Murder. Gwinnett Superior Court. Before Judge Conner.
Judgment affirmed in part and vacated in part.
Lynn M. Kleinrock, for appellant.
Daniel J. Porter, District Attorney, Christopher M. Quinn, Lisa A. Jones, Assistant District Attorneys; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Meghan H. Hill, Assistant Attorney General, for appellee.
HUNSTEIN, Justice. All the Justices concur, except Melton, J., who dissents.
Appellant Ronald Smith appeals his convictions for felony murder and other crimes in connection with the shooting death of Genai Coleman. Appellant's sole contention is that the trial court improperly commented on the credibility of a witness. We find no merit to this contention and affirm appellant's convictions and sentences, except for the conviction and sentence for possession of a firearm during the commission of the aggravated assault of Coleman, which must be vacated.
1. Viewed in the light most favorable to the verdict, the evidence presented at trial showed that, on the evening of July 18, 2008, Coleman parked her car in a parking lot near Gwinnett Place Mall while waiting for her daughter to finish her shift at work. Appellant, who had just purchased some beer and cigarettes at a gas station located across the street from where the victim was parked, approached her car. Appellant attempted to take Coleman's car, and a brief struggle ensued, during which Appellant shot the victim once in the chest, killing her. He then drove off in her car. The victim's car was later recovered in Forest Park, Georgia, and DNA material recovered from a cigarette butt found in the car matched appellant's DNA. Appellant's fingerprints were also found on the car.
(a) Although Appellant does not contest the sufficiency of the evidence, we conclude that, viewed in the light most favorable to the [297 Ga. 269] verdict, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
(b) We conclude, however, that the trial court erred in entering a judgment of conviction and sentence on the possession of a firearm verdict predicated on aggravated assault.
[W]here multiple crimes are committed together during the course of one continuous crime spree, a defendant may be convicted once for possession of a firearm during the commission of a crime as to every individual victim of the crime spree, as provided under OCGA § 16-11-106 (b) (1), and additionally once for firearm possession for every crime enumerated in subsections (b) (2) through (5).
State v. Marlowe, 277 Ga. 383, 386 (2) (c) (589 S.E.2d 69) (2003). In this case, because the underlying crimes of murder and aggravated assault were committed against one victim, the possession charge predicated on aggravated assault merged with the possession charge predicated on murder. See Gibbs v. State, 295 Ga. 92 (2) (757 S.E.2d 842) (2014); Marlowe, 277 Ga. at 386-387. The trial court properly entered a judgment of conviction and sentence on the possession charge predicated on hijacking a motor vehicle, as that crime is enumerated in subsection (b) (3) of OCGA § 16-11-106. See Marlowe, 277 Ga. at 387 (holding that a proper analysis of OCGA § 16-11-106 (b) " permitt[ed] three ...