Lizana v. State

After a jury trial, Ricardo Ray Lizana was acquitted of malice murder and found guilty of the felony murder of Kelly Woods while in the commission of aggravated assault. The trial court entered judgment of conviction on the guilty verdict and sentenced Lizana to life imprisonment. A motion for new trial was denied, and Lizana appeals. 1. Construed most strongly in support of the verdicts, the evidence shows that, after Lizana’s girlfriend left her apartment, the victim drove up and gave her a hug and a kiss on the cheek. Lizana then came out the apartment, grabbed the victim, who never resisted, and hit him. When the victim fell to the ground, Lizana repeatedly stomped and kicked him. The victim died from multiple catastrophic injuries to his head and neck. The evidence was sufficient to authorize a rational trier of fact to find Lizana guilty beyond a reasonable doubt of felony murder while in the commission of aggravated assault. Jackson v. Virginia , 443 U. S. 307 99 SC 2781, 61 LE2d 560 1979; Dasher v. State , 285 Ga. 308, 309 1 676 SE2d 181 2009.

2. The felony murder count of the indictment alleged that Lizana unlawfully caused the death of the victim, while in the commission of aggravated assault, “by striking him about the head and body, using his hands and feet as objects likely to, and which actually did result in serious bodily injury . . . .” Lizana contends that trial counsel was ineffective in failing to demur to this count, or to file a motion in arrest of judgment after the conviction, on the ground that the indictment did not allege the essential element that Lizana’s hands and feet were objects which, “when used offensively,” were likely to or actually did result in serious bodily injury. To prevail on this claim, Lizana must show that his attorney’s performance was deficient and that, but for that deficient representation, there is a reasonable probability that the proceeding would have ended differently. Strickland v. Washington , 466 U. S. 668 104 SC 2052, 80 LE2d 674 1984. . . . We must accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous, but we apply the appropriate legal principles to the facts independently. Cit. Silvers v. State , 278 Ga. 45, 46 2 597 SE2d 373 2004.