NICHOLSON v. THE STATE (Two Cases)

FINAL COPY

             S19A0992. NICHOLSON v. THE STATE.
              S19A1006. NICHOLS v. THE STATE.


     NAHMIAS, Presiding Justice.

     Appellants Marques Nicholson and Ramon Nichols were tried

together and convicted of malice murder and other crimes in

connection with the gang-related shooting death of Derrick

Linkhorn. On appeal, both of the appellants contend that the

evidence presented at their trial was insufficient to support their

convictions and that the trial court abused its discretion by denying

their motions to sever their cases for trial. Nicholson also contends

that the trial court erred by admitting certain cell phone records,

and Nichols also contends that the court erred by admitting certain

social media records. After review of the record and the briefs, we

see no error, so we affirm.1


     1 Linkhorn was killed on March 8, 2012. On June 4, 2015, a DeKalb

County grand jury indicted Nicholson, Nichols, Rahsin Narcisse, and
Antarious Johnson for malice murder, felony murder (based on aggravated
      1. Viewed in the light most favorable to the verdicts, the

evidence presented at the joint trial showed the following.

Nicholson, Nichols, and Rahsin Narcisse were members of the 92

Inglewood Family “set” of the Bloods criminal street gang. Nichols

was the highest ranking gang member of those involved in the



assault), two counts of aggravated assault (one with a firearm; one with hands
and feet), and two violations of the Georgia Street Gang Terrorism and
Prevention Act (one based on participation in malice murder, felony murder,
and aggravated assault with a firearm, and the other based on participation in
aggravated assault with hands and feet). Nicholson, Nichols, and Narcisse also
were indicted for four additional violations of the gang statute (one based on
their occupying supervisory positions in the Bloods gang and conspiring to
engage in and engaging in criminal gang activity; and the other three for
directing Johnson and two other persons to participate in criminal gang
activity), and Nichols and Narcisse were indicted for one more violation of the
gang statute for causing and encouraging Johnson to become a member of the
Bloods gang.
       Narcisse and Johnson pled guilty. Nicholson and Nichols were tried
together from February 22 to 29, 2016. The jury found them guilty on all
counts. The trial court sentenced each appellant to serve life in prison without
the possibility of parole for malice murder, 20 consecutive years for aggravated
assault with hands and feet, 15 consecutive years for each of two violations of
the gang statute, and 10 consecutive years for each of four other violations of
the gang statute. Nichols also was sentenced to 10 consecutive years for his
remaining violation of the gang statute. The felony murder count was vacated,
and the aggravated assault with a firearm count merged into the malice
murder conviction.
       Each appellant filed a timely motion for new trial that was later
amended with new counsel. Nicholson amended his motion a second time with
different counsel. After a joint hearing, the trial court denied both motions on
January 31, 2019. The appellants filed timely notices of appeal, and their cases
were docketed in this Court for the August 2019 term, submitted for decision
on the briefs, and consolidated for opinion.
                                       2
crimes charged. Nicholson and Narcisse ranked just below Nichols.

Antarious Johnson, Malcolm Wilson, and Marcus Estes, along with

Linkhorn, were members of a lower ranking subgroup of the 92

Inglewood Family; they were in the process of becoming full

members of the set. Nicholson and Nichols had been associated with

the Bloods since at least 2009, when they were arrested for spraying

a fence with Bloods-related graffiti.

     As part of the initiation process, the lower ranking members

met with higher ranking members, known as “Big Homies,” who had

the power to make certain decisions in the gang and to direct lower

ranking members. Lower ranking members often received directions

from the “Big Homies” through phone conversations and text

messages. Nichols regularly contacted Wilson, who would relay

information to the other lower ranking members.

     In early March 2012, Linkhorn’s friend Andre Alexander told

a number of people that he was associated with 135 Piru, another

set of the Bloods. Alexander was not actually associated with 135

Piru, which angered Linkhorn’s fellow gang members, who planned

                                  3
to attack Alexander for “false claiming.” When Linkhorn found out

that his associates planned to attack Alexander at Alexander’s high

school, he warned Alexander, who then left the school.

      Nicholson, Nichols, Narcisse, and the lower ranking gang

members later learned that Linkhorn had warned Alexander about

the planned attack, and they viewed the warning as an act of

disloyalty to the gang that required discipline. On the evening of

March 7, Nichols, using his nickname “Smurf,” sent Wilson a series

of text messages related to shooting and killing Linkhorn, including

“Tell [Linkhorn] to come thr[ough] so I [c]an pop him,” and “I want

dar[k] fade wit[h] [Linkhorn] bl[oo]d[.]”2 Several minutes later,

“Smurf” sent a message saying, “. . . y[’]all fallback on [th]at 135 s**t,

we gotta take care of [Linkhorn] first[.]”3

      Wilson and Estes, who were charged separately, gave proffers

to the State describing the subsequent events leading to Linkhorn’s


      2 At trial, the State’s gang expert explained that the term “pop[ping]” is

slang for shooting and “fade” means to kill or to shoot someone.
      3 At trial, the State’s gang expert explained that the phrase “135 s**t”

referred to the “false claiming” situation involving Alexander.

                                       4
murder; they both later pled guilty and testified at the appellants’

trial.4 According to Wilson, the decision to kill Linkhorn had been

discussed throughout the week leading up to the murder, and it was

affirmed in a conference call between Nichols, Narcisse, Wilson, and

Johnson on the night of March 7. The next morning, Wilson,

Johnson, and Estes met up with Nicholson and Narcisse, and the

five of them then went looking for Linkhorn. They first looked for

Linkhorn at school, then at his home, and then waited in his

neighborhood. When they did not find Linkhorn, they went to an

apartment complex near the Kensington MARTA station. A police

officer later told them to leave the area. They then went to a nearby

library to continue waiting for Linkhorn. Throughout the day,

Johnson communicated with Linkhorn by phone, telling him to meet

with the group at the Kensington MARTA station. The group then

returned to the MARTA station; Johnson and Wilson waited for




     4 Wilson and Estes gave their proffers orally, and each of their
statements was then summarized in writing. They signed their own written
summary acknowledging that it was accurate and voluntarily given, and the
summaries were introduced into evidence at the appellants’ trial.
                                   5
Linkhorn while Nicholson, Narcisse, and Estes went ahead to the

Southern Pines apartment complex across the street. After

Linkhorn arrived at the station, Narcisse instructed Johnson and

Wilson by text message to bring Linkhorn to an abandoned

apartment at the complex where Nicholson, Narcisse, and Estes

were waiting. When everyone was inside the apartment, Wilson,

Johnson, and Estes were told to fight Linkhorn; they began beating

and kicking him as Narcisse stood by with a gun and Nicholson stood

beside Narcisse. Narcisse then asked, “Who wants to do it?” before

giving the gun to Johnson, who forced Linkhorn onto his knees and

then shot him. Wilson and Estes were told to run, and they ran out

of the apartment. As they left, Wilson heard another shot. Johnson

then came out of the apartment and left the complex with Wilson

and Estes.

     According to Estes, on the morning of the murder, he, Johnson,

and Wilson met up with two “Big Homies,” and the five of them

searched for Linkhorn, first at Linkhorn’s house, then in his

neighborhood, and then at an apartment complex near the

                                6
Kensington MARTA station where they were stopped and

questioned by a police officer. Throughout the day, Johnson

communicated with Linkhorn by phone and by text message, trying

to coax him into meeting with the group. Before Linkhorn arrived at

the Kensington MARTA station, the two “Big Homies” began

walking ahead to an apartment complex in the area, and Wilson told

Estes to follow them. Estes tried, but he could not catch up with the

“Big Homies,” so he waited at the front of the apartment complex

until Johnson, Wilson, and Linkhorn arrived. The four of them met

up with the “Big Homies” outside the abandoned apartment, and

they all went inside. One of the “Big Homies” guarded the door while

the other stood by with a gun. The armed “Big Homie” questioned

Linkhorn and said “green light” before Johnson, Wilson, and Estes

began punching and kicking Linkhorn. The “Big Homie” guarding

the door then pushed Linkhorn into the middle of the apartment.

The armed “Big Homie” then made Linkhorn get on his knees, asked

“Who wants to get him?,” gave the gun to Johnson, and told Wilson

and Estes to leave once Johnson had shot Linkhorn. Johnson then

                                 7
shot Linkhorn, and Wilson and Estes ran out of the apartment.

Wilson and Estes then returned to the MARTA station and waited

for Johnson. In separate photo lineups, Estes identified each of the

two “Big Homies” who were involved in Linkhorn’s murder; those

lineups were admitted into evidence at trial, and as discussed in

Division 2 below, the jury could determine that the “Big Homie” who

guarded the door was Nicholson and the armed “Big Homie” was

Narcisse.

     Cell phone records confirmed that Johnson coaxed Linkhorn

into meeting with the group at the Kensington MARTA station by

telling Linkhorn that Nichols had given Johnson the money that

Linkhorn needed to bail a friend out of jail. The records also

confirmed that Narcisse instructed Johnson by text message to bring

Linkhorn to the abandoned apartment. Surveillance video from the

Kensington MARTA station showed Linkhorn leaving with Johnson

and Wilson around 3:57 p.m., and Johnson and Wilson returning

with Estes about half an hour later; when they returned, Wilson was

wearing Linkhorn’s hat.

                                 8
     The day after the murder, Wilson sent a text message to

Nichols saying, “Can’t you tell that I’m serious now?” Nichols replied

that he would take care of Wilson and guide him through the process

of becoming a full-fledged member of the 92 Inglewood Family.

Several days later, Wilson sent a text message to Johnson telling

him that their status within the gang had increased. The same

week, Johnson asked Nichols several questions by text about the

meaning of certain Bloods terminology and the gang’s rank

structure. Nichols answered Johnson’s questions and told him that

he would become a full member of the 92 Inglewood Family in April.

     When Linkhorn’s family realized that he was missing, a search

party was formed to look for him. At some point, Johnson joined the

search party, and Nicholson sent a text message to Wilson asking if

he was participating. About a week after the murder, Johnson

responded to a social media post by Linkhorn’s sister that asked for

information about Linkhorn. Based on information that Johnson

gave her, Linkhorn’s sister drove to the Southern Pines complex to

look for Linkhorn. Although she did not find his body, she relayed

                                  9
the information to the police. The police then spoke with Johnson,

and he led them to Southern Pines, where they found Linkhorn’s

body. They also found two cartridge casings on the floor and

recovered a red bandana from Linkhorn’s body. The police then

searched Johnson’s home, where they found a red jacket, a red

bandana, and a plastic bag filled with cocaine. The police also

searched Wilson’s home, where they found a red bandana, a red

checkered shirt, and a dresser with carvings and graffiti symbolic of

the Bloods gang.

     The week before the appellants’ trial, Estes reviewed his

proffer and the identifications that he had made from the photo

lineups, and he confirmed that they were accurate. The day before

trial, Estes was assaulted in jail. He then testified at trial that most

of the information in his proffer was true, but that Johnson and

Wilson were the two “Big Homies” to whom he had referred

(although they did not qualify as “Big Homies” in the gang

hierarchy). Estes claimed that he had identified the individuals in

the photo lineups only because he was trying to get a reduced

                                  10
sentence.

     Wilson also was assaulted in jail prior to trial, but he affirmed

the truth of his proffer at trial. He testified that Nicholson, Nichols,

and Narcisse were all “Big Homies” in the 92 Inglewood Family at

the time of Linkhorn’s murder. Wilson identified Nicholson in court

as a “Big Homie” who assisted in the hunt for Linkhorn and was in

the abandoned apartment during Linkhorn’s beating and murder,

and Nichols in court as the “Big Homie” who ordered Linkhorn’s

killing.

     The medical examiner who performed Linkhorn’s autopsy

determined that Linkhorn’s cause of death was a gunshot wound to

his head, in between his eyebrows. There was another gunshot

wound to the left side of Linkhorn’s jaw; the bullet lodged in his

spinal cord. This gunshot also could have killed Linkhorn, and at the

least it would have rendered him quadriplegic. A ballistics expert

determined that the two bullets removed from Linkhorn’s body were

fired from the same gun.

     The State’s gang expert testified that lower ranking gang

                                  11
members could not discipline other members without authority from

higher ranking members. He also testified that the appellants,

Narcisse, Johnson, Wilson, and Estes regularly communicated using

terminology associated with the Bloods, that the color red is

associated with the Bloods, and that Bloods members often carry red

bandanas and wear red clothing to signify to others that they are

members of the gang.

     Nicholson and Nichols did not testify. Their theory of defense

was that no physical evidence linked them to the murder and that

Wilson and Estes had lied in their proffers to get reduced sentences.

     2. Nicholson contends that the evidence was legally insufficient

to support his convictions because the only evidence directly

incriminating him was the uncorroborated testimony of an

accomplice, Wilson. Nicholson is correct in asserting that Wilson

was an accomplice in the crimes, and in order to sustain a conviction

under Georgia law, testimony by an accomplice to a crime must be

corroborated by other evidence implicating the defendant. See

OCGA § 24-14-8; Mangram v. State, 

 (

)

                                 12
(2018). However, “the testimony of one accomplice can be

corroborated by the testimony of another accomplice,” Yarn v. State,

 (

) (2019), and Wilson’s testimony was

adequately corroborated by Estes’s proffer, including Estes’s

description of Nicholson’s involvement in the hunt for Linkhorn

before the murder, Estes’s statement that Nicholson was in the

apartment standing by Narcisse (and guarding the door) during the

murder, and Nicholson’s text communication with Wilson after the

murder. See OCGA § 16-2-20 (defining parties to a crime); Broxton

v. State, 

 (

) (2019) (“Mere presence at

the scene of the crime is not sufficient evidence to convict a

defendant of being a party thereto; however, the jury may infer a

common     criminal   intent   from   the   defendant’s   presence,

companionship, and conduct with the other perpetrators before,

during and after the offense.”); Mangram, 

(“Corroborating evidence may be slight, and may be entirely

circumstantial. . . . Once the State has introduced independent

evidence implicating the defendant, it is for the jury to decide

                                13
whether     the    accomplice’s     testimony     has    been    sufficiently

corroborated.”).

      It is true that Estes never identified by name the “Big Homie”

who guarded the apartment door as Linkhorn was attacked; the

photo lineup used for the identification was admitted into evidence,

but does not identify Nicholson’s photo by name; and the police

officer who compiled the lineup did not testify that the photo is of

Nicholson. Nevertheless, Nicholson was in the courtroom, and the

jury was shown the lineup photo as well as a photo taken of

Nicholson after his 2009 arrest, so the jurors could determine that

the lineup photo depicted Nicholson.5 After being assaulted in jail

just before trial, Estes testified that Nicholson was not one of the

“Big Homies” to whom he had referred in his proffer, but the jury

was authorized to believe and rely on Estes’s prior statements and



      5 The jury could similarly determine that the unnamed armed “Big
Homie” whom Estes identified in the other photo lineup was Narcisse, who was
not in the courtroom but was identified to the jury in a video and photos that
were admitted into evidence. We do not understand why the State failed to
present more clear-cut evidence that the lineup photos were of Nicholson and
Narcisse. But we also note that Nicholson does not argue that the lineup photos
were not actually of him and Narcisse.
                                      14
photo lineup identification rather than his trial testimony on this

point. See Robbins v. State, 

 (

) (2016)

(“‘[A] prior inconsistent statement of a witness who takes the stand

and is subject to cross-examination is admissible as substantive

evidence . . . .’” (citation omitted)). See also McKenzie v. State, 

 (

) (1999) (holding, under the old Evidence

Code, that prior statements of accomplices can provide the mutual

corroboration necessary to support a conviction).

     We also have reviewed the record and conclude as a matter of

constitutional due process that, when viewed in the light most

favorable to the verdicts, the evidence presented at trial and

summarized above was sufficient to authorize a rational jury to find

Nicholson guilty beyond a reasonable doubt of all of the crimes of

which he was convicted. See Jackson v. Virginia, 

(

, 61 LE2d 560) (1979); Broxton, 

. See

also Vega v. State, 

 (

) (2009) (“‘It was for

the jury to determine the credibility of the witnesses and to resolve

any conflicts or inconsistencies in the evidence.’” (citation omitted)).

                                  15
     3. For his part, Nichols contends that the evidence was legally

insufficient to support his convictions because the only evidence

connecting him to the crimes is an obscure text message sent by

“Smurf” to Wilson saying “. . . y[’]all fallback on [th]at 135 s**t, we

gotta take care of [Linkhorn] first[.]” We disagree.

     The evidence showed that Nichols was the highest ranking

gang member involved in the dealings with Linkhorn, with the

power to direct lower ranking gang members. There also was ample

evidence that Nichols uses the nickname “Smurf.” Wilson testified

at trial that Nichols’s nickname is “Smurf,” and Nichols identified

himself as “Smurf” in text messages from a cell phone number linked

to him and in private messages from a Facebook account linked to

him. See Mathis v. State, 

 (

)

(2012) (holding that there was sufficient evidence to sustain the

defendant’s convictions where, among other things, testimony

established that he used a nickname that had been linked to the

crimes). And in addition to the text message on which Nichols

focuses, on the evening before the murder there were other text

                                  16
messages sent by “Smurf” to Wilson that related to shooting and

killing Linkhorn, including “Tell [Linkhorn] to come thr[ough] so I

[c]an pop him,” and “I want dar[k] fade wit[h] [Linkhorn] bl[oo]d[.]”

Wilson also testified that the decision to kill Linkhorn was discussed

throughout the week leading up to the murder and was affirmed on

a conference call in which Nichols participated on the night before

the murder, shortly after sending the text messages. Moreover, after

the murder, Wilson bragged to Nichols that he had shown he was

serious, and Nichols replied by telling Wilson that he would take

care of Wilson and guide Wilson through the process of becoming a

full-fledged member of Nichols’s gang set. The gang expert’s

testimony provided explanations to the jury about the gang

structure and what the text messages meant, which was supported

by the evidence from Wilson about Nichols’s orders. See McGruder

v. State, 

 (

) (2018).

     A defendant need not pull the trigger, or even be present for a

shooting, to be found guilty as a party to murder and related crimes.

See OCGA § 16-2-20; Broxton, 

; Herrington v. State,

                                 17


 (

) (2016); Rai v. State, 

 (

) (2015). When viewed properly in the light

most favorable to the verdicts, the evidence presented at trial and

summarized above was sufficient for the jury to conclude that

Nichols intentionally advised, encouraged, counseled, and procured

the lower ranking gang members to commit the crimes against

Linkhorn. See OCGA § 16-2-20 (b) (4). See also Cisneros v. State, 

 (

) (2016) (“‘All of the participants in

a plan to [commit a crime] are criminally responsible for the acts of

each, committed in the execution of the plan, and which may be said

to be a probable consequence of the unlawful design, even though

the particular act may not have actually been a part of the plan.’”

(citation omitted)). The evidence against Nichols was far from

overwhelming, but it was legally sufficient to support his convictions

as a party to the murder and as a party to or principal in the other

crimes of which he was convicted. See Jackson, 

.

     4. Nicholson and Nichols each contend that the trial court

abused its discretion by denying their motions to sever their cases

                                 18
for trial. We disagree.

     In a murder case where the death penalty is not sought,
     the trial court has broad discretion to grant or deny a
     motion for severance. In exercising that discretion, the
     trial court must consider the following factors: (1) Will the
     number of defendants create confusion as to the law and
     evidence applicable to each? (2) Is there a danger that
     evidence admissible against one defendant will be
     considered against the other despite the court’s
     instructions? (3) Are the defenses of the defendants
     antagonistic to each other or to each other’s rights?

Butler v. State, 

 (

) (2012) (citations

and punctuation omitted).

     In this trial, there were only two defendants, who were facing

almost the same charges; the law and the evidence were

substantially the same for both of them. See Butler, 

.

The trial court instructed the jury to separately consider Nicholson’s

and Nichols’s guilt, see 

 and the jury returned separate verdicts

for each defendant, see Lupoe v. State, 

 (

) (2016). Neither Nicholson nor Nichols points to any evidence

admitted at their joint trial that would not have been admitted had

his severance motion been granted, because the State’s evidence was


                                  19
that they acted in concert with each other and other gang members

to commit the crimes. See id.; Butler, 

. Although

each appellant argues that the joint trial harmed him because the

evidence against him was weaker than the evidence against the

other, “‘it is not enough for the defendant to show that he would have

a better chance of acquittal at a separate trial or that the evidence

against a co-defendant is stronger.’” Butler, 

 (citation

omitted).   Finally,   Nicholson   and   Nichols   did   not   present

antagonistic defenses. Instead, they each argued that the State had

not introduced sufficient evidence that he was involved in the

murder, without trying to implicate one another. See 

 For these

reasons, the trial court did not abuse its discretion by denying the

motions to sever.

     5. Nicholson contends that the trial court abused its discretion

by admitting cell phone records that included a number of text

messages that the State claimed he had sent. The State used a

search warrant to obtain the records from AT&T, which also

provided a verification of authenticity. Nicholson argues that the

                                   20
State did not sufficiently authenticate that the text messages were

sent by him. We disagree.

     “Under OCGA § 24-9-901 (a), authentication of evidence may

be achieved through any of a variety of means affording ‘evidence

sufficient to support a finding that the matter in question is what its

proponent claims.’” Brewner v. State, 

 (

)

(2017) (quoting that statute). “Documents from electronic sources . .

. are subject to the same rules of authentication as other more

traditional documentary evidence and may be authenticated

through circumstantial evidence,” Hawkins v. State, 

 (

) (2018) (citation and punctuation omitted), which

may include the “[a]ppearance, contents, substance, internal

patterns, or other distinctive characteristics [of the documents],

taken in conjunction with circumstances.” OCGA § 24-9-901 (b) (4).

See also Pierce v. State, 

 (

) (2017).

Once the party seeking to authenticate evidence presents a prima

facie case that the evidence is what it purports to be, the evidence is

properly admitted, leaving the ultimate question of authenticity to

                                  21
be decided by the jury. See McCammon v. State, 

(

) (2019); Johnson v. State, 

(

) (2019).

     The gang expert testified that he had reviewed the cell phone

records; that the subscriber address on the account matched an

address listed for Nicholson on documents related to his 2009 arrest

and on his driver’s license; that text messages from the cell phone

number used Bloods slang and terminology, which likely would not

be used or understood by someone who was not associated with the

gang; and that the number communicated with the phone numbers

of Nichols, Narcisse, Wilson, and Johnson. These communications

included a text message from the number to Wilson’s phone two days

after Linkhorn was killed asking whether Wilson was searching for

Linkhorn. This was sufficient evidence to allow a reasonable jury to

find that Nicholson sent the text messages in question, so the trial

court did not abuse its discretion by admitting the challenged cell

phone records. See Johnson, 

; United States



                                22
v. Mebrtatu, 

 (3d Cir. 2013).6

     6. Nichols contends that the trial court abused its discretion by

admitting Facebook records that included several private messages

that the State claimed he had sent. The State used a search warrant

to obtain the records from Facebook, which also provided a

certification of authenticity. Nichols argues that the State did not

sufficiently authenticate that the messages were sent by him. Again

we disagree.

     The prima facie showing required to admit printouts from a

Facebook account may be established by circumstantial evidence of

distinctive characteristics of the account that identify its owner. See

Hawkins, 

 n.5; Cotton v. State, 

(

) (2015). At trial, the gang expert testified that he had

reviewed the Facebook records; that the account contained Nichols’s

biographical information including his name, nicknames associated


     6 OCGA § 24-9-901 departs from the former Evidence Code and is nearly

identical to Federal Rule of Evidence 901. Thus, we look to the federal
appellate courts for guidance in interpreting OCGA § 24-9-901. See Davis v.
State, 

 (

) (2016); Johnson, 

n.20.
                                    23
with him, and his birth date; that Wilson’s name was listed in the

friend’s list of the account, and the owner of the account sent a

message to Wilson’s account wishing Wilson a happy birthday; that

the IP address linked to the account was located in Decatur, where

Nichols lived; and that in private messages sent from the account,

the sender identified himself as “Smurf” and provided a phone

number that belonged to Nichols.

     This was sufficient evidence to allow a reasonable jury to find

that Nichols owned the Facebook account and sent the private

messages. See Cotton, 

 (holding that a Facebook

account was properly authenticated by a witness who knew the

defendant’s nickname that was associated with the account and

recognized that the defendant’s friends and family were listed in the

friend’s list of the account); Burgess v. State, 

(

) (2013) (holding that a MySpace account was properly

authenticated by an investigator who testified that the defendant’s

nickname was associated with the account and identified the



                                 24
defendant’s biographical information on the account);7 Glispie v.

State, 

 (

) (2015) (holding that

text messages were properly authenticated by an investigator who,

among other things, testified that the sender referred to himself by

name in the messages), reversed in part on other grounds, 

 (

) (2016). The trial court did not abuse its

discretion by admitting the Facebook records.

      Judgment affirmed. All the Justices concur.




7 “Although Burgess was based on the old Evidence Code, there is nothing

in the new Evidence Code that forbids the use of circumstantial evidence
to authenticate these types of electronic communications. See OCGA §
24-9-901; Paul S. Milich, Ga. Rules of Evidence, § 7:6 (2014).” Cotton, 

 n.6.
                                       25
                    DECIDED DECEMBER 23, 2019.
      Murder. DeKalb Superior Court. Before Judge Adams.
      Michael W. Tarleton, for appellant (case no. S19A0992).
      Genevieve Holmes, for appellant (case no. S19A1006).
      Sherry Boston, District Attorney, Emily K. Richardson, Lenny
I. Krick, Assistant District Attorneys; Christopher M. Carr, Attorney
General, Patricia B. Attaway Burton, Deputy Attorney General,
Paula K. Smith, Senior Assistant Attorney General, Meghan H. Hill,
Assistant Attorney General, for appellee.




                                 26