NIXON v. the STATE.

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and REESE, JJ.

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 8, 2019

In the Court of Appeals of Georgia
A18A1446. NIXON v. THE STATE.

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.

1
Nixon originally was charged with murder under Count 1 and felony murder
under Count 2 of the indictment. The jury acquitted him on Count 1 and convicted
him of the lesser included offense of voluntary manslaughter on Count 2.
 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.

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

2
 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.

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 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 SE2d 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 SE2d 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 SCt 2781, 61 LE2d 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 SE2d

242) (2017). See also Hayes v. State, 292 Ga. 506, 506 (739 SE2d 313) (2013).

4
 (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 SE2d 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

5
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

6
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 SE2d 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 SE2d 175) (2012). Accordingly, we affirm Nixon’s

conviction for voluntary manslaughter.

3
OCGA § 16-5-2 (a) provides that “[a] person commits the offense of
voluntary manslaughter when he causes the death of another human being under
circumstances which would otherwise be murder and if he acts solely as the result of
a sudden, violent, and irresistible passion resulting from serious provocation
sufficient to excite such passion in a reasonable person[.]”

7
 (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 Octavius 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

4
He described the fight as occurring at the first or second house on the street,
and the car he was sitting on was between the second and third house.

8
more gunshots. Davis received medical treatment for his injuries, but at the time of

trial, the bullet was still in his back and he was planning on a later surgery to have it

removed.

The evidence demonstrates that Davis was across the street from the House

when he was shot, as was Henderson.5 Another party guest and the House’s owner

each testified that the first shots came from the direction of the House, and

Jimperson’s testimony supports a similar inference. Davis was shot in the back of his

shoulder after he turned and ran during the first wave of gunshots. Moreover,

Jimperson testified that after the initial shots stopped, he emerged from under the car

where he was hiding and ran beside a house. He heard no shots as he was running.

When he stopped at the house, he heard more shots, indicating a time lull between the

initial shots and when more shooting began. The House’s owner also testified that the

first shots were followed by shots aimed at his house.

It is well-settled that “[j]urors are normally entitled to make reasonable

inferences from circumstantial evidence regarding all sorts of facts, including the

facts necessary to find defendants guilty beyond a reasonable doubt of [a crime].”

5
The crime scene investigators found a blood pool later identified as belonging
to Henderson across the street and one house down from the House in the direction
of the cul-de-sac.

9
Worthen v. State, __ Ga. __ (3) (c), 2019 Ga. LEXIS 22 (Case No. S18A1212,

decided Jan. 22, 2019). See also Williams v. State, 304 Ga. 658 (821 SE2d 351)

(2018). Therefore, our review of the verdict leaves to the jury the determination of

what reasonable inferences may be made from the facts. Jackson, 443 U.S. at

318-319; Menzies v. State, 304 Ga. 156, 160 (II) (816 SE2d 638) (2018) (It is for the

jury to determine the reasonable inferences to be made “from basic facts to ultimate

facts.”) (citation and punctuation omitted). “As long as there is some competent

evidence, even though contradicted, to support each fact necessary to make out the

State’s case, the jury’s verdict will be upheld.” (Citation and punctuation omitted.)

Williams v. State, 287 Ga. 199, 200 (695 SE2d 246) (2010).

We find that the evidence at trial would have supported reasonable inferences

by the jury that Davis was shot in Nixon’s initial wave of gunfire coming from the

House; that a later wave of gunfire came toward the House; that it was this later wave

of shots that Davis and the other man heard as they sped away from the scene; that

Davis was shot on the same side of the street where Henderson was shot; and,

therefore, that Davis was also shot by Nixon. Accordingly, we find that the evidence

at trial was sufficient to support Nixon’s aggravated assault conviction beyond a

reasonable doubt.

10
 2. Nixon also contends that the trial court erred in charging the jury on

aggravated assault. He argues that the jury charge broadened the manner in which the

jury could convict him of the crime and relieved the jury of the burden of finding a

required averment in the indictment: that he shot Davis.

The trial judge gave the pattern jury charge on aggravated assault, tracking the

language of the statute, as follows:

A person commits the offense of aggravated assault when that person
assaults another person with a deadly weapon. It is only necessary that
the evidence show beyond a reasonable doubt that the defendant
attempted to cause a violent injury to the alleged victim, or intentionally
committed an act that placed the alleged victim in reasonable fear of
immediately receiving a violent injury.

See OCGA § 16-5-20 (a) (2); Suggested Pattern Jury Instructions, Vol. II: Criminal

Cases (2007), § 2.20.21. Nixon objects to the trial court’s further charge that

[t]he State must prove as a material element of aggravated assault that
the assault was made with a deadly weapon. A firearm when used as
such is a deadly weapon as a matter of law. Intentionally firing a gun at
another, without justification, is sufficient in and of itself to support a
conviction of aggravated assault.

11
(Emphasis supplied.) He argues that the italicized portion of the charge allowed the

jury to convict him of aggravated assault if the evidence merely showed that he shot

a gun, without requiring proof that he shot Davis.6 He asserts that this would create

a fatal variance. See Ford-Calhoun v. State, 327 Ga. App. 835, 836 (1) (761 SE2d

388) (2014) (“To permit the prosecution to prove that a crime was committed in a

wholly different manner than that specifically alleged in the indictment would subject

the accused to unfair surprise at trial and constitute a fatal variance.”) (citation

omitted.). However, we have already found that the evidence supported the allegation

in the indictment that Nixon shot Davis, and we disagree that the trial court’s charge

created the possibility that the jury could have found defendant guilty based on

evidence that varied from such proof.

Even assuming, without deciding, that the italicized portion of the aggravated

assault charge was improper, it is axiomatic that appellate courts review the trial

court’s charge to the jury as a whole “to determine whether the jury was fully and

fairly instructed on the law of the case.” Manning v. State, 303 Ga. 723, 728 (4) (814

6
We note that this Court has previously determined that the cited language is
a correct statement of Georgia law. “Georgia courts have repeatedly held that
‘intentionally firing a gun at another, absent justification, is sufficient in and of itself
to support a conviction of aggravated assault.’” (Citations omitted.) Lunsford v. State,
260 Ga. App. 818, 823 (5) (581 SE2d 638) (2003).

12
SE2d 730) (2018). Here, the trial court charged the jury under the applicable

provisions of OCGA §§ 16-5-21 (a) and 16-5-20 (a) defining aggravated assault and

simple assault, respectively.7 The trial court explained to the jury that it would have

a copy of the indictment during deliberations “so that you can refer to exactly what

is alleged in the indictment,” and that the indictment and Nixon’s plea formed the

issue the jury was to decide. The trial court further charged on the presumption of

innocence, reasonable doubt, and the State’s burden “to prove every material

allegation of the indictment and every essential element of the crime charged beyond

a reasonable doubt.” Later, while reviewing the verdict form with the jury, the trial

court charged, “Count Four is aggravated assault. Read the indictment. Be clear in

your mind as to what that charge is, and then it is not guilty or guilty.”

We find that the jury charge when considered as a whole did not improperly

broaden the manner in which the jury could convict Nixon of aggravated assault, nor

7
The pertinent portion of OCGA § 16-5-21 provides, “(a) A person commits
the offense of aggravated assault when he or she assaults: . . . (2) With a deadly
weapon or with any object, device, or instrument which, when used offensively
against a person, is likely to or actually does result in serious bodily injury[.]” OCGA
§ 16-5-20 (a) provides that “[a] person commits the offense of simple assault when
he or she either: (1) Attempts to commit a violent injury to the person of another; or
(2) Commits an act which places another in reasonable apprehension of immediately
receiving a violent injury.”

13
did it relieve the jury of the burden of finding that Nixon shot Davis in order to

convict him of that crime. As our Supreme Court has found,

Even where a jury instruction is defective in that the trial court instructs
the jury that an offense could be committed by other statutory methods
than the one method charged in the indictment . . . such a defect is cured
where, as here, the court provides the jury with the indictment and
instructs jurors that the burden of proof rests upon the State to prove
every material allegation of the indictment and every essential element
of the crime charged beyond a reasonable doubt.

(Citations and punctuation omitted.) Flournoy v. State, 294 Ga. 741, 744 (2) (755

SE2d 777) (2014). Compare Talton v. State, 254 Ga. App. 111, 113-14 (1) (561 SE2d

139) (2002) (the trial court failed to charge the jury on aggravated assault by shooting

the victim, and instead charged that the State need only show that the person was put

in reasonable apprehension of immediately receiving a violent injury and gave no

further limiting instructions). Accordingly, we find this enumeration of error to be

without merit.

Judgment affirmed. Barnes, P. J., and Reese, J., concur.

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