In the Supreme Court of Georgia

Decided: April 5, 2021

S21A0314

. RICE v. THE STATE

.
M C M ILLIAN , Justice. Appellant Malik Deshawn Rice appeals his convictions for felony murder and other related crimes in connection with the shooting death of Clarence Gardenhire. 1 Rice argues on appeal that

1 Gardenhire was killed on August 19, 2013. On November 21, 2013, a DeKalb County grand jury indicted Rice and his co

- defendant Contevious Stepp

- McCommons for malice murder, felony murder predicated on aggravated assault , two counts of aggravated assault, possession of a firearm during the commission of a felony, and criminal attempt to commit armed robbery. At a joint trial from February 1 0 to 13, 2015, a jury acquitted Rice and Stepp

- McCommons of malice murder but returned verdicts of guilty on all other charges. On February 23, 2015, the trial court sentenced Rice to serve life in prison without the possibility of parole for felony murder, five years for possession of a firearm during the commission of a felony, thirty years for criminal attempt to commit armed robbery, and twenty years for the aggravated assault of Jamal Perry, all to be served consecutively . The remaining count of aggravat ed assault against Gardenhire merged into the felony murder count for sentencing purposes. This Court affirmed Rice’s co

defendant’s convictions in Stepp

- McCommons v. State , 309 Ga. 400 (845 SE2d 643) (2020). Rice filed a motion for new trial on February 2 7, 2015, and the motion was amended on September 26, 2016 , and Janua ry 31 , 20 20

. After hearing s on2 the trial court committed plain error in failing to charge the jury on accomplice corroboration and that his conviction for aggravated assault should have merged into his conviction for criminal attempt to commit armed robbery. Discerning no plain error, we affirm Rice’s convictions, but we vacate his conviction and sentence for aggravated assault because we agree that it should have merged with his conviction for criminal attempt to commit armed robbery under the facts of this case. With regard to Rice, t he evidence at trial showed the following

. 2 Rice placed an ad on Craig slist to sell a cell phone and told his girlfriend , Ashante Barker , that he planned to meet the person who responded to his ad at an abandoned house and rob the would

- be purchaser with the help of another person

. While one person would pretend to sell the cell phone, the other would hide in the woods,

November 8, 2017, and January 11, 2018, the trial court denied the amended motion for new trial on August 4 , 2019. Rice timely filed a notice of appeal

. T he case was docketed in this Court to the term beginning in December 2020 and was orally argued on February 3, 2021

. 2 Additional facts underlying this case are set out in Stepp

- McCommons , 309 Ga. at 400

- 02 (1)

.3 emerging later to commit the robbery. Barker testified that o n the day of the shooting, Rice texted h er to complain that the people with whom he was communicating all wanted to meet in a public place , but that he was still trying to “set [people] up off Craigslist” and was waiting for someone to send him the address of the abandoned house. On the night of the shooting, Rice went to a party near the arranged meeting location , and one of the guests, Dexter Mar t in, testified that Rice asked him if he wanted “to do a jugg

. ” Martin declined

. Rice’s co - defendant, Contevious Stepp

- McCommons , who was also at the party, testified that Rice asked him to help with a meeting that night

. Stepp

- McCommons agreed to go with R ice in exchange for $1,000 S tepp

- McCommons testified that his cousin gave Rice a gun to carry with him to the meeting , and Rice gave the gun to Stepp

- McCommons. Martin later observed Stepp

McCommons and Rice leave the party. 3

3 Martin did not specify whether the two left the party together or separately.4 Stepp

- McCommons testified tha t Rice also used the term “jugg” when he described the proposed meeting, and both Stepp

McCommons and Martin said that they understood the term to mean a transaction to sell cell phones, not a robbery. However, Barker told the jury that when she used the t erm “jugg” in a text to Rice that day , she meant a robbery . And a detective with the DeKalb County Police Department testified based on his eight years of police experience in DeKalb County that “[a] jugg . . . 99.9% of the time means a robbery.” Jamar Perry testified that he responded to a Craigslist ad from someone selling a cell phone , and arranged to meet at a location chosen by th e seller to make the sale , which tur n ed out to be a “ very dark, ” abandoned house . Gardenhire accompanied Perry to t he meeting. Stepp

- McCommons testified that when he and Rice got to the house, Rice hid behind a tree near the house while Stepp

McCommons spoke with Perry and Gardenhire

. Perry testif ied that he saw and communicated with only one man

. Although Perry did

n ot identify this man at trial, his description of the clothes the man5 was wearing matched those Martin said Stepp

- McCommons was wearing that night. Perry said that d uring th eir exchange, the man pulled out a gun and told Perry and Gardenhire to “give it up , then.” Stepp

- McCommons stated at trial that he pulled out a gun at the meeting and shot Gardenhire multiple times after Gard e nhire made a sudden movement. Gardenhire died of the resulting guns h ot wounds. The two co

- defendants then fled th rough the surrounding neighborhood , and the homeowner of a house near the crime scene found a black cell phone in her backyard a short time later. Law enforcement officers subsequently determined that the phone number of that device belonged to Rice. Martin testifie d that he saw Stepp

- McCommons and Rice return to the house where the party was being held about 15 to 30 minutes after they left. He said that Rice looked “ terrified ” and told him that “the deal went wrong; [Stepp

- McCommons] killed the old man.” Barker w as later arrested for making false statements in connection with the investigation into Gardenhire’s death , and on6 the day after her arrest, someone identifying himself as Rice called the l ead detective in the case to ask whether Barker could be granted im munity if Rice turned himself in to the police. A fter being informed that the detective lacked authority to make such a deal, the caller stated, “you won’t be able to find me [;] I’ll be like

. . . a fly in the wind.” However, the identity of this caller could not be verified. When Rice was arrested in North Carolina several weeks later , a law enforcement officer asked Rice if he was going to try to clear his name. Rice responded in the negative, sta ting he would “ do time for this because he was the one [ who ] planned it. ” 4
1 . Rice asserts that because Ba r ker and Stepp

- McCommons

w ere accomplice s and Barke r ’s testimony was the only evidence supporting that he planned to commit rob b e ry , t he trial court plainly erred by failing to charge the jur y that the testimony of an

4 Rice does not contest the sufficiency of the evidence to support his convictions, and we no longer conduct a sua sponte sufficiency review in non

death penalty cases such as this one, which was docketed to the term of th is C ourt beginning in December 2020. See Davenport v. State , 309 Ga. 385, 399 (4) (b) (846 SE2d 83) (2020)

.7 accomplice requires corroboration

. See Walter v. State , 304 Ga. 760, 766 (3) (b) ( 822 SE2d 266 ) (2018) (“It is error to fail to give a jury instruction on accomplice liability where there is slight evidence supporting a finding that a witness was an accomplice.” ). I nstead , the trial court instructed the jurors that the testimony of a single witness, if believed, was sufficient to establish a fact and that “[g]enerally, there is no legal requirement of corroboration of a witness provided you find the evidence to be sufficient.” As Rice notes, the State conceded at the hearing on the motion for new t rial that the failure to give the accomplice charge was clear

error, although the prosecutor a sserted that no harm resulted from it . The trial court agreed that any error in omitting the accomplice charge likely did not affect the verdict and thus found no plain error

. In addition, the trial court found sua sponte that Rice had implicitly , but not affirmatively, waived his claim of plain error, and Ric e also challenges that finding on appeal. Because Rice n ei t her requested an accomplice charge nor objecte d on this ground to the single

- witness charge as given, we can8 only review th e omission of an accomplice charge for plain error. See Anderson v. State , 309 Ga. 618, 623 (3) (847 SE2d 572) (2020)

. To show plain error, the appellant must demonstrate that th e instructional error was not affirmatively waived, was obvious beyond reasonable dispute, likely affected the outcome of the proceedings, and seriously affected the fairness, integrity, or public reputation of judicial proceedings. Satisfying all four pro ngs of this standard is difficult, as it should be.

Hill v. State , 310 Ga. 180, 194 (11) (a) (850 SE2d 110) (2020). Pretermitting whether the trial court correctly determined that Rice properly waived this argument 5 and whether the evidence supported that Barker was an accomplice , we conclude that Rice cannot establish plain error arising from the trial court’s failure to give the accomplice charge in this case

. T he trial court clearly erred in failing to give the ch arge in light of the fact that Rice’s co

defendant, Stepp

- McCommons, testified at trial

. See Doyle , 307 Ga.
at 613 (2) (b); State v. Johnson, 305 Ga. 237, 240 ( 824 SE2d 317 ) (2019) ; Stanbury v. State , 299 Ga. 125, 131 (2) ( 786 SE2d 672 )

5 We note that neither the District Attorney nor the Attorney General defend the trial court’s sua sponte waiver ruling.9 (2016)

. However, d e spite this clear and obvious error, the record demonstrates that the error likely did not affect the outcome of Rice’s trial , as required under the third prong of the plain

- error test. The evidence t hat Rice participated in the crimes was substantial completely apart from Stepp

- McCommons’s and Barker’s testimony. This evidence included that Perry made plans to purchase a cell phone from someone o n Craigslist, and the seller arranged a meeting at what turned out to be a dark, abandoned house. Shortly b efore the meeting that night, Rice asked Martin to accompany him and to do “a jugg , ” a term a police detective testified meant a robbery. Martin declined but later saw Rice and Stepp

McCommons leave the party. Rice ’s defense at trial was that he stayed acr oss the street during the meeting , 6 and Perry testified that he saw and spoke only to someone matching Stepp

- McCommons ’s description , raising an inference that Rice conceal ed himself from the victims

. After Stepp

- McCommons confronted Perry and

6 Although closing argume nts were not transcribed, Rice’s trial counsel testified about their defense strategy at the motion for new trial hearing.10 Gardenhire with a gun , which led to the shooting , Stepp

McCommons and Rice went back to the party , and Rice’s cell phone was found shortly after the shooting in the backyard of a house near the crime scene. Martin saw Stepp

- McCommons and Rice return to the party , not long after t he y left, and heard Rice say that the deal went wrong when Stepp

- McCommons killed “the old man

. ” Rice subsequently left the state

. Also, t he jury could infer that Rice was the person who called the lead detective to offer to surrender himself in exchange for immunity for Barker , and w hen Rice was later arrested, he admitted that he expected to serve t im e because he had planned the crime

. On top of all that, even assuming that Barker was an accomplice, t he testimony of one accomplice can corroborate that of another accomplice , s ee Hurston v. State , __ Ga. __, __ (3) (c), 2021 Ga. LEXIS 26, **22

- 23 (Case No. S20A1223, decided Feb. 15, 2021) , so the jury could have found the testimony mutually corroborating. Because t his evidence constitute s “substantial and consistent evidence” showing Rice’s participation in the crime s , we conclude11 that the trial court’s failure to give the accomplice charge likely did not affect the outcome of his trial

. See Hawkins v. State , 304 Ga. 299,
303 (3) ( 818 SE2 d 513 ) (2018) ( e ven where trial court gave the single

witness charge, the failure to give the accomplice charge did not likely affect the outcome of the defendant’s trial where there was substantial and consistent evidence outside of the accomplice’s testimony, including the defendant’s admission that he shot

someone and other evidence connecting the defendant to shooting) ; Hamm v. State , 294 Ga. 791 , 797

- 98 (2) ( 756 SE2d 507 ) (2014) ( trial court’s refusal to give requested accomplice charge was harmle ss error where defendant admitted that he killed someone and other independent evidence connected him to the shooting). Cf. Doyle , 307 Ga. at 613

- 14 (2) (b) ( trial court committed plain error in failing to give accomplice charge where accomplice was the on ly witness to identify defendant as a participant of the shooting , and there were no cell phone records or other testimony placing defendant in the vicinity of the crime); Stanbury , 299 Ga. at 131 (2) (failure to give accomplice charge likely affected the outcome of the trial where12 accomplice’s testimony was the only evidence affirmatively identifying defendant as the second man involved in the crime). T hus, Rice has failed to show plain error

. 2

. T he indictment charged Rice, individually and as a par t y to a crime, with the offense of criminal attempt to commit armed robbery under OCGA § 16

- 4

- 1 against Perry and Gardenhire

. It also charged the co

- defendants, individually and as parties to a crime, with the offense of aggravated assault against Perry in violation of OCGA § 16

- 5

- 21

. Rice contends that his conviction for aggravated assault should have merged into his conviction for attempted armed robbery , and t he State conceded at the motion for new trial hearing that merge r was appropriate

. 7 B ecause w e agree that the con victions should have merged for sentencing , we vacate Rice’s conviction and sentence for aggravated assault. See Reeves v. State , 309 Ga. 645, 649 (4) ( 847 SE2d 551 )

7 In denying the motion for new trial, the trial court ruled that the merger issue was moot because it had been corrected by a nunc p ro tunc order issued on February 23, 2015. However, that ruling was error because the February 23, 2015 nunc pro tunc order did not merge the two offenses , maintained both convictions, and ran the sentences consecutively.13 (2020) ; Thomas v. State , 298 Ga. 106, 112 (3) ( 779 SE2d 616 ) (2015). Judgment a ffirmed in part and vacated in part

. All the Justices concur.