¶1NOTICE: 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.
¶2In the Supreme Court of Georgia
¶3 Decided: October 25, 2022
¶4 S22A0511. DRENNON v. THE STATE.
¶5 WARREN, Justice.
¶6 Appellant Carlos Drennon appeals from his convictions for
¶7malice murder and participation in criminal street gang activity
¶8stemming from the shooting death of Randy Griffin.1 On appeal,
¶9 Griffin was killed on June 10, 2007. On June 27, 2008, Drennon and 1
¶1011 other defendants were charged in a 60-count indictment returned by a Fulton County grand jury. Drennon was indicted on 15 counts and was jointly tried with Tiffany Bankston, Maurice Hargrove, Edward Morris, and Daquan Stevens for five crimes arising from the shooting death of Randy Griffin on June 10, 2007: malice murder, conspiracy to commit murder, felony murder predicated on aggravated assault, aggravated assault, and possession of a firearm during the commission of a felony. Those five defendants, along with Vincent Morris (Edward Morris’s brother), were also charged with criminal street gang activity for crimes of violence that occurred between September 2006 and October 2007. In addition, Hargrove, Stevens, and Edward and Vincent Morris were tried on four other counts relating to crimes committed against Griffin and Lacey Magee that occurred on May 22, 2007. In August 2007, before the indictment was returned in the case that is before us now on appeal, Drennon pled guilty to two counts of aggravated assault arising from the May 22, 2007, incident. In May 2009, a jury found Drennon not guilty of the firearm offense but convicted him of the remaining crimes. On May 5, 2009, the trial court Drennon contends, among other things, that the evidence is
¶11insufficient to support his convictions, that the trial court erred in
¶12denying his motion to sever his trial from that of his co-defendants,
¶13and that he was denied his right to be present at trial when he was
¶14sentenced Drennon to life in prison for malice murder and to 15 consecutive years in prison for criminal street gang activity. The felony murder count was vacated by operation of law, and the trial court merged the other counts for sentencing purposes. On May 28, 2009, Drennon filed a motion for new trial, which he amended with new counsel in January and September 2015. In 2014, the trial court placed any open counts remaining against Drennon on the dead docket. On January 13, 2020, the trial court denied Drennon’s motion for new trial, as amended. On January 24, 2020, Drennon filed a notice of appeal, and the case was docketed in this Court to the August 2021 term. However, because the counts of the indictment against Drennon that were dead-docketed by the trial court meant that Drennon’s case remained pending in the trial court, he was required to follow the procedures for interlocutory appeal to obtain review of his convictions. See OCGA § 5-6-34 (b); Seals v. State, 311 Ga. 739 (860 SE2d 419) (2021); Spears v. State, 360 Ga. App. 776 (861 SE2d 619) (2021). On August 6, 2021, we dismissed Drennon’s appeal because he failed to follow those procedures. On remand, the State was unwilling to dismiss the unresolved dead-docketed charges. On November 9, 2021, the trial court therefore vacated its January 13, 2020, order denying Drennon’s motion for new trial, entered a new order denying that motion, and granted Drennon a certificate of immediate review. Drennon filed an application for interlocutory appeal, which we granted on December 9, 2021. Drennon thereafter filed a timely notice of appeal, see OCGA § 5-6-34 (b), and the case was docketed in this Court to the April 2022 term and orally argued on April 21, 2022. This Court has already affirmed the convictions of Edward Morris and Stevens, both of whom were convicted of murder, criminal street gang activity, and other crimes. See Morris v. State, 294 Ga. 45 (751 SE2d 74) (2013); Stevens v. State, 286 Ga. 692 (690 SE2d 816) (2010). The Court of Appeals has affirmed the convictions of Vincent Morris for criminal street gang activity and other crimes. See Morris v. State, 322 Ga. App. 682 (746 SE2d 162) (2013). 2 not included in certain bench conference discussions.
¶15 We conclude that the evidence is sufficient to support
¶16Drennon’s convictions for malice murder and for participating in
¶17criminal gang activity and that the trial court did not fail to exercise
¶18its discretion as the “thirteenth juror” when ruling on the general
¶19grounds of Drennon’s motion for new trial, so we affirm those parts
¶20of the trial court’s judgment. However, because Drennon’s right-to-
¶21be-present claim was raised for the first time on appeal and because,
¶22as more fully explained below, we cannot easily reject that claim on
¶23the existing record, see Champ v. State, 310 Ga. 832, 844 (854 SE2d
¶24706) (2021), we vacate the trial court’s judgment in part and remand
¶25the case for the trial court to hold a hearing and rule on Drennon’s
¶26constitutional claim in the first instance. We therefore do not
¶27address Drennon’s remaining enumerations of error.
¶28 1. Viewed in the light most favorable to the jury’s verdicts, the
¶29evidence presented at trial showed the following. The “International
¶30Robbing Club,” or “IRC,” was “a loosely affiliated group of friends
¶31and associates who planned and executed so-called ‘licks,’ robberies
¶32 3 of individuals believed to possess significant amounts of cash, drugs,
¶33jewelry, and other high value items.” Morris v. State, 294 Ga. 45, 46
¶34(751 SE2d 74) (2013). Marciell Easterling, a co-indictee who
¶35testified at Drennon’s trial under an immunity agreement, was
¶36present when the IRC was formed in late 2005 or early 2006. He
¶37testified that Daquan Stevens, Edward Morris, and Jeremy Dunn
¶38were original members of the group and that Drennon, Maurice
¶39Hargrove, and Vincent Morris joined later. According to Easterling,
¶40the group would “hang out” and “plan things” like robberies. He
¶41added that the IRC would get “money, drugs, jewelry, guns[, and]
¶42merchandise” from the robberies. Tiffany Bankston testified that
¶43Drennon told her that he had participated in “licks” with Easterling
¶44and Stevens. Members of the IRC, including Drennon, discussed
¶45robbing Griffin after Edward Morris saw him at a nightclub wearing
¶46Breitling-brand jewelry.
¶47 In the early morning hours of May 22, 2007, members of the
¶48IRC received information that Griffin was at a nightclub in Atlanta.
¶49Drennon, Hargrove, and the Morrises drove to the nightclub in one
¶50 4 car, while Easterling, Stevens, and a third IRC member, Jonathon
¶51Collins, drove there in a second car. Members of the IRC knew
¶52where Griffin lived, and once he left the nightclub, Drennon’s group
¶53drove ahead of Griffin to wait for him at his residence. Meanwhile,
¶54Easterling’s group followed Griffin. “When Griffin and [Lacey]
¶55Magee, his girlfriend, pulled into Griffin’s driveway and exited their
¶56cars, shots were fired at them from a gold Toyota Avalon occupied”
¶57by Drennon’s group. Morris, 294 Ga. at 46. “Magee was shot in the
¶58hand, and Griffin returned fire. The Avalon drove off, with both
¶59Drennon and Vincent Morris having been shot.” Id. Easterling’s
¶60group did not go into Griffin’s condominium complex, but instead
¶61parked on a road near the entrance. After they heard the gunfire in
¶62the complex, they saw a person run across the road. Unsure of who
¶63it was, Easterling, who was driving the car, drove forward. The
¶64person was Griffin, and he ran up to Easterling’s car. Collins told
¶65Griffin to get in, and he did. Panicked and unaware that the
¶66occupants of the car were part of the group trying to rob him, Griffin
¶67told the people in the car that someone had tried to rob him and had
¶68 5 shot his girlfriend. Griffin had a gun in his hand. According to
¶69Easterling, the car’s occupants were also carrying guns, but they
¶70were on the floor of the car, so there “wasn’t no way that we could
¶71reach for our gun to do anything to him.” About that time—which
¶72was only about 30 seconds later—the Avalon in which the other
¶73members of the group were riding “skidded out of the parking lot” of
¶74Griffin’s complex. Griffin got out of the car Easterling was driving
¶75and started shooting at the Avalon; he then ran back toward his
¶76condominium. “Following the incident, Magee and Drennon were
¶77treated for their injuries at the same hospital, and Griffin, who had
¶78accompanied Magee to the hospital, identified Drennon as one of
¶79their assailants, leading to Drennon’s arrest.” Id. at 46.
¶80 Drennon was in jail based on his arrest for the May 22, 2007,
¶81crimes against Griffin and Magee, when “in the early morning hours
¶82of June 10, 2007, Griffin was shot and killed outside Club 112, a
¶83Midtown nightclub.” Id. When Griffin was killed, he was wearing a
¶84Breitling necklace and bracelet.
¶85 At trial, Easterling “testified that IRC members . . . had
¶86 6 planned Griffin’s murder to retaliate for Drennon’s arrest,” id. at 46-
¶8747, and that
¶88 [Easterling] had heard Morris recount how he and others drove to Club 112 on the night of the murder and waited for Griffin to emerge, at which point two of Morris’ confederates fired at Griffin. Morris’ presence at the scene of the murder was corroborated by cell tower triangulation evidence placing Morris’ cell phone at the crime scene at the time of the shooting. In addition, a former girlfriend of Morris told police that Morris had told her he had been present when Griffin was killed and that Hargrove had been the triggerman.
¶89Id. 47. Bankston, who pled guilty to criminal street gang activity,
¶90testified that she started dating Drennon in 2006 and that they were
¶91engaged to be married at the time of trial. According to Bankston,
¶92when Griffin was robbed in May 2007, Easterling and Stevens told
¶93her that someone had “jumped out too fast” that night, implying that
¶94the group driving with Easterling might have killed Griffin that
¶95night if they had the chance.
¶96 Bankston participated in a number of three-way calls with
¶97Drennon and his friends while Drennon was in jail; code words and
¶98phrases were often used during these calls. She testified that,
¶99 7 during these calls, Drennon and his friends referred to “watching
¶100the news.” At first, she did not know what they were talking about,
¶101but she later began to understand what Drennon meant when he
¶102said that the “n***** tried to identify me.” Bankston also testified
¶103that, on the day Griffin was killed, Easterling and Stevens came to
¶104her house and told her about the shooting and asked her to tell
¶105Drennon. Bankston testified that she later called Drennon in jail
¶106and told him that “Auntie Monique” had killed her husband at Club
¶107112, which was “code” that “[Hargrove] shot Randy Griffin.”
¶108 While Drennon was in jail between May 22 and June 10, he
¶109frequently initiated calls with his IRC associates. Those calls were
¶110recorded, and many were introduced into evidence at trial. For
¶111example, in a conversation on May 23, Drennon asked Hargrove
¶112“how that other dude was doing” and told Hargrove that he
¶113(Drennon) was “f**ked up” and that “the n***** tried to identify a
¶114n***** and how’s that.” Hargrove responded “be cool and just watch
¶115the news.”
¶116 Drennon spoke to Hargrove again on May 27, and Hargrove
¶117 8 said, “[w]hy the ho lay up there and flag them and got in the back of
¶118the car with them”? Drennon asked, “[g]ot in the back of the car
¶119with [Easterling]”; Hargrove responded, “yeah,” and said “why the
¶120ho lay up there and go out” and “they still ain’t f**k the ho.”
¶121Hargrove continued, saying that “you ain’t got nothing to worry
¶122about, man. . . . [N]… like on top of the ho. N***** going to f**k
¶123the ho, man.” Drennon then told Hargrove that he was “sweatin’
¶124that ho” and “I just got to depend on you. . . . Go on ahead and lay
¶125that ho on out for me.” Hargrove then said, “You already know that.
¶126Man, that’s my word. I’m a f**k the s**t out that ho.”
¶127 In another conversation later that night, Drennon told Stevens
¶128that he had been “trying to figure out what’s going on, man, you
¶129know what I’m saying? I’ve been watching the motherf**king news
¶130and s**t, you know what I’m saying. Ain’t s**t going on on the
¶131f**king news.” Stevens reassured Drennon that “that news going to
¶132come up,” and Drennon asked, “when it going to come up,” and later
¶133said “god da*n go get that girl, man, god da*n hurry up.” Stevens
¶134acknowledged that “they need to hurry up”; “n***** just running
¶135 9 around here shooting people and get away with it.”
¶136 In a conversation that took place from jail on June 2, Drennon
¶137spoke with Edward Morris. Drennon told Edward that, when he was
¶138in the hospital, “some dude came in there and identified me. Talking
¶139about I robbed him.” Drennon then asked Morris if he had “seen the
¶140girl.” Morris responded that “the girl jumped in the car . . . and
¶141everything” and that he would “have slapped that whore in her
¶142f**kin mouth.” Morris added that “she hopped” out of the car and
¶143tried to flag other cars down. Drennon then said that, “so you tellin’
¶144me all of that could have been stopped right then and there”? Morris
¶145responded that it “could have been stopped,” and Drennon said that
¶146he did not “even want to talk about it.”
¶147 During a June 7 conversation with Easterling from jail,
¶148Drennon asked Easterling if “everything straight,” had “y’all . . .
¶149heard nothing,” and had they “seen ol’ girl.” Easterling responded
¶150that they “ain’t heard nothing” and had not seen “ol’ girl” because
¶151“she had moved” and that they “[g]ot to confirm where she stay at.”
¶152Drennon then said he was “just checking on it.” At trial, Easterling
¶153 10 testified about this conversation, explaining that “ol’ girl” was the
¶154name he and Drennon used for Griffin and that he and Drennon had
¶155been discussing Griffin when they discussed “ol’ girl.”
¶156 On June 10, at 12:40 p.m., which was after Griffin was shot
¶157and killed, Drennon called Bankston from jail. Bankston told him
¶158that Easterling had called her “about an hour or so ago” and told her
¶159that she needed to “meet up with him.” Drennon told her to “call
¶160[Easterling] and see what’s up.” Bankston called Easterling and
¶161connected Easterling into her call with Drennon. When Drennon
¶162asked Easterling what was going on, Easterling responded that he
¶163could not talk to Drennon at that point; Drennon asked the same
¶164question again. Easterling responded, “Oh s**t you, uh, what y’all
¶165looking at on the tv”? Drennon said, “I need to look at the news.”
¶166Bankston asked Easterling where she was supposed to meet him.
¶167 Shortly thereafter, Drennon made a phone call to his father.
¶168Drennon asked his father if he had “watch[ed] the news.” His father
¶169responded that he had not, and Drennon said, “Dang,” “I need you
¶170to tell me that you watched the news.” Drennon’s father then
¶171 11 connected Bankston into the call, and Drennon asked her if she had
¶172“made it down there yet.” Bankston responded that she had not, but
¶173was on her way. She explained that she had not talked to “them”
¶174yet, and Drennon responded that he would talk to her “later on.”
¶175 About an hour later, Drennon called Bankston from jail.
¶176During that call, Bankston told Drennon that her “Auntie Monique”
¶177killed her husband last night and that “she” did it at Club 112.
¶178Drennon responded by saying, “so it’s a wrap, huh,” and “that’s
¶179something we ain’t got to worry about no more.” Drennon also
¶180asked, “so they say they sure it’s over,” to which Bankston replied,
¶181“yes.” Drennon also asked Bankston, “did you see it on the news”?
¶182Drennon’s father joined the phone call; Drennon asked him to call
¶183Hargrove and explained that he wanted to talk to Hargrove because
¶184“I just need to hear something from his mouth, man, that’s it.”
¶185Hargrove eventually joined the call and told Drennon that the
¶186“n***** f**ked the s**t out of that ho, man.” Drennon asked, “what
¶187that ho end like,” and Hargrove repeated what he had just said and
¶188added that he had told Drennon that he “was going to fix it” and
¶189 12 “f**k that ho for you.”
¶190 Drennon did not testify at trial. His defense centered, in part,
¶191around his role as an informant for Detective David Quinn, who was
¶192investigating Griffin’s murder. At trial, Detective Quinn testified
¶193that he first met Drennon as a result of an investigation in February
¶1942007 in which Drennon was a witness. Detective Quinn interviewed
¶195Drennon, and Drennon provided accurate information about three
¶196unsolved crimes. After that interview, Detective Quinn and
¶197Drennon stayed in contact, and Drennon continued to be an
¶198informant for Quinn. Detective Quinn testified that Drennon was
¶199“probably the greatest source I had ever encountered.” In closing
¶200arguments, Drennon’s counsel argued that the phone calls that
¶201Drennon made from jail to Bankston and others were not evidence
¶202of his guilt, but were simply him “still working with Detective
¶203Quinn, still fishing for information to help Detective Quinn.”
¶204 2. Drennon contends that, because the trial court did not make
¶205specific findings on matters such as the conflicts in the evidence and
¶206the credibility of witnesses in denying Drennon’s motion for new
¶207 13 trial on the general grounds under OCGA §§ 5-5-20 and 5-5-21, the
¶208court did not fulfill its role as the “thirteenth juror.” For this reason,
¶209Drennon contends that we must vacate and remand for the trial
¶210court to fulfill its statutory duty. We disagree.
¶211 Even when the evidence is legally sufficient to sustain a conviction, a trial judge may grant a new trial if the verdict of the jury “is contrary to . . . the principles of justice and equity,” OCGA § 5-5-20, or if the verdict is “decidedly and strongly against the weight of the evidence.” OCGA § 5-5-21. When properly raised in a timely motion, these grounds for a new trial—commonly known as the “general grounds”—require the trial judge to exercise a “broad discretion to sit as a ‘thirteenth juror.’” In exercising that discretion, the trial judge must consider some of the things that she cannot when assessing the legal sufficiency of the evidence, including any conflicts in the evidence, the credibility of witnesses, and the weight of the evidence.
¶212White v. State, 293 Ga. 523, 524 (753 SE2d 115) (2013) (citation
¶213omitted). Moreover, we have held that “[w]hen a trial court
¶214exercises its discretion as the ‘thirteenth juror, it need not explicitly
¶215speak of its discretion with respect to the general grounds,” and
¶216“unless the record shows otherwise,” we even “presume that the trial
¶217court understood the nature of its discretion and exercised it.”
¶218 14 Hodges v. State, 309 Ga. 590, 592 (847 SE2d 538) (2020) (citation
¶219and punctuation omitted) (rejecting a defendant’s contention that
¶220the trial court did not properly exercise its discretion as the
¶221“thirteenth juror” where “the trial court specifically stated in its
¶222order that it was denying [the defendant’s] motion for new trial after
¶223‘consideration of the pleadings, the transcript of proceedings, and
¶224[the] applicable law,’” “did not state [an] incorrect standard in its
¶225order, and nothing in the record indicate[ed] that the court was
¶226unaware of its responsibility”). See also Myers v. State, 313 Ga. 10,
¶22713-14 (867 SE2d 134) (2021) (holding that the record did not support
¶228the defendant’s “argument that the trial court failed to fulfill its duty
¶229in ruling on the general grounds to weigh the evidence and consider
¶230the credibility of the witnesses,” because in its order denying the
¶231motion for new trial, the trial court explained that the defendant
¶232“asked the court to reverse his convictions under the discretion given
¶233to the court by OCGA §§ 5-5-20 and 5-5-21” and “[t]he court found
¶234that ‘this is not an exceptional case in which the evidence
¶235preponderates heavily against the verdict’”).
¶236 15 Here, in denying Drennon’s motion for new trial on the general
¶237grounds, the trial court specifically acknowledged that Drennon was
¶238moving “the Court to reverse his convictions under the discretion
¶239given to the Court by OCGA §§ 5-5-20 and 5-5-21” and then denied
¶240the motion based on the specific finding that “this is not an
¶241exceptional case in which the evidence preponderates heavily
¶242against the verdict.” Thus, the record does not support Drennon’s
¶243claim that the trial court failed to exercise its discretion under
¶244OCGA §§ 5-5-20 and 5-5-21. See Myers, 313 Ga. at 13-14.
¶245 3. Drennon contends that the evidence is insufficient as a
¶246matter of constitutional due process and as a matter of Georgia
¶247statutory law, see OCGA § 24-14-6, to support his conviction for the
¶248malice murder of Griffin. More specifically, Drennon contends that
¶249the evidence showed that he was in jail at the time of Griffin’s
¶250murder, that Drennon had no part in setting up or encouraging the
¶251murder, that his conversations with his IRC associates while in jail
¶252demonstrated Drennon’s attempts to obtain information to pass
¶253along to Detective Quinn, and that the State’s evidence was entirely
¶254 16 circumstantial and failed to exclude the hypothesis that other
¶255members of the IRC independently killed Griffin while carrying out
¶256their plan to rob him for his jewelry. We disagree.
¶257 When evaluating a challenge to the sufficiency of the evidence
¶258as a matter of constitutional due process, we view the evidence
¶259presented at trial in the light most favorable to the verdicts and ask
¶260whether any rational trier of fact could have found the defendant
¶261guilty beyond a reasonable doubt for the crimes for which he was
¶262convicted. See Jones v. State, 304 Ga. 594, 598 (820 SE2d 696)
¶263(2018) (citing Jackson v. Virginia, 443 U.S. 307, 318-319 (99 SCt
¶2642781, 61 LE2d 560) (1979)). We leave to the trier of fact “the
¶265resolution of conflicts or inconsistencies in the evidence, credibility
¶266of witnesses, and reasonable inferences to be derived from the facts,”
¶267Smith v. State, 308 Ga. 81, 84 (839 SE2d 630) (2020), and we do not
¶268“reweigh the evidence,” Ivey v. State, 305 Ga. 156, 159 (824 SE2d
¶269242) (2019) (citation and punctuation omitted).
¶270 Moreover, as a matter of Georgia statutory law, “to warrant a
¶271conviction on circumstantial evidence, the proved facts shall not only
¶272 17 be consistent with the hypothesis of guilt, but shall exclude every
¶273other reasonable hypothesis save that of the guilt of the accused.”
¶274OCGA § 24-14-6. “Not every hypothesis is reasonable, and the
¶275evidence does not have to exclude every conceivable inference or
¶276hypothesis; it need rule out only those that are reasonable.” Garay
¶277v. State, 314 Ga. 16, 20 (875 SE2d 631) (2022) (citation and
¶278punctuation omitted). “Whether alternative hypotheses are
¶279reasonable . . . is usually a question for the jury, and this Court will
¶280not disturb the jury’s finding unless it is insufficient as a matter of
¶281law.” Frazier v. State, 308 Ga. 450, 453 (841 SE2d 692) (2020)
¶282(citation and punctuation omitted). Additionally, under Georgia
¶283statutory law, “[e]very person concerned in the commission of a
¶284crime is a party thereto and may be charged with and convicted of
¶285commission of the crime.” OCGA § 16-2-20 (a). Conviction as a party
¶286to a crime requires proof of a common criminal intent, which a trier
¶287of fact may infer from “presence, companionship, and conduct before,
¶288during and after the offense.” McGruder v. State, 303 Ga. 588, 591
¶289(814 SE2d 293) (2018) (citation and punctuation omitted).
¶290 18 The evidence here regarding Drennon’s role in Griffin’s
¶291murder, although circumstantial, was sufficient to convict Drennon
¶292as a matter of constitutional due process. To begin, the State
¶293introduced evidence that “IRC members . . . had planned Griffin’s
¶294murder to retaliate for Drennon’s arrest.” Morris, 294 Ga. at 47.
¶295Moreover, viewed in the light most favorable to the verdicts, the jury
¶296was entitled to conclude that Drennon was angry that Griffin
¶297identified him at the hospital, telling his IRC associates that “some
¶298dude came in there and identified me” and that “the n***** tried to
¶299identify a n*****.” Similarly, the jury was told that Drennon and
¶300his IRC associates referred to Griffin as “ol’ girl” and could infer that
¶301they used other code words such as “ho,” “whore,” and “girl” to refer
¶302to Griffin; that Drennon was worried about or bothered by Griffin,
¶303saying that he was “sweatin’ that ho”; and that Drennon was asking
¶304his IRC associates to kill Griffin and encouraging them to do so,
¶305telling Hargrove to “lay that ho out for me.” Hargrove promised that
¶306he would, saying that Drennon had Hargrove’s word that “I’m a f**k
¶307the s**t out that ho.” In response, Hargrove said that he had told
¶308 19 Drennon that he “was going to fix it” and “f**k that ho for you,”
¶309(emphasis supplied), a statement from which the jury could infer
¶310Hargrove was acting with Drennon’s encouragement. In addition,
¶311the jury could infer from Drennon’s declarations of impatience—
¶312such as “[g]o on ahead and lay that ho on out for me,” and “[a]in’t
¶313s**t going on on the f**king news”—coupled with responses by
¶314Hargrove and Stevens to “be cool and just watch the news” and “that
¶315news going to come up,” that Drennon was encouraging his fellow
¶316IRC associates to kill Griffin and that he and they were acting with
¶317a common intent. There was also evidence that Bankston used
¶318coded language to inform Drennon that Hargrove (“Auntie
¶319Monique”) had killed her “husband” (Griffin) at Club 112. Finally,
¶320Drennon expressed relief when he found out that Griffin had been
¶321killed, telling Bankston, “so it’s a wrap, huh,” and “that’s something
¶322we ain’t got to worry about no more.”
¶323 Although Drennon contends that he had the conversations
¶324from jail to produce information to give to Detective Quinn, it was
¶325for the jury, and not this Court, to resolve any conflicts or
¶326 20 inconsistencies in the evidence, judge the credibility of witnesses,
¶327and draw reasonable inferences from the facts. See Smith, 308 Ga.
¶328at 84. In addition, “[a] defendant need not pull the trigger, or even
¶329be present for a shooting, to be found guilty as a party to murder
¶330and related crimes.” Nicholson v. State, 307 Ga. 466, 473 (837 SE2d
¶331362) (2019) (holding that the evidence was sufficient to sustain the
¶332conviction of a gang member where it showed that he intentionally
¶333advised and encouraged other “gang members to commit the
¶334crimes”). In sum, viewed in the light most favorable to the verdicts,
¶335we conclude that the evidence summarized above was sufficient to
¶336support Drennon’s conviction for malice murder as a matter of
¶337constitutional due process. See Jackson, 443 U. S. at 319.
¶338 Drennon nonetheless argues that there was a reasonable
¶339hypothesis other than his guilt—that his fellow IRC members killed
¶340Griffin to obtain his jewelry and did so without any encouragement
¶341from Drennon—such that the evidence presented at trial was not
¶342sufficient to convict him of malice murder as a matter of Georgia
¶343statutory law. See OCGA § 24-14-6. However, as we have explained,
¶344 21 “[n]ot every hypothesis is reasonable,” and evidence “need rule out
¶345only those that are.” Garay, 314 Ga. at 20. Moreover, whether the
¶346alternative hypothesis asserted by Drennon is reasonable was a
¶347question for the jury, and we will not disturb the jury’s finding on
¶348this point “unless it is insufficient as a matter of law.” Frazier, 308
¶349Ga. at 453. Here, based on the evidence summarized above—which
¶350includes evidence that Griffin’s Breitling jewelry was found on his
¶351body after he was killed—we conclude that the jury was free to reject
¶352as unreasonable the hypothesis that Drennon spoke with IRC
¶353members from jail only to obtain information for Detective Quinn,
¶354and not to encourage members of the IRC to kill Griffin, and that
¶355the members of the gang acted independently in killing Griffin to
¶356steal his jewelry. Accordingly, the evidence was also sufficient to
¶357support Drennon’s conviction for murder as a matter of Georgia
¶358statutory law. See OCGA § 24-14-6.
¶359 4. Drennon contends that the evidence is insufficient to
¶360support his conviction for participation in criminal street gang
¶361activity. We disagree.
¶362 22 (a) Before turning to the merits of Drennon’s claim, we note
¶363that, as part of proving its case that Drennon was involved in
¶364criminal gang activity, the State introduced testimony from several
¶365witnesses implicating Drennon and the IRC in “a September 2006
¶366attack on, kidnapping of, and burglary of the home of victim Gary
¶367Lester.” Morris, 294 Ga. at 47.2 Easterling and Lester testified that
¶368while Lester was playing a video game at Tight Werk, an automobile
¶369shop Drennon operated, Drennon hit Lester in the head with a gun.
¶370At that point, Drennon, with assistance from other members of the
¶371IRC, handcuffed Lester and placed a scarf over his eyes. They then
¶372put Lester in a truck, and Easterling, Stevens, and others (but not
¶373 2 Drennon was indicted for these crimes, but they were severed for trial. In this appeal, Drennon does not challenge the State’s use of the 2006 crime against Lester to prove the criminal-gang-activity count of the indictment. See Morris, 294 Ga. at 48-49 (holding that the trial court did not abuse its discretion in admitting evidence of crimes for which Edward Morris was indicted, but which were severed for his trial, as relevant to prove the criminal-gang-activity count against Morris). See also OCGA § 24-4-418 (a), which was enacted in 2016 and which says that “[i]n a criminal proceeding in which the accused is accused of conducting or participating in criminal gang activity in violation of Code Section 16-15-4, evidence of the accused’s commission of criminal gang activity, as such term is defined in Code Section 16-15-3, shall be admissible and may be considered for its bearing on any matter to which it is relevant.” 23 Drennon) drove Lester to several locations and eventually to his
¶374house, which they burglarized. According to Lester, IRC members
¶375took “clothes, jewelry, [a] gun, [and a] t.v.”
¶376 (b) Drennon was charged in the indictment with violating the
¶377Street Gang Act by participating in crimes of violence, including
¶378murder, armed robbery, criminal attempt to commit armed robbery,
¶379aggravated assault, and kidnapping, while associated with the IRC.
¶380To prove that Drennon violated the Street Gang Act, the State was
¶381required to show that he was, in fact, associated with the IRC, that
¶382the IRC was a “criminal street gang,” that Drennon committed a
¶383predicate act of violence contained in OCGA § 16-15-3 (1) (J) and as
¶384set forth in the indictment, and that the act of violence was intended
¶385to further the interests of the IRC. See OCGA § 16-5-4 (a); OCGA §
¶38616-15-3 (1) (J); OCGA § 16-15-3 (3); Boyd v. State, 306 Ga. 204, 209
¶387(830 SE2d 160) (2019); Chavers v. State, 304 Ga. 887, 890 (823 SE2d
¶388283) (2019).
¶389 Drennon contends that the State failed to prove three of these
¶390elements: that he was associated with the IRC gang, that he
¶391 24 participated in a crime of violence, and that he undertook criminal
¶392activity to further the interests of the gang. As for whether Drennon
¶393was associated with the IRC, Drennon contends that “no one
¶394testified that he was a part of this gang.” But he overlooks the
¶395testimony of Easterling, who testified that Drennon was a member
¶396of the IRC. Moreover, Detective Quinn testified that Drennon
¶397provided him with accurate information about the activity of
¶398members of the IRC, and Drennon elicited testimony that his
¶399conversations with Detective Quinn indicated that Drennon was
¶400“hanging out with [members of the IRC] on a regular basis” and that
¶401“a lot of them are hanging out at Tight Werk,” where Drennon
¶402worked. Other evidence, including testimony from Lester,
¶403Easterling, and Bankston, confirmed that Drennon had frequent
¶404contact with members of the IRC and participated in violent crimes
¶405with them. Viewed in the light most favorable to the verdicts, the
¶406evidence was sufficient to authorize the jury to conclude that
¶407Drennon was, at the very least, associated with the IRC. See Lupoe
¶408v. State, 300 Ga. 233, 237-238 (794 SE2d 67) (2016) (concluding that
¶409 25 evidence such as a defendant’s frequent contact with members of a
¶410gang was sufficient to show that the defendant was “associated with”
¶411the gang).
¶412 Drennon summarily argues that the State failed to prove that
¶413he committed a predicate act of violence, but we readily conclude
¶414that when viewed in the light most favorable to the verdicts, the
¶415evidence presented at trial and summarized above was sufficient to
¶416show that Drennon participated in crimes of violence against Griffin
¶417on June 10, against Griffin and Magee on May 22, and against
¶418Lester in 2006. See OCGA § 16-15-3 (1) (J). Finally, Drennon argues
¶419that there was a complete lack of evidence that he had the intent to
¶420further the interests of the IRC because, according to Drennon, mere
¶421association with a criminal street gang is insufficient to satisfy this
¶422element and the State did not show that he participated in any of
¶423the IRC activities. We disagree. We have held that “[e]vidence of
¶424[a defendant’s] association with [a gang] and his participation in the
¶425group’s activities before and during the crimes charged provide the
¶426required nexus between his criminal acts and the intent to further
¶427 26 the gang’s interests.” Hayes v. State, 298 Ga. 339, 342-343 (781
¶428SE2d 777) (2016). See also Rodriguez v. State, 284 Ga. 803, 807 (671
¶429SE2d 497) (2009) (“Management of or participation with others in .
¶430. . criminal street gang activity necessarily implies knowledge of the
¶431gang’s criminal activities and a specific intent to further its criminal
¶432purposes.”). To that end, Easterling testified that the IRC’s goal in
¶433committing its criminal acts was to collect “money, drugs, jewelry,
¶434guns[, and] merchandise,” and the jury was authorized to conclude
¶435that Drennon’s activities, including the attempted robbery of Griffin
¶436on May 10 and the kidnapping and robbery involving Lester,
¶437furthered that goal. Moreover, there was evidence that “IRC
¶438members . . . had planned Griffin’s murder to retaliate for Drennon’s
¶439arrest,” Morris, 294 Ga. at 47, and Drennon’s encouragement of IRC
¶440members to kill Griffin furthered that goal. For these reasons, we
¶441conclude that the evidence is constitutionally sufficient to support
¶442Drennon’s conviction for criminal street gang activity.
¶443 5. For the first time in this case, Drennon contends that he was
¶444denied his right to be present numerous times when he was excluded
¶445 27 from bench conferences during jury selection. As explained below,
¶446this claim should be addressed in the first instance by the trial court
¶447on remand.
¶448 “This Court has long held that the Georgia Constitution
¶449guarantees criminal defendants the right to be present, and see and
¶450hear, all the proceedings which are had against him on his trial
¶451before the court.” Champ, 310 Ga. at 839 (citation and punctuation
¶452omitted). Moreover, a defendant’s right to be present
¶453 may be violated when a defendant is excluded from conferences held at the bench between the trial court and the lawyers for the parties, because while the defendant may be present in open court and thus able to see such bench conferences, he presumably cannot hear what is discussed (as preventing jurors and others in the courtroom from hearing such conferences is their very purpose). Id. It is well settled that “[j]ury selection is a critical stage at which
¶454a defendant generally is entitled to be present, including at bench
¶455conferences.” Young v. State, 312 Ga. 71, 79 (860 SE2d 746) (2021).
¶456“[W]e have repeatedly held that a defendant has the right to
¶457participate in a bench conference during which a prospective juror
¶458 28 or a trial juror is discussed and removed.” Champ, 310 Ga. at 840.
¶459However,
¶460 [m]ost bench conferences involve questions of law and consist of essentially legal argument about which the defendant presumably has no knowledge, and many other bench conferences involve logistical and procedural matters. A defendant’s presence at bench conferences dealing with such topics bears no relation, reasonably substantial, to the fullness of his opportunity to defend against the charge, and the constitutional right to be present does not extend to situations where the defendant’s “presence would be useless, or the benefit but a shadow.” Thus, a defendant’s right to be present is not violated by his absence from such bench conferences.
¶461Heywood v. State, 292 Ga. 771, 774 (743 SE2d 12) (2013) (cleaned
¶462up). Moreover, a defendant may relinquish his right to be present
¶463“if he so chooses.” Champ, 310 Ga. at 841 (citation and punctuation
¶464omitted).
¶465 A defendant may relinquish his right in several ways: if he personally waives the right in court; if his counsel waives the right at his express direction; if his counsel waives the right in open court while he is present; or, as seen most commonly in our case law, if his counsel waives the right and the defendant subsequently acquiesces to that waiver.
¶466 29 Id. 3 “Acquiescence may occur when a defendant remains silent after
¶467he becomes aware of the proceedings occurring in his absence, so
¶468long as he had sufficient information concerning the matters
¶469occurring outside his presence for his silence to be fairly construed
¶471 However, where a defendant
¶472 raises a right-to-be-present claim for the first time on appeal, unless that claim can be easily rejected based on the existing record, the case should be remanded to the trial court for a hearing at which the parties have an opportunity to supplement the record with relevant evidence and after which the trial court may make factual findings and issue an order ruling on the claim, which may then be reviewed in a subsequent appeal.
¶473Champ, 310 Ga. at 844.4 We adopted this rule, in large part, because
¶474 3 The Attorney General, but not the District Attorney, argues that Drennon’s right-to-be-present claim is not preserved for review because Drennon did not raise it until this appeal. But the right to be present “is a personal right of the defendant that cannot be waived merely by the failure of his counsel to timely assert it; it must be relinquished by the defendant himself” in one of the ways discussed above. Champ, 310 Ga. at 841 n.7.
¶475 4 We have explained that “‘mere speculation as to what may have been discussed at [a bench] conference cannot serve as the basis for the grant of a new trial,’” Reed v. State, Case No. S22A0530, 2022 WL 4085942, at *8 (Ga. Sept. 7, 2022) (quoting Nesby v. State, 310 Ga. 757, 759 (853 SE2d 631) (2021)), and have held that where a defendant “offers nothing more than speculation
¶476 30 right-to-be-present claims often involve “fact-specific” decisions that
¶477“[t]rial judges are generally better situated than appellate courts to
¶478make.” Id. See also Reed v. State, Case No. S22A0530, 2022 WL
¶4794085942, at *5 (Ga. Sept. 7, 2022) (explaining the efforts of counsel
¶480and the trial court to recreate a record during motion for new trial
¶481proceedings of what occurred at bench conferences that were not
¶482transcribed in order to determine whether Reed was denied his right
¶483to be present at those conferences and if so, whether he acquiesced
¶484to the denial of that right).
¶485 We note that our ability to evaluate Drennon’s claim is
¶486hampered by the minimal argument offered in his appellate brief.
¶487To that end, Drennon provides a list of citations to pages of the voir
¶488dire transcript where bench conferences occurred, but makes no
¶489as to what the conferences might have concerned,” his claim that his right to be present was violated fails, Reeves v. State, 309 Ga. 645, 648 (847 SE2d 551) (2020) (citation and punctuation omitted). Accord Nesby, 310 Ga. at 759. However, Reed, Nesby, and Reeves were all cases in which the defendant had an opportunity to develop a record on his right-to-be-present claim on motion for new trial, see Reed, 2022 WL 4085942, at *5-*6; Nesby, 310 Ga. at 759; Reeves, 309 Ga. at 648, and it is appropriate under those circumstances to apply the “mere speculation” principle to the defendant’s right-to-be-present claim. Here, by contrast, the defendant has had no such opportunity to develop the record on whether he was denied his right to be present. 31 effort to explain or contextualize any of the individual bench
¶490conferences. Nor does he analyze, with supporting citations of
¶491authority, how his right to be present was denied. Instead, he
¶492simply claims that “it is impossible to tell” whether the conferences
¶493he points to were about jury selection—the type of bench conference
¶494for which Drennon generally would have the right to be present—as
¶495opposed to about practical or logistical issues—the type of bench
¶496conference for which Drennon generally would not have such a
¶497right—and summarily concludes that his right to be present was
¶498violated.5
¶499 After a careful review of the record, we conclude that Drennon’s
¶500right-to-be-present claim cannot be “easily rejected based on the
¶501existing record.” Id. This Court simply does not have enough
¶502 5We conclude that Drennon’s appellate brief on this issue complies with this Court’s Rule 22 (explaining that “[a]ny enumerated error not supported by argument or citation of authority in the brief shall be deemed abandoned”), but only marginally so. We also note that Drennon’s current counsel on appeal represented him during the motion for new trial proceedings, and despite the fact that current counsel called trial counsel as a witness during those proceedings, current counsel made no apparent effort to develop a record regarding Drennon’s right-to-be-present claim. We encourage counsel contemplating right-to-be-present claims on behalf of a client to develop the record on such claims as early as possible under the circumstances. 32 information to “easily reject” his claim—but neither do we have
¶503enough information to determine whether Drennon’s right to be
¶504present was violated or whether Drennon relinquished any right
¶505that he had to be present. See Champ, 310 Ga. at 841. In conducting
¶506our analysis, we considered that all nine bench conferences to which
¶507Drennon points occurred during jury selection, a part of the trial “at
¶508which a defendant generally is entitled to be present, including at
¶509bench conferences.” Young, 312 Ga. at 79. But those conferences
¶510were not transcribed; the transcript only notes that “a discussion
¶511was had at the bench between the court and counsel.” Moreover, we
¶512cannot discern from the transcript notations that the conferences
¶513were between “court and counsel” whether Drennon was necessarily
¶514excluded from those conferences. However, to guide the trial court
¶515on remand, and to highlight to practitioners the difficulty this Court
¶516faces when an appellant does not develop the factual record for a
¶517right-to-be-present claim before he makes such a claim on appeal,
¶518we review the circumstances related to two of the nine bench
¶519 33 conferences at issue to explain why a remand is necessary.6
¶520 (a) Before one of the bench conferences occurred, the trial court
¶521informed the prospective jurors that it would hear from them about
¶522any hardships that they had. The trial court then took down the
¶523numbers of the jurors who indicated that they wanted to be heard
¶524regarding a hardship. A short time later, the court excused all
¶525jurors, except those who indicated a desire to be heard regarding
¶526 6 We also note that to ensure that a defendant’s right to be present is not violated, trial judges could altogether decline to hold bench conferences and instead could conduct such conferences in open court outside the presence of the jury; could require bench conferences to be transcribed; or, when bench conferences are held without participation from criminal defendants, could inform those defendants, where applicable, of their right to be present and inquire as to whether they wish to exercise or waive that right, making a record of any waiver of rights. Similarly, the trial court, prosecutor, and defense counsel should undertake to protect a defendant’s right to be present, taking care to make a contemporaneous record of what transpired before and during bench conferences. See Sammons v. State, 279 Ga. 386, 388 n.12 (612 SE2d 785) (2005) (reversing a defendant’s conviction because he denied his right to be present at a critical stage of his trial and reminding “[p]rosecutors . . . that they share the duty to ensure a fair trial” and encouraging them, “if proceedings take place outside the presence of the defendant,” to “alert the trial court of the need to allow the defendant time to discuss the issue with counsel and to permit [the] defendant to place an express waiver on the record”). See also Champ, 310 Ga. at 849 (McMillian, J., concurring) (encouraging trial courts and counsel “to put on the record what occurred at bench conferences or confirm that the defendant waived the right to be present”). Efforts such as these could ease or prevent the difficult task of recreating on appeal what occurred at bench conferences held months or years earlier. 34 their hardship. The jurors who remained to discuss their hardships
¶527included Jurors 1, 6, 7, 10, 11, 13, 14, 18, 22, 23, 24, 27, 28, 29, 30,
¶52831, 34, 35, 36, 37, 38, 39, 43, 45, 47, and 50. After the other jurors
¶529were excused, Drennon’s counsel asked the trial court if counsel
¶530could approach the bench. The record indicates that “a discussion
¶531was had at the bench between the court and counsel,” with no
¶532indication of what the discussion was about. Immediately after the
¶533conference, the trial court began to hear from the jurors who
¶534remained because of their potential hardships, turning first to Juror
¶5351, who expressed concern about a financial hardship due to self-
¶536employment.
¶537 Drennon offers no specific argument about this bench
¶538conference. The State contends that trial counsel approached to
¶539discuss whether the court should question Juror 1 about a potential
¶540conflict due to self-employment. However, shortly before the bench
¶541conference, the trial court had already said that it was planning on
¶542questioning all the jurors who indicated that they had potential
¶543hardships, and immediately before it, the court asked all those
¶544 35 jurors to remain in the courtroom. The record therefore leaves us
¶545unable to easily conclude that this conference concerned a matter for
¶546which Drennon did not have a right to be present. If Drennon did
¶547have a right to be present, the transcript, as noted above, does not
¶548indicate whether he was present and, likewise, does not indicate
¶549whether he could hear what was being discussed. Moreover, as was
¶550the case in Champ, “[t]here is no indication in the record” here that
¶551Drennon “personally waived his right to be present for th[is] bench
¶552conference[] or that his counsel waived that right in [Drennon’s]
¶553presence or with his express authority.” 310 Ga. at 841. In addition,
¶554the record is unclear on the “highly fact-specific question” of
¶555acquiescence. Id. We cannot determine, for example, whether other
¶556discussions on the record during trial may have given Drennon
¶557“sufficient information concerning the matters occurring outside his
¶558presence for his silence to be fairly construed as consent.” Id. Nor
¶559do we have any indication that Drennon knew about the conference
¶560despite being absent from it based on discussions that occurred off
¶561the record, such as by defense counsel informing him of what
¶562 36 occurred at the conference. See Champ, 310 Ga. at 843 (explaining
¶563that “defendants often may know more about the subject of
¶564proceedings in which they do not participate than is apparent from
¶565a trial transcript). For these reasons, this right-to-be-present claim
¶566cannot be “easily rejected based on the existing record.” Champ, 310
¶568 (b) Another bench conference occurred after the trial court
¶569announced in open court that a prospective juror had emailed the
¶570court. The record is silent as to the subject matter of that email and
¶571as to what the court and counsel discussed at the bench conference.
¶572The record therefore leaves us unable to easily conclude that this
¶573conference concerned a matter for which Drennon did not have a
¶574right to be present. If Drennon did have a right to be present, the
¶575transcript does not indicate whether he was present or whether he
¶576could hear what was discussed at the conference. Moreover, again,
¶577“[t]here is no indication in the record” here that Drennon “personally
¶578waived his right to be present for th[is] bench conference[] or that
¶579his counsel waived that right in [Drennon’s] presence or with his
¶580 37 express authority.” Champ, 310 Ga. at 841. In addition, all of the
¶581reasons that we gave for not being able to easily reject Drennon’s
¶582right-to-be-present claim with regard to the bench conference
¶583discussed above on the ground of acquiescence apply equally to this
¶584bench conference. Accordingly, this right-to-be-present claim cannot
¶585be “easily rejected based on the existing record.” Id. at 844.
¶586 (c) These two bench conferences are only two of the nine bench
¶587conferences Drennon cites in his appellate brief, but they are
¶588illustrative of why we do not have enough information to “easily
¶589reject” Drennon’s claim and why it is therefore necessary to remand
¶590for the trial court to develop a factual record and decide, with respect
¶591to all nine bench conferences, whether Drennon had a right to be
¶592present at the conferences and if so, whether Drennon personally
¶593waived his right to be present at the conferences or acquiesced to his
¶594absence from them.
¶595 For these reasons, we affirm the sufficiency of the evidence
¶596supporting Drennon’s convictions and conclude that the trial court
¶597did not fail to exercise its discretion as the “thirteenth juror” when
¶598 38 ruling on the general grounds of Drennon’s motion for new trial, but
¶599vacate the trial court’s judgment in part and remand the case to that
¶600court to hold a hearing on Drennon’s right-to-be-present claim. If
¶601the trial court rules against Drennon’s claim, he will have 30 days
¶602to file a new notice of appeal of the decision and may appeal that
¶603decision and any other enumeration of error not addressed in this
¶604opinion.7
¶605 Judgment affirmed in part and vacated in part, and case remanded with direction. All the Justices concur.
¶606 7 Likewise, if the trial court grants Drennon a new trial based on his right-to-be-present claim, the State may appeal that decision. See OCGA § 5- 7-1 (a) (8) (providing that the State may appeal “[f]rom an order, decision, or judgment of a court granting a motion for new trial or an extraordinary motion for new trial”). 39