In the Supreme Court of Georgia



                                                  Decided: June 6, 2016


                     S16A0190. ANDERSON v. THE STATE.


       BLACKWELL, Justice.

       Darrell Anderson was tried by a Dougherty County jury and convicted of

felony murder and the unlawful possession of a firearm during the commission

of a felony in connection with the fatal shooting of Jack Camp. Anderson

appeals, contending that the evidence is insufficient to sustain his convictions

and that the trial court erred when it charged the jury about the unlawful

possession of a firearm during the commission of a felony. We find no error and

affirm.1


       1
         Camp was killed on March 14, 2007. A Dougherty County grand jury indicted
Anderson, Dontavius Wilson, and Christopher Ingram on April 28, 2010 and charged them
with malice murder, two counts of felony murder (one predicated on the possession of
cocaine with the intent to distribute and the other predicated on aggravated assault),
conspiracy to commit murder, aggravated assault, and the unlawful possession of a firearm
during the commission of a felony. The men were tried jointly, and their trial began on
November 8, 2010. The jury returned its verdict four days later, finding Wilson guilty of all
charges, and finding Anderson and Ingram guilty of all charges except malice murder. On
December 13, 2010, Anderson was sentenced to imprisonment for life for felony murder
predicated on the possession of cocaine with the intent to distribute and a consecutive term
of imprisonment for five years for the unlawful possession of a firearm. The verdict as to
      1. Viewed in the light most favorable to the verdict, the evidence shows

that, around 1:00 on the morning of March 14, 2007, Camp was shot and killed

while working as a security guard at the Regency Club Apartments in Albany.

Just before he was shot, Camp called 911 to ask for assistance with some

“subjects,” and the dispatcher heard a male voice in the background say, “oh

hell, he’s calling the police.”

      When law enforcement arrived at the apartment complex, a resident who

had been walking through the complex at the time that Camp was shot provided

a statement that identified Anderson, Dontavius Wilson (who was Anderson’s

cousin), Christopher Ingram, Luke Sears, and Kentrell Barney. When

investigators interviewed Anderson, Wilson, and Ingram, they gave almost

identical statements, all purporting to know nothing about the killing. Anderson

added that he had “never ever” been to the Regency Club Apartments. Sears

initially denied knowledge of the killing as well, and he provided an alibi for


felony murder predicated on aggravated assault was vacated by operation of law, see
Malcolm v. State, 263 Ga. 369, 371-372 (4) (434 SE2d 479) (1993), and the conspiracy to
commit murder and aggravated assault merged with the murder for which Anderson was
convicted and sentenced. Anderson timely filed a motion for new trial on December 29,
2010, and he amended it on March 13, 2013. The trial court denied his motion on June 8,
2015, and Anderson timely filed a notice of appeal on July 7, 2015. The case was docketed
in this Court for the January 2016 term and submitted for decision on the briefs.

                                           2
Anderson, Wilson, and Ingram. But after Sears was arrested for providing a

false statement, he agreed to come clean.

      Sears then gave a second statement to investigators, which was generally

consistent with the testimony he provided at trial. Sears said that, at around 7:00

on the evening of March 13, he went to drink and smoke marijuana with

Anderson, Wilson, Ingram, and Barney at the home of Wilson’s girlfriend. At

one point, Sears saw Ingram pull out a revolver, and he saw the other men

“horsing around” with it. All five men then went to a trailer park, and they drank

and smoked marijuana there until Wilson received a phone call. The men then

went to the Regency Club Apartments in separate cars — with Sears and Barney

riding with Wilson, and Ingram riding with Anderson — so that Anderson,

Wilson, and Ingram could sell crack.

      Sears testified that the men parked their cars by a ballfield near the

apartment complex. After the other men walked away, Sears remained in

Wilson’s burgundy Impala and soon fell asleep. Sears claimed that he awoke to

the sound of gunshots, and Wilson returned to the Impala and put down a

revolver that looked like the one Sears had seen earlier that night. Sears said that

— as the men started their separate cars — he jumped out of the Impala, saw

                                         3
Camp’s body, and ran through the ballfield and the campus of Dougherty High

School. When he saw Wilson drive up, he got back into the Impala, and Wilson

told him, “[y]ou ain’t seen nothing,” and “[y]ou don’t know nothing.”

      According to Sears, Wilson drove him back to the home of Wilson’s

girlfriend. When Anderson and Ingram arrived soon thereafter, Wilson

approached them and handed Ingram what Sears thought was the revolver. Sears

testified that he then heard Anderson say, “I told the n****** the man was

going to call the police, and we just went to dumping.”2 Sears testified that the

men all went back to the trailer park, subsequently visited a Waffle House, and

finally parted ways later in the morning.

      On appeal, Anderson claims that his convictions cannot be sustained

because the only evidence of his guilt came from Sears. Former OCGA § 24-4-8

provided that, in “felony cases where the only witness is an accomplice, the

testimony of a single witness is not sufficient [to establish a fact]. Nevertheless,

corroborating circumstances may dispense with the necessity for the testimony




      2
          Sears also testified that “dumping” was slang for shooting.

                                              4
of a second witness, except in prosecutions for treason.”3 The evidence

necessary to corroborate an accomplice’s testimony under former OCGA §

24-4-8 “may be circumstantial, it may be slight, and it need not of itself be

sufficient to warrant a conviction of the crime charged,” but it “must directly

connect the defendant with the crime, or lead to the inference that he is guilty.”

McKibbins v. State, 293 Ga. 843, 846 (1) (750 SE2d 314) (2013) (citation

omitted). Here, the trial court informed the jury about the requirements of

former OCGA § 24-4-8, and the jury was properly instructed that it was for the

jury to determine whether Sears was an accomplice. Even if the jury determined

that Sears, in fact, was an accomplice, we find that Sears’s testimony about

Anderson’s guilt was amply corroborated by other evidence.

      Sears’s testimony about Anderson’s specific involvement in the crimes

was corroborated by two jailhouse informants, both of whom knew Anderson

before they became incarcerated. One of the informants said that Anderson

admitted to him that Anderson and Wilson had gone to the Regency Club

      3
         This case was tried before January 1, 2013 under the old Evidence Code. See Ga.
L. 2011, p. 99, § 101. We note, however, that the provisions of former OCGA § 24-4-8 were
carried forward into the new Evidence Code and now can be found at OCGA § 24-14-8. See
Bradshaw v. State, 296 Ga. 650, 654 (2) (769 SE2d 892) (2015) (“we give the new
accomplice provision the same meaning as the old one”) (citations omitted).

                                           5
Apartments, that Wilson got into a “confrontation” with Camp, and that

Anderson drove off without Wilson. The second informant described a

conversation he had with both Anderson and Wilson in which Anderson said

that he and Wilson were going to “beat” the charges “because they ain’t got

nothing on us” and that Sears “is the only one telling.” According to the

informant, when Anderson said this, Wilson “hit his leg, like to shut up,” and

the conversation ended. Finally — and perhaps most importantly — this same

informant described a second conversation in which Wilson complained that

Sears was “telling everything” and that he was “going to try to get some of my

people to go talk to [Sears] and see if he will change his statement.” Wilson then

admitted that he, Anderson, and Sears had been “drinking, popping pills, and

smoking weed” when they decided to make a drug sale at the apartments by

Dougherty High School. But “when they got there, something went wrong with

the drug sale” and Wilson shot Camp.

      Based on the totality of the evidence, Sears’s testimony was sufficiently

corroborated under former OCGA § 24-4-8. And in all, the evidence was

sufficient to authorize a rational jury to find beyond a reasonable doubt that



                                        6
Anderson was guilty of the crimes of which he was convicted.4 See Jackson v.

Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979);

Powell v. State, 291 Ga. 743, 744 (1) (733 SE2d 294) (2012) (“[a] person who

does not directly commit a crime may be convicted upon proof that a crime was

committed and that person was a party to it”) (citations and punctuation

omitted). See also OCGA § 16-2-20 (b) (defining parties to a crime).

       2. Anderson also contends the trial court erred when it failed to instruct

the jury that, in order to convict him of the unlawful possession of a firearm

during the commission of a felony, it had to find beyond a reasonable doubt that

he had a firearm “within arm’s reach.” See OCGA § 16-11-106 (b) (“Any

person who shall have on or within arm’s reach of his or her person a firearm .

. . during the commission of . . . (1) Any crime against or involving the person

of another . . . and which crime is a felony, commits a felony.”). But as



       4
         Anderson also argues on appeal that there was insufficient evidence to support his
convictions for felony murder predicated on aggravated assault, conspiracy to commit
murder, and aggravated assault. But Anderson was not convicted of any of these crimes. As
described in note 1, supra, the felony murder predicated on aggravated assault was vacated
by operation of law, and the conspiracy and aggravated assault merged with the murder for
which Anderson was convicted and sentenced. As a result, Anderson’s claims about the
sufficiency of the evidence of these crimes are moot. See Mills v. State, 287 Ga. 828, 830 (2)
(700 SE2d 544) (2010); Lupoe v. State, 284 Ga. 576, 577 (1), n. 2 (669 SE2d 133) (2008).

                                              7
Anderson acknowledges, he did not object to the jury charge at trial.

Accordingly, we review this claim only for plain error. See OCGA § 17-8-58

(b).

       To show plain error, Anderson must establish not only that the jury

instruction was erroneous, but also that “it was obviously so” and that “it likely

affected the outcome of the proceedings.” State v. Kelly, 290 Ga. 29, 33 (2) (a)

(718 SE2d 232) (2011) (citation omitted). Even assuming that it was obviously

erroneous for the trial court to fail to remind the jury about the “within arm’s

reach” element when it described the offense of unlawful possession of a firearm

during the commission of a felony, Anderson has not shown that such failure

had any effect — much less a likely effect — on the outcome of his trial. The

“within arm’s reach” element was properly included in the unlawful possession

count of the indictment, that indictment was read to the jury, the trial court

charged the jury that the State had to prove every material allegation in the

indictment beyond a reasonable doubt, and the trial court reminded the jury that

it would have the indictment in the jury room “during your deliberations in

order that you may examine the specific allegations against these defendants.”

The trial court charged the jury that possession of a firearm could be actual or

                                        8
constructive, and it instructed that actual possession required “direct physical

control” over the firearm and that constructive possession required “both the

power and the intention . . . to exercise dominion and control either directly or

through another person.”

      In any event, whether the firearm was “within arm’s reach” was not

disputed at trial, with the State even acknowledging in its closing argument that

unlawful possession required the firearm to be “within . . . reach.” Indeed, there

could be no reasonable dispute that whoever used a gun to shoot Camp actually

had a firearm within arm’s reach at the time of the shooting. The only issue at

trial was whether one of the defendants was the shooter and the others were

parties to his crime. As a result, Anderson has not shown that the trial court’s

failure to remind the jury about the “within arm’s reach” element of unlawful

possession of a firearm had any effect on the outcome of his trial. See Howard

v. State, 288 Ga. 741, 743 (2) (707 SE2d 80) (2011) (no plain error where trial

court failed to instruct on elements of aggravated assault where undisputed

evidence was that perpetrators intentionally fired weapons and defense was

mistaken identity).

      Judgment affirmed. All the Justices concur.

                                        9
