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official text of the opinion.
In the Supreme Court of Georgia
Decided: April 19, 2022
S22A0165. DICKEY v. THE STATE.
BOGGS, Presiding Justice.
Appellant Kaovion Dickey challenges his 2020 convictions for
malice murder and other crimes in connection with the shooting
death of Tony McGowan and the shooting of Mikeem Jackson.
Appellant’s sole enumeration of error is that the evidence was
legally insufficient to support his convictions. However, the evidence
was sufficient for the jury to conclude that Appellant was guilty, so
we affirm. 1
1 The crimes occurred on June 13, 2018. On September 4, 2018, a
Richmond County grand jury indicted Appellant, Jatavisa Jones, and Phillip
Leach for malice murder, felony murder, attempted armed robbery, aggravated
assault with a deadly weapon, and two counts of possession of a firearm during
the commission of a crime. At a joint trial from November 30 to December 3,
2020, the jury acquitted Appellant of attempted armed robbery but found him
guilty of the remaining charges. The jury found Jones guilty on the two firearm
possession counts but otherwise acquitted him, and the jury acquitted Leach
of all charges. The trial court sentenced Appellant to serve life in prison for
1. Viewed in the light most favorable to the verdicts, the
evidence at trial showed the following. On the night of June 12 to
13, 2018, Jackson was at McGowan’s house playing video games. At
around 1:00 a.m., they decided to go get snacks. McGowan borrowed
his girlfriend’s SUV and drove with Jackson to a gas station and
convenience store on East Boundary street in Augusta. When they
arrived, three individuals, later identified as Appellant, Jatavisa
Jones, and Phillip Leach, were in the parking lot.
Jackson went inside the store and bought snacks and
cigarettes. As he exited the store with a cigarette in hand, he heard
someone ask for a light. Jackson walked over to Appellant, Jones,
and Leach and pulled out his lighter. Some money fell out of
Jackson’s pocket, and after handing over the lighter, he bent down
to pick it up. As he stood back up, Jones grabbed him forcefully by
malice murder, a consecutive term of ten years for aggravated assault, and a
total of ten years’ probation for the two firearm possession convictions; the
felony murder verdict was vacated by operation of law. On December 15, 2020,
Appellant filed a motion for new trial, which he amended through new counsel
on June 17, 2021. After a hearing, the trial court denied the motion on July 14,
2021. Appellant filed a timely notice of appeal, and the case was docketed in
this Court for the term beginning in December 2021 and submitted for decision
on the briefs.
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the left shoulder. Jackson turned towards Jones, who pulled a gun
out of his right pocket. Jackson, who was unarmed, reached for
Jones’ gun. A struggle over the gun ensued, and the two men fell to
the ground. Appellant and Leach circled around them, “egging
[Jones] on,” as a man in a truck in the parking lot later described it.
Another man, who was inside the store and looking out the window,
described the altercation as being “[t]hree on one.”
While Jackson was on the ground struggling with Jones, he
saw McGowan, who also was unarmed, running over to help.
Jackson heard a gunshot, and McGowan fell to the ground. Jackson
then managed to get on top of Jones and heard another gunshot, this
time closer. As Jackson stood up, he realized that he had been shot
in the back. Seeing McGowan lying on the ground, Jackson began
running for his life. As Jackson ran from the gas station, he heard a
gun jam behind him. He went to his mother’s house, and she took
him to the hospital. McGowan also was taken to the hospital, where
he died. The medical examiner later determined that McGowan died
from a gunshot wound to the back.
3
Jones called 911 to report that he had been involved in a
shooting, and when responding officers arrived at the gas station,
Jones directed them to two guns lying in the grass behind the
convenience store: a Smith & Wesson .40-caliber pistol and a Lorcin
.380-caliber pistol in poor condition with the slide locked open.
Officers also recovered a .380-caliber cartridge casing and a .25-
caliber cartridge casing from the parking lot in front of the store. A
GBI firearm examiner later determined that the .380-caliber
cartridge casing and the .380-caliber bullet removed from
McGowan’s body during the autopsy were fired from the Lorcin .380-
caliber pistol recovered behind the store.
Investigator April Cody of the Richmond County Sheriff’s
Office responded to the scene, and recordings that she made of
surveillance video from the convenience store were played for the
jury at trial. Three of the recordings show the interior of the store
from different angles. These recordings show Appellant, Jones, and
Leach entering the store together about an hour before the shooting,
milling around for a while, sitting at video games at the back of the
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store, and exiting the store after about ten minutes. A large gun
handle can be seen protruding from Jones’ right front pocket, and
Appellant is holding a cell phone in his hand.
Two other recordings of video from about an hour later show
parts of the parking lot in front of the store extending to either end
of a row of gas pumps, with a gap in coverage in the middle. These
recordings show Appellant and Leach running back and forth across
the parking lot while, according to the trial testimony, Jackson and
Jones were out of view on the ground struggling over Jones’ gun. At
first, Appellant can be seen holding a gun, and he appears to be
trying to release the slide from where it has jammed. He then
crosses to the other side of the parking lot with Leach, raises the
gun, points it in the direction of Jackson and Jones, and fires.
Several seconds later, Appellant and Leach start running towards
Jackson and Jones, and Appellant again raises the gun and fires. In
the meantime, Jackson appears from the bottom of the screen on the
other side of the parking lot with blood on the back of his shirt, and
he runs off towards the right and then out of view. About 15 seconds
5
later, Jones appears from the bottom of the screen with a gun in his
hand. Appellant and Leach run up to Jones, and the three of them
then walk across the parking lot in the opposite direction from where
Jackson went and disappear from view.
Jackson testified at trial and identified Appellant and his two
co-defendants as his assailants. Jackson specifically identified Jones
as the person with whom he struggled for control of a gun. Sergeant
Lucas Grant, the lead investigator on the case, testified that when
he arrived at the gas station, he learned that Appellant, Jones, and
Leach had been identified as the shooters, and they were being held
at the scene in separate patrol units. A couple of hours later,
Sergeant Grant separately interviewed Appellant, Jones, and Leach
at the Sheriff’s Office, and he specifically identified each of them in
court. Sergeant Grant testified that he reviewed the recordings of
the surveillance video, and he described the video both from his
notes and again as the recordings were being played for the jury.
Sergeant Grant further testified that through his investigation, he
determined that Appellant and Jones lived at the same residence
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within walking distance of the gas station and that a cell phone
recovered from the scene belonged to Appellant.
2. Appellant’s sole enumeration of error is that the evidence
was legally insufficient to support his convictions.
When we consider the sufficiency of the evidence as a
matter of federal due process, our review is limited to
whether the trial evidence, when viewed in the light most
favorable to the verdicts, is sufficient to authorize a
rational trier of fact to find the defendant guilty beyond a
reasonable doubt of the crimes of which he was convicted.
See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781,
61 LE2d 560) (1979).
Moore v. State, 311 Ga. 506, 508 (858 SE2d 676) (2021) (citation and
punctuation omitted). We put aside any questions about conflicting
evidence, the credibility of the witnesses, or the weight of the
evidence, leaving the resolution of such matters to the discretion of
the jury. See id. at 509. Moreover, “[w]hen we consider sufficiency,
we consider all the evidence admitted at trial, regardless of whether
the trial court erred in admitting some of that evidence.” Davenport
v. State, 309 Ga. 385, 397 (846 SE2d 83) (2020) (citation omitted;
7
emphasis in original). See also McDaniel v. Brown, 558 U.S. 120,
131 (130 SCt 665, 175 LE2d 582) (2010).
Appellant acknowledges that a shooting occurred at the gas
station that resulted in McGowan’s death but contends that the
evidence was insufficient to show that he was present at the scene
of the shooting, much less that he was a participant in it. At trial,
however, the surviving victim, Jackson, identified Appellant as one
of the three assailants. Sergeant Grant testified that Appellant,
Jones, and Leach were at the gas station when he arrived and that
they had been identified as the shooters. Sergeant Grant also
testified that he separately interviewed Appellant, Jones, and Leach
and that he determined through his investigation that Appellant
and Jones lived at the same residence within walking distance of the
gas station and that a cell phone recovered from the scene belonged
to Appellant. Sergeant Grant further testified that he reviewed
recordings of surveillance video, which showed Appellant at the
convenience store holding a cell phone about an hour before the
shooting, firing a gun that then jammed in the direction of McGowan
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and the surviving victim in the parking lot, and walking away with
Jones, who also was holding a gun. 2 The video recordings supporting
Sergeant Grant’s testimony were played for the jury at trial.
2 Appellant asserts, as part of his challenge to the sufficiency of the
evidence, that the trial court erred in allowing Sergeant Grant to identify
Appellant in the recordings of the surveillance video and that his trial counsel
was constitutionally ineffective in failing to object to this identification
testimony. As noted above, however, “[w]hen we consider sufficiency, we
consider all the evidence admitted at trial, regardless of whether the trial court
erred in admitting some of that evidence.” Davenport, 309 Ga. at 397 (citation
omitted; emphasis in original). See also Glenn v. State, 306 Ga. 550, 553 (832
SE2d 433) (2019) (rejecting argument that video identification evidence could
not be considered in determining the sufficiency of the evidence if the
identification evidence was erroneously admitted). Appellant did not list as an
enumeration of error the admission of the identification testimony or his trial
counsel’s failure to object to it, and “he may not make arguments to expand his
sole enumeration of error related to the sufficiency of the evidence.” Mims v.
State, 310 Ga. 853, 854 n.2 (854 SE2d 742) (2021). In any event, Appellant’s
assertions – which are based on two Court of Appeals cases decided under the
old Evidence Code, see Owens v. State, 317 Ga. App. 821, 832-825 (733 SE2d
16) (2012); Wright v. State, 301 Ga. App. 178, 180-181 (687 SE2d 195) (2009) –
lack merit. Appellant’s trial took place in 2020, so the current Evidence Code
applied. Appellant argues that Sergeant Grant’s testimony tended only to
establish a fact that average jurors could decide thinking for themselves and
drawing their own conclusions, but the defendants wore face masks throughout
the trial due to the COVID-19 pandemic, whereas Sergeant Grant had the
opportunity to see Appellant without a face mask when he interviewed
Appellant in June 2018, long before the pandemic started. As a result,
Sergeant Grant’s testimony identifying Appellant in the recordings of the
surveillance video was admissible as lay opinion testimony under OCGA § 24-
7-701 (a). See Glenn, 306 Ga. at 555 (holding that lay opinion testimony
identifying a defendant in a surveillance video is admissible under OCGA § 24-
7-701 (a) if there is “‘some basis’” to conclude that the witness is more likely
than the jury to correctly identify the defendant as the individual depicted in
the video (citation omitted)).
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Testimony also showed that the bullet that struck McGowan and a
shell casing found at the scene matched a gun with the slide locked
open that was recovered from behind the convenience store. When
properly viewed in the light most favorable to the verdicts, the
evidence presented at trial and summarized above was legally
sufficient to support Appellant’s convictions, at least as a party to
the crimes. See Jackson, 443 U.S. at 319. See also OCGA § 16-2-20
(b) (defining parties to a crime); Shealey v. State, 308 Ga. 847, 850
(843 SE2d 864) (2020) (explaining that under OCGA § 16-2-20, the
jury may infer a common criminal intent from the defendant’s
presence, companionship, and conduct with another perpetrator
before, during, and after the crimes).
Judgment affirmed. All the Justices concur.
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