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.

In the Supreme Court of Georgia



                                                   Decided: February 20, 2024


                         S23A1096. BLASH v. THE STATE.


        BOGGS, Chief Justice.

        Appellant Demarcus Deshawn Blash challenges his 2021

convictions for malice murder and other offenses arising out of the

shooting deaths of Jain Marie Williams and her husband Wendell

Everett Williams. Appellant contends that the evidence was not

sufficient and that the trial court erred in denying his motion for

new trial under the “general grounds” in OCGA §§ 5-5-20 and 5-5-

21. Appellant also argues that the trial court abused its discretion

when it overruled his objection to the introduction of his jail phone

call recordings and to expert testimony regarding gang language in

those recordings. Based on these arguments, Appellant seeks a new

trial. Appellant further asserts that the trial court plainly erred by

failing to sentence Appellant “under Georgia law.” Finally,
Appellant argues that he was deprived effective assistance of

counsel due to his trial counsel’s failure to object when the trial court

allegedly did not sentence Appellant according to Georgia law.

Based on his last two arguments, Appellant seeks resentencing by a

different trial judge. 1


      1 The crimes occurred between April 22 and April 23, 2018. On June 4,

2018, a Dodge County grand jury indicted Appellant, Martez Gordon, Gary
Pennamon, and Kojack Thomas, Jr. for two counts of malice murder, two
counts of felony murder, home invasion, two counts of armed robbery, two
counts of aggravated assault, burglary in the first degree, possession of a
firearm during the commission of a felony, and three counts of theft by taking.
Alija Pennamon was also indicted for one count of theft by taking. Appellant’s
co-defendants either pled guilty or were tried separately from him. At a trial
from April 27 to 30, 2021, a jury found Appellant guilty of all counts, except
one count of theft by taking for which the State had sought an order of nolle
prosequi prior to trial. The trial court sentenced Appellant to serve concurrent
sentences of life in prison without the possibility of parole for the malice
murders of Jain and Wendell Williams and life in prison with the possibility of
parole for home invasion and armed robbery, to run concurrently with each
other and consecutively to the malice murder sentences. Additionally, the trial
court sentenced Appellant to consecutive terms totaling forty years for
burglary in the first degree, two counts of theft by taking, and possession of a
firearm during the commission of a felony. The felony murder counts were
vacated by operation of law, and the trial court merged the aggravated assault
counts into the malice murder convictions. On May 13, 2021, Appellant filed a
timely motion for new trial, which he amended on June 17, 2022, with new
counsel. After an evidentiary hearing on June 27, 2022, the trial court denied
the motion on July 8, 2022. Appellant filed a notice of appeal on August 3, 2022,
but this Court dismissed the appeal because one theft-by-taking count
remained pending in the trial court. See Case No. S23A0339 (Dec. 20, 2022)
(Order dismissing appeal). Later, after the entry of this Court’s dismissal order
but before the filing of the remittitur in the trial court, the trial court entered

                                        2
     We conclude that the evidence was constitutionally sufficient

to authorize Appellant’s convictions because he and his co-

defendants planned the crimes and he was a party to them; that the

trial court properly exercised its authority in denying Appellant’s

motion for new trial on the general grounds; that the trial court did

not plainly err in concluding that the jail call recordings were

properly authenticated and did not abuse its discretion in

concluding that the recordings were not unduly prejudicial; and that

the trial court did not abuse its discretion in allowing expert

testimony interpreting gang terminology because the testimony

helped the jury understand the specialized language in the

recordings. We also conclude that Appellant has not preserved his

claimed sentencing error for appellate review because he failed to

object and because plain error analysis does not apply to claims like

these; that Appellant’s sentences are not void because they meet the




the nolle pros order on January 3, 2023, as to the pending theft-by-taking
count. On April 13, 2023, the trial court filed the remittitur, and Appellant
filed an amended notice of appeal on the same day. The case was docketed in
this Court to the August 2023 term and submitted for a decision on the briefs.
                                      3
statutory ranges under Georgia law; and that trial counsel was not

constitutionally ineffective because Appellant has not demonstrated

prejudice due to any failure to object. Accordingly, we affirm

Appellant’s convictions. However, we vacate the sentences for

burglary and one count of theft by taking because these counts

should have merged with home invasion and armed robbery,

respectively.

     Viewed in the light most favorable to the verdicts, the evidence

at trial showed as follows. We begin by generally summarizing the

evidence in the record, synthesizing pretrial statements by

Appellant’s co-defendants with testimony and other evidence

presented at trial. On April 22, 2018, Appellant spent time with his

friends and co-defendants Gary Pennamon, Kojack Thomas, Jr., and

Martez Gordon. That day, Appellant shared his idea to form a gang

called “Skullface” made up of individuals who “got bodies.” Kojack

knew that the Williamses kept guns and money in their home

because he previously spent time with them; as a result, he

suggested that the group steal from them. The group drove to the

                                 4
road on which the Williamses lived, parked down the road away

from the house, and walked to the house. Around 9:00 or 10:00 p.m.,

Appellant and Gary entered the home while Martez and Kojack

briefly remained outside before entering. Appellant fatally shot

Wendell once using a nine-millimeter firearm. Members of the group

fatally shot Jain a total of three times. The group afterward

searched the house, taking firearms and the Williamses’ 2005

Chevrolet Impala. Alija Pennamon, Gary’s nephew, testified at trial

that he saw a video the group recorded before leaving the house in

which they bragged about the killings. Appellant appeared in the

video. After recording the video, the group left the home with the

Impala.

     Early the next morning on April 23, 2018, around 4:00 a.m.,

Gary texted Alija asking for marijuana. Alija responded that he had

some to share, so Gary went with Martez in the Impala to Alija’s

house. Alija got into the car with Gary and Martez, rode with them

to another location to acquire more marijuana, and tried to leave

after Gary said, “[W]e killed two people.” Gary refused to let Alija

                                 5
leave. Eventually, the group also picked up Kojack, and Alija began

driving the Impala. As Alija drove quickly down a dirt road, he lost

control of the car and crashed it into a ditch with Gary, Kojack, and

Martez inside. Gary texted Isaiah Mason asking for a ride. Isaiah

drove to Gary’s location but could not find him.

      Meanwhile, Robert Wilkerson, a constable with the Dodge

County Magistrate Court, was responding to a report of suspicious

persons in the same area. Constable Wilkerson turned onto the dirt

road and came upon four young men; two took off running to the

right (one carrying a rifle), and two went to the left. He kept driving

down the road without arresting the four young men and eventually

saw the wrecked Impala. At the same time, Deputy Jonathan

Wright of the Dodge County Sheriff’s Office responded to the same

area to a report of a vehicle in a ditch. He came upon Isaiah, who

said that he was there to pick up his brother.2

      On April 25, 2018, concerned neighbors who had not seen the



      2 Isaiah testified that he refers to Gary as his “brother” even though they

are not biological brothers.
                                       6
Williamses in a few days called 911 to request a welfare check.

Deputy Dustin Rogers of the Bleckley County Sheriff’s Office

responded to the Williamses’ home, where he discovered their

bodies. A concerned neighbor who met Deputy Rogers at the home

pointed out that the Williamses’ Impala “was gone and that

everything was just awry.”

     Following their arrest, Martez and Gary gave recorded

statements to law enforcement regarding the events we summarized

above, which we recount in more detail below. In one recorded

interview, Martez stated that Appellant shared with the group the

day of the murders that he wanted to form a “Skullface” gang where

each member of the gang “got bodies”; that the group said they would

“hit this lick”; that the group shot Jain multiple times; that

Appellant shot Wendell once using a nine-millimeter firearm; and

that the group stole items including firearms and a vehicle from the

Williamses’ home. In another recorded interview, Martez stated that

Kojack proposed the idea to the group that they rob the Williamses

to get their guns; that the group shot Jain multiple times; that

                                 7
Appellant shot Wendell once; that the group stole guns from the

house; and that Appellant and others looked around the Williamses’

home for items to steal. In Gary’s recorded statement, Gary asserted

that the group discussed “hitting a lick”; that Appellant was present

when the murders occurred; that someone shot Jain; and that

Appellant shot Wendell.

     Later on, Martez, Gary, and Kojack pled guilty to the murders

and testified at trial; the recordings of Martez’s and Gary’s

interviews with law enforcement officers were also played at trial.

Martez testified that he shot both victims; Gary testified that he

shot Jain and that Kojack shot Wendell; and Kojack testified that he

did not know who shot the Williamses but that Appellant entered

the house with a firearm.

     While awaiting trial, Appellant made jail phone calls that were

recorded and played at trial in which Appellant attempted to

influence witnesses. For example, Appellant asked for “the math” of

a co-defendant he wanted to contact in another prison because the

co-defendant had “stacked” on him, and Appellant wanted to “reach

                                 8
out” to that co-defendant. In another call, Appellant asked if the

person he was calling knew individuals at Coffee County

Correctional Facility where Gary was detained or at Phillips State

Prison where Martez was detained and discussed that Gary was

“dead.” Appellant also called his mother, asking her not to identify

him in surveillance videos that the State planned to play at trial

that showed the group together at a gas station near the time of the

murders, and he informed her that he planned to “play a dirty

game.” The State played these recordings at trial following

authentication by an employee of the Dodge County Sheriff’s Office,

whose job duties included monitoring jail calls and who described

how the jail’s recording system operated. The State further called

GBI Agent Eugene Howard to testify as an expert in gang language

and to interpret the recordings, who explained that “the math”

meant the phone number, that “stacked” meant snitched, and that

“reach out” meant to talk to someone.

     1. Before we turn to Appellant’s enumerations of error, we

must address three procedural issues in the trial court that

                                 9
implicate our jurisdiction to hear this appeal. See Gonzales v. State,

 (

) (2023) (“It is incumbent upon the

Court to question its jurisdiction in all cases in which jurisdiction

may be in doubt.” (cleaned up)). First, because the trial court entered

an order on the motion for new trial before the judgment became

final upon the trial court’s grant of the State’s pretrial motion for

entry of an order of nolle prosequi on one theft-by-taking count, we

must determine whether the trial court had the authority to do so.

Second, we must consider whether the trial court properly entered

the nolle pros order as to the theft-by-taking count before we issued

the remittitur and the trial court entered it. Third, because

Appellant did not file a second notice of appeal within 30 days of the

entry of the nolle pros order, we must determine whether the notice

of appeal was timely filed, which is a necessary predicate to our

jurisdiction. Notwithstanding this procedural sequencing, we

conclude that Appellant’s appeal is properly before the Court.

     (a) This is the second time that Appellant has appealed his

convictions in this case. We dismissed Appellant’s first appeal under

                                  10
Seals v. State, 

 (

) (2021), disapproved

of on other grounds by Gonzales, 

 n.7, because one

theft-by-taking count of the indictment remained unresolved, and

thus the judgment was not final. See Case No. S23A0339 (Dec. 20,

2022) (Order dismissing appeal). Seals did not specifically address

the question of what authority a trial court possesses to rule on a

motion for new trial as to counts for which a defendant has been

sentenced when other counts remain unresolved. However, we did

state that “[u]nder existing practice, the far better course is to file

and litigate a motion for new trial (during which the transcripts will

be completed), and only then seek a certificate of immediate review

in the event that the motion for new trial is denied.” Seals, 

. This description is consistent with a trial court’s general

authority to rule upon properly filed motions while the case remains

pending in the trial court. Cf. OCGA § 15-6-8 (1) (recognizing the

power of superior courts to exercise original jurisdiction over

criminal cases); OCGA § 15-6-8 (6) (stating that superior courts have

authority “[t]o exercise such other powers, not contrary to the

                                  11
Constitution, as are or may be given to such courts by law”); OCGA

§ 5-6-34 (b) (stating that trial courts may enter an order “not

otherwise subject to direct appeal” and providing for procedure to

appeal from such interlocutory orders). We now make clear that a

trial court has jurisdiction to enter an order on a timely motion for

new trial as to counts for which a defendant has been sentenced even

when other counts remain unresolved. The fact that such an order

is not final for purposes of appellate jurisdiction, see Seals, 

, has no bearing on the trial court’s authority to enter it.

Because there was no bar to the trial court here entering an order

on the properly filed motion for new trial even though another count

remained pending, our appellate jurisdiction is unaffected.3


     3 We acknowledge that we have previously dismissed at least two appeals

in a similar procedural posture as Appellant’s case, on the ground that “the
order denying the motion for new trial was not legally valid because it was
entered while the dead-docketed count remained pending.” Norris v. State, 

, 119 n.1 (

) (2023) (describing order dismissing prior
appeal). See also Wheeler v. State, 

, 484 n.1 (

) (2022)
(explaining procedural history that included order dismissing prior appeal;
vacating trial court order denying motion for new trial that had been entered
before judgment became final upon entry of nolle pros order; and remanding
for trial court to enter an order on the pending motion for new trial). We
disapprove of Norris and Wheeler to the extent that they suggest that an order

                                     12
      (b) Second, we must address whether the trial court had

authority to enter a nolle pros order before the return of the

remittitur. In its codified preamble, the Appellate Practice Act

(“APA”) directs us to “liberally construe[ ]” it “so as to bring about a

decision on the merits of every case appealed and to avoid dismissal

of any case or refusal to consider any points raised therein, except

as may be specifically referred to in this article.” OCGA § 5-6-30. We

therefore generally begin in each case otherwise properly within our

jurisdiction with the premise that, absent legal authority or

principles that prevent us from reaching the merits, we should reach

the merits the parties raise. See id. And here, where the trial court

issued a nolle pros order while an earlier appeal was pending, the

only statutory directive that would prevent us from reaching the

merits is OCGA § 5-6-45 (a).4 That subsection provides that in



denying a motion for new trial is invalid when it is entered while dead-docketed
counts remain pending.
       4 As we explain later in this subdivision, when a supersedeas takes effect

is also controlled by decisions from this Court explaining that notices of appeal
usually act as supersedeas. See, e.g., Sanders v. State, 

 (

) (2022) (“A notice of appeal generally divests the trial court of
jurisdiction to alter the judgment or order that is being appealed.”).
                                       13
criminal cases, supersedeas applies only to “cases where a sentence

of death has been imposed or where the defendant is admitted to

bail”; otherwise, it is silent as to which actions by a trial court are

precluded during the pendency of a criminal appeal. See OCGA § 5-

6-45 (a). OCGA § 5-6-45 (a) is inapplicable here because Appellant

did not receive a death sentence and is not out on bail. See Sanders

v. State, 

 (

) (2022) (explaining that

OCGA § 5-6-45 (a) “means that the trial court cannot authorize the

execution of a convicted defendant or, if the defendant is out on bail,

require her to start serving her sentence while her appeal is

pending”). Thus, reading OCGA §§ 5-6-30 and 5-6-45 (a) together,

see In the Interest of T. B., 

 (

) (2022)

(explaining that “codified preambles are part of the statutory act and

appropriate to read in pari materia” (cleaned up)), we follow the

APA’s admonition to reach the merits of Appellant’s case.

     Moreover, we possess inherent power to protect our own

jurisdiction. See Ga. Const. of 1983, Art. VI, Sec. I, Par. I (providing

that “[t]he judicial power of the state shall be vested” in this Court,

                                  14
among others); OCGA § 15-1-1 (stating that “[t]he judicial power is

vested in such tribunals as are created by the Constitution of this

state”). See also Garcia v. Miller, 

 (

)

(1991) (“This court has the inherent power essential to protect the

judiciary as an independent branch of state government and to

maintain a court system capable of providing for the administration

of justice in an orderly and efficient manner.”); Wallace v. Wallace,

 (

) (1969) (“That the courts possess

certain inherent powers is a proposition which, so far as we know,

has never been questioned. This means, then, when the [Georgia]

Constitution declares that the legislative, judicial and executive

powers shall forever remain separate and distinct . . . it thereby

invests those officials charged with the duty of administering justice

according to law with all necessary authority to efficiently and

completely discharge those duties the performance of which is by the

Constitution committed to the judiciary, and to maintain the dignity

and independence of the courts.” (cleaned up)). When action by a

trial court could prevent us from hearing an appeal that we

                                 15
otherwise have constitutional and statutory authority to decide, we

may exercise our inherent power to protect our jurisdiction over that

case. Cf. In re Judicial Qualifications Comm’n Formal Advisory Op.

No. 239, 

 (

) (2016) (“Jurisdiction refers

to the types of cases the court can hear and decide. Power includes

the authority to perform any function reasonably necessary to

effectuate its jurisdiction[.]” (cleaned up)).

      Consistent with the APA’s admonition to decide appeals on the

merits and keeping in mind our inherent power to protect our

jurisdiction, we conclude that the trial court was authorized to nolle

pros the theft-by-taking count before the return of the remittitur.

This approach comports with “the general principle that the trial

court is divested of jurisdiction to alter the judgment or order

appealed from,” Sanders, 

, because the nolle pros

order here did not affect the counts of which Appellant was convicted

and which were challenged on appeal.5 Accordingly, we hold that we


      5 Consistent with this principle, the trial court has authority “to amend

its own records, so as to make them conform to the truth” and “[t]o correct its

                                      16
have jurisdiction over Appellant’s case notwithstanding the entry of

the nolle pros order before the return of the remittitur. Cf. Felix v.

State, 

 (

) (1999) (noting that the APA

“was passed to simplify the procedure for bringing a case to the

appellate court, and to secure speedy and uniform justice in a

uniform and well-ordered manner; not to set traps and pitfalls by

way of technicalities for unwary litigants” (cleaned up)). In doing so,

we clarify that our decision today addresses only how the APA and

its supersedeas provisions affect cases over which we otherwise

already have jurisdiction.

      (c) Finally, Appellant’s first notice of appeal ripened upon the

entry of the nolle pros order that made the judgment final, so it is

not legally relevant that he did not file a second notice of appeal

within 30 days after its entry. See State v. Hood, 

, 664-




own proceedings before final judgment.” OCGA § 15-1-3 (6)-(7). We also note
that our approach is consistent with how federal courts handle this issue. See,
e.g., SEC v. Barton, 

 (5th Cir. 2023) (recounting “that the filing
of a valid notice of appeal from a final order of the district court divests that
court of jurisdiction to act on the matters involved in the appeal, except to aid
the appeal” and other exceptions (cleaned up)).
                                       17
665 (

) (2014) (stating that a notice of appeal filed after

final judgment, but before an order disposing of a motion for new

trial, will ripen upon a trial court’s denial of the motion for new

trial). See also Spears v. State, 

, 94-97 (

) (2023) (holding that a notice of appeal, which was timely filed

after the denial of the motion for new trial, ripened after the trial

court issued a nolle pros order, even though the appellate court had

dismissed the original appeal because of the existence of pending

counts). Accordingly, we have jurisdiction to consider the

enumerations of error raised.

     2.   (a)   Appellant   first   claims   that   the   evidence   was

constitutionally insufficient under Jackson v. Virginia, 

(

, 61 LE2d 560) (1979), but he is wrong. “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

[the defendant] was convicted.” Fitts v. State, 

 (859

                                    

) (2021). “This limited review leaves to the jury the

resolution of conflicts in the evidence, the weight of the evidence, the

credibility of witnesses, and reasonable inferences to be made from

basic facts to ultimate facts.” Wilkerson v. State, 

(

) (2023) (cleaned up).

     Here, the evidence presented at trial and recited in part above

was plainly sufficient to authorize the jury to find Appellant guilty

of each offense for which he was convicted. Although the evidence

was conflicting, Martez’s and Gary’s pretrial statements to law

enforcement and Kojack’s testimony at trial inculpated Appellant,

and the jury was free to discredit contrary evidence. See 

 It is

legally inconsequential whether Appellant fired all the fatal shots or

stole all the items from the home because the jury was authorized to

infer that he shared the criminal intent to perpetrate those crimes,

and Appellant was part of the group that entered the Williamses’

home armed with firearms to “hit a lick” while the Williamses were

inside. See OCGA § 16-2-20 (defining party to a crime). See also

Rooks v. State, 

 (

) (2023) (“Conviction

                                  19
as a party to a crime requires proof of a common criminal intent,

which the jury may infer from the defendant’s presence,

companionship, and conduct with another perpetrator before,

during, and after the crimes.” (cleaned up)). The evidence recited

above was constitutionally sufficient to authorize a rational jury to

find Appellant guilty of malice murder, felony murder, home

invasion, armed robbery, aggravated assault, burglary in the first

degree, possession of a firearm during the commission of a felony,

and theft by taking. See, e.g., Jordan v. State, 

(

) (2019) (holding that the evidence was sufficient to

support malice murder and other convictions where the defendant

agreed to participate in a home invasion as part of a gang, held the

victim at gunpoint, “was observed laughing [with another member

of the group] about the shooting,” and spoke in jail about a person

the defendant killed, and where the group took the victim’s property

from the house); Overstreet v. State, 

 (

) (2021) (holding that the evidence was sufficient to authorize

malice murder conviction where evidence indicated that the

                                 20
defendant agreed with others to rob the victim, went to the victim’s

home carrying firearms, and shot the victim after demanding

money, and that members of the group held the victim at gunpoint

and searched the house for items to steal).

     (b) Appellant also contends that the verdict was contrary to the

principles of justice and equity and against the weight and

sufficiency of the evidence. To the extent that Appellant seeks relief

from this Court under the “general grounds” in OCGA §§ 5-5-20 and

5-5-21, this claim presents nothing for our review, see Kimbro v.

State, 

 (

) (2023), because “the decision

to grant a new trial on the general grounds is vested solely in the

trial court.” King v. State, 

 (

) (2023)

(cleaned up). In its order denying Appellant’s motion for new trial,

the trial court stated that it reviewed the evidence and record and

found that the verdict was “not contrary to the evidence or decidedly

and strongly against the weight of the evidence” and that “the

principles of justice and equity [did] not demand a new trial.”

Accordingly, Appellant’s general grounds claim fails. See Allen v.

                                 21
State, 

 (

) (2023) (“Once we have

determined that the trial court properly exercised its authority in

refusing to grant a new trial on the general grounds, we cannot

review the merits of that decision by the trial court.” (cleaned up)).6

      3. Appellant next maintains that the trial court abused its

discretion by admitting recordings of Appellant’s jail phone calls

because the recordings lacked proper authentication and were

unduly prejudicial. However, Appellant did not assert an objection

based on lack of authentication below, and therefore his

authentication argument is reviewable only for plain error. See

OCGA § 24-1-103 (d). See also Davis v. State, 

(

) (2017) (applying plain error review where the

defendant raised a different argument on appeal than the basis for

his objection at trial). Plain error has four prongs:

      First, there must be an error or defect — some sort of

      6 Although many of us continue to “question whether it is proper for this

Court to import Jackson into an appellate review of the general grounds (or to
otherwise rely on Jackson as part of that analysis),” we need not resolve that
issue today because Appellant also argues that the evidence was
constitutionally insufficient. King, 

 n.8. See also Muse v. State,

, 653 n.6 (

) (2023).
                                      22
     deviation from a legal rule — that has not been
     intentionally    relinquished      or    abandoned,      i.e.,
     affirmatively waived, by the appellant. Second, the legal
     error must be clear or obvious, rather than subject to
     reasonable dispute. Third, the error must have affected
     the appellant’s substantial rights, which in the ordinary
     case means he must demonstrate that it affected the
     outcome of the trial court proceedings. Fourth and finally,
     if the above three prongs are satisfied, the appellate court
     has the discretion to remedy the error — discretion which
     ought to be exercised only if the error seriously affects the
     fairness, integrity, or public reputation of judicial
     proceedings.

Washington v. State, 

 (

) (2021)

(cleaned up).

     An audio-recording that is created

     at a time when the device producing the items was not
     being operated by an individual person or was not under
     the personal control or in the presence of an individual
     operator shall be admissible in evidence when the court
     determines, based on competent evidence presented to
     the court, that such items tend to show reliably the fact
     or facts for which the items are offered[.]

OCGA § 24-9-923 (c). Here, the employee of the Dodge County

Sheriff’s office testified that her job duties included listening to jail

calls; that an automated system recorded all jail calls and stored

them on a server for four years; that the inmates entered a personal

                                   23
identification number before calling; that Appellant used his own

identification number when placing calls; that the system also

tracked the phone numbers the inmates dialed; that the system

accurately recorded the calls at issue when made; and that no one

altered the recordings. In light of this testimony, the trial court was

authorized to determine by a preponderance of the evidence that the

recordings tended to reliably show that they were the contents of the

calls that Appellant placed, and thus did not err, much less plainly

err, in admitting them. See Westbrook v. State, 

(

) (2020) (rejecting, under plain error review,

argument that audio recording of jail call was not properly

authenticated where the State presented similar testimony as to the

recording process); OCGA § 24-1-104 (a) (“Preliminary questions

shall be resolved by a preponderance of the evidence standard.”). See

also Reid v. State, 

 (

) (2019).

     Additionally, the trial court did not abuse its discretion by

overruling Appellant’s objection under OCGA § 24-4-403 (“Rule

403”), which, in part, authorizes a trial court to exclude “relevant

                                  24
evidence . . . if its probative value is substantially outweighed by the

danger of unfair prejudice[.]” When

     reviewing the admission of evidence under Rule 403, we
     look at the evidence in a light most favorable to its
     admission, maximizing its probative value and
     minimizing its undue prejudicial impact. And it is well
     settled that the application of Rule 403 is a matter
     committed principally to the discretion of the trial courts,
     and the exclusion of evidence under Rule 403 is an
     extraordinary remedy which should be used only
     sparingly.

Salvesen v. State, 

 (

) (2023) (cleaned

up). The recordings were highly probative because they illustrated

consciousness of guilt. See West v. State, 

 (

) (2019) (holding that audio-recordings of jail calls

attempting to influence a juror were relevant, did not constitute

improper character evidence, and were not unduly prejudicial as

they tended to show the defendant’s consciousness of guilt). And

Appellant has not explained on appeal any danger of unfair

prejudice that the recordings caused, nor do we see any. Cf.

Robinson v. State, 

 (

) (2020) (“Robinson

points only to Rule 403 to support his claim, but other than noting

                                  25
the gruesome nature of the video, he fails to explain how this portion

of the video was unfairly prejudicial to him.”). Thus, the trial court

did not abuse its discretion.

     4. Appellant next asserts that the trial court abused its

discretion under Rule 403 by allowing GBI Agent Eugene Howard

to testify as an expert in gang language. A defendant need not “be

charged with criminal street gang activity before otherwise relevant

evidence of gang activity may be admitted.” Richardson v. State, 

 (

) (2020) (cleaned up). “Like other evidence,

the admission of evidence of gang activity is committed to the sound

discretion of the trial court, and the court’s decision to admit such

evidence will not be disturbed on appeal absent an abuse of

discretion.” Taylor v. State, 

 (

) (2018).

Agent Howard explained the meanings of various words and phrases

in Appellant’s jail phone call recordings, such as “the math,”

“flipped,” and “reach out to,” which helped the State show that

Appellant was unhappy with the prospective witnesses and wanted

to talk to them before trial. Agent Howard’s testimony was highly

                                 26
probative because it helped the jury understand the unfamiliar

terminology in the calls, and, properly understood, Appellant’s

statements using that vernacular showed that he wanted to speak

with others because they were cooperating with the State in a

manner that was unfavorable to him. See Richardson, 

(“The letter was largely incomprehensible to someone unfamiliar

with the vernacular of Richardson’s gang, and the expert testimony

was relevant (and had significant probative value) because it

showed that the letter instructed [a person who knew about the

crimes] to keep quiet about [the victim’s] murder. And it was

important to show that the letter was designed to keep [that person]

quiet because Richardson’s attempt to conceal his involvement in

the crimes was evidence of his guilt.” (cleaned up)). Lastly, the

expert testimony was not unfairly prejudicial because the jury heard

evidence that Appellant planned to form a gang, and that was the

motivation for the crimes, so the testimony that Appellant was using

gang language was unlikely to “inflame the passion of the jury for a

reason that is irrelevant to the guilt or innocence of the defendant.”

                                 27
Wilson v. State, 

 (

) (2023). See also

Richardson, 

 Accordingly, the trial court did not abuse

its discretion.

      5. (a) Appellant further argues that the trial court’s comments

at sentencing show that it plainly erred by sentencing him based on

“the concepts that are present in [Appellant’s] world where life has

little to no meaning” rather than under Georgia law. 7 At the

sentencing hearing, the trial court stated:

      I thought that I would have a dilemma in sentencing you.
      I must balance what is a fair and appropriate sentence as
      it relates to you in your situation against the needs of the
      people of this state, this circuit, this county, and the city
      of Chester as justice requires. Though initially I thought
      my task would be difficult, I have resolved that it is not.
      The dilemma that I thought I would have was do I
      sentence Demarcus Deshawn Blash according to my
      worldly concepts of compassion and caring for life? But
      then it occurred to me how could anyone complain if I
      sentenced Mr. Blash [according] to the concepts that are
      present in his world where life has little to no meaning as
      reflected by the manner in which the Williamses’s [sic]
      were murdered and your admission of guilt trying to
      influence witnesses by intimidation and that intimidation


      7 Appellant does not argue that the trial court’s comments demonstrate

bias or impartiality. Compare Jackson v. State, 

 (

) (2023).
                                     28
     including the fear of death.

Appellant did not object, which deprives him of the ability to seek

ordinary appellate review. And the trial court’s remarks are not

subject to plain error review, because they do not fall within one of

the limited categories of alleged errors that the General Assembly

has said can be reviewed for plain error. See Keller v. State, 

 (

) (2020) (“This Court has declined to extend

plain error analysis to other claims of error in the absence of a

specific provision by the General Assembly.”) Because none of the

statutory bases of plain error review are present, we do not review

Appellant’s error as articulated.

     (b) Nevertheless, Appellant cannot waive a voidness objection

by failing to object at trial, so this Court will address Appellant’s

arguments to the extent that he challenges the voidness of his

sentences. See Marshall v. State, 

 (

) (2020). Appellant’s sentences are not void because they fall

within the statutory punishment ranges. See id; OCGA §§ 16-5-1 (e)

(1) (outlining murder sentencing possibilities as death or life in

                                    29
prison with or without parole); 16-7-1 (b) (providing that sentence

range for burglary in the first degree is a prison term of between one

and twenty years); 16-7-5 (d) (sentencing options for home invasion

are “imprisonment for life or imprisonment for not less than ten nor

more than 20 years and by a fine of not more than $100,000.00”);

16-8-12 (a) (1) (C) (stating that the punishment for theft by taking

of property “at least $1,500.01 in value but . . . less than $5,000.00

in value” is “imprisonment for not less than one nor more than five

years and, in the discretion of the trial judge, as for a

misdemeanor”); 16-8-12 (a) (6) (B) (“If the property which was the

subject of the theft offense was a . . . firearm, by imprisonment for

not less than one year nor more than ten years[.]”); 16-8-41 (b)

(declaring that sentencing choices for armed robbery are death, life

in prison, or between ten and twenty years in prison); 16-11-106 (b)

(setting punishment for possession of a firearm during the

commission of a felony at “confinement for a period of five years,

such sentence to run consecutively to any other sentence which the

person has received”).

                                 30
     6. Appellant contends that he was denied effective assistance

of counsel due to his trial counsel’s failure to object when the trial

court allegedly did not sentence Appellant under Georgia law. To

show that his trial counsel was ineffective, Appellant must

demonstrate deficiency and prejudice. See Evans v. State, 

 (

) (2023) (citing Strickland v. Washington,

 (

, 80 LE2d 674) (1984)). Deficiency

means trial counsel performed objectively unreasonably under all

the circumstances and in light of prevailing professional norms. See

Strickland, 

. We “must indulge a strong

presumption” that trial counsel performed reasonably. 

.

And to show prejudice, Appellant must demonstrate “a reasonable

probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” 

. We need not

address both prongs if Appellant fails to show either of them. See 

.

     “A trial court, in imposing a sentence, may consider any

evidence that was properly admitted during the guilt-innocence

                                 31
phase of the trial, as well as the conduct and attitude of the

defendant during trial.” Wilson, 

 (cleaned up). But “[a]

trial court should not . . . take into account when sentencing any

considerations that are not clearly shown by the evidence of record.”

Blake v. State, 

 (

) (2001). Appellant

has failed to show any prejudice from the trial court’s statement that

it was sentencing him according to “the concepts that are present in

his world where life has little to no meaning.” The statement

Appellant points to is somewhat confusing, and the thrust of the

trial court’s consideration seems to be the “manner in which the

Williamses were murdered” and the way Appellant tried to

intimidate the witnesses. That information was in evidence and was

proper for the trial court to consider. See Wilson, 

-

741. Appellant was sentenced within the proper statutory ranges,

and he has not shown that this stray comment from the trial court

resulted in his sentences being higher than they would have been

otherwise.   Thus, he has not shown that he was prejudiced by

counsel’s failure to object to this comment, and his ineffectiveness

                                 32
claim fails. See Strickland, 

 (explaining that “there

is no reason for a court deciding an ineffective assistance claim . . .

to address both components of the inquiry if the defendant makes

an insufficient showing on one”).

     7. We have identified two merger errors that harm Appellant

and should be corrected. See Dixon v. State, 

(

) (2017) (recounting this Court’s authority to sua

sponte correct merger errors and explaining that we most commonly

exercise that authority with respect to merger errors that harm a

defendant). Counts 5 and 10 of the indictment charged Appellant

with first degree home invasion and first degree burglary,

respectively. First degree burglary does not require proof of any fact

beyond those required to prove first degree home invasion. Compare

OCGA § 16-7-1 (b) with OCGA § 16-7-5 (d). Therefore, Appellant’s

conviction for first degree burglary merged into the conviction for

home invasion. See Drinkard v. Walker, 

 (

) (2006) (“Under the required evidence test, . . . the applicable

rule is that where the same act or transaction constitutes a violation

                                    33
of two distinct statutory provisions, the test to be applied to

determine whether there are two offenses or only one, is whether

each provision requires proof of a fact which the other does not.”

(cleaned up)); Washington, 

 n.1 (noting that “the first

degree burglary count merged with the first degree home invasion

conviction”). Therefore, we vacate the sentence for first degree

burglary.

     Additionally, Counts 6 and 7 charged Appellant with armed

robbery for taking Jain’s and Wendell’s firearms by force, and Count

12 charged Appellant with the theft by taking of “a firearm, the

property of Jain and Wendell Williams.” The theft by taking of the

firearm should have merged, see Wallace v. State, 

(

) (2016), and therefore no sentence can be imposed on

it. We accordingly also vacate Appellant’s sentence as to theft by

taking of the firearm.

     Judgment affirmed. All the Justices concur.




                                 34