MELTON, Presiding Justice.
Following
a jury trial, Eric Robius Austin was found guilty of malice
murder, felony murder, possession of a firearm by a convicted
felon, and various other offenses in connection with the
shooting death of his girlfriend, Sade Danmola.[1] On appeal, Austin
contends that the evidence presented at trial was
insufficient to support the verdict and that the trial court
erred by failing to instruct the jury on "sudden
emergency" in connection with the possession of a
firearm by a convicted felon charge. For the reasons that
follow, we affirm in part, vacate in part, and remand for
resentencing on the count of possession of a firearm by a
convicted felon.
1.
Viewed in the light most favorable to the jury's verdict,
the record shows that Austin, a convicted felon, lived in an
apartment with Danmola and the couple's two-month-old
son. However, Austin divided his time between staying at the
apartment that he shared with Danmola and staying at the home
of Sacagawea Bolton, another woman with whom he had also
fathered a child. On the morning of March 27, 2011, Austin
was sleeping at Bolton's house when he received a call
from Danmola. He then went to the apartment that he shared
with Danmola to look after the couple's infant son while
Danmola went to work for a scheduled 9:00am shift at
McDonald's. Danmola arrived at work, but her 9:00am shift
was rescheduled, so she returned home. When she walked into
the apartment, she got into an argument with Austin. During
the argument, a neighbor overheard Danmola plead,
"Please don't kill me. I don't want to die
here." Austin then shot Danmola in the abdomen with a
.380 pistol.
Austin
called 911, saying that his girlfriend had been shot, but he
then fled the scene before officers arrived, leaving his
infant son on the floor in the back bedroom. Although there
were no signs of forced entry, officers had difficulty
entering the apartment because someone had placed a
"burglar bar" against the front door of the
apartment. When officers were able to enter the apartment,
they found Danmola, drifting in and out of consciousness,
lying in a fetal position on the living room floor. Danmola
was taken to the hospital, where she died shortly thereafter.
The
evidence was sufficient to enable a rational trier of fact to
find Austin guilty of the crimes of which he was convicted
beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). The jury was
free to reject Austin's testimony that he had mistakenly
shot Danmola, believing that she was a burglar as she entered
the apartment bedroom. See, e.g., Dean v. State, 273
Ga. 806, 807 (1) (546 S.E.2d 499) (2001) ("This Court
does not reweigh evidence or resolve conflicts in testimony;
instead, evidence is reviewed in a light most favorable to
the verdict, with deference to the jury's assessment of
the weight and credibility of the evidence") (citation
omitted).
2.
Austin claims that the trial court erred by failing to give
his requested jury instruction on "sudden emergency,
" contending that at least some evidence showed that he
only came into possession of a handgun in order to defend
himself from a sudden attack. See Cauley v. State,
260 Ga. 324 (2) (c) (393 S.E.2d 246) (1990). Specifically,
Austin requested that the trial court charge the jury:
Where, upon a sudden emergency, one suddenly acquires actual
possession of a pistol for the purpose of defending himself,
if you find that to have been the purpose, [Austin] would not
be in violation of any law prohibiting a felon from being in
possession of a firearm.
The
charge requested tracks the language that this Court approved
in Cauley, supra, and is an appropriate charge to be
given regarding a defendant's use of force to defend
himself where that defendant otherwise would be prohibited
from asserting self-defense due to having been engaged in the
felony of possessing a firearm at the time that he was
defending himself.[2] Id. Indeed, the charge provides
"a legal theory upon which the jury could acquit, [if]
it cho[oses] to do so, notwithstanding [the defendant's]
felonious status occasioned by his possession of the
firearm." Id. at 326 (2) (c).
However,
this does not mean that the trial court erred by failing to
give the requested charge here. "[A] trial court does
not err by failing to give a jury charge where the requested
charge is not adjusted to the evidence presented at
trial." (Footnote and punctuation omitted.) Young v.
State, 327 Ga.App. 852, 856 (4) (a) (761 S.E.2d 801)
(2014). See also, e.g., Whitaker v. State, 269 Ga.
462 (6) (499 S.E.2d 888) (1998). Here, based on Austin's
own testimony, he did not suddenly acquire actual possession
of the gun that he used to shoot Danmola while trying to
defend himself. See Cauley, supra. To the contrary,
he claimed that he already had a gun that he pointed at the
bedroom door of the apartment when he heard footsteps coming
towards the door. He then claimed that he fired his gun as
soon as he saw the doorknob turning on the bedroom door.
Austin provided no evidence of any sudden emergency that
caused him to suddenly possess a firearm to defend himself;
rather, the evidence he presented showed, at most, that he
already possessed a firearm that he chose to use before being
placed in any situation that required him to actually defend
himself. The trial court did not err by refusing to give
Austin's requested charge on sudden emergency.
3.
While the trial court did not err with respect to the legal
issues raised by Austin in this appeal, it did err by
purporting to merge the count of possession of a firearm by a
convicted felon into the malice murder count against Austin
for sentencing purposes. Indeed, "possession of a
firearm by a convicted felon does not merge into a conviction
for malice murder." Chester v. State, 284 Ga.
162, 162 (1) (664 S.E.2d 220) (2008), overruled on other
grounds by Williams v. State, 287 Ga. 192, 194 (695
S.E.2d 244) (2010), and Harper v. State, 286 Ga.
216, 218 (1) (686 S.E.2d 786) (2009). "[A]s no merger
occurred, [Austin] should have been sentenced on th[e
possession of a firearm] count." Hulett v.
State, 296 Ga. 49, 55 (2) (b) (766 S.E.2d 1) (2014).
Accordingly, we vacate the portion of the sentence purporting
to merge the possession of a firearm by a convicted felon
count into the malice murder count and remand this case to
the trial court for resentencing on the possession of a
firearm count.
Judgment
affirmed in part and vacated in part, and case remanded for
resentencing. All the Justices concur.
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Notes:
[1] On July 1, 2011, Austin was indicted
for malice murder, felony murder predicated on aggravated
assault, felony murder based on possession of a firearm by a
convicted felon, aggravated assault with a deadly weapon,
possession of a firearm during the commission of a felony,
and possession of a firearm by a convicted felon. Following a
February 28-March 2, 2012 jury trial, Austin was found guilty
on all counts. On March 2, 2012, Austin was sentenced to life
imprisonment for malice murder and five consecutive years for
possession of a firearm during the commission of a felony.
The felony murder counts were vacated by operation of law
(see Malcolm v. State, 263 Ga. 369 (4) (434 S.E.2d
479) (1993)), and the remaining counts were merged with the
malice murder count for sentencing purposes. Austin filed a
motion for new trial on March 15, 2012, which he amended on
August 19, 2013. The ...