FITTS v. THE STATE (Two Cases)

In the Supreme Court of Georgia

Decided: June 1, 2021

S21A0159. FITTS v. THE STATE.
S21A0160. FRANKLIN v. THE STATE.

BETHEL, Justice.

In these related appeals, Donovan Raishad Fitts and

Jermanique Vashon Franklin appeal their convictions for murder

and other crimes in connection with the shooting deaths of Tenecia

Posley and Barry Johnson.1 In Case No. S21A0159, Fitts asserts

1The crimes occurred on March 4, 2015. On January 26, 2017, a Warren
County grand jury indicted Fitts, Franklin, and Deaundre Ross for two counts
of malice murder, felony murder, burglary in the first degree, aggravated
assault, and possession of a firearm during the commission of a felony and one
count each of armed robbery, false imprisonment, and home invasion.
Following a six-day joint trial ending on August 28, 2017, Ross was
acquitted after he presented evidence that while the murders were being
committed, he was in another county for a court calendar call related to
another crime. However, the jury found Fitts guilty of all counts, and he was
sentenced to serve consecutive life sentences without parole for each count of
malice murder, another consecutive life sentence for armed robbery, ten years
in prison to be served consecutively for false imprisonment, another
consecutive life sentence for home invasion, and five years in prison to be
served consecutively for each possession count. The other counts were either
merged or vacated by operation of law. Fitts moved for new trial on September
6, 2017, and amended his motion on August 7, 2019. The trial court held a
that the trial court erred in admitting evidence of a subsequent

shooting incident as intrinsic evidence and as other-acts evidence

under OCGA § 24-4-404 (b) and that his trial counsel rendered

ineffective assistance for failing to object to certain hearsay

testimony and for not moving for a mistrial. In Case No. S21A0160,

Franklin claims that the evidence was insufficient to convict her

beyond a reasonable doubt as a party to the crimes, that the Court

should reconsider the standard of review for sufficiency, and that

she received ineffective assistance of counsel at trial.

As to Fitts, we discern no reversible error, so we affirm in Case

No. S21A0159. As to Franklin, we reject each of her enumerations

of error, but we have found a merger error with regard to her

hearing on January 7, 2020, and denied his motion for new trial on February
6, 2020. Fitts timely filed a notice of appeal.
The jury found Franklin guilty of both counts of felony murder, one count
of burglary, and armed robbery, but acquitted her of the other charges.
Franklin was sentenced to two life sentences to be served concurrently for the
felony murders, 20 years in prison to be served consecutively for burglary, and
a third life sentence for armed robbery to be served concurrently. On
September 15, 2017, Franklin filed a motion for new trial, which was amended
twice. After a hearing, the trial court denied her motion for new trial on
February 7, 2020, and Franklin timely appealed to this Court. These cases
were docketed to the term of court beginning in December 2020, consolidated
for review, and submitted for decision on the briefs.
2
convictions for armed robbery and burglary. We therefore affirm her

convictions for felony murder but vacate her convictions for armed

robbery and burglary in Case No. S21A0160.

Viewed in the light most favorable to the jury’s verdicts, the

evidence presented at trial shows that Fitts and Franklin started

dating in late 2014 and began living together in early 2015. 2 The

couple resided at the home of Fitts’s godmother, Melba Ansley, who

testified that Franklin, who was a nurse’s assistant, moved in to care

for her after her recent heart surgery. Ansley also testified that she

considered Fitts to be her son, he had lived with her since he was 12

years old, and she allowed him to use her cell phone and her truck.

Fitts’s friend Deaundre Ross, who was dating Franklin’s sister, often

visited Fitts at Ansley’s home.

During this time, Franklin was having an affair with Damian

Calvin. Franklin had previously lived with Calvin at his house and

was familiar with some drug activity occurring there. Calvin was a

2 The couple were married in September of 2015, six months after the
crimes at issue.
3
drug dealer, and he kept illegal drugs in his house. The two had

plans to meet at a hotel about 45 minutes away on March 3, 2015,

but Franklin rescheduled for the morning of March 4. Midmorning

that day, right before she met Calvin at the hotel, phone records

showed that Franklin called Fitts once on Fitts’s own phone and

several times on Ansley’s phone, which was prepaid and therefore

had no subscriber information. 3 The cell-site location information for

Fitts’s phone placed him near Calvin’s house during this time.

Franklin testified that Fitts was using Ansley’s phone because his

own was broken. The two had no contact again until 11:22 a.m.,

when Fitts used Ansley’s phone to call Franklin. Franklin testified

that the phone calls were about repairs for Ansley’s truck.

While at the hotel with Franklin, sometime between 11:00 a.m.

and 11:20 a.m., Calvin received a call from Johnson, who said he was

on Calvin’s front porch. Johnson was a regular customer of Calvin.

Calvin told Johnson that he was not there and to come back another

3At the time of his arrest several months later, Fitts provided the
number for Ansley’s prepaid phone as his phone number.
4
time. Roughly ten minutes later, Calvin’s cousin, Keith Robertson,

called Calvin to tell him that, as he was driving past Calvin’s house,

he saw two men run from the house toward a truck parked across

from Calvin’s driveway in a sandpit. Robertson turned around so

that he could go back to check on Calvin’s house and then saw the

truck leave the sandpit.4 On the phone, Calvin asked Robertson to

check on both Calvin’s son and Posley, who was Calvin’s girlfriend

at the time, inside the house. After driving up Calvin’s driveway,

Robertson saw Johnson dead on the front porch, still holding his

cigarettes and keys. Robertson called for Posley, heard no reply, and

told Calvin to hurry home. Robertson then called 911 at

approximately 11:30 a.m. and waited at the end of Calvin’s driveway

for the police to arrive.

The police found the house thoroughly ransacked. The police

also discovered shoeprints leading from an abandoned house next

4Neighbors testified that they noticed a truck parked in the sandpit that
morning where they rarely, if ever, saw vehicles parked. One neighbor testified
that he saw the truck leave shortly after 11:00 a.m. Detectives later discovered
that the tires from Ansley’s truck matched the make and size of the tire prints
from the truck parked in the sandpit on the day of the murders.
5
door through the woods to Calvin’s backdoor, where someone had

used a brick to break in. The police discovered Posley, who had been

shot five times, on the floor in the corner of a bedroom, tightly bound

with zip ties. Calvin’s two-year-old son was found unharmed on the

bed. Johnson had been shot eight times through the glass front door.

Calvin testified that his drug merchandise and between $8,000 and

$9,000 in cash were missing after the incident. A GBI firearms

examiner testified that bullets and shell casings found at Calvin’s

house were all from the same gun; the police also later found shell

casings from this gun both at Ansley’s house5 and at the scene of a

subsequent shooting incident where both Fitts and Ross were

present.

After leaving the hotel, Franklin called Calvin a few times,

starting at 11:27 a.m. In the afternoon, Fitts and Franklin met at

the home they shared with Ansley and took Ansley’s truck for

repairs. Franklin testified that, on their way home, they picked up

5Ansley testified that Fitts and Ross would occasionally engage in target
practice in the yard.
6
Ross and that Fitts and Ross spent the rest of the day at Ansley’s

house. That evening, GBI agents interviewed Franklin to

corroborate Calvin’s alibi. Franklin was not considered a suspect at

that time. During that interview, she identified her boyfriend as

“Donovan Ansley,” but gave his correct address.

Franklin did not continue her physical relationship with

Calvin after the shootings. However, she asked him as often as every

other day about whether there were leads in the case.

In October 2015, the GBI executed a search warrant at Ansley’s

house. In November 2015, Franklin agreed to be interviewed by the

GBI. Franklin claimed that on the day of the crimes, she and Fitts

returned straight home after dropping off Ansley’s truck for repairs,

and that Fitts then stayed in his room. She made no mention of Ross

at that time. The police later arrested Fitts and Franklin.

While Fitts was in jail in March 2017, his sister asked him in

a recorded call, “So you did the shooting?” Fitts responded, “No, but

I was there, and I had a big part in it. Not with that one anyway.”

Fitts’s sister asked why Fitts would “do something like that,”

7
referring to the crimes. Fitts recounted how badly he needed money

but that the crime “wasn’t supposed to go like that.” Fitts said that

he knew what he did, that his situation pushed him to do certain

things that he would not normally do, and that remembering the

murders would eat him up when he was not busy or distracted.

At trial, following the close of the State’s case-in-chief,

Franklin moved for a directed verdict of acquittal under OCGA § 17-

9-1 (b). The trial court denied the motion at that point. Fitts declined

to testify, but Franklin testified in her defense and denied

participating in planning the crimes. 6 Franklin testified that,

unknown to Fitts, she and Calvin had secretly planned to meet for

sex, that she had no knowledge that the crimes were being

committed during her tryst with Calvin, and that she could not

account for why Fitts had decided to commit the crimes at Calvin’s

home during that same timeframe.

6 Fitts does not contest the sufficiency of the evidence to support his
convictions, and for non-death penalty cases that were docketed to the term of
court beginning in December 2020, we no longer routinely conduct a sua sponte
sufficiency review. See Davenport v. State, 309 Ga. 385, 399 (4) (b) (846 SE2d
83) (2020).
8
 Case No. S21A0159

1. Fitts asserts that the trial court erred by admitting evidence

of a March 31, 2015 shooting incident, which the court admitted as

intrinsic evidence or, alternatively, as evidence of other acts under

OCGA § 24-4-404 (b), and in charging the jury on the limited purpose

of this evidence. We conclude that this claim does not require

reversal because any error was harmless to Fitts.

A few weeks after the murders, Deaundre Ross, who was Fitts’s

and Franklin’s co-defendant, was driving an SUV with his brother

as a passenger, while Fitts was driving a separate vehicle behind

them. Ross exchanged gunfire with a third party, leaving shell

casings on the street and inside the SUV. After the shooting, Ross’s

SUV broke down due to a bullet hole in its gas tank, so Fitts gave

Ross and Ross’s brother a ride back to Ross’s father’s house. Law

enforcement officers later determined that the shell casings from

this shooting incident matched the casings found at the scene of the

murders and at Ansley’s home where Fitts lived and Ross often

visited, meaning that the same gun had been used at all three

9
locations.

Before trial, the State filed a notice of intent to present

evidence of the shooting incident under OCGA § 24-4-404 (b) (“Rule

404 (b)”), and after a hearing, the trial court ruled that the evidence

was admissible as intrinsic evidence or, alternatively, under Rule

404 (b). Assuming without deciding that the evidence of the shooting

incident was admitted in error, this error was harmless to Fitts.

“The 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.) Taylor v. State, 306 Ga.

277, 283 (2) (830 SE2d 90) (2019). When applying a harmless-error

analysis, we review the evidence de novo and weigh it as a

reasonable juror would rather than in a light most favorable to

upholding the jury’s guilty verdict. See id.

Here, the State relied heavily on the evidence of the

subsequent shooting to try to prove Ross’s participation in the

murders, and the evidence presented only indirectly implicated Fitts

in the shooting. At trial, the State presented evidence that Fitts was

10
driving behind Ross’s SUV when Ross used a gun in the shooting,

that the gun was the same one that was used in the murders three

weeks earlier and at Ansley’s house where Fitts lived and Ross often

visited, and that Fitts later drove Ross and Ross’s younger brother

home. However, there was no evidence presented at trial that Fitts

handled the gun during the shooting incident or was otherwise

involved in that shooting, or that Fitts was investigated for any

crime in relation to the shooting, unlike Ross.

In its closing argument, although the State argued that Fitts

was with Ross “doing another shooting together” when the murder

weapon was used in the shooting incident, the State emphasized the

shooting evidence with respect to Ross, saying multiple times that

the gun belonged to Ross and that it was Ross’s personal weapon

that he would not have shared. And the trial court gave a limiting

instruction in the final jury charge directing the jurors to consider

the State’s evidence of other crimes only insofar as it related to the

issues of knowledge, intent, and participation in a conspiracy.

In contrast to Fitts’s tenuous connection to that shooting

11
incident, the evidence presented at trial as to Fitts’s guilt for the

murders was strong. Most significantly, in the recorded jail phone

calls with his sister, Fitts admitted to playing a “big part” in the

crimes (although he denied shooting the victims), gave his motive

for the robbery, and said that he felt guilty about his participation.

Also, the tire tracks found at the scene were consistent with the tires

on Ansley’s truck that Fitts drove, and cell-site location data placed

Fitts in the vicinity of Calvin’s house during the crimes. Therefore,

we conclude that under the circumstances of this case, it is highly

probable that the admission of the evidence concerning the later

shooting incident did not contribute to the jury’s verdicts. See Lofton

v. State, 309 Ga. 349, 356-59 (3) (846 SE2d 57) (2020) (error was

harmless where prosecution presented strong independent evidence

of guilt, jury properly learned that appellant had access to murder

weapon, evidence was not significantly relied on in State’s closing

argument, and “any harm . . . was lessened because the State did

not try to use the [evidence] to establish that Appellant rather than

[his co-defendant] was the shooter”); Taylor, 306 Ga. at 283 (2) (error

12
was harmless because the evidence was strong and there was no

contention that prosecution heavily relied on erroneously admitted

evidence in closing argument).

2. Fitts asserts that he was denied constitutionally effective

assistance of counsel when his trial counsel failed to object to

hearsay testimony he claims was barred by the Confrontation

Clause of the United States Constitution and to move for a mistrial.

We disagree.

To prevail on this claim, Fitts must establish both that his

representation was professionally deficient and that he suffered

prejudice as a result, meaning that but for counsel’s deficient

performance, a reasonable probability exists that the outcome at

trial would have been different. See Strickland v. Washington, 466

U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). If Fitts

cannot establish either deficient performance or prejudice, then we

need not address the other, and his claim will not succeed. See id.

During the direct examination of Ross’s father, Ross’s counsel

asked about his son’s involvement in the March 31, 2015, shooting

13
incident: “Did you know – did [Ross], your son, tell you anything

about the gun he had that day?” Ross’s father responded, “I know –

as far as the gun is concerned – he [Ross] supposedly gave it back to

Fitts.” The State then asked for a bench conference, during which a

discussion was held on the potential constitutional implications of

this response. The State and each defense counsel agreed to move

on after the trial court gave the jury the curative instruction: “the

previous answer that you just heard, you are instructed by the Court

to disregard that answer and not consider it as evidence in any

manner in this case. Do you understand?” Defense counsel then

resumed questioning Ross’s father.

Fitts argues that because the statement made by Ross’s father

violated Fitts’s constitutional right under the Confrontation Clause

and Ross’s defense counsel’s question itself was meant to elicit

inadmissible hearsay, his own trial counsel’s failure to object to this

testimony and timely move for a mistrial amounts to

constitutionally ineffective assistance of counsel.7

7 Fitts argues in passing that Ross’s father’s statement violated Fitts’s
14
 “A defendant’s right under the Confrontation Clause is violated

under Bruton [v. United States, 391 U.S. 123 (88 SCt 1620, 20 LE2d

476) (1968),] when there is a joint trial of co-defendants and the

testimonial statement of a co-defendant who does not testify at trial

is used to implicate the other co-defendant in the crime or crimes on

trial.” Battle v. State, 301 Ga. 694, 700 (4) (804 SE2d 46) (2017). In

this case, there was a joint trial of co-defendants where witness

testimony introduced a statement made by co-defendant Ross, who

had invoked his right against self-incrimination and did not testify,

that implicated his co-defendant Fitts.

However, “[t]he admission of an out-of-court statement into

evidence at a criminal trial comes within the scope of the

Confrontation Clause only if the statement was testimonial. A

statement is testimonial if its primary purpose was to establish

evidence for use in a future prosecution.” (Citations and punctuation

rights under Article I, Section I, Paragraph XIV of the Georgia Constitution,
but Fitts does not provide any citations of authority or arguments that would
suggest a more expansive right under the Georgia Constitution than under the
United States Constitution. Therefore, we restrict our analysis to his claims
under the United States Constitution.
15
omitted.) Reed v. State, 307 Ga. 527, 536 (2) (c) (837 SE2d 272)

(2019). Testimonial statements include statements made to a

government officer, during a police investigation or interrogation, or

intended to accuse someone of a crime and produce evidence for a

criminal prosecution. See Billings v. State, 293 Ga. 99, 104 (4) (745

SE2d 583) (2013); see also Allen v. State, 300 Ga. 500, 504 (3) (796

SE2d 708) (2017) (co-defendant’s statements made to a third party

after crimes and before arrests were not testimonial). Here, Ross

made the statement shortly after the shooting incident, before any

arrests, to his father rather than to police officers investigating a

crime, so it was not testimonial. Thus, any objection to this

testimony based on Bruton would have been meritless. See Reed, 307

Ga. at 536 (2) (c) (failure to make meritless objection does not

constitute ineffective assistance of counsel).

We reach the same conclusion, but for different reasons, about

Fitts’s claim that his counsel should have objected to this testimony

as hearsay and moved for a mistrial. Pretermitting whether it would

have qualified under a hearsay exception, the statement was not

16
admitted into evidence. Instead, upon agreement of the parties, the

trial court instructed the jury that it was to disregard Ross’s father’s

answer to the question and to not consider it for any purpose.

Moreover, at the hearing on Fitts’s motion for new trial, trial counsel

testified that she feared that Ross’s father possessed more direct

knowledge implicating Fitts and decided to agree to the instruction

to disregard the testimony in order to move away from that line of

questioning. We cannot say that counsel’s strategic decision to

refrain from objecting to a statement that was excluded and moving

for a mistrial “fell outside the wide range of reasonably effective

assistance, or that [Fitts] would have been granted a mistrial but for

counsel’s decision not to move for one.” (Citation and punctuation

omitted.) Allen v. State, 277 Ga. 502, 503 (3) (a) (591 SE2d 784)

(2004). Thus, Fitts’s ineffective assistance of counsel claim on this

ground also fails.

Case No. S21A0160

3. Franklin asserts that there was insufficient evidence both as

a matter of constitutional due process and under Georgia statutory

17
law to support her convictions for felony murder, burglary, and

armed robbery and that the trial court should have therefore

granted her motion for directed verdict of acquittal. Upon reviewing

the evidence presented at trial, we conclude that the evidence, while

far from overwhelming, was sufficient to sustain her convictions and

the trial court’s denial of her motion for directed verdict.

On appeal, a criminal defendant is no longer presumed

innocent, and we review whether the evidence presented at trial,

when viewed in the light most favorable to the jury’s verdicts,

enabled the jury to find the defendant guilty beyond a reasonable

doubt of the crimes of which she was convicted. See Jackson v.

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

(1979); State v. Holmes, 304 Ga. 524, 526-27 (1) (820 SE2d 26)

(2018). “The standard of review for the denial of a motion for a

directed verdict of acquittal is the same as for determining the

sufficiency of the evidence to support a conviction.” (Citation and

punctuation omitted.) Smith v. State, 304 Ga. 752, 754 (822 SE2d

220) (2018). “Under this review, we must put aside any questions

18
about conflicting evidence, the credibility of witnesses, or the weight

of the evidence, leaving the resolution of such things to the

discretion of the trier of fact.” (Citation and punctuation omitted).

Frazier v. State, 308 Ga. 450, 452-53 (2) (a) (841 SE2d 692) (2020).

In addition, as a matter of Georgia statutory law,

to 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.

OCGA § 24-14-6. “Whether alternative hypotheses are reasonable,

however, is usually a question for the jury, and this Court will not

disturb the jury’s finding unless it is insufficient as a matter of law.”

Frazier, 308 Ga. at 453 (2) (a). In reviewing whether the prosecution

ruled out every reasonable hypothesis, we ask whether the jury was

entitled to discredit alternative theories that could have explained

the circumstantial evidence and to believe the State’s theory of the

case instead. See Guzman-Perez v. State, 310 Ga. 573 (1) (853 SE2d

76, 80) (2020). When considering circumstantial evidence, jurors are

entitled to draw reasonable inferences “based on their own common-

19
sense understanding of the world” that “are ordinarily drawn by

ordinary [people] in the light of their experience in everyday life.”

(Citations and punctuation omitted.) McKie v. State, 306 Ga. 111,

115-16 (829 SE2d 376) (2019).

Criminal liability is imposed not only where a defendant has

directly committed crimes, but also where a defendant is a party to

the crimes, meaning where a defendant intentionally causes another

person to commit crimes, intentionally aids in the commission of

crimes, or intentionally advises, encourages, hires, counsels, or

procures another to commit crimes. See OCGA § 16-2-20.

Conviction as a party to a crime requires proof that the
defendant shared a common criminal intent with the
direct perpetrators of the crimes. A jury may infer a
common criminal intent from the defendant's presence,
companionship, and conduct with other perpetrators
before, during, and after the crimes.

(Citations and punctuation omitted.) Coates v. State, 310 Ga. 94, 98

(849 SE2d 435) (2020).

Upon consideration of the standard of review requiring that we

construe the evidence in the light favoring the jury’s verdicts and

20
principles of accomplice liability, we conclude that the evidence was

sufficient to show that Franklin intentionally participated in the

criminal plan and was thus sufficient to sustain her convictions. 8

Moreover, even if we were to consider all of the evidence against

Franklin to be circumstantial, 9 the jury was authorized to find that

8 Franklin relies on several cases where this Court reversed convictions
due to the insufficiency of party-to-a-crime evidence, including Clyde v. State,
276 Ga. 839 (584 SE2d 253) (2003) (Clyde had motive and purchased the guns
used by his cousins to commit the murder, but there was no proof he
participated in the plan); Bacon v. State, 267 Ga. 325 (477 SE2d 122) (1996)
(direct evidence of association with the murderer plus circumstantial evidence
of presence during initial confrontation was insufficient without evidence of
intent); Moore v. State, 255 Ga. 519 (340 SE2d 888) (1986) (insufficient
evidence to support Steve’s murder conviction where brothers Delton and Steve
had motive and fled together afterwards, and witness testimony supported
Delton’s involvement, but circumstantial evidence implicated only Steve’s
presence and not his intent); and Brown v. State, 250 Ga. 862 (302 SE2d 347)
(1983) (evidence of presence at the crime scene, association with the murderer,
and even approval of act short of encouragement but not intent to participate
was insufficient). We need not decide if all of these cases were correctly decided,
because unlike here, there was no evidence in these cases presented that the
defendant agreed to or intended to participate in the crimes.
9 If disbelieved by the jury, Franklin’s testimony denying her

involvement in the crime could have served as direct evidence of the opposite
proposition. But we need not decide whether that is so here, nor if so, whether
and how much corroborative evidence would be required to support a
defendant’s disbelieved testimony because the circumstantial evidence here,
when construed in favor of the verdicts, is sufficient to support the verdicts the
jury returned. Cf. Daughtie v. State, 297 Ga. 261, 263-264 (2) (773 SE2d 263)
(2015) (where there is no other evidence of defendant’s guilt, then jury disbelief
of a defendant’s testimony, alone, is insufficient to sustain a conviction).

21
the evidence excluded “every other reasonable hypothesis save that

of the guilt of the accused.” OCGA § 24-14-6. The evidence presented

authorized the jury to find that Franklin had lived at the

burglarized home previously; knew of Calvin’s drug-dealing and of

his income tied to that business; served as a potential connection

between Fitts and Calvin; planned to meet and did meet Calvin at a

hotel while the crimes were being committed; communicated with

Fitts on the phone shortly before and after the crimes were

committed; followed Fitts to a repair shop away from Ansley’s home

so that they could drop off Ansley’s truck, which was seen by

witnesses in connection with the crimes; and gave investigators the

name Donovan Ansley, with the last name of Fitts’s godmother,

rather than Fitts’s real last name when she was first interviewed.

Further, the jury was entitled to believe the State’s theory and infer

that Franklin rescheduled her meeting with Calvin to ensure his

absence during the planned burglary; that the crimes would not

have been committed without Calvin being away; that in order to

mislead investigators, Franklin gave the GBI a false name for Fitts;

22
and that Franklin continued contact with Calvin, but not their

sexual relationship, after the crimes in order to keep tabs on the

investigation. The jury could have reasonably disbelieved Franklin’s

testimony that immediately before and after the crimes the jury

found Fitts to have directly committed, she and Fitts spoke on the

phone multiple times but only discussed how Ansley’s truck needed

repair; she and Fitts used Ansley’s prepaid phone because his other

phone, which he used throughout the same day, was broken; and her

rescheduled rendezvous with Calvin was unrelated to luring Calvin

away from his home during the burglary.

Regardless of whether Franklin intended that Fitts would

commit the murders, for the reasons outlined above the jury was

thus authorized to find that Franklin intended him to commit

burglary, which created a reasonably foreseeable risk that someone

would be killed. See OCGA § 16-2-6 (intent may be inferred upon

consideration of conduct and circumstances); see also Ellis v. State,

292 Ga. 276, 279 (1) (736 SE2d 412) (2013) (defendant guilty for

murder as a party to a crime because the crimes he did intend were

23
dangerous and created a foreseeable risk of death); Parks v. State,

272 Ga. 353, 354 (529 SE2d 127) (2000) (same). Accordingly,

Franklin’s argument fails.

4. Franklin also argues that as a matter of federal

constitutional due process, this Court should modify its approach to

reviewing the sufficiency of the evidence under the Fourteenth

Amendment and the United States Supreme Court’s decision in

Jackson v. Virginia. More specifically, Franklin argues that being

convicted based on only circumstantial evidence and as a party to a

crime creates too great a risk that an innocent person will be

convicted of crimes he or she did not commit, and that in these cases

specifically, to satisfy the demands of due process, the standard of

review should allow or include a consideration of evidentiary

conflicts in favor of the defendant’s innocence. However, Franklin

has not provided us with any legal authority to support her

argument that such a balancing test is required by the due process

clause of the Fourteenth Amendment, as construed in Jackson.

Without more to show how this Court’s application of the Jackson

24
standard of review violates Franklin’s right to due process under the

Fourteenth Amendment, we will not deviate from that standard of

review.

5. Franklin also argues that her trial counsel rendered

constitutionally ineffective assistance. During his opening

statement, Franklin’s trial counsel said, “Now, . . . this case involved

apparently several individuals having duplicitous sexual

relationships with two different people at the same time. My client

was one of them.” Franklin argues that by calling her “duplicitous”

during his opening statement, her trial counsel destroyed her

credibility and set a negative tone for the evidence presented by

Franklin throughout trial. Considering that trial counsel testified

that his defense strategy was to show that Franklin was a credible,

good person from a well-liked family with a steady and respectable

job as a nurse, Franklin argues, her counsel’s discrediting comment

was a mistake that no reasonable attorney would make.

To prevail on this claim, Franklin must establish both deficient

performance and prejudice under Strickland. To establish that her

25
trial counsel performed deficiently, Franklin must prove that

counsel performed his duties “in an objectively unreasonable way

considering all the circumstances and in the light of prevailing

professional norms.” (Citation and punctuation omitted.) Watts v.

State, 308 Ga. 455, 458 (2) (841 SE2d 686) (2020). “Trial tactics or

strategy are almost never adequate grounds for finding trial counsel

ineffective unless they are so patently unreasonable that no

competent attorney would have chosen them.” (Citation and

punctuation omitted.) Id. at 460 (2). And absent evidence to the

contrary, counsel’s actions are presumed strategic. See id. at 461 (2).

We see no objectively unreasonable performance in Franklin’s

trial counsel’s comment. Trial counsel testified that, in addition to

establishing that Franklin was more respectable than her co-

defendants, his strategy was to show that she was not a co-

conspirator but was merely caught in a love triangle that led to the

crimes. Even though describing one’s own client as “duplicitous”

might not have been the best choice of words for counsel to use before

the jury, under the circumstances, reasonable counsel could have

26
employed that description consistent with a reasonable trial

strategy of acknowledging to the jury the dishonesty involved in the

love triangle in which Franklin was participating. Accordingly,

because Franklin cannot establish that no reasonable attorney

would have made this choice under the circumstances, she has not

shown that her counsel performed deficiently, and her claim of

ineffective assistance fails.

6. Finally, we have identified a merger error in Franklin’s

sentencing. We have discretion upon our own initiative to correct

merger errors when they result in illegal and void judgments of

conviction and sentences. See Dixon v. State, 302 Ga. 691, 696-97 (4)

(808 SE2d 696) (2017).

Franklin was sentenced to serve three concurrent life

sentences for both felony murder counts and armed robbery and to

serve 20 years consecutively for burglary. The indictment in this

case did not predicate the charges of felony murder on a specific

felony; instead, each charge was predicated on “the commission of at

least one of the following felony offenses, to wit: burglary, armed

27
robbery, false imprisonment, aggravated assault, and home

invasion.” The jury did not specify which felony served as the basis

for either of Franklin’s convictions for felony murder. Where

ambiguity exists in the jury’s verdicts because the jury did not

specify which of two or more felonies served as the predicate felony

for a guilty verdict for felony murder, this ambiguity “must be

construed in the defendant’s favor.” Thompson v. State, 263 Ga. 23,

25 (2) (426 SE2d 895) (1993), overruled on other grounds, McClellan

v. State, 274 Ga. 819, 821 (1) (561 SE2d 82) (2002).

Due to the ambiguity in the jury’s verdicts, Franklin’s

conviction for armed robbery should have merged into one of her

convictions for felony murder. See Robertson v. State, 268 Ga. 772,

780 (22) (493 SE2d 697 (1997) (where unclear which of armed

robbery and burglary was the underlying felony for a single felony

murder conviction, trial court must merge armed robbery with

felony murder as the most severe in terms of potential punishment).

Likewise, her conviction for burglary should have merged into her

remaining conviction for felony murder.

28
 For the reasons set forth above, we affirm Franklin’s

convictions for felony murder, and we vacate her convictions for

burglary and armed robbery, which should have merged with her

felony murder convictions.

Judgment affirmed in Case No. S21A0159. Judgment affirmed
in part and vacated in part in Case No. S21A0160. All the Justices
concur, except Nahmias, P.J., who concurs in judgment only as to
Division 3 of Case No. S21A0160, and Melton, C.J., and McMillian,
J., who dissent in Case No. S21A0160.

29
 S21A0159. FITTS v. THE STATE.
S21A0160. FRANKLIN v. THE STATE.

MCMILLIAN, Justice, concurring in part and dissenting in part.

In these related appeals, Donovan Fitts and Jermanique

Franklin appeal their convictions for murder and other crimes in

connection with the shooting deaths of Tenecia Posley and Barry

Johnson. The evidence that Fitts, along with an unknown male

assailant, shot the victims during the course of a burglary was

substantial. Therefore, I concur fully in the Court’s decision in Case

No. S21A0159, in which we affirm Fitts’s convictions. However, it is

undisputed that Franklin was not present immediately before,

during, or after the shootings, and the circumstantial evidence upon

which this Court relies amounts to Franklin’s relationship as Fitts’s

girlfriend at the time the crimes were committed and conduct

common to such relationships like calling one another on the phone

and helping take a vehicle for repairs. Because I disagree that there

was sufficient evidence as a matter of Georgia statutory law and

constitutional due process for a rational jury to find Franklin guilty

30
of these crimes beyond a reasonable doubt, I respectfully dissent to

this Court’s judgment in Franklin’s case.

The standard of review for determining the sufficiency of the

evidence to support a conviction under the Due Process Clause of the

Fourteenth Amendment is well-established: whether the evidence

presented at trial, when viewed in the light most favorable to the

jury’s verdict, enabled a rational jury to find the defendant guilty

beyond a reasonable doubt of the crimes of which she was convicted.

See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61

LE2d 560) (1979). This Jackson v. Virginia standard has been cited

over 13,000 times in Georgia appellate courts, but rarely has the

standard as described in Jackson been elucidated, so I revisit it here.

The Jackson Court explained the reason for this standard of review:

“a properly instructed jury may occasionally convict even when it

can be said that no rational trier of fact could find guilt beyond a

reasonable doubt.” Id. at 317 (III) (B). So “the critical inquiry” must

be “after viewing the evidence in the light most favorable to the

prosecution,” whether any rational trier of fact could have found the

31
essential elements of the crime beyond a reasonable doubt. Id. at

318-19 (III) (B). In conducting this inquiry, the trier of fact is given

the responsibility of fairly resolving conflicts in the testimony,

weighing the evidence, and drawing “reasonable inferences from

basic facts to ultimate facts.” Id. at 319 (III) (B).

The inquiry is somewhat more complicated in this case because

Franklin was not directly involved in the shootings and instead was

prosecuted as a party to Fitts’s crimes. Conviction as a party to a

crime requires proof that the defendant shared a common criminal

intent with the direct perpetrators of the crime, and a jury may infer

a common criminal intent from the defendant’s presence,

companionship, and conduct with other perpetrators before, during,

and after the crimes. Coates v. State, 310 Ga. 94, 98 (849 SE2d 435)

(2020).

In addition, as a matter of Georgia statutory law, “[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

32
accused.” OCGA § 24-14-6. Because “not every hypothesis is

reasonable,” the evidence “need not exclude every conceivable

inference or hypothesis—only those that are reasonable.” Carter v.

State, 305 Ga. 863, 868 (2) (828 SE2d 317) (2019) (cleaned up).

“Whether alternative hypotheses are reasonable, however, is

usually a question for the jury, and this Court will not disturb the

jury’s finding unless it is insufficient as a matter of law.” Frazier v.

State, 308 Ga. 450, 453 (2) (a) (841 SE2d 692) (2020).

Here, “[w]hat the evidence produced by the State did not show

were the essential links between [the defendant’s] proven behavior

and the crimes charged.” Clyde v. State, 276 Ga. 839, 839 (584 SE2d

253) (2003) (emphasis in original). Evidence that a co-defendant

may have provided information or means to aid in the commission

of a crime is insufficient without further evidence of criminal intent

or knowledge of the criminal plan. See id. at 839-40 (defendant had

motive and purchased the guns used by his cousins to commit

murder but there was no proof he knowingly provided the guns to

his cousins or that he otherwise participated in planning the

33
crimes); Moore v. State, 255 Ga. 519, 520-21 (1) (340 SE2d 888)

(1986) (insufficient evidence to support one brother’s murder

conviction even though both brothers had motive and fled together

afterwards, and even where there was circumstantial evidence of

the brother’s presence at the scene of the crime); Brown v. State, 250

Ga. 862, 864-65 (1) (302 SE2d 347) (1983) (evidence of presence,

association, and even approval but not intent to participate in the

crimes was insufficient).

My review reveals no case where we have affirmed a conviction

as a party to a crime of a defendant who was not present during or

immediately before or after the crimes based on such limited

circumstantial evidence as there was here. 10 The State’s evidence

against Franklin amounted to a girlfriend calling a boyfriend in the

same time frame as he is committing crimes, Franklin and Fitts

taking the truck used by Fitts for repairs, and Franklin’s denials

that she was involved.11 Moreover, although the jury could have

10 I also note that the majority does not point to any case in which
the evidence has been found sufficient under similar circumstances.
11 The majority also notes that the jury could have disbelieved

34
inferred from the evidence presented that Fitts knew from Franklin

that Calvin would be out of the house on the morning of the murders

and that he kept drugs and money there, the State failed to produce

evidence that Franklin participated in planning the crimes or

benefitted from the proceeds. Thus, as a matter of Georgia statutory

law, this evidence in my opinion is not enough to exclude every

reasonable hypothesis other than guilt. Also, because these basic

facts proved by the State 12 would not allow a rational jury to

reasonably infer that Franklin had the criminal intent to support

her convictions beyond a reasonable doubt, I would conclude that the

evidence was insufficient as a matter of constitutional due process

Franklin’s denials of her involvement and that this could be considered
direct evidence against her. See Daughtie v. State, 297 Ga. 261, 263 (2)
(773 SE2d 263) (2015). But Daughtie made clear that such denials
constitute substantive evidence of guilt only if some corroborative
evidence exists to support the convictions, and I do not find sufficient
corroborative evidence here, particularly with respect to Franklin’s
criminal intent.
12 Suffice it to say, these kinds of basic facts such as knowing the

whereabouts of your significant other with a third party, phone calls, and
taking a vehicle for repairs would not be uncommon in many intimate
partner relationships, so I would conclude that a rational jury could not
have reasonably inferred Franklin’s criminal intent from this conduct
beyond a reasonable doubt.
35
and that as a result, Franklin’s convictions must be reversed, and

she cannot be retried. See Jefferson v. State, 310 Ga. 725, 726 (854

SE2d 528) (2021) (citing Burks v. United States, 437 U.S. 1, 16-17

(III) (98 SCt 2141, 57 LE2d 1) (1978)).

I am authorized to state that Chief Justice Melton joins this

dissent.

36