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: June 24, 2025
S25A0213. LEE v. THE STATE.
PINSON, Justice.
Terrence Darnell Lee was convicted of felony murder and other
crimes in connection with five separate incidents in the summer of
2018, one of which resulted in the shooting death of Kemar Haw-
kins. 1
1 The incidents took place on July 21, July 25, July 28, July 29, and Au-
gust 2, 2018, with the fatal shooting happening on the last date, August 2, 2018. On November 7, 2018, a Gwinnett County grand jury indicted Lee for felony murder predicated on home invasion (Count 1), felony murder predi- cated on aggravated assault (Count 2), aggravated assault (Count 3), home in- vasion (Count 4), and possession of a firearm during the commission of a felony (Count 5), all in connection with the August 2 incident, home invasion (Count 6), aggravated assault (Counts 7 and 8), and possession of a firearm during the commission of a felony (Count 9), all in connection with the July 21 incident, home invasion (Count 10), aggravated assault (Count 11), and possession of a firearm during the commission of a felony (Count 12), all in connection with the July 25 incident, home invasion (Count 13), armed robbery (Counts 14 and 15), aggravated assault (Counts 16, 17, 18, 19, 20, and 21), and possession of a firearm during the commission of a felony (Count 22), all in connection with the July 28 incident, armed robbery (Counts 23 and 24), aggravated assault (Counts 25 and 26), and possession of a firearm during the commission of a On appeal, Lee contends that the trial court abused its discre-
tion by admitting evidence of a separate incident that took place in
Florida two weeks before the charged crimes; that the trial court
should have granted his motion to sever the counts related to the
felony (Count 27), all in connection with the July 29 incident, and possession of a firearm by a convicted felon (Counts 28, 29, 30, 31, and 32) on each of the five incident dates. Lee was later re-indicted on the same counts on February 5, 2020. Lee was initially tried before a jury in March of 2020, but that trial ended abruptly because of the COVID-19 pandemic, and the trial court declared a mistrial in a virtual hearing in June 2020. Lee’s second jury trial took place from April 13 to 25, 2022. The jury found Lee guilty on all counts. (The trial was bifurcated so that the jury did not hear about the felon-in-possession charges in Counts 28-32 until after it had reached a verdict on Counts 1-27.) The trial court sentenced Lee to life in prison for felony murder predicated on aggravated assault (Count 2) and for each of the home invasion and armed robbery convictions in Counts 4, 6, 10, 13, 14, 15, 23, and 24, 20 years in prison for each of the aggravated assault convictions in Counts 7, 8, 11, 16, 18, 19, and 21, 10 years in prison for possessing a firearm as a convicted felon on Au- gust 2 (Count 28), and 5 years in prison for each conviction for possession of a firearm during the commission of a felony in Counts 5, 9, 12, 22, and 27, all to be served consecutively, as well as 10 years in prison for the remaining convic- tions for possessing a firearm as a convicted felon (Counts 29, 30, 31, and 32), to be served concurrently with Count 28, for a total term in prison of 9 life sentences plus 175 years. The remaining counts merged for sentencing or were vacated by operation of law. Lee filed a timely motion for new trial, which he later amended. The par- ties agreed to have the motion decided on the briefs. On May 7, 2024, the trial court denied Lee’s motion for new trial. Lee filed a timely notice of appeal. The appeal was initially docketed as case S24A1239. However, this Court re- manded the case so that Lee could move the trial court to supplement the rec- ord on appeal with the record from his first indictment and trial. The trial court granted that motion. Lee then filed a timely renewed notice of appeal. The case was docketed to the term of this Court beginning in December 2024 and sub- mitted for a decision on the briefs. 2 incident that caused Hawkins’s death; that insufficient evidence
supported his convictions arising from the incident of July 25, 2018,
because no competent evidence showed that he possessed a weapon;
that, in regard to that same incident, the trial court should have
instructed the jury about the offenses of burglary and simple assault
as lesser included offenses of home invasion and aggravated assault;
that the trial court abused its discretion by allowing a detective to
identify Lee in surveillance footage that was played for the jury; and
that the cumulative effect of these errors requires a new trial.
We affirm Lee’s convictions. Any error in admitting the Florida
incident was harmless. The trial court had discretion not to sever
the murder-related counts because all the offenses charged in the
indictment were close in time and space and part of a “crime spree,”
and Lee has not shown that he was forced to proceed at an unfair
disadvantage due to the joinder of all the charges together. Suffi-
cient evidence supported Lee’s convictions relating to the July 25
incident, because a rational jury could conclude that the perpetrator
of that incident had a gun. As to that same incident, the trial court
3 was not required to instruct the jury about any lesser included of-
fenses, because no evidence supported that Lee committed only the
lesser offenses. Any error in allowing the detective to identify Lee in
the surveillance video was harmless. And Lee has not shown that
the cumulative effects of any errors deprived him of a fair trial.
1. Background The evidence at trial showed that Lee was involved in five sep-
arate incidents over a two-week period in the summer of 2018.
(a) Incident of July 21, 2018 On the night of July 20-21, 2018, Alaya Daniels was in her bed-
room in Snellville sometime after 3:00 a.m., talking with her boy-
friend on the phone, when someone opened the door of her room.
Alaya was not alarmed at first, because she thought the intruder
was one of her brother’s friends from out of town who were staying
at the home. Alaya said to the intruder, “[N]o, y’all not sleeping in
my room.” The intruder said, “[W]here’s Chi Town?” Alaya said she
did not know anyone named Chi Town and asked who the intruder
was. The intruder said, “[T]his is T.” Then he left and closed the
4 door.
Moments later, Alaya’s brother, Almari, was awakened by
someone shining a flashlight in his face and tapping on his leg.
Almari did not get a good look at the person, but he saw that he was
wearing Nike Jordan 11 sneakers. In a whispered voice, the person
said, “[G]ive it up.” Almari saw that he had a gun. Almari got out of
bed and went to his closet as if to get something for the person, but
then they started “tussling,” and Almari managed to push the per-
son out of his room. As Almari braced the bedroom door closed, the
assailant shot through the door. Almari was not hit.
The commotion woke up Almari’s mother, Venicia. She came
out of her bedroom and saw a man dressed in black. The man shot
at Venicia. Venicia jumped back behind her bedroom door.
Alaya, meanwhile, had overheard the scuffle and the gunshots
from her own room. She fled upstairs and called 911 from a closet.
After the intruder finally left, the family came out of hiding.
They saw that the screen on the kitchen window had been removed
where the intruder had broken into their home. When police later
5 arrived and processed the crime scene, they found several spent 9-
millimeter bullet casings.
At trial, Almari Daniels testified that he was sometimes known
as “Chi Town” among the people with whom he regularly played bas-
ketball. One of those people was Lee.
(b) Incident of July 25, 2018 On the night of July 24-25, 2018, Tionne Blagman was awak-
ened by someone standing in the shadows in her bedroom doorway.
She thought the person was her brother, Kychid, but when she spoke
to the person, he did not respond and vanished from the doorway.
Tionne went to tell Kychid what she had seen. Kychid was sleeping
in his own room with his girlfriend, Donaria. When he heard about
the person Tionne had seen, he thought it might have been his and
Tionne’s mother coming home from work, so he told Tionne to check
outside the house to see if that was the case. Tionne went outside
and saw a figure crouched outside the window of Kychid’s room. The
person told Tionne to go back inside, which she did. Then she told
Kychid what she had seen, and Kychid went to see for himself.
6 When Kychid got to the living room, he saw a shadow through
the window near the front door. He grabbed a kitchen knife and went
to guard the door. Kychid asked who was at the door, and the man
said it was “Ray” or “Tay.” The man started kicking at the door, but
he was unable to get in. Tionne and Donaria, meanwhile, had re-
treated deeper into the home.
Suddenly the man climbed in through Kychid’s bedroom win-
dow. Tionne fled to her own room, while Donaria ran into a third
bedroom and climbed out the window to escape the home. Kychid
also saw that the man was in the house, and he ran outside. Both
Kychid and Tionne heard gunfire from the living room. No one was
hit.
Tionne called 911. When police arrived, they found several 9-
millimeter spent shell casings in the living room, a screwdriver on
the ground outside Kychid’s pried-open window, and several muddy
footprints outside the front door. The footprints were later deter-
mined to have been made by Jordan 11 sneakers.
7 (c) Incident of July 28, 2018 On the night of July 27-28, 2018, Leonard Jolly and several
friends were sleeping in the front room of Jolly’s home in Snellville
when they were awakened by an intruder. The man, who had come
in through a window from which he had removed the screen, was
wearing a face mask, a gray Nike hoodie with a backpack under-
neath, jean or cargo shorts that looked “rugged,” and Jordan 11
sneakers. He was carrying a handgun with an extended magazine.
The man pointed the gun at the group and asked if they had any
cash, and one of the victims gave him some cash. Then he demanded
the BMW that was parked outside. When the owner of the BMW did
not surrender the keys, the man cocked his gun and threatened to
“play a game called eenie meenie miney mo” with the group. To pla-
cate the man, one of the other people in the group, Terrell Smith,
gave up his own car keys. The man grabbed the keys and left in
Smith’s car. The car was later recovered nearby.
Jolly called the police. During the ensuing investigation, police
obtained surveillance footage from a QuikTrip near Jolly’s home.
8 When police reviewed the tape, it showed a man entering the store
shortly before the July 28 incident took place. He was wearing a grey
hoodie with a backpack underneath, dark blue shorts with holes or
tears at the bottom, and what appeared to be Jordan 11 sneakers,
all of which were described by the victims of the July 28 incident.
After the man left the QuikTrip, the video showed him walking off
in the direction of the Jolly home, where the home invasion would
take place soon after. When the video was shown to the jury, the
officer who was testifying at the time identified the man in the video
as Lee.
(d) Incident of July 29, 2018 On the afternoon of July 28, 2018, Shaquille Johnson and
Quincy Swindler hosted a cookout at Johnson’s home in Snellville.
When the cookout ended late in the evening, Johnson and Swindler
drove in Swindler’s car to a nearby QuikTrip and then returned
home. The two men sat in the car outside Johnson’s home into the
early morning hours of July 29, talking and waiting to hear about
the location of another party they planned to attend.
9 Suddenly the passenger door was opened by a masked man
with a gun. The man demanded money and jewelry, which the vic-
tims gave up. The victims noticed that the gun was a black handgun
with an extended magazine, and that the assailant wore blue jean
shorts.
Swindler, who was in the driver’s seat, reached toward a gun
in the center cup holder, but the man warned him not to try any-
thing. The man took that gun, a Glock 27. Swindler got out of the
car, but the man told him, “Buddy, you try to run, the bullets will
catch you.” Swindler did not run. The man then asked “[W]here the
other gun at I know you got?” Swindler told him there was a gun in
the back seat. The man opened the back door and took Swindler’s
other gun, an AK pistol, which was inside a black and white check-
ered backpack. The man ordered Johnson and Swindler out of the
car and then told them to run toward some bushes down the street.
They complied, and Johnson then ran to his neighbor’s home and
called the police.
10 Most of the events of July 29 were captured on video. The rob-
bery itself was recorded by a neighbor’s security camera. At trial,
that footage was played for the jury while Johnson narrated, and
then again while Swindler narrated. The jury also saw surveillance
video from the QuikTrip, taken shortly before the robbery of John-
son and Swindler. The QuikTrip footage showed Johnson and Swin-
dler arriving in Swindler’s car and parking outside the store. Shortly
afterward, a white Volkswagen CC Sport with a distinctive chrome
strip on the side — the same make, model, color, and trim as a car
that was registered to Lee’s sister — arrived at the QuikTrip and
parked behind Swindler’s car. The driver of the white car never got
out. Swindler’s car then left the QuikTrip and headed toward John-
son’s home, followed by the white Volkswagen. A few minutes later,
the white Volkswagen showed up again in the footage from John-
son’s neighbor’s security camera. It was seen driving past Johnson
and Swindler as they sat in Swindler’s parked car, then drove back
in the other direction.
Later on the day of the robbery, the police showed separate
11 photo arrays of possible suspects to both Johnson and Swindler.
Johnson identified Lee as the assailant, with “sixty” percent confi-
dence. Swindler also picked Lee, with “70 percent” confidence.
(e) Incident of August 2, 2018 On the night of August 1 to 2, 2018, Kyron Hawkins was asleep
in his home in Snellville when he was awakened by a “loud banging.”
He ran from his bedroom and found that the light in the family room
was on, the outside door was open, and the home was full of smoke.
Kyron ran outside and around to the front of the home, where he
heard a “gurgling” sound. There, he saw his brother, Kemar, lying
on the neighbor’s porch. Kemar had been shot three times, and
would later die from his injuries. Kyron called 911.
Responding officers gathered witness statements and pro-
cessed the scene. They found seven spent 9-millimeter casings and
bullet fragments inside the home, and several muddy shoe prints
both inside and outside. Officers also viewed footage taken by nearby
security cameras. In the footage, a red Dodge Journey drove past the
entrance to the Hawkinses’ subdivision shortly before the shooting,
12 then turned around and entered the subdivision, then turned
around again to leave, then turned around a third time to drive into
the subdivision. About forty minutes later — a few minutes after the
shooting — the Dodge Journey left the area at high speed. Officers
were later able to track down the Journey and speak to its registered
owner. They determined that Lee was using the car on the night of
the shooting.
Additional surveillance footage from the night of the shooting
was also shown to the jury. That footage showed a Dodge Journey
arriving at 2:42 a.m. in the parking lot of a Walmart near the scene
of the shooting. About a half hour later, a man entered the Walmart
wearing cutoff jean shorts and black Jordan 11 sneakers. He left the
store five minutes later. When the footage was played for the jury,
the officer who was testifying at the time identified the man in the
video as Lee. Further footage showed that, about five minutes after
Lee leaves the Walmart, the Dodge Journey pulled into the parking
lot of a QuikTrip across the street, and then left five minutes after
that. The Journey then drove off in the direction of Hawkins’s home
13 — where Hawkins would be killed an hour later.
(f) Further Police Investigation The detectives investigating the five home invasions noticed a
number of similarities among the incidents. The spent casings re-
covered from the scene of the August 2 shooting were determined to
be fired from the same gun as the casings found at the scenes of the
July 21 and July 28 incidents, and all were consistent with having
been fired from a Glock 9-millimeter pistol — as were the bullets
removed from Kemar Hawkins’s body. The shoeprints found at the
scene of the shooting appeared to be very similar to those left outside
the Blagman home, where the July 25 incident took place, and they
all appeared to have been made by Jordan 11 sneakers, which was
the model of sneaker identified by the victims of the July 21 and
July 28 incidents. Moreover, the Hawkins home, where the August 2
shooting happened, was only a few houses away from the Jolly home,
where the July 28 break-in and robbery had occurred. And in both
of those incidents, as well as in the July 25 incident, the perpetrator
had gotten into the home through a rear window.
14 The detectives from the different investigations gathered to
compare notes. Following up on one lead, they looked further into
the red Dodge Journey and found that it was associated with an ad-
dress in Conyers. That address, officers noted, was a few miles from
the scene of the August 2 shooting, and was also only about 1000
feet from the spot where Smith’s stolen car was found after the July
28 incident. Furthermore, one of the residents associated with the
Conyers address matched the physical descriptions of the perpetra-
tor given by the victims of the different home invasions. That resi-
dent was Lee.
Officers got a search warrant for Lee’s home. The search turned
up, among other things, a grey Nike sweatshirt, which was later
found to have gunshot residue on it, and a pair of “frayed” jean
shorts, both of which matched the description of the perpetrator’s
clothes given by the victims of at least some of the incidents. Officers
also found a pair of black Jordan 11 sneakers. In addition, officers
found property that was reported stolen in one of the robberies. In
15 the garage, they found a black and white checkered backpack con-
taining an ID badge that belonged to Quincy Swindler, one of the
victims in the July 29 robbery. And under the bed, officers found a
backpack with Swindler’s AK pistol inside, as well as a toiletry kit
that contained Swindler’s .40-caliber Glock 27 handgun and more
ammunition.
A few other items of interest were also found in Lee’s home. In
one of the bedrooms was a Nautica suitcase containing 9-millimeter
ammunition and a case for a Glock 26 handgun with a piece of mail
addressed to Lee inside. The Glock 26 itself was never recovered.
But notably, a Glock 26 — an extended-magazine pistol — was con-
sistent with the description of the intruder’s gun given by the vic-
tims of the July 28 incident. Officers determined that the Glock 26
and the Nautica suitcase had been stolen in a July 7, 2018 home
invasion in Florida, as discussed further below.
2. Rule 404 (b) Evidence On appeal, Lee contends that the trial court erred by admitting
evidence of uncharged “other acts” under OCGA § 24-4-404 (b) (Rule
16 404 (b)). Under that rule, evidence of a defendant’s “other crimes,
wrongs, or acts” is not admissible to “prove the character of a person
in order to show action in conformity therewith,” but it may be ad-
missible for “other purposes, including, but not limited to, proof of
motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident.” OCGA § 24-4-404 (b). We review
a court’s evidentiary rulings under Rule 404 (b) for abuse of discre-
tion. See Harris v. State, 321 Ga. 87, 95 (2) (a) (913 SE2d 570) (2025).
(a) Before trial, the state moved in limine to introduce “other
acts” evidence under Rule 404 (b). The evidence in question had to
do with a home invasion in Florida that took place two weeks before
the earliest incident charged in the indictment here. The trial court,
after hearing the substance of the evidence through a proffer,
granted the State’s motion to admit the evidence under Rule 404 (b)
and denied the State’s alternative request to admit the other acts as
intrinsic evidence. In a later written order, the court clarified that
the evidence was admissible specifically to show “identity” and “in-
tent” under Rule 404 (b). That evidence was then presented to the
17 jury, as follows.
In the early morning hours of July 7, 2018, Daniel Woodson
returned home after a night out with friends. After getting inside,
Woodson remembered he had left his phone charger in his car. When
he opened the front door to retrieve the charger, he was confronted
by a man pointing a gun at his face. The man with the gun was soft-
spoken and was wearing a windbreaker, jean shorts that had a dis-
tressed style, and “white and like navy blue Nike shoes.” He was not
wearing a face mask.
The man pushed Woodson back into the home and into Wood-
son’s bedroom, all the while asking where Woodson’s valuables were,
and alluding to a safe. The man ordered Woodson to lie on the floor.
Woodson complied. The man tried to touch Woodson’s genitals, but
Woodson defended himself. Then the assailant noticed Woodson’s
Glock 26 handgun with an extended magazine, which was in the
nightstand. The assailant took the handgun and some cash from the
nightstand, as well as the case for the gun, which was in a closet.
The assailant left the bedroom. Woodson heard him go to the
18 kitchen and rifle through some drawers. The assailant returned to
the bedroom a few more times to make sure Woodson was still on
the floor, then eventually left. Woodson woke his grandparents and
told them what happened, and his grandmother called the police.
Responding officers interviewed Woodson and got descriptions
of his property that was stolen, including the gun, the gun case, and
a set of Nautica luggage. Detectives also got the serial number of the
gun, which they entered into a database for stolen guns. Sometime
later, the Florida detectives got a call from detectives in Gwinnett
County, who reported that they had found some of Woodson’s prop-
erty while investigating another matter — that is, while searching
Lee’s home. The Georgia detectives also sent Lee’s name and photo
to the Florida detectives. The Florida detectives used the photo to
prepare a sequential photo lineup. Woodson identified Lee as the
man who robbed him. He told the police he was “very, very, very
certain” that Lee was the perpetrator.
(b) When the State seeks to introduce evidence of a defendant’s
other acts under Rule 404 (b), it must show that (1) the evidence is
19 “relevant to an issue in the case other than the defendant’s charac-
ter,” (2) the evidence satisfies the balancing test of OCGA § 24-4-403
(Rule 403), which means showing that the probative value of the ev-
idence is “not substantially outweighed” by the danger of unfair prej-
udice, and (3) there is enough proof to show by a preponderance of
the evidence that the defendant committed the other acts. See
Mitchell v. State, 317 Ga. 107, 110 (1) (891 SE2d 915) (2023);
Thomas v. State, 314 Ga. 681, 683 (1) (878 SE2d 493) (2022). The
trial court found that all these criteria were satisfied, and it specifi-
cally found that the Florida evidence was relevant to show intent
and identity.
Assuming without deciding that the trial court abused its dis-
cretion by admitting the Florida evidence to show intent and iden-
tity, the error was harmless. A non-constitutional error is harmless
if it is “highly probable that the error did not contribute to the ver-
dict.” Smith v. State, 313 Ga. 584, 587 (872 SE2d 262) (2022) (cita-
tion omitted). When we assess whether an error was harmless, “we
20 review the record de novo and weigh the evidence as we would ex-
pect reasonable jurors to have weighed it,” Johnson v. State, 316 Ga.
672, 684 (4) (c) (889 SE2d 914) (2023).
Under that standard, it is highly probable that the admission
of the Florida evidence did not contribute to the verdict. Most im-
portantly, the evidence of Lee’s guilt in the other offenses was al-
ready quite strong. Two eyewitnesses, Johnson and Swindler, picked
him out of a lineup, with “sixty” percent and “70 percent” confidence.
A large amount of incriminating evidence was found in Lee’s home,
including stolen property from one of the incidents, clothes and
shoes matching those worn by the perpetrator of multiple incidents,
and the case for a Glock 26, which was consistent with the perpetra-
tor’s gun as described by some witnesses. In addition, Lee was cap-
tured on surveillance video wearing those same clothes near some of
the crime scenes shortly before the crimes occurred. And he was as-
sociated with two different vehicles that were captured in surveil-
lance footage, driving suspiciously, near two of the crime scenes.
Given all that evidence of Lee’s crime spree, it is highly unlikely that
21 evidence that Lee committed another home invasion in Florida two
weeks before the earliest charged event contributed to the verdict.
See Johnson, 316 Ga. at 684 (4) (c) (error in admitting graphic pre-
autopsy photos was harmless where evidence of guilt was strong and
other properly admitted photos were even more graphic); Hood v.
State, 311 Ga. 855, 869 (5) (860 SE2d 432) (2021) (any error in ad-
mitting testimony about images of the victim’s family that were vis-
ible on the victim’s laptop was harmless given the overwhelming ev-
idence of the defendant’s guilt). That is especially so because, alt-
hough the properly admitted evidence was not so strong that the
jury was absolutely certain to have found Lee guilty even without
the Florida evidence, the State did not make the Florida incident a
centerpiece of its case, or use the kind of propensity-based language
or arguments that we have considered especially damaging when
assessing harmless error. See, e.g., Morgan v. State, 307 Ga. 889,
898 (3) (e) (838 SE2d 878) (2020) (admission of video recording was
harmless error where the recording “played a minor role” in both the
State’s case and the defendant’s defense). Compare Harris v. State,
22 321 Ga. 87, 103-104 (2) (b) (913 SE2d 570) (2025) (erroneous admis-
sion under Rule 404 (b) of defendant’s prior domestic-violence inci-
dents with other partners was harmful where the State “relied” on
the evidence and “leaned into the classic propensity argument
throughout its closing,” telling the jury that the defendant “con-
trol[s] romantic partners with violence. That’s what he does. That’s
what he did in this case.”).
Because the admission of the Florida evidence under Rule
404 (b) was highly unlikely to have contributed to the verdict, this
claim of error fails.
3. Severance Lee contends that the trial court should have granted his mo-
tion to sever the counts arising from the incident of August 2, 2018
— the one that resulted in Kemar Hawkins’s death — from the re-
maining counts charged in the indictment.
A defendant is entitled to have counts severed if the counts
were charged together “solely on the ground that they are of the
same or similar character.” Lowe v. State, 314 Ga. 788, 791 (2) (a)
23 (879 SE2d 492) (2022) (citation omitted). But if the counts were
charged together instead because they were “based upon the same
conduct or on a series of acts connected together or constituting
parts of a single scheme or plan,” then severance lies within the
sound discretion of the trial court. Id. (citation omitted). When the
trial court exercises that discretion, it must “determine if severance
of the charges would promote a fair determination of the defendant’s
guilt or innocence.” Harris v. State, 314 Ga. 238, 281 (4) (875 SE2d
659) (2022) (cleaned up). To that end, the court should “consider
whether, in light of the number of offenses charged and the complex-
ity of the evidence, the fact-trier will be able to distinguish the evi-
dence and apply the law intelligently to each offense,” Strozier v.
State, 277 Ga. 78, 81 (5) (a) (586 SE2d 309) (2003) (citation omitted),
and it should sever the counts if doing so would “prevent a defendant
from being forced to proceed at an unfair disadvantage, due to con-
fusion of law and evidence by the trier of the facts and the ‘smear’
effect such confusion can produce,” Harris, 314 Ga. at 281 (4)
(cleaned up).
24 First, Lee did not have a right to severance. It is clear that the
counts of his indictment were charged together not “solely” because
they were of a similar character, but because they were a series of
acts closely linked in time and place: a two-week crime spree in
Snellville. The crimes were generally similar in nature, mostly in-
volving nighttime break-ins, and there was evidence common to sev-
eral of the incidents, including the Jordan 11 sneakers, the dis-
tressed jean shorts, and the spent 9-millimeter casings. Compare
Doleman v. State, 304 Ga. 740, 744-745 (3) (822 SE2d 223) (2018)
(severance not required where the counts of the indictment charged
a “crime spree consist[ing] of an eight-week period during which the
co-defendants committed a series of robberies and assaults using the
same weapons and stolen vehicles from previous offenses”), with
Mims v. State, 304 Ga. 851, 857 (2) (b) (823 SE2d 325) (2019) (sever-
ance required where “crimes were committed about a month apart
and involved different victims in different states” and evidence from
earlier crime “had no bearing” on later offenses). So the decision
25 whether to sever the murder-related counts was within the discre-
tion of the trial court. See Lowe, 314 Ga. at 791 (2) (a).
And the trial court did not abuse that discretion. Lee has not
argued that his defense was “constrained” in any way by his being
tried on all the counts together. See Pinkins v. State, 319 Ga. 595,
606 (3) (905 SE2d 596) (2024) (severance not required where defend-
ant was not prevented from pursuing any defense theories in trial of
all counts together). And although Lee’s trial involved several differ-
ent offenses committed over different days, with a significant num-
ber of testifying witnesses, that is true of many cases. It does not
necessarily mean that the jury would not have been able to under-
stand and keep track of the evidence. See id. at 605 (3) (trial with
large number of witnesses and exhibits “did not involve particularly
complex evidence or an unwieldy number of charges, such that a
trier of fact would be unable to distinguish the evidence and apply
the law intelligently as to each offense”) (cleaned up).
In arguing the latter point, Lee points to an issue that arose
with one juror during deliberations. After the jury had been out for
26 a few hours, the foreperson sent a note to the trial court indicating
that one juror felt the evidence was “not enough . . . for him to delib-
erate.” The note went on to say that this juror “cannot keep straight
the pieces of evidence associated with each separate incident and
believes he needs a hundred percent certainty to make a decision.”
The trial court brought the juror in question into the courtroom to
clarify the problem and to determine whether the juror was still par-
ticipating in deliberations. The juror then told the court that he had
trouble seeing how the robberies and the murder “combine[d].” The
juror said:
[W]e have like a robbery, entering, holding a gun to some- one, you know, face to face and taking their wallets, their car, whatever. And then you have another where some- one’s life has been taken. And I’m trying to separate the two and for some odd reason, I can’t see how the — the two combine. [ . . . ] I see the evidence. But when it comes to someone taking another person’s life, what I saw, I don’t see it. [ . . . ] I keep trying to get to the – that part of the murder because that’s where I have all of my – my doubts.”
In Lee’s view, this was an example of the “smear” effect that
can happen when charges are improperly joined. See Harris, 314 Ga.
at 281 (4). But the record does not show that any such “smearing” 27 occurred. The juror’s comments indicate that he was carefully eval-
uating the evidence for the different charged offenses. The record
does not support that he was confused about the law or the evidence,
see id., or unable to “distinguish the evidence and apply the law in-
telligently to each offense,” see Strozier, 277 Ga. at 81 (5) (a). And in
any event, the fact that one juror may have had questions about the
law or the evidence during deliberations does not mean that jury
was confused or misled because of the joinder of the counts, or that
the trial court abused its discretion by declining to sever the counts
before trial.
At bottom, Lee has not shown that being tried on all of the
counts together, including the murder-related counts, forced him to
“proceed at an unfair disadvantage” due to jury confusion or the im-
pairment of his defense. Harris, 314 Ga. at 282 (4). See also Pinkins,
319 Ga. at 606 (3); Price v. State, 316 Ga. 400, 404-405 (2) (888 SE2d
469) (2023) (trial court had discretion not to sever counts when de-
fendant did not show that being tried for all counts together was
28 unfair to him or confused or misled the jury). The trial court there-
fore acted within its discretion in denying the motion for severance.
4. Sufficiency of the Evidence Lee contends that the evidence at trial was not sufficient to
support his convictions under Counts 10, 11 and 12 for home inva-
sion, aggravated assault, and possession of a firearm during the
commission of a felony. Those counts all related to the incident of
July 25, when the Blagmans’ home was invaded in the middle of the
night. Lee argues that each of those charges required the State to
prove that he possessed a firearm, and that no admissible direct ev-
idence showed that the perpetrator of the July 25 incident had a
gun. In Lee’s view, that means the evidence supporting his convic-
tions was insufficient both as a matter of constitutional due process
and under Georgia statutory law.
We evaluate a due process challenge to the sufficiency of the
evidence by “viewing the evidence presented at trial in the light most
favorable to the verdicts, and asking whether any rational trier of
fact could have found the defendant guilty beyond a reasonable
29 doubt.” Henderson v. State, 317 Ga. 66, 72 (2) (891 SE2d 884) (2023).
“[C]onflicts or inconsistencies in the evidence, credibility of wit-
nesses, and reasonable inferences to be derived from the facts” are
for the jury to resolve. Perkins v. State, 313 Ga. 885, 891 (2) (a) (873
SE2d 185) (2022) (citation and punctuation omitted).
Due process allows for a conviction to rest on circumstantial
evidence alone, but under Georgia statutory law, a conviction that
rests only on circumstantial evidence cannot stand unless the evi-
dence “exclude[s] every other reasonable hypothesis save that of the
guilt of the accused.” OCGA § 24-14-6. That does not mean, however,
that the evidence must exclude every other “conceivable inference or
hypothesis” — only every reasonable one. See Bates v. State, 317 Ga.
809, 814 (2) (896 SE2d 581) (2023) (citation omitted). Whether an
alternative hypothesis is “reasonable,” and whether the circumstan-
tial evidence excludes any such hypotheses, are questions for the
jury, see id., and we will not disturb the jury’s findings unless they
are “insupportable as a matter of law,” Graves v. State, 306 Ga. 485,
487 (1) (831 SE2d 747) (2019). (citation omitted).
30 Here, the evidence was sufficient both as a matter of due pro-
cess and under OCGA § 24-14-6 to support Lee’s convictions on the
counts relating to the July 25 incident. Multiple witnesses testified
that the perpetrator broke into the home and that they heard gun-
fire inside the home after he was inside. Later, spent casings were
found inside the home. There was no evidence that anyone other
than the perpetrator used a gun. The jury was authorized to believe
the witnesses’ testimony about the gunfire, see Perkins, 313 Ga. at
891 (2) (a), and even if none of the witnesses testified that they di-
rectly saw the perpetrator with a gun, the jury could reject as un-
reasonable any hypothesis other than that it was the perpetrator,
and not the fleeing victims, who fired the shots. See Graves, 306 Ga.
at 487 (1).
5. Instructions on Lesser-Included Offenses In a related claim of error, Lee contends that the trial court
should have granted his written request to instruct the jury about
lesser included offenses for the charges arising from the July 25 in-
31 cident — about burglary as a lesser included offense of home inva-
sion, and about simple assault as a lesser included offense of aggra-
vated assault. Lee points out that the lesser offenses do not include
as an element that the perpetrator has a gun, and he argues again
that no evidence showed that the perpetrator of the July 25 incident
had a gun.
When a defendant makes a written request for a jury charge
on a lesser included offense, the charge “must always be given if
there is any evidence that the defendant is guilty” of the lesser of-
fense. Scoggins v. State, 317 Ga. 832, 840 (2) (896 SE2d 476) (2023)
(citation omitted). The evidence “does not need to be persuasive, but
it must exist.” Soto v. State, 303 Ga. 517, 520 (2) (813 SE2d 343)
(2018) (citation omitted). On the other hand, if the evidence shows
that the defendant “could have committed only the greater offense
as charged or no crime at all,” the trial court does not need to in-
struct the jury on the lesser offense. See Wilson v. State, 315 Ga.
728, 736 (6) (883 SE2d 802) (2023).
As an initial matter, Lee is correct that burglary and simple
32 assault are lesser included offenses of home invasion and aggra-
vated assault, respectively. A lesser offense is “included” within a
charged offense if, among other things, it is “established by proof of
the same or less than all the facts . . . than is required to establish
the commission of the crime charged.” OCGA § 16-1-6 (1). See also
Scoggins, 317 Ga. at 841 (2). A burglary is committed when a person
enters an occupied dwelling of another “without authority and with
the intent to commit a felony or theft therein,” OCGA § 16-7-1 (b),
and home invasion is committed when a person, “without authority
and with intent to commit a forcible felony therein and while in pos-
session of a deadly weapon,” enters the occupied dwelling of another.
OCGA § 16-7-5 (b). So a home invasion is a burglary with the added
elements of an intended forcible felony and the presence of a deadly
weapon. Or, put another way, a burglary may be “established by
proof of the same or less than all the facts” that establish a home
invasion. OCGA § 16-1-6 (1). Similarly, a simple assault happens
when a person “[a]ttempts to commit a violent injury to the person
of another” or “[c]ommits an act which places another in reasonable
33 apprehension of immediately receiving a violent injury,” see
OCGA § 16-5-20 (a) (1)-(2), and an aggravated assault is, among
other things, an assault “[w]ith a deadly weapon,” see OCGA § 16-
5-21 (a) (2).
But the trial court here was not required to instruct the jury
about the lesser included offenses, because no evidence supported a
finding that the perpetrator of the July 25 incident was guilty only
of the lesser offenses. The evidence at trial was that the perpetrator
broke into the Blagmans’ home, gunfire was heard inside the home,
and the police later found spent shell casings. Under those facts, the
jury could find that Lee committed the charged offenses of home in-
vasion and aggravated assault — the ones involving the use of a gun
— or it could find that Lee was not the perpetrator, and thus not
guilty of any crime. But there was no evidence from which the jury
could find that Lee committed only the lesser offenses of burglary
and simple assault — the ones not involving the use of a gun. Be-
cause no evidence supported a finding that Lee was guilty only of
the lesser charges, no jury instructions on the lesser charges were
34 required. See Wilson, 315 Ga. at 736 (6); Soto, 303 Ga. at 520 (2).
6. Identification Lee contends that the trial court should not have allowed a de-
tective to identify him in one of the surveillance videos that was
played for the jury. Lee objected to the identification at trial, so our
review is for abuse of discretion. See Bullard v. State, 307 Ga. 482,
491 (4) (837 SE2d 348) (2019).
(a) When the State was presenting evidence about the July 28
incident, it played surveillance footage recorded at a QuikTrip
shortly before the crime. The footage showed a person wearing cloth-
ing that matched the description given by the victims of the July 28
home invasion. The State introduced the footage through the testi-
mony of a detective, and it had the detective narrate the video as it
was played. Several times during this questioning, the State re-
ferred to “the Defendant” when asking about the video. For instance,
at one point the State asked, “Were you able to determine what di-
rection the Defendant walked in when he left the QT?” Lee eventu-
ally objected to the characterization of the person in the video as
35 Lee. The State then asked the detective if he had had an opportunity
to see Lee during the course of his investigation. The detective said
he had observed Lee speaking with other detectives for “a good
stretch of time, maybe approximately an hour,” and that, based on
that observation, he could recognize Lee in the surveillance video.
Lee renewed his objection, which the trial court noted.
(b) A witness ordinarily may identify a person in a photo or
video if the identification satisfies OCGA § 24-7-701 (a) (Rule 701
(a)). That rule allows a non-expert witness to give opinion testimony
so long as the opinion is “[r]ationally based on the perception of the
witness,” “[h]elpful to a clear understanding of the witness’s testi-
mony or the determination of a fact in issue,” and “[n]ot based on
scientific, technical, or other specialized knowledge.” Id. See also
Bullard, 307 Ga. at 491 (4). As applied to an identification of a per-
son in a photo or video, we have said that Rule 701 (a) is satisfied if
there is “some basis for concluding that a witness is more likely to
correctly identify a defendant as the individual depicted.” Glenn v.
State, 306 Ga. 550, 555 (3) (832 SE2d 433) (2019) (citation omitted).
36 A number of factors can determine whether a witness is “better
equipped than jurors” to correctly identify a person in a video, but
the “most critical factor” is “the witness’s level of familiarity with
the defendant’s appearance.” Glenn v. State, 302 Ga. 276, 280 (II)
(806 SE2d 564) (2017) (cleaned up).
Assuming without deciding that the trial court here abused its
discretion by allowing the detective to identify Lee in the video, the
error was harmless. First, the detective had already identified Lee
in the video several times before counsel objected, so the identifica-
tion the detective made after the objection was overruled was cumu-
lative of his earlier testimony, which minimized the harm of the
later identification. See Moore v. State, 315 Ga. 263, 271 (3) (b) (882
SE2d 227) (2022) (any error in admitting testimony was harmless
when the testimony was cumulative of other, similar testimony).
Also, the jury could see for itself that the person in the video was
wearing clothing — a grey hoodie, dark blue shorts with holes or
tears at the bottom, and what appeared to be Jordan 11 sneakers —
very much like the clothing that was later described by the victims
37 of the July 28 home invasion and then found in Lee’s home, so it is
highly unlikely that the detective identifying Lee in the video made
the difference when the jury was deciding whether Lee committed
the July 28 crimes. And finally, as explained before, the overall evi-
dence of Lee’s guilt was quite strong. See, e.g., Hood, 311 Ga. at 869
(5). Given all that, it is highly unlikely that the detective’s identifi-
cation of Lee in the video after the trial court overruled counsel’s
objection contributed to the verdict. See Smith, 313 Ga. at 587.
7. Cumulative Error Finally, Lee contends that the cumulative effect of the errors
at his trial requires his convictions to be reversed. To establish cu-
mulative error, Lee must show that “at least two errors were com-
mitted in the course of the trial,” and that, considered together along
with the entire record, the errors “so infected the jury’s deliberation
that they denied [him] a fundamentally fair trial.” Perrault v. State,
316 Ga. 241, 248 (3) (887 SE2d 279) (2023) (citation omitted). We
have assumed two errors at Lee’s trial: the admission of the Florida
evidence, and the detective’s identification of Lee in the surveillance
38 video. But even if those errors can be “aggregated for cumulative-
error review,” see Washington v. State, 320 Ga. 839, 861 (6) (912
SE2d 600) (2025), they did not deny Lee a fair trial. Given the weight
of the properly admitted evidence of Lee’s guilt, the combined effect
of these two assumed errors — in which the jury heard that Lee had
committed a separate home invasion two weeks before the charged
crimes, and it heard the detective repeat that Lee was the man in
the surveillance video — was highly unlikely to have contributed to
the verdict. In short, Lee has not “explain[ed] to the reviewing court
just how he was prejudiced by the cumulative effect of multiple er-
rors.” See Lane v. State, 308 Ga. 10, 18 (1) (838 SE2d 808) (2020). So
this claim fails.
Judgment affirmed. Peterson, CJ, Warren, PJ, and Bethel, Ellington, McMillian, LaGrua, and Colvin, JJ, concur.