BLACKWELL, Justice.
Tchywaskie Lamar Jones was tried by a Dougherty County jury and convicted of aggravated assault and a violation of the Georgia Street Gang Terrorism and Prevention Act, OCGA § 16-15-1 et seq., in connection with a shooting at a public pool in Albany in which a bystander was wounded. Jones appeals and raises several claims of error, including that the evidence is insufficient to sustain his convictions and that the trial court failed to respond as required by OCGA § 17-8-75 when the prosecuting attorney spoke in his closing argument of facts outside the record.
1. Viewed in the light most favorable to the verdicts, the evidence shows that on June 16, 2009, Sequoia Jefferson went to a crowded public swimming pool in Albany, accompanied by at least four other women and their children, including Jefferson's infant son. Around 6:00 p.m., as Jefferson and her companions were waiting to be admitted into the pool, they were approached by another group of women, and an altercation occurred. An unidentified woman apparently attempted to strike the woman who was carrying Jefferson's son, and she struck the baby instead. Jefferson called the baby's biological father, Dabkowski Luke, and told him of the assault.
About 30 minutes later, an off-duty police officer went to the pool because he had information that made him think that a fight might soon break out. Shortly after the officer arrived, he saw two cars pull into the
Around the same time as the 300 and the Impala arrived at the pool, the off-duty officer also saw a third car, which was driven by Jerry Harris, park across the street from the pool. The officer noticed that Harris had a "bulge" in his pants, and he watched as Harris walked to the north side of the parking lot. The officer then saw Harris pull a 9mm handgun out of his pants and start shooting in a southerly direction, toward Jones and the other occupants of the first two cars. One of those shots struck Donald Winchester, an innocent bystander, in the hip. Although the officer did not see Jones firing a weapon, he heard an exchange of gunfire between Harris and others,
(a) We first consider whether the evidence is sufficient to sustain the aggravated assault conviction, applying the familiar standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in which we view the evidence in the light most favorable to the verdict and ask whether any rational trier of fact might have found beyond a reasonable doubt from that evidence that the defendant is guilty of the crimes of which he was convicted, leaving questions of credibility and the resolution of conflicts in the evidence to the jury. So viewed, the evidence in this case shows that Jones went to the pool with his firearm and several accomplices to settle a dispute, that he and his accomplices loaded weapons as they approached the pool, that they arrived at the pool at roughly the same time as Harris, that a gunfight ensued between Harris, on the one hand, and Jones and his accomplices, on the other, and that Jones participated in the gunfight by firing his weapon. Although it is undisputed that Winchester was shot by Harris, OCGA § 16-2-20(a) provides that "[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime." Jones is correct, of course, that mere presence or approval of a criminal act is not sufficient to render one a party to the crime, and a conviction as a party to a crime requires proof that the defendant shared a common criminal intent with the principal perpetrator of the crime. But criminal intent is a question for the jury, and it may be inferred from that person's conduct before, during, and after the commission of the crime. Perkinson v. State, 273 Ga. 814, 816, 546 S.E.2d 501 (2001); see also Brown v. State, 291 Ga. 887, 888(1), 734 S.E.2d 41 (2012); Pruitt v. State, 282 Ga. 30, 32(1), 644 S.E.2d 837 (2007); Eckman v. State, 274 Ga. 63, 65(1), 548 S.E.2d 310 (2001); Jordan v. State, 272 Ga. 395, 396(1), 530 S.E.2d 192 (2000). From the circumstances proven in this case, a rational jury could have inferred that Jones shared a
(b) We next consider whether the evidence is sufficient to sustain the conviction for a violation of the Street Gang Act. Jones was charged in the indictment with violating the Street Gang Act by participating in criminal street gang activity through the commission of an aggravated assault "while associated with a criminal street gang, to wit: the Southside Bloods," and to prove that he violated the Street Gang Act in this way, the State was required to show that Jones was, in fact, associated with the Southside Bloods, that the Southside Bloods was a "criminal street gang," that Jones committed a predicate act of "criminal street gang activity," namely the aggravated assault upon Winchester, and that the commission of the predicate act was intended to further the interests of the Southside Bloods. See Rodriguez v. State, 284 Ga. 803, 806-807(1), 671 S.E.2d 497 (2009). See also OCGA § 16-15-4(a) (2009).
Although there was some evidence presented at trial about the existence and activities of the Southside Bloods, the State inexplicably failed to adduce any evidence that Jones was associated with the Southside Bloods or that his commission of an aggravated assault was intended in any way to further the interests of the Southside Bloods. No witness testified that Jones was a member of the Southside Bloods. No witness testified that those accompanying Jones at the time of the shooting were members of the Southside Bloods. No witness testified that Jones was associated in any way with the Southside Bloods. And although officers testified at trial that members of the Southside Bloods often display certain symbols and colors, no evidence was presented that Jones or any of his accomplices displayed those symbols or colors, either on the day of the shooting or at any other time.
In an effort to tie Jones to the Southside Bloods, the State points to evidence presented at trial that police officers found a "grill," bearing a symbol of the "Crips" gang, approximately 50 feet from the location from which Harris fired his weapon. But even if the grill was in some way connected to the shooting, the State did not show how that grill tends to prove that anyone at the pool at the time of the shooting, much less Jones, was associated with the Southside Bloods. The State also points to evidence that, prior to the shooting, the off-duty police officer heard someone say, "Y'all take y'all's slob
2. We turn now to the contention that the trial court erred when it failed to respond as required by OCGA § 17-8-75 when the prosecuting attorney spoke in his closing argument of matters outside the record. During closing arguments, the prosecuting attorney attempted to link Jones to an earlier gang-related shooting in a public place, saying that "there was a previous incident of gang violence between the Bloods and the Crips at the Henderson Gym. And then come to find out who was there when all of that happened at [the] Henderson Gym that day? Tchywaskie Jones." Jones's lawyer immediately objected and moved for a mistrial, correctly arguing that there was no evidence admitted at trial that Jones was present during the prior incident at the Henderson Gym. Indeed, a police officer had testified about a shooting at the Henderson Gym involving "Blood" gang members, but the officer did not testify that Jones, or anyone associated with Jones, was present or otherwise involved in the shooting. And later, when the prosecuting attorney asked several character witnesses for Jones if they were "aware" that Jones was involved in the shooting at the Henderson Gym, those witnesses responded that they were not. The State points to no evidence contained in the trial transcripts that supports the claim made by the prosecuting attorney during his closing argument that Jones was connected to the shooting at the Henderson Gym.
Because the prosecuting attorney made a statement in his closing argument about a "prejudicial matter[] which [is] not in evidence, it [was] the duty of the court to interpose and prevent the same." OCGA § 17-8-75. And when Jones timely objected,
We conclude that the general instruction given by the trial court was an inadequate curative measure and did not serve "to remove the improper impression from [the jurors'] minds," as required by OCGA § 17-8-75.
Alexander v. State, 270 Ga. 346, 350(2), 509 S.E.2d 56 (1998) (footnote omitted). Here, the evidence against Jones was not overwhelming,
3. Jones asserts numerous other claims of error, including that the Street Gang Act is unconstitutional, both on its face and as applied to his case. Most of these alleged errors, however, are moot in light of our reversal of the judgment below, and they seem unlikely to recur on any retrial of Jones for aggravated assault. We, therefore, decline to address the remaining claims of error, see Boring v. State, 289 Ga. 429, 435(3), 711 S.E.2d 634 (2011), with one exception. We will address the denial of Jones's motion to suppress, which seems likely to affect any retrial of Jones for aggravated assault, inasmuch as the motion sought to suppress,
Jones contends that the trial court erred when it denied his motion to suppress because, Jones says, every material allegation contained in the affidavit supporting the warrant that authorized the search was false. The disputed search warrant was issued two days after the shooting, and it authorized a search of the home of Luke's mother, where both Jones and Luke resided, as well as any vehicles that might be found there.
In determining whether probable cause exists to issue a search warrant, a magistrate must decide whether, after considering the veracity and basis of knowledge of any persons supplying hearsay information, "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Glenn v. State, 288 Ga. 462, 465(2)(b), 704 S.E.2d 794 (2011). And when we review a ruling on a motion to suppress following the issuance of a search warrant, "[w]e review the search warrant to determine the existence of probable cause using the totality of the circumstances analysis set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)." Bryant v. State, 288 Ga. 876, 892(13)(a), 708 S.E.2d 362 (2011). Where, as here, an affidavit is alleged to contain material misrepresentations or omissions, any "false statements must be deleted, the omitted truthful material must be included, and the affidavit must be reexamined to determine whether probable cause exists to issue a warrant." State v. Palmer, 285 Ga. 75, 78, 673 S.E.2d 237 (2009); see also Herrera v. State, 288 Ga. 231, 233(2), 702 S.E.2d 854 (2010).
In this case, the magistrate's finding of probable cause to support the issuance of the search warrant was based solely upon the sworn affidavit of a police officer.
The State has acknowledged that the statement in the affidavit about Jones having an argument with the victim was false, as was the statement about the incident being a "drive by shooting."
While the State concedes that several parts of the supporting affidavit are false, it maintains that the statement about a person named Charlie Boone seeing Jones "getting out of the suspect vehicle used in the shooting on Willard Ave. and running with other subjects that had weapons in their hands a few minutes after the shooting" was, for the most part, true.
Judgment reversed.
All the Justices concur.