Christopher Byers appeals his convictions for malice murder, aggravated battery, concealing the death of another, abandonment of a dead body, and tampering with evidence, all related to the killing of Ray Walnoha.
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Byerss primary enumeration of error is that the trial court erred by excluding inculpatory statements by another man involved in the crimes, overheard by a defense witness. Byers also argues that his conviction for aggravated battery was not supported by sufficient evidence, and that, alternatively, that count should have merged into his malice murder conviction, and that his sentence for the crime of tampering with evidence should have been that of a misdemeanor. We agree that the tampering count should have been treated as a misdemeanor, and so we vacate Byerss conviction on that count and remand the case for resentencing. We conclude that any error in failing to admit the defense witness testimony at issue was harmless, and that the evidence was sufficient to support a conviction for aggravated battery on which the trial court properly entered a separate sentence, and we therefore affirm Byerss other convictions.
Byerss convictions are predicated on evidence that he killed Walnoha with an ax at the Pickens County home of Arnold Griffith, Jr. The killing occurred sometime in late July 2014. Walnohas body was never found.
After Byers was taken into custody on an unrelated warrant in the fall of 2016, he admitted to an investigator that he twice struck Walnoha in the head with an ax while Walnoha slept on a couch on Griffiths porch, claiming that Walnoha intended to kill and rob Griffith and his family. Byers claimed that he then told Griffith that Walnoha was dead; Walnoha was still alive, however, having managed to crawl into the yard. After finding Walnoha in the yard, Byers claimed, Griffith struck Walnoha with the ax in the back of the neck. Byers admitted that he buried Walnohas body in the woods with Griffith, cleaned up the crime scene, and took Walnohas car, while Griffith cleaned off the ax. Byers also made incriminating statements to fellow inmates; one inmate testified that Byers told him that Walnoha was “twitching” or “kind of convulsing” when Byers and Griffith found him in the yard.
Griffith, who pleaded guilty to various charges related to Walnohas death prior to Byerss trial, testified that, on the day Walnoha was killed, Byers summoned him to look out into the yard, where, Byers reported, Walnoha was “dying.” Griffith testified that he observed that Walnoha was sitting in the yard, “swaying.” Griffith testified that he told Byers he would have to “do something” and then looked away, whereupon he heard what he presumed to be the sound of Byers killing Walnoha with an ax. Griffith admitted that he helped Byers clean up the crime scene, including using bleach on the porch, cleaning off the ax, and burying the body in the woods nearby. Griffith testified that Byers later told Griffith that he had moved the body but did not say where.
Byerss admissions and Griffiths statements as to Byerss involvement in Walnohas death were corroborated by other evidence. On July 23, 2014, Byerss sister and mother saw Walnoha and Byers together in Walnohas car. Sometime in the next few days, Byerss mother saw Byers driving Walnohas car. Byers showed his mother that he had Walnohas wallet, drivers license, and cell phone, and reported that Walnoha had given him the car and was with his girlfriend in Tennessee. Byers, who was acting strangely, showed his mother what she called a “hatchet” that was in the trunk of the car. On July 28, 2014, Walnohas car was involved in an accident and found abandoned about two miles from the crash site. Byerss DNA was recovered from blood on the drivers side airbag of the car.
Several months after Walnoha disappeared, Byers visited Walnohas brother and the brothers girlfriend, telling her, “I dont think youll ever have to worry about Ray knocking on the door again.” In March 2016, Byers asked Walnohas sister for help with legal trouble involving a car accident, asking her to testify that Walnoha never let anyone drive his car. Byers told the sister that her brother had met “some girl” and was in Kentucky.
The investigation into Walnohas disappearance was sparked in earnest in May 2016 when sheriffs deputies visited Griffiths home while investigating an unrelated matter. William Bartlebaugh, who was staying at Griffiths house, showed deputies a purported burial site near the home. Griffith also went with police and identified a place on a trail near the home as the place where Walnoha had been buried. A cadaver dog alerted to the same location. In a nearby burn barrel, agents found small bones, consistent with finger or foot bones, but too small for agents to test for DNA or even determine whether they were human remains. Agents also saw an area of the ground that appeared to have been disturbed, consistent with a very shallow grave.
GBI agents found that floorboards of a porch on Griffiths house had been bleached and that a wall was discolored and tested positive for the presence of blood. Inside the house, agents found a license plate that matched Walnohas car. They also collected an ax from the nearby home of Griffiths sister, Marjorie Babcock, that matched the description of the murder weapon later given by Byers.
After his arrest in the fall of 2016, Byers identified as Walnohas burial site the same place near Griffiths home that Griffith and the cadaver dog had identified.
1. Byers first argues that the trial court erred in excluding evidence proffered by the defense that Griffith had admitted killing Walnoha. We conclude that any error in this evidentiary ruling was harmless.
The defense proffered that Griffiths brother-in-law, Wesley Babcock, would testify that he overheard Griffiths inculpatory statements over a baby monitor that Wesley had set up in the room of his wife, Marjorie. Wesley testified that he used the baby monitor as part of his efforts to care for his wife, who was unwell, and he began to testify about a visit by Griffith to his sister in her bedroom about a month before her death in December 2017. Citing OCGA § 16-11-62 and general expectations of privacy in a bedroom, the trial court sustained the States objection to Wesleys testimony about what he overheard via the baby monitor that day. The defense proffered for the record that Wesley would have testified that he heard Griffith tell his sister that Byers hit Walnoha with the ax first, before Griffith “finished him off and put him out of his misery.”
We need not, and do not, decide whether the trial court properly concluded that Wesleys overhearing constituted a violation of OCGA § 16-11-62,
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whether the State even had standing to raise such a violation in the scenario presented here, or whether a party may forfeit a challenge to standing of this sort by not raising it in a timely way before the trial court.
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It is fundamental that harm as well as error must be shown for reversal. The test for determining nonconstitutional harmless error is whether it is highly probable that the error did not contribute to the verdict. In determining whether trial court error was harmless, we review the record de novo, and we weigh the evidence as we would expect reasonable jurors to have done so as opposed to viewing it all in the light most favorable to the jurys verdict.
Henderson v. State, 310 Ga. 708, 713 (3), 854 S.E.2d 523 (2021) (citations and punctuation omitted). See also OCGA § 24-1-103 (a) (“Error shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected․”). Any error in excluding Wesleys testimony about what he overheard over the baby monitor was harmless, because it was highly probable that exclusion of the testimony did not contribute to the verdicts. The proffered testimony was cumulative of other evidence as to Griffiths involvement. Moreover, even if the jury had concluded that Griffith dealt the final blow to Walnoha, it still would have had strong evidence on which to convict Byers of the charged offenses, at least as a party to the crimes.
Even without Wesleys proffered testimony about Griffiths involvement, the jury heard other evidence, in addition to Byerss statements, that Griffith may have dealt the final blow that felled Walnoha in the yard. See Mitchell v. State, 293 Ga. 1, 3 (2), 742 S.E.2d 454 (2013) (exclusion of evidence harmless when cumulative of other evidence admitted at trial). Prior to Wesleys testimony, another witness who was housed with Griffith in jail testified that Griffith had referred to himself as “the ax murderer.” Although that witness indicated that Griffith was “kidding,” the defense also was able to elicit Wesleys testimony for the jury that on one occasion when he visited Griffith in jail, Griffith was “screaming and yelling and saying he murdered somebody.”
Moreover, even if the jury had heard and credited Wesleys testimony about Griffiths involvement, and found that Griffith dealt the final blow, it is still highly probable that the jury would have concluded that Byers was guilty of Walnohas murder and the other crimes of conviction, at least as a party to the crimes, as the evidence of Byerss guilt was very strong. See Keller v. State, 308 Ga. 492, 503 (5), 842 S.E.2d 22 (2020) (in the “light of the strong evidence of [appellants] guilt,” refusal to allow appellants witness to testify was “harmless error, if error at all,” because it was highly probable that exclusion of evidence did not contribute to the verdict (citations and punctuation omitted)). “Conviction as a party to a crime requires proof that the defendant shared a common criminal intent with the principal perpetrator of the crime, which may be inferred from presence, companionship, and conduct before, during, and after the offense.” Hood v. State, 309 Ga. 493, 498 (1), 847 S.E.2d 172 (2020) (citation and punctuation omitted). Here, Byers admitted striking Walnoha in the head with an ax twice, claiming that he did so to protect Griffith and Griffiths family. Byers claimed that he then consulted with Griffith about what to do next, telling Griffith that Walnoha was dead. Byers claimed that Griffith then hit Walnoha with an ax himself and that the two then worked together to bury the body and clean up the crime scene and murder weapon. Byers also admitted taking Walnohas car; his own mother testified that she saw him with Walnohas car and other property around the time Walnoha is believed to have been killed; and DNA evidence showed that Byers had been driving Walnohas car after his death. Physical evidence such as the condition of the alleged crime scene and the ax found at the Babcock home also was consistent with Byerss admissions. Although Byers argues that there was no evidence that he and Griffith worked in concert to murder Walnoha, Byerss own statement, corroborated by other evidence, would have strongly supported such a conclusion. See Eller v. State, 303 Ga. 373, 378 (II), 811 S.E.2d 299 (2018) (evidence that appellant went to great lengths to conceal victims death, working with co-defendant to dispose of his body, get rid of murder weapon, clean up and destroy evidence at the crime scene, then lie to victims family and law enforcement supported finding that appellant aided and abetted assault). Therefore, even if Wesley had been permitted to testify that he overheard Griffith say that he inflicted the final blow to Walnoha, and even if the jury had credited that testimony, the jury still would have been highly likely to have found Byers guilty of murder and the other crimes charged.
Byers also argues that he was not indicted for being a party to a crime but rather “was indicted and convicted of malice murder for causing Walnohas death.” But a defendant need not be charged specifically as a party to the crime in order to support a conviction based on that theory. See Byrum v. State, 282 Ga. 608, 609-610 (2), 652 S.E.2d 557 (2007). The State specifically argued to the jury in closing that Byers could be convicted as a party to the crimes. And the trial court instructed the jury on the concept of party to a crime, explaining that every party to a crime may be charged with and convicted of commission of the crime — an instruction to which Byers affirmatively agreed at the charge conference and did not object when the instruction was given. Any error in excluding Wesleys proffered testimony was therefore harmless.
2. Byers next argues that the evidence was insufficient to sustain his conviction for aggravated battery. At the very least, he argues, his conviction for aggravated battery should be vacated, because that count merges into his conviction for malice murder. We disagree.
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The indictment charged Byers with aggravated battery for “maliciously caus[ing] bodily harm to ․ Walnoha, by seriously disfiguring his body, by striking ․ Walnoha on and about his head with an axe[.]” See OCGA § 16-5-24 (a). Byers argues that the evidence is insufficient to support his aggravated battery conviction because the State introduced no evidence of serious disfigurement of Walnoha. We evaluate the sufficiency of evidence as a matter of federal due process under the Fourteenth Amendment to the United States Constitution by determining whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In conducting that evaluation, “[i]t is not the job of this Court to weigh the evidence on appeal or resolve conflicts in trial testimony but rather to examine the evidence in the light most favorable to the verdict[.]” Browder v. State, 294 Ga. 188, 191 (1), 751 S.E.2d 354 (2013) (citation and punctuation omitted).
Although the Criminal Code does not define “seriously disfiguring” as used in the aggravated battery statute, see OCGA § 16-5-19, that term generally has been construed as meaning “gravely or greatly impairing or injuring the appearance of a member of a victims body, even if only temporarily.” Byrd v. State, 251 Ga. App. 83, 84 (1), 553 S.E.2d 380 (2001); see also Baker v. State, 246 Ga. 317, 318 (2), 271 S.E.2d 360 (1980) (construing predecessor statute). “Aggravated battery predicated upon serious disfigurement, whether temporary or permanent, requires proof that the injury inflicted was more than a superficial wound, that is, a scrape, bruise, discoloration, or swelling.” Yearwood v. State, 297 Ga. App. 633, 634 (1), 678 S.E.2d 114 (2009) (citation and punctuation omitted). “Inasmuch as the circumstances inevitably vary in each case of aggravated battery, whether disfigurement is serious is best resolved by the factfinder on a case-by-case basis and is almost always a question for the jury.” Id. at 634-635 (1), 678 S.E.2d 114 (citation and punctuation omitted).
Even assuming that serious disfigurement requires evidence that the victims outward appearance was altered in some way, see Weaver v. State, 351 Ga. App. 167, 176-179, 830 S.E.2d 618 (2019) (Rickman, J., concurring in part and dissenting in part), we conclude that the evidence was sufficient to support Byerss aggravated battery conviction. A reasonable juror might readily infer that two blows to the head with an ax, hard enough that the assailant initially believed them to be fatal, leaving the victim twitching, convulsing, or swaying, and able only to crawl, would cause a significant, outwardly visible head wound. And the evidence that Walnoha bled from the head so profusely that there was blood on the couch, floor, and wall authorized the jury to infer that Walnoha in fact suffered disfigurement that was not merely superficial, but serious. See Baker, 246 Ga. at 318 (2), 271 S.E.2d 360 (aggravated battery statutes prohibition against maliciously causing bodily harm to another by serious disfigurement gave defendant due notice that his acts were prohibited where evidence showed that he broke victims nose and caused extensive bruising and deep lacerations to victims face and head, with arterial bleeding flowing from one laceration).
Byers also argues that, even if there were sufficient evidence to find him guilty of aggravated battery, that count should have merged into his malice murder conviction. He contends that “there was no evidence of Walnoha living for a period of time after the disfigurement for there not to be a merger with the murder” and that a “plain reading of the indictment makes clear that the same facts used to establish aggravated battery were used for malice murder” in that both counts were based on allegations that Byers struck Walnoha on the head with an ax. Where a victim suffers a series of injuries, there must be a deliberate interval separating the infliction of the initial injury from the infliction of a subsequent injury in order to authorize separate convictions for malice murder and aggravated battery. See Howell v. State, 307 Ga. 865, 873 (2), 838 S.E.2d 839 (2020); Edwards v. State, 301 Ga. 822, 828 (4) (a), 804 S.E.2d 404 (2017).
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Here, both the malice murder and the aggravated battery charges, as indicted, required proof that Byers (either personally or as a party to the crime) struck Walnoha on and about the head with an ax. But the guilty verdicts were not necessarily predicated on the same act, as there was evidence that Byers inflicted blows on Walnoha on the couch, resulting in serious disfigurement, before he (or Griffith) inflicted a final blow in the yard. And there was evidence of a deliberate interval between the blows inflicted on the couch and the blow inflicted in the yard, as the evidence showed that, before Byers or Griffith inflicted the final blow, Byers took the time to consult with Griffith about what to do next, during which time Walnoha staggered into the yard. See White v. State, 297 Ga. 218, 221 (4), 773 S.E.2d 219 (2015) (evidence sufficient to sustain finding of deliberate interval between shooting and subsequent beating, given testimony that victim took a “long time” to fall to the ground after the shooting and beating did not occur until after this long time, while victim was still alive and conscious); Lowe v. State, 267 Ga. 410, 412 (1) (b), 478 S.E.2d 762 (1996) (separate convictions for aggravated assault and malice murder authorized where, after defendant fired a shot and inflicted a non-fatal wound to the victims arm, there was an ensuing interval during which defendant walked around car and, before firing the fatal shot, took deliberate aim at the wounded and pleading victim). Although the failure to recover Walnohas body presumably precluded the presentation of medical evidence as to which blow or blows caused or contributed to Walnohas death, the evidence that Walnoha was able to move into the yard authorized the jury to conclude that the subsequent blow in the yard was at least a proximate cause of Walnohas death. Therefore, the jury could infer that there was a completed, non-fatal assault, followed by a deliberate interval and a later battery that was the proximate cause of death, such that the earlier battery did not merge into Byerss murder conviction. See Cordero v. State, 296 Ga. 703, 709-713 (3), 770 S.E.2d 577 (2015) (crime of cruelty to children, based on injuries that occurred weeks or months before childs death, did not merge with the crime of felony murder, even though medical examiner and child abuse expert both testified that the death was not caused by any one blow but by the accumulation of beatings over the course of many months). The trial court properly entered separate convictions and sentences for aggravated battery and malice murder.
3. Finally, Byers argues that his felony sentence for tampering with evidence should be vacated and the case remanded so that he can be sentenced for misdemeanor tampering with evidence. The State properly concedes that the trial court erred in this regard. Each charged count of felony tampering with evidence related to concealing Walnohas body “with intent to prevent the apprehension of” Byers. These counts did not mention any intent to prevent the apprehension of anyone other than Byers. A person who tampers with evidence of his own crime is guilty of only a misdemeanor. See White v. State, 287 Ga. 713, 717 (1) (d), 699 S.E.2d 291 (2010).
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Judgment affirmed in part and vacated in part, and case remanded.
FOOTNOTES
1
. Walnoha was killed sometime in late July 2014. On December 7, 2016, a Pickens County grand jury indicted Byers and Arnold Griffith, Jr., for malice murder and other crimes. On February 2, 2018, the grand jury returned a new indictment of Byers alone, charging him with malice murder, three counts of felony murder, three counts of aggravated assault, aggravated battery, concealing the death of another, abandonment of a dead body, and four counts of tampering with evidence. After a trial held from July 30 through August 6, 2018, a jury found Byers guilty on all counts. On August 6, 2018, the trial court sentenced Byers to life in prison for malice murder, along with concurrent prison sentences of twenty years for aggravated battery, five years for concealing the death of another, three years for abandonment of a dead body, and five years for tampering with evidence. The felony murder counts were vacated by operation of law, and the trial court merged the remaining counts. Byers filed a motion for new trial on August 17, 2018, and amended the motion on February 24, 2020. Following a hearing, the trial court denied the motion in an order entered on August 10, 2020. Byers filed a timely notice of appeal on August 18, 2020, and the case was docketed to this Courts term beginning in December 2020 and submitted for a decision on the briefs.
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. OCGA § 16-11-62 (1) prohibits “[a]ny person in a clandestine manner intentionally to overhear, transmit, or record or attempt to overhear, transmit, or record the private conversation of another which shall originate in any private place[.]” Since 2015, before the overhearing at issue in this case, “private place” has been defined for purposes of this provision as “a place where there is a reasonable expectation of privacy.” OCGA § 16-11-60 (3).
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. Byers does not challenge the States standing to seek exclusion of Wesleys testimony. OCGA § 16-11-67 provides that “[n]o evidence obtained in a manner which violates any of the provisions of this part [which includes OCGA § 16-11-62] shall be admissible in any court of this state except to prove violations of this part.” We previously held that Fourth Amendment standing principles apply to attempts to exclude evidence on the ground that it was obtained in violation of OCGA § 16-11-62. See Hampton v. State, 295 Ga. 665, 668-670 (2), 763 S.E.2d 467 (2014) (defendant did not have standing to seek suppression under OCGA §§ 16-11-66.1 (a) and 16-11-67 of text messages associated with account that he had not shown was his; “[T]he focus of OCGA §§ 16-11-62 through 16-11-67 is the protection of individuals from invasion of their privacy. A Fourth Amendment analysis is appropriate, and as noted, rights under the Fourth Amendment are personal, and in order to challenge the validity of a government search an individual must actually enjoy the reasonable expectation of privacy, that is, the individual must have standing.” (citations omitted)); see also Nuckles v. State, 310 Ga. 624, 631 (3), 853 S.E.2d 81 (2020) (concluding that Fourth Amendment law is particularly instructive in construing the term “reasonable expectation of privacy” as used in OCGA § 16-11-62 (2) (B) “because that phrase had developed into a term of art relating to privacy rights” by the time that provision was enacted in 2000).
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. Although the Attorney General says that it appears that the aggravated battery count should have merged, the District Attorney does not agree. In a reply brief, Byers challenges the States practice of filing two response briefs in murder cases, arguing that the practice is not supported by this Courts rules and allows the State to exceed the page limit on briefs, and that he is faced with inconsistent positions on the merger issue. But the States practice of filing two briefs in murder cases is simply the result of overlapping statutory responsibilities of the Attorney General and district attorneys. The Attorney General has the statutory responsibility to “represent the state in all capital felony actions before the Supreme Court[.]” OCGA § 45-15-3 (5). And district attorneys have the statutory responsibility to “attend before the appellate courts when any criminal case emanating from their respective circuits is tried” and “to argue the same[.]” OCGA § 15-18-6 (6). As a matter of comity between branches, we decline to require two different constitutional officers both exercising executive powers to combine their arguments into a single brief hundreds of times a year. (And Byers overestimates the benefit to any party that more pages affords.)
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. The order of the injuries is not controlling; a fatal injury supporting a malice murder conviction may precede a non-fatal assault supporting an assault or battery conviction. See White v. State, 297 Ga. 218, 221 (4), 773 S.E.2d 219 (2015).
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. Although not raised by the parties, it is possible that the tampering count might merge into Byerss conviction for concealing the death of another. Given our remand and the absence of briefing, we express no view on the issue in this posture. But Byers is not prohibited from raising that issue on remand for resentencing. We note the parameters that OCGA § 17-10-1 (f) places on the correction of a sentence on remand.
Peterson, Justice.
All the Justices concur.