Thompson v. State

897 S.E.2d 505

THOMPSON

v.The STATE.

A23A1429

Court of Appeals of Georgia.

January 22, 2024

Charles Henry Frier, Smyrna, for Appellant.

Fani T. Willis, Atlanta, Burke Olivia Doherty, Appellee.

Watkins, Judge.

[1] Jason Thompson seeks reversal of the denial of his amended motion for new trial following his conviction for several charges resulting from his act of shooting his ex-girlfriend in her head. Thompson argues that the evidence was insufficient to sustain most of his convictions, that the trial court erred in charging the jury, and that he received ineffective assistance of trial counsel. For the reasons that follow, we discern no error, and we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor determine witness credibility, which are tasks that fall within the exclusive province of the jury, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.¹

So viewed, the evidence shows that Thompson and the victim were in a volatile on-again-off-again relationship for years. The victim specifically described her relationship with Thompson as ‘‘toxic" and "violent," while even Thompson described it as "toxic" and "intense." In fact, the victim told a friend at one point that she was too scared to leave Thompson. As we discuss in more detail below, Thompson was violent towards the victim on several occasions.

The violence against the victim culminated on June 4, 2013. At that time, Thompson was living with the victim, but she had expressed to him that she wanted him to move out. Thompson was not financially contributing to household expenses and, as a result, the victim had to obtain a title loan to pay her bills. After receiving the funds from the title loan, the victim called Thompson, who was at her house, to request her bank account number so that she could deposit the money. Thompson refused to provide the information and instead insisted that she come home.

Once the victim returned home, Thompson had her sit on the couch. Thompson started yelling at the victim that he was tired of her blaming everything on him, and he pulled out a gun. Afraid that Thompson would strike her with the gun, the victim covered her face with a pillow from the couch. Then the victim felt Thompson pointing the gun to her left temple. Using the pillow, the victim tried to move the gun away from her head. Thompson then yelled at her "look at me." Once Thompson took the gun away from her head, the victim looked at him. Then Thompson put the gun in his mouth, and the victim closed her eyes and covered her face with the couch pillow. Thompson took the gun out of his mouth and the victim grabbed at the barrel of the gun, but Thompson shot the victim in the head.

The victim never lost consciousness, but she was unable to speak after being shot. The victim thought to herself, "he finally got me, that son of a b*tch got me." Thompson called 911 and the victim was taken to the hospital. Because she was unable to speak, officers who met her at the hospital had to communicate with her by having her blink and squeeze their hands. At the time of trial the bullet was still in the victim’s brain, and, as a result of her injuries, the victim had to relearn how to do many life skills, including talking. After being shot she also suffered from epilepsy and could not be left alone in case she had a seizure.

Thompson was indicted on charges of attempted murder, aggravated battery family violence, aggravated assault family violence, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. A jury found Thompson guilty of all charges, except for possession of a firearm by a convicted felon, to which Thompson pled guilty. At sentencing, the trial court merged Thompson’s convictions for aggravated battery and aggravated assault into his conviction for attempted murder. Following the trial court’s denial of his amended motion for new trial, Thompson appealed.

1. Thompson first argues that the evidence was insufficient to sustain his conviction for attempted murder of the victim. We disagree.

[2–4] Georgia law provides that "[a] person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being."² "Express malice is that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart."³ " ‘[I]mplied malice,’ as employed in OCGA § 16-5-1 (b), is a term which has been defined to mean conduct exhibiting a reckless disregard for human life."⁴ Specifically, the Supreme Court of Georgia has held that

extremely negligent conduct, which creates what a reasonable man would realize to be not only an unjustifiable but also a very high degree of risk of death or serious bodily injury to another or to others – though unaccompanied by any intent to kill or do serious bodily injury – and which actually causes the death of another, may constitute murder. Reckless disregard for human life may be the equivalent of a specific intent to kill. Evidence that the defendant acted in reckless disregard for human life is, for purposes of demonstrating his guilt of the crime of malice murder, as equally probative as evidence that he acted with a specific intent to kill.⁵

Moreover, "[a] person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime."⁶ Intentionally shooting someone can be a substantial step toward the commission of the crime of murder.⁷

When evaluating the sufficiency of evidence as a matter of due process under the Fourteenth Amendment to the United States Constitution, the proper standard of review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. [The reviewing court] views 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.⁸

[5] Thompson contends that the evidence presented at trial did not demonstrate beyond a reasonable doubt that he intended to shoot the victim as opposed to her accidentally being shot during a struggle over the gun when he attempted to take his own life. We hold, however, that there was sufficient evidence from which the jury could find express or implied malice to kill the victim.⁹ With regard to express malice, the record contains extensive evidence of Thompson’s prior intentional acts of violence against the victim.

For example, one of the victim’s friends testified that she heard Thompson threaten to kill the victim over the phone and tell the victim that he wished she was dead. Also, the victim and a mutual friend testified about a disturbing incident in 2012. Thompson invited a mutual male friend over to the victim’s house, but when Thompson arrived, severely intoxicated, and found the male friend there, he became enraged and tried to fight the friend after accusing the victim of cheating with this friend. Thompson lunged at the victim and had to be physically restrained by another person. As Thompson was being forcibly removed from the victim’s residence, he punched a hole in the hallway, but when he returned a while later, he was angry that the male friend was still at her house. Thompson threw his motorcycle helmet at the victim, which struck her in the face and then bounced off a window sill. The helmet then struck the victim’s dog who was sitting in her lap, splitting the dog’s head open severely enough that the victim could see the dog’s brain. Despite the victim taking the dog immediately to an emergency veterinarian, the dog died of this injury. Thompson largely corroborated the victim’s and the friend’s accounts of this incident.

[6] The victim also testified that a few months before the shooting she told Thompson to leave her home, and he responded by pinning her down, holding her by her neck, and choking her. Based on this extensive history of intentional violence directed at the victim, the jury would have been authorized to find actual malicious intent to kill the victim.¹⁰

[7] Moreover, there was sufficient evidence for the jury to infer malice as well. Both the victim and Thompson agree that he waved a loaded and cocked weapon close to her head. This is "extremely negligent" conduct which carried "a very high degree of risk of death or serious bodily injury" to the victim even if it was "unaccompanied by any intent to kill or do serious bodily injury[.]"¹¹ Accordingly, the evidence was sufficient to sustain Thompson’s conviction for attempted murder.¹²

[8] 2. In three claims of error, Thompson contends that his convictions for aggravated battery and aggravated assault must be reversed and that the trial court incorrectly charged the jury as to aggravated battery. These claims of error are moot.

The jury found Thompson guilty of attempted murder, aggravated battery family violence, and aggravated assault family violence; however, the trial court merged the battery and assault convictions into the attempted murder conviction for purposes of sentencing. We have affirmed Thompson’s attempted murder conviction; accordingly, Thompson’s claims of error with regard to his merged battery and assault convictions are moot.¹³

[9] 3. Thompson contends that his conviction for possession of a firearm during the commission of a felony cannot stand. This argument was waived by Thompson’s failure to raise it in the trial court.

Thompson was indicted for possession...