BENHAM, JUSTICE.
Odes
Dupree was convicted of malice murder and other crimes
arising out of the asphyxiation death of 75-year-old Florene
Duke.[1] The trial court denied Dupree's motion
for new trial, and he appeals. As set forth below, we affirm.
1.
Raising the sufficiency of the evidence to convict him,
Dupree asserts the trial court erred in denying his motion
for directed verdict. Dupree's defense theory was that
some other perpetrator committed the crimes. Viewed in a
light most favorable to the verdict, however, the evidence
fails to support Dupree's assertion that he was entitled
to a directed verdict of acquittal.
Viewed
in that light, the evidence showed that sometime between the
dates of November 9 and 10, 2014, Dupree broke into the
victim's apartment, beat her, hog-tied her hands and feet
together behind her back, gagged her, and left her to
suffocate on her bedroom floor. He also covered her body with
a comforter. While at the victim's apartment, Dupree used
the victim's phone to call his drug dealer, Detrone
Royal, to tell him to meet him at the victim's address
where he would "make it right between us." Royal
testified at trial that when he arrived at the victim's
apartment, Dupree told him it was his girlfriend's place,
he was leaving her, and he was taking his belongings with
him. Royal helped him take two televisions, one of which had
to be removed from the wall, to Royal's car. Dupree gave
the televisions to Royal to satisfy a drug debt. Dupree then
placed the handsets from the victim's phones in a bag
along with food items taken from the victim's freezer and
cartons of the victim's cigarettes, and he returned to
the nearby home of friends with whom he was staying at the
time. The victim's body was discovered by relatives on
November 10. She was wearing her night clothes and her bed
comforter had been draped over her body.
Detectives
obtained telephone records and traced phone calls made on the
evening of November 9 to a number belonging to Royal, who had
a record for drug sales and thefts. Authorities set up a
controlled drug buy from Royal and then arrested him and took
him into custody. He told the detectives, and testified at
trial, that he did not know anyone else was in the apartment
where he went to meet Dupree, and that he did not enter the
victim's bedroom or see her in the residence. Based on
identifying information supplied by Royal, Dupree was found
and arrested. During interviews with authorities, Dupree
first gave one name and later another name as the person he
claimed committed the murder. Neither of these individuals
could be linked to the crimes. In fact, one of these persons
was incarcerated at the time. Human hairs found on the
victim's body were scientifically linked to Dupree. A
tank top that was tightly twisted around the victim's
thumb tested positive for blood, some of which contained
Dupree's DNA and some the DNA of the victim. The stolen
televisions that were retrieved contained fingerprints
belonging to Dupree. The victim's relatives testified the
victim did not know Dupree and would have had no reason to
let him into her apartment voluntarily after she had dressed
for bed. It appeared from the condition of the victim's
bedroom that she had been in bed, but her body was found on
the floor of the bedroom, and the condition of the living
room suggested there had been a struggle. A t-shirt had been
stuffed in the victim's mouth, and an autopsy revealed
that the cause of death was asphyxiation.
The
test established in Jackson v. Virginia,
[2]
that the evidence viewed in the light most favorable to the
jury's verdict must be sufficient to authorize a rational
trier of fact to find the defendant guilty beyond a
reasonable doubt, is the proper standard of review when the
sufficiency of the evidence is challenged. This is so whether
the challenge arises from the denial of a motion for directed
verdict or the denial of a motion for new trial or a
challenge to a conviction on direct appeal. See Stansell
v. State, 270 Ga. 147, 148 (1) (510 S.E.2d 292) (1998).
Pursuant to this standard, the evidence presented at trial
was sufficient to support the jury's guilty verdict on
each of the charges of which Dupree was convicted and
sentenced.
Malice
murder: Malice murder involves causing the death of
another with either express or implied malice aforethought.
OCGA § 16-5-1 (a). Express malice is established by the
deliberate intention to take the life of another "which
is manifested by external circumstances capable of proof,
" and implied malice is established "where no
considerable provocation appears and where all the
circumstances of the killing show an abandoned and malignant
heart." OCGA § 16-5-1 (b). No evidence was
presented of any provocation, justification, or excuse.
Instead, sufficient evidence of malice aforethought was
presented by the manner in which the victim was assaulted
prior to her death, which caused blunt force impact injuries,
including five fractured ribs. She was also bound and gagged
so tightly that the base of her tongue was damaged, and was
left to suffocate in a manner from which the jury could find
either express malice or an abandoned and malignant heart.
Robbery
and burglary: Likewise, the evidence, viewed in the
light most favorable to the verdict, was sufficient for any
rational trier of fact to have found beyond a reasonable
doubt the essential elements to support the conviction of
robbery[3] as well as the conviction of
burglary.[4] The evidence supports the conclusion that
Dupree entered or remained in the victim's home without
authority and for the purpose of committing theft, in that
the premises showed evidence of a struggle by the front door.
Dupree's fingerprints were found on property removed from
the victim's home and later recovered.
Kidnapping:
The conviction for kidnapping was also supported by the
evidence. For the offense of kidnapping to be shown, even
slight movement of the person abducted is sufficient so long
as the movement is not merely incidental to the commission of
some other offense. OCGA § 16-5-40 (b). Pursuant to
subsection (b) (2) of the kidnapping statute, movement is not
considered merely incidental to another offense if it:
"(A) Conceals or isolates the victim; (B) Makes the
commission of the other offense substantially easier; (C)
Lessens the risk of detection; or (D) Is for the purpose of
avoiding apprehension." OCGA § 16-5-40 (b) (2) (A)
- (D). Here, the evidence was sufficient for a reasonable
juror to conclude that the victim was moved from the living
room to her bedroom at some point during the burglary after a
struggle, and that her presence in the bedroom was concealed
by placing a comforter over her. Indeed, the witness who
arrived at the victim's home to help Dupree remove
property from the home testified he did not see the victim.
Given
this evidence, no error is shown by the trial court's
denial of the motion for directed verdict or the motion for
new trial on this ground.
2.
Dupree asserts error in the trial court's failure to give
two jury charges he requested. First, Dupree sought a
deviation from the standard jury instruction on robbery by
force and asked for language stating that the owner's
consciousness of the taking before the taking is complete is
an essential element of robbery. During the charge conference
the attorneys engaged in a discussion with the trial court
regarding the appropriateness of the requested charge. In
response to the State's assertion that such an
instruction did not apply when the defendant killed the
victim to commit the robbery, Dupree's counsel
acknowledged that if that were the law, then he could not
proceed with the requested charge. Because Dupree's
counsel made no objection with respect to the instruction on
robbery at the conclusion of the court's jury
instructions, Dupree may prevail on this claim of error only
if plain error is shown. See OCGA § 17-8-58 (b). In
fact, no error is shown in the trial court's refusal to
give the requested charge. The cases relied upon by Dupree
involve the offense of theft by snatching, which was not the
offense for which Dupree was charged and tried. Dupree was
charged with robbery by use of force. See OCGA § 16-8-40
(a) (1). "It is well-settled that a defendant commits a
robbery if he kills the victim first and then takes the
victim's property." Lee v. State, 270 Ga.
798, 801 (5) (514 S.E.2d 1) (1999). Because the victim's
consciousness of the taking is not an essential element in a
case such as this one, he has failed to show plain legal
error by the trial court's failure to give the requested
instruction. To the extent Dupree also asserts he was
entitled to an instruction on robbery as a lesser included
offense of armed robbery, that argument is meritless, as he
was not charged with armed robbery.
Dupree
also argues he was entitled to an instruction on theft by
taking as a lesser included offense of burglary, as he
asserts there was no evidence of forced entry. Again, because
Dupree failed to raise an objection to the instructions as
given, he may prevail only if plain error is shown. And,
again, no legal defect in the instructions given is shown.
Use of forced entry is not a required element of burglary.
See OCGA § 16-7-1. Instead, what is required is entry of
or remaining within, in this case the dwelling house of
another, "without authority and with the intent to
commit a felony or theft therein . . . ." OCGA §
16-7-1 (b). See State v. Newton, 294 Ga. 767, 772
(755 S.E.2d 786) (2014) (even gaining consent to enter by
artifice is sufficient to support a guilty verdict for
burglary). Ample evidence was presented in this case that
Dupree's entry into the victim's home was without
authority, or at the very least that he remained in the
victim's home without her authority, and that his intent
for doing so was to commit theft. Even if the trial court
erred by failing to give an instruction on theft by taking as
a lesser offense of burglary, Dupree has failed to meet one
of the required elements of the test for showing plain error,
i.e., that the error must have affected his substantial
rights by affecting the outcome of the trial proceedings. See
State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 S.E.2d
232) (2011). In light of the strong evidence of Dupree's
guilt of the offense of burglary, he has failed to
demonstrate that failing to give the requested instruction on
a lesser included offense likely affected the jury's
verdict of guilt for this offense. See Redding v.
State, 296 Ga. 471, 473 (2) (769 S.E.2d 67) (2015);
Howell v. State, 330 Ga.App. 668, 674 (2) (769
S.E.2d 98) (2015).
3. We
have carefully examined each of the several assertions Dupree
makes with respect to his claim of ineffective assistance of
trial counsel, and, applying the test set forth in
Strickland v. Washington, [5] we find they all lack
merit.[6] Based on the testimony of trial counsel at
the motion for new trial, as well as the trial record, ...