McGil v. State

The Court vacated the denial of defendant's motion for new trial, because there simply was no evidence that the trial court exercised discretion, weighed the evidence, and determined as the 'thirteenth juror' whether the verdict was against the great weight of the evidence or offended the principles of justice and equity.

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After a jury trial, Johntavious McGil was convicted of aggravated assault,1 armed robbery,2 theft by taking,3 and possession of a weapon during the commission of a crime.4 McGil filed a motion for new trial later amended, which the trial court denied. McGil appeals, arguing that 1 there was insufficient evidence to support the verdict; 2 the trial court erred by permitting the State to introduce bad character evidence; 3 the verdict was against the great weight of evidence; and 4 he received ineffective assistance by counsel’s failure a to present an alibi witness and b to call McGil to testify in his own defense. Although the evidence was sufficient, McGil failed to establish ineffective assistance of counsel, and no bad character evidence was admitted, the trial court failed to exercise its discretion and weigh the evidence under the general grounds. Accordingly, we vacate the denial of McGil’s motion for new trial and remand the case for further proceedings that are consistent with this opinion.

Viewed in the light most favorable to the verdict,5 the evidence shows that on July 1, 2014, the victim was parked at a convenience store and was approached by McGil the victim’s former co-worker whom he knew as Tay. McGil came to the window of the victim’s car, said hello, and told the victim he would give him his phone number, but as the victim took out his phone to take down the number, McGil said give me your phone. The victim thought at first McGil was joking since they knew each other, but when he looked up, McGil was pointing a .38 caliber revolver at him. The victim gave McGil the phone, and at McGil’s insistence, provided the password; McGil told the victim not to follow him, and he fled in a silver sedan driven by another individual.

McGil v. State

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