FOURTH DIVISION

BARNES, P. J.,

RAY and MCMILLIAN, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

October 27, 2015

In the Court of Appeals of Georgia

A15A1608. PLATT v. THE STATE.

BARNES, Presiding Judge.

This case arises out of a gunfight that resulted in the death of two of the

shooters. Based on circumstantial evidence of his role as a party to the crimes that

were committed, a jury found James Platt guilty of voluntary manslaughter and other

related offenses. Platt filed a motion for new trial, as amended, which the trial court

denied. On appeal, Platt challenges the sufficiency of the evidence to support his

convictions and contends that the trial court erred by failing to strike a prospective

juror for cause. For the reasons discussed below, we affirm. 

1. In reviewing Platt’s challenge to the sufficiency of the evidence, we ask only

“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 beyond

a reasonable doubt.” (Citation omitted; emphasis in original.) Jackson v. Virginia,

443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). The jury rather than
this Court “resolves conflicts in the testimony, weighs the evidence, and draws

reasonable inferencesfrombasic factsto ultimate facts.” Butler v. State, 284 Ga. App.

802, 803 (644 SE2d 898) (2007). “So long asthere issome competent evidence, even

though contradicted, to support each element of the State’s case, the jury’s verdict

will be upheld.” McLeod v. State, 245 Ga. App. 668, 669 (1) (538 SE2d 759) (2000). 

Viewed in this manner, the record shows that on the afternoon of September

28, 2009, Antonio Clark, Jarrett Dixon, and an unidentified third male entered an

apartment in Sandy Springs where they engaged in a gunfight with several men,

including Delman Higuera-Hernandez, who lived in the apartment, and his associate,

Santos Palacios-Vasquez. When the police arrived at the apartment after the gunfight,

they found the walls riddled with bullet holes and blood stains inside and outside the

apartment. Shell casings from four different types of ammunition were scattered

through several rooms. A box of .380 ammunition was in a bedroom closet. Cocaine,

digitalscales, and other drug-related paraphernalia were in the hallway closet, dining

room, and kitchen. 

Most of the men involved in the gunfight had fled by the time the police

arrived. However, when the police entered the apartment, they discovered the fatally

wounded Clark and Palacios-Vasquez on the floor. Clark had been shot in the head

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with a .380 caliber pistol and was taken to the hospital, where he died later that

evening. Palacios-Vasquez had been shot multiple times, including in the chest with

a 5.7 mm pistol, and was pronounced dead at the scene. Dixon was no longer at the

apartment when the police arrived, but a blood stain from the hall bathroom was

tested and matched his DNA profile. 

Defendant Platt was friends with Clark and Dixon, and he lived with Dixon in

Decatur. On the day of the gunfight, Clark had been dropped off by his girlfriend at

the residence of Platt and Dixon. It is undisputed that Platt was not inside the Sandy

Springs apartment later that day when the gunfight occurred. However, the State

argued that Platt was an accomplice of Clark, Dixon, and the unidentified third male

who had entered the apartment and engaged in the gunfight with Palacios-Vasquez

and his associates. The State contended that Platt had provided his Infiniti for use in

the encounter and had waited outside the apartment in his silver Grand Prix while the

other three men went inside. Because no participants or eyewitnesses to the gunfight

testified at trial, the State relied upon circumstantial evidence gathered by the police

during their investigation to link Platt to the gunfight, as discussed below.

Platt’sInfiniti at the Apartment. Clark did not own a car, but would sometimes

borrow one of Platt’s cars. Platt had an Infiniti sport sedan. After the gunfight, the

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police photographed Platt’s Infiniti parked outside the Sandy Springs apartment as

part of their processing of the crime scene. After connecting the Infiniti to the case

and obtaining a search warrant, the police searched the car, which by then had been

driven back to Platt’s residence, and the police seized a box of 5.7 mm ammunition

with blue polymer tips from the glove compartment. The State’s expert firearm

examiner later testified that blue polymer tips are uncommon in pistol rounds. 

Multiple 5.7 mm cartridge cases were recovered from the Sandy Springs

apartment. The State’s firearm examiner testified that all of the 5.7 mm cartridge

cases were shot from the same handgun. Palacios-Vasquez was shot with 5.7 mm

ammunition, and the State’s forensic pathologist extracted a blue polymer tip from

his chest cavity. 

The Apartment Neighbor. In addition to the Infiniti, Platt had a silver Pontiac

Grand Prix. Clark’s girlfriend saw the Grand Prix parked outside Platt’sresidence on

the day of the gunfight when she dropped Clark off there. 

A neighbor in the same Sandy Springs apartment building was at home later

that day when the gunfight occurred. Sometime between 3:30 p.m. and 4:00 p.m., the

neighbor recalled hearing “unusually loud thumping or noisy sounds” coming from

another apartment followed by loud footsteps on the outside staircase. The neighbor

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looked out the window and saw two men coming from the direction of the staircase

jump into the passenger seats of a silver car that had approached the apartment

building at a high rate of speed. Because the windows of the car were tinted, the

neighbor was unable to identify the driver, but she was able to generally describe the

two men who jumped into the car by race, age, and clothing. The car sped off after

picking up the two men. 

The Grady Hospital Surveillance Footage. The police obtained video

surveillance footage from Grady Hospital in Atlanta, which was about 17-18 minutes

from the Sandy Springs apartment, that corroborated the testimony of the apartment

neighbor. The video footage showed Platt, Dixon, and an unknown male getting out

of a silver car, consistent in appearance with a Grand Prix, outside Grady Hospital at

4:08 p.m. Platt and the unknown male are then seen carrying Dixon into the hospital,

where he was treated for a gunshot wound to his chest. The appearance of Dixon and

the unknown male on the video was consistent with the neighbor’s general

description of the men who jumped into the silver car outside the apartment. 

Platt left the hospital after dropping off Dixon for treatment. A white t-shirt

with Dixon’s blood on it waslater found at Platt’sresidence when the police executed

a search warrant there. 

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The Cell Phone Records. The police obtained cell phone records for several

phones associated with the gunfight, including cell phoneslinked to Dixon andClark.

The records reflected that on the day of the gunfight, Dixon sent a text message to

Clark at 3:22 p.m., informing Clark that “we went 2 da apt across da street” and that

Clark should meet them there. Then, at 3:41 p.m., Clark sent a text message to Dixon

informing him that an “amigo” was “on the steps” and “we right here already.” Cell

phone tower information for the two phones indicated that the text messages were

sent and received in Sandy Springs. 

Calls made to and from a prepaid cell phone with the number 404-510-0981

appeared on both Clark and Dixon’s cell phone records. Cell phone records for the

404-510-0981 number showed several calls with Clark and Dixon on the day of the

gunfight, including a number of calls in quick succession from 3:42 p.m. until 3:51

p.m., the time period when the gunfight occurred.

1

1 As previously noted, Clark sent a text message to Dixon at 3:41 p.m.

informing him of his location, and the Grady Hospital surveillance video showed

Platt, Dixon, and the unknown male arriving at the hospital at 4:08 p.m. Because

there was testimony that it would take about 17-18 minutes to travel to Grady

Hospital from the Sandy Springs apartment, the gunfight would have occurred

between approximately 3:41 p.m. and 3:51 p.m.

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Cell phone tower information for the 404-510-0981 number showed that the

holder of the cell phone wasin Sandy Springs at the time of the aforementioned calls,

and that the phone was pinging off the same cell phone tower as the cell phones of

Dixon and Clark. The cell phone tower information further showed that, after the

gunfight occurred, the holder of the phone traveled south to the area of Grady

Hospital. Additionally, cell phone recordsfor the 404-510-0981 number showed that

there were two calls with Platt’s girlfriend shortly after 4:00 p.m. 

At trial, the State argued that the prepaid cell phone associated with the 404-

510-0981 number belonged to Platt. To support its argument, the State relied upon

the cell phone tower information and the phone records reflecting calls with Clark,

Dixon, and Platt’s girlfriend. 

Based on the circumstantial evidence of his role in the gunfight, Platt was

indicted and tried on two counts of malice murder for the shooting deaths of

Palacios-Vasquez and Clark, and two counts of possession of a firearm during the

commission of a felony, among other offenses related to the gunfight.

2

 At the close

2 Six other co-defendants were indicted for multiple offenses arising out of the

gunfight. Dixon was tried with Platt and was convicted of voluntary manslaughter

and several other crimes. Dixon is not a party to this appeal. Higuera-Hernandez was

tried jointly with another co-defendant and was convicted of malice murder, felony

murder, and other offenses. See Higuera-Hernadez v. State, 289 Ga. 553 (714 SE2d

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of trial, the trial court instructed the jury on the charged offenses and on voluntary

manslaughter as a lesser included offense of the malice murder charges. The court

also instructed the jury on the law of party to a crime. The jury found Platt guilty of

two counts of voluntary manslaughter and of the two firearm possession counts.

3

(a) Platt contends that the circumstantial evidence was insufficient to support

his convictions as a party to the crime of voluntary manslaughter. He maintains that

the State’s evidence was based “solely on assumptions and inferences” and did not

prove that he was “waiting in the parking lot for Dixon, Clark, and the unidentified

male.” Platt further maintainsthat even if there was evidence from which a jury could

find that he was parked outside the apartment, the evidence showed nothing more

than his mere presence at the scene and failed to rule out every other reasonable

hypothesis except his guilt. We are unpersuaded.

A jury can find a defendant guilty of voluntary manslaughter 

236) (2011). Whether and to what extent the remaining co-defendants’ cases have

been resolved is unclear from the record.

3 Platt’s remaining convictions were merged into the two voluntary

manslaughter convictionsfor sentencing purposes.We do not considerthe sufficiency

of the evidence with respect to the merged offenses. See Nelson v. State, 277 Ga.

App. 92, 96 (1) (b) (625 SE2d 465) (2005).

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when he causes the death of another human being under circumstances

which would otherwise be murder and if he acts solely as the result of

a sudden, violent, and irresistible passion resulting from serious

provocation sufficient to excite such passion in a reasonable person.

OCGA § 16-5-2 (a). 

“If, upon a sudden quarrel, the parties agree to a fight, and one of them is

killed, such killing is voluntary manslaughter, no matter who strikes the first blow.”

(Citation and punctuation omitted.) White v. State, 179 Ga. App. 276, 277 (1) (346

SE2d 91) (1986). “A mutual intention to fight need not be proved directly, but may

be inferred by the jury from the conduct of the parties.” (Citations and punctuation

omitted.) Harris v. State, 183 Ga. App. 219, 220 (1) (358 SE2d 634) (1987). If there

is any evidence that both parties were armed and “intended to resolve their

differences by fighting each other with deadly weapons,” a defendant can be

convicted of voluntarymanslaughter in lieu of murder. Sanders v. State, 283 Ga. 372,

375 (2) (c) (659 SE2d 376) (2008).

Furthermore, “[a] person who does not directly commit a crime may be

convicted upon proof that a crime was committed and that person was a party to it.”

(Citation and punctuation omitted.) Copeny v. State, 316 Ga. App. 347, 349 (1) (a)

(729 SE2d 487) (2012). See OCGA § 16-2-20 (a). 

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A person who intentionally aids or abets in the commission of a crime

or intentionally advises, encourages, hires, counsels or procures another

to commit the crime may be convicted of the crime as a party to the

crime. Mere presence at the scene is not sufficient to convict one of

being a party to a crime, but criminal intent may be inferred from

conduct before, during, and after the commission of a crime.

(Footnote omitted.) Dunn v. State, 248 Ga. App. 223, 224-225 (1) (546 SE2d 27)

(2001). See OCGA § 16-2-20 (b). So long as “the defendant had knowledge of the

intended crime and shared in the criminal intent of the principal actor, he is an aider

and abetter.” (Citation, punctuation, and emphasis omitted.) Copeny, 316 Ga. App.

at 349 (1) (a). Whether a defendant was a party to the charged crime is normally a

question for the jury. Dunn, 248 Ga. App. at 225 (1).

“Applying these principles, we have held that a getaway driver who waits for

his co-defendant to return to the car can be found guilty as a party to the crimes

committed by the co-defendant.” Wise v. State, 325 Ga. App. 377, 380 (1) (752 SE2d

628) (2013). See also Jordan v. State, 281 Ga. App. 419, 422 (1) (636 SE2d 151)

(2006) (defendant who waited at scene in a second car and then assisted in escape

could be found guilty as a party to the crime). Moreover, a defendant who

accompanies a co-defendant to the crime scene and serves as a lookout also can be

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convicted as a party to the crime, see Campbell v. State, 314 Ga. App. 299, 304 (724

SE2d 24) (2012), and evidence that a defendant provided a weapon, ammunition, or

other suppliesto another party for use in mutual combat can be found guilty as a party

to the crime of voluntary manslaughter. See Mitchell v. State, 225 Ga. App. 26, 27-28

(1) (482 SE2d 419) (1997). 

Construed in the light most favorable to the verdict with all inferences drawn

in favor of the prosecution, the combined circumstantial evidence presented by the

State in this case reflected that Plattsupplied hisInfinitistocked with ammunition for

use at the Sandy Springs apartment; accompanied Clark, Dixon, and the unknown

male to the apartment in his silver Grand Prix; remained parked outside while

maintaining cell phone contact with Clark and Dixon after they and the unknown

male went inside the apartment; and served as the getaway driver who facilitated the

escape of the wounded Dixon and the unknown male. Based on this circumstantial

evidence and the case law previously discussed, we conclude that a rational jury was

authorized to find Platt guilty beyond a reasonable doubt as a party to the crime of

voluntary manslaughter. Jackson, 443 U. S. at 319 (III) (B). The jury reasonably

could have inferred that Platt, Clark, Dixon, and the unknown male “were engaged

in a common enterprise at the time of the shooting” and that they “shared a criminal

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intent with respect to the shooting.” Powell v. State, 291 Ga. 743, 745 (1) (733 SE2d

294) (2012). See Wright v. State, 296 Ga. 276, 277, 284 (3) (766 SE2d 439) (2014)

(evidence was sufficient to show that defendant was party to shooting committed by

co-defendant, where defendant drove his co-defendants to the scene, communicated

with his co-defendants at the scene after they got out of the car, and served as the

getaway driver after the shooting); Jordan v. State, 281 Ga. App. 419, 422 (1) (636

SE2d 151) (2006) (evidence wassufficient to support defendant’s conviction as party

to the crime, where defendant waited at the scene and then assisted his co-defendants

in their attempted escape).4

While Platt argues that the evidence did not exclude every reasonable

hypothesis except his guilt, the circumstantial evidence “need not exclude every

conceivable inference or hypothesis – only those that are reasonable.” (Emphasis in

4

It is true that “driving a criminal perpetrator away from a crime scene with

knowledge that he has committed the crime does not, in and of itself, render one

guilty as a party to the crime (although it could result in criminal liability as an

accomplice after the fact at common law).” Ratana v. State, 297 Ga. App. 747, 750

(678 SE2d 193) (2009) (evidence insufficient to support defendant’s conviction as

party to the shooting of the victim by co-defendant, where defendant drove the codefendant from the scene after the shooting, but there was no evidence that the

defendant had driven the co-defendant to the scene or “did anything on the scene to

advise or encourage [the co-defendant]to commit the crimes”). But here, as discussed

above, the evidence, construed in favor of the verdict,showed that Platt did more than

simply drive the others from the scene after the shooting.

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original.) Merritt v. State, 285 Ga. 778, 779 (1) (683 SE2d 855) (2009). The totality

of the evidence summarized above, although circumstantial, was sufficient to allow

the jury to find that every other reasonable hypothesis except the guilt of Platt had

been excluded and to convict him of voluntary manslaughter.5

(b) Platt further contendsthat even if he could be found guilty for the voluntary

manslaughter of Palacios-Vasquez, he could not be found guilty of the voluntary

manslaughter of Clark. Platt emphasizes that Clark was shot and killed by

Palacios-Vasquez or one of his associates, rather than by someone with whom Platt

was aligned in the gunfight. Again, we find no basis for reversal. 

Where there is evidence that the partiesmutually agreed to engage in a gunfight

to settle a dispute, a rational jury can find that all of the “participantsin the gun battle

shared a common criminal intent – to assault each other with guns.” Emmanuel v.

State, 300 Ga. App. 378, 380 (1) (685 SE2d 361) (2009), quoting Taylor v. State, 296

Ga. App. 212, 213 (1) (a) (674 SE2d 81) (2009). See also Coe v. State, 293 Ga. 233,

5 For the same reasons, we conclude that the evidence wassufficient to support

Platt’s convictions for possession of a firearm during the commission of a felony.

“Where a party has possessed a firearm during the commission of a felony, an

accomplice who is concerned in the commission of the crime under OCGA § 16-2-20

is likewise guilty of both offenses.” (Citations and punctuation omitted.) Anderson

v. State, 237 Ga. App. 595, 596 (2) (516 SE2d 315) (1999).

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235 (1) (748 SE2d 824) (2013); Coker v. State, 209 Ga. App. 142, 143 (433 SE2d

637) (1993). Given thisshared criminal intent, a defendant who was a party to the gun

battle can be held criminally liable for a shooting injury or death caused by the battle,

even if the shot was fired by an opponent of the defendant. See id. See also State v.

Spates, 779 N.W.2d 770, 780-781 (Iowa 2010) (“The primary distinction between

garden-variety aiding and abetting and mutual-combat aiding and abetting is that the

existence of mutual combat provides a factual basis for holding a defendant

combatant vicariously liable for the murderous conduct of any other combatant, even

an opponent of the defendant.”). 

A shooting injury or death “caused” by the gun battle means one that was

proximately caused by the battle. See Walker v. State, 251 Ga. App. 479, 481 (1) (553

SE2d 634) (2001) (applying proximate cause in context of voluntary manslaughter

conviction). See also State v. Jackson, 287 Ga. 646, 648 (2) (697 SE2d 757) (2010)

(noting that “proximate cause is the standard for homicide cases in general”).

“Proximate causation imposes liability for the reasonably foreseeable results of

criminal conduct if there is no sufficient, independent, and unforeseen intervening

cause.” (Citation and punctuation omitted.) State v. Ogilvie, 292 Ga. 6, 11 (2) (d) (734

SE2d 50) (2012).

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As already explained, from the circumstances proven in this case, a rational

jury could have inferred that Platt aided and abetted the gunfight that occurred in the

apartment. Platt thus could be held criminally liable for hisfriend Clark’s death, even

if the shot was fired by a rival gang member, so long as the death was proximately

caused by the gunfight. See Coe, 293 Ga. at 235 (1); Emmanuel, 300 Ga. App. at 380

(1); Taylor, 296 Ga. App. at 213 (1) (a); Coker, 209 Ga. App. at 143. And a rational

jury was entitled to find that Clark’s death was a reasonably foreseeable result of the

gunfight, and thus that proximate causation had been shown. The evidence therefore

was sufficient to support Platt’s conviction as a party to the voluntary manslaughter

of Clark. 

2. Platt also contends that the trial court erred by failing to strike a prospective

juror for cause. We do not agree.

Under Georgia law, there is a presumption that potential jurors are

impartial, and the burden of proving partiality relies with the party

seeking to have the juror disqualified. Furthermore, whether to strike a

juror for cause lies within the sound discretion of the trial court, and a

trial court is not obligated to strike a juror for cause in every instance in

which the potential juror expresses doubts about his or her impartiality

or reservations about his or her ability to set aside personal experiences.

Indeed, the trial judge is uniquely positioned to observe a potential

juror’s demeanor and thereby to evaluate his or her capacity to render an

15
impartial verdict. But the trial court must excuse a potential juror for

cause based on the juror’s partiality, if an opinion held by the potential

juror is so fixed and definite that the juror will be unable to set the

opinion aside and decide the case based upon the evidence or the court’s

charge upon the evidence.

(Punctuation and footnotes omitted.) Wheeler v. State, 327 Ga. App. 313, 314-315 (1)

(758 SE2d 840) (2014).

Here, during voir dire, the prospective juror in question indicated that she was

scared of guns. The juror stated that she was unsure if she could overcome her bias

because she believed thatsomeone would have a gun only for self-defense or “to hurt

somebody,” and she did not know any other reason someone would have a gun. When

asked if she would find someone guilty just because she did not like guns, the juror

responded, “No.” The juror then was asked if she would listen to the evidence before

finding someone guilty, and she responded:

I would listen to the evidence. I would love to listen to the evidence, but

my question would always be, well, why does this person need a gun.

And so I would need to understand that there’s a good reason for having

a gun, other than saying having to defend somebody, which means

hurting somebody else, or I’m going to defend my business, [or] a drug

company, by hurting somebody else. We would need to overcome that

burden to understand why someone would have one. 

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Later in her exchange with counsel, the juror stated,

I think I am capable of coming in and taking instructions of how to view

– [the prosecutor] just went through innocent until proven guilty and

taking the facts that are in the courtroom and making a decision of those

facts presented beyond a reasonable doubt. 

The jury also stated that it was her “hope” that she could set her bias aside. 

Based on the juror’s responses, Platt moved to strike the prospective juror for

cause. The State objected, arguing that the juror “wassimply being candid” and could

be fair and impartial when her comments were viewed in their totality. The trial court

agreed with the State and denied the motion to strike. Ultimately, Platt used one of

his peremptory strikes to exclude the prospective juror. 

A prospective juror’s statement that she “hopes” she could decide the case in

an unbiased manner based on the trial court’s instructions and evidence does not

require the juror to be excused. See Ellis v. State, 292 Ga. 276, 283-284 (4) (b) (736

SE2d 412) (2013); Amador v. State, 310 Ga. App. 280, 281-282 (1) (713 SE2d 423)

(2011). See also Johnson v. State, 291 Ga. 621, 624 (2) (732 SE2d 266) (2012)

(“When a potential juror testifies that he or she will ‘try’ to decide the case based

upon the court’s instructions and the evidence, excusing that prospective juror for

cause is not mandated.”). Furthermore, “it is not an abuse of discretion to seat a juror

17
who questions her ability to set aside biases so long as the juror indicates she has no

unalterable fixed prejudices.” (Punctuation and footnote omitted.) Wheeler, 327 Ga.

App. at 316 (1). 

Based on the prospective juror’s comments, taken as a whole, the trial court

was authorized to find that the juror’s opinion was not so fixed and definite as to

preclude her from service on the jury. The trial court therefore did not abuse its

discretion in denying Platt’s motion to strike the prospective juror for cause. 

Judgment affirmed. Ray and McMillian, JJ., concur.

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