Prior Drug Offenses Qualify as “Criminal Gang Activity” Admissible Under OCGA § 24-4-418 Without a Gang-Nexus Showing

1. Introduction

In UPSHAW v. THE STATE (consolidated with GLANTON v. THE STATE and a second UPSHAW v. THE STATE), the Supreme Court of Georgia affirmed the convictions and sentences of Terrence Upshaw, Roderick Glanton, and Homer Upshaw arising from a June 14, 2021 shooting near the Wilson Apartments in Columbus, Georgia. The shooting injured Wandray Harris and Ta'Journey Lee and killed Jesse Ransom and Saiveon Pugh.

After a joint jury trial, each defendant was convicted of two counts of malice murder, two counts of aggravated assault, multiple violations of the Georgia Street Gang Terrorism and Prevention Act (the “Gang Act”), and other related offenses. On appeal, the core issues included (i) whether prior drug and firearm encounters were properly admitted as “criminal gang activity” under OCGA § 24-4-418 (“Rule 418”), (ii) whether evidence was sufficient to support malice murder and Gang Act convictions for Glanton and Homer, (iii) whether Glanton was entitled to a new trial on the “general grounds,” and (iv) whether certain evidentiary rulings (exclusion of victims’ messages; admission of a Scarface meme) warranted reversal.

2. Summary of the Opinion

The Court (Pinson, J.) affirmed across the board. It held:

• Sufficiency: Evidence supported malice murder convictions and permitted the jury to reject justification; evidence supported Gang Act violations including the “nexus” that the crimes furthered gang interests.
• General grounds: The trial court exercised discretion as required by OCGA §§ 5-5-20 and 5-5-21, so no appellate relief was available.
• Rule 418: Prior drug offenses (and related encounters) were admissible as “criminal gang activity”; importantly, Rule 418 does not require the prior acts to be connected to gang association or to furthering gang interests.
• Other evidence: Exclusion of certain victims’ social media messages was harmless; the Confrontation Clause claim was reviewed for plain error and failed; admission of the Scarface “meme” was harmless even if erroneous.

3. Analysis

3.1 Precedents Cited

A. Appellate sufficiency framework

• Mills v. State (quoting Jackson v. Virginia): The Court applied the familiar due-process test—whether any rational juror could find each element beyond a reasonable doubt when viewing evidence in the verdict’s favor. This governed review of malice murder and Gang Act sufficiency.
• Chambliss v. State: Reinforced the appellate posture of deference to the jury on credibility and conflicts, limiting appellate reweighing.

B. Malice murder intent and justification

• Scoggins v. State: Used to restate that malice murder requires “malice,” incorporating intent to kill. The Court relied on the defendants’ conduct—waiting and firing numerous rounds into an occupied car—to support intent.
• Allen v. State: Supported the proposition that the jury may reject evidence supporting justification and accept contrary evidence. This anchored the Court’s conclusion that even if a threat inference was possible (masked occupants, guns), the jury could still find deadly force unjustified.

C. Gang Act elements and the “nexus” requirement

• Boyd v. State (citing McGruder v. State): Supplied the four-part Gang Act proof structure—(1) criminal street gang existence, (2) defendant’s association, (3) commission of enumerated criminal gang activity, and (4) intent to further gang interests (“nexus”). The Court also relied on Boyd’s instruction that nexus intent may be inferred from conduct before, during, and after the crime.
• Stripling v. State: Provided direct support for territorial/infringement evidence as sufficient to prove the “nexus” element, especially where gang control of drug territory is at stake. The Court analogized the drive-through of a gang “stronghold” and the immediate violent response.

D. General grounds

• Whisnant v. State: Limited appellate review to whether the trial court actually exercised its discretion on the general grounds, which the trial court’s order expressly did.

E. Rule 418 and Rule 403

• Wilson v. State: Supplied the “liberal” relevance standard and clarified that evidence is not “unfairly” prejudicial merely because it is inculpatory; unfair prejudice is the risk the jury convicts on an improper basis.
• McKinney v. State: Central to the Rule 418 holding. The Court cited McKinney for two key points: (i) Rule 418 evidence remains subject to Rule 403 balancing, and (ii) there is no requirement that prior qualifying “criminal gang activity” be connected to gang association or to furthering gang interests in order to be admissible under Rule 418.

F. Harmless error and plain error

• Moss v. State (quoting Smith v. State): Provided the non-constitutional harmless-error test—whether it is highly probable the error did not contribute to the verdict.
• Burke v. State and Pugh v. State: Provided the plain-error framework for the newly raised Confrontation Clause argument, focusing on whether any error affected substantial rights/outcome.
• Williams v. State: Cited to reject (and note the absence of) a cumulative-error claim.

3.2 Legal Reasoning

A. Malice murder and rejection of justification

The Court’s sufficiency reasoning turned on a common inference-of-intent rationale: multiple shooters emerged, waited, and then fired more than 50 rounds into an occupied car, killing two and wounding two. That conduct supported an intent to kill under Scoggins v. State.

On justification, the Court acknowledged a potential inference favoring the defense (masked occupants, firearms visible; an expert claimed a rifle barrel appeared oriented outward), but emphasized countervailing evidence: the victims’ car did not fire (ballistics consistent with incoming shots; no matching casings), there was no direct hostile act beyond driving by, and the defendants’ own conduct (waiting outside with guns and then unleashing sustained gunfire) permitted a finding that deadly force was not “reasonably necessary” under OCGA § 16-3-21(a). Under Allen v. State, the jury was free to reject self-defense.

B. Gang Act proof—especially the “nexus”

Applying Boyd v. State, the Court walked through evidence supporting each Gang Act element:

• Existence of a criminal street gang: Expert testimony described “Marlo Gang” as evolving from prior gangs (Taliban 5150, Lime Green Money Gang), with shared signs and social-media identifiers; the gang’s territorial drug activity was supported by surveillance patterns consistent with drug sales.
• Association/membership: Social-media photos depicting “M” hand signs, guns, cash, and messages about selling guns/drugs supported membership.
• Predicate criminal gang activity: Drug trafficking and violent weapon offenses fit the statute’s broad definition of “criminal gang activity.”
• Nexus (intent to further gang interests): The Court relied on gang-expert testimony about territorial “strongholds” and the reputational need to respond to intrusions, plus the fact that the defendants’ drug operation appeared tied to the immediate area from which they emerged and fired. Under Stripling v. State, an “infringement” response to protect drug territory can satisfy the nexus element.

C. Rule 418—admissibility of prior drug offenses as “criminal gang activity”

The opinion’s most practice-significant evidentiary holding is its Rule 418 application: because “criminal gang activity” under OCGA § 16-15-3 includes controlled-substance offenses and other enumerated racketeering/weapon conduct, the defendants’ prior drug-related encounters qualified categorically. The Court emphasized (citing McKinney v. State) that when the State offers such acts under Rule 418, it need not prove the prior acts had a connection to “gang association or furthering the interest of a gang.”

Having cleared Rule 418’s scope, the Court applied Wilson v. State and Rule 403: the evidence was relevant to the gang-activity element and to the State’s theory of drug operations tied to the charged Gang Act counts, and the prejudice was not “unfair,” especially given the trial evidence of contemporaneous large-scale marijuana distribution.

D. Other evidentiary rulings—harmless/plain error

On the excluded victim messages (offered as statements against interest), the Court assumed arguendo error under Rule 804(b)(3) but held it harmless under Moss v. State. The messages concerned a plan to shoot a different person, with no evidence Homer knew of that plan and evidence that the target was not present. The Court reasoned the messages would not materially change the justification analysis focused on what Homer reasonably believed at the moment.

The Confrontation Clause claim was raised for the first time on appeal, triggering plain-error review under Burke v. State; for the same reasons as harmlessness, Homer failed to show the outcome would likely have been different under Pugh v. State.

As to the Scarface “meme,” the Court again assumed arguendo error but found harmlessness given the substantial evidence of guilt and gang/drug activity.

3.3 Impact

• Rule 418 litigation posture: This decision reinforces that Georgia trial courts may admit prior controlled-substance offenses and similar qualifying acts under Rule 418 without a preliminary showing that the prior act itself was gang-motivated. The real battleground becomes Rule 403—how inflammatory the act is, how cumulative it is, and how directly it relates to contested issues.
• Gang Act “nexus” proof: The opinion underscores that the nexus can be built through territorial-control and reputation evidence, coupled with location-based facts (crime occurring at or near a gang “stronghold,” evidence of drug operations in the same micro-area).
• Justification defenses in drive-by contexts: Even where victims are armed and masked, a defendant’s “wait, then unleash sustained gunfire” conduct can support a jury finding that deadly force was not reasonably necessary, especially absent evidence the victims fired or made overt threats.
• Appellate error preservation: The Confrontation Clause discussion illustrates the steep practical cost of raising constitutional theories for the first time on appeal (plain error plus outcome effect).

4. Complex Concepts Simplified

• Malice murder (OCGA § 16-5-1(a)): Intentional killing with “malice,” which includes the intent to kill. Intent is often proven circumstantially (e.g., firing many rounds into an occupied car).
• Justification / self-defense (OCGA § 16-3-21(a)): Deadly force is permitted only if the defendant reasonably believes it is necessary to prevent death or great bodily injury. Even if a threat seems possible, the jury decides whether the belief and the response were reasonable.
• Gang Act “nexus” element: It is not enough that a defendant is in a gang and commits a listed crime; the State must show the crime was intended to further the gang’s interests. That intent can be inferred from surrounding conduct and context (territory, retaliation, reputation maintenance).
• Rule 418 (OCGA § 24-4-418): In gang prosecutions, the State can introduce evidence that the defendant committed other “criminal gang activity” (as statutorily defined) if relevant. Under this opinion (tracking McKinney), the prior act does not have to be shown to be gang-motivated to be admissible under Rule 418.
• Rule 403 balancing: Even relevant evidence can be excluded if its probative value is substantially outweighed by unfair prejudice—meaning the risk the jury convicts for an improper reason, not merely because the evidence is damaging.
• Harmless error vs. plain error: Harmless error asks whether it is highly probable the error did not contribute to the verdict. Plain error (for unpreserved issues) requires, among other things, showing the error likely affected the outcome.

5. Conclusion

The Supreme Court of Georgia affirmed the defendants’ convictions and, in doing so, delivered a clear evidentiary message for Gang Act prosecutions: prior controlled-substance offenses can be admitted under OCGA § 24-4-418 as “criminal gang activity” without proving the prior act was gang-connected, subject to ordinary relevance and Rule 403 safeguards. The opinion also illustrates how territorial-control narratives can satisfy the Gang Act nexus, and how appellate courts will defer to juries on intent and justification where sustained, coordinated gunfire supports an inference of malice and disproportionality.