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Final Copy 292 Ga. 92 S12A1889. THE STATE v. HARRIS. HINES, Justice. The State appeals the superior court's grant of a new trial to Xavier Harris, who was found guilty of felony murder and related crimes in connection with the August 1, 2005 fatal shooting of Ron Strozier and the conspiracy to commit aggravated assault with a deadly weapon of an individual known only as "DBone." For the reasons that follow, we affirm. In March 2006, a Fulton County grand jury returned a 17-count indictment against Harris and four other men: Michael Grissom, Markell Dorsey, Rico Sims, and Darnell Amaker. Harris was named in all but four of the counts, which included charges of malice and felony murder, aggravated assault with a deadly weapon, conspiracy, criminal damage to property, and firearms possession.1 The defendants were all tried together, and the State argued that the

Harris was charged with Count 1 - the malice murder of Strozier; Count 2 - the felony murder of Strozier while in the commission of aggravated assault with a deadly weapon against Strozier; Count 3 - the felony murder of Strozier while in the commission of conspiracy to commit aggravated assault with a deadly weapon against Strozier; Count 4 the felony murder of Strozier while in the commission of aggravated assault with a deadly weapon against "D-Bone"; Count 5 - the felony murder of Strozier while in the commission of conspiracy to commit criminal damage to property in the first degree; Count 7 - the aggravated assault with a deadly weapon against Strozier; Count 8 - conspiracy to commit aggravated assault with a deadly weapon against Strozier; Count 9 - conspiracy to commit aggravated assault with a deadly weapon against "D-Bone"; Count 10 - conspiracy to commit criminal

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crimes were related and part and parcel of the same conspiracy. The State's theory of the case was that a chain of events preceded the fatal incident, beginning with a physical altercation between Dorsey and D-Bone at a convenience store on July 31, 2005, during which D-Bone bested Dorsey. Seeking retribution, Dorsey enlisted his friend Sims to confront D-Bone; they walked through a wooded area between two apartment complexes in order to do so. Sims emerged from the woods wearing a bullet proof vest and armed with an assault rifle. D-Bone, and his group of friends, which included Strozier, waylaid Sims and took his vest and rifle. The following day, August 1, 2005, Harris accompanied Dorsey, Sims, Amaker, and Grissom to the "wooded cut" leading to one of the apartment complexes. The State maintained that Harris and the four co-defendants conspired to shoot Strozier and D-Bone, and "shoot up" D-Bone's truck. As they walked through the cut to confront D-Bone, the men encountered Strozier, and Strozier was fatally shot.

damage to property in the first degree; Count 14 - the aggravated assault of Christina Green; Count 15 - possession of a firearm during the commission of the murder and aggravated assault of Strozier; Count 16 - possession of a firearm during the commission of the aggravated assault of Green; and Count 17 - possession of a firearm during the commission of multiple crimes against "D-Bone." Counts 6, 11, and 12 charged only Dorsey with the felony murder of Strozier while in the commission of possession of a firearm by a convicted felon, possession of a firearm by a convicted felon, and theft by receiving stolen property (auto); Count 13 charged solely Sims with theft by receiving stolen property (auto). 2

Harris, who was 19 years old at the time of the crimes, related his version of events to police. During the fatal encounter, he heard a loud gunshot, like that of a shotgun, and then he ran, and that after running from the scene of the shooting, he met with the co-defendants at Dorsey's apartment. Later Harris rode with Sims and Grissom in a vehicle Sims had stolen, to another apartment complex looking for D-Bone; Dorsey and Amaker were in a second vehicle in the hunt for D-Bone. They encountered D-Bone in his pick-up truck, and a shootout ensued. Harris fled this scene after the vehicle in which he was riding crashed. Dorsey, Amaker, Grissom, and Sims were arrested. Harris turned himself in to police on August 18, 2005. The jury found Harris guilty of Strozier's felony murder predicated on the conspiracy to commit aggravated assault with a deadly weapon against Strozier, conspiracy to commit aggravated assault with a deadly weapon against D-Bone, and conspiracy to commit criminal damage to property in the first degree; voluntary manslaughter; involuntary manslaughter based upon reckless conduct; and reckless conduct. Harris was also found guilty of conspiracy to commit aggravated assault against D-Bone, conspiracy to commit criminal damage to property in the first degree, and possession of a firearm during the commission

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of multiple crimes against D-Bone. Harris was either found not guilty of the remaining charges or they were resolved by directed verdicts of acquittal. Harris moved to vacate his convictions and for a new trial; however, by that time the judge who presided over the trial had retired, and a different judge considered the motion for a new trial. This judge granted Harris a new trial on the general grounds, expressly finding that the verdicts were decidedly and strongly against the weight of the evidence, contrary to the law and principles of equity and justice, and that the evidence warranted the court exercising its discretion pursuant to OCGA

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