In the Supreme Court of Georgia
Decided: July 5, 2016
S16A0377. MYERS v. THE STATE.
BENHAM, Justice.
Appellant Dwayne Tavares Myers appeals his convictions for the felony
murder of Edward Davidson and related crimes he committed with his
confederates Justin Baughns and Anthony Fuller.1 We affirm for the reasons
set forth below.
1
The crimes at issue occurred on November 24, 2012, November 26, 2012, and November 27,
2012. On March 5, 2013, an Athens-Clarke County grand jury indicted appellant, along with
Anthony Fuller and Justin Baughns, on charges of malice murder, felony murder (4 counts),
burglary in the first degree of Davidson, aggravated assault of Davidson, possession of a firearm
during the commission of a crime (2 counts), burglary in the first degree of Larry Fredericks,
burglary in the first degree of Katherine DeGiorgi, and possession of a firearm by a convicted
felon. Appellant was tried alone from August 4, 2014 to August 13, 2014, the jury finding him
guilty of all charges except for malice murder. On August 15, 2014, the trial court treated appellant
as a recidivist and sentenced him to life without parole on one count of felony murder (burglary of
Davidson) and consecutive or concurrent terms of years for the counts that were not merged or
vacated for sentencing purposes. On August 27, 2014, appellant filed a motion for new trial. The
trial court held a hearing on the motion on August 20, 2015 and denied the motion on August 21,
2015. Appellant filed a notice of appeal on August 31, 2015, and, upon receipt of the record, the
case was docketed to the January 2016 Term of this Court and submitted for a decision to be made
on the briefs.
1. Appellant contends the evidence was insufficient to convict him for a
burglary that took place at 502 Rust Wood Drive in Athens-Clarke County on
or about November 26, 2012.
(a) Viewing the evidence in a light most favorable to upholding the jury’s
verdicts, the evidence showed that late on November 26, 2012, and continuing
into the midnight hour of November 27, 2012, three men entered the home of
Charlotte and Edward Davidson located at 400 Jefferson River Road in
Athens-Clarke County. During the incident, Charlotte hid in her bedroom, but
her husband Edward confronted the intruders and was shot. Edward went into
cardiac arrest on the way to the hospital and died of five gunshot wounds.
When police first arrived at the home, Edward was found clutching a kitchen
knife and a tire iron in his hands. Fuller’s blood DNA was later determined to
be on the knife and on the tire iron. The door leading from the Davidsons’
garage to their kitchen had been kicked in and there were pry marks on the
door consistent with the tire iron. Because authorities initially could not find
any leads as to who would want to harm the victim, they concluded that the
murder was a burglary “gone wrong” and began looking into unsolved
burglaries in the area over a time span of about a month and a half leading up
to the murder, as well as canvassing the neighborhood for information.
2
In the course of their investigation, the police determined that during a
two-week period in November 2012, appellant and his cohorts Fuller, who was
a juvenile at the time, and Baughns participated in a series of at least eleven
burglaries in Athens-Clarke County. The perpetrators would go out at night,
kick in and/or pry open the doors and/or windows of residences, and steal items
such as flat screen televisions, gaming systems, and other items that could be
sold easily for cash at a pawn shop. The evidence showed that Baughns would
typically drive Fuller and/or appellant to residences within a few miles’ radius
of where the Davidson murder took place and where Myers and Fuller lived;2
Fuller3 and/or appellant would break into the houses and steal the items; and
Baughns would later sell the stolen items at a local pawn shop.4
In addition to the Davidson murder, Appellant was linked directly to at
least two of the ten remaining burglaries.5 The first occurred in the early
morning hours of November 24, 2012, when a man kicked in the door of
2
Appellant and Fuller lived across the street from each other on Lavender Road in Athens-Clarke
County. Neither Appellant nor Fuller had a driver’s license or a vehicle.
3
Fuller’s fingerprints were found at many of the burgled homes.
4
A civilian analyst for the Athens Clarke-County police department testified that he searched a
database of pawn shop transactions and determined that Baughns made at least eight pawn shop
transactions between November 13, 2012 and November 24, 2012.
5
These are the two burglaries for which appellant was indicted and convicted in addition to the
Davidson murder. Appellant was not indicted for any other burglaries connected in the crime
spree.
3
Katherine DeGiorgi’s home at 263 Arch Street in Athens-Clarke County and
entered her bedroom, but fled when she discovered him. A surveillance camera
recorded the man breaking into the residence and his flight from the scene by
entering a car driven by someone else. Authorities eventually determined that
the man in the surveillance tape was appellant and the car he entered appeared
to be the 1995 Geo Prizm owned by Baughns.
At about 6:30 a.m. on November 27, 2012, Larry Fredericks, who lived
at 502 Rust Wood Drive, came home from work6 to find his front and back
doors open and his front porch light broken. The front door had been kicked
in and had pry marks on it as if someone had tried to open it with a flat tool.
Fredericks discovered that several items were missing, including a flat screen
television, a motorcycle helmet, and a Kal-Tec .32 handgun with six rounds of
ammunition. As to the hand gun, Fredericks advised the authorities that he had
used it for target practice and was able to direct them to the area where he
would practice. The authorities were able to recover a projectile from the target
practice area. The ballistics expert testified that the .32 projectile recovered
from the target practice area was fired from the same gun as the .32 projectiles
6
Fredericks had been at work since 6 p.m. the prior evening.
4
extracted from Edward Davidson’s body. The authorities were also able to lift
a shoe impression from the doors of the house. Although inconclusive, a
forensic expert testified the shoe impression taken from the scene featured the
same pattern as the shoes appellant was wearing when arrested.
About two weeks after these incidents, an officer stopped appellant on
the street because the officer believed appellant looked like the person on the
video of the burglary at 263 Arch Street.7 In December 2012, appellant was
arrested for the Arch Street robbery.8
Authorities also received information about appellant’s involvement in
the Davidson murder from two witnesses who came forward during the
investigation of the Davidson murder. Marco Ellison, who knew appellant
from a previous stay in jail and who also knew Baughns, told authorities and
testified at trial that, sometime after the Davidson shooting, appellant had
attempted to sell him the .32 caliber gun allegedly used in that incident.9 Police
thereafter put a recording device on Ellison and had Ellison record a
7
Authorities had shared the video with several police officers in hopes that the perpetrator seen
therein would eventually be identified.
8
Fuller and Baughns were arrested before appellant on charges other than the Davidson murder.
Eventually all three of them were charged with the Davidson murder while in custody.
9
Ellison also told police that he refused to buy the gun and that he was mad that appellant was
trying to sell him a “dirty” gun.
5
conversation with appellant. In the recorded conversation, appellant told
Ellison that Baughns had been driving on the night of the Davidson murder,
that appellant was supposed to be the lookout during the burglary, that a
“young dude” (Fuller) had done the shooting, that the group intended to steal
flat screen televisions, and that appellant disposed of the gun.10 Maurice
Mitchell, who was appellant’s cellmate after appellant’s arrest, testified that
appellant told him a similar story about the Davidson burglary, but appellant
added more detail including admitting that he had kicked in the door of the
Davidson residence, confirming that the victim had a knife, confirming that the
victim struggled with the “juvenile” (Fuller) prior to the shooting, confirming
that the weapon used was a .32 caliber gun, and admitting that he had thrown
the gun away in “some water.” At the time Mitchell came forward with this
information, the police had not released any information to the public about
the knife or what caliber handgun was used in the shooting.
(b) Based on the evidence summarized above, a juror could find beyond
a reasonable doubt that appellant participated in the burglary at 502 Rust Wood
Drive. See Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560)
10
Ellison testified appellant initially told him he had sold the gun, but then also told him he had
thrown the gun away.
6
(1979). Specifically, Appellant made admissions linking himself to the
Davidson murder which transpired shortly after the 502 Rust Wood Drive
burglary. The evidence showed the gun used to kill Davidson was the same
gun stolen from 502 Rust Wood Drive and was the same gun appellant
admittedly threw away. The pattern on the soles of the shoes appellant was
wearing at the time he was arrested was consistent with the shoe impression
authorities collected from a door that was kicked in at 502 Rust Wood Drive.
Also, a few days before the burglary at 502 Rust Wood Drive and the murder
at 400 Jefferson River Road, appellant was seen on video kicking in the door
at 263 Arch Street and entering the home without permission. Appellant’s
actions during the Arch Street burglary were consistent with the modus
operandi of the burglary at 502 Rust Wood Drive, as well as the physical
evidence at that location (i.e., the shoe impression matching appellant’s shoes).
Appellant also admitted to kicking in the door at the Davidson residence.
Based on this evidence, a factfinder could reasonably conclude that appellant
participated in the burglary at 502 Rust Wood Drive. As such, appellant’s
enumeration of error challenging the sufficiency of the evidence as to this
burglary is without merit.
7
(c) The evidence was otherwise sufficient to convict appellant of the
crimes for which he was charged. Id.
2. Appellant alleges the trial court erred when it gave a charge on
conspiracy over his objection.11 According to appellant, there was no evidence
that he was ever part of a conspiracy with Baughns and Fuller; however, the
evidence summarized herein at Division 1 (a), supra, belies this assertion. The
State introduced ample evidence that appellant was involved in a conspiracy
to burgle homes in Athens-Clarke County. Some of this evidence included
evidence of burglaries for which appellant was not indicted.12 The cumulative
evidence showed that appellant, Baughns, and Fuller robbed houses for a
period of two weeks in November 2012. The robberies followed a “common
design” wherein Baughns served as the driver and sold the stolen items, while
appellant and/or Fuller did the breaking and entering and stole the items. See
Grissom v. State, 296 Ga. 406 (1) (768 SE2d 494) (2015) (“‘Conduct which
discloses a common design, even without proof of an express agreement
between the parties, may establish a conspiracy. [Cit.]’”). The burglaries
11
The issue regarding the charge on conspiracy was properly preserved for appellate review.
12
Although appellant objected at trial to the admissibility of evidence of the unindicted burglaries,
he does not challenge the admissibility of this evidence on appeal.
8
shared common characteristics—they occurred at night, the doors or windows
of the homes were typically kicked in and/or pried open with a flat tool much
like the tire iron found at the Davidson residence, the front lights were broken
to thwart detection, and the items stolen were primarily flat screen televisions
and other items that could be easily sold for cash at a pawn shop. The fact that
appellant was not indicted for conspiracy did not preclude giving a charge on
conspiracy. Holmes v. State, 272 Ga. 517 (6) (529 SE2d 879) (2000) (“It is
not error to charge on the subject of conspiracy when the evidence tends to
show a conspiracy, even if a conspiracy is not alleged in the indictment.”).
Evidence of an unindicted conspiracy need only be slight to authorize a trial
court to give a conspiracy charge. See Pyatt v. State, __ Ga. __ (4) (784 SE2d
759) (2016). Also, appellant need not have participated in every burglary for
which his cohorts were indicted to be a part of the conspiracy. See McCleod
v. State, 297 Ga. 99 (1) (772 SE2d 641) (2015) (a co-conspirator is criminally
responsible for the collateral acts of the other co-conspirators that are a part of
the conspiracy); Hicks v. State, 295 Ga. 268 (1) (759 SE2d 509) (2014) (co-
conspirators are jointly responsible for any act done by any one of them in
keeping with the agreed common plan). Accordingly, the trial court did not
err when it instructed the jury on conspiracy because such charge was
9
authorized by the evidence. Holmes v. State, 272 Ga. at 519. See also Belsar
v. State, 276 Ga. 261 (2) (577 SE2d 569) (2003).
3. Finally, appellant complains the trial court erred when it gave a charge
on fingerprint evidence because the fingerprint evidence only concerned
appellant’s cohort Fuller. Since appellant failed to raise any objection to the
fingerprint charge in the trial court, the giving of the charge may only be
reviewed for plain error. See OCGA § 17-8-58 (b). Plain error review requires
this Court to “consider ‘whether the instruction was erroneous, whether it was
obviously so, and whether it likely affected the outcome of the
proceedings.’[Cit.]”). Givens v. State, 294 Ga. 264 (2) (751 SE2d 778) (2013).
Here, there is no contention that the fingerprint charge was erroneous. Rather,
appellant argues the charge misled or confused the jury because the fingerprint
evidence was unrelated to appellant and concerned burglaries for which
appellant was not indicted. We disagree that this charge was misleading or
created confusion. The fingerprint evidence placed Fuller at numerous
burglary scenes and was relevant to show the progression of law enforcement’s
investigation into the Davidson murder and the revelation that the incident was
not isolated, but rather was part of a larger conspiracy between Baughns,
Fuller, and appellant to commit burglaries in the surrounding community. As
10
such, the trial court was authorized to give the charge. There was no plain
error.
Judgment affirmed. All the Justices concur.
11