S23A0460. STEELE v. THE STATE.
S23A0460
In the Supreme Court of Georgia
Decided: October 11, 2023
McMILLIAN, Justice.
NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court‘s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court‘s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
Donald Steele appeals his convictions for felony murder and aggravated assault in connection with the stabbing death of Kevin McGruder.1 Steele argues on appeal that the evidence was insufficient to support his felony murder conviction and that the trial court should have merged his conviction for aggravated assault into his conviction for felony murder, which was based on aggravated assault. We conclude that the evidence was sufficient to support Steele‘s convictions, but the State concedes, and we agree, that his conviction for aggravated assault should have merged into his felony murder conviction. Accordingly, we affirm Steele‘s conviction for felony murder and vacate his aggravated assault conviction.
Viewed in the light most favorable to the verdict,2 the evidence at trial showed the following. On September 24, 2019, Steele arranged through a social media app to meet McGruder at a hotel in Norcross to purchase some vape “carts” containing THC oil.3 A friend drove Steele and his female roommate to the hotel for the meeting. The hotel‘s surveillance video recording was introduced at trial and showed that Steele and a woman met McGruder in the hotel parking lot, but the woman left while Steele followed McGruder to the other side of the hotel. Surveillance footage from that area showed that Steele and McGruder engaged in some form of scuffle in the breezeway of the hotel, although most of this interaction was blocked from the camera‘s view by a column. McGruder later can be seen fleeing the area and running to the front of the hotel, with Steele running after him.
A witness at the scene testified that when McGruder reached the front of the hotel, he yelled that Steele had a knife and had stabbed him. McGruder then fell, and Steele approached with the knife in his hand. The video recording shows that the two struggled for a bit before Steele stabbed McGruder as he lay on the ground. Steele then retrieved something from the pocket of McGruder‘s pants and walked away. Another witness observed Steele stab McGruder, and she followed Steele as others on the scene attended to McGruder‘s injuries, but stopped after Steele verbally threatened her. By the time police arrived, McGruder was dead.4
Steele called police from a nearby gas station to report what had happened, and he was interviewed by investigators at the police station later that night. A video recording of this interview was played for the jury. During the interview, Steele told police that he and his roommate met McGruder to purchase vape carts, but McGruder became agitated that the roommate was there, and Steele told her to go back to the car and wait. According to Steele, McGruder held his hand out and Steele handed him $40 and then followed McGruder around the building. When they reached the other side, McGruder told Steele to leave or he was going to get
Steele also recounted these events in his testimony at trial. He stated that he used his knife that night to defend himself after McGruder grabbed him. But Steele also testified that he had no choice but to run after McGruder and stab him again because he was “mad” and wanted his money back. Steele said that “all that mattered” was that he got his money back.
1. On appeal, Steele states that he “respectfully seeks appellate review of the sufficiency of his conviction” for felony murder and recites the standard set out in Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979),5 without further argument. Although Steele has made no attempt to argue how the evidence was insufficient to support his felony murder conviction under the Jackson standard, we conclude that the evidence as recounted above was sufficient as a matter of constitutional due process to support his felony murder conviction. See Charles v. State, 315 Ga. 651, 654-55 (2) (884 SE2d 363) (2023) (affirming convictions where defendant asserted that the evidence was constitutionally insufficient but failed to articulate “why he contend[ed] that the trial evidence was insufficient to support his convictions, much less formulated an argument showing that the trial evidence failed to prove an essential element of any crime charged beyond a reasonable doubt“); Willis v. State, 315 Ga. 19, 23 (2) n.3 (880 SE2d 158) (2022) (affirming a defendant‘s convictions where the defendant “cite[d] Jackson v. Virginia, [but] ma[de] no argument about the constitutional sufficiency of the evidence” (citation omitted)). Accordingly, we affirm his conviction for felony murder.
2. Steele further argues that the trial court erred in failing to merge his conviction for aggravated assault into his conviction for felony murder based on that offense. The State agrees, and, in fact, on March 29, 2022, the trial court entered an order stating that it would amend the sentence, with the agreement of the parties, to merge the aggravated assault count into the felony murder count. However, no such amendment appears in the record.
“When the only murder conviction is for felony murder and a defendant is convicted of both felony murder and the predicate felony of the felony murder charge, the conviction for the predicate felony merges into the felony murder conviction.” Allen v. State, 307 Ga. 707, 710-11 (5) (838 SE2d 301) (2020) (citation and punctuation omitted). See also Brown v. State, 302 Ga. 813, 816 (3) (809 SE2d 742) (2018);
Judgment affirmed in part and vacated in part. All the Justices concur.