Dukes v. State ( 2021 )

In the Supreme Court of Georgia
Decided: May 17, 2021
S21A0399. DUKES v. THE STATE.
MELTON, Chief Justice.
Following a jury trial, Damarcus Antwan Dukes was convicted
of malice murder and related offenses in connection with crimes
committed against Demarius Denham, Dankevion Chatman, and
Uzamoake Moh. 1 On appeal, Dukes raises three claims of trial court
1 On March 1, 2019, a Fulton County grand jury indicted Dukes for: one
count of malice murder (Count 2 – Denham); three counts of felony murder
predicated on aggravated assault, possession of a firearm by a first offender
probationer, and participation in criminal street gang activity (Counts 3
through 5 – Denham); three counts of aggravated assault (Count 6 – Denham,
Count 7 – Chatman, Count 13 – Moh); one count of aggravated battery (Count
8 – Chatham); one count of hijacking a motor vehicle in the first degree (Count
11 – Moh); one count of armed robbery (Count 12 – Moh); three counts of
participating in criminal street gang activity (Counts 1, 5, and 10); and four
weapons charges (Counts 9 and 14 – possession of a firearm during the
commission of a crime, Counts 15 and 16 – possession of a firearm by a first
offender probationer).
At a jury trial from October 21 through 25, 2019, Dukes was found guilty
of malice murder (Count 2), two counts of felony murder (Counts 3 and 4), two
counts of aggravated assault (Counts 6 and 7), one count of aggravated battery
(Count 8), hijacking (Count 11), armed robbery (Count 12), and all four
error. For the reasons discussed below, we affirm in part, vacate in
part, and remand the case with direction.
1. Relevant to this appeal,2 the evidence presented at trial
shows that, on November 30, 2018, Tony Hudgens, one of Dukes’s
best friends, went to the apartment of a drug dealer known as “Bigs”
to buy some marijuana. Sometime thereafter, Dukes arrived; Bigs
sold Hudgens some marijuana and then told him to leave. As
weapons charges (Counts 9, 14, 15, and 16). The trial court directed a verdict
of acquittal for the aggravated assault of Moh (Count 13) and entered orders
of nolle prosequi for one count of felony murder (Count 5) and the three counts
of participating in criminal street gang activity (Counts 1, 5, and 10). Dukes
was sentenced to life in prison without parole for malice murder (Count 2), a
concurrent life sentence for armed robbery (Count 12), 20 years’ consecutive
for aggravated battery (Count 8), 5 years’ consecutive for possession of a
firearm during the commission of a crime (Count 9), 20 years’ consecutive for
hijacking (Count 11), and 5 years’ each for the last three weapon charges
(Counts 14, 15, and 16) to run consecutive, for a total of life without parole plus
60 years. All remaining counts were either merged for sentencing purposes or
vacated by operation of law.
Dukes filed a motion for new trial on October 29, 2019, which he
amended through new counsel on July 14, 2020. After a hearing, the trial court
denied the motion as amended on October 2, 2020. Dukes timely filed a notice
of appeal to this Court. The appeal was docketed to the term of Court
beginning in December 2020 and was submitted for a decision on the briefs.
2 Though this Court has ended its practice of routinely considering
sufficiency sua sponte in non-death penalty cases, see Davenport v. State, 309
Ga. 385, 391-392 (4) (846 SE2d 83) (2020), we summarize the evidence here to
assist with our harmless-error analyses below.
2
Hudgens left the apartment building, he saw a black Infiniti pull
into the parking lot. Inside that car were Moh and her boyfriend,
Curtis Derricott. Derricott got out of the car and went into one of
the apartments while Moh stayed behind. 3 Upon entering the
apartment, Derricott got into an altercation with three men, ending
with the men taking Derricott’s cell phone, shoes, and money and
then running out the back door. 4
Moh, who was still waiting in her car, looked up and saw Dukes
standing by her window with a gun by his side. Dukes told her, “Get
the f**k out of the car before I blast you.” Moh dropped her phone
and got out of the car. As she ran, she watched Dukes and three
other men get into her car and drive off. Just then, Derricott came
out of the building. Moh and Derricott borrowed a phone, called 911,
3 Derricott testified at trial that he told Moh they were going to the
apartment complex to purchase a used Xbox game console for Moh’s children.
However, Derricott was actually going to purchase marijuana.
4 There was evidence presented at trial that Bigs arranged the robbery
of Derricott, and that Derricott later told Denham and Chatman that he was
robbed by Bigs. However, at trial, Derricott testified that he was unable to
identify the men who had robbed him.
3
and headed to a nearby gas station to meet the police.
Hudgens, who had made his way to the breezeway of the
nearby Ashford Oaks apartment complex, saw the same black
Infiniti enter the parking lot and back into a spot. Hudgens saw
Dukes step out of the car with three other men5; the group emptied
the car of its contents and then began selling the stolen items. At
one point, Denham and Chatman, who knew Dukes, approached the
group because Denham wanted to buy a toy car for his son.
Chatman gave Denham a $100 bill, told Denham to go to a nearby
gas station to purchase some drinks and cigarettes, and then return
with the change to buy the toy.
When Denham arrived at the gas station, Derricott and Moh
were speaking with the police. Derricott saw Denham, who was a
family friend, and told him that he had just been robbed. Denham
asked if Moh had an Infiniti because someone “just hit for an
Infiniti,” to which Derricott replied “yes.” Moh stayed with officers
5 Dukes later admitted to Hudgens that he had participated in the
carjacking.
4
at the gas station while Denham drove Derricott to the Ashford Oaks
apartment complex. After Derricott identified Moh’s car, Denham
drove Derricott back to the gas station and told Derricott that he
would get back all of Derricott’s belongings.
Denham called Chatman and told him that Derricott had been
robbed, and that the Infiniti parked at Ashford Oaks belonged to his
friends. When Denham returned to Ashford Oaks, he and Chatman
confronted Dukes about the robbery. Though Chatman remained
calm, Denham became passionate during the discussion. When the
verbal exchange between Denham and Dukes turned heated, Dukes
brandished a gun and shot Denham. As Chatman attempted to move
Denham away from the gunfire, Chatman was shot in the shoulder.
Denham suffered five gunshot wounds to the torso and died at the
scene. Chatman was shot multiple times, but was able to escape
from the shooting before collapsing at a friend’s nearby apartment.
At trial, a stipulation was read to the jury that Dukes was on
first offender probation at the time of the November 2018 crimes.
Dukes took the stand and testified that Denham became aggressive
5
during their confrontation and eventually reached for a gun. He
testified that he shot Denham in self-defense and also admitted
shooting Chatman, but claimed it was an accident. Jerrod Williams
was called as a witness for the defense and testified that, when
Denham arrived in the breezeway, he was “already on whatever he
was on. He was already tripping” and was acting like “he was fittin’
to do something to us.” Both Williams and Hudgens testified that,
during the pre-shooting confrontation, Denham left the argument
and returned with a gun on his waistband. However, no weapon was
found at the scene of the shooting.
2. Dukes alleges that the trial court abused its discretion by
allowing both Derricott and Hudgens to testify to inadmissible
hearsay. The State argues that Derricott’s testimony about a
hearsay statement by Moh was properly admitted as an excited
utterance, see OCGA § 24-8-803 (2), and that, though Chatman’s
statement was admitted in error through Hudgens’ testimony, that
error was harmless. We agree with the State.
a. Testimony of Derricott
6
The record shows, in pertinent part, that Moh testified about
the hijacking and robbery and identified Dukes as her assailant.
She explained that, immediately after the carjacking, she saw
Derricott and told him, “They stole my car.” Derricott testified after
Moh, and the following exchange occurred:
Prosecutor: What was [Moh] doing?
Derricott: Crying.
Prosecutor: Do you know why she was crying?
Derricott: Somebody just took her car.
Dukes: Objection to hearsay.
Prosecutor: Your Honor, the witness has already
testified.
Trial Court: Overruled. You can answer.
Derricott: Somebody had took the car from her.
Prosecutor: Did you actually see anybody take the car
from her?
Derricott: No.
Prosecutor: Where were you when that was
happening?
Derricott: Inside.
Dukes: Objection. Speculation.
Trial Court: Overruled.
Prosecutor: Let me ask you this, Mr. Derricott: when
you left – when you got out of the car and
went inside the apartment, was [Moh]
still in the car?
Derricott: Yes.
Prosecutor: Was the car still outside?
Derricott: Yes.
Prosecutor: After the altercation and you left the
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apartment, was the car still there?
Derricott: No.
Prosecutor: What did [Moh] tell you?
Derricott: Somebody took the car.
Dukes alleges that Derricott testified to inadmissible hearsay
regarding Moh’s statement about her car being stolen. We see no
error. “[A] trial court’s decision whether to admit or exclude
evidence will not be disturbed on appeal absent an abuse of
discretion.” (Citation omitted.). Lyons v. State, 309 Ga. 15, 21 (4)
(843 SE2d 825) (2020). Here, the record shows that Moh was still in
a state of excitement resulting from the robbery when she informed
Derricott that her car was stolen. And “whether a hearsay
statement was an excited utterance is determined by the totality of
the circumstances. . . . The critical inquiry is whether the declarant
is still in a state of excitement resulting from that event when the
declaration is made.” (Citations and punctuation omitted.) Atkins v.
State, ___ Ga. ___ (2) (850 SE2d 103) (2020). Moh was crying when
she told Derricott that her car had been stolen, and the statement
was made immediately after the event. See Blackmon v. State, 306
8
Ga. 90 (2) (829 SE2d 75) (2019) (victim’s statements made moments
after startling event fell under excited utterance exception).
Accordingly, the trial court did not abuse its discretion by admitting
Moh’s hearsay statement into evidence.
b. Testimony of Hudgens
Later in the State’s case-in-chief, Chatman was called as a
witness and testified concerning his initial discussion with Dukes
regarding the robbery of Derricott and Moh. Specifically, Chatman
testified, in pertinent part,
Prosecutor: You heard the name Bigs from [Dukes]?
Chatman: Yeah.
Prosecutor: How did that come about?
Chatman: When – can I say?
Prosecutor: Yeah.
Chatman: When I said y’all know y’all robbed my
folks, right, he went, for real, big bro. I’m
like yeah. . . . And then [Dukes] was like,
man, let me call this n***a Bigs right
quick. He pulled out his phone.
Prosecutor: So when you said you know y’all robbed
my folks –
Chatman: Right.
Prosecutor: - who were you saying that to?
Chatman: I was saying that to [Dukes] and Slim and
them.
Prosecutor: How did [Dukes] react when you said that
9
specific statement?
Chatman: He said, for real, big bro. Like for real, like
that.
Prosecutor: So after he said for real, what did he do
next?
Chatman: He pulled his phone out.
Prosecutor: Do you know who he called?
Chatman: Bigs.
Prosecutor: How do you know that?
Chatman: Because he said it on his phone.
Prosecutor: Do you know if [Dukes] ever actually
spoke to Bigs?
Chatman: It went to voicemail. He put it on speaker.
Prosecutor: So you could hear the voicemail?
Chatman: Yeah.
Prosecutor: After [Dukes] tried to call Bigs, how did
[Dukes] react to getting voicemail?
Chatman: He was just like – he was frustrated.
Called [Bigs] about five times. . . . He
called [Bigs] about five times back to back.
Chatman testified that, as Dukes was attempting to reach Bigs,
Denham was talking passionately to the group in the breezeway and
making a bit of a scene. Chatman explained that, when Dukes failed
to reach Bigs, he yelled, “[T]his is bulls**t,” which caused Denham
to respond, “[A]in’t nobody even talking to you.”
Hudgens was called as a witness after Chatman. During his
direct examination, Hudgens testified that, prior to the shooting,
10
Dukes said that Bigs had “triple-crossed” him regarding the robbery.
During this testimony, the following exchange occurred:
Prosecutor: And when you were at the apartment
complex, after you saw [Dukes] in the car,
did [Dukes] say anything about Bigs?
Hudgens: No.
Prosecutor: No?
Dukes: Objection to relevance, your Honor, and
hearsay. And it’s not related to this case.
Trial Court: Overruled.
Hudgens: But Bigs had a main part of everything,
how I see it. How I see it, he put
everything together
Prosecutor: Okay. Well, I’m just sticking with what –
Hudgens: Yeah. Yeah. Yeah.
Prosecutor: – with [Dukes] and what you heard
[Dukes] say. Okay? So did you ever hear
the word Bigs come out of [Chatman’s]
mouth?
Hudgens: Yeah.
Dukes: Objection to hearsay.
Prosecutor: Your honor, the witness has already
testified.
Hudgens: Yes, sir, I did.
The Court: Hold on. Overruled. He can answer.
Prosecutor: Did you ever hear the word Bigs come out
of [Chatman’s] mouth?
Hudgens: Yeah.
Prosecutor: After you heard the word “Bigs” come out
of [Chatman’s] mouth, what did [Dukes]
say?
Hudgens: [Dukes] didn’t say nothing. [Chatman]
said to me –
11
Dukes: Objection to what [Chatman] said.
Trial Court: Sustained. Ask a new question.
Prosecutor: Did [Dukes] mention anything about Bigs
triple[-]crossing him?
Hudges: Yes.
Dukes objected again, arguing that his statement about Bigs
triple-crossing him was inadmissible hearsay because it did not
qualify as a statement against self-interest. 6 The prosecutor
responded, in pertinent part:
So with respect to the statement made by [Dukes] as to
Bigs triple[-]crossing him, as Mr. Chatman has already
testified that [Dukes] was trying to get on the phone with
Bigs after [Chatman] said, you know, y’all robbed one of
my friends’ people, and the response from Mr. Dukes was,
oh, for real, let me get in touch with Bigs, Mr. Dukes
attempts to get in touch with Bigs five separate times.
And this supports Mr. Hudgens’ statements as to Bigs
triple[-]crossing him, supports and makes it more or less
– is more probative as to whether or not [Dukes] was
involved in the carjacking that took place with respect to
the incident that occurred prior to the homicide.
On appeal, Dukes alleges that Hudgens’ testimony that he
heard Chatman say Bigs’ name was inadmissible hearsay. We agree
with the State that any error in the admission of this testimony was
6Dukes does not challenge the trial court’s ruling on this objection; we
merely include it for context.
12
harmless. See Jackson v. State, 306 Ga. 69, 80 (2) (c) (829 SE2d 142)
(2019) (“[T]he test for determining nonconstitutional harmless error
is whether it is highly probable that the error did not contribute to
the verdict.” (Citation and punctuation omitted)). The record shows
that the testimony served a limited purpose – to further support the
State’s case regarding the carjacking. Moreover, the State’s case
against Dukes regarding the carjacking he committed against Moh
was strong. The evidence showed that Dukes was at Bigs’
apartment immediately prior to the carjacking. Two witnesses saw
Dukes driving the stolen black Infiniti, Moh positively identified
him as the assailant who held her at gunpoint and took her car, and
Dukes admitted to his best friend that he participated in the
carjacking. Finally, as shown above, Hudgens’ brief testimony that
he heard Chatman say Bigs’ name was cumulative of Chatman’s
prior testimony on the same subject, and the testimony was not
directly related to the shooting or to Dukes’ claims of self-defense
and accident. Accordingly, it is highly probable that Hudgens’
testimony did not contribute to the verdict. See Anglin v. State, 302
13
Ga. 333 (6) (806 SE2d 573) (2017).
3. Dukes alleges that the trial court erred by excluding
expert testimony from Dr. Michael Heninger, the Fulton County
medical examiner, about how amphetamines would have affected
Denham’s behavior prior to the shooting. We see no reversible error.
During its case-in-chief, the State called Dr. Heninger to testify
about Denham’s autopsy. During his direct examination, Dr.
Heninger testified that Denham had .11 milligrams of amphetamine
per liter in his blood at the time of his death. On cross-examination,
defense counsel asked Dr. Heninger to explain what amphetamines
were, to which Dr. Heninger testified that “[a]mphetamine is a
stimulant that was invented in World War II to keep pilots awake.
It was used quite a bit. It has a lot of toxic effects. One of its
derivatives is methamphetamine or meth, which is – .” The State
raised a relevance objection at this point, and defense counsel
responded, “The relevance is the condition of the victim at the time
that the event happened. It’s a self-defense case, your Honor.” The
State replied that Dr. Heninger was not qualified to give an expert
14
opinion on the effects of amphetamines on the body as he had only
been qualified as an expert in forensic pathology. The trial court
instructed Dukes to lay the foundation that Dr. Heninger was
qualified to testify as to the effect of amphetamines on a person
before going into that specific line of questioning.
Dukes then elicited testimony that Dr. Heninger was a medical
doctor, that he had taken courses in pharmacology, that he had
prescribed medications, and that he was aware of the effects of
amphetamines on a person’s “fight or flight” response. He testified
that the focus of his practice was to determine cause of death,
including when medications caused death. When asked what the
effect of amphetamines was on the body, Dr. Heninger responded,
“It’s a stimulant. It makes people not sleep. It makes – kind of raises
their heart rate, gets them ready to do fight or flight, that kind of
thing.” The State objected, again arguing that Dukes had still not
laid a proper foundation. Defense counsel responded,
He’s already testified to it. And that’s all I’m going to ask
him. I’m not going to ask him anything further,
particularly not with respect to this defendant because
15
he’s not qualified to testify to that, to this particular
defendant under these particular circumstances.
The trial court sustained the State’s objection, granted the State’s
motion to strike the last portion of the medical examiner’s
testimony, and instructed the jury to disregard Dr. Heninger’s last
statement.
On appeal, Dukes claims that the trial court erred by striking
the last portion of Dr. Heninger’s testimony and by prohibiting
counsel from further cross-examining the medical examiner about
the effects of amphetamines on a person. As an initial matter, the
portion of Dukes’ enumeration claiming trial court error for
prohibiting further cross-examination is not preserved for appellate
review. In response to the prosecutor’s last objection, Dukes
informed the trial court, “That’s all I’m going to ask him,” and
further acknowledged that Dr. Heninger was not qualified to give
any additional testimony on the topic. And, “[a]ffirmative waiver,
as opposed to mere forfeiture by failing to object, prevents reversal.”
Wallace v. State, 303 Ga. 34, 37 (2) (810 SE2d 93) (2018).
16
Accordingly, this portion of Dukes’ claim is not preserved for
appellate review.
Turning to the portion of Dukes’ claim concerning the trial
court’s striking of Dr. Heninger’s testimony that amphetamine is “a
stimulant. It makes people not sleep. It makes – kind of raises their
heart rate, gets them ready to do fight or flight, that kind of thing,”
any error in striking this testimony was harmless. Dr. Heninger
had previously testified to the stimulant effect of amphetamines on
a person’s system. Further, the medical examiner’s testimony was
cumulative of other, more specific evidence of Denham’s alleged pre-
shooting aggression. The record shows that the jury heard from
other witnesses, and from Dukes himself, that Denham: appeared to
be “tripping”; was volatile during the pre-shooting confrontation;
was passionate and making a scene prior to the shooting; and at one
point during the confrontation, left and returned with a handgun.
Finally, as defense counsel conceded, Dr. Heninger was “not
qualified to testify to that, to this particular defendant under these
particular circumstances,” and, instead, could only testify as to
17
generalities. Based on the foregoing, even if we were to assume that
the trial court erred in striking the last portion of Dr. Heninger’s
testimony, any alleged error was harmless. See Jackson, supra, 306
Ga. at 80.
4. Dukes alleges that the trial court erred by imposing
separate sentences for Counts 15 and 16 of his indictment. Count 15
charged Dukes,
with the offense of possession of a firearm by a first
offender probationer OCGA 16-11-131 (b), for the said
accused, in the County of Fulton and State of Georgia, on
the 30th day of November, 2018, sometime between the
hours of 7:00 p.m. and 7:35 p.m., did knowingly and
without lawful authority possess a certain firearm, to wit:
a handgun; accused having been sentenced pursuant to
Article 3 of Chapter 8 of Title 42 of the Official Code of
Georgia Annotated to a term of probation as a Felony
First Offender on March 18, 2014, by the Superior Court
of DeKalb County, Indictment Number 14CR1690 –
contrary to the laws of said State, the good order, peace
and dignity thereof.
Count 16 of the indictment charged Dukes,
with the offense of possession of a firearm by a first
offender probationer OCGA 16-11-131 (b), for the said
accused, in the County of Fulton and State of Georgia, on
the 30th day of November, 2018, sometime between the
hours of 6:00 p.m. and 6:35 p.m., did knowingly and
18
without lawful authority possess a certain firearm, to wit:
a handgun; accused having been sentenced pursuant to
Article 3 of Chapter 8 of Title 42 of the Official Code of
Georgia Annotated to a term of probation as a Felony
First Offender on March 18, 2014, by the Superior Court
of DeKalb County, Indictment Number 14CR1690 –
contrary to the laws of said State, the good order, peace
and dignity thereof.
Dukes contends that his sentences on these two counts should have
merged because the State failed to make the times of the handgun
possessions material averments in the indictment. Because of this,
Dukes argues that double jeopardy precluded the trial court from
sentencing him on both counts. We agree.
First, we must determine whether Dukes’ claim is one of
procedural or substantive double jeopardy. “Procedural protections
against double jeopardy apply only to multiple prosecutions,
meaning multiple or successive indictments or criminal proceedings.
. . . These procedural protections do not apply to a single indictment
that contains multiple counts, even if those counts are deemed
multiplicitous.” (Citation and punctuation omitted.) Williams v.
State, 307 Ga. 778, 780 (838 SE2d 235) (2020). By contrast, the
19
doctrine of substantive double jeopardy is triggered in situations
that involve multiple convictions and sentences, which is typically
addressed by this Court’s merger practice. See id. at 780-781.
Because this case clearly falls into the latter category, we turn to our
case law concerning substantive double jeopardy and merger.
As we explained in Scott v. State, 306 Ga. 507 (832 SE2d 426)
(2019):
“Merger” refers generally to situations in which a
defendant is prosecuted for and determined by trial or
plea to be guilty of multiple criminal charges but then, as
a matter of substantive double jeopardy law, can be
punished – convicted and sentenced – for only one of those
crimes. See generally OCGA § 16-1-7 (a); Drinkard, [281
Ga. 211, 212 (636 SE2d 530) (2006)]. Merger analysis
often involves counts charging two different crimes. As
this Court has made clear, that is the context in which
Drinkard’s “required evidence” test is applied. See Smith
v. State, 290 Ga. 768, 773 n.4 (723 SE2d 915) (2012)
(“[T]he ‘required evidence’ test [only applies] ‘where the
same act or transaction constitutes a violation of two
distinct statutory provisions[.]’” (emphasis in original)
(quoting Drinkard, 281 Ga. at 215 (636 SE2d 530) (2006)).
But merger questions may also arise when a defendant is
charged with multiple counts of the same crime . . . . In
this context, the merger analysis requires careful
interpretation of the criminal statute at issue to identify
the “‘unit of prosecution’” – “‘the precise act or conduct’”
20
that the legislature criminalized. Smith, 290 Ga. at 773(emphasis omitted) (quoting State v. Marlowe, 277 Ga.
383, 384 (589 SE2d 69) (2003)). See also Coates v. State,
304 Ga. 329, 330 (818 SE2d 622) (2018).
(Emphasis in original; footnote omitted.) Scott, 307 Ga. at 509 (2).
Here, Dukes was charged with multiple counts of the same crime –
i.e., possession of a firearm by a first offender probationer. And,
while this would normally trigger a “unit of prosecution” question,
we need not perform such an analysis here. Instead, we agree with
Dukes that the State’s failure to make the timeframe of the handgun
possessions material allegations within the indictment caused
Dukes to be improperly convicted and sentenced for the identical
crime twice.
Generally speaking, when proving the time an offense was
committed, the State is not “restricted to proof of the date alleged in
the indictment but is permitted to prove its commission on any date
within the statute of limitations.” (Citations and punctuation
omitted.) Ledesma v. State, 251 Ga. 885, 885 (1) (a) (311 SE2d 427)
(1984). “Where, however, the indictment specifically alleges the
21
date of the offense is material, the accused may be convicted only if
the State’s proof corresponds to the date alleged.” Id. See also Price
v. State, 247 Ga. 58, 59 n. 1 (273 SE2d 854) (1981) (“If the indictment
alleges the date of the offense to be material, the proof must
correspond to the date alleged and a res judicata plea does not lie as
to any other date. On the other hand, if the indictment does not
allege the date of the offense to be material, the defendant may be
convicted of the offense alleged in the indictment on any date within
the statute of limitations, and res judicata may be pleaded to any
other similar offense within such period.” (Citation omitted.)).
Indeed, “the state must prove all material allegations in an
indictment which describe the offense or the particular manner in
which the offense was committed.” (Citation omitted.) Griffin v.
State, 294 Ga. 325, 328 (751 SE2d 773) (2013).
Here, the State did not include language in the indictment to
make the times that Dukes possessed a handgun (between 6:00 p.m.
and 6:35 p.m. in Count 16, and between 7:00 p.m. and 7:35 p.m. in
Count 15) material allegations to be proven at trial. Furthermore,
22
the jury was not instructed that the specific times Dukes possessed
a handgun were material elements of the crimes that the State was
required to prove beyond a reasonable doubt. Consequently, the
State merely needed to prove that the two gun charges occurred
within the statute of limitations, 7 making Dukes’ gun charges
legally identical. And, because Dukes was charged with the exact
same crime twice, he could not then be convicted and sentenced for
both counts.
Based on the foregoing, we vacate Dukes’ convictions and
sentences for the two counts of possession of a firearm by a first
offender probationer and remand this case for the trial court to
convict and resentence Dukes on only one of these counts.
5. Finally, in a single sentence, and without any argument
or analysis, Dukes alleges that the combined trial court errors
alleged in Divisions 2 and 3, supra, denied him a fundamentally fair
7 OCGA § 16-11-131 (b) provides: “Any person who is on probation as a
felony first offender . . . and who receives, possesses, or transports any firearm
commits a felony[.]” The statute of limitations for a violation of OCGA § 16-
11-131 (b) is generally four years. See OCGA § 17-3-1 (c).
23
trial. However, we have repeatedly emphasized that, “in the
evidentiary context, a defendant who wishes to take advantage of
the [cumulative error rule] should explain to the reviewing court just
how he was prejudiced by the cumulative effect of multiple errors.”
State v. Lane, 308 Ga. 10, 18 (838 SE2d 808) (2020). Because Dukes
has failed to make anything other than a cursory statement that he
was denied a fundamentally fair trial, and because no such
cumulative prejudice is apparent to us on this record, this claim
fails.
Judgment affirmed in part and vacated in part, and case
remanded with direction. All the Justices concur.
24