In the Supreme Court of Georgia

Decided: April 5, 2021

S21A0314. RICE v. THE STATE.

 MCMILLIAN, 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 10 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 aggravated assault against Gardenhire merged into the 

felony murder count for sentencing purposes. This Court affirmed Rice’s codefendant’s convictions in Stepp-McCommons v. State, 309 Ga. 400 (845 SE2d 

643) (2020).

Rice filed a motion for new trial on February 27, 2015, and the motion 

was amended on September 26, 2016, and January 31, 2020. After hearings on 
2

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, the evidence at trial showed the following.2

Rice placed an ad on Craigslist 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. The 

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 on the 

day of the shooting, Rice texted her 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 Martin,

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 Rice in 

exchange for $1,000 Stepp-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 SteppMcCommons and Rice leave the party.3

 3 Martin did not specify whether the two left the party together or 

separately.
4

Stepp-McCommons testified that Rice also used the term “jugg” 

when he described the proposed meeting, and both SteppMcCommons 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 term “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 the seller to make the sale, which turned out to be a “very 

dark,” abandoned house. Gardenhire accompanied Perry to the 

meeting. Stepp-McCommons testified that when he and Rice got to 

the house, Rice hid behind a tree near the house while SteppMcCommons spoke with Perry and Gardenhire. Perry testified that 

he saw and communicated with only one man. Although Perry did 

not identify this man at trial, his description of the clothes the man 
5

was wearing matched those Martin said Stepp-McCommons was 

wearing that night. Perry said that during their 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 Gardenhire made 

a sudden movement. Gardenhire died of the resulting gunshot 

wounds.

The two co-defendants then fled through 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 testified 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 was later arrested for making false statements in 

connection with the investigation into Gardenhire’s death, and on 
6

the day after her arrest, someone identifying himself as Rice called

the lead detective in the case to ask whether Barker could be granted 

immunity if Rice turned himself in to the police. After 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, stating he would “do 

time for this because he was the one [who] planned it.”4

1. Rice asserts that because Barker and Stepp-McCommons 

were accomplices and Barker’s testimony was the only evidence 

supporting that he planned to commit robbery, the trial court plainly 

erred by failing to charge the jury 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 nondeath penalty cases such as this one, which was docketed to the term of this 

Court 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.”). Instead, 

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 trial that the failure to give the accomplice charge was clear 

error, although the prosecutor asserted 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 Rice also

challenges that finding on appeal. 

Because Rice neither requested an accomplice charge nor 

objected on this ground to the single-witness charge as given, we can 
8

only review the 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 

the 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 prongs 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 argument5 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. The trial court clearly erred 

in failing to give the charge in light of the fact that Rice’s codefendant, 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, despite 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 that 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 on Craigslist, and the seller 

arranged a meeting at what turned out to be a dark, abandoned 

house. Shortly before 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 SteppMcCommons leave the party. Rice’s defense at trial was that he 

stayed across 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 concealed himself from 

the victims. After Stepp-McCommons confronted Perry and 

 6 Although closing arguments 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, SteppMcCommons 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 they left, and heard Rice say that the deal 

went wrong when Stepp-McCommons killed “the old man.” Rice 

subsequently left the state. Also, the 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 when Rice was later 

arrested, he admitted that he expected to serve time because he had 

planned the crime. On top of all that, even assuming that Barker 

was an accomplice, the testimony of one accomplice can corroborate 

that of another accomplice, see 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 this evidence constitutes “substantial and consistent 

evidence” showing Rice’s participation in the crimes, we conclude 
11

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 SE2d 513) (2018) (even where trial court gave the singlewitness 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 harmless 

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 only 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 where 
12

accomplice’s testimony was the only evidence affirmatively 

identifying defendant as the second man involved in the crime).

Thus, Rice has failed to show plain error.

2. The indictment charged Rice, individually and as a party 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 the State conceded at the motion for new trial hearing 

that merger was appropriate.7

Because we agree that the convictions 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 pro 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 affirmed in part and vacated in part. All the Justices 

concur.