Dukes v. State

D
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

                                  7
                     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).
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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.




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