McIver v. State

321 Ga. 565
FINAL COPY

S25A0299. MCIVER v. THE STATE.

ELLINGTON, Justice.

Benjamin Clarence McIver appeals his convictions for malice

murder and other crimes in connection with the shooting death of

Brandon Smith.1 McIver contends that his trial counsel provided

1 The crimes occurred on April 16, 2020. After being originally indicted

on December 2, 2020, McIver, Antavius Teazia Wilcox, and James Alphonso
Parker were reindicted by a Chatham County grand jury on March 25, 2021.
McIver and Wilcox were charged with malice murder, three counts of felony
murder, and one count each of armed robbery, kidnapping, aggravated assault,
and possession of a firearm during the commission of a felony. McIver alone
was charged with possession of a firearm by a convicted felon, but that count
was nolle prossed after trial. Wilcox alone was charged with possession of a
firearm by a first-offender probationer. Parker alone was charged with the
offense of tampering with evidence. McIver was tried separately at a jury trial
that ended on June 30, 2022, and he was found guilty on all counts. On July 1,
2022, McIver was sentenced to serve three consecutive terms of life in prison
without the possibility of parole for malice murder, armed robbery, and
kidnapping, and a consecutive five-year prison term for possession of a firearm
during the commission of a felony. More specifically, the armed robbery
sentence was run consecutively to malice murder, the kidnapping sentence was
run consecutively to armed robbery, and the sentence on the firearms count
was run consecutively to kidnapping. The felony murder counts were vacated
by operation of law, and the aggravated assault count was merged into the
armed robbery. McIver filed a timely motion for new trial, which he amended
through new counsel on January 18, 2023. After hearings on February 7 and
October 24, 2023, the trial court denied McIver’s amended motion for new trial
on August 12, 2024. McIver filed a timely notice of appeal, and the case was
constitutionally ineffective assistance, that the trial court

committed plain error by not suppressing part of a custodial

statement, and that the evidence was insufficient to sustain the

jury’s verdict as to armed robbery. For the reasons explained below,

we reverse McIver’s conviction for armed robbery but affirm his

remaining convictions, and we remand the case to the trial court for

resentencing.

The evidence presented at trial showed that, on April 16, 2020,

McIver and co-indictee Antavius Wilcox, who was not tried with

McIver, bound Smith with computer cords, kidnapped him in his

vehicle, took and used his debit card, and executed him in a wooded

area past the end of Pate Street, a dead-end street in Chatham

County. Much of the evidence, as summarized below, came from

forensic extractions and records relating to cell phones belonging to

Smith, Wilcox, and McIver, which revealed their movements and

communications on the day of the shooting. Such evidence showed

docketed in this Court to the term beginning in December 2024 and submitted
for a decision on the briefs.
2
that Wilcox arranged to meet Smith and for the two of them to meet

McIver, that soon afterward Wilcox used Smith’s debit card, and

that Wilcox then worked to obtain a gun.

On the morning of April 16, Smith was working for a plumbing

and mechanical company when he was instructed between 9:30 and

10:00 a.m. to go to a different job site, and he left in his gray Kia

Optima. Smith communicated with Wilcox first through a dating

app and then directly by cell phone. There were several calls

between their phones from 10:22 a.m. to 11:20 a.m.2 At 11:08 a.m.,

Smith’s phone was used to locate an apartment complex near

Wilcox’s residence, where Wilcox’s phone was simultaneously

located, and Smith’s phone moved to the same complex. Smith’s

phone then searched for an address that was near the residence of

James Parker, who lived with Remon Roberson, although there was

no evidence that Smith had any connection with the area. Wilcox,

Roberson, and Parker were members of the Blood gang. That

2 The evidence showed that those calls may have been deleted later from

Smith’s phone.
3
morning, Wilcox was attempting to locate Parker to obtain a firearm

that she had previously loaned to him, but she was unable to locate

him at that time.

Cell phone data also showed that Wilcox spoke with McIver at

least seven times between 8:40 a.m. and 11:52 a.m., with a few of

their calls lasting longer than ten minutes. At 11:29 a.m., McIver

texted Wilcox “Savannah Gardens off Pennsylvania Avenue” and

then “Kall when you in route so I can B050.” At McIver’s trial, the

State’s gang expert testified that Blood gang members often

substitute the letter “c” with the letter “k” in words and that “B050”

was a term used by Blood gang members meaning to “be on point”

or “be ready.” At 11:37 a.m., Wilcox texted McIver “GK, you got

knife,” and McIver responded “red,” which the gang expert testified

is Blood slang for “Respect Every Damu,” the last word of which is

Swahili for “blood.” At 11:44 a.m., Smith’s phone was used to search

for Capital Street, which is near Savannah Gardens, and Wilcox’s

phone moved to that location at the same time McIver’s phone was

there. After a text from McIver to Wilcox at 12:00 p.m., McIver’s

4
phone had no activity for almost three hours, which indicated that

the phone was off during that period or the data was deleted. There

was never any communication between Smith’s phone and McIver’s

phone.

At 12:09 p.m., Smith’s phone searched for Wells Fargo and

traveled to a Wells Fargo Bank branch, arriving at 12:18 p.m. In

surveillance footage, Wilcox, who was wearing a head wrap and

mirrored sunglasses and was driving Smith’s vehicle, obtained

money using his debit card while someone in the passenger seat was

covering his face with a white cloth. Between 12:50 p.m. and 1:37

p.m., several calls were made from both Wilcox’s and Smith’s phones

to Parker and Roberson. Roberson testified that Wilcox had been

calling Roberson to ask where Parker was and that she asked if she

could get Roberson’s gun, but Roberson did not want to give it to her.

Roberson eventually told Parker to respond to Wilcox and give

Wilcox her gun or “whatever she want[ed].” Parker eventually left

the house with a gun. Parker testified at trial that Roberson told

him to give Wilcox her gun back. Wilcox stopped by their house,

5
driving a car with a person in the back seat who was not McIver,

and Parker handed her the gun through the car window.

Video from a residential surveillance camera showed that

Smith’s vehicle traveled down Pate Street in Chatham County at

approximately 1:40 p.m. and returned a few minutes later. About

the same time, a nearby resident who lived near the end of Pate

Street saw a vehicle fitting the description of Smith’s drive to the

end of the road and into a wooded area, heard a gunshot about three

minutes later, and saw the vehicle leaving Pate Street. Location

data from Wilcox’s phone shows that, afterward, she returned to the

area of Savannah Gardens. At 3:50 p.m., McIver sent six

“multimedia messages” — probably containing images or photos —

from his phone to Wilcox, and one minute later, she responded,

“Monsta braxy ass n***a.” Although the content of McIver’s

messages was not available on any phone records or extractions, the

State argued at trial during its closing argument that Wilcox’s

response likely was a positive affirmation of her own actions and

that the messages likely contained images of Smith’s murder

6
because, when Wilcox was arrested, her phone contained a video of

her committing an unrelated execution-style double-homicide with

which she was later charged. A call on Wilcox’s phone at 5:35 p.m.

showed she was again near Parker’s and Roberson’s house, and

Smith’s cell phone was located on a nearby street that evening.

At 8:12 p.m. on April 16, 2020, Wilcox called 911 from near her

residence to report a dead body in the woods past the dead end of

Pate Street. A Savannah police officer responded and located a

deceased person, later identified as Smith, on his knees face down

on the ground 30 to 40 yards into the woods. A GBI medical

examiner later determined Smith’s death was a homicide caused by

a single gunshot wound that entered the back of Smith’s skull and

exited the bridge of his nose. A forensics officer processed the scene

and obtained swab samples of the computer cords used to bind

Smith’s hands behind his back. The lead detective, Jacob Schroyer,

submitted these swabs to the GBI for DNA testing. On April 21,

officers located Smith’s vehicle, the inside of which was covered in

soot and smelled like gasoline, suggesting an attempt to burn the

7
vehicle.

On the night following the murder and again on April 20,

McIver used his phone to review news reports regarding shootings

and homicide investigations in Savannah, including two specifically

mentioning Pate Street, and an article about fires in Savannah.

McIver also searched for information about a “car fire,” searched his

name on a website for obtaining background checks, and then

searched “how do I find out if I have a warrant.” In May 2020, Wilcox

was arrested, and Detective Schroyer reviewed her phone records,

observed that she had been communicating with McIver on the day

of the murder, obtained a search warrant for McIver’s phone, and

conducted a non-custodial interview of McIver at police

headquarters. During that interview, McIver confirmed his phone

number and stated that, until two weeks ago, he had been working

only odd jobs. McIver denied knowing Wilcox but subsequently said

that he may have sold marijuana to her. McIver confirmed he was

still looking for a job on April 16 but denied having been to the Wells

Fargo branch on Victory Drive and denied knowledge of Smith’s

8
vehicle or of the location of Pate Street. McIver then consented to a

buccal swab for his DNA.

Based on a subsequent report from the GBI showing a DNA

match between McIver and one of the cords used to bind Smith,

Detective Schroyer obtained an arrest warrant for McIver. At a post-

arrest interview of McIver in November 2020, Schroyer read McIver

his Miranda3 rights, and McIver agreed to speak with Schroyer.

McIver denied killing anyone or being present when anyone was

killed. When McIver said he wanted to make a phone call, Schroyer

confirmed that McIver did not want to talk further. Schroyer said he

would not waste any more of McIver’s time but would “get [him] on

[his] way.” Schroyer then asked McIver, “What’s your phone number

real quick?” McIver gave Schroyer his new phone number, and the

interview ended.

Because the GBI forensic biologist initially assigned to test the

DNA samples could not complete the analysis due to the low level of

DNA, the samples were sent to another GBI forensic biologist for

3 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

9
analysis using TrueAllele software. Emily Boswell, who performed

the analysis, stated that of the four samples taken from the cords

used to bind Smith, only one contained a match to McIver, Parker,

Roberson, or Wilcox. Boswell determined that a “DNA match was

identified between” one swab and McIver and that the DNA match

was, “approximately, one million times more probable than a

coincidental match to an unrelated person in the population.”

1. McIver contends that his trial counsel provided

constitutionally ineffective assistance when he failed to make a

timely request for the assistance of a forensic expert in DNA

analysis in preparing for trial and reviewing the testing procedures

used by the GBI, and when counsel failed to file a pre-trial motion

challenging the reliability of the DNA test results pursuant to the

evidentiary standard established in Harper v. State, 249 Ga. 519,

524-526 (1) (292 SE2d 389) (1982), for new scientific techniques.4

The trial court rejected this claim, relying in part on trial counsel’s

4 Where, as here, the trial in a criminal case commenced before July 1,

2022, the Harper standard applies. See Garrison v. State, 319 Ga. 711, 725 (3)
(b) (905 SE2d 629) (2024).
10
choice to attack the reliability of the DNA evidence through cross-

examination. Because McIver has failed to show that his counsel’s

performance was deficient, this claim of ineffective assistance fails.

To prevail on a claim of ineffective assistance, a defendant

must prove both that the performance of his lawyer was deficient

and that he was prejudiced by counsel’s deficient performance.

Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80

LE2d 674) (1984). To satisfy the deficiency prong of the Strickland

test, the defendant “must show that his attorney performed at trial

in an objectively unreasonable way considering all the

circumstances and in light of prevailing professional norms.” Lofton

v. State, 309 Ga. 349, 360 (6) (846 SE2d 57) (2020). “This requires a

defendant to overcome the strong presumption that counsel’s

performance fell within a wide range of reasonable professional

conduct, and that counsel’s decisions were made in the exercise of

reasonable professional judgment.” Scott v. State, 306 Ga. 417, 419-

420 (2) (831 SE2d 813) (2019) (citation and punctuation omitted).

“Decisions regarding trial tactics and strategy may form the basis

11
for an ineffectiveness claim only if they were so patently

unreasonable that no competent attorney would have followed such

a course.” Thomas v. State, 311 Ga. 706, 714 (2) (a) (859 SE2d 14)

(2021) (citation and punctuation omitted). The defendant must also

show that the deficient performance prejudiced the defense, which

requires showing that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would

have been different.” Strickland, 466 U. S. at 694 (III) (B). If an

appellant “fails to meet his burden of proving either prong of the

Strickland test, the reviewing court does not have to examine the

other prong.” Williams v. State, 315 Ga. 797, 806 (2) (884 SE2d 877)

(2023).

“Typically, the decision whether to present an expert witness

is a matter of trial strategy that, if reasonable, will not sustain a

claim of ineffective assistance.” Guzman-Perez v. State, 310 Ga. 573,

577 (2) (853 SE2d 76) (2020) (citation and punctuation omitted).

More specifically, how to respond to “the presentation of an expert

witness by the opposing side,” such as “whether to present counter

12
expert testimony, to rely upon cross-examination, to forego cross-

examination and/or to forego development of certain expert opinion,

is a matter of trial strategy” that, if reasonable, cannot successfully

establish a claim of ineffective assistance of counsel. Birdow v. State,

305 Ga. 48, 52 (2) (823 SE2d 736) (2019) (citation and punctuation

omitted).

During trial, McIver’s counsel filed a motion to permit video

testimony of expert witnesses and an ex parte motion for funds to

hire two forensic DNA experts. The next day, counsel subpoenaed

Jarrett P. Ambeau to testify about forensic interpretation, and Dr.

Greg Hampikian to testify regarding forensic analysis, testing, and

collection. Counsel explained that he did not provide any written

reports regarding the experts’ findings because he did not have the

funds approved and had not received the part of the GBI file needed

for them to write a report challenging the DNA evidence. Although

the trial court admonished counsel for not having the two experts

under subpoena and not having written reports until the State was

“close to resting,” the court granted the requested funds but denied

13
the request for the testimony to be virtual. Counsel did not make

any further effort to secure funds or the expert witnesses’

attendance, and neither expert testified for the defense.

After the judgment of conviction was entered and a motion for

new trial was filed, new appellate counsel filed both an amended

motion for new trial and a motion for funds to obtain forensic expert

testimony and a report on the DNA evidence. At the first hearing on

McIver’s motion for new trial, trial counsel testified that, although

about 50 percent of his practice was criminal defense, he had never

tried a case with DNA evidence in 27 years of practice but that he

researched the issue, consulted several other attorneys, and

eventually identified two experts on DNA evidence about a week

prior to trial. Neither expert informed counsel initially that they

needed additional material from the GBI that had not been provided

through discovery, but neither expert was comfortable testifying

without that material. Dr. Hampikian reviewed the evidence and

educated counsel about DNA evidence while he waited for the court

to approve his request for $2,500. After approval, Dr. Hampikian

14
stated that it would cost $13,000 to fly him to Chatham County to

testify in person. Despite the experts being unable to testify, counsel

“was constantly being coached [by them] throughout the entire

trial.” Counsel was able to use their assistance for cross-examination

of the State’s experts about mixture comparison and statistical

interpretation in DNA analysis, probabilistic genotyping, and

secondary DNA transfer. That cross-examination led to concessions

about those matters at trial and was the basis for a significant

portion of counsel’s closing argument.

Counsel also stated that he filed a demand for speedy trial at

McIver’s daily insistence even though they did not have all of the

discovery yet, and he spoke with McIver about the need for an expert

to challenge the DNA evidence and warned him about the dangers

of filing the demand. Counsel testified that the speedy trial demand

was a major reason he was unable to obtain the experts’ testimony

and report. The trial court granted the defense funds for an expert

pursuant to appellate counsel’s motion.

At the second motion-for-new-trial hearing, Dr. Hampikian

15
testified that trial counsel was unprepared and that he was ready to

help prepare counsel for cross-examination and to fly down, but that

he would be very honest with the court about the “level of

preparation and communication and rush.” He asserted that the

“very low level” of DNA analyzed — five cells or less when typically

an analyst prefers more than 200 cells for a profile — was below

GBI’s validation levels and would have created interpretation

challenges but the analysis was “not impossible.” If he had testified,

Dr. Hampikian would have explained the high risk of secondary

transfer and criticized the GBI experts for conflating the results of

studies. When asked about mathematical errors in his report, he

stated that he would provide a corrected report and that the errors

would not change the bottom line of his report. He testified that the

results from his software showed that the contributor percentage of

McIver’s known profile matched that obtained during the GBI’s

testing. Dr. Hampikian acknowledged that the TrueAllele program

is “good,” that he relied on it to render opinions in other cases, and

that he did not know whether the sample in one of those cases had

16
more cells present than the ones in this case.

Dr. Hampikian’s amended written report, which was

submitted the day after the hearing, criticized Boswell’s testimony

and counsel’s cross-examination of her and stated that it was “clear

from the GBI validation that for low template samples with at least

3 contributors, minor contributor profiles are subject to false

inclusion errors”; that it was not clear “the GBI established during

its validation that it can reliably interpret such low amounts of DNA

in such complex mixture samples”; and that “the GBI’s validation

study produced false inclusions with similar laboratory created

control samples, though with lower match statistics.”

(a) First, we address McIver’s claim that his trial counsel

should have obtained the assistance of DNA experts in preparing for

trial and reviewing the GBI’s testing procedures. The record shows

that counsel investigated and prepared for the DNA evidence in this

case, that he used the help of the DNA experts to prepare for cross-

examination, and that, given the time constraints caused by

McIver’s insistence on a speedy trial and the weaknesses of Dr.

17
Hampikian’s potential testimony, it was not unreasonable to rely on

cross-examination of Boswell rather than present testimony from

Dr. Hampikian. Considering all of the circumstances from counsel’s

perspective, and in the light of prevailing professional norms, we

conclude that McIver has failed to show that counsel’s strategic

decision not to use the assistance of DNA experts in some additional

way and not to present expert testimony about the DNA evidence

was so unreasonable that no competent attorney would have chosen

it. See Hughs v. State, 312 Ga. 606, 612-613 (2) (864 SE2d 59) (2021)

(holding that the appellant failed to carry his burden of showing

deficient performance where his trial counsel thoroughly

investigated and prepared for the State’s medical evidence and

made the strategic decision to attack that evidence through a

thorough cross-examination of the State’s witnesses instead of

presenting the testimony of a competing medical expert who counsel

was concerned would have made harmful concessions); Guzman-

Perez, 310 Ga. at 577-578 (2) (holding that the appellant could not

show deficient performance where his counsel made a strategic

18
decision to undertake a thorough cross-examination of the State’s

medical expert instead of retaining his own expert). The fact that

McIver and his appellate counsel “now disagree with the difficult

decisions regarding trial tactics and strategy made by trial counsel

does not require a finding that [McIver] received representation

amounting to ineffective assistance.” Guzman-Perez, 310 Ga. at 578

(2) (citation and punctuation omitted).

(b) Second, we turn to McIver’s claim that trial counsel failed

to file a pre-trial motion under Harper challenging the reliability of

the DNA testing using the TrueAllele software. Citing State v.

Gates, 308 Ga. 238 (840 SE2d 437) (2020), McIver recognizes that

we have not yet addressed or approved the reliability and

admissibility of TrueAllele analysis under the Harper standard.

Indeed, although we discussed TrueAllele analysis in Gates, we

decided in that case only “that (1) the defendant had shown

reasonable diligence in filing his extraordinary motion for new trial

based on TrueAllele analysis, and (2) the DNA evidence offered in

that case was material and may well affect the outcome of the case,”

19
and we did not consider in that case “any challenge to the

admissibility of the evidence.” Nundra v. State, 316 Ga. 1, 15 (5) (b)

(885 SE2d 790) (2023) (holding that the appellant failed to show

plain error in the decision to admit the TrueAllele analysis).

In this case, the trial court would have been authorized to

conclude that Boswell’s testimony showed the TrueAllele analysis

was scientifically valid and that no other evidence contradicted her

testimony. Boswell was one of the first GBI forensic biologists to be

trained in the TrueAllele probabilistic genotyping software used in

mixture interpretation. Boswell testified that probabilistic

genotyping software like TrueAllele and the science behind it is

generally accepted in the forensic community, that the general

scientific principles and techniques involved are valid and capable

of producing reliable results, that in analyzing the samples she

performed the scientific procedures in an acceptable manner, and

that her analysis was peer reviewed. Boswell also testified that the

GBI performed its own internal validation study that resulted in the

policies and procedures used in analyzing DNA samples with

20
TrueAllele, as well as the creation of different thresholds. On cross-

examination, Boswell confirmed the importance of abiding by the

policies and procedures and the thresholds established by the GBI’s

validation study of the TrueAllele software, as confirmed by the peer

reviewer in each case. On motion for new trial, Dr. Hampikian’s

testimony, which conceded his own use of TrueAllele analysis, did

not undermine its admissibility. Because McIver has not been able

to show that filing a Harper motion would have been successful —

in particular because his own proposed expert used TrueAllele

analysis and did not undermine its scientific basis — we cannot say

that trial counsel was deficient in failing to file such a motion. See

Santana v. State, 308 Ga. 706, 712 (3) (a) (842 SE2d 14) (2020)

(holding that trial counsel’s failure to file a Harper motion to exclude

fingerprint testimony was not deficient where the appellant had

failed to show that the fingerprint evidence presented by the State

had not reached a scientific stage of verifiable certainty or that the

specific fingerprint methodology or analysis used in that case was

not scientifically supported).

21
2. McIver also contends that his trial counsel rendered

ineffective assistance when he failed to move to suppress the portion

of McIver’s custodial statement occurring after he invoked his right

to silence and that the trial court committed plain error by not

suppressing that same portion of the custodial statement. Because

the theory behind McIver’s contention would require an extension of

precedent, it cannot support a claim of either plain error or

ineffective assistance.

McIver argues that the admission into evidence of Detective

Schroyer’s request for McIver’s phone number and his reply stating

his new phone number — all of which occurred, as described above,

after McIver said he needed to make a phone call and affirmed that

he did not want to talk further — violated his right to remain silent

under the Fifth Amendment to the United States Constitution.5

“[W]hen a person in the custody of law enforcement officers

5 McIver cites in passing the Georgia Constitution of 1983, Art. I, Sec. I,

Par. XVI, but he makes no separate argument and cites no cases regarding the
Georgia Constitution, and we therefore restrict our analysis to his claim under
the federal Constitution. See Smallwood v. State, 310 Ga. 445, 447 (2) n.2 (851
SE2d 595) (2020).
22
unambiguously and unequivocally invokes his right to remain silent

in connection with their interrogation, the interrogation must cease

immediately.” Davidson v. State, 304 Ga. 460, 468-469 (4) (819 SE2d

452) (2018). However, that right — derived from the Fifth

Amendment, see id. at 468 (4), and described in Miranda v. Arizona,

384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966) — is subject to an

exception for general booking questions. Thus, “even after a

defendant has invoked his rights, basic biographical questions” are

excepted from Miranda “because such ‘booking’ questions are

unrelated to the investigation and serve a legitimate administrative

need and therefore do not qualify as ‘interrogation.’” State v. Pauldo,

309 Ga. 130, 135 (2) (844 SE2d 829) (2020) (citation and punctuation

omitted). Booking questions that Georgia courts have allowed

include those seeking “the suspect’s name, age, address, educational

background, marital status, and other information required to

complete an arrest form.” Griffin v. State, 311 Ga. 579, 587 (6) (858

SE2d 688) (2021) (citation and punctuation omitted). But we have

not yet decided, and indeed have expressly declined to decide,

23
whether a police officer may ask a suspect for his phone number

under the booking exception. See id. Nor has the Supreme Court of

the United States decided that question. Cf. Pennsylvania v. Muniz,

496 U. S. 582, 601-602 (III) (C) (110 SCt 2638, 110 LE2d 528) (1990)

(four-justice plurality holding that a suspect’s answers to “questions

regarding [his] name, address, height, weight, eye color, date of

birth, and current age” that “were not intended to elicit information

for investigatory purposes” and “appear reasonably related to the

police’s administrative concerns” are “admissible because the

questions fall within a ‘routine booking question’ exception”).6 Under

United States Supreme Court and Georgia case law interpreting the

Fifth Amendment, therefore, a decision that requesting the

suspect’s phone number does not come within the booking

exceptions but amounts to interrogation would require an extension

of precedent.

(a) As a result, McIver has failed to show that the performance

6 We recently explained how difficult it is to say exactly what was the

holding of Muniz on this point. See Jenkins v. State, 317 Ga. 585, 597 (2) (c)
n.12 (894 SE2d 566) (2023).
24
of his trial counsel in not moving to suppress his exchange with

Detective Schroyer about his new phone number was deficient. See

Smith v. State, 313 Ga. 752, 757 (2) (a) (873 SE2d 142) (2022) (“[A]

criminal defense attorney does not perform deficiently when he fails

to advance a legal theory that would require an extension of existing

precedents and the adoption of an unproven theory of law.” (citation

and punctuation omitted)). See also Pugh v. State, 318 Ga. 706, 722

(2) (d) (899 SE2d 653) (2024) (“Trial counsel . . . cannot be deemed

ineffective for failing to argue precedent that was not in existence at

the time of the trial.” (citation and punctuation omitted)).

Accordingly, McIver’s claim of ineffective assistance fails.

(b) McIver also has failed to establish plain error.

To establish plain error, [the appellant] must show that
he did not affirmatively waive the error, that the error is
clear or obvious, rather than subject to reasonable
dispute, that it affected his substantial rights, and that it
seriously affects the fairness, integrity or public
reputation of judicial proceedings.

Williams v. State, 316 Ga. 304, 308 (1) (b) (888 SE2d 60) (2023)

(citation and punctuation omitted). Because McIver’s theory

regarding his exchange with Detective Schroyer about his new
25
phone number would require an extension of precedent, the alleged

error in admitting that exchange into evidence was not clear or

obvious rather than subject to reasonable dispute. See id. (“As to the

second part of the test, an error is plain if it is clear or obvious under

current law. An error cannot be plain where there is no controlling

authority on point or if a defendant’s theory requires the extension

of precedent.” (citation and punctuation omitted)). For this reason,

McIver’s claim of plain error fails.

3. McIver’s final contention is that the evidence was

insufficient to support his conviction for armed robbery. The armed

robbery count of the indictment charged that McIver and Wilcox,

“with the intent to commit a theft, did unlawfully take a debit card,

property of Brandon Smith, from the immediate presence of

Brandon Smith, by the use of a gun, an offensive weapon[.]” “The

State therefore was required to prove beyond a reasonable doubt

that [the] use of the handgun occurred prior to or

contemporaneously with the taking” of the debit card. Harrington v.

State, 300 Ga. 574, 577 (2) (a) (797 SE2d 107) (2017) (citation and

26
punctuation omitted). Moreover, the “taking” of property “is not a

continuing transaction which ends only when the defendant leaves

the presence of the victim. Instead, the taking is complete once

control of the property is transferred involuntarily from the victim

to the defendant, even if only briefly.” Id. (citation and punctuation

omitted).

The State correctly concedes that the evidence in this case was

not sufficient to authorize a rational trier of fact to find beyond a

reasonable doubt that McIver was guilty of armed robbery. Indeed,

the evidence presented by the State, including all reasonable

inferences, showed only that a gun was obtained and used well after

the theft of the victim’s debit card. Accordingly, the conviction for

armed robbery must be reversed. See Chavez v. State, 307 Ga. 804,

808 (1) (b) (837 SE2d 766) (2020) (reversing a conviction for

possession of a firearm by a first-offender probationer where the

State correctly conceded it presented no evidence that the appellant

possessed a firearm during the term of his probation and prior to his

discharge); Harrington, 300 Ga. at 577-578 (2) (a) (reversing a

27
conviction for armed robbery where the evidence was insufficient to

support a finding beyond a reasonable doubt that the appellant used

a handgun to take a cell phone from the victim); Johnson v. State,

288 Ga. 771, 773 (1) (a) (707 SE2d 92) (2011) (reversing a conviction

for armed robbery where the evidence failed to establish whether

the appellant “first took the debit card and then killed the victim or

whether he killed the victim and then took the debit card”).

Our reversal of the armed robbery conviction affects other

aspects of the trial court’s sentence: merging the aggravated assault

count into the armed robbery conviction, running the kidnapping

sentence consecutively to the armed robbery sentence, and in turn

running the sentence for possession of a firearm during the

commission of a felony consecutively to the kidnapping sentence.

Because we are reversing the armed robbery conviction, the

aggravated assault count no longer can be merged into it but must

instead be merged into the malice murder conviction because both

the malice murder and aggravated assault counts of the indictment

alleged that the co-indictees committed the crime “by tying [Smith]

28
up and shooting him,” and “there is no evidence to suggest the

occurrence of an aggravated assault independent of the act which

caused the victim’s death.” Miller v. State, 309 Ga. 549, 552 (3) (847

SE2d 344) (2020). Moreover, the kidnapping sentence no longer can

be run consecutively to the armed robbery sentence. Accordingly, we

also remand the case to the trial court for resentencing consistent

with this opinion. See, e.g., Reed v. State, 314 Ga. 534, 554 (9) (878

SE2d 217) (2022) (“[B]ecause [the appellant’s] sentence for

possession of a firearm during the commission of a felony . . . was

run consecutively to his sentence in [a] [c]ount . . . which now stands

vacated, we remand the case to the trial court for resentencing.”).

Judgment affirmed in part and reversed in part, and case
remanded for resentencing. Peterson, C. J., Warren, P. J., and Bethel,
McMillian, LaGrua, Colvin, and Pinson, JJ., concur.

29
Decided May 13, 2025.

Murder. Chatham Superior Court. Before Judge Morse.

David T. Lock, for appellant.

Shalena Cook Jones, District Attorney, Renorda E. Herring,

Lyle Burnham II, Assistant District Attorneys; Christopher M. Carr,

Attorney General, Beth A. Burton, Deputy Attorney General, Clint C.

Malcolm, Senior Assistant Attorney General, Nicholas D. Nunn,

Assistant Attorney General, for appellee.

30