In the Supreme Court of Georgia

Decided: April 30, 2024

S24A0011. SAUDER v. THE STATE.

 WARREN, Justice.

Appellant Frederick Sauder was convicted of malice murder 

and other crimes in connection with the armed robbery of Wayne 

Alexander on August 4, 2016, and his shooting death several days 

later, on August 9 or 10.1 In this appeal, Sauder contends that the 

1 In December 2017, a White County grand jury indicted Sauder for the 

following counts related to the August 4 crimes: armed robbery, aggravated 

assault, burglary, two counts of possession of a firearm during the commission 

of a felony (based on aggravated assault and burglary), and possession of a 

firearm by a convicted felon. Sauder was also indicted for the following crimes 

related to the shooting on August 9 or 10: malice murder, two counts of felony 

murder (based on aggravated assault and burglary), aggravated assault, 

burglary, three counts of possession of a firearm during the commission of a 

felony (based on malice murder, aggravated assault, and burglary), and 

possession of a firearm by a convicted felon. The counts of possession of a 

firearm by a convicted felon were bifurcated. The remaining counts were tried 

before a jury from February 11 to 19, 2019, and the jury found Sauder guilty 

of those counts. The bifurcated counts were then nolle prossed. The trial court 

sentenced Sauder to serve life in prison for malice murder, 20 consecutive years 

for armed robbery, 20 concurrent years for burglary, and 5 consecutive years 

each for four of the counts of possession of a firearm during the commission of 
2

evidence presented at his trial was legally insufficient to support 

several of his convictions. He also claims that the trial court abused 

its discretion by admitting into evidence an excerpt of a phone call 

he made while in jail awaiting trial, that the court committed 

several instructional errors, that the State failed to disclose evidence 

that two witnesses had “deals” in exchange for their testimony at 

trial, and that his trial counsel provided constitutionally ineffective 

assistance in several respects. Finally, he contends that the 

cumulative effect of these alleged errors and deficiencies entitles 

him to a new trial. As we explain below, we vacate Sauder’s 

conviction for possession of a firearm during the commission of 

aggravated assault to correct a merger error, but we affirm his other 

convictions.

a felony (based on burglary on August 4 and malice murder, aggravated 

assault, and burglary on August 9 or 10). The remaining counts were vacated 

or merged. See Dixon v. State, 302 Ga. 691, 698 (808 SE2d 696) (2017). Sauder 

filed a timely motion for new trial, which he later amended four times through 

new counsel. After an evidentiary hearing, the trial court denied the motion 

in June 2023. Sauder filed a motion for reconsideration, which the trial court 

also denied. He then filed a timely notice of appeal, and the case was docketed 

to the term of this Court beginning in December 2023 and orally argued on 

January 10, 2024. 
3

1. The evidence presented at Sauder’s trial showed the 

following. In 2016, 66-year-old Alexander, who was in poor health 

and had dementia, lived alone in a mobile home on his property in 

Cleveland, Georgia. Joshua Cunningham lived on a farm adjacent 

to Alexander’s property with several members of his family and his 

girlfriend, Heather Holland. Cunningham and Holland often hung 

out and smoked methamphetamine with Sauder, Luke McClure, 

and McClure’s wife—all of whom also stayed on the farm. 

On August 4, 2016, Cunningham, Holland, Sauder, and his 

friend Justin Davis were at the farm when one of them “pointed out” 

Alexander’s mobile home and mentioned that it was “abandoned.” 

They walked to the home, peered in the windows, and eventually 

walked back to the farm. According to Davis, he and Sauder 

discussed going to the mobile home again later. That night, they 

returned to Alexander’s property, carrying Sauder’s shotgun and 

tools “in case [they] needed to break in.” They smoked 

methamphetamine in Alexander’s yard and then checked the doors 

to the mobile home, which were locked. They attempted to pry open 
4

a door, and Sauder kicked a sliding door several times before 

Alexander opened the door. They walked past Alexander, who said 

nothing.2 Sauder, who was holding his shotgun, told Alexander to 

sit down. 

Sauder took Alexander’s wallet, while Davis searched the home 

and gathered eight to 10 guns, which he found in Alexander’s closets, 

and a lockbox, which he found under Alexander’s bed. Davis then 

took a power saw and some climbing gear from Alexander’s outdoor 

shed; he loaded those items, the guns, and the lockbox into Sauder’s 

car. At some point, Davis noticed that Alexander’s arm was 

bleeding; he asked Sauder what happened, and Sauder said that 

Alexander “came at him.” As Sauder and Davis tried to leave, 

Sauder’s car got stuck in Alexander’s muddy driveway. Sauder 

called Cunningham, and he and Holland soon arrived and towed 

Sauder’s car out of the driveway. Sauder then dropped off Davis at 

2 Davis also testified that Alexander “didn’t even really care” that Sauder 

and Davis came into the home; Alexander did not “try to resist or do anything” 

when they came in; and Davis “figured he was probably on painkillers or 

something. Just out of his mind . . . .” 
5

his house. Davis kept two guns, the saw, and the climbing gear, and 

Sauder kept the remaining items. The next day, Sauder asked Davis 

if he wanted to return to Alexander’s home, but Davis said, “No.” 

Sauder told Davis that “he wanted to homestead the place,” which 

Davis understood to mean that Sauder wanted to claim Alexander’s 

property for himself. Sauder said that he knew some people who 

could “get rid of” Alexander.3 

According to Cunningham, a few days later, on August 8, 

Sauder, who was a convicted felon and thus unable to purchase a 

gun, asked Cunningham to accompany him to a pawn shop to trade 

four guns that Sauder had for a new firearm. Cunningham agreed, 

3 Davis testified that he was charged with armed robbery, aggravated 

assault, burglary, two counts of possession of a firearm during the commission 

of a felony, and possession of a firearm by a convicted felon in connection with 

the August 4 crimes; pursuant to an agreement that he would testify at 

Sauder’s trial, he pled guilty to armed robbery but had not yet been sentenced; 

the remaining charges, which could have added another 55 years in prison to 

his sentence, were dismissed; the maximum sentence for armed robbery was 

life in prison, but his plea agreement stated that his sentence would not exceed 

20 years in prison; there was no agreement that the State would recommend 

less than 20 years; his sentencing would be “up to the judge at the sentencing 

hearing”; and he did not have any agreement with the State when he initially 

spoke to law enforcement officials on August 18, 2016, and gave a statement 

that was similar to his testimony at trial. 
6

and later that day, he and Sauder went to the pawn shop, and 

Cunningham traded four guns, three of which Alexander’s wife 

Melita Alexander (“Melita”) identified at trial as belonging to 

Alexander, for a .22-caliber semiautomatic rifle.4 Sauder carried the 

rifle out of the pawn shop, and he, Cunningham, and McClure later 

shot it on the farm for “target practice[ ].”5 

The next day, August 9, Melita, who was separated from 

Alexander but still called him daily and kept many items at his 

home, spoke to Alexander on the phone around 3:30 p.m. She called 

him again around 9:30 p.m. When he did not answer, she called 

several more times throughout the night but received no response. 

4 The owner of the pawn shop testified that he did not remember whether 

Sauder was with Cunningham during the transaction. However, a GBI agent 

who interviewed the owner on August 11, 2016, testified that the owner said 

that a man who matched Sauder’s description was with Cunningham and that, 

when shown a photo of Sauder, the owner identified him as the man with 

Cunningham. 

5 Cunningham testified that he pled guilty to making a false statement, 

theft by receiving stolen property, and theft by deception in connection with 

the pawn shop transaction; the maximum sentence he could have received was 

25 years in prison; in exchange for his testimony, he was sentenced as a first 

offender to five years’ probation and a $1,500 fine; and when an investigator 

initially interviewed him before he was charged, he recounted a story similar 

to his testimony at trial. 
7

Around 6:00 p.m. the next day, August 10, Melita and her boyfriend 

went to Alexander’s home to check on him. They saw tire tracks in 

the driveway, and they noticed that the door to Alexander’s shed, 

which was normally locked, was ajar. When Melita went inside the 

mobile home, she saw near the door several of her musical 

instruments, which she typically kept in a closet. The home was 

“ransacked.” Melita noticed jewelry boxes and several empty mason 

jars, in which Alexander typically kept coins, on the floor in the 

bedroom, and several drawers were open. Alexander, who was dead 

and “stiff,” was slumped over on the couch with a jacket covering his 

head. Investigators who responded to Melita’s 911 call found “pry 

marks” on one of the doors to the mobile home and a lock that had 

been cut off the outdoor shed. They collected four .22-caliber shell 

casings and two .22-caliber bullets from the scene. 

According to Cunningham, Holland, and McClure, on August 

10 (the day Alexander’s body was found), Sauder was carrying 
8

around a large number of coins.6 Holland and McClure’s wife took 

the coins to a bank and converted them to $125 in cash, and 

McClure’s wife used the money to rent a motel room. 

In addition, Davis testified that at some point, Sauder told him 

that he “watched” Alexander’s “ex-wife shoot him”; Cunningham 

testified that Sauder told him at some point that he went inside 

Alexander’s home and Alexander “was already dead”; and McClure 

testified that Sauder stated at various times that he went into 

Alexander’s home, Alexander was “sick and wasn’t doing too good,” 

Alexander “passed away,” and Sauder covered him with a blanket. 

McClure also testified that at various points, Sauder asked McClure 

to accompany him to Alexander’s home (but McClure said “no”);

Sauder had a “metal box” with paperwork in it and the guns that 

Melita identified as belonging to Alexander; Sauder asked McClure 

and other people who were hanging out with him if they had heard 

gunshots and said that he had just shot a bear; and Sauder asked 

6 Davis testified that neither he nor Sauder took a significant amount of 

coins from Alexander on August 4. 
9

McClure to cut his hair shortly after the murder.7 

On August 11, the day after Alexander’s body was found, an 

investigator interviewed Cunningham, who told him about trading 

the guns for the rifle at the pawn shop on Sauder’s behalf and about 

later shooting the rifle at the farm. With Cunningham’s permission, 

the investigator searched an area of the farm where Sauder often 

stayed and found 16 .22-caliber shell casings on the ground and 

numerous partially burned documents that had Alexander’s name 

on them in a burn barrel. 

The next day, the investigator obtained a warrant for Sauder’s 

7 Cunningham and Cunningham’s mother similarly testified that Sauder 

mentioned that he shot a bear around the time of the murder and that his 

statement did not strike them as unusual because sometimes there were bears 

on their property. Cunningham also testified that Sauder got a haircut around 

the time of the murder; McClure added that Sauder asked for a haircut because 

his hair was long, and McClure had been “giving him a hard time about how 

his hair looked.” The prosecutor asked Melita, her boyfriend, Davis, 

Cunningham, and McClure whether they were involved in the shooting, and 

they each denied it. 

In addition, McClure testified that he served six-and-a-half years in 

prison for voluntary manslaughter in connection with an unrelated crime; he 

was released in June 2014 (about two years before the shooting) and was on 

probation; he was not charged with any crimes related to Alexander’s robbery 

and shooting; but as a result of his “involvement in this case” and “receipt of 

stolen property,” his probation was revoked and he was sentenced to a ninemonth-long, in-custody, substance abuse rehabilitation program. 
10

arrest. On August 16, police officers located Sauder at a motel in 

Athens. After attempting to communicate with him for about four 

hours outside his motel room, officers deployed chemical munitions; 

Sauder finally left the room, and he was arrested. Investigators 

then searched the motel room and Sauder’s car pursuant to a 

warrant and found several cards and documents that had 

Alexander’s name on them and numerous items that Melita 

identified at trial as belonging to her or to Alexander. Under a 

mattress in the motel room, investigators found the .22-caliber 

semiautomatic rifle. 

Investigators later searched a house in which Sauder rented a 

room around the time of the shooting. Behind the house, they found 

a trash bag that contained a name tag displaying Sauder’s name and 

documents with Alexander’s name on them. They found more 

documents showing Alexander’s name in a burn barrel on the 

property. In addition, the owner of the property testified that he 
11

saw Sauder carrying the .22-caliber semiautomatic rifle.8 

The medical examiner who performed Alexander’s autopsy 

recovered three .22-caliber bullets from his body and concluded that 

he had been shot several times from an indeterminate range, which 

caused his death, likely on August 9 or 10. A firearms examiner 

determined that all of the shell casings that were collected from 

Alexander’s home and 15 of the 16 shell casings that were collected 

from Cunningham’s farm were fired from the .22-caliber 

semiautomatic rifle.9 

The State also presented a 40-second excerpt of a phone call 

Sauder made to his mother in August 2017, while he was in jail 

awaiting trial. During the call, Sauder said that “the other guy” was 

in jail. When his mother asked whether the “other guy” was “ready 

to point out” the person who shot Alexander, Sauder responded, 

“What do you mean? He wasn’t there.” He then said that it was 

8 Cunningham’s mother also testified that she saw Sauder carrying the

.22-caliber rifle in the days surrounding the shooting. 

9 However, the examiner could not conclude whether the bullets found at 

Alexander’s home, the bullets recovered from Alexander’s body, or one of the 

shell casings found at the farm were fired from the rifle. 
12

“hard to explain,” and he would “not do it over the phone.” An 

investigator testified that Davis was in jail at the time of the call 

and that the investigator did not know whether McClure was in jail 

at that time. 

Sauder did not testify at trial. His primary defense was that 

the State did not meet its burden of proving beyond a reasonable 

doubt that he killed Alexander. 

2. (a) Sauder contends that the evidence presented at his trial 

was insufficient as a matter of constitutional due process to support 

his convictions for armed robbery on August 4, 2016, and malice 

murder and three counts of possession of a firearm during the 

commission of a felony on August 9 or 10, 2016.10 This claim fails.

In evaluating the sufficiency of the evidence as a matter of 

constitutional due process, we view all of the evidence presented at 

10 Sauder also contends that the evidence was insufficient to support the 

counts of aggravated assault on August 4, possession of a firearm during the 

commission of that crime, and felony murder, aggravated assault, and burglary 

on August 9 or 10. But he was not sentenced for those crimes, so his claim 

regarding them is moot. See, e.g., Felts v. State, 311 Ga. 547, 551 n.7 (858 

SE2d 708) (2021).
13

trial in the light most favorable to the verdicts and consider whether 

any rational juror could have found the defendant guilty beyond a 

reasonable doubt of the crimes of which he was convicted. See 

Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560)

(1979). “‘We leave to the jury the resolution of conflicts or 

inconsistencies in the evidence, credibility of witnesses, and 

reasonable inferences to be derived from the facts.’” Henderson v. 

State, 317 Ga. 66, 72 (891 SE2d 884) (2023) (citation omitted). A 

jury is authorized to find a defendant guilty beyond a reasonable 

doubt if the evidence shows either that he “[d]irectly commit[ted] the 

crime” or that he was a “party thereto.” OCGA § 16-2-20. 

“Conviction as a party to a crime requires proof of a common 

criminal intent, which the jury may infer from the defendant’s 

presence, companionship, and conduct with another perpetrator 

before, during, and after the crimes.” Rooks v. State, 317 Ga. 743, 

751 (893 SE2d 899) (2023) (citation and punctuation omitted). See 

also, e.g., Howard v. State, Case No. S24A0105, 2024 WL 1160574, 

at *3 (decided Mar. 19, 2024). “Mere presence at the crime scene, 
14

however, is insufficient to make someone a party to a crime.” Rooks, 

317 Ga. at 751 (citation and punctuation omitted). 

Turning first to Sauder’s claim about the August 4 armed 

robbery, the indictment charged him with armed robbery by using a 

firearm to take Alexander’s guns. See OCGA § 16-8-41 (a) (“A person 

commits the offense of armed robbery when, with intent to commit 

theft, he or she takes property of another from the person or the 

immediate presence of another by use of an offensive weapon . . . .”). 

Sauder argues that the State failed to prove that he “use[d]” a 

firearm to accomplish the theft because the evidence presented at 

trial showed that Alexander opened the door and sat quietly while 

Sauder and Davis stole his guns. But the element of “use of an 

offensive weapon” in OCGA § 16-8-41 (a) is satisfied by proof that

the weapon was “used as an instrument of actual or constructive 

force—that is, actual violence exerted on the victim or force exerted 

upon the victim by operating on the victim’s fears of injury to the 

person, property, or character of the victim such that the defendant’s 

acts created a reasonable apprehension on the part of the victim that 
15

an offensive weapon is being used.” Green v. State, 304 Ga. 385, 389 

(818 SE2d 535) (2018) (citation and punctuation omitted). The 

evidence showing that Sauder held a shotgun and ordered 

Alexander to sit down while Davis collected Alexander’s guns

authorized the jury to conclude that Sauder used a firearm to 

accomplish the theft of the guns. Thus, the evidence was 

constitutionally sufficient to support Sauder’s conviction as a party 

to the crime of armed robbery. See Jackson, 443 U.S. at 319; OCGA 

§ 16-2-20 (defining parties to a crime). See also Green, 304 Ga. at 

389 (holding that evidence that the appellant “pulled out a gun and 

asked [the victim] what he had in his pockets” was sufficient to prove 

that the appellant used an offensive weapon within the meaning of 

OCGA § 16-8-41 (a)); Bass v. State, 356 Ga. App. 862, 867 (849 SE2d 

718) (2020) (holding that evidence that the appellant “held [a] gun 

in his hand” while he took items from the victim was sufficient to 

support his armed robbery conviction).

As to the crimes on August 9 or 10, the evidence indicated that 

after Sauder and Davis stole guns from Alexander, Sauder 
16

mentioned “get[ting] rid of” Alexander; Sauder enlisted 

Cunningham to trade the stolen guns for a .22-caliber 

semiautomatic rifle—the gun used to shoot and kill Alexander days 

later; Sauder admitted that he returned to Alexander’s home and 

was there at the time of the shooting; after the murder, Sauder was 

carrying coins and many other items that belonged to Alexander and 

Melita; and Sauder hid the rifle used in the shooting under a 

mattress in his motel room. This evidence authorized the jury to 

find Sauder guilty at least as a party to the crimes of malice murder 

and possession of a firearm during the commission of a felony. See 

Jackson, 443 U.S. at 319; OCGA § 16-2-20. See also Henderson, 317 

Ga. at 72 (holding that evidence that connected the appellant to the 

murder weapon and that he admitted he was at the scene of the 

shootings was constitutionally sufficient to support his malice 

murder convictions); Blevins v. State, 291 Ga. 814, 815-817 (733 

SE2d 744) (2012) (concluding that evidence that the appellant was 

near the crime scene at the time of the murder and shortly 

thereafter tried to pawn items that belonged to the victim was 
17

constitutionally sufficient to support his conviction for malice 

murder).

(b) Sauder also claims that the evidence was insufficient as a 

matter of Georgia statutory law to support his convictions for the 

August 9 or 10 crimes discussed above—malice murder and three 

counts of possession of a firearm during the commission of a felony—

because the circumstantial evidence failed to exclude the hypothesis 

that Cunningham, McClure, or another one of Sauder’s friends

killed Alexander and that Sauder did not participate in the crimes. 

Under OCGA § 24-14-6, “[t]o warrant a conviction on circumstantial 

evidence, the proved facts shall not only be consistent with the 

hypothesis of guilt, but shall exclude every other reasonable 

hypothesis save that of the guilt of the accused.” Whether an

alternative hypothesis is reasonable “is usually a question for the 

jury, as this Court will not disturb the jury’s finding unless it is 

insufficient as a matter of law.” Reyes v. State, 309 Ga. 660, 664 (847 

SE2d 194) (2020).

Assuming without deciding that the evidence related to the 
18

August 9 or 10 crimes was entirely circumstantial, the evidence 

recounted above was sufficient to authorize the jury to reject as 

unreasonable Sauder’s alternative hypothesis. As discussed above, 

the State presented substantial evidence showing that Sauder

participated in the shooting, including evidence that he said he 

wanted to “get rid” of Alexander, he stole numerous items from 

Alexander’s home after the initial robbery with Davis, he was 

present at the time of the shooting, and he possessed the murder

weapon. Moreover, when the prosecutor asked Cunningham and 

McClure if they were involved in the shooting, they squarely denied 

it. But even if the jury believed that Cunningham, McClure, or 

another one of Sauder’s friends shot Alexander, the jury could have 

reasonably concluded that Sauder shared with the shooter a 

common criminal intent to kill Alexander. Thus, the jury was 

authorized to reject the hypothesis that Sauder did not participate 

in the shooting and to instead find that he was guilty at least as a 

party to the crimes of malice murder and possession of a firearm 

during the commission of a felony. See, e.g., OCGA § 16-2-20;
19

Howard, 2024 WL 1160574, at *3 (explaining that “a jury may infer 

a defendant’s criminal intent, and thereby find him guilty as a party 

to a crime, ‘from his presence, companionship, and conduct before, 

during, and after the offense’”) (citation omitted). See also Reyes,

309 Ga. at 664-665 (concluding that evidence that the appellant had 

threatened to kill the victim and evidence connecting him to the 

murder weapon was sufficient under OCGA § 24-14-6 to support his 

conviction for malice murder); Blevins, 291 Ga. at 815-817 (holding 

that evidence that the appellant was near the crime scene at the 

time of the murder and shortly thereafter tried to pawn items that 

belonged to the victim was sufficient under former OCGA § 24-4-6).11

3. Sauder claims next that the trial court abused its discretion 

by admitting into evidence the 40-second audio-recorded excerpt of 

the jail phone call—in which Sauder’s mother asked if the “other 

guy” was ready to point out who shot Alexander and Sauder 

11 OCGA § 24-4-6, which was part of the old Evidence Code, was carried 

into the current Evidence Code in identical form in OCGA § 24-14-6, and there 

is no materially identical federal rule of evidence, so our case law interpreting 

the former provision is still applicable. See Kimbro v. State, 317 Ga. 442, 446

n.6 (893 SE2d 678) (2023).
20

responded, “What do you mean? He wasn’t there”—over his objection 

that the excerpt was not admissible under subsection (a) of OCGA 

§ 24-4-408 (“Rule 408”). For the reasons explained below, we 

disagree.

Rule 408 (a) says:

Except as provided in Code Section 9-11-68 [which relates 

to liability for attorney fees and litigation expenses when

a party rejects a settlement offer in a tort case], evidence 

of:

(1) Furnishing, offering, or promising to furnish; or

(2) Accepting, offering, or promising to accept

a valuable consideration in compromising or attempting 

to compromise a claim which was disputed as to either 

validity or amount shall not be admissible to prove 

liability for or invalidity of any claim or its amount.[12]

12 The remaining subsections of Rule 408 provide:

(b) Evidence of conduct or statements made in compromise 

negotiations or mediation shall not be admissible.

(c) This Code section shall not require the exclusion of any 

evidence otherwise discoverable merely because it is presented in 

the course of compromise negotiations or mediation. This Code 

section shall not require exclusion of evidence offered for another 

purpose, including, but not limited to, proving bias or prejudice of 

a witness, negating a contention of undue delay or abuse of 

process, or proving an effort to obstruct a criminal investigation or 

prosecution.
21

Sauder argues that the excerpt of the phone call should have been 

excluded under Rule 408 (a) because during other parts of the call 

(which were not admitted into evidence), Sauder made statements 

that he claims constituted evidence of “an offer to compromise a 

disputed claim.” Specifically, Sauder repeatedly asked his mother 

to call his lawyer and to reach out to the District Attorney to inform 

the lawyer and the District Attorney that Sauder was “willing to 

deal”; he was “ready to . . . tell [them] all that really happened”; and 

he would “pick the person that did it out of a lineup” based on “what 

We note that Rule 408 (a) is materially identical to Federal Rule of Evidence 

408 (a) (1), which says:

(a) Prohibited Uses. Evidence of the following is not admissible—

on behalf of any party—either to prove or disprove the validity 

or amount of a disputed claim or to impeach by a prior 

inconsistent statement or a contradiction:

(1) furnishing, promising, or offering—or accepting, 

promising to accept, or offering to accept—a valuable 

consideration in compromising or attempting to compromise 

the claim[.]

We therefore look to federal appellate cases for guidance in interpreting the 

rule. See State v. Almanza, 304 Ga. 553, 556 (820 SE2d 1) (2018). See also 

Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence 182 (8th ed. 

2023) (explaining that Georgia Rule 408 follows the federal rule).
22

[Sauder] saw.” Asserting that these entreaties to his mother were 

an “offer to compromise” with the State, Sauder claims that the trial 

court abused its discretion by admitting his statement implying that 

he was present (and the “other guy” was not) when Alexander was 

shot, because that statement was part and parcel of such an offer.

Even assuming (without deciding) that Rule 408 (a) could 

apply to exclude a defendant’s attempts “to compromise” with the 

State by negotiating a plea deal regarding charges in a criminal 

case, Sauder has not shown that the statements he made to his 

mother fell within the ambit of the rule.13 In particular, Sauder cites 

13 The United States Court of Appeals for the Eleventh Circuit has held 

that Federal Rule of Evidence 408 applies in both criminal and civil cases. See, 

e.g., United States v. Arias, 431 F3d 1327, 1336-1338 (11th Cir. 2005). See also 

State v. Almanza, 304 Ga. 553, 559 (820 SE2d 1) (2018) (explaining that when

a rule in our current Evidence Code is materially identical to a Federal Rule of 

Evidence and there are conflicts ‘among the decisions of the various circuit 

courts of appeal[s] in interpreting the federal rules of evidence,’ the precedent 

of the Eleventh Circuit prevails”) (quoting Ga. L. 2011, pp. 99, 100 § 1). But it 

appears that the Eleventh Circuit has not addressed whether Federal Rule of 

Evidence 408 could apply to exclude evidence of plea negotiations. See United 

States v. King, 623 Fed. Appx. 962, 965-966 (11th Cir. 2015) (addressing the 

admissibility of a USPS administrative complaint and cease and desist order 

under Federal Rule of Evidence 408 in a criminal case); Arias, 431 F3d at 1336-

1338 (holding that a state administrative complaint was not admissible under 

Federal Rule of Evidence 408 in the appellant’s criminal proceeding); United 

States v. Pendergraft, 297 F3d 1198, 1211 n.8 (11th Cir. 2002) (noting that a 
23

no pertinent legal authority, and we have found none, to support his 

assertion that any of the statements at issue here constituted an 

“offer” within the meaning of Rule 408 (a).14 None of the statements 

in the excerpt of the recording that was played for the jury

mentioned, or even implied, that Sauder wanted to negotiate a plea 

deal with the State. And even if we were to assume that these 

statements were made in connection with Sauder’s asking his 

mother to contact his lawyer and the District Attorney to indicate

video of a civil settlement negotiation in which the appellants participated was 

admissible under Federal Rule of Evidence 408 in the appellants’ criminal 

cases). See also Federal Practice and Procedure (Wright & Miller) § 5303 (2d 

ed. Feb. 2024 Update) (explaining that several federal circuit courts have held 

that Federal Rule of Evidence 408 bars “the use of evidence of civil compromise 

negotiations in a criminal prosecution,” but whether the rule applies “to plea 

bargaining in a criminal case when the evidence of such plea bargaining is 

offered in a civil or a criminal case” is “more debatable”). 

We also note that OCGA § 24-4-410 (4) generally prohibits the State from 

introducing against a criminal defendant evidence of “[a]ny statement made in 

the course of plea discussions with an attorney for the prosecuting authority 

which does not result in a plea of guilty.” Sauder does not claim that his 

statements to his mother should be excluded under that rule.

14 Sauder relies primarily on Nevitt v. CMD Realty Investment Fund IV, 

L.P., 282 Ga. App. 533, 535-538 (639 SE2d 336) (2006). But that case 

interpreted former OCGA § 24-3-37, which was part of our old Evidence Code

and said, in pertinent part, “admissions or propositions made with a view to a 

compromise are not proper evidence.” Because that provision is not part of our 

current Evidence Code, Nevitt is not applicable. See State v. Almanza, 304 Ga. 

553, 556 (820 SE2d 1) (2018).
24

that he was “willing” and “ready” to make a deal, that request was 

not an “offer” under Rule 408 (a) either; at best, Sauder’s request

implored his mother (who had no authority to negotiate a plea deal 

on his behalf) to initiate contact with the lawyers involved in his 

case to ask them to begin discussions that he hoped might lead to

his receiving an offer from the State for a negotiated plea. Simply 

put, Sauder’s asking his mother to ask the State to provide a plea

deal did not constitute an offer to compromise within the meaning 

of Rule 408 (a).

Under these circumstances, we cannot say that the trial court 

abused its discretion by concluding that the statements at issue did 

not need to be excluded under that rule. See United States v. 

Castillo, 615 F2d 878, 885 (9th Cir. 1980) (holding that an 

appellant’s statement to a prison counselor “that he would probably 

‘cop’ to a charge of manslaughter” was not excludable under Federal 

Rule of Evidence 408 because the appellant could not have 

negotiated a plea deal with the counselor, who had no such 

authority). See also United States v. Fernandez, 559 F3d 303, 318 
25

(5th Cir. 2009) (noting that Federal Rule of Evidence 408 “would 

appear to bar” evidence of a proffer letter for the appellant’s 

immunity from prosecution but that his “preceding conversation” 

with law enforcement agents and “perhaps even his offer to ‘help 

out”” by providing the agents more information “would remain 

admissible”).15

4. Sauder contends that the trial court erred when, while 

instructing the jury about the State’s burden of proof, the court 

declined to give the pattern jury instruction on “grave suspicion,” 

which says, “Facts and circumstances that merely place upon the 

defendant a grave suspicion of the crime charged or that merely 

raise a speculation or conjecture of the defendant’s guilt are not 

15 As mentioned above, although Rule 408 (a) excludes evidence of 

certain offers and acceptances, Rule 408 (b) more broadly mandates the 

exclusion of “[e]vidence of . . . statements made in compromise negotiations.” 

(Emphasis added). See E.E.O.C. v. UMB Bank Financial Corp., 558 F3d 784,

791 (8th Cir. 2009) (noting that several federal courts of appeal have held that 

Federal Rule of Evidence 408 (a) (2), which excludes “conduct or a statement 

made during compromise negotiations about the claim,” may apply to “certain 

work product, internal memos, and other material created specifically for the 

purpose of conciliation, even if not communicated to the other party” and 

collecting cases). But Sauder does not argue that Rule 408 (b) applies here, so 

we do not address it. 
26

sufficient to authorize a conviction of the defendant.” Georgia 

Suggested Pattern Jury Instructions, Vol. II: Criminal Cases 

§ 1.20.20. This claim fails.

“In evaluating a claim that the trial court was required to give 

certain jury instructions, we view the charge as a whole to determine 

whether the jury was fully and fairly instructed.” Clark v. State, 315 

Ga. 423, 440 (883 SE2d 317) (2023) (citation and punctuation

omitted). Here, the trial court thoroughly instructed the jury on the 

presumption of innocence, the State’s burden to prove beyond a 

reasonable doubt each essential element of the charged crimes, 

criminal intent, and parties to a crime. Those instructions fully 

informed the jury that it was not authorized to find Sauder guilty as 

a party to the crimes if the evidence presented at trial merely raised 

“a grave suspicion” or “a speculation or conjecture” of his guilt. 

Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal 

Cases § 1.20.20. And in any event, given the evidence presented at 

trial and detailed above, the substantial evidence against Sauder 

raised more than a grave suspicion of his guilt, at least as a party to 
27

the crimes. Accordingly, the trial court did not err by refusing to 

instruct the jury on grave suspicion. See Welch v. State, 309 Ga. 

875, 879 (848 SE2d 846) (2020) (holding that the trial court did not 

err by failing to instruct the jury on grave suspicion, because the 

court “‘gave complete instructions on reasonable doubt and 

presumption of innocence’” and “‘[t]he trial evidence raised more 

than a bare suspicion of [the appellant’s] guilt’”) (citations omitted); 

Jenkins v. State, 281 Ga. 24, 25 (635 SE2d 714) (2006) (same). See 

also Clark, 315 Ga. at 440-441 (concluding that the trial court’s 

omission of an instruction on grave suspicion was not a clear and 

obvious error under plain-error review, because the court instructed 

on the presumption of innocence, reasonable doubt, criminal intent, 

and parties to a crime, which fully informed the jury that it was not 

authorized to find the appellant guilty as a party to the crimes 

unless he shared his co-defendant’s criminal intent to shoot the 

victim).

5. Sauder argues that the trial court committed plain error by 

failing to provide jury instructions on circumstantial evidence, mere 
28

presence and knowledge, and the law requiring corroboration of an 

accomplice’s testimony. As Sauder acknowledges, his trial counsel 

did not object to the alleged omission of these instructions, so we 

review these claims for plain error only. See OCGA § 17-8-58 (b);

Clark, 315 Ga. at 440. To establish plain error, Sauder must show 

that the alleged instructional error “was not affirmatively waived; 

was clear and obvious, rather than subject to reasonable dispute; 

likely affected the outcome of the trial; and seriously affected the 

fairness, integrity, or public reputation of judicial proceedings.” Id.

(citation and punctuation omitted). “An appellant must establish all 

four elements of the test in order to demonstrate plain error, so 

satisfying this test is difficult, as it should be.” Id. (citation and 

punctuation omitted). We address each of Sauder’s claims in turn.

(a) With respect to circumstantial evidence, Sauder argues 

that the trial court failed to instruct the jury on OCGA § 24-14-6, 

which as discussed above in relation to Sauder’s statutory 

sufficiency claim, says, “To warrant a conviction on circumstantial 

evidence, the proved facts shall not only be consistent with the 
29

hypothesis of guilt, but shall exclude every other reasonable 

hypothesis save that of the guilt of the accused.” But the trial court 

gave the pattern jury instruction on direct and circumstantial 

evidence, which says, among other things, that the jury “would be 

authorized to convict only if the evidence, whether direct, 

circumstantial, or both, excludes all reasonable theories of innocence 

and proves the guilt of the [defendant] beyond a reasonable doubt.” 

Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal 

Cases § 1.30.20 (brackets omitted). That instruction conveyed the 

substance of OCGA § 24-14-6. Thus, the trial court did not err, much 

less clearly and obviously so, in this respect. See Eubanks v. State, 

317 Ga. 563, 580 (894 SE2d 27) (2023) (holding that the trial court 

did not err by giving the pattern jury instruction on circumstantial 

evidence rather than instructing that the “State had to disprove any 

theory of innocence supported by the evidence,” because the pattern 

instruction “effectively conveyed” that point) (emphasis omitted). 

See also Hassan v. State, Case No. S24A0026, 2024 WL 1160729, at 

*5 (decided Mar. 19, 2024) (rejecting the appellant’s argument that 
30

a jury instruction, which was similar to the one given in this case,

failed to advise the jury of OCGA § 24-14-6 and holding that the 

instruction was not a clear and obvious error).16

(b) Sauder asserts that the trial court’s failure to instruct the 

jury on mere presence and knowledge was plain error. However, as 

discussed above in relation to Sauder’s claim that the court erred by 

failing to instruct the jury on grave suspicion, the court thoroughly 

instructed on the presumption of innocence, the State’s burden to 

prove beyond a reasonable doubt each essential element of the 

charged crimes, criminal intent, and parties to a crime. These

instructions adequately informed the jury that it was not authorized 

to find Sauder guilty if he was merely present at the scene of the 

16 Sauder also argues that the trial court incorrectly instructed that the 

jury “should not be concerned about whether the evidence is direct or 

circumstantial” and that “[t]here is no legal difference in the weight [the jury] 

may give to either direct or circumstantial evidence,” in accordance with the 

pattern jury instruction on direct and circumstantial evidence. See Georgia 

Suggested Pattern Jury Instructions, Vol. II: Criminal Cases § 1.30.20. But 

he cites no authority to support that argument, so he has not carried his burden 

of showing that the court clearly and obviously erred by giving those

instructions. See Hassan, 2024 WL 1160729, at *5 (rejecting the appellant’s 

claim that the trial court committed plain error by giving similar jury 

instructions, because he cited no controlling authority for the proposition that 

the instructions were erroneous).
31

crime or if he did not knowingly and intentionally participate in the 

crimes. Thus, when evaluated in the context of the jury charge as a 

whole, the trial court’s failure to expressly instruct on mere presence 

and knowledge was not a clear and obvious error beyond reasonable 

dispute. See, e.g., Clark, 315 Ga. at 441 (holding that the trial court 

did not clearly and obviously err by failing to instruct the jury on 

mere presence and knowledge, because the court instructed on the 

presumption of innocence, the State’s burden of proof, criminal 

intent, and parties to a crime).

(c) Asserting that Cunningham and McClure were accomplices 

to the August 9 or 10 crimes, Sauder contends that the trial court 

committed plain error by instructing the jury that the testimony of 

a single witness, if believed, was sufficient to establish a fact without 

also instructing that, with respect to those crimes, accomplice 

testimony must be corroborated.17 See OCGA § 24-14-8; Doyle v. 

State, 307 Ga. 609, 612-613 (837 SE2d 833) (2020) (explaining that 

17 The trial court gave an accomplice-corroboration instruction with 

respect to the August 4 crimes. 
32

an accomplice-corroboration instruction is required when there is 

slight evidence supporting a finding that a witness was an 

accomplice and that a trial court’s failure to give such an instruction,

while giving a single-witness instruction, in a case where the 

defendant was directly linked to the crimes through an accomplice’s 

testimony, generally constitutes a clear and obvious error under 

plain-error review). Assuming without deciding that Sauder did not

affirmatively waive this argument and that there was slight 

evidence that Cunningham and McClure were accomplices such that 

the failure to give an accomplice-corroboration instruction regarding 

the August 9 or 10 crimes was a clear and obvious error, Sauder has 

not established that any such error likely affected the jury’s guilty 

verdicts.

Even if an accomplice-corroboration instruction had been 

given, the jury likely would have concluded that Cunningham’s and 

McClure’s testimony about the August 9 or 10 crimes was 

sufficiently corroborated, because the State presented a substantial 

amount of corroborating evidence. In this respect, evidence that 
33

corroborates an accomplice’s testimony

may be circumstantial and it may be slight, and it need 

not of itself be sufficient to warrant a conviction of the 

crime charged. It must, however, be independent of the 

accomplice’s testimony and either directly connect the 

defendant with the crime or justify an inference that he is 

guilty. In addition, the independent evidence must 

corroborate both the identity of the defendant and the fact 

of his participation in the crime. In other words, 

corroboration of only the chronology and details of the 

crimes is not sufficient, and there must be some 

independent evidence tending to show that the defendant 

himself was a participant in the crimes.

Crawford v. State, 294 Ga. 898, 900-901 (757 SE2d 102) (2014)

(citations and punctuation omitted). Moreover, “‘[i]t is well settled 

that an accomplice’s testimony may be corroborated by the 

testimony of another accomplice.’” Jackson v. State, 314 Ga. 751, 

755 (879 SE2d 410) (2022) (citation omitted).

Here, Cunningham’s testimony about obtaining the .22-caliber 

semiautomatic rifle—the murder weapon—for Sauder at the pawn 

shop was corroborated by statements from other witnesses, 

including the pawn shop owner’s statement to the GBI agent that 

Sauder was with Cunningham when Cunningham obtained the gun;

testimony from Cunningham’s mother and the owner of the property 
34

where Sauder rented a room that Sauder was carrying the rifle in 

the days leading up to the murder; and evidence that investigators 

found the rifle in Sauder’s motel room when he was arrested.

McClure’s testimony that, at some point, Sauder asked McClure to 

accompany him to Alexander’s home was corroborated by Davis’s 

similar testimony that Sauder “wanted to homestead the place” and 

had asked Davis if he wanted to return to the home after the August 

4 robbery. Cunningham and McClure both testified that Sauder was 

carrying a significant number of coins on the day Alexander’s body 

was found, that Sauder indicated that he had gone inside 

Alexander’s home and had seen his dead body, and that he had 

mentioned that he shot a bear around the time of the murder—thus 

corroborating each other’s accounts on those points.18 Moreover, the 

18 We note that Cunningham and McClure also corroborated each other’s 

testimony that Sauder got a haircut around the time of the murder. And in 

any event, the evidence that Sauder got a haircut near the time of the murder

likely had little impact on the jury’s guilty verdicts, given that McClure 

testified that Sauder needed a haircut and that the State presented other, more 

probative evidence to show that Sauder tried to evade law enforcement officials 

after the crimes, including evidence that Sauder fled to a motel in Athens 

shortly after the murder and refused to leave when investigators attempted to 

arrest him.
35

State introduced independent evidence corroborating Cunningham’s 

and McClure’s testimony. Specifically, Holland testified about 

Sauder’s carrying a large amount of coins; Davis testified that 

Sauder said he “watched” Alexander’s “ex-wife shoot him,” implying

that Sauder was present at the time of the shooting (although he

inexplicably pointed to Melita as the shooter), and Sauder indicated 

during the jail phone call that he was present when Alexander was 

shot; and Cunningham’s mother testified about Sauder’s saying he 

shot a bear.

In sum, given the ample evidence corroborating Cunningham’s 

and McClure’s testimony about the August 9 or 10 crimes, Sauder 

has not shown a reasonable probability that the outcome of his trial 

would have been different had the jury been instructed under OCGA 

24-14-8 that an accomplice’s testimony must be corroborated. He 

has therefore failed to establish plain error. See, e.g., Jackson, 314 

Ga. at 755-756 (holding that the appellant could not establish that 

the trial court’s failure to give an accomplice-corroboration 

instruction likely affected the outcome of his trial under the third 
36

part of the plain-error test, because multiple witnesses corroborated 

that the appellant participated in the crimes); Lewis v. State, 311 

Ga. 650, 665-666 (859 SE2d 1) (2021) (concluding that the trial 

court’s failure to given an accomplice-corroboration instruction with 

respect to certain counts in the indictment likely did not affect the 

outcome of the appellant’s trial under plain-error review, because 

“the State introduced a substantial amount of evidence that 

corroborated [the alleged accomplice’s] testimony as to those 

counts”). Compare Doyle, 307 Ga. at 612-614 (holding that the trial 

court plainly erred by failing to instruct the jury on accomplice 

corroboration where the accomplice’s testimony “was the bedrock on 

which [the appellant’s] convictions rest”).

6. Sauder claims that the State violated his right to due 

process under Brady v. Maryland, 373 U.S. 83 (83 SCt 1194, 10 

LE2d 215) (1963), by failing fully to disclose that Davis and McClure 

had “deals” in exchange for their testimony. Specifically, Sauder 

argues that although Davis testified at trial that his guilty plea 

agreement stated that in exchange for his testimony, the State 
37

would recommend that his sentence for armed robbery would not 

exceed 20 years in prison and there was no agreement that the State 

would recommend a sentence of less than 20 years, one of the 

prosecutors made a deal with Davis’s plea counsel agreeing to 

recommend that Davis be sentenced to only 10 years in prison. 

Sauder also asserts that the State made a deal with McClure that 

in exchange for his testimony, the State would not charge him for 

crimes related to this case and would recommend lenient treatment 

in an unrelated probation- revocation matter. As explained below, 

we conclude that the trial court did not err by denying Sauder’s 

motion for new trial on this ground. See, e.g., Hood v. State, 311 Ga. 

855, 863 (860 SE2d 432) (2021) (explaining that a trial court’s 

factual findings regarding a Brady claim are reviewed under a 

clearly erroneous standard, while the court’s application of the law 

to the facts is reviewed de novo).

It is well established that:

“The suppression by the prosecution of evidence favorable 

to an accused upon request violates due process where the 

evidence is material either to guilt or to punishment, 
38

irrespective of the good faith or bad faith of the 

prosecution.” Brady, 373 U. S. at 87. This includes the 

suppression of impeachment evidence that may be used 

to challenge the credibility of a witness. See Giglio v. 

United States, 405 U. S. 150, 154-155 (92 SCt 763, 31 

LE2d 104) (1972). Accordingly, the State is obligated to 

reveal any agreement, even an informal one, with a 

witness regarding criminal charges pending against the 

witness. To prevail on a Brady claim, a defendant must 

show that the State possessed evidence favorable to the 

defendant; the defendant did not possess the evidence nor 

could he obtain it himself with any reasonable diligence; 

the prosecution suppressed the favorable evidence; and 

had the evidence been disclosed to the defense, a 

reasonable probability exists that the outcome of the 

proceeding would have been different.

Hood, 311 Ga. at 863 (cleaned up). A reasonable probability of a 

different result, also known as the materiality requirement, is 

established when the State’s suppression of evidence “‘undermines 

confidence in the outcome of the trial.’” Id. at 864 (citation omitted). 

“In this analysis, we review the record de novo and weigh the 

evidence as we would expect reasonable jurors to have done, rather 

than viewing all the evidence in the light most favorable to the 

verdicts.” State v. Thomas, 311 Ga. 407, 417 (858 SE2d 52) (2021). 

So viewed, even assuming that Sauder could establish the first three 

elements of his Brady claim, he has not met the materiality 
39

requirement, because he has not shown a reasonable probability 

that the outcome of his trial would have been different if the State 

had disclosed information about Davis’s and McClure’s alleged 

deals. See Kyles v. Whitley, 514 U.S. 419, 436 (115 SCt 1555, 131 

LE2d 490) (1995) (explaining that Brady materiality is defined “in 

terms of suppressed evidence considered collectively, not item by 

item”).

Turning first to Sauder’s assertion that the State failed to 

disclose an alleged agreement with Davis for a recommendation of a 

10-year prison sentence, we note that Davis testified that pursuant 

to his deal with the State, he pled guilty to armed robbery—a crime 

for which the maximum sentence is life in prison—with a sentence 

that would not exceed 20 years; the State dismissed other charges 

that could have added 55 years to his sentence; and the ultimate 

sentencing decision would be “up to the judge at the sentencing 

hearing.” Thus, although the jury was not informed of Davis’s

alleged deal for a 10-year sentence, it was nonetheless aware that 

he had a significant incentive to cooperate with the State by 
40

testifying against Sauder. See Hood, 311 Ga. at 861-864 (holding 

that the appellant failed to prove the materiality prong of the Brady 

test and explaining that although the State allegedly failed to 

disclose that a witness had a deal for a sentence of 25 months and 

three years of supervised release as well as the dismissal of several 

felony charges, the jury was informed that he faced a sentence of 85 

to 105 months and that his plea agreement said the State would 

consider his cooperation in determining whether to recommend a 

reduced sentence, so the jury was “aware that there was reason to 

regard his testimony with skepticism”); Rhodes v. State, 299 Ga. 367, 

369-370 (788 SE2d 359) (2016) (holding that there was no 

reasonable probability that the alleged failure to disclose the terms 

and extent of deals with two witnesses affected the outcome of the 

appellant’s trial, because the jury was aware of their motivations to 

testify to gain favor with the State). 

Moreover, Davis testified, and Sauder does not dispute, that he

had no agreement with the State whatsoever when he gave a

statement to law enforcement officials about a week after the 
41

murder in August 2016—nearly two-and-a-half years before 

Sauder’s trial and more than three years before the date of Davis’s 

sentencing in August 2019—that was consistent with his testimony 

at trial. See Harris v. State, 309 Ga. 599, 606-607 (847 SE2d 563)

(2020) (holding that the appellant failed to establish a reasonable 

probability that the outcome of his trial would have been different if 

the State had disclosed information about a witness’s alleged deal, 

because the evidence at trial showed that the witness provided a 

statement to the police that was consistent with his testimony 

months before the alleged date on which the witness received a 

reduced sentence in exchange for his cooperation, and he testified 

that he was hoping to receive a reduced sentence due to his 

cooperation). For these reasons, the alleged evidence that Davis had 

a deal for a 10-year prison sentence (rather than a deal for a 

sentence that would not exceed 20 years) likely would not have had 

a significant impact on the jury’s assessment of his credibility. See 

Hood, 311 Ga. at 865-866; Harris, 309 Ga. at 606-607.

We now turn to the alleged deal between the State and 
42

McClure. Evidence that McClure had an agreement with the State 

that he would not be charged in this case and that he would receive 

more favorable treatment in the probation matter likely would have 

had some effect on the jury’s appraisal of his credibility, particularly 

because (unlike with Davis) the jury was not aware that McClure 

had any express incentive to testify against Sauder. But even if the 

jury had discredited and thus discounted McClure’s testimony, it

would have had little effect on the jury’s view of the evidence at trial

as a whole, because his testimony was largely cumulative of other 

evidence. See Hood, 311 Ga. at 865 (holding that there was not a 

reasonable probability that the outcome of the appellant’s trial 

would have been different if the State had disclosed evidence of a 

witness’s alleged deal for a reduced sentence, because the witness’s 

testimony was cumulative of other evidence at trial). See also 

Sullivan v. Lockhart, 958 F2d 823, 825 (8th Cir. 1992) (concluding 

that the appellant had not proven that it was reasonably probable 

that evidence of a witness’s alleged deal would have affected the 

outcome of his trial, because the witness’s testimony was cumulative 
43

of other evidence). Specifically, McClure’s testimony about Sauder’s 

carrying a large number of coins near the time of the murder was 

cumulative of Holland’s similar account. McClure’s testimony that 

Sauder had returned to Alexander’s home after the August 4 robbery 

and had seen his dead body was largely cumulative of Davis’s 

testimony to that effect, and Sauder himself indicated during the jail 

phone call that he was present at the time of the shooting. McClure’s 

testimony that Sauder had a metal box with paperwork in it and had 

the guns that Melita identified as belonging to Alexander was 

cumulative of Davis’s testimony that he and Sauder stole a lockbox 

and guns from Alexander, and McClure’s testimony that Sauder said 

he shot a bear was cumulative of Cunningham’s mother’s testimony 

on that point. 

We acknowledge that some of McClure’s testimony—about 

Sauder’s carrying coins, returning to Alexander’s home and seeing 

his body, and shooting a bear—was also cumulative of 

Cunningham’s testimony, and thus corroborated Cunningham’s 

account on those points. That corroboration matters in light of 
44

Sauder’s claim, discussed in Division 5 (c), that McClure and 

Cunningham were both accomplices, and that the trial court plainly 

erred by failing to instruct the jury that an accomplice’s testimony 

is not sufficient to establish a fact unless it is corroborated. That is: 

if Cunningham’s testimony had to be corroborated because he was 

an accomplice, and the only corroboration came from McClure, then 

evidence that McClure had a deal with the State that would 

undermine his credibility could qualify as material evidence under 

Brady. See Thomas, 311 Ga. at 417-419 (concluding that the 

appellant established the materiality prong of the Brady test, 

because the State failed to disclose a deal with a witness whose 

testimony “‘could be viewed as the most significant piece of 

corroborating evidence offered by the State in a case where the 

corroborating evidence was both slight and wholly circumstantial’”). 

But that was not the case here because, as we discussed above, other 

independent evidence corroborated each material aspect of 
45

Cunningham’s story.19 Thus, even if the jury had been informed of 

McClure’s alleged deal with the State and determined that it 

rendered his testimony not credible, Cunningham’s testimony was 

amply corroborated. In sum, McClure’s testimony, while helpful to 

the State, was not a crucial component of the strong evidence

against Sauder. Compare Thomas, 311 Ga. at 417-419.

Thus, weighing the evidence as we would expect reasonable 

jurors to have done, we conclude that Sauder has not established a 

reasonable probability that the evidence of Davis’s and McClure’s 

alleged deals with the State would have affected the jury’s guilty 

verdicts. Accordingly, this claim fails. See Hood, 311 Ga. at 865-

866; Harris, 309 Ga. at 606-607.

7. Sauder contends that his trial counsel provided 

constitutionally ineffective assistance in several respects. To prevail 

on these claims, Sauder must establish that counsel’s performance 

19 We note that Cunningham’s statement that Sauder got a haircut 

around the time of the murder was corroborated only by McClure’s testimony 

on that point. But as we discussed above, that statement likely had little effect 

on the jury’s guilty verdicts.
46

was constitutionally deficient and that he suffered prejudice as a 

result. See Strickland v. Washington, 466 U.S. 668, 687-695 (104 

SCt 2052, 80 LE2d 674) (1984); Smith v. State, 308 Ga. 81, 87 (839 

SE2d 630) (2020). To prove deficient performance, Sauder must 

show that his trial counsel “‘performed at trial in an objectively 

unreasonable way considering all the circumstances and in the light 

of prevailing professional norms,’” which requires that Sauder

overcome the “‘strong presumption’ that trial counsel’s performance 

was adequate.” Smith, 308 Ga. at 87 (citations omitted). To prove 

prejudice, Sauder must establish a reasonable probability that, but 

for counsel’s deficient performance, the result of the trial would have 

been different. See Strickland, 466 U.S. at 694. “A reasonable 

probability is a probability sufficient to undermine confidence in the 

outcome.” Id. We need not address both parts of the Strickland test 

if Sauder makes an insufficient showing on one. See Smith, 308 Ga. 

at 87.

(a) Sauder argues that his trial counsel was ineffective for 

failing to present evidence that he claims showed that Cunningham, 
47

McClure, or someone else could have killed Alexander. Specifically,

at the hearing on his motion for new trial, Sauder introduced GBI 

reports noting the following: McClure’s wife told investigators that 

at some point, Sauder and McClure walked away from the farm and 

returned a couple of hours later with coins and “antique 

‘knickknacks,’” McClure admitted to her that he went with Sauder 

to Alexander’s property but said he did not go inside the home, and 

an unidentified man told her that he went to Alexander’s home with 

Sauder and saw Alexander’s dead body; Cunningham initially told 

investigators that the .22-caliber semiautomatic rifle (the murder 

weapon) belonged to him; McClure’s phone communicated with 

Cunningham’s phone several times and was near the farm and 

Alexander’s home on the night of August 9; investigators considered 

McClure a suspect and had evidence that he was a gang member; 

McClure warned his wife not to speak to investigators without a 

lawyer; Cunningham threatened Holland after she spoke with 

investigators, accusing her of “trying to get him locked up”; and DNA 

testing on a hammer found near Alexander’s body contained DNA 
48

profiles from Alexander and an unidentified person, and Sauder, 

Davis, Cunningham, and McClure were excluded as contributors.

Sauder has failed to establish that counsel’s decision not to 

present any of this evidence was so unreasonable that no competent 

lawyer would have made it under the circumstances. To begin, some 

of the evidence Sauder points to—including the evidence that 

Sauder and McClure had coins and “knickknacks,” that McClure 

admitted he accompanied Sauder to Alexander’s home, and that an 

unidentified man also went with Sauder to the home and saw 

Alexander’s body—would have suggested to the jury that Sauder

was guilty, at least as a party to the crimes. Counsel was not 

deficient for deciding not to introduce this potentially inculpatory 

evidence. See, e.g., Smith, 308 Ga. at 91 n.10 (explaining that trial 

counsel’s strategy to avoid the introduction of potentially 

inculpatory evidence was reasonable and rejecting the appellant’s 

ineffective assistance claim).

As for the evidence Sauder claims would have indicated that 

Cunningham or McClure committed the crimes, counsel testified at 
49

the motion for new trial hearing that his theory of defense was that 

the State had not established who killed Alexander or shown 

“beyond a reasonable doubt that it was . . . Sauder” and that he did 

not want to “point[] the finger” at any other particular person, 

because that would “run[] the risk of the jury saying no, we’re pretty 

convinced that person didn’t have anything to do with it.” Counsel 

also testified that he believed there was not enough evidence for him 

to be able to blame someone else, and that it was better to argue that 

the State had not proved beyond a reasonable doubt that Sauder was 

a principal or a party to the crimes, which was “not an uncommon 

strategy of [] defense, depending on the quality of the evidence.” In 

support of that defense theory, trial counsel asserted during his 

closing argument that the “big hole” in the State’s case was that no 

one knew what happened when Alexander was murdered; there 

were inconsistencies in the State’s evidence; and the State had not 

sufficiently explained how certain evidence proved Sauder’s guilt. 

Counsel’s decision to argue that the State failed to prove beyond a 

reasonable doubt that Sauder participated in the killing—rather 
50

than presenting specific evidence that might have suggested that 

Cunningham or McClure participated in the crimes but would not 

have suggested that Sauder was not also a participant—was 

objectively reasonable given the circumstances. See Kidwell v. 

State, 264 Ga. 427, 432 (444 SE2d 789) (1994) (holding that the 

appellant’s trial counsel was not deficient for failing to investigate 

evidence of other crimes committed by his co-indictees, because his 

defense theory was that the appellant was not involved in the 

charged crimes and had no knowledge of any other crimes). See also 

Lee v. State, Case No. S23A1034, 2024 WL 424570, at *8 (decided 

Feb. 6, 2024) (“‘An attorney’s decision about which defense to 

present is a question of trial strategy, and trial strategy, if 

reasonable, does not constitute ineffective assistance of counsel.’”) 

(citation omitted).

Finally, counsel’s decision not to introduce evidence showing 

that the hammer contained DNA profiles from Alexander and an 

unidentified person was not unreasonable, particularly because

there was no evidence connecting the hammer to Alexander’s 
51

shooting death. Evidence that an unidentified person may have 

come into contact with a hammer in Alexander’s home at some 

unknown point would not have raised a reasonable inference of 

Sauder’s innocence and would not have directly connected the 

unidentified person to the crimes. See Payne v. State, 314 Ga. 322, 

333 (877 SE2d 202) (2022) (explaining that “‘[t]his Court has 

followed the general rule that, before testimony can be introduced 

that another person committed the charged crime, the proffered 

evidence must raise a reasonable inference of the defendant’s 

innocence and, in the absence of a showing that the other person 

recently committed a crime of the same or a similar nature, must 

directly connect the other person with the corpus delicti,’” and

holding that trial counsel did not perform deficiently by failing to 

present evidence that another person’s DNA was found on a beer 

bottle at the crime scene, because the evidence that the person may 

have been at the crime scene at some unknown point did not raise a 

reasonable inference of the appellant’s innocence) (citation omitted).

Because Sauder has not shown that his trial counsel performed 
52

deficiently by deciding not to introduce the evidence detailed above, 

he cannot establish that counsel was ineffective in this respect.

(b) Sauder claims that his trial counsel was ineffective for 

failing to “take basic steps necessary to reveal the deal between the 

State and [McClure].” But as discussed above in relation to Sauder’s 

Brady claim, he has not established a reasonable probability that 

the outcome of his trial would have been different if the State had 

disclosed information about an alleged deal with McClure. Thus, 

even if his trial counsel performed deficiently by failing to obtain 

evidence about a deal, Sauder cannot prove prejudice under 

Strickland. See, e.g., Harris, 309 Ga. at 607 (holding that because 

the appellant could not establish the materiality element of his 

Brady claim, he also could not prove prejudice for his related 

ineffective assistance of counsel claim); Thomas, 311 Ga. at 417

(explaining that Brady’s materiality requirement mirrors the test 

for determining prejudice in an ineffective assistance claim).

(c) Sauder contends that his trial counsel provided ineffective 

assistance by failing to cross-examine McClure about the fact that 
53

although he was sentenced for voluntary manslaughter in an 

unrelated case, he had been charged with malice murder in that 

case. It appears that Sauder argues that counsel should have 

questioned McClure about the malice-murder charge in an effort to 

elicit testimony that would contradict his earlier testimony about 

the circumstances underlying his conviction, the seriousness of 

which Sauder claims was “minimized.” Sauder points to McClure’s 

testimony on direct examination that in the other case, he was “slapboxing” with the victim; they then engaged in “an actual fist fight”; 

McClure’s wife tried to intervene and the victim slapped her; the 

victim pulled out a knife and stabbed McClure three times; and 

McClure stabbed him once, killing him. 

We conclude that evidence that McClure was initially charged 

with malice murder in that case would have had little, if any, 

probative value to contradict his testimony about the facts related 

to the knife fight or to disprove his claim that he was acting in selfdefense. See, e.g., Olds v. State, 299 Ga. 65, 75 (786 SE2d 633) (2016)

(explaining that “the greater the tendency to make the existence of 
54

a fact more or less probable, the greater the probative value”). Nor 

would evidence of the malice-murder charge have been probative to 

show McClure’s bias in testifying for the State. McClure was 

indicted for malice murder in the other case in 2008 and agreed to 

plead guilty to voluntary manslaughter in 2009—more than seven 

years before the crimes at issue in this case occurred and nearly 10

years before Sauder’s trial—so the malice-murder charge was no 

longer pending and had been resolved for several years when 

McClure testified in this case. Moreover, McClure testified about 

his conviction for voluntary manslaughter and that he was still 

serving a probated sentence for that crime—and we have already 

addressed Sauder’s claim that McClure made a deal with the State 

for lenient treatment in his probation revocation matter.

Accordingly, we cannot say that trial counsel performed 

deficiently by not asking McClure about the malice-murder charge

in the other case, because it was not probative to contradict his 

testimony about the underlying facts of the crime in that case or to 

show his bias in testifying. See, e.g., Moore v. State, 315 Ga. 263, 
55

269 (882 SE2d 227) (2022) (explaining that “[t]he scope of an 

attorney’s cross-examination is ‘grounded in trial tactics and 

strategy, and will rarely constitute ineffective assistance of 

counsel,’” and holding that trial counsel did not perform deficiently 

by failing to cross-examine witnesses about the sentences they faced 

on charges that were pending at the time of trial, because the 

evidence showed that the witnesses had not received any benefit as 

to those charges in exchange for their testimony) (citation omitted).

(d) Sauder claims that trial counsel was ineffective for failing 

to request jury instructions on circumstantial evidence, mere 

presence, and knowledge. As discussed above with respect to 

Sauder’s claims that the trial court plainly erred by allegedly 

omitting these instructions, the court properly instructed the jury 

on the substance of OCGA § 24-14-6 (the circumstantial evidence 

statute), and other instructions in the jury charge adequately 

covered the concepts of mere presence and knowledge. Thus, 

counsel did not perform deficiently in this regard. See, e.g., Kimbro 

v. State, 317 Ga. 442, 456 (893 SE2d 678) (2023) (concluding that 
56

trial counsel was not deficient for failing to object to the omission of 

a jury instruction on mere presence, because the trial court 

instructed the jury on the presumption of innocence, the State’s 

burden to prove beyond a reasonable doubt each essential element 

of the charged crimes, circumstantial evidence, and criminal intent);

Downey v. State, 298 Ga. 568, 574 (783 SE2d 622) (2016) (holding 

that trial counsel did not perform deficiently by failing to object to 

the omission of a jury instruction on knowledge, because other 

instructions sufficiently covered that concept); Pruitt v. State, 282 

Ga. 30, 34 (644 SE2d 837) (2007) (explaining that trial counsel’s 

failure to object to jury instructions that were “correct statements of 

the law” was not deficient performance).20

20 Sauder also briefly asserts that trial counsel was ineffective for failing 

to expressly mention to the jury the concepts of circumstantial evidence, mere 

presence, and knowledge with respect to the August 9 or 10 crimes, and that 

counsel should have pursued a defense of mere presence as to those crimes. 

But trial counsel essentially pointed to the circumstantial nature of the 

evidence as to the August 9 or 10 crimes during his closing argument and 

repeatedly asserted that the State failed to prove Sauder’s guilt beyond a 

reasonable doubt, which was not a patently unreasonable strategy under the 

circumstances. Thus, Sauder cannot prove that his counsel performed 

deficiently in this way, either. See Davenport v. State, 283 Ga. 171, 175 (656 

SE2d 844) (2008) (explaining that defense counsel “is given wide latitude in 
57

(e) Sauder argues that trial counsel was ineffective for failing 

to request an accomplice-corroboration instruction as to the August 

9 or 10 crimes. Even assuming that counsel performed deficiently, 

Sauder cannot establish prejudice for the same reasons discussed 

above with respect to his related plain-error claim. See Payne, 314 

Ga. at 329 (explaining that “‘[t]his Court has equated the prejudice 

step of the plain error standard with the prejudice prong for an 

ineffective assistance of counsel claim’”) (citation omitted). 

(f) Sauder claims that his trial counsel was ineffective for 

failing to object or move for a mistrial when the prosecutor made 

statements that, he claims, misled the jury about the law of parties 

to a crime. We disagree.

By way of background, the State’s theory of the case at trial 

was that Sauder shot Alexander, but the prosecutor also argued in 

closing that even if the evidence indicated that Sauder and “a buddy” 

making closing arguments” and that trial counsel is not ineffective “simply 

because another attorney might have used different language or placed a 

different emphasis on the evidence”) (citation and punctuation omitted). See 

also Lee, 2024 WL 424570, at *8.
58

perpetrated the shooting, the jury would be authorized to find 

Sauder guilty as a party to the crimes. The prosecutor said, among 

other things, that party-to-a-crime liability “means if you were 

intentionally helping in a crime, then you’re part of the whole thing”; 

that Sauder admitted that he “was present” when Alexander was 

shot; and that Sauder may have “provided” the murder weapon to 

the shooter. Sauder now argues that these statements improperly 

implied that the jury would be authorized to find him guilty as a 

party to all of the charged crimes even if he committed only some of 

them and even if he was merely present at the crime scene. 

The prosecutor’s statements, taken in context, did not 

misrepresent the law. Under OCGA § 16-2-20 (b) (3), a person is a 

party to a crime if he “[i]ntentionally aids or abets in the commission 

of the crime.” The prosecutor’s explanation that a person is a party 

if he was “intentionally helping in a crime” essentially conveyed that 

point. And a reasonable juror likely would have understood the 

prosecutor’s following reference to being “part of the whole thing” as 

an assertion that someone who intentionally helps commit a crime 
59

is part of that particular crime, because immediately before and 

after that statement, the prosecutor’s arguments focused only on

party-to-a-crime liability regarding the murder.

In addition, by mentioning Sauder’s presence at the crime 

scene and his potentially providing the murder weapon to the 

shooter, the prosecutor pointed to reasonable inferences from the 

evidence supporting Sauder’s involvement in the murder. Indeed, 

the prosecutor also argued that the evidence showed that the .22-

caliber semiautomatic rifle was the murder weapon, that Sauder 

purchased it, and that he had it with him in the days surrounding 

the shooting. See, e.g., Howard, 2024 WL 1160574, at *3 (explaining 

that “a jury may infer a defendant’s criminal intent, and thereby 

find him guilty as a party to a crime, ‘from his presence, 

companionship, and conduct before, during, and after the offense’”) 

(citation omitted). The prosecutor did not argue that the jury would 

be authorized to find that Sauder was a party to the crimes even if 

he lacked the requisite criminal intent to commit them. Moreover, 

the prosecutor told the jurors that the trial court would instruct 
60

them on the law of parties to a crime, and during the final charge, 

the trial court accurately instructed on that legal concept and 

criminal intent. The court also advised the jury that the lawyers’ 

closing arguments were not evidence. 

Because the prosecutor’s statements, viewed in the context of 

his argument as a whole, were not improper, Sauder’s trial counsel 

did not perform deficiently by not objecting to them or moving for a 

mistrial on that basis. See Faulkner v. State, 295 Ga. 321, 326-327

(758 SE2d 817) (2014) (holding that trial counsel was not deficient 

for failing to object to the prosecutor’s statement that the jury could 

find the appellant guilty as a party to the crimes “because he aided 

or abetted the commission of those crimes when he helped the 

shooter move [the victim], rob him, and get away,” as that statement 

was not legally improper, and noting that even if an objection might 

have had some merit, a reasonable lawyer could have decided to rely 

on the trial court’s charge on parties to a crime, rather than make 

an objection of questionable merit). See also Lee, 317 Ga. at 887 

(explaining that this Court considers closing arguments in context;
61

prosecutors are granted “‘wide latitude’” in closing argument and 

may “‘argue reasonable inferences from the evidence’”; and 

“‘[w]hether to object to a particular part of a prosecutor’s closing 

argument is a tactical decision, and counsel’s decision not to make 

an objection must be patently unreasonable to rise to the level of 

deficient performance’”) (citations omitted).21

8. Sauder contends that the combined prejudicial effect of the 

21 Sauder also baldly asserts in his brief that his trial counsel was 

ineffective because he “failed to make the adversarial testing process work at 

trial,” failed “to formulate or articulate a theory of defense,” failed “to make an 

effective opening statement,” failed “to cross-examine the State’s witnesses 

effectively,” failed “to point out weaknesses in the State’s evidence,” failed 

“to present available evidence which would have raised doubt concerning 

[Sauder’s] guilt,” failed “to object to inadmissible evidence offered by the State,”

failed “to object to improper statements made by the [prosecutor] in closing 

argument,” failed “to request jury instructions to support the theory of defense 

obviously presented by the evidence,” failed to object “to incorrect or incomplete 

jury instructions,” failed “to articulate the obvious defense presented by the 

evidence (mere presence at the scene of a crime),” and failed “to make an 

effective closing argument.” To the extent Sauder has not identified specific 

instances of these alleged deficiencies, he has not carried his burden of showing 

that his lawyer performed deficiently. See, e.g., Wallace v. State, 296 Ga. 388, 

392 (768 SE2d 480) (2015) (holding that the appellant had not shown that his 

trial counsel performed deficiently by failing to file a motion to suppress 

identification evidence, because he did not specify which witnesses gave 

objectionable testimony or why it was inadmissible and explaining that “‘[i]t is 

not this Court’s job to cull the record on behalf of the [appellant] to find alleged 

errors’”) (citation omitted). And in any event, Sauder makes no specific 

argument and cites no authority to support any of these claims, so we do not 

address them. See Former Supreme Court Rule 22; Sinkfield v. State, Case 

No. S23A1201, 2024 WL 922867, at *11 n.11 (decided Mar. 5, 2024).
62

errors and deficiencies he alleges entitles him to a new trial. See 

State v. Lane, 308 Ga. 10, 17 (838 SE2d 808) (2020). As discussed 

above, we have assumed (without deciding) that the trial court 

committed a clear and obvious error by failing to give an accomplicecorroboration instruction as to the August 9 or 10 crimes; that

counsel performed deficiently by failing to request such an 

instruction; that the State suppressed evidence of deals with Davis 

and McClure; and that counsel was deficient for failing to discover 

McClure’s deal. Even assuming that the alleged instructional error 

and alleged suppression under Brady are the sorts of errors that 

could be assessed cumulatively—an issue we need not decide here—

Sauder has not established a reasonable probability that these 

assumed defects and deficiencies, taken together, affected the 

outcome of his trial. 

As we have explained, an accomplice-corroboration instruction 

probably would not have altered the jury’s verdicts as to the crimes 

on August 9 or 10, because Cunningham’s and McClure’s testimony 

was amply corroborated by other, independent evidence. The jury 
63

learned that Davis had a substantial deal with the State and that 

he had given investigators a statement that was consistent with his 

testimony long before any deal had arisen, so additional evidence 

about the deal likely would not have swayed the jury. And although 

evidence of an alleged deal between the State and McClure may 

have helped Sauder discredit McClure, his testimony was 

cumulative of other evidence and thus was not critical to prove 

Sauder’s guilt or to corroborate Cunningham’s account of the August 

9 or 10 crimes. In sum, it is not reasonably probable that the 

minimal prejudice from these assumed defects and deficiencies, even 

if viewed together, affected the outcome of Sauder’s trial, 

particularly in light of the other significant evidence of his guilt. 

See, e.g., Hood, 311 Ga. at 867-868 (assuming without deciding that 

the alleged suppression of a deal between a witness and the State

under Brady and the trial court’s alleged clear error in failing to give 

a confession-corroboration instruction should be assessed together 

under Lane and concluding that the appellant had not established 

cumulative prejudice, “[g]iven the quantum and strength of the 
64

evidence, independent of [the witness’s] testimony and corroborative 

of any single confession [the appellant] made”).

9. Finally, although Sauder does not raise the issue, we have 

noticed a merger error with respect to his sentencing. The jury 

found Sauder guilty of two counts of possession of a firearm during 

the commission of a felony (based on aggravated assault and 

burglary) on August 4, and three counts of possession of a firearm 

during the commission of a felony (based on malice murder, 

aggravated assault, and burglary) on August 9 or 10. The trial court 

sentenced him to serve five consecutive years in prison each for four 

of the firearm-possession counts (based on burglary on August 4 and 

malice murder, aggravated assault, and burglary on August 9 or 10)

and merged the firearm-possession count based on aggravated 

assault on August 4. The court erred by sentencing Sauder on the 

firearm-possession count based on aggravated assault on August 9 

or 10.

Under OCGA § 16-11-106 (b) (1) and (2), a person commits the 

crime of possession of a firearm during the commission of a felony if 
65

he has “on or within arm’s reach of his . . . person a firearm . . . 

during the commission of” certain felonies, including “[a]ny crime 

against or involving the person of another” or “[t]he unlawful entry 

into a building or vehicle.” And as to sentencing, we have explained

that “where multiple crimes are committed together during the 

course of one continuous crime spree, a defendant may be convicted 

once for possession of a firearm during the commission of a crime as 

to every individual victim of the crime spree, as provided under

OCGA § 16-11-106 (b) (1), and additionally once for firearm 

possession for every crime enumerated in subsections (b) (2) through 

(5).” State v. Marlowe, 277 Ga. 383, 386 (589 SE2d 69) (2003). As to 

the crime spree on August 9 or 10, the trial court should have 

sentenced Sauder for only one of the firearm-possession counts 

related to Alexander (as well as the count related to burglary), so 

the court erred by failing to merge the firearm-possession count 

based on aggravated assault into Sauder’s conviction for firearmpossession based on malice murder. We therefore vacate Sauder’s 

conviction and sentence for possession of a firearm during the 
66

commission of the felony of aggravated assault. See, e.g., Welch, 309 

Ga. at 880-881 (vacating the appellant’s conviction and sentence for 

possession of a firearm during the commission of the felony of 

aggravated assault of the victim, because it should have merged into 

his conviction for firearm-possession based on the malice murder of 

the victim).22 

Judgment affirmed in part and vacated in part. All the Justices 

concur.

22 We note that the trial court also erred by merging the firearmpossession count based on aggravated assault on August 4. But that error 

benefited Sauder; the State has not raised it by cross-appeal; and we see no 

exceptional circumstances that would warrant the exercise of our discretion to 

correct it. See Dixon v. State, 302 Ga. 691, 696-698 (808 SE2d 696) (2017) 

(explaining that even when no party raises a merger error, we have discretion 

to correct it on direct appeal, but when the error benefits the defendant and 

the State fails to raise it by cross-appeal, we exercise our discretion to correct 

the error only in exceptional circumstances).