305 Ga. 725
FINAL COPY
S19A0439. CARPENTER v. THE STATE.
BLACKWELL, Justice.
Benjamin Carpenter was tried by a DeKalb County jury and
convicted of murder and possession of a firearm during the
commission of a felony in connection with the fatal shooting of Lucio
Vasquez. Carpenter appeals, contending that the trial court erred in
its resolution of certain evidentiary issues and in its charge to the
jury. Upon our review of the record and briefs, we find no merit in
these claims of error, and we affirm. 1
1 Vasquez was killed on August 11, 2016. A grand jury indicted
Carpenter and Christian Hernandez in November 2016, charging both with
murder with malice aforethought, murder in the commission of an aggravated
assault, murder in the commission of an attempted armed robbery, aggravated
assault, attempted armed robbery, and possession of a firearm during the
commission of a felony. Before trial, Hernandez pleaded guilty to voluntary
manslaughter and possession of a firearm during the commission of a felony.
Carpenter was tried in May 2017, and Hernandez testified as a witness for the
prosecution. The jury acquitted Carpenter of murder with malice aforethought,
murder in the commission of an aggravated assault, and aggravated assault.
It found Carpenter guilty, however, on the other charges. The trial court
sentenced Carpenter to imprisonment for life for murder in the commission of
an attempted armed robbery, and it handed down a suspended sentence of five
years for possession of a firearm during the commission of a felony. The
attempted armed robbery merged into the murder. Carpenter filed a timely
motion for new trial, which he subsequently amended in May 2018. The trial
1. Viewed in the light most favorable to the verdict, the record
shows that Carpenter went to a vacant house on the afternoon of
August 11, 2016 to smoke marijuana with his friends, Christian
Hernandez and Tyler Wofford. After they smoked all of their
marijuana, Carpenter suggested that they rob a drug dealer. He
then produced three handguns from his bag, giving one to each of
his friends and keeping the third for himself. Hernandez called
Vasquez, and they made arrangements to meet at a nearby
apartment complex on Lavista Road in DeKalb County, ostensibly
so that they could purchase marijuana from Vasquez.
Vasquez’s girlfriend drove him to the apartment complex.
When they arrived, Carpenter and Hernandez got into the back seat
of her car, where Carpenter sat behind the girlfriend, and
Hernandez sat behind Vasquez. Wofford did not enter the car, but
he stood nearby. The girlfriend saw Carpenter pull out a Raven .25-
caliber handgun, and he fired two shots. Carpenter then exited the
court denied that motion in September 2018, and Carpenter filed a timely
notice of appeal. The case was docketed in this Court for the term beginning in
December 2018 and was argued on March 20, 2019.
car and ran back to the vacant house, accompanied by Hernandez
and Wofford. Vasquez suffered gunshot wounds to his head and
chest, and he subsequently died from his wounds.
Vasquez’s girlfriend identified Hernandez, and Hernandez
eventually agreed to cooperate with the prosecution and testified
against Carpenter at trial. A forensic examination of the girlfriend’s
car led to the discovery of Carpenter’s DNA in the back seat.
Investigators also found a .25-caliber bullet on the driver’s side of
the back seat floorboard (where Carpenter had been seated), and
they collected bullet fragments that were consistent with shots fired
from a Raven .25-caliber.
Carpenter does not dispute that the evidence is legally
sufficient to sustain his convictions. But consistent with our usual
practice in murder cases, we have reviewed the record for ourselves
to assess the sufficiency of the evidence. We conclude that the
evidence presented at trial, when viewed in the light most favorable
to the verdict, is sufficient to authorize a rational trier of fact to find
Carpenter guilty of the crimes of which he was convicted. See
Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (
99 SCt 2781, 61
LE2d 560) (1979).
2. Carpenter claims that the trial court erred when it limited
his cross-examination of Hernandez. In particular, Carpenter
wanted to elicit testimony that, a few months before Vasquez was
killed, Hernandez had threatened a man who caught Hernandez
breaking into his property. The man tackled Hernandez, and after
Hernandez was arrested, Hernandez told a detective that he was
going to kill the man who tackled him and caused him to be arrested.
According to Carpenter, this “other acts” evidence is admissible
under OCGA § 24-4-404 (b) to show that Hernandez had a motive to
kill Vasquez. The trial court, however, refused to allow Carpenter to
elicit this evidence on cross-examination.2 In doing so, the trial court
did not abuse its discretion.
2 We note that Carpenter was permitted to elicit testimony on cross-
examination that Hernandez had been caught “going into . . . multiple people’s
cars” and was on probation for “taking a bike from a house” in April 2016.
Carpenter also was able to cross-examine Hernandez about his status as a
probationer and his plea to reduced charges in this case.
Evidence that Hernandez threatened to kill a man certainly
would tend to show that Hernandez has a general propensity to
threaten others with violence, but that is not a permissible purpose
for evidence offered under OCGA § 24-4-404 (b). As we have
explained before, extrinsic evidence is admissible to show motive
only when it is “logically relevant and necessary to prove something
other than [a] propensity to commit the crime charged.” Brooks v.
State, 298 Ga. 722, 726 (2) (
783 SE2d 895) (2016) (citation and
punctuation omitted). Carpenter argues that the evidence at issue
shows that Hernandez has not only a general propensity to threaten
violence, but also a more particularized desire to seek violent
retribution against someone who has caused him trouble. A major
problem with this argument is the absence of any evidence that
Vasquez was killed as retribution for anything. Indeed, Carpenter
argued at trial not that Vasquez was killed by Hernandez as
retribution for causing Hernandez trouble, but rather, that Vasquez
was killed by someone who was motivated to kill “for no reason.”
Evidence that Hernandez had a desire to seek violent retribution
against another person on another occasion was not “logically
relevant and necessary” to establish motive under OCGA § 24-4-404
(b), and the trial court did not abuse its discretion when it refused
to allow Carpenter to elicit such evidence on cross-examination. Cf.
State v. Jones,
297 Ga. 156, 158 (1) (
773 SE2d 170) (2015). 3
3. Carpenter also claims that the trial court erred when it
charged the jury that “a conspiracy is an agreement between two or
more persons to do an unlawful act, and . . . [w]hen persons associate
themselves in an unlawful enterprise, any act done by any party to
the conspiracy to further the unlawful enterprise is considered to be
the act of all of the conspirators.” Carpenter argues that this charge
is misleading because the trial court failed to specify that the
“unlawful enterprise” at issue was an “unlawful armed robbery.”
3 Carpenter also contends that the trial court erred when it allowed the
prosecution to elicit testimony about the source of the handguns that
Carpenter and his friends carried to the apartment complex, arguing that the
presentation of this evidence violated a pretrial agreement that the
prosecution would offer no such evidence. But we fail to find any such
agreement in the record of the pretrial proceedings. The record does reveal a
different agreement — that the prosecution would not present evidence about
firearms found at the time Carpenter was arrested, since those firearms were
“not connected to [this] case at all” — but that agreement is not implicated by
the testimony about which Carpenter now complains.
Absent that specification, he says, the jury might have been misled
to believe that it could find him guilty of murder simply because he
had agreed to participate in an “unlawful enterprise” to purchase
marijuana from Vasquez, even if the jury found that it was
Hernandez who killed Vasquez, that Carpenter never agreed to
participate in any enterprise other than to purchase marijuana, and
that Hernandez shooting Vasquez was beyond the scope of the
enterprise to purchase marijuana.
We conclude that the instruction about which Carpenter
complains is not misleading. To begin, we have held before that “[i]t
is not error to charge on the subject of conspiracy when the evidence
tends to show a conspiracy, even if a conspiracy is not alleged in the
indictment.” Edge v. State, 275 Ga. 311, 313 (6) (
567 SE2d 1) (2002)
(citation and punctuation omitted). We also have held that, when a
trial court is authorized to charge the jury on conspiracy “as a theory
by which the jury could connect [the defendant] as a party to the
crimes in question,” the trial court properly may charge the jury in
terms of an “unlawful enterprise” without specifying the object of
the enterprise. Mister v. State,
286 Ga. 303, 307-308 (5) (b) (
687
SE2d 471) (2009). Moreover, when we are presented with a claim
that a particular instruction is misleading, “[w]e do not evaluate
jury charges in isolation, but rather consider them as a whole to
determine whether there is a reasonable likelihood the jury
improperly applied a challenged instruction.” Salahuddin v. State,
277 Ga. 561, 564 (3) (
592 SE2d 410) (2004).
Here, in addition to the instruction on conspiracy, the trial
court charged the jury that the prosecution had the burden “to prove
every material allegation of the indictment and every essential
element of the crimes charged beyond a reasonable doubt,” that the
prosecution had to show that Carpenter committed each crime
knowingly and intentionally, and that the jury was authorized to
find Carpenter guilty of felony murder only if it found beyond a
reasonable doubt that Vasquez was killed in connection with one of
the predicate felonies alleged in the indictment — aggravated
assault and attempted armed robbery. The trial court also charged
the jury in connection with its instruction on conspiracy that a
conspirator is responsible for the acts of other parties to the
conspiracy “only insofar as such acts are naturally and necessarily
done to further the conspiracy.”
We see no likelihood that the jury would have been misled by
these instructions to believe that it could find Carpenter guilty of
felony murder simply because it believed he was involved in an
uncharged enterprise to purchase marijuana. To the contrary, we
are satisfied that the jury charge as a whole adequately informed
the jury that it could find Carpenter guilty of felony murder only if
it found beyond a reasonable doubt that he was a party (as a
conspirator or otherwise) to one of the felonies charged in the
indictment as a predicate of felony murder. See Ware v. State, 305
Ga. 457 (2) (
826 SE2d 56) (2019) (jury charges as a whole
“adequately informed the jury that the defendant could only be
found guilty of felony murder if the predicate felony was the
proximate cause of the victim’s death”) (citation and punctuation
omitted). The charge on conspiracy was not error.
Judgment affirmed. All the Justices concur.
Decided April 15, 2019 -- Reconsideration denied May 6,
2019.
Murder. DeKalb Superior Court. Before Judge Hunter.
Brian Steel; Garland, Samuel & Loeb, Donald F. Samuel, for
appellant.
Sherry Boston, District Attorney, Peter K. Johnson, Emily K.
Richardson, Anna G. Cross, Assistant District Attorneys;
Christopher M. Carr, Attorney General, Patricia B. Attaway Burton,
Deputy Attorney General, Paula K. Smith, Senior Assistant
Attorney General, Michael A. Oldham, Assistant Attorney General,
for appellee.
