CourtListener 10680277

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319 Ga. 550
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S24A0526. WILSON v. THE STATE.

LAGRUA, Justice.

In October 2018, Appellant Demon Wilson was convicted of

malice murder and related crimes for the shooting death of Desmond

Kinnemore.1 On appeal, Wilson contends that (1) the evidence was

insufficient to warrant a conviction based on circumstantial

1 The crimes occurred in Rockmart on January 8, 2013. On March 17,

2015, a Polk County grand jury indicted Wilson for malice murder (Count 1),
two counts of felony murder predicated on aggravated assault (Counts 2 and
3), two counts of aggravated assault (Counts 4 and 5), and possession of a
firearm by a convicted felon (Count 6). The District Attorney later dismissed
Count 6. Wilson was tried October 2 to 4, 2018, and the jury found him guilty
of all counts. The trial court sentenced Wilson to serve life in prison without
the possibility of parole for Count 1. For the purposes of sentencing, the trial
court merged Counts 4 and 5 into Count 2 and Counts 2 and 3 into Count 1.
However, Counts 2 and 3 were vacated by operation of law, and the trial court
should have merged Counts 4 and 5 into Count 1. “Nevertheless, the trial
court’s incorrect nomenclature did not affect Appellant’s sentence because the
trial court only imposed a sentence for the malice-murder count[,]” so “there is
no sentencing error to correct.” Williams v. State, 316 Ga. 147, 153 (3) (886
SE2d 818) (2023) (citation and punctuation omitted). Through trial counsel,
Wilson filed a timely motion for new trial, which the trial court denied. The
trial court later vacated its order, and Wilson filed an amended motion through
new counsel. After holding evidentiary hearings, the trial court denied the
amended motion for new trial on February 16, 2023. Wilson filed a timely
notice of appeal, and his case was docketed to this Court’s term beginning in
April 2024 and was submitted for a decision on the briefs.
evidence; and (2) the trial court erred by not permitting evidence of

other suspects. For the reasons explained below, we affirm.

The evidence presented at trial showed that sometime after

10:00 a.m. on January 8, 2013, Cindy Bowman was driving on

Morgan Valley Road in Rockmart with her adult son John Bowman.

The Bowmans testified that they saw a red sedan driving in their

direction, and they also saw a man, later identified as Kinnemore,

walk onto the road in front of them. Cindy stopped her car, and the

red sedan stopped as well. Kinnemore walked up to the driver’s side

of the red sedan. John testified that he heard a single, loud pop, and

then he saw Kinnemore walk off the road and fall into a ditch by the

road. Cindy testified she did not hear any noise, but she saw

Kinnemore clutch his stomach and stumble backward into the ditch.

Neither observed the driver of the red sedan with a gun.

Immediately after, the red sedan slowly drove away, passing the

Bowmans. John did not look at the driver, but Cindy could see that

the driver was a man and the only occupant of the car. The Bowmans

drove away.

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At 10:32 a.m., a woman — who lived adjacent to the section of

Morgan Valley Road where this encounter occurred — was inside

her house, heard four to five gunshots, and called 911. The woman

and the Bowmans testified that gunshots were commonly heard in

the neighborhood. Police arrived and found Kinnemore’s dead body

lying in the ditch with a gunshot wound to the back of the head. No

bullets were found, but investigators located a single, spent .223

caliber shell casing on the road near Kinnemore’s body.

Investigators also found a bullet hole in a house approximately 250

feet down the road. A forensics examiner testified that the direction

and size of the bullet hole in the house indicated that the bullet was

fired from a high-powered firearm from the vicinity of where

Kinnemore approached the red sedan.

The Bowmans returned to the scene and told police what they

saw, including that the shooter drove a red sedan. A responding

police officer testified that John Bowman told him that the red

sedan’s headlight was slightly discolored and there was something

hanging from the rear-view mirror. That afternoon, that officer

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stopped a red sedan matching the description provided by the

Bowmans on the street parallel to Morgan Valley Road. The car was

a 2001 Cadillac Seville, and Wilson was driving.

The officer told Wilson that the police were investigating a

shooting that occurred earlier that morning. Wilson told the officer

that he did not know who had been shot, though later in the

conversation Wilson commented that he “heard that Bud had been

robbing people.” The officer testified that “Bud” was Kinnemore’s

nickname. Wilson also told the officer that he left Rockmart for

Rome around 10:00 a.m. that day, but later stated that he perhaps

left Rockmart as early as 8:00 a.m. Wilson told the officer that he

visited a Walmart in Rome, but he could not say which of two specific

Walmarts he visited. The parties stipulated that surveillance

footage from the two Walmarts did not show Wilson visiting either

store that day. Wilson also said that he went with a woman to Waffle

House that morning but would not provide her name. Wilson later

said they went to Huddle House, and when asked to clarify, he said

they went to both Waffle House and Huddle House.

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The officer smelled marijuana coming from Wilson’s Cadillac

during this conversation, and a drug dog “alerted” on the vehicle.

Police searched the Cadillac and found a small bag of marijuana and

a .22 caliber rifle. Police let Wilson leave that day, but eight days

later they arrived at his house with an arrest warrant for possession

of a firearm by a convicted felon. After reading him his Miranda

rights,2 police interviewed Wilson at his house, and he denied any

involvement in Kinnemore’s death. With Wilson’s consent, police

searched his property and found two .223 caliber cartridges, one

inside the house and one outside. Police also impounded and

searched Wilson’s Cadillac, finding two .223 caliber cartridges and

one spent .223 caliber shell casing in the back seat. A firearms

expert testified that the .223 caliber shell casing in the Cadillac was

fired from the same firearm as the .223 caliber shell casing found at

the scene of the shooting.

Police found no firearms at Wilson’s house, but Wilson’s cousin

testified that he sold Wilson an AR-15 a few months prior which uses

2 Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

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.223 caliber bullets. The medical examiner testified that Kinnemore

died from a bullet wound to the back of the head, but she could not

conclusively identify the type of bullet or firearm used. She theorized

that the wound was indicative of a smaller firearm like a handgun,

but she also explained there are scenarios where the bullet could

have been fired from a high-powered rifle firing .223 caliber rounds.

Ten days after the shooting, police showed the Bowmans a

photograph of Wilson’s Cadillac, and both identified it as the red

sedan that they saw on January 8.3 Two months later, Wilson was

indicted for Kinnemore’s murder.

At trial, Wilson’s father testified that Wilson and Wilson’s

uncle picked up the Cadillac from an auto shop on the morning of

January 8, and surveillance footage showed Wilson and his uncle

leaving the auto shop at approximately 9:53 a.m. Wilson’s father

testified that they returned to his house with the Cadillac “around

about” 10:00 a.m., then Wilson left the house in the Cadillac

“sometime after” 10:00 a.m. The house was a one-minute drive from

3 John also identified Wilson’s Cadillac during trial.

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the scene of the shooting. Wilson’s father also testified that he had

never seen Wilson with a high-powered rifle and that he knew of no

dispute between Kinnemore and Wilson, but the two did know each

other from living in the same neighborhood.

1. Wilson contends that the evidence was insufficient as a

matter of Georgia statutory law to support his convictions because

there were multiple hypotheses consistent with the evidence that

are not consistent with his guilt.4

When a conviction is based on circumstantial evidence, OCGA

§ 24-14-6 requires that “the proved facts shall not only be consistent

with the hypothesis of guilt, but shall exclude every other reasonable

hypothesis save that of the guilt of the accused.” (Emphasis

supplied.) “Whether any alternative hypotheses are reasonable and

whether the circumstantial evidence excludes any such hypotheses

4 In his brief before this Court, Wilson cites Jackson v. Virginia, 443 U.S.

307 (99 SCt 2781, 61 LE2d 560) (1979), in the section setting out the standard
of review. However, Wilson never argues that the evidence was insufficient as
a matter of due process — only that it was insufficient under OCGA § 24-14-6.
See Davenport v. State, 309 Ga. 385, 398-399 (4) (b) (846 SE2d 83) (2020)
(holding that this Court no longer routinely reviews sua sponte the
constitutional sufficiency of the evidence in non-death penalty cases).
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are questions for the jury[,] and we will not disturb the jury’s

findings on those questions unless they are insupportable as a

matter of law.” Rashad v. State, 318 Ga. 199, 206 (2) (897 SE2d 760)

(2024) (citation and punctuation omitted).

Assuming without deciding that Wilson’s conviction was based

solely on circumstantial evidence, we hold that it satisfies OCGA §

24-14-6. Wilson first argues that it is a reasonable hypothesis that

the red sedan identified by the Bowmans was not even involved in

the shooting or that someone else drove the red sedan. But the

Bowmans witnessed Kinnemore approach the red sedan before

falling into the ditch — where he was found dead — and one of the

Bowmans and a neighbor heard gunshots. Later that day, Wilson

was seen driving a Cadillac matching the red sedan’s description

near where the shooting occurred, and the Bowmans identified

Wilson’s Cadillac as the red sedan that they saw. Testimony from

Wilson’s father placed Wilson in the Cadillac a few minutes before

and a short distance away from the shooting, which is contrary to

what Wilson told police. Evidence also showed that Wilson owned a

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firearm that used the type of round matching the shell casing found

on the road at the scene. And evidence showed that the shell casing

was ejected from the same firearm as a shell casing found in Wilson’s

Cadillac. Wilson argues that the shell casing on the road could have

landed there by other means or that Kinnemore could have instead

been shot by a handgun. However, the medical examiner did not

expressly rule out that Kinnemore’s injuries could have been caused

by a high-powered rifle, and the crime scene investigator testified

that the bullet hole found on a house near the scene was caused by

a high-powered weapon fired from the area where the red sedan was.

In sum, we conclude that the evidence presented at trial

authorized the jury to reject as unreasonable Wilson’s alternative

hypotheses. Indeed, “[u]nder these circumstances, it was for the jury

to determine the credibility of the witnesses and to resolve any

conflicts or inconsistencies in the evidence and to decide whether the

defense theory that an unknown assailant was the killer was

reasonable and not excluded by the other evidence.” Clark v. State,

309 Ga. 473, 478 (847 SE2d 364) (2020). Because the jury’s findings

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were sufficiently supported by the evidence, “we will not disturb”

those findings. Rashad, 318 Ga. at 206 (2) (citation and punctuation

omitted). See Taylor v. State, 312 Ga. 1, 6 (2) (860 SE2d 470) (2021)

(affirming, in a statutory sufficiency challenge, the jury’s rejection

of an appellant’s alternate hypothesis that she was not at the scene

of the shooting or in possession of the murder weapon when the

evidence showed “that Appellant had a motive for the shootings, that

[an eyewitness] was with the victims at the time of the shootings,

that a car matching the description of Appellant’s was involved in

the shootings, and that Appellant had a handgun with her and in

her vicinity during the day of the shootings”).

2. Wilson next contends that the trial court erred by not

permitting testimony about other suspects. At trial, Wilson’s trial

counsel questioned lead Detective David Gowens regarding other

leads he did not follow during the investigation. The State made a

hearsay objection. Outside the presence of the jury, Wilson’s trial

counsel proffered that two men — specifically two brothers — had

recently threatened Kinnemore in connection with a court

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proceeding where Kinnemore was going to testify against them.

Detective Gowens testified that he investigated the rumor, though

he did not interview the brothers, and that he found no credible

evidence to substantiate what he called “street talk” against them.

Rather, one of the brothers was in jail during Kinnemore’s murder.

Further, Detective Gowens testified that there was also a rumor that

the brothers hired Wilson to murder Kinnemore. Wilson’s defense

counsel next questioned Detective Gowens about several other

individuals he did not interview, including a man who claimed that

Kinnemore robbed him. But Detective Gowens repeatedly testified

that his investigation did not uncover any information that some

other specific person may have committed this crime.

At the conclusion of the proffer, Wilson’s trial counsel

explained why he should be allowed to ask Detective Gowens about

the brothers, and the trial court answered “Sure” and “Go ahead.”

But when Wilson’s trial counsel next asked, “I would like to . . . tell

the jury [Detective Gowens] had other leads[,]” the trial court

answered, “No, I’m not going to allow you to just speculate. . . .” After

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the jury returned to the courtroom, Wilson’s trial counsel did not ask

Detective Gowens any questions about the brothers or any leads

other than the brothers.

Wilson now contends he should have been permitted to ask

about both the brothers and the other leads. The State contends that

the trial court permitted testimony regarding the brothers, and the

trial court only excluded the more speculative testimony regarding

suspects other than the brothers. The State also contends that all of

Detective Gowens’s proffered testimony was inadmissible because it

failed to raise a reasonable inference of Wilson’s innocence. See

Pittman v. State, 318 Ga. 819, 826 (4) (901 SE2d 90) (2024) (“[F]or

such third-party guilt evidence to be admissible, it must raise a

reasonable inference of the defendant’s innocence, and must directly

connect the other person with the corpus delicti, or show that the

other person has recently committed a crime of the same or similar

nature.” (citations and punctuation omitted)). However, we need not

make a determination about what the trial court actually excluded

or whether the trial court abused its discretion in doing so, because

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any error was harmless.

“A trial court’s evidentiary error warrants reversal only if it

was harmful. The test for determining nonconstitutional harmless

error is whether it is highly probable that the error did not

contribute to the verdict.” Jivens v. State, 317 Ga. 859, 863 (2) (896

SE2d 516) (2023) (citation and punctuation omitted). “The burden to

make this showing is the State’s to bear, and in determining

whether the showing has been made, we review the record de novo

and weigh the evidence as we would expect reasonable jurors to have

weighed it.” Johnson v. State, 316 Ga. 672, 684 (4) (c) (889 SE2d 914)

(2023). Here, the excluded testimony merely alleged that some other

individuals might have had a motive to kill Kinnemore. Even if the

proffered evidence of others’ motives would have helped Wilson’s

defense, we doubt it would have helped meaningfully. The proffer

was speculative and non-specific — Detective Gowens never

uncovered any evidence connecting another person to the shooting

itself. Rather, Detective Gowens explained that some of the “street

talk” he would have testified about still inculpated Wilson as the

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shooter. See Oree v. State, 280 Ga. 588, 593 (5) (630 SE2d 390) (2006)

(holding that it was harmless error for the trial court to exclude

testimony that the shooting victim had threatened a co-indictee

because other evidence still showed that defendant was a party to

the crime). The excluded testimony also did nothing to rebut other

strong evidence against Wilson presented at trial, including the

evidence that Wilson was driving near the crime scene at the time

of the shooting in a vehicle identified as the shooter’s vehicle and

was in possession of a shell casing that was ejected from the same

firearm as a shell casing found at the crime scene. See Jordan v.

State, 303 Ga. 709, 712-713 (3) (814 SE2d 682) (2018) (holding that

evidentiary error was harmless in light of other evidence presented

at trial showing that Appellant interacted with the victim before the

shooting, shots were fired from Appellant’s vehicle, and shell casings

found at the scene came from a firearm discovered in Appellant’s

home). Therefore, we hold that it is highly improbable that the

alleged error contributed to the verdict.

Judgment affirmed. All the Justices concur.

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Decided August 13, 2024.

Murder. Polk Superior Court. Before Judge Murphy.

John Monroe Law, John R. Monroe, for appellant.

Jack Browning, Jr., District Attorney, Jaeson R. Smith,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Beth A. Burton, Deputy Attorney General, Meghan H. Hill, Clint C.

Malcolm, Senior Assistant Attorneys General, M. Catherine Norman,

Assistant Attorney General, for appellee.

NOTICE: 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.

In the Supreme Court of Georgia

Decided: August 13, 2024

S24A0526. WILSON v. THE STATE.

LAGRUA, Justice.

In October 2018, Appellant Demon Wilson was convicted of

malice murder and related crimes for the shooting death of Desmond

Kinnemore.1 On appeal, Wilson contends that (1) the evidence was

1 The crimes occurred in Rockmart on January 8, 2013. On March 17,

2015, a Polk County grand jury indicted Wilson for malice murder (Count 1),
two counts of felony murder predicated on aggravated assault (Counts 2 and
3), two counts of aggravated assault (Counts 4 and 5), and possession of a
firearm by a convicted felon (Count 6). The District Attorney later dismissed
Count 6. Wilson was tried October 2 to 4, 2018, and the jury found him guilty
of all counts. The trial court sentenced Wilson to serve life in prison without
the possibility of parole for Count 1. For the purposes of sentencing, the trial
court merged Counts 4 and 5 into Count 2 and Counts 2 and 3 into Count 1.
However, Counts 2 and 3 were vacated by operation of law, and the trial court
should have merged Counts 4 and 5 into Count 1. “Nevertheless, the trial
court’s incorrect nomenclature did not affect Appellant’s sentence because the
trial court only imposed a sentence for the malice-murder count[,]” so “there is
no sentencing error to correct.” Williams v. State, 316 Ga. 147, 153 (3) (886
SE2d 818) (2023) (citation and punctuation omitted). Through trial counsel,
Wilson filed a timely motion for new trial, which the trial court denied. The
trial court later vacated its order, and Wilson filed an amended motion through
new counsel. After holding evidentiary hearings, the trial court denied the
insufficient to warrant a conviction based on circumstantial

evidence; and (2) the trial court erred by not permitting evidence of