NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: February 7, 2023
S22A0885. WILSON v. THE STATE.
PINSON, Justice.
Antonio Wilson was convicted of felony murder in connection
with the shooting death of Tre Griffin. 1 On appeal, he contends that
1The crimes occurred on November 19, 2017. On April 24, 2018, a
DeKalb County grand jury returned an indictment against Wilson and two codefendants, Adonis Lewis and Braindon Cayo; a superseding indictment was
issued on February 5, 2019. The superseding indictment charged the
defendants with malice murder (Count 1), felony murder predicated on armed
robbery (Count 2), felony murder predicated on aggravated assault (Count 3),
felony murder predicated on conspiracy to violate the Georgia Controlled
Substances Act (Count 4), armed robbery (Count 5), aggravated assault
(Count 6), conspiracy to violate the Georgia Controlled Substances Act (Count
7), and possession of a firearm during the commission of a felony (Count 8). Codefendant Lewis pleaded guilty to all charges. Co-defendant Cayo pleaded
guilty to Counts 7 and 8 and pleaded guilty to the reduced charges of voluntary
manslaughter and robbery as to Counts 4 and 5, with his remaining charges
nolle prossed. Wilson pleaded not guilty and was tried by a jury from July 15
to 19, 2019. The jury found him guilty of Counts 4 and 7 and not guilty of the
remaining charges. He was sentenced to life in prison without the possibility
of parole for Count 4, with Count 7 merging into Count 4 for sentencing
purposes. Wilson, through new counsel, filed a timely motion for new trial,
which the trial court denied after a hearing. Wilson filed a timely notice of
appeal. The case was docketed to the August 2022 term of this Court and
submitted for a decision on the briefs.
(1) the evidence was not sufficient to support his conviction for
conspiracy to purchase marijuana; (2) his indictment did not
adequately describe that drug-conspiracy charge, which was the
predicate felony for his felony-murder charge; (3) the State failed to
prove that the predicate felony proximately caused the victim’s
death; (4) the trial court failed to properly instruct the jury that a
felony-murder conviction must be based on proof that the predicate
felony proximately caused the death; (5) the trial court did not
properly instruct the jury on conspiracy to possess marijuana as a
lesser included offense of conspiracy to purchase marijuana; (6) the
trial court improperly instructed the jury about proof of
participation in a conspiracy; (7) the trial court improperly admitted
irrelevant and prejudicial evidence, including a homemade rap video
and Instagram messages from Wilson to a co-defendant; and (8) the
trial court improperly imposed a sentence of life without parole.
Each of these claims fails. The evidence was sufficient to
support Wilson’s drug-conspiracy conviction. The indictment
satisfied due process because the predicate felony for the felony
2
murder charge was fully described in a separate count. The State
established that the predicate felony—conspiracy to purchase
marijuana—proximately caused Griffin’s death, because it was
reasonably foreseeable that violence could ensue during the planned
transaction in illegal drugs, which our decisions have consistently
recognized are inherently dangerous. The trial court was not
required to give Wilson’s requested jury instructions: the court’s
instructions on proximate cause and proof of participation in a
conspiracy included all the points of law that Wilson’s requested
instructions contained, and no evidence could support a theory that
Wilson was guilty only of conspiracy to possess marijuana but not
conspiracy to purchase because, on the facts here, any conspiracy to
possess the marijuana necessarily included the step of purchasing it
from Griffin. The trial court did not abuse its discretion in admitting
the homemade rap video and the Instagram messages, which were
probative because they connected the defendants to the murder
weapon and showed them in close association, and did not give rise
to a substantial danger of unfair prejudice. Finally, the trial court
3
could sentence Wilson to life without parole without any finding of
aggravating factors, and the record does not show that the court
relied on improper factors in doing so. So we affirm Wilson’s
convictions and sentence.
1. Viewed in the light most favorable to the verdicts, the
evidence at trial showed the following.
(a) On the morning of the shooting, Wilson was at Braindon
Cayo’s house smoking marijuana with Cayo, Adonis Lewis, Cayo’s
girlfriend, Britney Coleman, and Wilson’s girlfriend, Auviance West.
At around 2:00 p.m. they were joined by Jalene Wright.
The group discussed going to buy more marijuana from Lewis’s
regular dealer, Griffin. Wilson was involved in the planning: West
testified that she gave Wilson money because “[h]e said he was going
to go buy weed,” and Wright testified that Cayo asked her, on behalf
of himself, Wilson, and Lewis, if they could borrow her car to go
make the purchase.
Wilson, Cayo, Lewis, Coleman, and Wright left in Wright’s car
to drive to Griffin’s house; West stayed behind. According to
4
Coleman, Cayo drove while Lewis talked to Griffin on the phone.
Wright testified that “[t]he boys” were talking about not paying for
the marijuana that they had ordered. Among other things, Cayo and
Lewis knew that Griffin would use a scale to weigh the marijuana,
and they were planning to have him place the scale on the ground
“[s]o he wouldn’t be looking around.”
The group arrived at Griffin’s house. Lewis got out of the car
and stood by the driver’s side door. Griffin came down the driveway
carrying a bookbag and wearing a gun on his hip. Lewis and Griffin
greeted each other, and Lewis got out the money while Griffin pulled
marijuana and a scale from his bookbag. Griffin put the scale on the
ground by the driver’s side door to weigh the marijuana. Lewis stood
nearby.
Wilson got out of the passenger side of the car and walked
around to the driver’s side where Griffin was. A few seconds later,
Griffin was shot. No one admitted to seeing the actual shooting. But
Coleman, Wright, Cayo, and Lewis all testified that they saw Wilson
holding a gun afterwards, either just after the shooting or in the car
5
on the way back to Cayo’s house.
Lewis picked up Griffin’s bookbag and got back in the car. On
the way back to Cayo’s house, Wilson took the SIM card from
Griffin’s phone and Cayo threw the phone out the window. When
they arrived at Cayo’s house, Wilson, Cayo, and Lewis divided up
the marijuana from the bookbag. Then they burned the bookbag and
talked about selling the murder weapon. Wilson reported to West,
“we robbed him.”
(b) Right after Griffin was shot, his mother called 911.
Investigators at the scene got Griffin’s phone number from his
family and obtained a description of the car that was seen driving
away from the shooting. In the following weeks, police got a tip that
led them to Wright. They then found Wright on social media and
were able to connect her to the car. When Wright was interviewed
by police, she told them that on the day of the shooting she went to
Cayo’s house and that “all three of the guys at the house”—Cayo,
Lewis, and Wilson—went to buy marijuana. She admitted later that
she and Coleman went with them.
6
Police also obtained significant information from cell-phone
data. Griffin’s phone records showed that five minutes before his
mother called 911, he received a call from a phone that was later
connected to Lewis’s mother. Police obtained the records and data
from Lewis’s mother’s phone and found that the phone call to Griffin
pinged a cell tower that was a half mile from Griffin’s house. Lewis’s
mother’s phone also contained photos of Cayo and Lewis holding a
handgun. A firearms expert from the Georgia Bureau of
Investigation testified that the handgun in the photos appeared to
be a Smith & Wesson SD9, and that the bullet recovered from
Griffin’s body could have been fired from that type of gun. And
Lewis’s mother’s phone also contained a text message conversation
that included a YouTube link to a rap video entitled “Dope,” in which
Cayo, Lewis, and Wilson appeared and Cayo and Lewis “flashed
around” a handgun. Cayo and West testified that the gun in the
“Dope” video was the one used to kill Griffin.
2. Wilson first contends that the evidence was not sufficient as
a matter of constitutional due process to support his conviction for
7
conspiracy to purchase marijuana. See Jackson v. Virginia, 443 U.S.
307, 319 (99 SCt 2781, 61 LEd2d 560) (1979). We evaluate a dueprocess challenge to the sufficiency of the evidence by viewing the
evidence presented at trial in the light most favorable to the
verdicts, and asking whether any rational trier of fact could have
found the defendant guilty beyond a reasonable doubt of the crimes
of which he was convicted. Peacock v. State, 314 Ga. 709, 714 (2) (b)
(878 SE2d 247) (2022). “We leave to the jury the resolution of
conflicts or inconsistencies in the evidence, credibility of witnesses,
and reasonable inferences to be derived from the facts.” Perkins v.
State, 313 Ga. 885, 891 (2) (a) (873 SE2d 185) (2022) (citation and
punctuation omitted).
A person is guilty of conspiracy to commit a crime “when he
together with one or more persons conspires to commit any crime
and any one or more of such persons does any overt act to effect the
object of the conspiracy.” OCGA § 16-4-8. A conspiracy requires an
agreement between two or more people, but that agreement “need
not be express, nor does it require a meeting of the minds to the
8
same degree necessary to form a contract.” Griffin v. State, 294 Ga.
325, 327 (751 SE2d 773) (2013) (citation and punctuation omitted).
Instead, “all that is required is a tacit mutual understanding
between persons to pursue a common criminal objective.” Id. The
mutual understanding may be established either by direct proof or
by inference from acts and conduct which “disclose[] a common
design…to act together for the accomplishment of the unlawful
purpose.” Darville v. State, 289 Ga. 698, 699 (2) (715 SE2d 110)
(2011) (citation omitted).
The evidence here was sufficient to support Wilson’s conviction
for conspiracy to purchase marijuana. First, there was testimony
that Wilson was an active participant in the plan to buy marijuana
from Griffin: Wright testified that when Cayo asked to borrow her
car to go make the purchase, he was asking on behalf of Wilson and
Lewis as well as himself. West testified that she gave Wilson money
because “[h]e said he was going to go buy weed.” And multiple
witnesses testified that Wilson, Cayo, and Lewis divided the
marijuana among them after they had obtained it. See McLeod v.
9
State, 297 Ga. 99, 103 (2) (772 SE2d 641) (2015) (“appellant’s shared
criminal intent with her co-conspirators may be inferred by her
conduct before, during, and after the crimes”). That was enough to
show a mutual understanding among Wilson, Cayo, and Lewis to
purchase marijuana. Also, the evidence showed that all three did
overt acts in furtherance of their plan: among other things, Wilson
collected money from West, Lewis contacted Griffin to arrange the
purchase, and Cayo obtained Wright’s car. This evidence of those
overt acts, together with that of the participants’ mutual
understanding, was sufficient to support Wilson’s conviction for
conspiracy to purchase marijuana.
3. Wilson contends the trial court erred by denying his special
demurrer to quash Count 4 of the indictment. Count 4 charged
Wilson (along with Cayo and Lewis) with felony murder for causing
Griffin’s death “while in the commission of the offense of Conspiracy
to Violate the Georgia Controlled Substances Act, a felony.” Wilson
argued in the special demurrer, as he does on appeal, that the count
was not sufficient as a matter of due process because it did not
10
adequately describe the predicate felony. “We review a ruling on a
special demurrer de novo to determine the legal sufficiency of the
allegations in the indictment.” Sanders v. State, 313 Ga. 191, 195 (3)
(869 SE2d 411) (2022) (citation and punctuation omitted).
As described in footnote 1, Wilson was convicted of Counts 4
and 7 of the indictment. Count 4 charged Wilson, Cayo, and Lewis
with felony murder predicated on conspiracy to violate the Georgia
Controlled Substances Act. Count 7, in turn, charged that all three
“unlawfully conspired with each other to commit the offense of
Purchase of Marijuana, in violation of code section 16-13-30 of the
Georgia Controlled Substances Act, and in furtherance of said
conspiracy, did do the following overt acts to effect the object of the
conspiracy: contacted Tre Griffin to arrange the purchase of
marijuana, secured a method of transportation to the residence of
Tre Griffin, traveled to the residence of Tre Griffin, and met in
person with Tre Griffin.” No other count charged any defendant with
any violation of the Georgia Controlled Substances Act.
The purpose of an indictment “is to allow the defendant to
11
prepare his defense intelligently and to protect him from double
jeopardy.” Jones v. State, 289 Ga. 111, 116 (2) (c) (709 SE2d 773)
(2011) (citation and punctuation omitted). To satisfy due process,
the indictment must “contain all the essential elements of the crime”
and must “notify the accused of what factual allegations he must
defend in court.” Jackson v. State, 301 Ga. 137, 139, 140 (1) (800
SE2d 356) (2017) (citation and punctuation omitted). The test for
determining the constitutional sufficiency of an indictment is not,
therefore, whether it could be made more certain and definite, but
whether it puts the defendant on notice of the crimes with which he
is charged and sufficiently apprises him of what he must be prepared
to meet. See Sanders, 313 Ga. at 195 (3). When applying this test,
“the indictment is read as a whole.” Id. at 196 (3) (a) (ii) (punctuation
and citation omitted).
Wilson’s indictment was constitutionally sufficient. Count 4
charged him with felony murder for causing Griffin’s death while
committing conspiracy to violate the Georgia Controlled Substances
Act; Count 7, in turn, charged him with conspiracy to purchase
12
marijuana in violation of the Georgia Controlled Substances Act,
and laid out specific factual allegations supporting that charge.
Read as a whole, see Sanders, 313 Ga. at 196 (3) (a) (ii), the
indictment put Wilson on notice of the crimes charged and the
factual allegations he had to defend against. And contrary to
Wilson’s contention, the details of the predicate felony did not have
to be specified in the felony murder count. It was enough that they
were specified in the count charging the predicate felony. See id. at
197-198 (3) (a) (iii) (indictment was constitutionally sufficient when
Count 1 charged defendant with felony murder for causing victim’s
death while committing conspiracy to commit aggravated assault,
and Count 3 charged him with conspiracy to commit aggravated
assault and laid out the factual allegations supporting that charge).
The indictment satisfied the requirements of due process and so the
trial court did not err in denying Wilson’s special demurrer.
4. Wilson next contends the State did not prove that the
conspiracy to purchase marijuana proximately caused Griffin’s
death. He argues that a conspiracy to purchase marijuana is not
13
inherently dangerous, and that he could not have foreseen that his
involvement in that crime alone—with no anticipation of an armed
robbery or aggravated assault, neither of which he was convicted
of—would lead to Griffin’s murder.
A person commits felony murder when, “in the commission of
a felony, he or she causes the death of another human being
irrespective of malice.” OCGA § 16-5-1 (c). The causation element
requires proof of proximate cause. Campbell-Williams v. State, 309
Ga. 585, 587 (2) (a) (847 SE2d 583) (2020). Under the proximatecause standard, the defendant is liable “for the reasonably
foreseeable results of criminal conduct if there is no sufficient,
independent, and unforeseen intervening cause.” Menzies v. State,
304 Ga. 156, 161 (II) (816 SE2d 638) (2018) (citation and
punctuation omitted). Any felony can be a predicate for felony
murder so long as it is “inherently dangerous to human life,”
meaning that it is “dangerous per se” or “by its circumstances
create[d] a foreseeable risk of death.” Davis v. State, 290 Ga. 757,
760 (4) (725 SE2d 280) (2012) (citation and punctuation omitted).
14
Here, the evidence was sufficient for the jury to find that the
conspiracy to purchase marijuana proximately caused Griffin’s
death. We have recognized time and again that transactions in
illegal drugs are inherently dangerous. See State v. Spratlin, 305
Ga. 585, 595-596 (2) (b) (826 SE2d 36) (2019) (“this Court and others
have recognized that violence is inherent in the business of dealing
illegal drugs”) (punctuation omitted); Davis, 290 Ga. at 760-761 (4)
(explaining that it is “not unusual” for parties to an illegal drug
transaction to be armed, and citing cases noting that it was not
unreasonable to expect firearms to be present at a drug transaction
or to believe that one’s safety was in danger when going to a known
drug area). This is because it is among the “incidental, probable
consequences” of an illegal drug transaction that something may go
wrong and someone may be killed. See Davis, 290 Ga. at 760 (4)
(defendant proximately caused victim’s death when he arranged to
purchase marijuana from the victim, “something went wrong,” and
the defendant’s brother shot the victim). Indeed, at Wilson’s trial, a
homicide detective testified that “at least 75 to 80 percent” of his
15
homicides involved drug transactions.
Wilson urges that it was not the conspiracy to purchase
marijuana but the later plan to rob Griffin—of which he was
acquitted—that foreseeably caused Griffin’s death. But “[r]egardless
of whether an [armed] robbery took place, the [parties] met for a
drug transaction and something went wrong”—which was
reasonably foreseeable. Davis, 290 Ga. at 760 (4). The proximatecause requirement is satisfied here, so this claim of error fails.
5. Wilson contends that the trial court erred by failing to give
his requested jury instruction on proximate cause. We review de
novo a properly preserved claim that a trial court erred in refusing
to instruct the jury on an applicable principle of law. See Reese v.
State, 314 Ga. 871, 879-880 (2) (880 SE2d 117) (2022).
Wilson asked for an instruction to the effect that the jury could
not convict him of felony murder unless it found beyond a reasonable
doubt that he committed a felony that both proximately caused the
victim’s death and was dangerous enough that it created a
foreseeable risk that it would result in the victim’s death. The trial
16
court declined to give that instruction. Instead, the trial court gave
the following instruction on causation for felony murder:
A person commits armed robbery, aggravated assault,
and conspiracy to violate the Georgia Controlled
Substance Act as previously defined. In order for homicide
to have been done in the commission of these particular
felonies, there must be some connection between the
felony and the homicide. The homicide must have been
done in carrying out the unlawful act and not collateral to
it. It is not enough that the homicide occurred soon or
presently after the felony was attempted or committed.
There must be a legal relationship between the homicide
and the felony so as to cause you to find that the homicide
occurred before the felony was at an end, or before any
attempt to avoid conviction or arrest for the felony. The
felony must have a legal relationship to the homicide, be
at least concurrent with it in part, and be part of it in the
actual and material sense. A homicide is committed in the
carrying out of a felony when it is committed by the
accused when engaged in the performance of any act
required for the full execution of a felony. 2
The trial court also properly defined felony murder for the jury,
explaining that “[a] person commits the crime of murder, when in
commission of a felony, that person causes the death of another
2 This was the pattern jury instruction at the time. See Ware v. State,
305 Ga. 457, 459 (2) (826 SE2d 56) (2019) (citing Georgia Suggested Pattern
Jury Instructions, Vol. II: Criminal Cases (4th ed. 2007, updated Jan. 2017),
§ 2.10.30).
17
human being with or without malice.” And the trial court instructed
the jury on the various predicate offenses Wilson had been charged
with.
Those instructions, taken together, adequately informed the
jury about the principles of proximate cause that applied to this
case. See Ware v. State, 305 Ga. 457, 459-460 (2) (826 SE2d 56)
(2019) (concluding that the same set of instructions fully informed
the jury that it could not convict the defendant of felony murder
unless it found that he committed a predicate felony that
proximately caused the victim’s death). See also Campbell-Williams,
309 Ga. at 588 (2) (a) (jury instructions are “read and considered as
a whole in determining whether there is error”) (citation omitted).
The jury was instructed that it could not convict Wilson of felony
murder unless it found that he was guilty of one of the charged
predicate felonies; that the murder was “done in the commission of,”
and “at least concurrent with” and “not collateral to,” the predicate
felony; and that the predicate felony was related to the murder “in
an actual and material sense.” Following those instructions—as
18
jurors are presumed to do, see Hill v. State, 310 Ga. 180, 190 (6) (850
SE2d 110) (2020)—the jury could not have found Wilson guilty of
felony murder unless it found he committed one of the predicate
felonies and that that felony proximately caused Griffin’s death.
Wilson’s requested instruction also would have told the jury
that a predicate felony for a felony murder must itself be inherently
dangerous. But our “clear precedent” is that such an instruction is
not required, even when requested. Davis, 290 Ga. at 762 (5) (b). See
also State v. Kelly, 290 Ga. 29, 34 (2) (b) (718 SE2d 232) (2011) ( “our
case law runs contrary to” the notion that a trial court must “instruct
the jury explicitly that it must find as an element of the felony
murder that the underlying felony…was committed in a manner
that created a foreseeable risk of death”). So the trial court’s failure
to give that part of the instruction was not error.
Because the trial court fully and correctly instructed the jury
on the relevant points of law, it was not error to fail to give the
additional explanatory instruction that Wilson requested. See, e.g.,
Stafford v. State, 312 Ga. 811, 821 (4) (865 SE2d 116) (2021) (where
19
trial court gave updated version of pattern jury instruction on
causation in felony murder, no additional instruction on unforeseen
or intervening cause was needed because, “considered as a whole,
the charge given by the trial court was a correct statement of the
law with regard to proximate cause in a felony murder case”);
Whiting v. State, 296 Ga. 429, 431 (2) (768 SE2d 448) (2015) (trial
court not required to give separate charge on proximate cause when
court’s instructions “adequately informed the jury that Whiting
could only be found guilty of felony murder if the conspiracy to
conduct the marijuana transaction was the proximate cause of [the
victim’s] death”) (citation and punctuation omitted).
6. Wilson asked for a jury instruction on conspiracy to possess
marijuana as a lesser included felony or misdemeanor offense of
conspiracy to purchase marijuana. The trial court declined to give
that instruction, and Wilson contends this was error.
A written request to charge a lesser included offense “must
always be given if there is any evidence that the defendant is guilty
of the lesser included offense.” Soto v. State, 303 Ga. 517, 520 (2)
20
(813 SE2d 343) (2018) (citation and punctuation omitted). The
evidence “does not need to be persuasive, but it must exist.” Id.
(citation and punctuation omitted). If there is no evidence that the
defendant committed the lesser offense, then the trial court is
justified in refusing to charge on it. Id. And when the evidence shows
that the defendant could have committed only the greater offense as
charged or no crime at all, an instruction on a lesser included offense
is not required. See Walker v. State, 311 Ga. 719, 722 (2) (859 SE2d
25) (2021). Whether the evidence warranted the requested
instruction is a legal question that we review de novo. See id.
Here, even assuming that conspiracy to possess is a lesser
included offense of conspiracy to purchase, 3 the evidence could not
support a finding that Wilson was guilty only of conspiracy to
possess marijuana and not conspiracy to purchase. It is undisputed
that Wilson at least knew about the plan to buy more marijuana
3 The State argues that no instruction on conspiracy to possess was
necessary because actual possession is not a lesser included offense of
conspiracy to purchase. We do not reach that question, but we assume without
deciding that conspiracy to possess is a lesser included offense of conspiracy to
purchase.
21
from Griffin. If he conspired with Cayo and Lewis to possess that
marijuana, it could only have been through that purchase. In other
words, the two possible conspiracies were the same: the plan to
possess the marijuana necessarily included the step of purchasing it
from Griffin. And Wilson could be guilty of that conspiracy even if,
as he argues, he did not actively participate in planning the
transaction. See OCGA § 16-4-8 (“A person commits the offense of
conspiracy to commit a crime when he together with one or more
persons conspires to commit any crime and any one or more of such
persons does any overt act to effect the object of the conspiracy.”)
(emphasis added); Martin v. State, 310 Ga. 658, 661 (1) (852 SE2d
834) (2020) (“all of the participants in a conspiracy are criminally
responsible for the acts of each, committed in the execution of the
conspiracy, and which may be said to be a probable consequence of
the conspiracy, even though the particular act may not actually have
been part of the plan”) (citation and punctuation omitted). In short,
Wilson either was part of the conspiracy to purchase, or he was not
involved at all, but he could not have been guilty only of conspiracy
22
to possess. See Walker, 311 Ga. at 722-723 (2). So the trial court was
not required to give an instruction on that offense as a lesser
included offense of conspiracy to purchase. See id.
7. Wilson contends that the trial court erred by declining to
give his requested instruction on the proof needed to show his
participation in the conspiracy. The requested instruction would
have told the jury that Wilson could not be guilty of conspiracy
unless the State proved “that a conspiracy existed, that the
defendant knew the essential objectives of that conspiracy, and that
armed with that knowledge he participated” in the conspiracy.
We see no error because the points of law in Wilson’s requested
instruction were covered in the court’s other instructions. The trial
court gave jury instructions that track the current pattern
instructions on the defendant’s criminal intent, mere presence, and
mere association. See Georgia Suggested Pattern Jury Instructions,
Vol. II: Criminal Cases (4th ed. 2007, updated Aug. 2022), §§ 1.43.10,
1.43.30, 1.43.31. Those instructions informed the jury that the State
had to prove beyond a reasonable doubt that Wilson “knowingly and
23
intentionally participated in or helped in the commission of” the
conspiracy, and that Wilson must be acquitted if the jury found that
he did not knowingly or intentionally participate in the conspiracy,
that he was merely present at the scene, or that he was merely
associated with other guilty parties. See id. §§ 1.43.10, 1.43.30,
1.43.31. We see no meaningful difference between proof that Wilson
“knowingly and intentionally” participated in the conspiracy and
proof that he “knew the essential objectives of” the conspiracy and
“armed with that knowledge…participated” in it. Wilson’s requested
jury instruction added no essential point of law to the existing
instructions, so it was not error for the trial court to decline to give
it. See Francis v. State, 296 Ga. 190, 194 (2) (766 SE2d 52) (2014)
(“[a] trial court does not abuse its discretion in refusing to give a jury
charge in the exact language requested when the charge given
substantially covers the correct principles of law”) (citation and
punctuation omitted). See also, e.g., Stafford, 312 Ga. at 821 (4) (no
additional jury instruction necessary when instructions given
adequately covered applicable legal principles).
24
8. Wilson contends that the trial court erred by admitting
evidence that, in Wilson’s view, was irrelevant and prejudicial. He
challenges two pieces of evidence: the “Dope” rap video and a series
of Instagram messages from Wilson to Cayo. We review a trial
court’s evidentiary rulings for abuse of discretion. See Jones v. State,
305 Ga. 653, 655 (2) (827 SE2d 254) (2019).
Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without
the evidence.” OCGA § 24-4-401. Generally, relevant evidence is
admissible. See OCGA § 24-4-402. The standard for relevance is “a
liberal one,” and relevant evidence is admissible “even if it has only
slight probative value.” Jordan v. State, 313 Ga. 841, 844 (2) (874
SE2d 67) (2022) (citation and punctuation omitted).
Relevant evidence may nevertheless be excluded “if its
probative value is substantially outweighed by the danger of unfair
prejudice.” OCGA § 24-4-403 (“Rule 403”). But the exclusion of
evidence under Rule 403 is an “extraordinary remedy” that should
25
be used “only sparingly.” Jordan, 313 Ga. at 844 (2) (citation and
punctuation omitted). This is because “the major function of Rule
403 is to exclude matter of scant or cumulative probative force,
dragged in by the heels for the sake of its prejudicial effect.” Hood v.
State, 299 Ga. 95, 103 (4) (786 SE2d 648) (2016) (cleaned up). And
“[p]rejudice is not ‘unfair’ simply because it tends to inculpate the
defendant in an awful crime.” Morgan v. State, 307 Ga. 889, 897 (3)
(c) (838 SE2d 878) (2020). “[I]nculpatory evidence is inherently
prejudicial; it is only when unfair prejudice substantially outweighs
probative value that Rule 403 permits exclusion.” Id. (citation and
punctuation omitted). The prejudicial effect of evidence is “unfair” if
the evidence has “the capacity…to lure the factfinder into declaring
guilt on a ground different from proof specific to the offense
charged,” or an “undue tendency to suggest decision on an improper
basis, commonly, though not necessarily, an emotional one.” Old
Chief v. United States, 519 U.S. 172, 180 (117 SCt 644, 136 LE2d
574) (1997) (citation and punctuation omitted).
With these principles in mind, we turn to the two pieces of
26
evidence that Wilson challenges.
(a) Rap Video
As described above, Cayo, Lewis, and Wilson appeared in a
homemade rap video entitled “Dope.” In the video, Cayo and Lewis
“flashed” a handgun and identified it as a Smith & Wesson SD-9,
which was capable of having fired the bullet recovered from Griffin’s
body, and which Cayo and West testified was the murder weapon.
Also in the video, Cayo said that he “hit [his] first lick,” and in Cayo’s
proffer (a transcript of which was introduced at trial) he explained
how “hitting a lick” is slang for committing a robbery. The video was
shot on November 30, 2017—eleven days after the murder—and
uploaded to YouTube a few weeks later. In the period between the
murder and the shooting of the video, Cayo exchanged messages on
Instagram with another person about wanting to sell the gun, but
wanting to wait until after he had used it in a video.
The “Dope” video was certainly relevant. Most importantly, it
connected the defendants to the murder weapon, and it also
implicated Cayo in a robbery, very close in time to the crimes here,
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thus making it more likely that it was the defendants who possessed
the murder weapon and used it to kill Griffin. And although the
State also introduced still photos of Cayo and Lewis holding the gun,
the video was not merely cumulative: among other things, it added
an incriminating context to Cayo’s Instagram messages, sent in the
days after the crime, about wanting to sell a gun but wanting to use
it in a rap video first. The video also furnished further evidence of a
conspiracy by showing Wilson, Cayo, and Lewis together in the days
after the shooting, brandishing a gun of the same model as the
murder weapon and boasting of having committed a robbery. See
McLeod, 297 Ga. at 103 (2) (criminal intent to participate in
conspiracy can be shown by actions after the criminal act).
The video’s probative value was not substantially outweighed
by the danger of unfair prejudice. A defendant’s appearance in a rap
video—even one like this one replete with obscenities and racial
slurs—is not per se prejudicial. And Wilson does not endeavor to
explain what specifically about this video might cause unfair
prejudice. The video shows the defendants boasting about making
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money in a violent drug trade, but they were charged with robbing
a drug dealer shortly before the video was made. This is not a
question of evidence that could inflame the passion of the jury for a
reason that is irrelevant to the guilt or innocence of the defendant.
Compare Morgan, 307 Ga. at 897 (3) (c) (unfair prejudice from video
of police officer performing CPR on a baby who had been murdered,
when video gave no indication of the identity of the perpetrator),
with Pierce v. State, 302 Ga. 389, 394-395 (1) (d) (807 SE2d 425)
(2017) (no unfair prejudice from video of sexual assault victim
sobbing as he described sexual encounter with defendant, because
video was “relevant as evidence of the crimes charged”). In short,
although the video may have cast Wilson in an unflattering light, it
did not do so unfairly. So the trial court did not abuse its discretion
by admitting the video under Rule 403. 4
4 Wilson also argues that the rap video was inadmissible as “other act”
evidence under OCGA § 24-4-404 (b) (“Rule 404 (b)”). The trial court did not
specify on what basis it was admitting the evidence, but it is apparent that the
evidence was admitted as intrinsic, not under Rule 404 (b). The State offered
the video primarily as relevant evidence under OCGA §§ 24-4-401 and 24-4-402—suggesting Rule 404 (b) only as an alternative basis for admissibility—
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(b) Instagram Messages
Nine months after the murder, after both Wilson and Cayo had
been charged, Wilson sent a series of messages to Cayo on
Instagram. Wilson wrote, “Congrats,” then “Keep grinding,”
followed by “I miss you too no cap bruh it’s jus my lawyer Nd 12
watchin my page,” and finally, “It’s a lot, but ima chop it up witchu.”
Those messages were also relevant. They showed that Wilson
and Cayo were still on good terms while they were both being
prosecuted for the murder, which tended to make it less likely that
Wilson was an unwitting bystander to a murder carried out solely
by Cayo or Lewis. The probative value may have been slight, but
that is enough to satisfy the relevance standard. See Jordan, 313
Ga. at 844 (2). And we see no danger of unfair prejudice from the
and argues only relevance on appeal. The State did not give notice of intent to
introduce Rule 404 (b) evidence, see OCGA § 24-4-404 (b) (requiring State to
give “reasonable pretrial notice” of its intent to offer such evidence), and no
limiting instruction was given as to how the jury could consider the video.
Moreover, as discussed above, the video is evidence of the defendants’ guilt in
this crime. See, e.g., Roberts v. State, __ Ga. __, __ (2) (b) (880 SE2d 501) (2022) (concluding that evidence placing the murder weapon in the defendant’s hands
days before the murder was intrinsic to the charged crime and had substantial
probative value). We therefore do not address whether it was admissible in the
alternative under Rule 404 (b).
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messages. Wilson’s friendliness with Cayo was a relevant fact, and
nothing in the content of the messages hints at an “undue tendency
to suggest decision on an improper basis.” Old Chief, 519 U.S. at
180. The trial court did not abuse its discretion in admitting them.
9. Finally, Wilson contends that the trial court improperly
sentenced him to life without parole. He argues that the sentence is
unlawful because the jury did not find any aggravating factors in
the crime and because the trial court relied on improper
considerations. As to the second point, Wilson points to the trial
court’s remarks, in an order denying his motion to reduce his
sentence, that “the evidence points to Wilson being the actual
shooter” and that Wilson “fail[ed] to accept and recognize his
responsibility.”
Neither contention has merit. A defendant convicted of murder
is eligible for a sentence of life without parole, regardless of whether
any aggravating factors are found. See OCGA § 16-5-1 (e) (1) (“A
person convicted of the offense of murder shall be punished by death,
by imprisonment for life without parole, or by imprisonment for
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life.”); Parks v. State, 305 Ga. 712, 714 (2) (827 SE2d 669) (2019)
(noting that the 2009 revisions to the sentencing statute “remov[ed]
requirements that a jury find an aggravating circumstance before
imposing the sentence of life without parole”) (citation omitted);
Lewis v. State, 301 Ga. 759, 767 (4) (804 SE2d 82) (2017) (“no
additional facts are required to be found by the jury for the
imposition of life without parole”). And a trial court, in imposing a
sentence, “may consider any evidence that was properly admitted
during the guilt-innocence phase of the trial,” as well as “the conduct
and attitude of the defendant during trial.” Blake v. State, 273 Ga.
447, 450 (4) (542 SE2d 492) (2001). The trial court is not, in other
words, limited to considering only those facts that the jury finds are
proven beyond a reasonable doubt. It was within the trial court’s
discretion to sentence Wilson to life without parole, and the record
does not show that the court relied on improper considerations in
doing so.
Judgment affirmed. All the Justices concur.
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