In the Supreme Court of Georgia



                                            Decided: November 2, 2015


            S15A0834. HIGUERA-GUITERREZ v. THE STATE.


      MELTON, Justice.

      Following a jury trial, Rogelio Higuera-Guiterrez was found guilty of the

felony murder of Santos Palacios-Vasquez and Antonio Clark, the voluntary

manslaughter of Vasquez and Clark, conspiracy to traffic cocaine, and

possession of a firearm during the conspiracy to traffic cocaine.1 For the reasons

      1
       On January 26, 2010, Guiterrez was indicted for two counts of malice
murder (one for Vasquez and one for Clark), four counts of felony murder (two
counts per victim predicated on aggravated assault and conspiracy to traffic in
cocaine), two counts of aggravated assault with a deadly weapon (one for each
victim), conspiracy to traffic in cocaine, and two counts of possession of a
firearm during the commission of a crime (one related to aggravated assault of
Clark and Vasquez and the other related to conspiracy to traffic cocaine).
Following a jury trial, Guiterrez was found guilty of the following: (1) four
counts of voluntary manslaughter as lesser included offenses of the two malice
murder counts, one count of the felony murder of Clark predicated on
aggravated assault, and one count of the felony murder of Vasquez predicated
on aggravated assault; (2) two counts of felony murder (one for each victim
predicated on conspiracy to traffic in cocaine); (3) conspiracy to traffic in
cocaine; and (4) one count of possession of a firearm during the commission of
a conspiracy to traffic cocaine. Guiterrez was initially sentenced to life
imprisonment for each count of felony murder, with an additional five years for
set forth below, we must reverse.

      1. The underlying facts of this case have already come before this Court

in the appeal of Guiterrez’s co-defendant, Delman Higuera-Hernandez, with

whom Guiterrez shared a joint trial. There, this Court summarized:

      Construed most strongly in support of the verdicts, the evidence
      shows that [Hernandez] . . . met [James Platt, Jarrett Dixon, and
      Clark] at an apartment for the purpose of selling two kilograms of
      cocaine. After receiving a large amount of cash, [Hernandez] shot
      and killed Clark. Palacios-Vasquez was fatally shot, and
      [Hernandez] himself was shot in the abdomen. He fled with the help
      of others and sought treatment at a hospital, claiming that he was
      injured in an attempted robbery. Although [Hernandez] denied
      knowledge of the apartment, his blood was found at the crime
      scene, and a set of keys to the apartment was discovered at his
      house. Investigators also found over 28 grams of cocaine with a
      purity of at least 10% at the apartment in a different container from
      the purported two kilograms of cocaine offered for sale.

Higuera-Hernandez v. State, 289 Ga. 553, 553-554 (1) (714 SE2d 236) (2011).

      In addition to these facts, the record shows that a jailhouse informant


both conspiracy to traffic in cocaine and possession of a handgun. The
remaining charges were merged for purposes of sentencing, and, by later
amendment, the charge of conspiracy to traffic in cocaine was merged into one
of the felony murder counts as well. On April 9, 2010, Guiterrez filed a motion
for new trial, amended on September 19, 2011 and May 7, 2012, that was
ultimately denied on December 20, 2012. Guiterrez filed a timely notice of
appeal, and after preparation of transcripts and record, his case was docketed to
the April 2015 Term of this Court and submitted for decision on the briefs.
                                       2
named Juan Flores Calderon testified that his cousin, Ando Calderon, is a drug

supplier. Ando told Juan Flores that he provided a man named Vincente2 with

five kilos of cocaine at the Magnolia Apartments. Three kilos were reserved at

an apartment in Magnolia Apartments, and Vincente, a close friend of Guiterrez,

took the other two kilos to Hernandez at his nearby apartment for purposes of

a drug sale. Vincente waited just outside Hernandez's apartment while the drug

transaction was supposed to occur. Juan Flores initially provided this

information to federal agents, who referred him to local police. At some point

thereafter, Juan Flores shared a jail cell with Hernandez, who also conveyed

details of the drug transaction and shootout to him. For example, prior to the

sale, Hernandez met two African-American men and a Latino man in an Infiniti

sedan, and led them to his apartment to conduct the transaction. As money was

being exchanged, one of the African-American men pulled a gun, and

Hernandez shot him.

      In addition, Omar Custodia Monge, a longtime friend of Hernandez,

testified that Hernandez called him immediately after being shot and requested


      2
       Some evidence showed that one of Guiterrez’s co-indictees, Juan
Cervantes Maldonado, also goes by the name Vincente Renteria Maldonado.
                                      3
assistance. Monge and Patricio, a cousin of Hernandez, drove to Hernandez's

apartment complex where they found Hernandez and Antonio Lara-Landera,

both of whom had been wounded in the shootout, waiting near some bushes.

Monge then drove Hernandez to the hospital and overheard him tell Patricio to

instruct Vincente and Guiterrez to retrieve money from the bushes where he had

been found. Mirroring this testimony, Juan Flores testified that Hernandez told

him that it was Guiterrez's responsibility to retrieve money, drugs, and weapons

from the bushes following the shootout. Monge also recounted that Guiterrez

followed his car to the hospital after being contacted by Hernandez, and, later

that day, Vincente, Guiterrez, and Patricio met in Monge's presence to discuss

retrieval of the drugs that had been left behind by Hernandez. Further evidence

showed that Guiterrez's truck was seen at the crime scene at some point after the

shooting had occurred.

      Approximately three months after the shootings, police legally stopped a

vehicle in which Guiterrez was a passenger.3 Based on the belief that Guiterrez

had been involved in the drug transaction and shootings, police put Guiterrez in


      3
        The driver of the car, Maldonado, also known as Vincente, was arrested
for driving without a proper license.
                                       4
handcuffs, placed him in a patrol car, and took him to the precinct for

questioning. Once there, Guiterrez waived his Miranda rights and stated, among

other things, that he lived in the Magnolia Apartments, which is close in

proximity to the apartment complex where the drug transaction occurred.

      2. Guiterrez contends that this evidence was insufficient to support his

conviction as a party to the crimes for which he was found guilty. “Every person

concerned in the commission of a crime is a party thereto and may be charged

with and convicted of commission of the crime.” OCGA § 16-2-20 (a). “A

person is concerned in the commission of a crime only if he: . . . (3)

Intentionally aids or abets in the commission of the crime; or (4) Intentionally

advises, encourages, hires, counsels, or procures another to commit the crime.”

OCGA § 16-2-20 (b). Approval of a criminal act, standing alone, does not rise

to encouragement sufficient to establish that the defendant was a party to the

crime. Jordan v. State, 272 Ga. 395 (1) (530 SE2d 192) (2000). There must be

some evidence showing that the defendant shared a common criminal intent to

commit the crimes in question with the actual perpetrators. Jones v. State, 250

Ga. 11, 13 (295 SE2d 71) (1982). Criminal intent may be inferred from the

defendant's conduct before, during, and after the crime. Belsar v. State, 276 Ga.

                                       5
261, 262 (1) (577 SE2d 569) (2003).

      In the present case, the State has failed to elicit any evidence showing that

Guiterrez was participating in the criminal scheme either before or during the

actual commission of the crimes. The only evidence that the State has presented

for this critical time period is the fact that Guiterrez lived in the Magnolia

Apartments, where testimony indicated that the drugs were originally delivered.

There was no testimony, however, that the drugs were taken to Guiterrez’s

apartment, and, as a result, the best that can be inferred is that the drugs were

taken somewhere within the complex. As for the time period in which the drug

transaction and the shootings occurred, the State presented no evidence that

Guiterrez was present. As a result, there is simply no competent evidence that

Guiterrez was present or otherwise involved in the planning or execution of the

underlying drug transaction or subsequent shootings. Therefore, the evidence

was insufficient to support his convictions.

      Although the State and the trial court relied on Guiterrez’s actions and

knowledge after the commission of the crimes to support his convictions, this

evidence is insufficient to satisfy the standard of OCGA § 16-2-20. At best, it

would show that Guiterrez was an accessory after the fact, not a party to the

                                        6
crimes.4 “At common law and under modern practice, an accessory after the fact

is not considered an accomplice to the underlying crime itself, but is guilty of

a separate, substantive offense in the nature of obstruction of justice.” Purvis v.

State, 208 Ga. App. 653, 654 (433 SE2d 58) (1993).The State, however, did not

charge Guiterrez with being an accessory after the fact.

      Judgment reversed. All the Justices concur.




      4
        Due to the same lack of evidence showing that Guiterrez was involved
in the scheme or crimes before or during their commission, the State failed to
prove that Guiterrez conspired to traffic cocaine.
                                        7
