Taylor v. the State

FIRST DIVISION
PHIPPS, C. J.,
ELLINGTON, P. J., and MCMILLIAN, J.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/

March 26, 2015

In the Court of Appeals of Georgia
A14A1568. TAYLOR v. THE STATE.

MCMILLIAN, Judge.

Travis Taylor was indicted jointly with Shawn Kitchens, Edward Collier,

Shamarques Watkins, and Jerald Johnson on two charges of aggravated assault and

one charge each of murder, felony murder, participation in criminal street gang

activity, and possession of a firearm during the commission of a felony. These

charges arose out of a confrontation that erupted into crossfire on July 27, 2010 in

Macon, Georgia. Tavish Faulks and Rodrion1 Gary were shot during that incident,

and Gary’s injuries were fatal. Collier and Watkins, who was also injured in the

1
Gary’s first name is spelled as “Rodrion” in the indictment, the transcript of
the hearing on the motion for new trial, and the trial court’s order on that motion, but
it was spelled as “Rodgeren” in the trial transcript. We adopt the first of these
spellings.
incident, each entered guilty pleas before the jury was selected and sworn, and

Johnson entered a guilty plea at trial during the second day of testimony. Taylor and

Kitchens were tried jointly, and the jury convicted both men on the charges of

aggravated assault, possession of a firearm during the commission of a felony, and

participation in criminal street gang activity. The jury also convicted Kitchens on the

charge of felony murder but acquitted him of malice murder. Taylor was acquitted of

any murder charges. The Supreme Court of Georgia recently affirmed Kitchens’

convictions in Kitchens v. State, __ Ga. __ (Case No. S14A1369, decided Jan. 20,

2015). Taylor now appeals his convictions, following the trial court’s denial of his

motion for new trial.

Viewed in the light most favorable to the verdict,2 the evidence at trial showed

that the “Unionville Crips” (a/k/a the “Westside Crips”) and “Bloomfield” (a/k/a the

“Black Team”) were rival Macon gangs. At the pertinent time, Collier lived with his

wife at 2696 Village Green Lane, off Bloomfield Road in Macon. The day of the

shooting, Collier told Tamiko Waller that “Unionville [was] coming to invade

Bloomfield.” Collier then drove his van to retrieve Taylor, Watkins, Kitchens,

Kitchen’s cousin, “P-Dub,” and another man and brought them back to his house,

2
Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

2
which was in the Bloomfield neighborhood. Kitchens, Watkins, Taylor,3 and P-Dub

were identified at trial as associating with the Unionville Crips. When Collier picked

the men up that day, Taylor was carrying a little black tote bag. Following the

shooting, that bag was found in a shed behind Collier’s house, with a gun inside.

Collier and his wife, who was known as the “Candy Lady,” ran a business out

of their house selling chips, candy, cold drinks, and cigarettes; people came to their

back porch to purchase these items. Taylor, Kitchens, Watkins, and Johnson stayed

at the Colliers’ house that afternoon, playing cards in the backyard. Waller and her

friend Jakira Slaughter were also at the Colliers’ house that day. At some point,

Tavish Faulks and Emanuel Stroud4 came to the Colliers’ house to purchase cigars.

After they arrived, Waller saw one of the Unionville men pull out a gun and put it in

his lap. Faulks testified that while he was still on the porch, he saw Kitchens and

everyone but Taylor with their guns out and visible. Other people associated with

Bloomfield came to the street in front of the Colliers’ house, and when Waller saw

the “Bloomfield boys” arrive, she believed that “something was about to go wrong.”

3
However, Watkins testified that Taylor was not associated with the Crips;
instead, he had just been invited to “chill” with the others that day.
4
Faulks, Gary (the murder victim), and Stroud were identified as associating
with Bloomfield.

3
 After Faulks and Stroud made their purchases and left the Colliers’ back porch,

Kitchens confronted Stroud about a MySpace post in which Stroud had referred to

Kitchens as a “crab,” a term Stroud used when he did not like someone. Kitchens

challenged Stroud to fight him and later told the others in his group, “If [Faulks]

jumps in, shoot.” The evidence indicated that Faulks tried to defuse the situation by

urging Stroud to walk away, which he did. When Collier overheard the argument

begin, he told Stroud, Faulks, and Kitchens to take their dispute elsewhere. Although

they began to move away, shooting erupted before they left the property. After one

person began shooting, Collier said “the rest of them started running and shooting”

When the shooting began, Waller and her friend ran inside the Colliers’ house and

hid. Collier heard approximately seven to eight gunshots; Faulks said he heard about

seventeen shots. During the exchange of gunfire, Faulks was hit in the head and wrist,

Watkins was shot in the foot, and Gary, who had arrived on the scene, was shot in the

chest and killed.

Collier, Watkins, Waller, and Slaughter all stated that they saw Taylor with a

gun at the time of the shooting. Waller said that after the shooting ended, she saw

Taylor come into the Colliers’ house holding a gun and wiping it off on his shirt.

Although at trial, Faulks said that he saw everyone but Taylor with a gun on his lap

4
before the shooting began, he admitted that he told police shortly after the shooting,

that Taylor had a gun that day, a chrome .380. The State presented forensic evidence

that 380-caliber semi-automatic shell casings were found in the Colliers’ yard.

Detective Sedrick Pinson of the Macon Police Department’s Gang

Investigation Unit testified about the Unionville Crips and Bloomfield gangs. He said

that gangs in Macon were not like the “Girl Scouts of America.” They engaged in

activities involving acts of violence, such as murder, shootings, drive-by shootings,

and car jackings. He described social media websites such as MySpace as “the fuel

that sparks the energy” for the violence between gang members and said that in

almost every major gang-related case, the police investigated social media outlets.

Additionally, Collier testified that bringing Taylor and the others to his home

had been “wrong,” and had “started [the] whole thing.” Watkins testified that it was

“not a very smart idea” and was also “quite dangerous” to go into Bloomfield territory

because the Unionville Crips and Bloomfield do not get along.

1. Taylor first asserts that his convictions for the aggravated assault of Rodrion

Gary, possession of a firearm during the commission of a felony, and participation in

criminal street gang activity should be set aside and a directed verdict of not guilty

entered because jeopardy as to those charges attached when he was found not guilty

5
of malice murder and felony murder. Thus, he contends that his other convictions

subjected him to double jeopardy. But the prohibition against double jeopardy is not

implicated in this case. No successive prosecution of the same offense occurred;

rather, Taylor was tried for all the crimes in the same prosecution in accordance with

OCGA § 16-1-8 (a). Similarly, the case presents no issue of multiple convictions for

crimes included in one another. See Williams v. State, 288 Ga. 7, 8 (2) (700 SE2d

564) (2010) (setting forth the three governmental abuses against which the bar against

double jeopardy was designed to protect); See OCGA § 16-1-7 (a) (allowing

prosecution, but not conviction for each crime arising from the accused’s conduct, if

one crime is included in the other).

But although Taylor framed his enumeration in the language of double

jeopardy, the gist of his argument is that the verdict is inconsistent and/or contains

mutually exclusive results. “However, since Georgia rejected the ‘inconsistent verdict

rule” in Milam v. State, 255 Ga. 560[, 562] (2) (341 SE2d 216) (1986), a defendant

cannot attack as inconsistent a jury verdict of guilty on one count and not guilty on

a different count.” (Punctuation omitted.) Coleman v. State, 286 Ga. 291, 295-296 (4)

(687 SE2d 427) (2009) (upholding conviction for possession of a firearm during

commission of aggravated assault where he was acquitted of aggravated assault). See

6
also Lawrence v. State, 274 Ga. 794 (2) (560 SE2d 17) (2002) (upholding conviction

for possession of a firearm in commission of a felony of murder even though

defendant was acquitted of murder).

Moreover, Taylor has failed to demonstrate that this case falls into the

recognized exception to this rule, which arises “when instead of being left to

speculate about the unknown motivations of the jury the appellate record makes

transparent the jury’s reasoning why it found the defendant not guilty of one of the

charges[.]” Turner v. State, 283 Ga. 17, 20-21 (2) (655 SE2d 589) (2008). Although

Taylor argues that by acquitting him of the murder charges the jury must have

accepted his defense of justification, nothing in the record demonstrates that the jury

made such a finding. Rather, the verdict form in this case “shows no more than

‘guilty’ or ‘not guilty’ as to each count of the indictment,” and thus fails to elucidate

the jury’s reasoning. Lee v. State, 300 Ga. App. 214, 218 (2) (684 SE2d 348) (2009).

And this Court may not speculate about the jury’s reasoning.

[A]ppellate courts cannot know and should not speculate why a jury
acquitted on one offense and convicted on another offense. The reason
could be an error by the jury in its consideration or it could be mistake,
compromise, or lenity. . . . [A]n individualized assessment of the reason
for the inconsistency would be based either on pure speculation, or

7
 would require inquiries into the jury’s deliberations that the courts
generally will not undertake.

(Citations and punctuation omitted.) Turner, 283 Ga. at 20 (2). Therefore, we find no

basis for reversal on this ground.

2. Taylor also asserts that the evidence was insufficient to support his

convictions. In considering that argument, the issue before us “is not whether an

acquittal on one charge would logically necessitate acquittal on another charge on

which the jury convicted the defendant; rather, the . . . question is whether the

evidence viewed in favor of the conviction was sufficient to support the guilty

verdict.” (Citations and punctuation omitted.) State v. Robinson, 275 Ga. App. 117,

118 (619 SE2d 806) (2005).5

(a) Aggravated Assault – As previously noted, our Supreme Court has affirmed

Kitchens’ convictions for the felony murder and aggravated assault in this case.

5
Moreover, to the extent Taylor is asserting that the trial court erred in refusing
to grant a new trial on what is commonly called “the general grounds,” we note that
on appeal, “this court can only review the case under the standard espoused in
Jackson[, 443 U.S. 307], to determine if the evidence, when viewed in the light most
favorable to the prosecution, supports the verdict.” (Citation and punctuation
omitted.) Lewis v. State, 296 Ga. 259, 261 (3) (765 SE2d 911) (2014).

8
Taylor argues that because no one testified that they saw him shoot a gun, the

evidence must show that he actually did something in aid of the actual shooters in

order to sustain his conviction for aggravated assault.

The jury was charged that Taylor could be convicted as a party to the crime of

aggravated assault. “A party to a crime is one who intentionally aids or abets the

commission of the crime, or intentionally advises, encourages, hires, counsels, or

procures another to commit the crime. OCGA § 16-2-20 (b) (3), (4).” (Citation

omitted.) Wright v. State, 296 Ga. 276, 284 (3) (766 SE2d 439) (2014). And

“[w]hether a person is a party to a crime may be inferred from that person’s presence,

companionship, and conduct before, during, and after the crime.” (Citation and

punctuation omitted.) Conway v. State, 281 Ga. 685, 687 (1) (642 SE2d 673) (2007).

Additionally, “it is the jury’s duty as factfinder to weigh the evidence presented at

trial and to determine the credibility of the witnesses. It is not obligated to believe any

witness, and it may accept or reject any portion of a witness’s testimony.” McKinney

v. State, (Citation omitted.) 293 Ga. App. 419, 420-421 (1) (667 SE2d 210) (2008).

Here, the jury could have concluded that Taylor accompanied the others to

Collier’s house with the intent to invade the Bloomfield neighborhood and that he

brought a gun with him in his black bag for that purpose. His co-defendants and other

9
witnesses testified that he had a gun at the time of the shooting, supporting an

inference that he displayed the gun, even if he did not shoot it, in response to

Kitchens’ instructions to shoot if Faulks “jump[ed] in.” After the shooting, he came

into the house, wiping off the gun. Even if the record contains no direct evidence

indicating Taylor shot his gun, the circumstantial evidence was sufficient to convict

him as a party to the crime of aggravated assault as to both Faulks and Gary. Luke v.

State, 324 Ga. App. 531, 532 (2) (751 SE2d 180) (2013). And the issue of whether

this circumstantial evidence excluded any reasonable hypothesis other than Taylor’s

guilt was for the jury. Graham v. State, 320 Ga. App. 714, 720-721 (2) (740 SE2d

649) (2013).

“Likewise, the issues of witness credibility and justification are for the jury to

decide, and the jury is free to reject a defendant’s claim that he acted in self-defense.”

White v. State, 287 Ga. 713, 715 (1) (b) (699 SE2d 291) (2010). Further, contrary to

Taylor’s argument, we find more than sufficient evidence to corroborate the

testimony of his co-defendants. “Slight evidence from an extraneous source

identifying the accused as a participant in the criminal act is sufficient corroboration

of the accomplice to support a verdict.” (Citation and punctuation omitted.) Threatt

v. State, 293 Ga. 549, 551 (1) (748 SE2d 400) (2013).

10
 (b) Possession of a firearm – Taylor does not specifically argue that the

evidence was insufficient to support his conviction for possession of a firearm during

the commission of a felony, which the indictment alleged as felony or malice murder.

However, we find that the same evidence that supported his conviction as a party to

the crime of aggravated assault would have been sufficient to find him guilty as a

party to the crime of felony murder, even though the jury did not convict him of that

crime. Thus, the evidence was sufficient to support Taylor’s conviction on the

possession charge.

(c) Criminal gang activity – Taylor asserts that the evidence was insufficient

to support his conviction for participation in criminal gang activity because the State

failed to show that he was taking part in any kind of gang activity, that he was

associated with two or more persons constituting a gang, that he was associated with

a group that engaged in criminal gang activity, or that his participation was intended

in any way to further the interests of the Unionville Crips.

However, the Supreme Court has already decided most of these issues against

Taylor’s arguments when it affirmed Kitchens’ conviction for criminal gang activity,

because the same gang-related evidence was introduced against both Kitchens and

Taylor at trial. Kitchens, __ Ga. at __ (1). The Supreme Court’s affirmance of

11
Kitchens’s conviction on this charge necessarily encompassed findings that gang

activity was involved in the incident, that Kitchens was associated with two or more

persons engaged in gang activity, that the Unionville Crips were engaged in criminal

gang activity, and that the felony murder was committed in furtherance of the

interests of that gang.

The only issue remaining then is whether Taylor was associated with the

Unionville Crips. We note that the Supreme Court found the evidence showed that

Kitchens, Taylor, Watkins, and Johnson were all associated with the Unionville Crips

gang. Kitchens, __ Ga. at __ (1). Detective Pinson testified that Taylor was associated

with the Crips, and Watkins testified that all that was required to associate with the

Crips was “to claim it,” by “just hanging” in the neighborhood or wearing the gang’s

color, which was blue. Although we could locate no evidence in the record regarding

the color Taylor was wearing that day, the evidence showed that Taylor had “hung”

with Watkins and the other Unionville Crips previously. And he was “hanging” with

them when he armed himself to travel in a group to the Bloomfield neighborhood that

day. Moreover, the jury could have interpreted Taylor’s actions that day as his way

of claiming affiliation with the Crips. Accordingly, we find that the evidence was

sufficient to support Taylor’s conviction for participation in criminal gang activity.

12
 3. Taylor further contends that the trial court erred in denying his motion to

sever at the beginning of trial. The attorneys for Watkins, Johnson, Taylor, and

Kitchens all moved to sever their trials shortly before the case was scheduled to

begin, and the trial court held a joint hearing on the issue. Taylor’s attorney argued

at that time that Taylor’s defense conflicted with the other defendants who were

alleging self-defense, because he was claiming that he was not involved at all.

Additionally, he argued he was prejudiced by these antagonistic defenses. Even

though Taylor was tried jointly with only Kitchens, he continues to assert that

severance was appropriate based on the defenses raised by all the co-defendants

below. We find no merit to his arguments.

As the Supreme Court found in Kitchens’s appeal,

It is well-settled that a trial court has broad discretion to grant or deny
a motion for severance. See OCGA § 17-8-4. In ruling on a severance
motion, the trial court should consider: (1) the likelihood of confusion
of the evidence and law; (2) the possibility that evidence against one
defendant may be considered against the other defendant; and (3) the
presence or absence of antagonistic defenses.

(Citations omitted.) Kitchens, __ Ga. at __ (3) Moreover, “[t]he burden is on the

defendant requesting the severance to do more than raise the possibility that a

13
separate trial would give him a better chance of acquittal. He must make a clear

showing that a joint trial would lead to prejudice and a consequent denial of due

process.” (Citation and punctuation omitted.) Id.

We note that the Supreme Court rejected Kitchens’s argument that his trial

should have been severed from Taylor’s due to their antagonistic defenses. Kitchens,

__ Ga. at __ (3). The Supreme Court found little likelihood of jury confusion in this

case because there were only two defendants at trial and no difference in the law

applied to the two defendants. Id. Additionally, as the Court noted, the jury addressed

the defendants’ indictments separately and returned a separate verdict for each

defendant, in which Taylor was acquitted of the murder charges while Kitchens was

convicted of felony murder. Moreover, Taylor has failed to demonstrate how his

defense was antagonistic to Kitchens,6 and in any event, antagonistic defenses alone

are not sufficient to mandate severance. Id. Based on the Supreme Court’s findings

and Taylor’s arguments, we find that the trial court did not abuse its discretion in

denying Taylor’s motion to sever.

6
Although Taylor asserts that his defense was that he was not involved in the
crimes at all, we note that Taylor argued in support of his inconsistent verdict
argument that he also raised a justification defense at trial.

14
 4. Taylor raises two enumerations of error regarding his sentencing: (1) that the

sentence imposed by the trial court constituted cruel and unusual punishment and (2)

that the trial court erred in considering his juvenile record for purposes of sentencing.

We find no error.

(a) Cruel and unusual punishment – Taylor was sentenced to twenty years in

confinement for the aggravated assault on Gary, followed by twenty years for the

aggravated assault on Faulks (with five years in confinement and the remainder on

probation), followed by an additional fifteen years of probation for the charge of

participation in criminal street gang activity and another five years probation for the

possession charge, to run consecutively to the other sentences. Each of these

sentences was within the statutory range for the crimes of which Taylor was

convicted. OCGA §§ 16-5-21; 16-15-4; and 16-11-106.

If the defendant’s sentence falls within the statutory range of
punishment set by the legislature, a presumption arises that the sentence
does not violate the Eighth Amendment, and the “presumption remains
until a defendant sets forth a factual predicate showing that such
legislatively authorized punishment was so overly severe or excessive
in proportion to the offense as to shock the conscience.”

15
(Citation omitted.) Bray v. State, __ Ga. App. ___ (3) (Case No. A14A2114, decided

Feb. 4, 2015). We find that Taylor has failed to overcome this presumption under the

facts of this case, and accordingly, this enumeration is without merit.

(b) Juvenile Record – Taylor asserts that the trial court erred in considering his

juvenile record, over his objection, for purposes of “enhancing and setting his

sentence.” In her order denying Taylor’s motion for new trial, the trial judge noted

that she “considered many factors in setting [Taylor’s] sentence, least of which was

his juvenile record,” and she cited Burrell v. State, 258 Ga. 841, 844 (7) (376 SE2d

184) (1989), as support for the proposition that “[t]he Supreme Court of Georgia has

long recognized that juvenile records could be considered in the sentencing phase of

a capital case.” In approving the use of juvenile records in the sentencing phase of

that case, the Supreme Court in Burrell relied upon the version of former OCGA §

15-11-38 (b) (1981 Code) that was in effect in 1989. That provision expressly

allowed the use of juvenile records in dispositional proceedings after a defendant was

convicted of a felony. Compare Miller v. State, 231 Ga. App. 869, 870 (2) (501 SE2d

42) (1998) (trial court improperly used juvenile dispositions as felony convictions for

the purpose of mandatory maximum sentencing pursuant to OCGA § 17-10-7 (c)).

16
 In 2000, the legislature reordered, renumbered, and revised certain provisions

relating to the juvenile courts. At that point, OCGA § 15-11-38 (b) was re-codified

as OCGA § 15-11-79.1,7 and that statute provided that juvenile court dispositions

could be used, inter alia, in “sentencing in felony offenses,” and the “records of

dispositions and evidence shall be available to district attorneys and superior court

judges and the accused and may be used in the same manner as adult records.” Ga.

L. 2000, p. 91-92, § 1. This statute was in effect at the time of Taylor’s sentencing,

and thus the trial court properly considered his juvenile court records in sentencing

him. See also former OCGA § 17-10-1 (e) (“In any case involving a felony in which

the defendant previously appeared before a juvenile court, the records of the

dispositions of the defendant as well as any evidence used in any juvenile court

hearing shall be available to the district attorney, the defendant, and the superior court

judge in determining sentencing as provided in Code Section 15-11-79.1.”)

Judgment affirmed. Phipps, C. J., and Ellington, P. J., concur.

7
The current version of this provision is codified at OCGA § 15-11-703. Ga.
L. 2013, p. 294, § 1-1/HB 242. See also OCGA § 17-10-1 (e), as amended by Ga. L.
2013, p. 294 § 4-17/HB 242.

17