots. However, the evidence supports this conviction.

Multiple witnesses, including the security guard Mosley, testified that only Thelusma fired shots during the dispute and that Mosley did not brandish his gun or threaten Thelusma. In addition, the only shell casings discovered at the scene matched ammunition recovered from Thelusma's gun. The jury was entitled to credit this testimony and evidence over Thelusma's claim that he acted in self-defense because "[w]itness credibility is to be determined by the jury, as is the question of self-defense when there is conflicting evidence on the issue."⁸ Similarly, "the existence of justification [is] for the jury to determine, and it is free to reject a defendant's claim that he acted in self-defense."⁹ Accordingly, the evidence supports this conviction.

(c) Regarding his conviction on Count 10 for driving with a suspended license, Thelusma argues that the State did not prove the road he drove upon outside of the apartment complex was an improper road for him under the conditions of his suspended or limited license. Once again, the evidence supports this conviction.

"In order to establish the offense of driving with a suspended license, the State must show that the accused was driving, that his license was suspended, and that the accused had received actual or legal notice of the suspension."¹⁰ Here, Thelusma admitted that at the time of the incident his driver's license was suspended and that he was driving to the apartment complex to pick up a friend; and other evidence showed he received notice that under the conditions of his suspended or limited license, he was only allowed to drive to and from work and in other limited situations, which did not include picking up a friend. During closing argument Thelusma's attorney essentially conceded that Thelusma had been driving on a suspended license. Thus, the jury was authorized to find that Thelusma drove with a suspended license.¹¹

2. In 2015, the trial court entered Thelusma's original sentence of fifteen years, with five years to serve in prison and the remaining ten years on probation. All sentences ran concurrently. After the trial court granted Thelusma's motion for new trial as to several charges and entered orders of nolle prosequi on those charges, this Court dismissed his subsequent appeal as interlocutory and directed the trial court to enter a new written sentence.¹² Following a resentencing hearing, the trial court sentenced Thelusma to a total of three years with one year to serve in prison. Specifically, the court sentenced Thelusma to one year in prison for fleeing or attempting to elude an officer (Count 6), one year of probation for discharging a gun near a highway or street (Count 9), and one year of probation for driving with a suspended license (Count 10), with all sentences to run consecutively.

On appeal, Thelusma argues that the trial court erred in resentencing him because he had already begun serving his original sentence. He also argues that this Court's order dismissing his prior appeal limited the trial court to reentering its original sentence with regard to Counts 6, 9, and 10, and that the trial court improperly increased his sentence at resentencing.

With regard to the trial court's authority to resentence, a trial court has...