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HAYES v. STATE

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Supreme Court of Georgia.

HAYES v. The STATE.

No. S15A1511.

Decided: January 19, 2016

Adam Marshall Hames, The Hames Law Firm, LLC, Atlanta, David Joseph Koontz, Austell, for Hayes. Patricia B. Attaway Burton, Paula Khristian Smith, Senior A.A.G., Samuel S. Olens, A.G., Jason Matthew Rea, Department of Law, Jesse David Evans, Benjamin M. First, Amelia G. Pray, A.D.A., D. Victor Reynolds, D.A., for the State.

David O. Hayes was tried by a Cobb County jury and convicted of the murder of Justin Brown, among other crimes. Hayes appeals, contending only that the evidence is legally insufficient to sustain his convictions. Upon our review of the record and briefs, we see no error, and we affirm.1

Hayes claims that the evidence is legally insufficient to sustain his convictions for felony murder in the commission of an aggravated assault upon Brown, the aggravated assaults of Scott Keller and Josh Washington, and violation of the Georgia Street Gang Terrorism and Prevention Act, OCGA § 16–15–1 et seq.2 Viewed in the light most favorable to the verdict, the evidence shows that on the evening of August 1, 2007, Hayes, Miracle Nwakanma, Louis Francis, Muhammad Abdus–Salaam, and Milton Blackledge made plans to rob Dylan Wattecamps. Early on the morning of August 2, Hayes gave Nwakanma a .380 caliber pistol (which Nwakanma later gave to Francis), and Blackledge drove Nwakanma, Francis, and Abdus–Salaam to the gated apartment complex in which Wattecamps lived. Hayes drove there separately in his pickup truck, arranged entry for the other four men through a resident he knew, parked his truck across the street from the entry gate, and waited there while the others entered the apartment complex.

Wattecamps was having a party in his third-floor apartment, and as Blackledge and his three passengers were preparing to enter the apartment, a guest came out, and Blackledge hit him in the face. The four men then ran down the stairs and through the parking lot, pursued by Wattecamps and several of his guests. Brown, Keller, and Washington, who had just parked and were walking to the party, heard Wattecamps yell “get them,” and began to chase the four men. Blackledge and Francis then fired several shots at their pursuers, one of which fatally wounded Brown in the chest. Nwakanma, Francis, Blackledge, and Abdus–Salaam climbed over the apartment complex fence and hurried into Hayes's truck. Both Francis and Blackledge claimed to have shot Brown, and Hayes drove everyone to Abdus–Salaam's apartment. Six matching .380 caliber shell casings and three .380 caliber projectiles, including the one that entered Brown's chest, were recovered. All of the shell casings came from the same gun, and two of the projectiles, including the one that killed Brown, were fired from the same pistol. We previously considered the evidence in this case when we heard appeals by Nwankanma and Francis, whose convictions were affirmed. See Nwakanma v. State, 296 Ga. 493, 494–495(1), 768 S.E.2d 503 (2015). We now consider this evidence anew with respect to Hayes.

(a) Hayes first argues that the evidence does not demonstrate that “MPRC 300” was a “criminal street gang,” as alleged in the count of the indictment that charged a violation of the Street Gang Act. In Nwakanma, we indicated that the evidence, when viewed in the light most favorable to the verdict, shows that Hayes and his four co-defendants were associated with “a criminal street gang known as ‘MPRC 300.’ “3 296 Ga. at 494(1), 768 S.E.2d 503. And our current review of the evidence, viewed in the same light, confirms that “MPRC 300” was a “criminal street gang.” The term “criminal street gang” is defined in OCGA § 16–15–3(2) as “any organization, association, or group of three or more persons associated in fact, whether formal or informal, which engages in criminal gang activity as defined in paragraph (1) of this Code section,” which includes “the commission, attempted commission, conspiracy to commit, or solicitation, coercion, or intimidation of another person to commit ․ [a]ny criminal offense in the State of Georgia ․ that involves violence, possession of a weapon, or use of a weapon․” OCGA § 16–15–3(1)(J).

Hayes claims that the only association among him and his co-defendants was their participation in the underlying crimes and that there is no evidence that any three or more of them had engaged in any other criminal gang activity. But as the Street Gang Act indicates, evidence of their conspiracy to commit armed robbery was proof of their existing, ongoing criminal activity. See Rodriguez v. State, 284 Ga. 803, 806(1), 671 S.E.2d 497 (2009) (“the phrase ‘criminal gang activity’ is itself broader than the commission of an enumerated offense and includes the unlawful procurement of the offense”); id. at 809(2), 671 S.E.2d 497 (“although the ‘criminal street gang’ may have existed for a short time, its ‘criminal gang activity’ or plans for continuation of that activity must be ongoing at the time of the defendant's commission of an enumerated offense”); State v. Hood, 307 Ga.App. 439, 442–443(1), 706 S.E.2d 566 (2010). And the evidence in this case, including expert testimony about gangs,4 shows that the abbreviation “MPRC 300” stood for “Money Power Respect Click” and for the first three digits of ZIP codes in the Smyrna area in which MPRC 300 had a presence. MPRC 300 was a hybrid gang, meaning that it was less tightly knit than traditional gangs, covered a broader area, and included persons who had relocated, were also members of different gangs, or were less closely associated with the gang than others were, participating only in some crimes and sometimes not tattooed with the gang's symbols. All of the defendants had tattoos that were common to members of gangs in general. Hayes had a tattoo on his back of “MPRC” and “300” with a symbol in-between. The abbreviation “MPRC300” was on his headband in a photograph posted on his social media webpage and was part of his and Francis's user names. Immediately prior to leaving for Wattecamps's apartment, the defendants went to Francis's apartment where they talked more about the robbery, got “amped up,” and, in an event called a “jumpoff” or a “freak,” had sex with a woman who had tattoos of “Money Power Respect Click 300” and “1st Lady.” See OCGA § 16–15–3(2) (“The existence of such organization, association, or group of individuals associated in fact 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.”). This evidence showed that the defendants at least informally associated with one another in criminal gang activity by conspiring to commit armed robbery before they ever left for Wattecamps's apartment, and the jury certainly could have interpreted their actions at Francis's apartment as their way of claiming affiliation with “MPRC 300.” See Taylor v. State, 331 Ga.App. 577, 582(2)(c), 771 S.E.2d 224 (2015).

The same evidence refutes Hayes's argument that the planned robbery and felony murder were not intended to further the interests of the gang rather than the interests of the individual participants alone. Evidence of Hayes's association with the group known as MPRC 300 and his participation in the group's activities before and during the crimes charged provide the required nexus between his criminal acts and the intent to further the gang's interests. See Rodriguez, 284 Ga. at 807(1), 671 S.E.2d 497. That evidence implies that he had the specific intent of furthering the criminal purposes of MPRC 300 by committing the violent offenses of conspiracy to commit armed robbery and aggravated assault in order to obtain money, power, and respect for MPRC 300 and its members in the Smyrna area. See id. (“Management of or participation with others in that criminal street gang activity necessarily implies knowledge of the gang's criminal activities and a specific intent to further its criminal purposes.” (Citations omitted.)); Zamudio v. State, 332 Ga.App. 37, 41–43(2)(b), 771 S.E.2d 733 (2015). Cf. Jones v. State, 292 Ga. 656, 659–660(1)(b), 740 S.E.2d 590 (2013) (conviction reversed where the evidence, even when viewed in the light most favorable to the verdict, did not show that the defendant was associated with the named gang or that his commission of the predicate act related in any way to the gang's activities).

(b) Hayes also claims that the evidence is insufficient to sustain his convictions for the felony murder of Brown and the aggravated assaults upon Keller and Washington because there was no evidence that any of Hayes's codefendants did anything that placed Brown, Keller, or Washington in “reasonable apprehension of immediately receiving a violent injury.” OCGA § 16–5–20(a)(2). Although “central to the offense of aggravated assault is that an assault as defined in OCGA § 16–5–20 be committed on the victim[,] OCGA § 16–5–21 ․, [Hayes] ignores the fact that a simple assault also occurs when a person ‘(a)ttempts to commit a violent injury to the person of another.’ OCGA § 16–5–20(a)(1).” Brinson v. State, 272 Ga. 345, 347(1), 529 S.E.2d 129 (2000). Where, as in this case, “the assault at issue consists of an attempt to commit a violent injury to the person of another, awareness on the part of the victim is not an essential element of the crime.” Smith v. State, 279 Ga. 423, 423, 614 S.E.2d 65 (2005) (citations and punctuation omitted). “Intentionally firing a gun at another, absent justification, [may be] sufficient in and of itself to support a conviction of aggravated assault.” Love v. State, 268 Ga. 484, 485(1), 490 S.E.2d 88 (1997) (citation and punctuation omitted). Construing the evidence most strongly in support of the verdict, the jury was authorized to find that Blackledge and Francis attempted to commit violent injuries to the persons of their pursuers, Brown, Keller, and Washington, by intentionally firing guns at them without justification—striking and killing Brown—and that Hayes was a party to these aggravated assaults and the felony murder of Brown. See Tiller v. State, 267 Ga. 888, 890(3), 485 S.E.2d 720 (1997). We conclude that the evidence adduced at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Hayes was guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Judgment affirmed.

BLACKWELL, Justice.

All the Justices concur.

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