310 Ga. 443
FINAL COPY
S20A1218. MORRIS v. THE STATE.
MELTON, Chief Justice.
Following an August 6-10, 2018 jury trial, Tommy Lee Morris
was convicted of felony murder and possession of a firearm by a
convicted felon in connection with the shooting death of Tony
Foster.1 On appeal, Morris contends only that the evidence
1 On May 23, 2017, Morris was indicted by a Clarke County grand jury
for malice murder (Count 1), felony murder predicated on aggravated assault
(Count 2), felony murder predicated on possession of a firearm by a convicted
felon (Count 3), aggravated assault with a deadly weapon (Count 4), two counts
of unlawful possession of a firearm by a convicted felon under OCGA § 16-11-
133 (prior felony convictions involving certain specified crimes, including
crimes involving the use of a firearm) (Counts 5 and 6), possession of a firearm
during the commission of a crime (Count 7), and two counts of possession of a
firearm by a convicted felon in violation of OCGA § 16-11-131 (possession of a
firearm by convicted felons and first offender probationers where prior felony
conviction does not have to involve use of a firearm) (Counts 8 and 9). At his
August 2018 jury trial, Morris was acquitted of malice murder, but was found
guilty on the remaining counts. He was sentenced to life for felony murder
predicated on aggravated assault (Count 2) and fifteen years consecutive for
unlawful possession of a firearm after having previously been convicted of an
aggravated assault involving the use of a firearm (Count 5). The remaining
counts were vacated or merged for sentencing purposes. After Morris’s trial
counsel withdrew from the case, Morris filed a pro se motion for new trial on
September 4, 2018, which he amended with new counsel on June 28, 2019.
Following a November 11, 2019 hearing, the motion was denied on March 5,
2020. Morris filed a timely notice of appeal on March 30, 2020, and his appeal
presented at trial was insufficient to support his convictions.2 We
affirm.
When evaluating the sufficiency of evidence, “the relevant
question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime[s] beyond a reasonable
doubt.” (Citation and emphasis omitted.) Jackson v. Virginia, 443 U.
S. 307, 319 (III) (B) (
99 SCt 2781, 61 LE2d 560) (1979). On appeal,
“this Court does not re-weigh the evidence or resolve conflicts in
testimony, but instead defers to the jury’s assessment of the weight
and credibility of the evidence.” (Citation omitted.) Curinton v.
State,
283 Ga. 226, 228 (
657 SE2d 824) (2008).
was docketed to the August 2020 term of this Court and submitted for a
decision on the briefs.
2 Because Morris was convicted only on Counts 2 and 5 of the indictment,
his arguments relating to the sufficiency of the evidence to support guilty
verdicts on the counts that were vacated or merged with Counts 2 and 5 are
moot and will not be addressed. See Anderson v. State, 299 Ga. 193, 196 (1) n.4
(
787 SE2d 202) (2016) (a defendant is not “convicted” on counts that are
vacated or that merge with other offenses for sentencing purposes, and
challenges to the sufficiency of evidence to support those non-existent
convictions are moot). See also OCGA § 16-1-3 (4) (“‘Conviction’ includes a final
judgment of conviction entered upon a verdict or finding of guilty of a crime
upon a plea of guilty.”).
2
Viewed in the light most favorable to the verdict, the evidence
presented at trial reveals that, on March 5, 2017, Foster went with
Morris’s estranged wife, Vernita, to a club called the Blue Moon.
Morris, a convicted felon,3 was already at the Blue Moon when
Vernita and Foster arrived, and his car was in the parking lot.
Vernita was romantically involved with Foster, and Morris and
Foster had argued a number of times in the past about Foster’s
relationship with Vernita.
3 The State used Morris’s March 1993 plea to an aggravated assault
charge involving the use of a firearm to prove his convicted felon status for
purposes of Count 5 of the indictment. Morris contends that, because he pled
nolo contendere to the 1993 charge and was sentenced to five years of probation
as a first offender, the State did not prove that he had been “convicted” of that
1993 offense. See OCGA §§ 17-7-95 (c) (“Except as otherwise provided by law,
a plea of nolo contendere shall not be used against the defendant in any other
court or proceedings as an admission of guilt or otherwise or for any
purpose[.]”); 16-1-3 (4). However, Morris does not dispute that the State also
showed that on September 7, 1993, the trial court revoked Morris’s first
offender probationer status after he violated the terms of his probation,
adjudicated him guilty of the felony aggravated assault, and resentenced him.
This made Morris a convicted felon. See, e.g., Roland v. Meadows, 273 Ga. 857,
858 (1) (
548 SE2d 289) (2001) (“When a first offender probationer violates the
terms of his probation and the trial court enters an adjudication of guilt, the
court may impose any sentence permitted by law for the offense the
probationer has been found guilty of committing.”); Daniels v. State,
271 Ga.
167 (
517 SE2d 66) (1999) (defendant was a “convicted felon” after trial court
revoked defendant’s first offender status and adjudicated him guilty of felony
armed robbery based on defendant’s violation of terms of his first offender
probation). Morris’s argument to the contrary is without merit.
3
Morris approached Foster and Vernita inside the Blue Moon,
put his arm around Vernita, and thanked her for what she had done
to support their children. Foster and Morris did not speak to each
other at that time, but Morris told Vernita that he was going to go
outside to take off his jacket. Vernita told Foster not to go, because
she feared that Morris would “shoot the place up.” Nevertheless,
Foster exited the club, followed by Vernita and Morris. Once outside,
Foster told a friend who was also at the club that he was going to
“straighten this [out with Morris]” because Foster “felt
disrespected.” Morris then said to Foster, “Hold up, wait right there;
I got something for your a**,” as he went to his car to retrieve an
SAR-1 rifle. After retrieving the rifle from his car, Morris said to the
unarmed Foster, “Who you think you f**king with?” and opened fire
on him at close range in front of several witnesses. Foster fell to the
ground, and seemed “lifeless” after the first shot, but Morris
continued shooting Foster while he was lying face down. In the end,
Morris shot Foster at least 19 times, killing him, with four shots
being delivered to the back of his head after he had fallen to the
4
ground and several others being delivered to his back while he
remained on the ground. At trial, Morris admitted shooting Foster
but claimed that he had done so in self-defense.
The evidence presented was more than sufficient for a rational
jury to reject Morris’s theory of self-defense and find him guilty
beyond a reasonable doubt of the crimes for which he was convicted.
See, e.g., Walker v. State, 306 Ga. 44 (2) (
829 SE2d 121) (2019)
(Overwhelming evidence authorized the jury to reject self-defense
theory and find the defendant guilty of murder where the defendant
shot the victim in the back while she was trying to get away from
him and the defendant “continued to brutally stab her to death after
she had fallen as a result of being shot.”).
Judgment affirmed. All the Justices concur, except Warren, J.,
not participating.
5
Decided November 16, 2020.
Murder. Clarke Superior Court. Before Judge Porter, Senior
Judge.
John W. Donnelly, for appellant.
Brian V. Patterson, Assistant District Attorney; Christopher
M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy
Attorney General, Paula K. Smith, Senior Assistant Attorney
General, Matthew D. O’Brien, Assistant Attorney General, for
appellee.
6
