297 Ga. 47
FINAL COPY



                   S15A0045. TEPANCA v. THE STATE.


      MELTON, Justice.

      Following a jury trial, Hugo M. Tepanca was found guilty of malice

murder, felony murder, aggravated assault, and possession of a firearm during

the commission of a felony, all with regard to the shooting death of Jose

Sanchez-Vargas.1 On appeal, Tepanca contends, among other things, that he has

been subjected to mutually exclusive verdicts and that he received ineffective

assistance from his first appellate counsel. For the reasons set forth below, we

affirm.

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         On May 5, 2008, Tepanca was indicted in Hall County for malice
murder, felony murder predicated on aggravated assault, aggravated assault, and
possession of a firearm during the commission of a felony. Following a jury
trial, Tepanca was found guilty of all counts, and, on April 19, 2010, he was
sentenced to life imprisonment for felony murder and five consecutive years for
possession of a firearm. The trial court merged the verdicts for malice murder
and aggravated assault for purposes of sentencing. On April 21, 2010, trial
counsel filed a motion for new trial, but Tepanca obtained new counsel on June
23, 2010. The trial court denied the motion for new trial on March 26, 2012, and
Tepanca filed a notice of appeal on April 20, 2012, amended on October 15,
2012. Once the record was transmitted to this Court, Tepanca’s appeal was
docketed to the January 2015 term and orally argued on January 5, 2015.
      1. Viewed in the light most favorable to the verdict, the record shows that,

in April 2008, Tepanca lived with Melissa Gonzalez-Clambron, with whom he

had two children. Tepanca and Gonzalez-Clambron have never been married.

Approximately six months before the birth of his second child, Tepanca began

a secret sexual relationship with Alicia Hernandez; however, Hernandez told

Tepanca prior to the murder that she wished to stop seeing him. Sanchez-Vargas

often drove Hernandez and a number of her neighbors to work for a fee.

      On April 20, 2008, at around 7:00 p.m., Sanchez-Vargas visited

Hernandez to collect his driving fee. Sanchez-Vargas and Hernandez spoke

outside her home, and Sanchez-Vargas remained in his truck. Tepanca, who was

visiting the same complex with Gonzales-Clambron, saw this conversation

taking place, approached Sanchez-Vargas’s truck, and asked Sanchez-Vargas

what he was doing there. Tepanca did not personally know Sanchez-Vargas, and

he testified that, prior to that moment, he did not believe that Hernandez was

sexually involved with anyone else. Sanchez-Vargas answered Tepanca that

what he was doing was none of Tepanca’s business. Angered, Tepanca pulled

out a handgun and fired into the ground. Sanchez-Vargas was unarmed.

Hernandez then told Sanchez-Vargas to leave, which he did. Following a brief

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altercation with Gonzales-Clambron, Tepanca drove off in the same direction.

      According to Tepanca, he and Sanchez-Vargas had contact at a traffic

light a short distance away. Tepanca testified that Sanchez-Vargas threatened

Tepanca that he would "kick his ass." When the light turned green, Tepanca

decided to follow Sanchez-Vargas, and he tracked him all the way to his home.

Tepanca testified repeatedly that, at the time that he decided to follow Sanchez-

Vargas, he was not mad. Instead, Tepanca’s stated intention was “to make things

right.” According to Tepanca, Sanchez-Vargas got out of his truck, and Tepanca

asked him if they could work things out. Tepanca testified that Sanchez-Vargas

repeated the threat to kick his ass, walked toward Tepanca, and appeared to

reach for something in his pocket. Tepanca then shot Sanchez-Vargas six times,

even while Sanchez-Vargas was attempting to run away. Tepanca admitted that

he shot Sanchez-Vargas and that he never saw the victim with a gun.

      These facts were sufficient to enable the jury to find Tepanca guilty of the

crimes for which he was convicted beyond a reasonable doubt. Jackson v.

Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

      2. Tepanca contends that, during sentencing, the trial court erred by

merging his conviction for malice murder into his conviction for felony murder.

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      When the jury returns guilty verdicts on both felony murder and
      malice murder charges in connection with the death of one person,
      it is the felony murder conviction, not the malice murder conviction
      that is “simply surplusage” (Biddy v. State, 253 Ga. 289 (2) (319
      SE2d 842) (1984)), and stands vacated by operation of law. Wade
      v. State, 258 Ga. 324 (2) (368 SE2d 482) (1988). Since [Tepanca’s]
      sentence of life imprisonment is appropriate for both felony murder
      and malice murder (OCGA § 16-5-1 (d)), appellant has suffered no
      harm from the trial court's action in vacating the malice murder
      conviction and retaining the felony murder conviction.

Williams v. State, 270 Ga. 125, 126-127 (4) (508 SE2d 415) (1998).

      3. Tepanca contends that, because the jury found him guilty of malice

murder but acquitted him of the lesser included offense of voluntary

manslaughter, he received mutually exclusive verdicts which are void.

Specifically, Tepanca argues that, by returning a guilty verdict on malice

murder, the jury found that the State proved that Tepanca acted without

provocation, but by returning a not guilty verdict regarding the charge of

voluntary manslaughter, the jury necessarily found that the State failed to prove

the lack of provocation beyond a reasonable doubt.

      Verdicts are mutually exclusive “where a guilty verdict on one
      count logically excludes a finding of guilt on the other.” Jackson v.
      State, 276 Ga. 408, 410 (2) (577 SE2d 570) (2003), citing United
      States v. Powell, 469 U. S. 57, 69, n. 8 (105 SC 471, 83 LE2d 461)
      (1984). Thus, the rule against mutually exclusive verdicts applies to
      multiple guilty verdicts which cannot be logically reconciled; the

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      rule is not implicated where, as here, verdicts of guilty and not
      guilty are returned. Dumas v. State, 266 Ga. 797 (2) (471 SE2d
      508) (1996).

(Punctuation and emphasis omitted.) Shepherd v. State, 280 Ga. 245, 248 (1)

(626 SE2d 96) (2006). What Tepanca is actually arguing is that his verdicts

were inconsistent, not mutually exclusive. The inconsistent verdict rule,

however, has been abolished in criminal cases for quite some time. See Milam

v. State, 255 Ga. 560 (2) (341 SE2d 216) (1986). Therefore, Tepanca’s

argument ultimately lacks merit.

      4. Tepanca contends that the trial court erred by failing to charge the jury

that either adultery or sexual jealousy between non-married persons may serve

as provocation for voluntary manslaughter. We disagree.

      A requested “jury instruction must be adjusted to the evidence and

embody a correct, applicable, and complete statement of law.” (Citations and

punctuation omitted.) Roper v. State, 281 Ga. 878, 880 (644 SE2d 120) (2007).

Under this standard, a jury instruction regarding provocation formed by either

adultery or sexual jealousy was unwarranted. According to the facts of this case,

there was no adultery at all. “A married person commits the offense of adultery

when he voluntarily has sexual intercourse with a person other than his

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spouse[.]” OCGA § 16-6-19. In this case, none of the parties were married;

therefore, no instruction regarding adultery as a provocation for voluntary

manslaughter was warranted. Likewise, the evidence indicated that Tepanca was

not provoked by sexual jealousy at the time he shot Sanchez-Vargas. Tepanca

testified that, at the time of the shooting, he was not mad at Sanchez-Vargas and,

instead, he was only trying to talk peacefully with him. He further testified that

he shot at Sanchez-Vargas because he was afraid that Sanchez-Vargas could

have been reaching for a weapon. As a result, under Tepanca’s own version of

the facts, the instruction on sexual jealousy would have been improper. In any

event, Tepanca’s sexual jealousy was based wholly on supposition, and, even

if Hernandez had told him that she had gone out with Sanchez-Vargas, it would

not be “sufficient to excite sudden, violent, and irresistible passion in a

reasonable person, OCGA § 16-5-2.” Mayweather v. State, 254 Ga. 660, 661 (3)

(333 SE2d 597) (1985).

      5. Tepanca contends that the trial court erred by denying his request to

charge the jury regarding the law of mutual combat as a basis for finding

Tepanca committed only voluntary manslaughter. As discussed above, however,

Tepanca’s own testimony was that he did not want to fight Sanchez-Vargas. So,

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even if there were evidence that Sanchez-Vargas wanted to fight, there is no

evidence that Tepanca wanted to fight also. As such, “the evidence did not

warrant such instructions since [Tepanca] testified he acted in self-defense in the

fight and did not intend to kill the victim.” Ruffin v. State, 296 Ga. 262, 264 (2)

(a) (765 SE2d 913) (2014). Moreover, “[t]he unlawful killing of one who has

given the slayer no provocation other than the use of words, threats, menaces,

or contemptuous gestures, can not, in this State, be graded to voluntary

manslaughter, under the doctrine of mutual combat.” (Citation and punctuation

omitted.) Joyner v. State, 208 Ga. 435, 440 (4) (67 SE2d 221) (1951). Under either

of these precepts, the trial court did not err by refusing to charge the jury

regarding mutual combat.

      6. Tepanca contends that he received ineffective assistance because his

first appellate counsel abandoned his case after being appointed. Specifically,

Tepanca complains that first appellate counsel failed to file an amended motion

for new trial or submit any argument or evidence in support of the existing

motion filed by trial counsel. In addition, appellate counsel waived a hearing on

the motion for new trial, and Tepanca maintains that appellate counsel delayed

this appeal by failing to ensure the timely transmittal of the record. Tepanca

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argues that, pursuant to United States v. Cronic, 466 U. S. 648 (104 SCt 2039,

80 LE2d 657) (1984), prejudice must be presumed in his case due to a

constructive denial of counsel. However,

      for the Cronic “constructive denial of counsel” exception to apply,
      the “attorney's failure must be complete and must occur throughout
      the proceeding and not merely at specific points.” Turpin v. Curtis,
      278 Ga. 698, 699 (606 SE2d 244) (2004). [Tepanca’s] assertion that
      his [appellate counsel abandoned him at the motion for new trial
      stage] does not meet this stringent standard. We therefore evaluate
      [Tepanca’s] ineffective assistance claims under the usual Strickland
      v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674)
      (1984)] deficient performance and resulting prejudice test.

(Citation and punctuation omitted.) Charleston v. State, 292 Ga. 678, 682-683

(4) (a) (743 SE2d 1) (2013).

      In this case, it must be noted that ineffective assistance of counsel is being

raised for the first time. Where a claim of ineffective assistance of counsel has

properly been raised for the first time on appeal, this court has explained that

      claims of ineffective assistance of appellate counsel which are
      premised on other claims that are not procedurally barred may be
      raised on appeal by new appellate counsel. [Cit.] Assuming that
      Appellant's claim of ineffective [first] appellate counsel is properly
      raised because it is premised on a claim not procedurally barred, a
      remand to the trial court for an evidentiary hearing would be
      necessary unless we can “determine from the record that the
      two-prong test for ineffectiveness cannot be met. [Cits.]” [Cit.]


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Rogers v. State, 290 Ga. 401, 409 (5) (721 SE2d 864) (2012), overruled on other

grounds by State v. Sims, 296 Ga. 465 (___ SE2d ___) (2015). Here, however,

Tepanca has made no specific claims as to how appellate counsel was

ineffective. Instead, he generally argues that appellate counsel should have filed

an amended motion for new trial, but he gives this Court no indication of what

might have been raised in that motion. In essence, he leaves this Court to engage

in a guessing game as to how appellate counsel’s representation, or rather lack

thereof, might have amounted to ineffective assistance. Under these

circumstances, Tepanca has failed to show even a possibility of ineffective

assistance, and there is no need for a hearing on remand.

      Judgment affirmed. All the Justices concur.



      Decided April 20, 2015 – Reconsideration denied May 11, 2015.

      Murder. Hall Superior Court. Before Judge Gosselin.

      Howard W. Anderson III, for appellant.

      Lee Darragh, District Attorney, Lindsay H. Burton, William C. Akins,

Assistant District Attorneys; Samuel S. Olens, Attorney General, Patricia B.

Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant

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Attorney General, Matthew B. Crowder, Assistant Attorney General, for

appellee.




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