Johnson v

State, 289 Ga. 498, 713 S.E.2d 376 (2011). Jury was authorized to find that the evidence was sufficient to find the defendant guilty beyond a reasonable doubt of felony murder during the commission of aggravated assault in the manner alleged in the indictment because at trial the medical examiner testified that the cause of the victim’s death was suffocation; although the defendant told an ex-spouse over the phone that the defendant choked the victim, there was no other evidence to corroborate that statement while there was much physical and scientific evidence that pointed to the cause of death as suffocation. Davis v. State, 290 Ga. 421, 721 S.E.2d 886 (2012). Aggravated assault, possession of firearm, and discharge of firearm sufficient to support felony murder conviction. — Because the defendant and an accomplice ordered the victim and another individual against a wall, took the victim’s money at gunpoint, and the defendant began to point and wave the gun when it fired, resulting in the victim being shot and subsequently dying, the evidence was sufficient for a rational trier of fact to find the defendant guilty of felony murder while committing aggravated assault and of possession of a firearm. Taylor v. State, 279 Ga. 706, 620 S.E.2d 363 (2005). Accomplice to aggravated assault. — Evidence that the defendant was seen 468 making notes at the crime scene the day of the shooting, that the defendant accompanied the coconspirator knowing that the coconspirator intended to rob a cab driver, and that the defendant drove the coconspirator away after the shooting of the cab driver authorized the jury to find that the defendant was a party to the crime of aggravated assault committed with a deadly weapon, and hence to felony murder. Brown v. State, 278 Ga. 724, 609 S.E.2d 312 (2004). Even if defendant decided to take victim’s money only after twice shooting the victim, the jury was authorized to find that the offense of murder was committed while defendant was engaged in the commission of the offense of armed robbery. Davis v. State, 255 Ga. 588, 340 S.E.2d 862, cert. denied, 479 U.S. 871, 107 S. Ct. 243, 93 L. Ed. 2d 168 (1986). Evidence was sufficient to support the defendant’s convictions on two counts of felony murder predicated on the underlying felony of aggravated assault, one count of armed robbery, and two counts of possession of a firearm in the commission of a crime, as the evidence showed that the defendant brandished a handgun and forced the two victims to give the defendant money, and that the defendant then fatally shot them after one victim argued with other people the defendant was with regarding the purity of a drug purchase the one victim had just made. Harden v. State, 278 Ga. 40, 597 S.E.2d 380 (2004). Death growing out of aggravated assault is either malice murder or felony murder, or else it is not punishable as a homicide. Baker v. State, 236 Ga. 754, 225 S.E.2d 269 (1976); Cole v. State, 254 Ga. 286, 329 S.E.2d 146 (1985). Escape as lesser offense of felony murder. — Conviction for escape must be set aside, where it merges into greater crime of felony murder. Gore v. State, 246 Ga. 575, 272 S.E.2d 306 (1980). Underlying felony of armed robbery did not merge with defendant’s felony-murder conviction, where the underlying felony charged in the indictment was committed upon one victim and the felony murder charged in another count of the indictment was committed upon another person. Kimbrough v. State, 254 Ga. 16-5-1 504, 330 S.E.2d 875 (1985). Criminal attempt-armed robbery is a lesser included offense of felony murder. To demonstrate malice murder, evidence that the defendant acted in reckless disregard of human life is as equally probative as evidence that defendant acted with a specific intent to kill. Farley v. State, 238 Ga. 181, 231 S.E.2d 761 (1977). Robbery of gas station attendant. — Evidence that the defendant shot the victim, a service station attendant, while attempting to rob the service station with a revolver was sufficient to support the defendant’s conviction for felony murder. Brockman v. State, 292 Ga. 707, 739 S.E.2d 332 (2013). Charges of burglary and murder not legally incompatible. — Charge of burglary based on defendant’s intent to commit aggravated assault on occupant of dwelling and murder for death of occupant during burglary were neither legally incompatible nor lesser included offenses of each other. Williams v. State, 250 Ga. 553, 300 S.E.2d 301, cert. denied, 462 U.S. 1124, 103 S. Ct. 3097, 77 L. Ed. 2d 1356 (1983). Evidence was sufficient to support defendant’s convictions for malice murder and burglary, where defendant entered the victim’s apartment with keys that defendant had as a maintenance worker. Oliver v. State, 276 Ga. 665, 581 S.E.2d 538 (2003). Homicide within res gestae of underlying felony of burglary. — Defendants’ conviction for felony murder was affirmed because the homicide was within the res gestae of the underlying felony of burglary for the purpose of the felony-murder rule since defendants were observed in the area of the burglaries, their vehicle was parked at one of the burglarized homes, and police maintained continuous observation of defendants and their vehicle throughout the chase and subsequent death of another motorist. Westmoreland v. State, 287 Ga. 688, 699 S.E.2d 13 (2010). Cruelty to children as defined by O.C.G.A. § 16-5-70 may constitute the underlying felony in a felony murder prosecution. Estes v. State, 251 Ga. 347, 305 S.E.2d 778 (1983). 469 Felony Murder (Cont’d) 2. Underlying Felony (Cont’d) Evidence that the cause of death was loss of blood due to a laceration of the liver caused by blunt force trauma to the abdomen, most likely a punch with a fist, was sufficient to show either excessive pain or the malice required for a conviction of felony murder with cruelty to children. Folson v. State, 278 Ga. 690, 606 S.E.2d 262 (2004). Evidence that there was an 80 to 90 percent chance that injuries that caused the death of a defendant’s 10-month-old child were inflicted within an hour of the child’s death, that the defendant left the apartment at 4:10 P.M., that an attending physician was called to the emergency room at 5:46 P.M., and that the child was dead on arrival at the emergency room was sufficient to support the defendant’s convictions for felony murder while in commission of cruelty to a child in the second degree, aggravated assault, and cruelty to a child in the first degree; the evidence permitted the jury to conclude that the time frame in which the child’s injuries were inflicted included the time before the defendant left for work, there was evidence concerning the defendant’s actions before and after the child’s death that indicated the defendant’s guilt, and the jury was not required to accept the defendant’s version of events. White v. State, 281 Ga. 276, 637 S.E.2d 645 (2006). Sufficient evidence supported a conviction of felony murder while in the commission of cruelty to children in the first degree: (1) the pathologist who performed the child’s autopsy testified that the 14-month-old child, who had been injured while left in the defendant’s care, died from multiple blunt force injuries that were inconsistent with falling off a bed or being dropped, as claimed by the defendant; (2) a defense pathologist agreed that there were at least seven distinct impact sites on the child’s head and about 105 impact sites on the child’s body; and (3) there was evidence that two years before, the defendant’s six-month-old child had been left in the defendant’s care and had been returned to the child’s parent with unexplained bruises and other injuries. 16-5-1 Moore v. State, 283 Ga. 151, 656 S.E.2d 796 (2008). Evidence was sufficient to convict the defendant of felony murder, predicated on cruelty to children in the second degree for failing to obtain medical treatment for the victim, because the defendant’s oldest daughter heard a bump and the victim cry sometime before 10 o’clock in the evening; the medical examiner said the victim was alive for approximately three hours after experiencing the trauma to the victim’s head; it was evident that the victim experienced head trauma because of the vomit in the defendant’s bedroom; and the medical examiner testified the victim sustained four impacts to the victim’s head and the injuries sustained were inconsistent with a household fall. Jones v. State, 302 Ga. 488, 807 S.E.2d 344 (2017). Conspiracy to commit armed robbery. — Since murder is probable consequence of conspiracy to commit armed robbery, codefendant is equally responsible for murder although the codefendant was not actual slayer and was not present at the time of killing. Fortner v. State, 248 Ga. 107, 281 S.E.2d 533 (1981). Cardiac arrest during burglary. — Evidence that the cause of death was cardiac arrest caused by the victim’s small coronary arteries and the stress of events during the burglary was sufficient to sustain a conviction for felony murder. Durden v. State, 250 Ga. 325, 297 S.E.2d 237 (1982). Possession of firearm by convicted felon. — Crime of possession of a firearm by a convicted felon does not merge with act of shooting the firearm; therefore, a jury may find a convicted felon guilty of felony murder by treating the felon’s possession of a firearm in committing the murder as the underlying felony. Scott v. State, 250 Ga. 195, 297 S.E.2d 18 (1982); Brand v. State, 258 Ga. 378, 369 S.E.2d 896 (1988). A status felony, including the possession of a firearm by a convicted felon, is not inherently dangerous and, under circumstances which involve no assault or any other criminal conduct, is not a felony upon which a felony murder conviction may be obtained. Ford v. State, 262 Ga. 602, 423 S.E.2d 255 (1992). 470 Defendant’s demurrer to a charge of felony murder, predicated on a charge of possession of a weapon by a convicted felon, in violation of O.C.G.A. § 16-11-131, which was predicated on defendant’s out-of-state misdemeanor conviction for involuntary manslaughter, for which the maximum sentence was five years imprisonment, was properly sustained, because § 16-11-131(a) did not give defendant adequate notice that defendant’s misdemeanor conviction could be used as the predicate felony for a charge of possession of a firearm by a convicted felon. State v. Langlands, 276 Ga. 721, 583 S.E.2d 18 (2003). Defendant’s conviction of possession of a firearm by a convicted felon under O.C.G.A. § 16-11-131 merged with the defendant’s conviction of felony murder under O.C.G.A. § 16-5-1(c) predicated on possession of a firearm by a convicted felon. Lawson v. State, 280 Ga. 881, 635 S.E.2d 134 (2006). Defendant’s conviction of voluntary manslaughter under O.C.G.A. § 16-5-2 did not require reversal of the defendant’s conviction of felony murder under O.C.G.A. § 16-5-1(c) when the underlying felony was possession of a firearm by a convicted felon, as those offenses did not merge. Lawson v. State, 280 Ga. 881, 635 S.E.2d 134 (2006). Conviction of felony murder upheld. — When the state’s evidence showed that the defendant pulled into a parking lot while the victim was robbing a friend of the defendant’s, waited in the defendant’s car until the victim came around a corner, and then shot the victim three times without the victim ever having aimed the victim’s gun at the defendant, there was sufficient evidence to convict the defendant of felony murder based on the defendant’s killing the victim while being a convicted felon in possession of a firearm in violation of O.C.G.A. § 16-11-131; although the defendant claimed that the defendant acted in self-defense, the jury was free to reject the defendant’s claim. Roper v. State, 281 Ga. 878, 644 S.E.2d 120 (2007). Convicted felon in possession of a firearm who furnishes it to another for the purpose of shooting a third person 16-5-1 may be found guilty of felony murder even though the trigger-man is found guilty of malice murder. Whitehead v. State, 255 Ga. 526, 340 S.E.2d 885 (1986). Victim shot during theft. — Felony-murder rule is applicable where defendant’s purpose in shooting victim was to commit theft. Edwards v. State, 233 Ga. 625, 212 S.E.2d 802 (1975). Offense of misuse of a firearm while hunting can serve as the predicate felony to a felony murder conviction. Chapman v. State, 266 Ga. 356, 467 S.E.2d 497 (1996). Distributing controlled substance as underlying felony. — Defendant may be convicted of felony murder based on the underlying felony of distributing a controlled substance if that felony is inherently dangerous, and if the defendant directly causes the death of the victim while in the commission of the felony. Hulme v. State, 273 Ga. 676, 544 S.E.2d 138 (2001). Evidence was sufficient to support conviction of felony murder based on the underlying felony of distributing a controlled substance since the defendant controlled the dosages of methadone that the victim took on a daily basis and gave the victim a dosage on the day of the victim’s death that could have been lethal without regard to other drugs the victim might have consumed. Hulme v. State, 273 Ga. 676, 544 S.E.2d 138 (2001). Evidence that the defendants knew the victim had been drinking and taking drugs when they injected the victim with oxycodone, and that the victim died of a drug overdose was sufficient to prove that the defendants directly caused the victim’s death in the commission of a felony, the distribution of oxycodone. Carter v. State, 285 Ga. 394, 677 S.E.2d 71 (2009). Participation in drug transaction meant no instruction on justification. — Based on the evidence supporting the defendant’s participation in a felony drug transaction at the time of the fatal shooting of the victim, the trial court was authorized to instruct the jury pursuant to O.C.G.A. § 16-3-21(b)(2) that a person was not justified in using force in defense of self or others if the person was attempting to commit, committing, or fleeing after the commission or attempted commission of a felony; the defendant affirmatively 471 Felony Murder (Cont’d) 2. Underlying Felony (Cont’d) chose to engage in the potentially dangerous and violent criminal business of a felony drug deal before the fatal confrontation with the victim took place. Smith v. State, 290 Ga. 768, 723 S.E.2d 915 (2012). Child abuse. — Ample evidence concerning the child victim’s condition and expert testimony regarding the same was presented to authorize the jury to find defendant guilty of committing felony murder by holding the child in scalding water, and guilty of committing cruelty to a child by failing to provide medical attention, and to reject the evidence and hypotheses defendant presented in an attempt to refute the charges. Robles v. State, 277 Ga. 415, 589 S.E.2d 566 (2003). Voluntary and involuntary manslaughter do not invoke felony murder rule. — Voluntary manslaughter, and felony of involuntary manslaughter where it applies, are not themselves felonies which will invoke felony-murder rule as to death of main victim. Therefore, if a jury finds felonious manslaughter, they should not go on to reason that this offense, being itself a felony, turns the killing into a felony murder. The jury should be instructed in accordance with this principle. Malone v. State, 238 Ga. 251, 232 S.E.2d 907 (1977). When the jury renders a verdict for voluntary manslaughter, the jury cannot also find felony murder based on the same underlying aggravated assault. Edge v. State, 261 Ga. 865, 414 S.E.2d 463 (1992). Voluntary manslaughter is a lesser included offense of felony murder. Young v. State, 141 Ga. App. 261, 233 S.E.2d 221 (1977). With respect to jury instructions, voluntary manslaughter is a lesser included offense of felony murder under O.C.G.A. §§ 16-1-6 and 16-5-1(c), because an act done in passion involves a less culpable mental state than the state of real or imputed malice which is the foundation of the felony-murder rule. Therefore, where facts warrant it, a charge on voluntary manslaughter may indeed be given in a felony-murder trial. Malone v. State, 238 Ga. 251, 232 S.E.2d 907 (1977). 16-5-1 Defendant, who shot the victim in the abdomen, should not have been convicted of both voluntary manslaughter in violation of O.C.G.A. § 16-5-2 and felony murder while in the commission of an aggravated assault in violation of O.C.G.A. § 16-5-1(c); there was one assault, and the jury found that the fatal assault was mitigated by provocation and passion, so only the voluntary manslaughter conviction was proper. Lawson v. State, 280 Ga. 881, 635 S.E.2d 134 (2006). Conviction of both felony murder and underlying felony is proscribed, since latter is lesser included offense of former. Woods v. State, 233 Ga. 495, 212 S.E.2d 322 (1975); Atkins v. Hopper, 234 Ga. 330, 216 S.E.2d 89 (1975). Defendant in felony-murder trial cannot be convicted of felony upon which conviction of felony murder is based, as it is a lesser included offense of felony murder. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002). Defendant may not be convicted lawfully of both felony murder and an underlying felony if the felony murder and underlying felony were committed on different victims, and when the count of the indictment alleging felony murder sets forth the underlying felony or felonies supporting the charge of felony murder. Walker v. State, 254 Ga. 149, 327 S.E.2d 475, cert. denied, 474 U.S. 865, 106 S. Ct. 185, 88 L. Ed. 2d 154 (1985). Defendant may not be convicted of felony murder and also be convicted of the underlying felony (cruelty to children) which was alleged by the indictment to support the conviction of felony murder. Zackery v. State, 257 Ga. 442, 360 S.E.2d 269 (1987). Defendant may not be convicted of felony murder and also be convicted of the underlying felony which was alleged by the indictment to support the felony murder conviction; and sentence for the aggravated assault was therefore vacated. 472 Jones v. State, 264 Ga. 144, 442 S.E.2d 245 (1994). Evidence of guilt overwhelming despite attempt to commit felony murder not recognized crime. — Assuming without deciding that an attempt to commit felony murder is not a recognized crime in Georgia, the evidence supporting the defendant’s other convictions was overwhelming; thus, the inclusion of the attempt to commit felony murder counts, even if erroneous, would not have prejudiced the jury’s consideration of guilt as to the other counts in the indictment. Summerlin v. State, 339 Ga. App. 148, 793 S.E.2d 477 (2016). Challenge to felony murder conviction moot. — Defendant’s challenge to the defendant’s felony murder conviction was moot because that conviction was vacated by operation of law. Mills v. State, 287 Ga. 828, 700 S.E.2d 544 (2010). Possession of controlled substance. — Because the defendant participated in a felony drug deal as the purchaser, the defendant was affirmatively choosing to engage in a dangerous and potentially violent criminal activity; thus, the defendant’s criminal attempt to possess cocaine was dangerous and sufficiently connected to the murder so as to also serve as an underlying felony for the felony murder conviction. Chance v. State, 291 Ga. 241, 728 S.E.2d 635 (2012). 3. Termination of Underlying Felony Homicide as felony murder committed after technical completion of underlying felony. — Murder may be committed in commission of a felony so as to come within O.C.G.A. § 16-5-1(c), although the murder does not take place until after the felony itself has been technically completed, if it is committed within res gestae of the felony. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002). Whether felony is terminated is question of fact for jury unless evi- 16-5-1 dence is so overwhelming that reasonable people could not differ. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002). When underlying felony terminates for purposes of felony-murder rule. — Weight of authority holds that underlying felony continues during escape phase of felony if there is continuous pursuit immediately organized, and felony terminates at point perpetrator has arrived at place of seeming security or when perpetrator is no longer pursued by authorities. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002). What constitutes pursuit so as to continue underlying felony during escape. — Mere fact of delay in beginning pursuit until alarm can be sounded and pursuit organized and instituted does not necessarily segregate flight and prevent its being part and parcel of crime. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002). Homicide committed in flight from felony invokes felony-murder rule. — Homicide is within res gestae of underlying felony for purpose of felony-murder rule if it is committed while fleeing scene of crime. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 473 Felony Murder (Cont’d) 3. Termination of Underlying Felony (Cont’d) Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002). When victims were killed while defendant was fleeing the scene of a burglary, defendant was still in the commission of the burglary for purposes of the felony murder rule. Diamond v. State, 267 Ga. 249, 477 S.E.2d 562 (1996). There was no fatal variance between a felony-murder indictment, which alleged that the defendant and an accomplice beat and choked a home-invasion robbery victim, and the proof at trial, which showed that the victim died of smoke inhalation after being left unconscious in a burning house, because the choking rendered the victim unconscious and proximately caused the victim’s death in the fire. Cooper v. State, 286 Ga. 66, 685 S.E.2d 285 (2009). Effect of perpetrator’s arrest. — Underlying felony can terminate for purpose of felony-murder rule if perpetrator is arrested. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002). For arrest to terminate felony for purpose of felony-murder rule, perpetrator must be subjected to complete custody; perpetrator must acquiesce and submit to arrest; and perpetrator’s surrender must be complete and continuous. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002). Deadly Weapons That instrument is a weapon likely to produce death may be shown by 16-5-1 circumstantial evidence. — An instrument may be shown to be a weapon likely to produce death, by direct proof as to its character, by exhibition of it to jury, or by evidence as to nature of wound, or other evidence such as would warrant jury in finding the instrument was one calculated to produce death; the evidence need not be direct, but may be circumstantial. Kennedy v. State, 191 Ga. 22, 11 S.E.2d 179 (1940) (decided under former Code 1933, §§ 26-1003, 26-1004). That weapon is one likely to produce death may be shown by nature of wound. Blakewood v. State, 196 Ga. 34, 25 S.E.2d 643 (1943) (decided under former Code 1933, §§ 26-1003, 26-1004). An automobile is not per se a deadly weapon; when death results from its reckless or unlawful use, state relies upon implied malice in prosecution for murder in such instance. Huntsinger v. State, 200 Ga. 127, 36 S.E.2d 92 (1945) (decided under former Code 1933, §§ 26-1003, 26-1004). Shoe or boot as weapon likely to produce death. — Shoe or boot, when used to severely and brutally kick a helpless man, lying down, on his head, could be properly classified as a blunt instrument and a weapon likely to produce death. Goss v. State, 61 Ga. App. 621, 7 S.E.2d 87 (1940) (decided under former Code 1933, §§ 26-1003, 26-1004). Whether limb of tree is a weapon likely to produce death is a jury question. Smithwick v. State, 199 Ga. 292, 34 S.E.2d 28 (1945) (decided under former Code 1933, §§ 26-1003, 26-1004). Hands as deadly weapons. — Evidence that the victim was hit so hard by the defendant from behind that the victim’s arms flew up in the air as the victim fell, causing the victim’s fatal vertebral artery hemorrhage, was sufficient to authorize a jury to find defendant used defendant’s hands as deadly weapons to commit felony aggravated assault, and thus felony murder. Miller v. State, 275 Ga. 730, 571 S.E.2d 788 (2002), cert. denied, 538 U.S. 1004, 123 S. Ct. 1911, 155 L. Ed. 2d 835 (2003). Automobile as deadly weapon. — Defendant’s possession of a stolen automobile was sufficient to support a felony 474 murder conviction, as the vehicle’s possession played a role in the defendant’s decision to flee, and a decision to remain in the stolen car in order to flee created a foreseeable risk of death; further, the jury was authorized to infer from this conduct that the defendant had an intent to injure in attempting to elude the police. Turner v. State, 281 Ga. 487, 640 S.E.2d 25 (2007). Lamps as deadly weapons. — Evidence was sufficient to support convictions of felony murder and of aggravated assault when during an argument the defendant threw a glass-jug lamp, fatally injuring one victim and causing the other to lose consciousness and require seven stitches. Hester v. State, 283 Ga. 367, 659 S.E.2d 600 (2008). When the defendant was accused of felony murder and aggravated assault by throwing a lamp at the victims, because the indictment alleged that the lamp was an object that when used offensively against a person was likely to and actually did result in serious bodily injury, an allegation that the lamp was a deadly weapon was not required. Furthermore, the indictment was not too vague as the defendant clearly was apprised that the defendant would have to defend against the allegation that the defendant struck one victim on and about the head with the lamp, and the defendant admitted to a law enforcement officer that the defendant had thrown the lamp at the other victim. Hester v. State, 283 Ga. 367, 659 S.E.2d 600 (2008). Evidence of cause of death. — Evidence authorized a jury to find that the victim died as a result of blows inflicted by the defendant because an emergency room physician testified that the victim was beaten with a blunt instrument, received multiple, and serious, head blows, and that the victim died from brain injuries when the victim was later removed from life support systems. Phillips v. State, 280 Ga. 728, 632 S.E.2d 131 (2006). Jury Instructions Court charging regarding both murder and voluntary manslaughter. — If there is a doubt, however slight, as to whether offense is that of murder or voluntary manslaughter, it is the duty of the 16-5-1 court to submit the law of both murder and manslaughter and let the jury determine the grade of the offense of the homicide. Thomas v. State, 47 Ga. App. 237, 170 S.E. 303 (1933) (decided under former Penal Code 1910, §§ 61, 62); Thomas v. State, 51 Ga. App. 455, 180 S.E. 760 (1935) (decided under former Code 1933, §§ 26-1003, 26-1004); Hayes v. State, 51 Ga. App. 462, 180 S.E. 762 (1935) (decided under former Code 1933, §§ 26-1003, 26-1004); Goldsmith v. State, 54 Ga. App. 268, 187 S.E. 694 (1936) (decided under former Code 1933, §§ 26-1003, 26-1004); Dickey v. State, 60 Ga. App. 199, 3 S.E.2d 238 (1939) (decided under former Code 1933, §§ 26-1003, 26-1004); North v. State, 69 Ga. App. 836, 26 S.E.2d 892 (1943) (decided under former Code 1933, §§ 26-1003, 26-1004); Harris v. State, 77 Ga. App. 842, 50 S.E.2d 152 (1948) (decided under former Code 1933, §§ 26-1003, 26-1004). Taken as a whole, jury re-charge did not lead the jury to believe that passion and provocation were relevant only as to felony murder or permit the jury to convict the defendant of malice murder despite having found that the defendant killed the victim while acting in sudden passion resulting from serious provocation; in the initial charge the jury was informed that a finding of malice was necessary for a homicide to constitute murder, was given the definition of express malice, and was told malice could be implied if there was no considerable provocation. Williams v. State, 279 Ga. 154, 611 S.E.2d 19 (2005). Since the defendant was convicted of malice murder, any error in charging the jury to consider voluntary manslaughter only after finding reasonable doubt as to the existence of malice murder was harmless. Williams v. State, 279 Ga. 154, 611 S.E.2d 19 (2005). Jury was properly charged that it could not find the defendant guilty of felony murder if it concluded the underlying felony of aggravated assault was the result of passion and provocation, but would be authorized to find the defendant guilty of voluntary manslaughter. Williams v. State, 279 Ga. 154, 611 S.E.2d 19 (2005). In a murder prosecution, a defendant was not entitled to an instruction on vol- 475 Jury Instructions (Cont’d) untary manslaughter because testimony that the defendant shot the victim because the defendant panicked and was frightened showed, at best, that the defendant was attempting to repel an attack, not that there was sufficient anger to invoke passion. Bell v. State, 280 Ga. 562, 629 S.E.2d 213 (2006). Charge on manslaughter unnecessary where state’s unrefuted evidence shows premeditation. — Where state’s evidence shows that homicide was premeditated murder, and defendant introduces no evidence, and there is nothing in defendant’s statement that indicates in the slightest that the homicide was manslaughter, court does not err in failing to charge on law of manslaughter. Murray v. State, 214 Ga. 350, 104 S.E.2d 905 (1958) (decided under former Code 1933, §§ 26-1003, 26-1004). Charge on transferred intent inappropriate. — Because the charge on transferred intent was not adjusted to the evidence, it was error for the trial court to so instruct the jury, and trial counsel performed deficiently by failing to object to the giving of that charge and the prosecutor’s closing argument addressing the inapplicable principles of transferred intent; there was no evidence that the defendant was intending to shoot any other person when the defendant shot the victim so as to bring the case within the typical ‘‘innocent bystander’’ scenario in which the doctrine of transferred intent was applied, but in light of the overwhelming evidence of the defendant’s guilt, it was highly probable that the charge did not contribute to the verdict. Boatright v. State, 289 Ga. 597, 713 S.E.2d 829 (2011). Instructing on logical order in which to consider offenses. — Instructions were not subject to objection, where the trial court did not instruct the jury that it had to find the defendant not guilty of any particular offense prior to considering any lesser offense; rather, it simply gave the jury a logical order in which to consider the offenses. Zackery v. State, 257 Ga. 442, 360 S.E.2d 269 (1987). ‘‘Shall be implied’’ language of instruction did not unconstitutionally shift 16-5-1 burden of proof to the defendant, as the language instructed the jury that the jury must find malice if the state proved the predicate facts of no considerable provocation and an abandoned and malignant heart. Humphrey v. Boney, 785 F.2d 1495 (11th Cir. 1986). Charge that malice is presumed from intentional killing and that it rests with defendant to show justification or excuse unless they appear from state’s evidence is not unconstitutionally burden-shifting. Burger v. State, 238 Ga. 171, 231 S.E.2d 769 (1977). Charge on malice need not be in exact language of section. — When judge on trial of one charged with murder, undertakes to define that offense, and malice, as employed in definition of murder, it is better to charge in language of statute, but failure to use this identical language does not constitute prejudicial error, where no essential element is omitted from the definition, and nothing is added to impair meaning as expressed in the statute. Adams v. State, 188 Ga. 668, 4 S.E.2d 663 (1939) (decided under former Code 1933, §§ 26-1003, 26-1004). Slight variation from language of section in charge on implied malice does not constitute error where section is substantially complied with. Shepherd v. State, 150 Ga. 799, 105 S.E. 485 (1920) (decided under former Penal Code 1910, §§ 61, 62). No error in recharging jury. — There was no error either in the jury recharge clarifying malice murder, or in the reception of the guilty verdicts; the actual guilty verdicts against both defendants were not received and published until after the jurors heard the recharge and then retired for further deliberations. Cox v. State, 279 Ga. 223, 610 S.E.2d 521 (2005). Trial court did not err by defining ‘‘malice aforethought’’ in response to a request from the jury for a recharge because the instruction was based on the pattern charge and was legally correct; given the correct and detailed instructions contained in the trial court’s original charge to the jury, it was unlikely that the jury was confused by the recharge, which clearly indicated that premeditation was 476 not an element of the crime. Dukes v. State, 290 Ga. 486, 722 S.E.2d 701 (2012). Denying request to recharge jury on affirmative defenses not reversible error. — Because no abuse of discretion resulted from the trial court’s order denying defense counsel’s request that the court recharge the jury on the affirmative defenses of accident and reasonable discipline of a minor, but the court granted the jury’s request for a recharge as to the offenses of malice murder and felony murder, the defendant’s felony murder and cruelty to children convictions were affirmed. Johnson v. State, 281 Ga. 770, 642 S.E.2d 827 (2007). Charge of mutual combat. — Erroneous failure to charge on mutual combat is reversible error where verdict is for murder. Davis v. State, 76 Ga. App. 427, 46 S.E.2d 520 (1948) (decided under former Code 1933, §§ 26-1003, 26-1004). When the defendant maintained that the trial court erred in failing to charge the law of mutual combat, but the evidence showed at most that the defendant and the victim pushed one another and ‘‘threw a few punches,’’ and there was no evidence that they mutually agreed or intended to fight with deadly weapons, the requested charge was not warranted by the evidence and the trial court did not err in refusing to give the instruction. Martin v. State, 258 Ga. 300, 368 S.E.2d 515 (1988). Trial court properly chose not to give a jury charge on mutual combat in the defendant’s criminal trial, whereupon the defendant was convicted of felony murder, as there was no evidence that during the physical altercation between the defendant, the victim, and others, the victim was armed with a deadly weapon; in fact, the evidence allowed the jury to find that the victim was unarmed during the fight while the defendant was armed with a gun. Hudson v. State, 280 Ga. 123, 623 S.E.2d 497 (2005). Trial counsel did not perform deficiently by failing to request a charge on mutual combat because there was no evidence of a mutual intention to fight; at trial, the defendant presented the defense of accident and asserted that the defendant lacked any intention to shoot the victim, 16-5-1 but there was no evidence reflecting that the defendant and the victim mutually agreed to fight each other. Boatright v. State, 289 Ga. 597, 713 S.E.2d 829 (2011). Motive as proper subject for attorneys’ closing arguments. — The motive for the killing, or lack thereof, is proper subject matter for the closing arguments of both the prosecution and the defense. Wade v. State, 258 Ga. 324, 368 S.E.2d 482 (1988), cert. denied, 502 U.S. 1060, 112 S. Ct. 941, 117 L. Ed. 2d 111 (1992). Charge on intent in murder trial did not unconstitutionally shift the burden of proof. Parker v. State, 256 Ga. 363, 349 S.E.2d 379 (1986). Instruction on voluntary manslaughter warranted. — Although there was sufficient evidence to support a defendant’s conviction for murder beyond a reasonable doubt with regard to the stabbing death of the victim, which the defendant claimed was in self-defense, the defendant’s conviction was reversed as the trial court erred in failing to give a jury instruction on voluntary manslaughter because there was evidence that the defendant overreacted and was outnumbered by the victim and another and could have felt threatened. Webb v. State, 284 Ga. 122, 663 S.E.2d 690 (2008). Instruction on voluntary manslaughter not warranted. — Where defendant was convicted of malice murder, the trial court properly refused to charge the jury on voluntary manslaughter, as there was no evidence that defendant stabbed the victim as the result of passion arising from reasonable provocation. Bell v. State, 276 Ga. 206, 576 S.E.2d 876 (2003). In a murder prosecution, the trial court properly refused to give jury instructions on voluntary manslaughter, involuntary manslaughter, pointing a pistol at another, and accident as: (1) no evidence of provocation was presented; (2) the victim faced a window through which the defendant pointed a pistol and reacted to the presence of a gun; (3) a demand from the defendant showed an apprehension of receiving a violent injury; and (4) the evidence showed that the victim was killed during the defendant’s effort to rob the victim at gunpoint. Roberts v. State, 282 Ga. 548, 651 S.E.2d 689 (2007). 477 Jury Instructions (Cont’d) Because the evidence presented showed that the defendant acted in a rational and calculating fashion in retrieving a car jack, breaking out the exterior light to darken the scene, and then quietly snuck into and through the victim’s house in search of the victim, and did not show that the defendant’s actions were the result of a sudden, violent, and irresistible passion, the defendant was not entitled to a charge on voluntary manslaughter, and a malice murder conviction was upheld on appeal. Taylor v. State, 282 Ga. 502, 651 S.E.2d 715 (2007). In a malice murder prosecution, as the evidence did not show the defendant was provoked seriously enough to cause a reasonable person to fatally stab the victim, the defendant was not entitled to a voluntary manslaughter instruction under O.C.G.A. § 16-5-2(a). Boyd v. State, 284 Ga. 46, 663 S.E.2d 218 (2008). Trial court did not err by refusing to give the defendant’s request for a jury instruction on voluntary manslaughter because the record failed to reveal any evidence that would support a voluntary manslaughter charge; the evidence and testimony at trial revealed that although a gun was in the victim’s car at the time of the murder, the victim did not say or do anything before the defendant shot the victim, let alone do anything that would constitute the ‘‘serious provocation’’ necessary to warrant a charge on voluntary manslaughter. Lawrence v. State, 286 Ga. 533, 690 S.E.2d 801 (2010). During the defendant’s trial for murder, the trial court did not err by refusing the defendant’s request to charge the jury on voluntary manslaughter because in the absence of any evidence of a romantic relationship between the defendant and the teenaged victim, there could be no serious provocation created by the victim’s call to her ex-boyfriend that could have aroused passion in a reasonable person pursuant to O.C.G.A. § 16-5-2(a). Crawford v. State, 288 Ga. 425, 704 S.E.2d 772 (2011). Trial court did not err by refusing to charge the jury on voluntary manslaughter because the defendant’s testimony 16-5-1 that the defendant was not upset but fired a gun out of fear, in self-defense, and in defense of the defendant’s parent showed that the defendant did not shoot a child in the heat of passion, and the other evidence was not to the contrary; rather, the testimony of the neighbors, who were the child’s parents and the only other trial witnesses present during the shooting demonstrated, at most, that the defendant could have opened fire in response to the neighbors’ heated or angry statements, which, as a matter of law, could not constitute ‘‘serious provocation’’ within the meaning of O.C.G.A. § 16-5-2(a). Davidson v. State, 289 Ga. 194, 709 S.E.2d 814 (2011). During the defendant’s murder trial, the trial court did not err by denying the defendant’s request to charge on the lesser included offense of voluntary manslaughter, O.C.G.A. § 16-5-2, since the defendant testified that the defendant fired a pistol because the defendant was ‘‘just scared,’’ and acting out of fear was not the same as acting in the heat of a sudden irresistible passion. Funes v. State, 289 Ga. 793, 716 S.E.2d 183 (2011). Trial court did not give the jury an incomplete charge regarding the lesser included offense of voluntary manslaughter because the instruction did not prevent the jury from fully considering voluntary manslaughter and was adequate to inform the jury that before the jury could convict defendant of malice or felony murder, the jury had to first consider whether there was sufficient evidence of passion or provocation to support a conviction for voluntary manslaughter. Kendrick v. State, 290 Ga. 873, 725 S.E.2d 296 (2012). Instruction on involuntary manslaughter warranted. — With regard to a defendant’s conviction for the felony murder of the defendant’s wife, with aggravated assault as the underlying felony, the trial court erred by refusing the defendant’s requested charge on involuntary manslaughter with pointing a pistol at another as the predicate misdemeanor, which entitled the defendant to a new trial based on the defendant testifying that the shooting occurred inadvertently when, in the course of horseplay with the pistol, the defendant pulled the trigger 478 while pointing the pistol at the victim’s head, not knowing there was a round in the chamber. Manzano v. State, 282 Ga. 557, 651 S.E.2d 661 (2007). Given evidence at trial that the defendant, age 15, was playing with a gun near the back of the defendant’s father’s head when the defendant shot the defendant’s father, the trial court erred in refusing the defendant’s request to charge on involuntary manslaughter as a lesser included offense of malice murder, not just as a lesser included offense of felony murder, and appellate counsel was ineffective in failing to make this argument. The ‘‘unlawful act’’ required for involuntary manslaughter could have been reckless conduct under O.C.G.A. § 16-5-60. Seabolt v. Norris, 298 Ga. 583, 783 S.E.2d 913 (2016). Instruction on involuntary manslaughter not warranted. — Because the state did not allege that the felony murder victim died as a result of non-felony conduct, but the victim’s death occurred as a result of the defendant’s commission of a felony in the course of fleeing and attempting to elude the police, an involuntary manslaughter instruction was not warranted. Turner v. State, 281 Ga. 487, 640 S.E.2d 25 (2007). When evidence established either that defendant intentionally shot and killed the victim or that a pistol discharged accidentally and no offenses occurred, this showed either commission of felony murder and aggravated assault or commission of no offense, and the trial court did not err in refusing to give a lesser included offense charge on involuntary manslaughter based on reckless conduct. Lashley v. State, 283 Ga. 465, 660 S.E.2d 370 (2008). When the defendant was charged with felony murder, with cruelty to a child in the first degree as the underlying felony, the trial court properly denied the defendant’s request for a jury instruction on felony involuntary manslaughter under O.C.G.A. § 16-5-3(a) as a lesser included offense. Contrary to the defendant’s argument, the state did not present any evidence that the child died as a result of lack of medical care; furthermore, because the defendant argued that it was the child’s parent who shook the child and that the 16-5-1 defendant only tried to revive the child, such an instruction was not necessary because the evidence showed either the charged crime or no crime. Bostic v. State, 284 Ga. 864, 672 S.E.2d 630 (2009). Trial court did not err in refusing to instruct the jury on voluntary manslaughter as a lesser included crime of malice murder because a charge on voluntary manslaughter was precluded by the evidence when there was no evidence to illustrate the existence of provocation before the fatal shots were fired; the defendant assaulted the victim with a deadly weapon and then fired the fatal shots into the victim’s back, and there was no evidence that the defendant had any type of relationship with the friend who was arguing with the victim that would explain an impassioned attack. Hicks v. State, 287 Ga. 260, 695 S.E.2d 195 (2010). Trial court did not err by failing to give the defendant’s requested charge on the lesser included offense of involuntary manslaughter, O.C.G.A. § 16-5-3, because the defendant’s admitted act of purposefully putting a gun to the fearful victim’s head and pulling the trigger constituted the felony offense of aggravated assault, O.C.G.A. § 16-5-21, not reckless conduct, O.C.G.A. § 16-5-60(b); the defendant’s testimony that the victim began crying when the victim saw the gun provided evidence that the victim perceived the gun to be a loaded weapon that could be used to inflict a violent injury, which was a reasonable perception, and the jury’s verdict of guilty on the felony murder charge established the existence of all the elements of the underlying felony offense of aggravated assault. Jones v. State, 289 Ga. 145, 710 S.E.2d 127 (2011). Trial court did not err by denying the defendant’s request to charge the jury on involuntary manslaughter as a lesser included offense of the felony murder charge because the defendant’s admitted act of purposefully firing a gun at the victim constituted the felony offense of aggravated assault, not reckless conduct; the jury’s verdict of guilty on the felony murder charge established the existence of all the elements of the underlying felony offense of aggravated assault. Kendrick v. State, 290 Ga. 873, 725 S.E.2d 296 (2012). 479 Jury Instructions (Cont’d) Charge on party to crime proper. — During the defendant’s trial for felony murder, the trial court did not err in giving a charge on party to a crime because the charge given was legally correct and was supported by evidence presented at trial; in addition to the evidence linking the defendant to the commission of the crimes for which the defendant was convicted, there was evidence from an expert firearms examiner concerning the amount of time it would take for one person to shoot and re-load the two-shot derringer believed to be the murder weapon in order to fire six shots into the two victims, there was evidence that a confidential informant had told authorities that two shooters killed the victims, and the defendant testified that a drug dealer knew about the drug transaction between the defendant and one of the victims, that the defendant had loaned the defendant’s truck to the drug dealer and had sold the defendant’s derringers to the drug dealer prior to the murder of the victims. Baptiste v. State, 288 Ga. 653, 706 S.E.2d 442 (2011). When the defendant was convicted of murder, armed robbery, and related crimes in connection with the death of the victim, the defendant’s counsel was not ineffective for failing to object to the trial court’s jury instruction on parties to a crime, insofar as the indictment did not specifically charge the defendant as a party, because it was well-settled that the indictment need not specifically charge a criminal defendant as a party to the crime in order to permit a jury instruction on accomplice liability and authorize a conviction based thereon. Babbage v. State, 296 Ga. 364, 768 S.E.2d 461 (2015). Failure to charge on implied malice is not harmful when the jury is instructed that the jury must find actual malice before finding defendant guilty of malice murder. Jackson v. State, 269 Ga. 494, 500 S.E.2d 902 (1998). Instruction defining express and implied malice as requiring neither premeditation nor a preconceived intention to kill was a correct statement of the law. Wright v. State, 255 Ga. 109, 335 S.E.2d 857 (1985). 16-5-1 Presumption that killing was intentional and malicious. — In prosecution for murder, trial court correctly charged that if state proved that defendant killed person named in indictment by use of a deadly weapon, the killing would be presumed to be intentional and malicious unless circumstances of alleviation, excuse, or justification appeared to satisfaction of jury. Felts v. State, 244 Ga. 503, 260 S.E.2d 887 (1979), aff ’d, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981), overruled on other grounds, Baker v. Montgomery, 811 F.2d 55 (11th Cir. 1987); but see Holloway v. McElroy, 474 F. Supp. 1363 (M.D. Ga. 1979), aff ’d, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981), overruled on other grounds, Baker v. Montgomery, 811 F.2d 55 (11th Cir. 1987). As to a charge of malice murder, because the trial court erroneously gave the state’s requested jury instruction that the law presumed an intention to kill and malice was to be implied from the use of a deadly weapon, the defendant’s malice murder conviction had to be reversed. Further, the error could not be considered harmless as: (1) there were no witnesses to the shooting; (2) the victim was shot only once; (3) the defendant claimed to have fired the weapon during a struggle with the victim after the defendant’s accomplices fled the scene; and (4) the fact that the fatal shot was fired from a distance of three or more feet was not inconsistent with the defendant’s story of a struggle and did not overwhelmingly establish that the defendant acted with malice in shooting the victim. Warren v. State, 283 Ga. 42, 656 S.E.2d 803 (2008). Constitutionality of presumptions of malice and intent. — Charges in homicide prosecution that malice is presumed from intentional killing and that intent is presumed from use of a deadly weapon did not violate due process, because there is a rational connection between facts proved and facts presumed. Patterson v. State, 239 Ga. 409, 238 S.E.2d 2 (1977), aff ’d, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981), 480 overruled on other grounds, Baker v. Montgomery, 811 F.2d 55 (11th Cir. 1987); but see Holloway v. McElroy, 474 F. Supp. 1363 (M.D. Ga. 1979), aff ’d, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981), overruled on other grounds, Baker v. Montgomery, 811 F.2d 55 (11th Cir. 1987). Charge on assault with intent to murder when death not necessarily caused by intentional shooting. — When one is charged with murder by shooting and evidence does not demand finding that victim died from such gunshot wounds and defendant admits shooting, a verdict of guilty of assault with intent to murder may be authorized and it is not error to charge the jury on such lesser crime. Kimbro v. State, 113 Ga. App. 314, 147 S.E.2d 876 (1966) (decided under former Code 1933, §§ 26-1003, 26-1004). Jury instructions on presumption of intent did not shift burden. — Jury charge that ‘‘a presumption is a conclusion which the law draws from given facts’’; that presumptions are rebuttable; and that the state must prove every element of the crime, including intent, beyond a reasonable doubt as a whole did not impermissibly shift the burden of proof to the defendant. Roberson v. State, 253 Ga. 239, 319 S.E.2d 444 (1984). Presumptions as to intent and malice are not unconstitutionally burden-shifting. — It is not unconstitutionally burden-shifting to presume that intentional homicide is malicious until the contrary appears, nor to presume intent to kill from use of deadly weapon. Such charges to a jury lay no burden of proof on defendant, but merely require defendant in certain circumstances to go forward with evidence. Thomas v. State, 240 Ga. 454, 241 S.E.2d 204 (1978). Instruction on presumption must note it is rebuttable. — Court erred in charging the jury that, ‘‘If you find that a homicide is proved to have been committed in this case by the defendant, and with a weapon that you find was, in the manner in which it was used upon the occasion in question, a weapon likely to produce death, the law would presume malice and the intent to kill,’’ without also informing 16-5-1 the jury that the presumption of intent may be rebutted. Trenor v. State, 252 Ga. 264, 313 S.E.2d 482 (1984). Instruction removing presumption of innocence. — Instruction which told the jury, at defendant’s trial for felony-murder based upon the commission of armed robbery, that the acts of a person of sound mind and discretion are presumed to be the product of the person’s will was reversible error, because it removed the presumption of innocence and relieved the state of the burden of proving beyond a reasonable doubt that defendant intentionally committed the felony of armed robbery by requiring the jury to presume that the defendant intended to perform defendant’s actions. Hall v. Kelso, 892 F.2d 1541 (11th Cir. 1990). Instruction on inferred intent and malice from proven circumstances. — Trial court’s jury instruction in a murder prosecution that intent may be inferred from proven circumstances or by the acts and conduct of the defendant or may be presumed when it would be the natural and necessary consequence of the particular acts did not impermissibly relieve the prosecution of the prosecution’s burden of proving intent beyond a reasonable doubt or otherwise undermine the fact-finding responsibility of the jury. Lamb v. Jernigan, 683 F.2d 1332 (11th Cir. 1982), cert. denied, 460 U.S. 1024, 103 S. Ct. 1276, 75 L. Ed. 2d 496 (1983). Instruction on the presumption of malice was not interpreted as burden-shifting. Jarrell v. Balkcom, 735 F.2d 1242 (11th Cir. 1984), cert. denied, 471 U.S. 1103, 105 S. Ct. 2331, 85 L. Ed. 2d 848 (1985). Instruction on implying malice. — Jury instruction in a murder prosecution that malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart could not, in view of the strong circumstantial evidence that preceded it, have been interpreted by the jury as changing the reasonable-doubt burden of proof they were initially told that the prosecution had to meet. Lamb v. Jernigan, 683 F.2d 1332 (11th Cir. 1982), cert. denied, 460 U.S. 1024, 103 S. Ct. 1276, 75 L. Ed. 2d 496 (1983). 481 Jury Instructions (Cont’d) Instruction that ‘‘malice shall be implied where no considerable provocation appears and where all of the circumstances of the killing show an abandoned and malignant heart’’ did not improperly relieve the state of its burden of proving malice. Walden v. State, 251 Ga. 505, 307 S.E.2d 474 (1983). Trial court does not err in charging, relative to implied malice, the language of O.C.G.A. § 16-5-1. Mapp v. State, 258 Ga. 273, 368 S.E.2d 511 (1988). When the defendant was charged with murder under O.C.G.A. § 16-5-1, the post-evidentiary charge, in which the jury was instructed that malice may be implied when no considerable provocation appears and when all the circumstances of the killing show an abandoned and malignant heart, being more favorable to appellant than the acceptable statutory charge, was not reversible error. Gambrel v. State, 260 Ga. 197, 391 S.E.2d 406 (1990). Instruction stating ‘‘malice may be inferred’’ did not impermissibly shift burden of proof to the defendant. Adams v. State, 255 Ga. 356, 338 S.E.2d 860 (1986). Instruction on inferring intent from use of deadly weapon. — Although the trial court erred by instructing the jury that it could infer intent to kill from the use of a deadly weapon, the error was harmless because defendant was found guilty of felony murder rather than malice murder. Ross v. State, 276 Ga. 747, 583 S.E.2d 850 (2003). Defendant’s challenge to a jury instruction regarding inferring the intent to kill from the use of a deadly weapon failed; because felony murder did not require intent to kill (defendant only had to have intended to commit the underlying felony), any inference regarding the intent to kill would have had no bearing on the commission of felony murder. Brown v. State, 278 Ga. 544, 604 S.E.2d 503 (2004) (Unpublished). In a trial on a charge of malice murder, while the trial court erred in charging the jury that it could infer the intent to kill if a person used a deadly weapon and caused the death of a human being, the error was harmless because there was 16-5-1 overwhelming evidence of malice, and thus, it was highly probable that the improper charge did not contribute to the verdict. Davis v. State, 279 Ga. 11, 608 S.E.2d 628 (2005). Harris v. State, 273 Ga. 608, 543 S.E.2d 716 (2001), which held that a jury charge on malice that allowed a jury to infer an intent to kill by a defendant’s use of a deadly weapon, applied to the defendant’s case, which was pending on direct review when Harris was decided; however, any error in giving the jury the erroneous charge was harmless in light of the overwhelming evidence of malice. Flanders v. State, 279 Ga. 35, 609 S.E.2d 346 (2005). Instruction on the effect of a deadly weapon, which stated that malice and intent to kill would be presumed if the murder was committed with a ‘‘weapon likely to produce death,’’ was upheld. Jarrell v. Balkcom, 735 F.2d 1242 (11th Cir. 1984), cert. denied, 471 U.S. 1103, 105 S. Ct. 2331, 85 L. Ed. 2d 848 (1985). Instruction erroneously shifted burden to defendant. — It was erroneous to charge in a homicide prosecution that the law presumes that every homicide is malicious until the contrary appears from the circumstances of alleviation, excuse, or justification and that it is incumbent upon the accused to make out such circumstances to the jury’s satisfaction unless such circumstances appear from the evidence produced against the accused; but the error was harmless beyond a reasonable doubt where the evidence of guilt was so overwhelming that the error could not have contributed to the jury’s decision to convict. Lamb v. Jernigan, 683 F.2d 1332 (11th Cir. 1982), cert. denied, 460 U.S. 1024, 103 S. Ct. 1276, 75 L. Ed. 2d 496 (1983). Instructions on malice and flight not burden-shifting. — See Ingram v. State, 253 Ga. 622, 323 S.E.2d 801 (1984), cert. denied, 473 U.S. 911, 105 S. Ct. 3538, 87 L. Ed. 2d 661 (1985). Following jury instruction impermissibly shifted the burden on to the defendant to disprove malice: ‘‘When and if a killing is proved to your satisfaction to be the intentional act of the defendant, himself, the presumption of innocence with which he enters upon the trial 482 is removed from him. And, the burden is upon him to justify or mitigate the homicide, unless the evidence introduced against him shows justification or mitigation.’’ Dix v. Newsome, 584 F. Supp. 1052 (N.D. Ga. 1984). Instruction which unconstitutionally shifted the burden of proof was harmless error where, even absent the erroneous charge, no rational jury would have drawn any other inferences from defendant’s conduct but that defendant intended to kill the victim. Lancaster v. Newsome, 880 F.2d 362 (11th Cir. 1989). ‘‘Use of deadly weapon’’ charge is error, whether or not it is accompanied by an instruction that the jury has discretion to make the inference. This new rule of criminal procedure will be applied to all cases in the pipeline. Harris v. State, 273 Ga. 608, 543 S.E.2d 716 (2001). Jury instructions regarding intent impermissibly shifted burden of proof and rendered conviction invalid. Franklin v. Francis, 720 F.2d 1206 (11th Cir. 1983), aff ’d, 471 U.S. 307, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985). Erroneous instruction harmless if intent not at issue. — An instruction which could lead a reasonable juror to understand as creating a mandatory presumption of intent may nevertheless be found to be harmless if intent is not at issue in the case or is overwhelmingly proved. Burger v. Kemp, 785 F.2d 890 (11th Cir. 1986), aff ’d, 483 U.S. 776, 107 S. Ct. 3114, 97 L. Ed. 2d 638 (1987). Instruction shifting burden where defendant claims self-defense. — An erroneous charge to the jury that shifted the burden of persuasion to defendant on the element of intent was harmless, where defendant relied on the defense of self-defense. White v. State, 255 Ga. 731, 342 S.E.2d 304 (1986). Trial court erred in failing to charge a jury on the principles of retreat when self-defense was a defendant’s sole defense, the prosecution placed the concept of retreat in issue during cross-examination of the defendant, and evidence of the defendant’s guilt on charges that included aggravated assault was not overwhelming. Felder v. State, 291 Ga. App. 740, 662 S.E.2d 826 (2008). 16-5-1 Charge that when defendant admits killing defendant must show justification is not erroneous. — On trial of one charged with murder, it is not error to charge jury that if the defendant admits the killing, the law places upon the defendant the burden to satisfy the jury that the defendant was justified under some rule of law, unless admissions, together with evidence in the case against the defendant, or statement of the defendant, show justification or mitigation. Gay v. State, 173 Ga. 793, 161 S.E. 603 (1931) (decided under former Penal Code 1910, §§ 61, 62). When defendant admits homicide without stating excuse or justification. — Charge on confessions is authorized when accused admits homicide of which accused is charged and in connection therewith states no facts or circumstances showing excuse or justification for killing; and this is true although, when referring on another occasion to the killing, the accused states facts or circumstances showing excuse or justification therefor. Weatherby v. State, 213 Ga. 188, 97 S.E.2d 698 (1957) (decided under former Code 1933, §§ 26-1003, 26-1004). Effect of state’s evidence showing mitigating circumstances, justification, or alleviation. — When any of the state’s evidence shows mitigating circumstances, justification, or alleviation, it is error to charge that malice will be presumed from commission of homicide with a deadly weapon, and that burden rests upon the accused to show justification or mitigation. Jordon v. State, 232 Ga. 749, 208 S.E.2d 840 (1974). When the evidence as to provocation and self-defense is in dispute, it should be submitted to the jury to determine if the killing was with malice, express or implied. West v. State, 251 Ga. 458, 306 S.E.2d 909 (1983). Erroneous instruction on implied malice. — In prosecution for murder it was error to instruct that ‘‘implied malice is an intention to kill which is proven either by the act of the killing itself, the surrounding circumstances, or the absence of any provocation’’; a reasonable juror could have construed the instruction as an irrebuttable direction to find inten- 483 Jury Instructions (Cont’d) tion to kill upon proof of either (1) absence of provocation or (2) the act of killing itself. Parks v. State, 254 Ga. 403, 330 S.E.2d 686 (1985). Charge on felony murder under malice murder indictment is not error where warranted by evidence. Marable v. State, 154 Ga. App. 426, 268 S.E.2d 720 (1980). Instructions on felony murder and aggravated assault moot in light of malice murder conviction. — Any issue concerning the trial court’s issuance of instructions to the jury on the offenses of felony murder and aggravated assault became moot when a defendant was convicted and sentenced on a charge of malice murder. Parker v. State, 282 Ga. 897, 655 S.E.2d 582 (2008). Charge of felony-murder without defining elements of underlying felony is harmful error. Edwards v. State, 233 Ga. 625, 212 S.E.2d 802 (1975). Instruction on nexus between felony and death. — Trial court did not err in charging the jury on the nexus requirement between the felony and the death of the victim because the trial court gave the jurors the pattern charge on felony murder at least three times. Johnson v. State, 289 Ga. 650, 715 S.E.2d 99 (2011). Application of forcible felony instruction. — On appeal from a conviction for voluntary manslaughter as a lesser-included offense of malice murder, the appeals court found that no error or prejudice resulted from the trial court’s denial of the defendant’s request for an aggravated battery charge as a forcible felony in support of the defendant’s justification claim, and affirmed the trial court’s choice to charge on aggravated assault and rape as the defendant failed to present evidence of any reasonable belief that the use of force was necessary to prevent the commission of an aggravated battery. Wicker v. State, 285 Ga. App. 294, 645 S.E.2d 712 (2007). Charge of self-defense and accident. — Where the defendant based the defense upon a claim of justification, and the court charged the jury as to self defense and accident, the court’s refusal to 16-5-1 charge involuntary manslaughter was not error. Willis v. State, 258 Ga. 477, 371 S.E.2d 376 (1988). Charge of accident not warranted. — In a prosecution for felony murder and the predicate felonies of aggravated battery, O.C.G.A. § 16-5-24(a), and first-degree child cruelty, O.C.G.A. § 16-5-70, assuming arguendo that the evidence supported an instruction on accident, the trial court’s failure to give that instruction was not reversible error as the jury’s conclusion that the defendant acted with malice, which was supported by overwhelming evidence, necessarily meant that the jury would have rejected any accident defense. Sears v. State, 290 Ga. 1, 717 S.E.2d 453 (2011). Instruction on alibi. — Where the evidence in support of the defense of alibi does not show the impossibility of the defendant’s presence at the scene of the crime at the time of its commission, the failure of the court to charge the law of alibi is not error. Hulett v. State, 262 Ga. 194, 415 S.E.2d 642 (1992). Trial court did not sua sponte err in failing to charge jury on identity as: (1) there was Georgia law requiring a trial judge to warn the jury against the possible dangers of mistaken identification of an accused as the person committing a crime; and (2) such was not required after the jury had already been charged as to the presumption of innocence, reasonable doubt, burden of proof, credibility of witnesses, and impeachment of witnesses. Lee v. State, 281 Ga. 776, 642 S.E.2d 835 (2007). Issuance of sequential jury charge in trial for malice, murder, felony murder, and aggravated assault. — In a prosecution for malice murder, felony murder, and aggravated assault, although no error resulted from the trial court’s issuance of a sequential jury charge, because the jury found in the defendant’s favor on the defense of justification as to the malice murder count, the finding also applied to the felony murder charge. Thus, the trial court erred in finding the defendant guilty of both felony murder and the underlying felony of aggravated assault. Turner v. State, 283 Ga. 17, 655 S.E.2d 589 (2008). 484 Instructions on both murder and voluntary manslaughter should be given where warranted. — On trial of murder case, if there is any evidence, however slight, as to whether offense is murder or voluntary manslaughter, instruction as to law of both offenses should be given to jury. Birdsong v. State, 140 Ga. App. 719, 231 S.E.2d 813 (1976); Raines v. State, 247 Ga. 504, 277 S.E.2d 47 (1981); Coleman v. State, 256 Ga. 306, 348 S.E.2d 632 (1986). It is permissible for the court to instruct the jury that it might consider voluntary manslaughter if it did not believe that the defendant was guilty of malice murder and if it did not believe that defendant was guilty of felony murder. This is not a ‘‘sequential’’ charge of the type disallowed by the holding in Edge v. State, 261 Ga. 865(2), 414 S.E.2d 463 (1992). Shaw v. State, 263 Ga. 88, 428 S.E.2d 566 (1993). Error in charge on presumed intent was harmless where defendant had pleaded self-defense. — Error, if any, in jury charge on presumed intent in trial for malice murder was harmless where defendant had pleaded self-defense at trial and had acknowledged that homicide was intentional. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980). Evidence of good character alone does not require charge on voluntary manslaughter in murder case, although good character may of itself constitute a defense in behalf of an accused so as to generate reasonable doubt of guilt. Swett v. State, 242 Ga. 228, 248 S.E.2d 629 (1978). Self-defense instruction properly refused. — When, in a trial for homicide, the record contained no evidence of a verbal threat made by the victim to the defendant, and there was testimony that the victim said he could ‘‘get out of the car and discuss this like a man,’’ whereupon the victim exited his car and ‘‘reached for’’ the defendant, but after the victim saw the defendant’s handgun, he re-entered his automobile, these acts, standing alone, did not constitute a sufficient threat to render pointing a loaded pistol at another a lawful act of self-defense. Rhodes v. State, 257 Ga. 368, 359 S.E.2d 670 (1987). While the defendant admitted shooting 16-5-1 the victim, the defendant, with the help of an expert witness, attempted to show that the defendant had shot the victim in order to release oneself and the defendant’s family from a voodoo or ‘‘roots’’ spell the victim had cast over them for a long period of time, the trial court’s refusal to charge on self-defense was proper. McDaniel v. State, 257 Ga. 345, 359 S.E.2d 642 (1987). Because no construction of the evidence would support a finding that the defendant shot in self-defense pursuant to O.C.G.A. § 16-3-21(a), the trial court properly refused to charge on that issue; the defendant pointed to no evidence that the defendant entered a fracas between the victim and the victim’s friend in defense of the friend, and the unarmed victim was shot three times in the back as the victim was attempting to flee after the defendant assaulted the victim with a firearm. Hicks v. State, 287 Ga. 260, 695 S.E.2d 195 (2010). Trial court was authorized to instruct the jury pursuant to O.C.G.A. § 16-3-21(b)(2) that self-defense was inapplicable when the defendant was attempting to commit or was committing a felony because the defendant made an affirmative choice to engage in a dangerous and potentially violent criminal activity when the defendant participated in a drug transaction. Davis v. State, 290 Ga. 757, 725 S.E.2d 280 (2012). Instruction on vehicular homicide. — Trial court did not err in denying the defendant’s request to instruct the jury on vehicular homicide as a lesser-included offense of felony murder because that lesser-included offense was not before the jury; before the case went to the jury, the trial court entered a directed verdict in the defendant’s favor on the greater offense of felony murder and, thus, as the jury did not consider the greater offense, it could likewise not consider the lesser included offense for which the defendant had not been indicted. Johnson v. State, 289 Ga. 650, 715 S.E.2d 99 (2011). Charge on accident not warranted. — Where in a murder trial the defendant testified that defendant deliberately fired through a glass window pane at a large figure, a charge on accident was not authorized. Duke v. State, 256 Ga. 671, 352 S.E.2d 561 (1987). 485 Jury Instructions (Cont’d) Because the defendant admitted killing the defendant’s spouse and witnesses testified that the spouse feared the defendant would kill the spouse if the spouse left, the evidence was sufficient to find the defendant guilty of malice murder; consequently, the trial court did not err in declining to give a charge on ‘‘accident.’’ Mathis v. State, 279 Ga. 100, 610 S.E.2d 62 (2005). Trial court did not err in rejecting the defendant’s request to instruct the jury on the affirmative defense of accident, O.C.G.A. § 16-2-2, since although the defendant said that the defendant did not fire a gun intentionally, the defendant also testified that the defendant climbed into bed with the victim holding a loaded handgun with the defendant’s finger on the trigger because the defendant wanted the victim to understand the seriousness of the defendant’s concerns about infidelity; while the defendant initially denied pointing the gun at the victim and said the defendant kept the gun by the defendant’s side, the defendant later admitted that the defendant did point the gun at the victim’s head and that the gun went off when the victim smacked the gun away, and misuse of a firearm in the manner described by the defendant showed a degree of culpability that constituted criminal negligence. Mills v. State, 287 Ga. 828, 700 S.E.2d 544 (2010). Reckless conduct instruction unwarranted in felony murder trial. — Because the evidence in the defendant’s felony murder trial, with aggravated assault as the underlying felony, showed without dispute that, although the defendant might not have intended to kill the victim, the defendant intentionally gunned the engine and then drove at the victim, who was acting aggressively and was armed with a knife, the trial judge did not err in denying the defendant’s request for a reckless conduct instruction, but properly instructed the jury on the issue of justification. Berry v. State, 282 Ga. 376, 651 S.E.2d 1 (2007). Trial court did not err by failing to include reckless conduct on the verdict form as a lesser-included offense of felony 16-5-1 murder because a separate reckless conduct option was not required to be on the verdict form since there was no evidence of reckless conduct other than that which directly related to the death of the victim, thus, the reckless conduct charge had to be in the context of involuntary manslaughter. Banks v. State, 329 Ga. App. 174, 764 S.E.2d 187 (2014). Instruction on mistake of fact not warranted. — In a murder prosecution, the fact that the defendant testified to a belief that the defendant was required to defend self because the victim was about to drag the defendant down the street with a truck did not entitle the defendant to a mistake of fact defense under O.C.G.A. § 16-3-5, because the trial court gave a complete charge on the principles of law relating to the asserted defenses of justification and self-defense. Bell v. State, 280 Ga. 562, 629 S.E.2d 213 (2006). ‘‘Flight’’ charge not warranted. — When the state’s evidence in a murder case was that prior to trial, while the defendant was free on bond and before a trial date had been set, the defendant married a member of the armed services and went with the spouse for a period of time to West Germany, but the defendant made no attempt to evade trial nor failed to appear at trial, and the undisputed evidence showed that the defendant fully cooperated with the authorities in their investigation of the victim’s death, there was no evidence of ‘‘flight’’ from which an inference of a consciousness of guilt might be drawn, and a flight charge should not have been given. Duke v. State, 256 Ga. 671, 352 S.E.2d 561 (1987). No harm from alleged error in instructions on murder where defendant convicted of manslaughter and thereby acquitted of murder. Chancellor v. State, 165 Ga. App. 365, 301 S.E.2d 294 (1983). Charge on lesser offense of voluntary manslaughter warranted. — See Wesley v. State, 166 Ga. App. 28, 303 S.E.2d 124 (1983). Lack of proper jury instruction resulted in improper conviction. — When an original indictment charged the defendant with murder and with possessing a firearm during the commission of that murder, but the jury found the defen- 486 dant guilty of the lesser included offense of voluntary manslaughter, the defendant was improperly convicted of possession of a firearm during the commission of a crime as there was no instruction identifying voluntary manslaughter as a felony. Prather v. State, 259 Ga. App. 441, 576 S.E.2d 904 (2003). Failure to charge on lesser included offense of voluntary manslaughter not error absent written request made at or before close of evidence in trial for malice murder. Howe v. State, 250 Ga. 811, 301 S.E.2d 280 (1983). Court did not err in refusing to charge the jury on voluntary manslaughter when, even if the evidence had justified such a charge, absent a written request, it is not error to fail to so charge. Mosley v. State, 257 Ga. 382, 359 S.E.2d 653 (1987). Voluntary manslaughter charge is not warranted when the only alleged evidence of provocation is the victim resisting an armed robbery. Nance v. State, 272 Ga. 217, 526 S.E.2d 560, cert. denied, 531 U.S. 950, 121 S. Ct. 353, 148 L. Ed. 2d 284 (2000). In a murder prosecution, a jury charge on voluntary manslaughter, as a lesser-included offense, was unwarranted, as the evidence showed that the defendant had the chance to walk away from a heated argument with the victim, but instead calmly retrieved a knife, concealed it, and deliberately re-initiated the argument before plunging the knife into the victim’s abdomen. Ballard v. State, 281 Ga. 232, 637 S.E.2d 401 (2006). Trial court’s refusal to charge the jury on voluntary manslaughter as a lesser included offense of murder was not erroneous when evidence of a sudden, violent, and irresistible passion resulting from serious provocation was lacking. Walker v. State, 281 Ga. 521, 640 S.E.2d 274 (2007). Failure to charge on involuntary manslaughter as a lesser included offense of felony murder. — Trial court did not err by refusing to charge the jury on involuntary manslaughter in the commission of a lawful act in an unlawful manner, O.C.G.A. § 16-5-3(b), as a lesser included offense of a felony murder charge based on the underlying offense of cruelty to children: the defendant had not re- 16-5-1 quested such a charge in writing; moreover, the evidence, including the defendant’s claim that the child’s death was caused by an accidental fall while the defendant was playing with the child, did not warrant a charge on lawful act-unlawful manner involuntary manslaughter. Moore v. State, 283 Ga. 151, 656 S.E.2d 796 (2008). Instruction on terroristic threats. — In a trial for murder of her husband, defendant’s requested jury charge regarding terroristic threats was properly refused, where none of the alleged threats by the victim were corroborated as contemplated by O.C.G.A. § 16-11-37. Chapman v. State, 258 Ga. 214, 367 S.E.2d 541 (1988). Instruction on concealing a death. — Concealing a death, O.C.G.A. § 16-10-31, and felony murder, O.C.G.A. § 16-5-1, have entirely different elements and require proof of totally different facts, and thus, the crime of concealing a death is not included, as a matter of fact or law, in felony murder during the commission of aggravated assault; a trial court’s refusal to give a requested charge on concealing the death of another as a lesser included offense of felony murder was proper. Chapman v. State, 280 Ga. 560, 629 S.E.2d 220 (2006). Absent request, judge need not charge regarding turbulent or violent character of the deceased. Fudge v. State, 190 Ga. 340, 9 S.E.2d 259 (1940) (decided under former Code 1933, §§ 26-1003, 26-1004). Jury charge held harmless error. — See Stephens v. Kemp, 846 F.2d 642 (11th Cir.), cert. denied, 488 U.S. 872, 109 S. Ct. 189, 102 L. Ed. 2d 158 (1988). Although the trial court erred in charging the jury that if a person of sound mind and discretion intentionally and without justification used a deadly weapon or instrumentality in the manner in which such weapon or instrumentality was ordinarily used and thereby caused the death of a human being, the jury could infer malice and the intent to kill, it was highly probable that the erroneous instruction did not contribute to the verdict because there was evidence that the defendant participated in two meetings to plan the 487 Jury Instructions (Cont’d) murder, instructed a codefendant on how to perform the murder, was present at the victim’s home on the morning the victim was killed, and accepted payment for the murder. Owens v. State, 286 Ga. 821, 693 S.E.2d 490, cert. denied, 131 S. Ct. 156, 178 L. Ed. 2d 93 (2010), overruled on other grounds by Shelton v. Lee, 2016 Ga. LEXIS 452 (Ga. 2016). Sequential charge held reversible error. — Because trial court’s recharge improperly emphasized malice murder and felony murder, preventing the jury from giving full consideration to voluntary manslaughter, this amounted to reversible error; thus, defendant’s felony murder conviction had to be reversed. Lewis v. State, 283 Ga. 191, 657 S.E.2d 854 (2008). Court did not err in failing to recharge jury as to mutual combat when the jury requested a recharge on murder and voluntary manslaughter, but there was no request as to a recharge on mutual combat. Welch v. State, 257 Ga. 197, 357 S.E.2d 70 (1987). Erroneous failure to charge on mutual combat. — When one is on trial for murder and a verdict for voluntary manslaughter is returned, it is not reversible error for the court to fail to charge law of mutual combat as applied to self-defense, since a verdict for voluntary manslaughter is an acquittal of murder. Davis v. State, 76 Ga. App. 427, 46 S.E.2d 520 (1948) (decided under former Code 1933, §§ 26-1003, 26-1004). Erroneous charge on malice is harmless error where only issue is identity of accused. — When the only issue was as to the identity of the accused, it appearing without dispute that the persons who killed the deceased were guilty of the offense of murder, it was not cause for a new trial that the trial judge did not define express malice in the exact language of the statute, in that the judge omitted the word ‘‘unlawfully’’ as contained therein. Peeples v. State, 178 Ga. 675, 173 S.E. 850 (1934) (decided under former 1933, Code §§ 26-1002, 26-1003, 26-1004). Cruelty to children instruction not required in malice murder prosecu- 16-5-1 tion. — In a prosecution for malice murder, the trial court did not err in refusing to give an instruction on cruelty to children as an included offense. Loren v. State, 268 Ga. 792, 493 S.E.2d 175 (1997). Instruction on parental obligations under § 19-7-2. — In a prosecution for malice murder of defendant’s minor child, the trial court did not err in refusing to give an instruction on the parental obligation to provide for the maintenance, protection, and education of a minor child under O.C.G.A. § 19-7-2. Loren v. State, 268 Ga. 792, 493 S.E.2d 175 (1997). Instruction that ‘‘a reckless disregard for human life may be equivalent to the specific intent to kill’’ was not error. Walden v. State, 251 Ga. 505, 307 S.E.2d 474 (1983). Charges in homicide prosecution that malice is presumed from intentional killing and that intent is presumed from use of deadly weapon are not unconstitutionally burden-shifting because the instruction does not shift any burden of proof or persuasion to defendant. Patterson v. State, 239 Ga. 409, 238 S.E.2d 2 (1977). No error in failing to charge on mere presence. — Evidence elicited at trial did not support a charge on mere presence because the defendant took an active role in the crime; the defendant drove the codefendants to the crime scene with the intent to rob, the defendant turned off the car’s lights to assist in accosting the victims by surprise, the defendant drove the defendant’s comrades away from the crime, and the defendant tried to get rid of the stolen car. Huckabee v. State, 287 Ga. 728, 699 S.E.2d 531 (2010). In a murder prosecution, the trial court did not err when the court refused to give the defendant’s requested charge on mere presence as there was no evidence that the defendant was merely present when the victim was shot; instead, the uncontroverted evidence showed that the defendant took an active part in the victim’s death. Flowers v. State, 291 Ga. 122, 728 S.E.2d 196 (2012). No error in failing to charge on accessory after the fact. — Because the defendant was not charged with being an 488 accessory after the fact, the trial court did not err when the court refused to give a charge on accessory after the fact. Huckabee v. State, 287 Ga. 728, 699 S.E.2d 531 (2010). Instruction on inherent dangerousness not required. — Trial court did not err in refusing to instruct the jury regarding inherent dangerousness because an instruction on inherent dangerousness was not required. Chance v. State, 291 Ga. 241, 728 S.E.2d 635 (2012). Conflicts and credibility for jury’s resolution. — There was sufficient evidence to show that the defendant was guilty of malice murder; all the matters that the defendant cited simply presented questions regarding conflicts in the evidence or credibility, which were properly for the jury’s resolution. Conway v. State, 281 Ga. 685, 642 S.E.2d 673 (2007). Death Penalty Punishment of death does not invariably violate the Constitution. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976). Death penalty statutes not racially discriminatory. — Petitioner, a death row inmate, in a federal habeas petition challenged the imposition of the death penalty, arguing that the death penalty was being administered in a racially discriminatory manner, the argument failed because the statistical evidence was not so strong as to permit no inference other than that the results were the product of a racially discriminatory intent or purpose in that the death penalty was sought in 58 percent of the possible death penalty cases where the defendant was black but in only 40 percent of the cases where the defendant was white, and sought in only 25 percent of the cases where the victim was black and 54 percent of the cases where the victim was white. Jefferson v. Terry, 490 F. Supp. 2d 1261 (N.D. Ga. 2007), aff ’d in part and rev’d in part, 570 F.3d 1283 (11th Cir. Ga. 2009). Prerequisite to involving death penalty. — Before convicted defendant may be sentenced to death, jury, or trial judge in cases tried without a jury, must find beyond a reasonable doubt one of ten aggravating circumstances specified in 16-5-1 former Code 1933, § 27-2534.1. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) (see O.C.G.A, § 17-10-30). Procedural safeguards to prevent abuse of death penalty are constitutionally adequate. — Imposition of death penalty on proof of felony murder does not lead to freakish and wanton executions because procedural safeguards were enacted in order to prevent such abuses and have been held to be constitutionally adequate in that regard. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002). Sentence not disproportionate where defendant active party to murder. — When the defendant was not only present at the scene of the murder and participated in the assault and rape of two girls, but also assisted the codefendant in stripping the girls and binding the girls’ hands, then turned the defendant’s car around in the road, presumably to facilitate a quick getaway, and stood by the codefendant in the road while the latter shot the victims, the jury reasonably found that the defendant was an active party in the murder, and the defendant’s death sentence was not disproportionate to the crime. Johnson v. Kemp, 585 F. Supp. 1496 (S.D. Ga. 1984), rev’d on other grounds, 759 F.2d 1503 (11th Cir. 1985). Defendant’s death sentence for malice murder was affirmed as the sentence was neither excessive nor disproportionate to the penalties imposed in similar cases in Georgia as the defendant had murdered at least four people and had attempted or planned to murder several other people; the defendant’s death sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor. Williams v. State, 281 Ga. 87, 635 S.E.2d 146 (2006), cert. denied, 553 U.S. 1004, 128 S. Ct. 2046, 170 L. Ed. 2d 793 (2008). Presentence hearing not required where death penalty not sought. — Since upon conviction for murder where 489 Death Penalty (Cont’d) death penalty is not sought, the only punishment to be lawfully imposed is that of life imprisonment, there is no necessity to conduct a presentence hearing on issue of punishment, as trial court possesses no discretion in such instance. Brown v. State, 246 Ga. 251, 271 S.E.2d 163 (1980). Life sentence automatic if death penalty not sought. — If defendant is found guilty of murder, defendant automatically receives a life sentence under the murder statute if death penalty had not been asked for by prosecution. Parks v. State, 230 Ga. 157, 195 S.E.2d 911 (1973). Death sentence for 17-year-old defendant prohibited. — Habeas court found as a matter of fact that the defendant was 17 years old at the time of the murders for which the defendant was convicted and vacated the defendant’s death sentences in light of the holding of the U.S. Supreme Court in Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183,161 L. Ed. 2d 1 (2005) (Eighth Amendment forbids imposition of death penalty on juvenile offenders under age 18), that death sentences for crimes committed by persons under the age of 18 violate the Constitution of the United States. Terry v. Jenkins, 280 Ga. 341, 627 S.E.2d 7 (2006). Merger Because the General Assembly did not make the amendments to O.C.G.A. § 16-5-1 retroactive, the defendant was properly sentenced in conformity with the law as it was when the crime was committed, which provided that the sentences for causing a death, including a death caused by cruelty to children in the second degree, were imprisonment for life (with the possibility of parole), imprisonment for life without parole, or death. Jones v. State, 302 Ga. 488, 807 S.E.2d 344 (2017). Aggravated battery conviction merged into the malice murder conviction where the medical examiner’s testimony established that the same act caused the aggravated battery and the victim’s death; thus, the same evidence was used to prove both crimes. Fulton v. State, 278 Ga. 58, 597 S.E.2d 396 (2004). 16-5-1 No merger of aggravated assault and murder. — A conviction for possession of a firearm during the commission of a felony (O.C.G.A. § 16-11-106) does not merge with a conviction for felony murder. Hawkins v. State, 262 Ga. 193, 415 S.E.2d 636 (1992). A conviction for discharging a gun within 50 yards of a public highway (O.C.G.A. § 16-11-103) does not merge into a felony murder conviction. Hawkins v. State, 262 Ga. 193, 415 S.E.2d 636 (1992). An aggravated assault conviction did not merge as a matter of fact with a murder conviction because the evidence presented at trial showed that the defendant inflicted a severe, but non-fatal, beating upon the victim that was separate and distinct from the choking and strangling which resulted in the victim’s death. Starks v. State, 283 Ga. 164, 656 S.E.2d 518 (2008). Lesser offense held not to merge with conviction. — Because the jury could reasonably have concluded that the victim’s first two injuries from two non-fatal shots resulted from a separate offense than the third, the earlier shots were sufficient to support the aggravated assault conviction, separate from the third and fatal shot, and there was no merger of the aggravated assault offense with a separate charge of malice murder. Parker v. State, 281 Ga. 490, 640 S.E.2d 44 (2007). Although both malice murder and cruelty to children required a malicious intent, O.C.G.A. §§ 16-5-1(a) and 16-5-70(b), the fact that such intent supported an element in each crime did not warrant merging of the sentences when other mutually exclusive elements of the crimes remained, and the other elements of the two offenses had to be compared; malice murder, but not cruelty to children, required proof that defendant caused the death of another human being, O.C.G.A. § 16-5-1(a), and cruelty to children, but not malice murder, required proof that the victim was a child under the age of 18 who was caused cruel or excessive physical or mental pain, O.C.G.A. § 16-5-70(b). Each crime required proof of at least one additional element which the other did not and 490 the crimes of malice murder and cruelty to children were not so closely related that multiple convictions were prohibited under other provisions of O.C.G.A. §§ 16-1-6 and 16-1-7; accordingly, even if the same conduct established the commission of both malice murder and cruelty to children, the two crimes did not merge. Linson v. State, 287 Ga. 881, 700 S.E.2d 394 (2010). Merger of cruelty to children, aggravated assault, and murder. — Because separate cruelty to children and aggravated assault counts were based upon acts committed by the defendant on the day preceding the death of the victim, neither of those convictions merged into the felony murder count also filed against the defendant and, accordingly, separate sentences for those crimes were authorized. Christian v. State, 281 Ga. 474, 640 S.E.2d 21 (2007). Merger doctrine is rejected with respect to felony-murder rule in Georgia. Baker v. State, 236 Ga. 754, 225 S.E.2d 269 (1976). Merger of manslaughter conviction. — When the defendant was engaged in a shoot-out with another and accidentally struck and killed an innocent third party, the defendant’s conviction for voluntary manslaughter could be merged into a felony-murder conviction. Foster v. State, 264 Ga. 369, 444 S.E.2d 296 (1994). Defendant’s conviction of voluntary manslaughter under O.C.G.A. § 16-5-2 was improper as the defendant was also convicted of felony murder under O.C.G.A. § 16-5-1(c) for the same transaction, and this would have subjected the defendant to multiple convictions and punishments for one crime, which would have placed the defendant in double jeopardy in violation of Ga. Const. 1983, Art. I, Sec. I, Para. XVIII and U.S. Const., amend. 5. Lawson v. State, 280 Ga. 881, 635 S.E.2d 134 (2006). Trial court properly refused to accept the jury’s initial verdict finding the defendant guilty of both felony murder and voluntary manslaughter because the same aggravated assault charge was both the predicate felony for the felony murder charge and the act underlying the voluntary manslaughter charge; therefore, the 16-5-1 jury could not find the defendant guilty of both felony murder and voluntary manslaughter because, as charged, the crimes were subject to the modified merger rule, and the first verdicts were ambiguous. Ingram v. State, 290 Ga. 500, 722 S.E.2d 714 (2012). Modified merger and double jeopardy. — Modified merger rule, which speaks to the validity of a verdict on a charge of felony murder when the jury also finds the accused guilty of voluntary manslaughter, is effective at the time the jury renders the jury’s verdict and is not destroyed by the granting of a motion for new trial on the voluntary manslaughter charge; likewise, the presence or absence of a separate charge of aggravated assault in the indictment has no effect on a court’s application of the modified merger rule because while the existence of a separate aggravated assault charge must be carefully considered in applying the rule and making determinations as to proper sentencing, its existence does not render the rule inapplicable. Williams v. State, 288 Ga. 7, 700 S.E.2d 564 (2010). Modified merger rule applies. — When the evidence would support a conviction for either felony murder or voluntary manslaughter, and the jury finds the defendant guilty of each offense, the modified merger rule applies if the underlying felony is directed against the homicide victim and is not independent, but rather is an integral part of the killing; under such rule, the defendant cannot be convicted and sentenced for felony murder because the voluntary manslaughter verdict indicates that the underlying felony is mitigated by provocation and passion. Sanders v. State, 281 Ga. 36, 635 S.E.2d 772 (2006). Merger of underlying felony. — Trial court erred in imposing a 20 year sentence for the burglary conviction since this conviction, as the underlying felony in the felony murder conviction, should have merged with the felony murder conviction. Sumrall v. State, 264 Ga. 148, 442 S.E.2d 246, cert. denied, 513 U.S. 1020, 115 S. Ct. 585, 130 L. Ed. 2d 499 (1994). Defendant’s conviction for felony fleeing and attempting to elude was vacated as the offense served as the underlying fel- 491 Merger (Cont’d) ony for a felony murder conviction and merged with the conviction for felony murder. Ferguson v. State, 280 Ga. 893, 635 S.E.2d 144 (2006). Judgment convicting a defendant of cruelty to a child in the first degree and the sentence entered thereon were vacated because the crime should have merged for sentencing purposes with the defendant’s felony murder conviction based on the underlying felony of cruelty to a child in the second degree; the state agreed that the crimes merged in fact, and an examination of the evidence in the context of the trial court’s instructions to the jury indicated that the judgment and sentence had to be vacated. White v. State, 281 Ga. 276, 637 S.E.2d 645 (2006). Defendant was incorrectly sentenced on the aggravated assault charge which was the underlying offense for one of the felony murder charges. Kipp v. State, 294 Ga. 55, 751 S.E.2d 83 (2013). Merger of the most severe. — When it is unclear which of two or more felonies is the underlying felony for a felony murder conviction, the trial court must merge only one, the most severe with respect to potential punishment, such that a court’s conviction for rape warranted reversal in light of the lesser co-felony of burglary. Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002). Merger of malice murder and aggravated assault. — When defendant fired a gun at a person and the bullet grazed that person, went through a wall, and killed another person, the aggravated assault and malice murder convictions did not merge for sentencing purposes. George v. State, 276 Ga. 564, 580 S.E.2d 238 (2003). Trial court erred in sentencing defendant for malice murder and aggravated assault as the victim’s death was caused by a combination of blunt force trauma and strangulation and the aggravated assault merged into the malice murder as a matter of fact. Young v. State, 280 Ga. 65, 623 S.E.2d 491 (2005). Because the evidence the state used to 16-5-1 prove that the defendant committed aggravated assault was the same that it used to prove that defendant committed malice murder, the aggravated assault offense merged into the malice murder as a matter of fact. Thus, the separate judgment of conviction and sentence for aggravated assault had to be vacated. Ludy v. State, 283 Ga. 322, 658 S.E.2d 745 (2008). Trial court did not err in failing to merge the aggravated assault for which the defendant was sentenced into defendant’s malice murder conviction because the two crimes were not established by the same conduct; the defendant’s conduct did not establish the commission of both the aggravated assault and the murder because the aggravated assault was established by evidence that the defendant and the codefendant beat and strangled the victim, whereas the murder was established by evidence that they killed the victim by stabbing the victim’s body. Hall v. State, 286 Ga. 358, 687 S.E.2d 819 (2010). Separate judgments of conviction and sentences for aggravated assault were vacated because the defendant was convicted of and sentenced for both the malice murders of the two victims and the aggravated assaults of those victims, and although there was no merger of those crimes as a matter of law, the record established that the aggravated assault convictions merged into the malice murder convictions as a matter of fact. Vergara v. State, 287 Ga. 194, 695 S.E.2d 215 (2010). Defendant’s conviction and sentence for aggravated assault was vacated and the case was remanded to the trial court for resentencing because the aggravated assault conviction merged into the defendant’s malice murder conviction as a matter of fact even though there was no merger of those crimes as a matter of law. Sharpe v. State, 288 Ga. 565, 707 S.E.2d 338 (2011). Defendant’s conviction for aggravated assault should have been merged into a malice murder conviction pursuant to O.C.G.A. § 16-1-7(a)(1), based on the ‘‘required evidence’’ test, as the aggravated assault, as pled, did not require proof of a fact not required to have been proved in 492 the malice murder. Culpepper v. State, 289 Ga. 736, 715 S.E.2d 155 (2011). Defendant’s conviction for aggravated assault of the victim merged into the conviction for malice murder of the victim because there was no evidence that the victim suffered a non-fatal injury prior to a deliberate interval in the attack and a fatal injury thereafter; the forensic pathologist who conducted the autopsy catalogued the victim’s wounds as ‘‘chop injuries’’ that fractured the victim’s skull and incapacitated the victim and were likely inflicted with a hatchet, punctures and superficial, deep, and very deep incisions and stab wounds that were inflicted by knives. Alvelo v. State, 290 Ga. 609, 724 S.E.2d 377 (2012). Defendant’s conviction on a second aggravated assault should have merged into the malice murder conviction because the victim sustained two shots to the arm and one fatal shot to the back of the head, and the evidence did not authorize the finding of an additional ‘‘deliberate interval’’ between the second shot to the arm and the shot to the head; both were inflicted in close succession as the defendant confronted the victim. Ortiz v. State, 291 Ga. 3, 727 S.E.2d 103 (2012). Two felony murder counts were vacated by operation of law given the malice murder verdict because both the malice murder and the aggravated assault counts were premised on the act of shooting the victim with a firearm, the assault verdict merged as a matter of fact with the malice murder verdict for sentencing purposes. The burglary count, O.C.G.A. § 16-7-1, did not merge with malice murder, O.C.G.A. § 16-5-1, because each crime required proof of an element that the other did not. Favors v. State, 296 Ga. 842, 770 S.E.2d 851 (2015). Felony murder conviction merged with malice murder conviction; however, there was no merger of cruelty to children into malice murder. When the defendant was convicted of malice murder, felony murder, and cruelty to children, and there was a single victim, it was error to sentence the defendant to multiple life terms on the malice murder and felony murder counts; because the victim’s age was an element of the crime of cruelty 16-5-1 to children that was not included in malice murder, the underlying cruelty to children conviction did not merge into malice murder as a matter of fact. Collum v. State, 281 Ga. 719, 642 S.E.2d 640 (2007). Merger of lesser conviction into felony murder conviction. — When false imprisonment conviction was the underlying felony for defendant’s conviction of felony murder, the false imprisonment conviction merged into the felony murder conviction and was vacated on appeal. Johnson v. State, 254 Ga. 591, 331 S.E.2d 578 (1985). When either of the defendant’s two felony convictions could have served as the underlying felony for defendant’s felony murder conviction, the initial felony, and not both felonies, was vacated as having merged with the felony murder conviction. Johnson v. State, 254 Ga. 591, 331 S.E.2d 578 (1985). Because the evidence that the defendant assaulted the victim with a shotgun was used to prove both an aggravated assault and malice murder, the aggravated assault conviction merged by fact into the malice murder conviction. Nix v. State, 280 Ga. 141, 625 S.E.2d 746 (2006). Aggravated battery merged with attempted murder. — Trial court erred in failing to merge the offense of family violence aggravated battery with attempted murder, as both convictions were established by the same conduct. Hernandez v. State, 317 Ga. App. 845, 733 S.E.2d 30 (2012). No merger with weapons possession convictions. — Defendant’s conviction for possession of a knife during the commission of a felony did not merge into the defendant’s two convictions for malice murder. Hooks v. State, 284 Ga. 531, 668 S.E.2d 718 (2008), overruled on other grounds, Williams v. State, 287 Ga. 192, 695 S.E.2d 244 (2010). Merged counts for sentencing. — Trial court had to vacate the defendant’s conviction and sentence for armed robbery given that armed robbery was charged as the felony underlying the defendant’s conviction for felony murder; a separate conviction and sentence for armed robbery was not authorized under such circumstances. Joyner v. State, 280 Ga. 37, 622 S.E.2d 319 (2005). 493 Merger (Cont’d) Merger with armed robbery count proper. — When a defendant had been convicted of malice murder, felony murder, armed robbery, and other crimes, the trial court did not err by failing to merge the armed robbery counts into the felony murder count predicated on the underlying felony of armed robbery as the felony murder count was vacated by operation of O.C.G.A. § 16-1-7, and the defendant could be sentenced for the felony conviction so long as the felony was not included in the murder as a matter of fact or law; here, the armed robbery was not included in the malice murder charge as a matter of fact or law; evidence showing the defendant’s intent to rob the victim was not used in proving the murder, and evidence that the defendant shot the victim was not used to prove the armed robbery. Davis v. State, 281 Ga. 871, 644 S.E.2d 113 (2007). Merger with aggravated assault and not armed robbery. — Although an armed robbery served as the predicate felony for one count of felony murder, there was a separate felony murder count predicated on aggravated assault; hence, when the jury found the defendant guilty of both counts, it was within the trial court’s discretion to choose to merge the aggravated assault rather than the armed robbery into the felony murder count for which appellant was sentenced. Hill v. State, 281 Ga. 795, 642 S.E.2d 64 (2007). Defendant’s conviction for armed robbery was properly not merged into a malice murder conviction pursuant to O.C.G.A. § 16-1-7(a)(1), based on the ‘‘required evidence’’ test, as each offense required proof of an element that the other did not. Culpepper v. State, 289 Ga. 736, 715 S.E.2d 155 (2011). Aggravated assault with intent to rob did not merge with felony murder. — Because the crime of aggravated assault by shooting the victim with a gun was the underlying felony for the defendant’s felony murder conviction, it should have merged for sentencing purposes; however, the conviction for aggravated assault with intent to rob, O.C.G.A. § 16-5-21(a)(1), did not merge into the felony murder conviction because the fel- 16-5-1 ony murder charge required proof that the defendant caused the victim’s death and used a deadly weapon, O.C.G.A. §§ 16-5-1(c) and 16-5-21(a)(2). Norris v. State, 302 Ga. 802, 809 S.E.2d 752 (2018). Aggravated assault merged with malice murder. — Convictions against the defendant for both malice murder and aggravated assault were error under O.C.G.A. § 16-1-7(a)(1) as the aggravated assault was included within the malice murder conviction under O.C.G.A. § 16-1-6(1) because the same conduct established the commission of both offenses. Bell v. State, 284 Ga. 790, 671 S.E.2d 815 (2009). With regard to a defendant’s malice murder conviction arising from the suffocation death of the defendant’s newborn daughter, the defendant’s conviction and sentence for aggravated assault was vacated inasmuch as the evidence showed that the aggravated assault merged as a matter of fact with the malice murder conviction. Wright v. State, 285 Ga. 428, 677 S.E.2d 82 (2009), cert. denied, 558 U.S. 1123, 130 S. Ct. 1076, 175 L. Ed. 2d 903 (2010). Malice murder and aggravated assault merged as a matter of fact. — Defendant’s conviction and sentence for aggravated assault was vacated as the malice murder and the aggravated assault charges merged as a matter of fact because the same evidence to prove aggravated assault as indicted, stabbing the victim with a knife, was used to prove malice murder. Williams v. State, 279 Ga. 154, 611 S.E.2d 19 (2005). Underlying conspiracy conviction merged into felony murder conviction. — Defendant’s separate conviction for conspiracy was vacated because the conspiracy conviction was the underlying felony that formed the basis for the defendant’s felony murder conviction; because the underlying conspiracy merged into the felony murder conviction, the trial court erred in entering a separate judgment of conviction and sentence on the jury’s verdict finding the defendant guilty of conspiracy. Higuera-Hernandez v. State, 289 Ga. 553, 714 S.E.2d 236 (2011). Conviction for apprehending criminal and malice murder. — Defendant’s 494 conviction for hindering the apprehension of a criminal in violation of O.C.G.A. § 16-10-50 had to be set aside because defendant could not be convicted for both malice murder and hindering the apprehension of a criminal, which was the equivalent of the common law crime of being an accessory after the fact; a party cannot be convicted both of being a principal to the crime and an accessory after the fact. Hampton v. State, 289 Ga. 621, 713 S.E.2d 851 (2011), overruled on other grounds, Nalls v. State, 815 S.E.2d 38, 2018 Ga. LEXIS 396 (Ga. 2018). Merger of criminal gang activity convictions with felony murder conviction. — After the three defendants were properly found guilty of felony murder predicated upon criminal gang activity involving a simple battery, the trial court erred when the court failed to merge the defendants’ criminal gang activity involving an aggravated assault and criminal gang activity involving an aggravated battery convictions into the felony murder conviction because all of the unlawful participation in criminal gang activity of which the three defendants were found guilty occurred at the same location, occurred at the same time, and was directed against the same victim. Anthony v. State, 303 Ga. 399, 811 S.E.2d 399 (2018). Sentence Felony murder conviction vacated upon sentence for malice murder. — Inasmuch as the defendant’s felony murder conviction was vacated by operation of law upon entry of the sentence for malice murder, a conviction for felony murder, and the life imprisonment imposed for that conviction, had to be vacated. Sanders v. State, 283 Ga. 372, 659 S.E.2d 376 (2008). Reconciling verdict. — Verdicts finding defendant guilty of voluntary manslaughter as a lesser included offense of each count of felony murder, O.C.G.A. § 16-5-2, but not guilty of voluntary manslaughter as a lesser included offense of the alleged malice murder of the victim, were not repugnant and could be reconciled. Carter v. State, 298 Ga. 867, 785 S.E.2d 274 (2016), cert. denied, 137 S. Ct. 646, 196 L. Ed. 2d 542 (U.S. 2017). 16-5-1 Sentence of life in prison plus years consecutive for convictions of felony murder and armed robbery did not exceed the statutorily authorized maximum and did not amount to cruel and unusual punishment; the felony murder statute, O.C.G.A. § 16-5-1, authorized a sentence of life in prison on conviction for felony murder, and the armed robbery statute, O.C.G.A. § 16-8-41, authorized a sentence of death or imprisonment for life or by imprisonment for not less than 10 nor more than 20 years. The trial court sentenced the defendant to life in prison for the felony murder conviction plus two 20-year terms, running concurrent to each other but consecutive to the felony murder sentence, for the two convictions for armed robbery, and thus the statutory maximum was not exceeded. Washington v. State, 285 Ga. 541, 678 S.E.2d 900 (2009). Trial court erred by sentencing defendant to separate life sentences for malice murder and felony murder since there was only one victim in the case. Accordingly, the defendant’s conviction for felony murder was vacated by operation of law. Martinez v. State, 283 Ga. 122, 657 S.E.2d 199 (2008). Life sentence for felony-murder conviction based upon ‘‘status’’ offense. — See Hall v. State, 259 Ga. 243, 378 S.E.2d 860 (1989). Vacation of felony murder charge required vacation of sentence. — When the defendant was sentenced to life in prison for malice murder and a concurrent term of life in prison for felony murder, it was error to sentence the defendant for the felony murder inasmuch as it stood vacated by operation of law; accordingly, the judgment of conviction and sentence as to the felony murder count had to be vacated. Sampson v. State, 282 Ga. 82, 646 S.E.2d 60 (2007). Failure to find juvenile irreparably corrupt or permanently incorrigible. — Defendant’s sentence of life without parole had to be vacated because the trial court did not make any sort of determination on the record that the defendant, who was 17 years old, was irreparably corrupt or permanently incorrigible. Veal v. State, 298 Ga. 691, 784 S.E.2d 403 (2016). 495 Sentence (Cont’d) Sentence of youth not excessive. — Appellant’s sentence of two consecutive terms of life imprisonment plus 85 years was not cruel and unusual punishment, despite being 17 years old at the time of the crimes, because the trial court followed the guidance offered in case law and explicitly considered the appellant’s relatively young age and explained that the court balanced the appellant’s youth against the vicious, mean, violent behavior and the adult conduct engaged in, which included the murder of not one but two innocent bystanders. Jones v. State, 296 Ga. 663, 769 S.E.2d 901 (2015), overruled in part by Veal v. State, 298 Ga. 691, 784 S.E.2d 403 (2016). Sentence not excessive. — Sentence of life in prison plus years consecutive for convictions of felony murder and armed robbery did not exceed the statutorily authorized maximum; the felony murder statute, O.C.G.A. § 16-5-1, authorized a sentence of life in prison on conviction for felony murder, and the armed robbery statute, O.C.G.A. § 16-8-41, authorized a sentence of death or imprisonment for life or by imprisonment for not less than 10 nor more than 20 years. The trial court sentenced defendant to life in prison for the felony murder conviction plus two 20-year terms, running concurrent to each other but consecutive to the felony murder sentence, for the two convictions for armed robbery, and thus the statutory maximum was not exceeded. Washington v. State, 285 Ga. 541, 678 S.E.2d 900 (2009). Death penalty for murder conviction. — Trial court did not err in sentencing the defendant to death for murder because the death was not excessive or disproportionate punishment within the meaning of Georgia law and was not unconstitutional, and the evidence presented at the defendant’s sentencing trial was clearly sufficient to authorize a rational trier of fact to find beyond a reasonable doubt the existence, pursuant to O.C.G.A. § 17-10-30(b)(2), of the statutory aggravating circumstances of kidnapping with bodily injury, that the murder was outrageously or wantonly vile, horri- 16-5-1 ble, or inhuman, and that the defendant had a prior record of conviction for a capital felony; the defendant’s crimes could be called ‘‘premeditated’’ because the defendant already knew what the defendant was going to do when the defendant took the victim away from home. Loyd v. State, 288 Ga. 481, 705 S.E.2d 616 (2011), cert. dismissed, 132 S. Ct. 474, 181 L. Ed. 2d 309 (U.S. 2011). Life without parole sentence. — Defendant’s sentence of life without parole did not amount to cruel and unusual punishment. Foster v. State, 294 Ga. 383, 754 S.E.2d 33 (2014). Defendant’s age at sentencing did not make sentence excessive. — Fact that the defendant was 22 years old at the time the life sentence was imposed did not render the defendant’s life sentence cruel and unusual punishment. Jessie v. State, 294 Ga. 375, 754 S.E.2d 46 (2014). Double life sentence erroneous. — Because sufficient evidence supported convictions for murder and possession of a knife during the commission of a crime, and the state met its burden in establishing an adequate chain of custody, two life sentences for the murder of one victim was improper, as the conviction for felony murder was simply surplusage; thus, the separate life sentence on the alternative felony murder count had to be vacated. Paschal v. State, 280 Ga. 430, 628 S.E.2d 586 (2006). Triple life sentence improper. — While the defendant’s act of crashing into the victim’s car, and killing the victim, while leading police on a high-speed chase through a residential neighborhood, supported a felony murder conviction, because there was only one victim, the defendant could only be convicted of one count of felony murder, and not three; hence, upon the state’s concession, imposition of three life sentences was vacated, and the matter was remanded for resentencing. Turner v. State, 281 Ga. 487, 640 S.E.2d 25 (2007). Consecutive sentences for two counts of malice murder proper. — As a defendant was charged with the malice murder of two victims in different counts and was found guilty on each count, the defendant was properly sentenced sepa- 496 rately on each count to run consecutively because the killing of different persons constituted separate crimes. Hooks v. State, 284 Ga. 531, 668 S.E.2d 718 (2008), overruled on other grounds, Williams v. State, 287 Ga. 192, 695 S.E.2d 244 (2010). Life without parole could not be imposed upon conviction of malice murder. — Because O.C.G.A. § 17-10-7(c) expressly excluded capital felonies from the statute’s coverage, and malice murder was a capital felony, a sentence of life imprisonment without parole could not be imposed upon a malice murder conviction. Miller v. State, 283 Ga. 412, 658 S.E.2d 765 (2008). Although the prosecutor and the trial court during the plea hearing erroneously told the defendant that the defendant would be subject to probation, the written sentence signed by the judge and the defendant and filed with the clerk showed that the trial court imposed a sentence of life with parole, not probation. Bell v. State, 294 Ga. 5, 749 S.E.2d 672 (2013). Two life sentences for murder of single victim. — Defendant’s separate life sentence on an alternative felony murder count was vacated because the defendant was sentenced to life sentences for both malice and felony murder in the death of one victim. Newsome v. State, 288 Ga. 647, 706 S.E.2d 436 (2011). One life sentence for each malice murder count. — Defendant’s three additional life sentences for felony murder were illegal and could not stand because the trial court erred in failing to sentence the defendant only on the two malice murder counts; the convictions for felony murder were simply surplusage, which should properly have been disposed of by the trial court’s sentence of only one life sentence for each of the malice murder counts. Brown v. State, 289 Ga. 259, 710 S.E.2d 751, cert. denied, 132 S. Ct. 524, 181 L. Ed. 2d 368 (2011). A life without parole sentence is permitted only in ‘‘exceptional circumstances,’’ for the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible; for those rarest of juvenile offenders whose crimes reflect permanent incorrigibility; for those rare children 16-5-1 whose crimes reflect irreparable corruption — and not for the vast majority of juvenile offenders; life without parole sentences may be constitutionally imposed only on the worst-of-the-worst juvenile murderers, much like the Supreme Court has long directed that the death penalty may be imposed only on the worst-of-the-worst adult murderers. To the extent the decisions in Jones v. State, 296 Ga. 663 (2015) and Bun v. Stat., 296 Ga. 549 (2015) suggested otherwise, they are hereby disapproved. Veal v. State, 298 Ga. 691, 784 S.E.2d 403 (2016). Because the state did not seek the death penalty, and the malice murder took place after April 29, 2009, the trial court was authorized to sentence the defendant to life without the possibility of parole for malice murder and was not required to recite that the court considered aggravating or mitigating circumstances in doing so. Parks v. State, No. S19A0243, 2019 Ga. LEXIS 279 (Apr. 29, 2019). Sentence for felony murder and felony criminal attempt to possess cocaine. — Separate judgment of conviction and sentence for criminal attempt to possess cocaine was vacated because after the jury found the defendant guilty of felony murder while in the commission of the felony of criminal attempt to possess cocaine, and also of the felony of criminal attempt to possess cocaine, the defendant was sentenced on each charge, but the defendant could not be sentenced on both felony murder and the underlying felony when found guilty of both. Sapp v. State, 290 Ga. 247, 719 S.E.2d 434 (2011). Sentence for felony murder and involuntary manslaughter prohibited. — Because the prohibition against double jeopardy does not permit a defendant to be punished on multiple murder counts for a single homicide, it was error for the trial court to sentence the defendant for involuntary manslaughter in light of the conviction for felony murder as there was only one homicide. Kipp v. State, 294 Ga. 55, 751 S.E.2d 83 (2013). Sentence of life in prison without parole did not require jury determination. — Because O.C.G.A. § 16-5-1 was amended to add life imprisonment without the possibility of parole as an 497 Sentence (Cont’d) authorized punishment for murder without regard to whether the state seeks the death penalty, life without parole fell within the statutory range, and counsel was not ineffective for failing to object to the defendant’s sentence despite the absence of any jury determination that such punishment was appropriate. Babbage v. State, 296 Ga. 364, 768 S.E.2d 461 (2015). Life sentence with possibility of parole for murder upheld. — In the defendant’s trial for murder, the trial court properly exercised the court’s discretion to sentence the defendant to life in prison with the possibility of parole under O.C.G.A. §§ 16-5-1(e)(1), 17-9-2, and 17-10-7(a), rather than life without the possibility of parole, because parole did not extend the duration of the sentence. Blackwell v. State, 302 Ga. 820, 809 S.E.2d 727 (2018). Application 1. In General Election between felony and malice murder. — It was not error for the trial court to refuse to require the state to elect between prosecuting defendant for malice murder or felony murder, where the trial court’s charge to the jury made clear the fact that while the state was seeking a murder conviction under alternate theories of malice murder and felony murder, the defendant could be convicted of only one count of murder. Baty v. State, 257 Ga. 371, 359 S.E.2d 655 (1987). Effect of indictment alleging both malice murder and felony murder on guilty verdict. — When indictment alleged that the defendant committed murder ‘‘with malice aforethought . . . by means of arson,’’ the count in effect alleged both malice murder and felony murder, rendering the jury’s verdict of ‘‘guilty of Count 1—murder’’ ambiguous and requiring the verdict to be construed as one for felony murder. Walker v. State, 254 Ga. 149, 327 S.E.2d 475, cert. denied, 474 U.S. 865, 106 S. Ct. 185, 88 L. Ed. 2d 154 (1985). Intentional killing of mere trespasser with a deadly weapon is gener- 16-5-1 ally murder and not manslaughter. Hayes v. State, 58 Ga. 35 (1877) (decided under former Code 1873, §§ 4321, 4322). Killing officer while the officer is legally arresting defendant in a legal manner constitutes murder. Brooks v. State, 114 Ga. 6, 39 S.E. 877 (1901) (decided under former Penal Code 1895, §§ 61, 62); Harper v. State, 129 Ga. 770, 59 S.E. 792 (1907) (decided under former Penal Code 1895, §§ 61, 62); Johnson v. State, 130 Ga. 27, 60 S.E. 160 (1908) (decided under former Penal Code 1895, §§ 61, 62). Slaying of officer to avoid what defendant believes is a lawful arrest. — Slaying of officer to avoid being taken into custody, while having reasonable grounds of belief that person is an arresting officer, and that the officer’s object is to make a lawful arrest for a felony, constitutes murder. If homicide is committed without reasonable cause to know the officer’s official character or purpose and without malice, it is manslaughter. Morton v. State, 190 Ga. 792, 10 S.E.2d 836 (1940) (decided under former Code 1933, §§ 26-1003, 26-1004). When infliction of unlawful injury shall be considered proximate cause of death. — An unlawful injury considered to be the efficient, proximate cause of death whenever it shall be made to appear either that: (1) the injury itself constituted the sole proximate cause of death; that (2) the injury directly and materially contributed to the subsequently accruing immediate cause of death; or that (3) the injury materially accelerated death, although proximately occasioned by a preexisting cause. Ward v. State, 238 Ga. 367, 233 S.E.2d 175 (1977). When one inflicts an unlawful injury, such injury is the proximate cause of death if it directly and materially contributed to happening of subsequently accruing immediate cause of death. Larkin v. State, 247 Ga. 586, 278 S.E.2d 365 (1981). Defendant was properly convicted of malice murder and other charges after the defendant shot an automatic weapon at two deputies who appeared at the defendant’s house to serve the defendant with an arrest warrant, thus killing one deputy and injuring the other. Al-Amin v. State, 498 278 Ga. 74, 597 S.E.2d 332, cert. denied, 543 U.S. 992, 125 S. Ct. 509, 160 L. Ed. 2d 380 (2004). Circumstantial evidence. — In prosecution for murder, cause of death may be shown by circumstantial evidence. McAllister v. State, 246 Ga. 246, 271 S.E.2d 159 (1980). Corpus delicti and cause of death may be proved by circumstantial evidence. West v. State, 251 Ga. 458, 306 S.E.2d 909 (1983). Despite the defendant’s contention that the circumstantial evidence presented by the state was insufficient, both malice murder and kidnapping by bodily injury convictions were upheld on appeal as: (1) the plain error rule did not apply to the identification evidence admitted via the defendant’s aggravated assault and armed robbery victim, and evidence of the gun used in that case was relevant in the instant prosecution because it connected the defendant to the identification documents presented to police in close proximity to the victim’s body; (2) a due process claim regarding the admission of a purportedly impermissibly suggestive pre-trial identification, followed by an in-court identification, was waived due to failure to object at trial; and (3) trial counsel was not ineffective by failing to seek suppression of the identification evidence or attack the reliability of the evidence. Brooks v. State, 281 Ga. 514, 640 S.E.2d 280 (2007). Evidence, although circumstantial, was sufficient for a rational trier of fact to reject the defense theory that the victim’s death was a suicide and to find the defendant guilty of malice murder beyond a reasonable doubt; the circumstantial evidence was substantial, including not only the nature of the victim’s gunshot wound, but also the defendant’s motive to harm the victim, and the defendant’s prolonged cover-up and conflicting accounts of the victim’s death. Walden v. State, 289 Ga. 845, 717 S.E.2d 159 (2011). Although circumstantial, the evidence was sufficient to convict the defendant of murder, armed robbery, and related crimes in connection with the death of the victim because the defendant was identified by a witness as the person the witness 16-5-1 saw coming upstairs from the victim’s apartment just before the witness discovered the crimes; the defendant’s fingerprints were found on the car used in the crimes; and the defendant’s own statements, both via text message and in person, corroborated the defendant’s participation in the murder and robbery. Babbage v. State, 296 Ga. 364, 768 S.E.2d 461 (2015). Expert testimony on shell casing. — Expert testimony that a shell casing at the crime scene came from a pistol found in the defendant’s apartment, along with two witnesses’ identifications of the defendant, and expert testimony that a bullet extracted from a victim’s head possibly came from the defendant’s pistol, although it was too damaged to say with complete certainty, sufficiently supported the defendant’s convictions for murder, armed robbery, and possession of a firearm during the commission of a felony. Escobar v. State, 279 Ga. 727, 620 S.E.2d 812 (2005). Expert’s testimony on knife injuries. — Evidence in support of the state’s theory that the defendant killed the victim in an unprovoked aggravated assault, based on expert testimony that the victim died from a deliberate and forceful strike with a knife, and evidence that discounted any possible accident or lack of intent, was sufficient to support the defendant’s conviction for felony murder during the commission of an aggravated assault. Nichols v. State, 281 Ga. 483, 640 S.E.2d 40 (2007). Pre-autopsy photographs of victim admissible. — In a trial for malice murder it was not error to admit in evidence photographs of the victim’s body prior to autopsy and of the crime scene which, though gruesome, were relevant and material to show the location of the wounds and to depict the crime scene, including the location of the victim. Sanders v. State, 257 Ga. 239, 357 S.E.2d 66 (1987). Pre-autopsy photographs which demonstrate the location and nature of the wounds are relevant to the issue of death, and may be introduced in evidence even though the photographs are duplicative of expert testimony relating to the cause of death. Baty v. State, 257 Ga. 371, 359 S.E.2d 655 (1987). 499 Application (Cont’d) 1. In General (Cont’d) When proof of armed robbery is essential to the conviction for felony murder, the armed robbery is a lesser included offense in the felony murder. Sanborn v. State, 251 Ga. 169, 304 S.E.2d 377 (1983). Crimes of voluntary manslaughter and malice murder require identical causation in that both sections speak of causing the death of another human being. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981). Distinction between crimes of voluntary manslaughter and malice murder is that latter crime requires either express or implied malice, while voluntary manslaughter requires that killer has acted solely from sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981). To reduce homicide from murder to voluntary manslaughter, as it relates to doctrine of mutual combat, it should affirmatively appear that at time of homicide both parties were in position and manifested intention to fight; mere threats on part of one party at time of fatal shot by the other will not suffice. Cornelious v. State, 193 Ga. 25, 17 S.E.2d 156 (1941) (decided under former Code 1933, §§ 26-1003, 26-1004). To reduce homicide from murder to voluntary manslaughter, on theory of mutual combat, it should affirmatively appear that at time of homicide both parties were in position and manifested an intention to fight. Cone v. State, 193 Ga. 420, 18 S.E.2d 850 (1942) (decided under former Code 1933, §§ 26-1003, 26-1004). Killing another with malice pursuant to mutual combat constitutes murder. — Although there may be mutual intention and agreement to fight, if one of disputants kills the other with malice, it is murder, since in such case killing would not be result of that sudden 16-5-1 and violent heat of passion which by reason of its irresistibility would constitute voluntary manslaughter. Rivers v. State, 193 Ga. 133, 17 S.E.2d 726 (1941) (decided under former Code 1933, §§ 26-1003, 26-1004). Confession of mentally retarded defendant. — Introduction of the confession of a mentally retarded defendant who had not knowingly and intelligently waived the defendant’s Miranda rights was harmless error as to the defendant’s conviction but not as to defendant’s death sentence. Smith v. Zant, 887 F.2d 1407 (11th Cir. 1989). Former Code 1933, § 26-3201, together with substantive offense of murder, creates crime of ‘‘conspiracy to commit murder.’’ Orkin v. State, 236 Ga. 176, 223 S.E.2d 61 (1976) (see O.C.G.A. § 16-4-8). When armed robbery is lesser included offense of malice murder, see Hoerner v. State, 246 Ga. 374, 271 S.E.2d 458 (1980). State does not have a reckless homicide statute; the state has only voluntary and involuntary manslaughter statutes which create degrees of homicide less than murder. A history of punishing recklessly caused homicide as murder simply has nothing to do with the deficiencies in the felony-murder scheme because it provides no category of homicide less culpable than murder. Malone v. State, 238 Ga. 251, 232 S.E.2d 907 (1977). Homicide during attempted robbery caused by unintentional discharge of gun. — When it is shown by the evidence, and admitted in defendant’s statement, that homicide occurred by discharge of gun held by accused and used in attempt to rob deceased, even if discharge of gun was unintentional, the offense is murder; and in no view of such facts does it involve homicide by accident, or involuntary manslaughter. Ford v. State, 202 Ga. 599, 44 S.E.2d 263 (1947) (decided under former Code 1933, §§ 26-1003, 26-1004). Murder which is probable consequence of conspiracy is imputable. — When several persons conspire to rob a merchant in the merchant’s store, and one of the conspirators remains in an automo- 500 bile, in order that the others may speedily escape, while others in furtherance of common design to rob, kill the merchant intended to be robbed, such killing is the probable consequence of the unlawful design to rob, and all the conspirators are guilty of murder, including the one in the automobile. Jenkins v. State, 190 Ga. 556, 9 S.E.2d 909 (1940) (decided under former Code 1933, §§ 26-1003, 26-1004). When two people conspire to commit the crime of robbery and in furtherance of the common design, both being present and participating in the commission of a robbery, one of them shoots and kills the person robbed, such killing is the probable consequence of the unlawful design to rob, and both are guilty of murder. Simmons v. State, 181 Ga. 761, 184 S.E. 291 (1936) (decided under former Code 1933, §§ 26-1003, 26-1004). Murder which is incidental probable consequence of armed robbery is imputable. — It is not necessary that crime of murder should be part of original design; it is enough if it is an incidental probable consequence of execution of conspirators design, and should appear at the moment to one of the participants to be expedient for the common purpose. Intent of actual slayer is imputable to coconspirators. Burke v. State, 234 Ga. 512, 216 S.E.2d 812 (1975). Foreseeable consequence of drug trafficking conspiracy. — Jury authorized to find that victim’s murder was probable and foreseeable consequence of underlying conspiracy to traffic in illegal drugs. Huffman v. State, 257 Ga. 390, 359 S.E.2d 910 (1987). Gun involved in drug possession and intent to distribute meant felony murder. — Evidence was sufficient to convict the defendant of felony murder because the defendant was guilty of the predicate felony of possession with intent to distribute cocaine; the defendant possessed a gun while dealing drugs; the defendant handed the gun to another individual while the defendant searched for the missing drugs; it was not unpredictable that the victim tried to disarm the other individual and was shot to death during the struggle; and the victim’s violent death was a direct and foreseeable 16-5-1 consequence of the felony the defendant committed as the fatal shooting occurred as the defendant possessed crack cocaine with intent to distribute and wanted to possess again the cocaine that the defendant believed the victim had stolen. Hood v. State, 303 Ga. 420, 811 S.E.2d 392 (2018). Co-builder of bomb guilty of felony-murder for builder’s death. — Where defendant and deceased had acquired or constructed an explosive device and were going to detonate that device for the purpose of destroying public property in the course of which the device exploded killing deceased, the defendant was guilty of felony murder under O.C.G.A. § 16-5-1. Scott v. State, 252 Ga. 251, 313 S.E.2d 87 (1984). Officer’s negligence in making arrest is immaterial to defendant’s guilt or innocence. — When defense counsel in murder trial asked about training procedures on proper method of arresting a subject who is deemed armed and dangerous, the trial court properly prohibited this line of questioning in guilt-innocence phase on grounds that negligence of officer in making arrest is not material to the guilt or innocence of the defendant. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002). Homicide resulting solely from resentment of provoking threats. — Provocation by threats will in no case be sufficient to free defendant from crime of murder, or reduce homicide from murder to manslaughter, when killing is done solely for purpose of resenting provocation thus given. Moore v. State, 228 Ga. 662, 187 S.E.2d 277 (1972). Evidence of acts carrying forward plan which included murder as supporting inference of malice. — Even if the defendant did not specifically state that the defendant intended to kill the murder victim, the fact that the defendant stated that the defendant had partici- 501 Application (Cont’d) 1. In General (Cont’d) pated in first entry of victim’s home as part of plan which included murder, and later, on same day, returned to the victim’s house and killed the victim can readily be seen as carrying forward this intent at least to the extent of exhibiting an ‘‘abandoned and malignant heart’’; similarly, the fact that the defendant carried a deadly weapon for specific, acknowledged purpose of meeting opposition can support inference of malice. Blake v. Zant, 513 F. Supp. 772 (S.D. Ga. 1981), rev’d on other grounds sub nom. Burger v. Zant, 718 F.2d 979 (11th Cir. 1983), vacated on other grounds sub nom. Burger v. Zant, 467 U.S. 1212, 104 S. Ct. 2652, 81 L. Ed. 2d 360 (1984), cert. denied, 474 U.S. 998, 106 S. Ct. 374, 88 L. Ed. 2d 367 (1985). When act of victim in avoiding felonious assault causes victim’s death, offense is murder. — When one commits a felonious assault upon another and the act of the other in avoidance of such felonious assault results in that person’s death, the offense is murder, whether or not the act of avoidance was that of a reasonably prudent person under the circumstances. Patterson v. State, 181 Ga. 698, 184 S.E. 309 (1936) (decided under former Code 1933, §§ 26-1003, 26-1004). For defendant’s advances leading to victim’s fatal jump from car to render defendant guilty of murder, it must appear that reaction of deceased was: (1) in avoidance of a violent bodily injury, or in apprehension of immediate violent bodily injury; (2) if in apprehension of immediate bodily injury, it must have been well grounded; (3) steps of avoidance must be such as a reasonably prudent person might take under the circumstances; and (4) result must have been natural and probable consequence of the improper conduct. Patterson v. State, 181 Ga. 698, 184 S.E. 309 (1936) (decided under former Code 1933, §§ 26-1003, 26-1004). Self-defense based on battered woman syndrome. — In a trial for murder of her husband, a defendant claiming self-defense based on the battered woman syndrome may, by her own testimony, cou- 16-5-1 pled with that of an expert, make the prima facie showing required for the admission of the victim’s general character for violence. Chapman v. State, 258 Ga. 214, 367 S.E.2d 541 (1988). Felony murder conviction held reasonable despite accident contention. — Evidence that defendant had cocked a gun and pointed it at her husband’s head in order to scare him, and that the gun discharged when the victim struck it with his arm, was sufficient to authorize a conviction for felony-murder and the defense of ‘‘accident’’ was inapplicable. Stiles v. State, 264 Ga. App. 446, 448 S.E.2d 172 (1994). Evidence of murdering parents. — Evidence adduced at trial was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of murder because: (1) the state introduced testimony that the defendant had said the defendant hated the defendant’s parents and wanted to kill them; (2) a witness gave the police a statement to the effect that the defendant deliberately killed the victim, one of the defendant’s parents, but refused to testify at trial on the crucial points; and (3) blood spatter evidence and other physical evidence suggested the blows to the victim were struck on the porch, not inside as the defendant claimed. Fincher v. State, 276 Ga. 480, 578 S.E.2d 102 (2003). Denial of defendant’s motions for directed verdict of acquittal not error when there was evidence from which the jury could determine that defendant, while acting in the heat of passion, shot and killed a woman. Chancellor v. State, 165 Ga. App. 365, 301 S.E.2d 294 (1983). Medical examiner unable to pinpoint asphyxiation method. — Although the medical examiner was unable to explain the precise mechanism by which the adult victim was asphyxiated, the state nevertheless offered evidence sufficient to prove that the defendant was the cause of asphyxiation and that the defendant caused the adult victim’s death unlawfully and with malice, which was enough to sustain the conviction for the murder of the adult victim. Walker v. State, 296 Ga. 161, 766 S.E.2d 28 (2014). Testimony of medical examiner. — Medical examiner should not have been 502 permitted to testify as to the examiner’s conclusion or opinion of the manner of death since the examiner’s investigation did not lead to that conclusion, the examiner’s expertise as a forensic pathologist was not needed or used in reaching that conclusion, and the factors which led the medical examiner to the examiner’s conclusion that the victim’s death was a homicide are factors well within the knowledge and understanding of the jury. Maxwell v. State, 262 Ga. 73, 414 S.E.2d 470 (1992), overruled on other grounds, Wall v. State, 269 Ga. 506, 500 S.E.2d 904 (1998), overruled on other grounds, Smith v. State, 270 Ga. 123, 508 S.E.2d 173 (1998). Medical testimony consistent with murder conviction. — See Hampton v. State, 250 Ga. 805, 301 S.E.2d 274 (1983). Defendant’s admission sufficient. — Defendant’s recorded admission to a co-worker that the defendant killed the victim with the assistance of a codefendant was sufficient to support convictions for murder and aggravated assault. Williams v. State, 280 Ga. 539, 630 S.E.2d 410 (2006). Link between tattoos and murder not established. — In a malice murder prosecution, the defendant did not show that it was error to grant the state’s motion in limine regarding the exclusion of evidence of the victim’s tattoos as the defendant failed to establish a link between the tattoos and the murder. Marshall v. State, 285 Ga. 351, 676 S.E.2d 201 (2009). Evidence sufficient for murder conviction. — See Board of Comm’rs v. Welch, 253 Ga. 682, 324 S.E.2d 178 (1985); Houston v. State, 253 Ga. 696, 324 S.E.2d 183 (1985); Moore v. State, 254 Ga. 525, 330 S.E.2d 717 (1985); Davis v. State, 255 Ga. 588, 340 S.E.2d 862, cert. denied, 479 U.S. 871, 107 S. Ct. 243, 93 L. Ed. 2d 168 (1986); Smith v. State, 255 Ga. 654, 341 S.E.2d 5 (1986); Johnson v. State, 255 Ga. 552, 341 S.E.2d 220 (1986); Lewis v. State, 255 Ga. 681, 341 S.E.2d 434 (1986); Black v. State, 255 Ga. 668, 341 S.E.2d 436 (1986); Smith v. State, 255 Ga. 685, 341 S.E.2d 451 (1986); Byrd v. State, 255 Ga. 674, 341 S.E.2d 453 (1986); Cunningham v. State, 255 Ga. 727, 342 16-5-1 S.E.2d 299 (1986); White v. State, 255 Ga. 731, 342 S.E.2d 304 (1986); Scott v. State, 255 Ga. 701, 342 S.E.2d 310 (1986); Johnson v. State, 255 Ga. 703, 342 S.E.2d 312 (1986); Kitchens v. State, 256 Ga. 1, 342 S.E.2d 320 (1986); Gilstrap v. State, 256 Ga. 20, 342 S.E.2d 667 (1986); Chastain v. State, 255 Ga. 723, 342 S.E.2d 678 (1986); Evans v. State, 256 Ga. 10, 342 S.E.2d 684 (1986); Hooten v. State, 256 Ga. 31, 343 S.E.2d 481 (1986); Clenney v. State, 256 Ga. 123, 344 S.E.2d 216 (1986); Edison v. State, 256 Ga. 67, 344 S.E.2d 231 (1986); Cochran v. State, 256 Ga. 113, 344 S.E.2d 402 (1986); Boddie v. State, 256 Ga. 84, 344 S.E.2d 643 (1986); Rogers v. State, 256 Ga. 139, 344 S.E.2d 644 (1986); Brantley v. State, 256 Ga. 136, 345 S.E.2d 329 (1986); Bryant v. State, 256 Ga. 273, 347 S.E.2d 567 (1986); Appleby v. State, 256 Ga. 304, 348 S.E.2d 630 (1986); Noggle v. State, 256 Ga. 383, 349 S.E.2d 175 (1986); Thornton v. State, 256 Ga. 333, 349 S.E.2d 186 (1986); Ford v. State, 256 Ga. 375, 349 S.E.2d 361 (1986); Parker v. State, 256 Ga. 363, 349 S.E.2d 379 (1986); Raven v. State, 256 Ga. 366, 349 S.E.2d 383 (1986); Barnes v. State, 256 Ga. 370, 349 S.E.2d 387 (1986); Wansley v. State, 256 Ga. 624, 352 S.E.2d 368 (1987); Dixon v. State, 256 Ga. 658, 352 S.E.2d 572 (1987); Walter v. State, 256 Ga. 666, 352 S.E.2d 570 (1987); Arthur v. State, 256 Ga. 738, 353 S.E.2d 331 (1987); Patterson v. State, 256 Ga. 740, 353 S.E.2d 338 (1987); Westbrook v. State, 256 Ga. 776, 353 S.E.2d 504 (1987); Quick v. State, 256 Ga. 780, 353 S.E.2d 497 (1987); Clay v. State, 256 Ga. 797, 353 S.E.2d 517 (1987); Hendrick v. State, 257 Ga. 17, 354 S.E.2d 433 (1987); Byrd v. State, 257 Ga. 36, 354 S.E.2d 428 (1987); Booker v. State, 257 Ga. 37, 354 S.E.2d 425 (1987); Slaughter v. State, 257 Ga. 104, 355 S.E.2d 660 (1987), overruled on other grounds, Woodard v. State, 269 Ga. 317, 496 S.E.2d 896 (1998); Wilcox v. Ford, 813 F.2d 1140 (11th Cir.), cert. denied, 484 U.S. 925, 108 S. Ct. 287, 98 L. Ed. 2d 247 (1987); McMillan v. State, 257 Ga. 173, 356 S.E.2d 866 (1987); Williams v. State, 257 Ga. 186, 356 S.E.2d 872 (1987); Welch v. State, 257 Ga. 197, 357 S.E.2d 70 (1987); Strickland v. State, 257 Ga. 230, 357 S.E.2d 85 (1987); Bowens v. State, 257 503 Application (Cont’d) 1. In General (Cont’d) Ga. 347, 359 S.E.2d 636 (1987) (judgment reversed for error in instructions); McDaniel v. State, 257 Ga. 345, 359 S.E.2d 642 (1987); Mosley v. State, 257 Ga. 382, 359 S.E.2d 653 (1987); Thompson v. State, 257 Ga. 386, 359 S.E.2d 664 (1987), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002); Rhodes v. State, 257 Ga. 368, 359 S.E.2d 670 (1987); Harris v. State, 257 Ga. 385, 359 S.E.2d 675 (1987); Carter v. State, 257 Ga. 510, 361 S.E.2d 175 (1987); Chapman v. State, 258 Ga. 214, 367 S.E.2d 541 (1988); Pace v. State, 258 Ga. 225, 367 S.E.2d 827 (1988); Phillips v. State, 258 Ga. 228, 368 S.E.2d 91 (1988); Langley v. State, 258 Ga. 251, 368 S.E.2d 316 (1988); Wade v. State, 258 Ga. 324, 368 S.E.2d 482 (1988), cert. denied, 502 U.S. 1060, 112 S. Ct. 941, 117 L. Ed. 2d 111 (1992); Patillo v. State, 258 Ga. 255, 368 S.E.2d 493, cert. denied, 488 U.S. 948, 109 S. Ct. 378, 102 L. Ed. 2d 367 (1988); Conley v. State, 258 Ga. 339, 368 S.E.2d 502 (1988); Savage v. Flagler Co., 258 Ga. 335, 368 S.E.2d 504 (1988); Mapp v. State, 258 Ga. 273, 368 S.E.2d 511 (1988); Williams v. State, 258 Ga. 281, 368 S.E.2d 742 (1988); Cash v. State, 258 Ga. 460, 368 S.E.2d 756 (1988); Jackson v. State, 258 Ga. 322, 368 S.E.2d 771 (1988); Kinsman v. State, 259 Ga. 89, 376 S.E.2d 845, cert. denied, 493 U.S. 874, 110 S. Ct. 210, 107 L. Ed. 2d 163 (1989); Jewell v. State, 261 Ga. 861, 413 S.E.2d 201 (1992); Brown v. State, 264 Ga. 48, 441 S.E.2d 235 (1994); Palmore v. State, 264 Ga. 108, 441 S.E.2d 405 (1994); Combs v. State, 268 Ga. 398, 500 S.E.2d 328 (1997); Ford v. State, 269 Ga. 139, 498 S.E.2d 58 (1998); Putman v. Turpin, 53 F. Supp. 2d 1285 (M.D. Ga. 1999); Jenkins v. Byrd, 103 F. Supp. 2d 1350 (S.D. Ga. 2000); Chinn v. State, 276 Ga. 387, 578 S.E.2d 856 (2003); Hill v. State, 276 Ga. 220, 576 S.E.2d 886 (2003); Sellers v. State, 277 Ga. 172, 587 S.E.2d 35 (2003); Herring v. State, 277 Ga. 317, 588 S.E.2d 711 (2003); Hewitt v. State, 277 Ga. 327, 588 S.E.2d 722 (2003); Williams v. State, 284 Ga. 849, 672 S.E.2d 619 (2009); Moore v. State, 288 Ga. 187, 702 S.E.2d 176 (2010). 16-5-1 Debating whose turn it is to kill someone. — Defendant was properly convicted of felony murder after the codefendant shot and killed the victim because defendant held the victim at gunpoint, threatened to kill the victim, and debated with the codefendant about whose turn it was to kill someone. Strozier v. State, 277 Ga. 78, 586 S.E.2d 309 (2003). Witness’s testimony supported murder conviction. — Evidence of a witness’s testimony that the witness heard defendant and the victim arguing in a hallway of a rooming house and then heard a gunshot and found the victim’s body in the hallway, along with testimony that a gun, which an expert testified was the murder weapon, was found under a carpet in defendant’s room was sufficient to support the defendant’s conviction. Jones v. State, 277 Ga. 36, 586 S.E.2d 224 (2003). Death of victim months after sufficient for murder conviction. — Since the trial court record reflected that defendant and another person demanded that a hotel guest give them the guest’s wallet, and upon the guest’s resistance and attempt to run the guest was shot, which ultimately resulted in the death of the guest from complications four months later, and further, when the other man had been positively identified and in turn testified that defendant had pulled the trigger, defendant’s convictions for felony murder and murder in violation of O.C.G.A. § 16-5-1 were sufficiently supported by the evidence. Woodard v. State, 277 Ga. 49, 586 S.E.2d 330 (2003). Evidence that defendant was involved in killing the victim, including evidence that defendant shot the victim in the chest and helped load the victim, still alive, into a car for transportation to another location where another man shot the victim to death was sufficient to support defendant’s conviction for murder. Conaway v. State, 277 Ga. 422, 589 S.E.2d 108 (2003). Evidence that the defendant was lying with someone on a couch at the apartment of the love interest of the defendant’s sibling, that the defendant started telling people on the day the victim disappeared that the defendant had killed a young person and put the person’s body in a 504 closet in an apartment, and that a witness saw the dead person in the apartment and reported the death to police meant that the evidence was legally sufficient to support the defendant’s conviction. Cain v. State, 277 Ga. 309, 588 S.E.2d 707 (2003), overruled on other grounds by Dickens v. State, 280 Ga. 320, 627 S.E.2d. 587 (2006). After the defendant admitted that the defendant and the victim smoked crack cocaine, that the defendant bit the victim, tied the victim’s wrists to the victim’s ankles, stuffed a pillowcase in the victim’s mouth, and left the victim in the bathtub, and that the victim was ‘‘near out of air,’’ the evidence was sufficient to enable the jury to find the defendant guilty beyond a reasonable doubt of malice murder. Pittman v. State, 277 Ga. 475, 592 S.E.2d 72 (2004). Malice murder conviction was upheld as evidence provided through the testimony of the medical examiner, the defendant’s admissions and confession, and seized items resulting from the execution of a search warrant at the defendant’s home were all sufficient to authorize a rational trier of fact to find the defendant guilty; further, the defendant made a voluntary waiver of the defendant’s right to a jury trial, and an alleged error regarding the admission of expert testimony by a witness for the state was unpreserved for appellate review. Brown v. State, 277 Ga. 573, 592 S.E.2d 666 (2004). Voluntary and willing participation in crimes as coconspirator. — Evidence of the defendant’s voluntary and willing participation in the crimes, through providing the use of the defendant’s car to transport the other three named in the indictment to and from the scene and waiting in the vehicle while two of them committed aggravated assault, burglary, murder, and aggravated robbery, supported the defendant’s convictions for those offenses as a co-conspirator. Silvers v. State, 278 Ga. 45, 597 S.E.2d 373 (2004). Given the defendant’s testimony that: (1) the defendant went to the victim’s apartment to sell the victim cocaine; (2) after the defendant put the cocaine on the kitchen counter, the victim pulled out a gun and shot the defendant in the arm; (3) 16-5-1 the defendant charged the victim to disarm the victim; (4) the defendant tried to push the victim on a sofa and the gun went off; and (5) the defendant did not intentionally pull the trigger and the shooting was an accident, but the contradictory testimony of several police officers that the victim’s apartment showed no signs of a struggle, and having reviewed the evidence in the light most favorable to the verdict, a rational trier of fact could have found the defendant guilty of murder beyond a reasonable doubt. Dyer v. State, 278 Ga. 656, 604 S.E.2d 756 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 95, 163 L. Ed. 2d 111 (2005). Evidence was sufficient to support malice murder conviction because: (1) the defendant and the victim were seen together the night before the victim’s partially clothed, bloody body was found in a dumpster; (2) the victim was stabbed 20 to 30 times and hit in the head with a hammer; (3) a trail of blood led from the dumpster to the defendant’s apartment; (4) when the police came to the defendant’s apartment, the defendant was cleaning the apartment, but blood was seen throughout the unit; (5) the defendant had a cut and abrasion on the defendant’s hand; (6) the defendant’s palm print matched a partial, latent palm print on the dumpster; and (7) initially, the defendant denied knowing the victim but later changed the story several times. Morris v. State, 278 Ga. 710, 606 S.E.2d 258 (2004). Evidence that the defendant approached a car, exchanged words with the victim, produced a rifle, and shot the victim two times at point-blank range, killing the victim as the victim’s children watched, was sufficient to support the defendant’s murder conviction. Lewis v. State, 279 Ga. 69, 608 S.E.2d 602, cert. denied, 546 U.S. 987, 126 S. Ct. 571, 163 L. Ed. 2d 478 (2005). Sufficient evidence of murder committed at dance. — Evidence was sufficient to support the defendant’s conviction of malice murder, felony murder, and aggravated assault because: (1) the defendant was in an altercation with the victim at a dance; (2) eyewitnesses saw the defendant make a stabbing motion at the 505 Application (Cont’d) 1. In General (Cont’d) victim; (3) the victim died of nine stab wounds, including one to the heart; (4) the defendant’s burned blue jeans were found in the defendant’s love interest’s backyard; (5) the defendant provided an investigator with clean clothes the defendant allegedly wore at the dance; and (6) the victim’s blood and DNA were found on the defendant’s leather jacket and on the shirt the defendant’s love interest wore to the dance. Rakestrau v. State, 278 Ga. 872, 608 S.E.2d 216 (2005). Murder over automobile rims. — When the evidence showed that the defendant went to recover the defendant’s automobile rims from the victim, who was unable to produce all of them, and the defendant shot the victim, after which the victim ran away, and then found the victim and shot the victim again, after which the victim died of a gunshot wound to the abdomen, the evidence was sufficient to allow a rational trier of fact to find the defendant guilty of malice murder beyond a reasonable doubt. Morgan v. State, 279 Ga. 6, 608 S.E.2d 619 (2005). Evidence supported the defendant’s conviction for malice murder and aggravated assault because the victim had defensive wounds on the hand, the victim’s blood was found on the defendant’s shoe, a mixture of the victim’s and the defendant’s blood was found on the defendant’s shirt, and the victim planned to ask the defendant to leave the apartment. Williams v. State, 279 Ga. 154, 611 S.E.2d 19 (2005). Murder of security guard. — Evidence supported the defendant’s conviction for malice murder because: (1) an accomplice testified that the accomplice and the defendant robbed a motel and that the defendant shot a police officer who was working as a security guard; (2) the officer died from the wounds; (3) the accomplice told an ex-spouse on the morning after the crime that the defendant shot a security guard during the robbery; (4) the defendant and the accomplice were seen on the street shortly after the robbery; and (5) a firearms examiner’s testimony concerning the location of shell cas- 16-5-1 ings and bullets at the crime scene corroborated the accomplice’s testimony. Jackson v. State, 279 Ga. 449, 614 S.E.2d 781 (2005). Evidence was sufficient to enable a rational trier of fact to find the defendant guilty of felony murder since the defendant initially did not claim self-defense and later admitted to stabbing the victim, and the forensic evidence contradicted the defendant’s claim of how the victim wielded a knife. Price v. State, 280 Ga. 193, 625 S.E.2d 397 (2006), overruled on other grounds, Patel v. State, 282 Ga. 412, 651 S.E.2d 55 (2007). Evidence was sufficient to support a malice murder conviction when witnesses saw the defendant arguing with the victim, go with the victim into an area behind a motel where the victim lived, heard shots from the area behind the motel, and later the victim’s body was found in that area; also, the defendant was seen at a house with an item wrapped in cloth, and later, the defendant’s gun, the murder weapon, was found in the yard of that house, wrapped in cloth. Smith v. State, 280 Ga. 161, 625 S.E.2d 766 (2006). Despite the defendant’s claim that the gun which the defendant was holding discharged accidentally when the victim attacked the defendant, the defendant’s conviction of malice murder was supported by sufficient evidence showing, among other things, that the defendant and the victim had a heated telephone conversation within two days of the shooting, that the night before the shooting, the victim went to a bar where the defendant worked, that when the victim entered the bar, the defendant threw a glass ashtray at the victim, that the defendant expressed no remorse on the day of the shooting, that several months later the defendant boasted that the defendant ‘‘blew the bitch away,’’ that the defendant dispassionately said the defendant gleaned a leather jacket from the victim’s death, and that, by the testimony of the state’s experts, the trigger pull required six pounds of pressure, that the shotgun would not fire accidentally, that the shotgun spray pattern indicated that the victim was shot from a distance of 14 feet, and that the pattern was inconsistent with the defendant’s ver- 506 sion of events. Holton v. State, 280 Ga. 843, 632 S.E.2d 90 (2006). There was sufficient evidence to convict the defendant of malice murder under O.C.G.A. § 16-5-1, burglary under O.C.G.A. § 16-7-1, and possession of a firearm during the commission of a crime under O.C.G.A. § 16-11-106; the defendant was arrested in the white van seen at the scene of the crime, a person resembling the defendant was seen at the scene, the defendant’s brother was tied by DNA evidence to the offense, and the defendant and the defendant’s brother were known to commit burglaries together. Denny v. State, 281 Ga. 114, 636 S.E.2d 500 (2006). Murder of unarmed victim. — Evidence supported a defendant’s conviction for malice murder as: (1) the defendant stated that the defendant was going to re-park the victim’s car and became upset; (2) the defendant changed the defendant’s mind, gave the victim the car keys, went back into the apartment, came outside with a .38 caliber revolver, and fatally shot the unarmed victim once in the head; (2) children who witnessed the shooting testified that the defendant and the victim were not ‘‘fussing’’; (3) the children testified that the defendant fired the weapon from the doorway of the apartment as the victim sat on the porch; and (4) the children testified that the victim had no time to react. Bradley v. State, 281 Ga. 173, 637 S.E.2d 19 (2006). There was sufficient evidence to support a defendant’s conviction of malice murder as the jury was authorized to find that the defendant, mistaking the victim for someone who had robbed the defendant, got out of a car and attacked the victim from behind, then forced the victim into the car, drove to a remote location, and shot the victim in the chest; fibers on the victim’s body matched the carpeting in the defendant’s car, and it was for the jury to determine the credibility of the witnesses as well as the weight to be accorded the expert’s fiber testimony. Hamilton v. State, 281 Ga. 501, 640 S.E.2d 28 (2007). Defendant’s malice murder conviction, as a party to the crime, was upheld on appeal as sufficient evidence was adduced at trial of the defendant’s participation in the crime, including eyewitness testimony 16-5-1 that the defendant encouraged the shooter to shoot the victim, that the defendant recently threatened to shoot the victim in the head, and testimony that the defendant joined the shooter and the codefendant in the confrontation and fled with them after the shooting. Sims v. State, 281 Ga. 541, 640 S.E.2d 260 (2007). There was sufficient evidence to support the defendant’s convictions of malice murder and aggravated assault; after an argument at the victims’ house over money, the defendant returned to the house with a concealed pistol, demanded money from the first victim, pulled out the pistol after the first victim said that the first victim was not afraid of the defendant, and shot the two victims. Shelton v. State, 281 Ga. 660, 641 S.E.2d 536 (2007). Confession supported conviction. — Evidence was sufficient to support the defendant’s murder conviction where the victim was last seen alive at a bank where the victim received $10 bills; shortly afterward, a customer who came to the victim’s store encountered the defendant, a store employee, who said that the victim was asleep; a dog led police from the crime scene to a nearby wooded area, where weapons were found, and then directly to the defendant’s mobile home; the defendant approached police and made inculpatory statements containing details of the crime not known to the public; police then searched the trailer and found a wallet containing 25 $10 bills; and the defendant subsequently confessed to the crime. Height v. State, 281 Ga. 727, 642 S.E.2d 812 (2007). Conversations on murder sufficient. — There was sufficient evidence to show that a defendant was a party under O.C.G.A. § 16-2-20(b)(3) to malice murders since: there was testimony that the defendant had previously acted violently toward the victims and had expressed the desire that the first victim die; that the defendant participated in at least one conversation planning the murders; that the defendant was present at the murder scene; that the defendant washed brown stains off the defendant’s shirt after the murders; and that the defendant told two people of the murders before the bodies were discovered. Conway v. State, 281 Ga. 685, 642 S.E.2d 673 (2007). 507 Application (Cont’d) 1. In General (Cont’d) There was sufficient evidence to support the defendant’s convictions of malice murder and of felony murder when the defendant, who had been involved romantically with the victim, walked into the victim’s apartment, looked around, left, approached the car where the victim and a friend were sitting, put a gun to the friend’s head, and then turned the gun on the victim and shot the victim before speeding off; the friend, who had known the defendant for over a year, identified the defendant as the shooter. Sampson v. State, 282 Ga. 82, 646 S.E.2d 60 (2007). Based on the evidence explaining the circumstances and events leading up to the victim’s death, including testimony from the medical examiner as to the cause of death, the weapon found, and the defendant’s own statements, the appeals court concluded that overwhelming evidence existed to support the defendant’s convictions of malice murder and possession of a firearm during the commission of a crime. Sturgis v. State, 282 Ga. 88, 646 S.E.2d 233 (2007). There was sufficient evidence to support the defendant’s convictions of malice murder, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a felony; the defendant and the victim lived in the same rooming house where the defendant often intimidated the victim and demanded money from the victim, on the night of the crime the defendant sent the victim to buy crack cocaine and became angry when the victim returned empty-handed, the defendant argued with the victim and shot the victim in the eye, and at the hospital the victim repeatedly declined to say who shot the victim, except to say that a person with a first name other than the defendant’s shot the victim accidentally. Jones v. State, 282 Ga. 306, 647 S.E.2d 576 (2007). Victim shot in front of victim’s child. — There was sufficient evidence to support the defendant’s convictions of malice murder, felony murder, aggravated assault, cruelty to children in the first degree, and possession of a firearm in the 16-5-1 commission of a felony when the defendant waited for the victim at the victim’s house, drove with the victim and the victim’s 10-year-old child to a rural road and stopped, displayed a gun and refused to allow the victim to leave, and drove to the home of the defendant’s child, where the defendant shot the victim in front of the victim’s child. Dalton v. State, 282 Ga. 300, 647 S.E.2d 580 (2007). Evidence supported the defendant’s convictions of malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of a felony; the two surviving victims testified that the defendant began shooting at the victims after arriving at an apartment, and the testimony of the victims, the location of shell casings, and the evidence showing that the deceased victim was shot from a distance of over three feet, significantly refuted the defendant’s claim of self-defense. Jackson v. State, 282 Ga. 494, 651 S.E.2d 702 (2007). Delayed ignition devices used as part of murder cover-up. — Sufficient evidence supported the defendant’s convictions of malice murder and first-degree arson since: the defendant, who owed money to the victim for a house and who delayed paying the money, was suppose to meet the victim at a bank to pay the victim on the day the victim’s body was discovered in the victim’s burned mobile home; a medical examiner testified that the victim died by strangulation; the defendant was seen at the mobile home twice that day and appeared agitated; there was fire-related activity in the defendant’s home; the defendant completed firefighting classes for work that included training in delayed-ignition devices constructed from household items; there was similar transaction evidence about a fire in the defendant’s home and the defendant’s use of the insurance proceeds from that fire to pay debts; and the defendant’s claim that the defendant was with the defendant’s spouse at the time of the fire could be readily explained by the possibility of the use of a delayed-ignition device. Bryant v. State, 282 Ga. 631, 651 S.E.2d 718 (2007). Murder of a convenience store clerk. — There was sufficient evidence to 508 support a defendant’s convictions of malice murder, armed robbery, kidnapping, third-degree arson, burglary, and possession of a firearm during the commission of a crime when the evidence showed that the defendant made the defendant’s accomplice shoot a convenience store clerk after the defendant forced the clerk at gunpoint into a wooded area, took money from a cash register in the store, and started a fire in the store. The accomplice’s testimony was sufficiently corroborated by the defendant’s admission that the defendant owned the shotgun that was used in the shooting, the defendant’s admission that the defendant gave the shotgun to the accomplice, the testimony of a third person that the accomplice gave the third person the shotgun after the robbery, and the fact that shotgun shells found in the defendant’s home matched shells taken from the clerk’s body. Judkins v. State, 282 Ga. 580, 652 S.E.2d 537 (2007). Evidence was sufficient to support the defendant’s convictions as a party to malice murder, felony murder, kidnapping with bodily injury, false imprisonment, and aggravated assault when: the victim, who claimed to have been robbed of money the defendant and a codefendant gave the victim for drugs, had been made to drive around while a codefendant pointed a gun at the victim; the victim was later taken to an apartment where the victim was threatened and pistol-whipped; the victim was taken out of the apartment, forced into some woods, and fatally shot; and following the killing, the defendant and a codefendant moved the victim’s car from the apartment complex to a parking lot where the defendant and others had met the victim earlier that evening. John v. State, 282 Ga. 792, 653 S.E.2d 435 (2007). Evidence was sufficient to support the defendant’s convictions of malice murder, felony murder, burglary, aggravated assault, and possession of a firearm during the commission of a felony. Two off-duty police officers who worked as security guards for the apartment building where the victim was shot heard a ‘‘pop’’ and saw two people running from the apartment where the victim was shot; the victim’s friend testified that the defendant and the 16-5-1 codefendant had been at the apartment in the days before the murder and had asked about a gun the victim had; and a neighbor testified that around the time of the shooting, the defendant and the codefendant had followed the victim to the apartment, then pushed open the door without knocking, and that the defendant had a weapon. Walker v. State, 282 Ga. 703, 653 S.E.2d 468 (2007). Knife used as murder weapon. — Sufficient evidence existed to support a defendant’s convictions of malice murder and possession of a knife during the commission of a felony under O.C.G.A. § 16-11-106(b): there was (1) eyewitness testimony that the defendant stabbed the victim, who was involved in a dispute with a relative of the defendant, in the chest with a knife; (2) evidence supporting a finding that the knife was three inches or longer; (3) the defendant’s admission to ‘‘sticking’’ the victim; and (4) testimony that the defendant twice pulled a knife on the victim before. Stanley v. State, 283 Ga. 36, 656 S.E.2d 806 (2008). Defendant’s malice murder conviction was upheld on appeal because: (1) the evidence presented by the state in support of the state’s malice murder and other charges was sufficient; (2) the defendant’s objection to the victims’ parent’s testimony as irrelevant and inflammatory was entirely too vague and general to present any question for determination by the trial court; (3) the defendant failed to support a requested instruction with the specific language sought to be included therein; (4) a challenged instruction on the murder count did not effectively direct a verdict of guilty on that charge as an inaccuracy was cleared up by the court, and the charge as a whole was not likely to confuse the jury; and (5) an involuntary manslaughter charge was not warranted by the evidence. Davenport v. State, 283 Ga. 171, 656 S.E.2d 844 (2008). More than mere presence shown. — Sufficient evidence supported a felony murder conviction because ample evidence, including the defendant’s admission, showed more than a mere presence at the crime scene, and that the defendant participated in the felony murder of the victim as a party to the crime while in the 509 Application (Cont’d) 1. In General (Cont’d) commission of an armed robbery. Moreover, the defendant did not have to fire the fatal shot in order to be guilty as a principal because the offense of felony murder was accomplished when a defendant caused the death of another human being while in the commission of the underlying felony. Curinton v. State, 283 Ga. 226, 657 S.E.2d 824 (2008). Evidence supported the defendant’s convictions of malice murder and two counts of aggravated assault; witnesses testified that a person wearing a red bandana went into a bar, pointed a pistol at one victim, left, and later returned and began shooting, and other witnesses testified that the defendant was the shooter and that the defendant was wearing a red bandana. Felton v. State, 283 Ga. 242, 657 S.E.2d 850 (2008). Evidence was sufficient to support convictions of malice murder, armed robbery, and aggravated assault when the defendant demanded that the victim ‘‘break bread’’, hit the victim three times with a metal flashlight, and rummaged through the victim’s pockets after the victim refused, hit the victim again after the victim refused to turn over a ring, and then took the ring. Gibson v. State, 283 Ga. 377, 659 S.E.2d 372 (2008). Evidence supported a conviction of malice murder. The defendant was identified as one of the persons who fled to a hotel from the car where the victim had been shot; bloody clothes matching those worn by the defendant were found in a hotel room along with the defendant; genetic profiles of both the victim and the defendant were found on a sock in the room; a fingerprint removed from a vent cover in the room was that of the defendant; a bullet removed from the victim’s body was fired from a pistol found in the vent; and the person found in the hotel room with the defendant testified that the defendant removed the vent cover and placed the pistol in the ductwork. Smith v. State, 284 Ga. 17, 663 S.E.2d 142 (2008). Defendant’s convictions on charges of malice murder, aggravated assault, and obstruction were supported by evidence 16-5-1 that showed, inter alia, that the defendant was upset because the victim owed the defendant money, that the defendant got into an argument with the victim that culminated in the defendant shooting the victim, that a shell casing from the gun used to shoot the victim was found in the defendant’s room, and that when the defendant was arrested, the defendant lied about the defendant’s identity. Williams v. State, 284 Ga. 94, 663 S.E.2d 179 (2008). Eyewitness testimony sufficient for conviction. — Testimony from two eyewitnesses that the defendant fatally shot the victim with an assault rifle and aimed the rifle at one of the witnesses, and evidence that the defendant then fled and tried to elude authorities was sufficient to convict the defendant of felony murder, aggravated assault with a deadly weapon, aggravated assault, and possession of a firearm during the commission of a felony. McKenzie v. State, 284 Ga. 342, 667 S.E.2d 43 (2008). Confession supported conviction. — Evidence supported a defendant’s conviction for malice murder and rape. The victim had seminal fluid on her leg and buttocks and in her vagina, a massive wound in the back of the head caused by at least five individual blows that had driven pieces of her skull into her brain, and ligature marks on her neck; the defendant told a co-worker that he had hit a woman on the back of the head; DNA obtained from the defendant matched that found on the victim; and the defendant told a detective that the defendant had killed the victim. Holmes v. State, 284 Ga. 330, 667 S.E.2d 71 (2008). Evidence supported convictions of malice murder, concealing a death, and possession of a firearm during the commission of a crime. A codefendant testified that the defendant, who was jealous of one victim, shot the victims in the defendant’s home, then put the bodies in the second victim’s car, drove the car away, poured gasoline on the car, and set the car on fire; an officer who had known the defendant for years testified that the defendant called the officer twice about surrendering to authorities; police found blood, human tissue, shotgun pellets, part of a shotgun, and ammunition in the defendant’s home, 510 a trail of blood leading away from the house, and a shotgun shell casing and a gas can in the defendant’s truck; and a cellmate testified that the defendant told the cellmate that the defendant shot two people, that the defendant inquired whether fingerprints could be retrieved from a burned vehicle, and that the defendant said that the defendant had soaked up blood on the defendant’s carpet with cat litter. Hendrix v. State, 284 Ga. 420, 667 S.E.2d 597 (2008). Eyewitnesses testified that the defendant ordered a man to shoot the victim, who was wounded but escaped; later, eyewitnesses saw the defendant and an armed cohort encounter the unarmed victim, who was fatally shot. This evidence was sufficient to support the defendant’s convictions for aggravated assault and murder. Wilcox v. State, 284 Ga. 414, 667 S.E.2d 603 (2008). Testimony from drug dealer supported conviction. — Evidence supported convictions of malice murder, possessing a firearm during the commission of that murder, and possession of a weapon by a convicted felon. A drug dealer told police that the drug dealer saw the defendant shoot the victim, although the drug dealer said at trial that the drug dealer did not see the shooting; the drug dealer’s spouse testified as to a statement by the drug dealer that was inconsistent with the drug dealer’s trial testimony; and another prosecution witness testified that before the shooting, the defendant said that the defendant was ‘‘going to get’’ the victim and that afterward, the defendant said, ‘‘I told you I was going to do’’ the victim. Broner v. State, 284 Ga. 402, 667 S.E.2d 613 (2008). Evidence was sufficient to support convictions of malice murder and of the possession of a firearm during the commission of a crime. Witnesses testified that after getting into a confrontation with a second person at a nightclub, the defendant threatened to kill the second person, that the defendant retrieved a gun and waited outside the club for the second person, and that after being wrestled to the ground, the defendant fired shots, one of which fatally wounded a bystander. Savior v. State, 284 Ga. 488, 668 S.E.2d 695 (2008). 16-5-1 Mere presence at scene of murder rejected. — In a malice murder case, there was no merit to a defendant’s argument that the evidence established only the defendant’s mere presence at the scene; at the very least, the defendant was a party to the crime under O.C.G.A. § 16-2-20(a). While it was not established that the defendant actually committed the physical act of stabbing the victim, the state presented evidence that the defendant took part in another murder the night before the victim was killed, that the victim threatened to disclose the earlier murder to police, that the victim was killed to silence the victim, and that the defendant assisted the codefendants in removing the victim from the trunk of a car and dragging the body into the woods. Metz v. State, 284 Ga. 614, 669 S.E.2d 121 (2008), overruled on other grounds, State v. Kelly, 290 Ga. 29, 718 S.E.2d 232 (2011). Knife used as a murder weapon. — Despite defendant’s testimony that the victim and the victim’s friend attacked the defendant, that the defendant picked up a knife in self defense, and that the defendant stabbed the victim in self-defense, the testimony of the friend that defendant had been fighting and that the friend heard the victim yell that defendant had stabbed the victim was sufficient to convict defendant of malice murder and felony murder. Hooper v. State, 284 Ga. 824, 672 S.E.2d 638 (2009). Confession supported conviction. — Evidence was sufficient to support the defendant’s convictions for malice murder, theft by taking an automobile, and possession of a firearm by a convicted felon as the defendant admitted to a cellmate and to a cousin’s roommate that the defendant fatally shot the cousin when the cousin told the defendant to move out of a shared apartment; there was also physical evidence, the recovery of the gun used in the incident, and witness testimony that supported the conviction. Jackson v. State, 284 Ga. 826, 672 S.E.2d 640 (2009). Sufficient evidence supported a defendant’s murder conviction as the defendant convinced the victim to pick the defendant up in the victim’s car and, during an argument, produced a knife; as the two struggled, the defendant stabbed the vic- 511 Application (Cont’d) 1. In General (Cont’d) tim six times. Cane v. State, 285 Ga. 19, 673 S.E.2d 218 (2009). Knife used as a murder weapon. — Evidence supported the defendant’s conviction of malice murder. The defendant’s roommate, who had been summoned by the second victim, found the first victim covered with blood in a bedroom; the defendant was also in the bedroom, holding a knife, and told the roommate that the first victim ‘‘had it coming’’; police who surrounded the building entered the bedroom and found the first victim and the second victim, who had become separated from the roommate when the roommate ran from the scene; the defendant was found in a neighboring apartment, which the evidence showed that the defendant had entered through a connecting attic; the defendant’s blood was found in both apartments; and the defendant’s blood, along with the victims’ blood, was found on the defendant’s clothing, the knife, and numerous other items. Hurst v. State, 285 Ga. 294, 676 S.E.2d 165 (2009). Evidence was sufficient to support the defendant’s conviction for malice murder as the defendant forced a former girlfriend to purchase a shotgun, and then had another girlfriend set up the victim under the pretense of having sex with him, whereupon the defendant entered the room and fatally shot the victim in the face; participants in various stages of the criminal conduct testified against the defendant at trial. Varner v. State, 285 Ga. 300, 676 S.E.2d 189 (2009). Following evidence was sufficient to support the defendant’s murder conviction: (1) the victim’s sibling heard the defendant and the victim arguing in a bedroom; (2) minutes later, the sibling heard a gunshot and found the victim with a gunshot wound to the head and the defendant kneeling on the floor; (3) the defendant made incriminating statements to police; and (4) an expert opined that the bullet taken from the victim had been fired from the gun found at the scene, which defendant had purchased. Watkins v. State, 285 Ga. 355, 676 S.E.2d 196 (2009). 16-5-1 Victim shot twice in head. — Eyewitness testimony that the defendant argued with and later fatally shot the victim twice in the head was sufficient to convict the defendant of malice murder. Marshall v. State, 285 Ga. 351, 676 S.E.2d 201 (2009). There was sufficient evidence to support the defendant’s conviction for, inter alia, malice murder of the defendant’s roommate as the defendant gave conflicting statements to police regarding when the roommate was last seen, the defendant knew that the roommate had been stabbed to death although that information was not disclosed to the police, and blood stains in the defendant’s home and on the defendant’s furniture matched the roommate’s blood. Carson v. State, 285 Ga. 337, 676 S.E.2d 207 (2009). Knife used as a murder weapon. — Evidence was sufficient to convict two defendants of malice murder: (1) a week after one defendant fought, and the other threatened, their roommate, the latter died in their house after being beaten with a guitar and stabbed; (2) the next day, a defendant, who had bruises on the defendant’s arms, told a neighbor of finding the victim’s body at their home; (3) the victim’s blood was found on the other defendant’s shorts; and (4) the knife handle and pieces of the guitar were found near the crime scene. Dixon v. State, 285 Ga. 312, 677 S.E.2d 76 (2009), overruled on other grounds, 287 Ga. 242, 695 S.E.2d 255 (2010). Eyewitness testimony supported murder conviction. — Convictions of two defendants of, inter alia, malice murder and felony murder were supported by sufficient evidence because eyewitnesses saw the defendants point guns at the victim, shoot, and flee. Daniel v. State, 285 Ga. 406, 677 S.E.2d 120 (2009). Evidence supported the defendants’ convictions of malice murder and possession of a firearm by a convicted felon. The first defendant told a driver to stop a car while the second defendant and the victim got out of another car; the second defendant held the victim at gunpoint with an AK-47; the first defendant jumped out of the car and approached the second car with a .45 caliber handgun; both defen- 512 dants fired their weapons at the victim as the victim was running; after the victim fell, the second defendant stood over the victim with the rifle and fired several more times; the victim suffered five back-to-front bullet wounds; and shell casings from a .45 caliber handgun as well as an AK-47 were found at the scene. Anderson v. State, 285 Ga. 496, 678 S.E.2d 84 (2009). Malice murder conviction was supported by sufficient evidence under circumstances in which, among other things, an eyewitness observed the defendant and a companion approach the victim, saw the victim throw the victim’s arms above the victim’s head and remain in that position for about five seconds, and then turn and run, and then heard a single gunshot; a coworker of the victim heard a gunshot, heard the victim exclaim that the victim had been ‘‘hit,’’ and saw evidence of the perpetrator in close proximity to the victim immediately after the shooting. Defendant claimed that the defendant’s gun had accidentally discharged, striking the victim. Glover v. State, 285 Ga. 461, 678 S.E.2d 476 (2009). Convictions of felony murder, O.C.G.A. § 16-5-1, and armed robbery, O.C.G.A. § 16-8-41, were supported by sufficient evidence because, inter alia, the defendant acted as a lookout and deterred two potential customers while a codefendant entered the victim’s restaurant, shot the victim to death, robbed the cash register, and stole the victim’s wallet; after the shooting, the defendant and the codefendant fled the scene together and went to a friend’s apartment, where the defendant changed the defendant’s shirt to disguise the defendant’s identity. Proof of the defendant’s direct commission of the crimes was not required because the jury could infer the defendant’s participation from conduct before, during, and after the crimes. Washington v. State, 285 Ga. 541, 678 S.E.2d 900 (2009). Killing of restaurant manager. — Restaurant was robbed, the manager was fatally shot, and the manager’s car was stolen. As the defendant’s accomplice, the defendant’s cellmate, and an officer testified that the defendant admitted committing the murder, the evidence was suffi- 16-5-1 cient to convict the defendant of malice murder, armed robbery, and theft by taking. Patterson v. State, 285 Ga. 597, 679 S.E.2d 716 (2009), cert. denied, 558 U.S. 1117, 130 S. Ct. 1051, 175 L. Ed. 2d 892 (2010). Sufficient evidence supported the defendant’s conviction of malice murder under circumstances in which the victim’s father received a call originating from the victim’s cell phone, and, when that number was called back, all that could be heard were noises, including gasping, gurgling, and children screaming during the second call, before the line was disconnected; officers later found the victim lying on the kitchen floor with a cell phone in the victim’s hand, dead from a single gunshot wound to the head, and a handgun retrieved on the premises was later determined to have fired the bullet that killed the victim. The defendant testified that the defendant and the victim were arguing inside the home, that the argument became physical, that the defendant took the children and a gun out to the defendant’s truck, that the defendant returned to the house, and that the defendant did not know what happened after that. Paslay v. State, 285 Ga. 616, 680 S.E.2d 853 (2009). Sufficient evidence supported the defendant’s convictions of murder, felony murder, and aggravated assault; the evidence revealed that the victim and the defendant got into a physical fight at a bar, and that the victim then left the bar and went to an apartment. The defendant then went home, retrieved a handgun, went to the apartment, knocked on the door, and when one of the people inside opened the door, the defendant shot the victim in the chest, killing the victim. Rector v. State, 285 Ga. 714, 681 S.E.2d 157, cert. denied, 558 U.S. 1081, 130 S. Ct. 807, 175 L. Ed. 2d 567 (2009). Evidence was sufficient to authorize a rational trier of fact to find the defendant guilty of malice murder and felony murder beyond a reasonable doubt because a bloody fingerprint found at the crime scene matched the defendant’s fingerprint, bloody boot impressions found at the scene were connected to the defendant’s boots, and blood on the defendant’s 513 Application (Cont’d) 1. In General (Cont’d) boots matched the victim’s blood; a witness testified that the defendant had stated that the defendant attacked the victim in a bathroom, and the crime scene investigator testified that based on blood spatter pattern analysis, the victim’s beating began in the bathroom. Arrington v. State, 286 Ga. 335, 687 S.E.2d 438 (2009), cert. denied, 131 S. Ct. 112, 178 L. Ed. 2d 69 (U.S. 2010). Evidence was ample for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of malice murder and possession of a firearm during the commission of a felony because a witness testified at trial that defendant was responsible for the shooting, and in addition to witness testimony implicating defendant, police found bullets of the same caliber used to shoot the victim in a codefendant’s vehicle soon after the shooting; the jury was also shown transcripts and video recordings of statements given to the police by two witnesses in which the witnesses implicated defendant. Hicks v. State, 287 Ga. 260, 695 S.E.2d 195 (2010). Murder with 9mm handgun. — Evidence was sufficient for a rational jury to find the defendant guilty beyond a reasonable doubt of malice murder because the defendant shot the victim with a 9mm handgun after entering the victim’s house in order to take the victim’s possessions; the defendant’s girlfriend testified that the day before the shooting, she saw the defendant with a 9mm handgun. Fox v. State, 289 Ga. 34, 709 S.E.2d 202 (2011). Admission to another inmate of killing someone. — Although there was conflicting evidence as to whether the defendant or the codefendant was the shooter, the evidence was more than sufficient to authorize a rational trier of fact to find the defendant guilty of malice murder beyond a reasonable doubt because the defendant confronted several people in a park, told the people that something was about to go down, and warned the people not to tell anyone; the defendant then confronted the victim and argued loudly with the victim, who was fatally shot twice in the head from close 16-5-1 range, and while in jail, the defendant admitted to another inmate that the defendant killed somebody. Johnson v. State, 289 Ga. 106, 709 S.E.2d 768 (2011). Fingerprints and eyewitness identification sufficient for murder conviction. — Evidence was sufficient to enable a rational trier of fact to find the defendant guilty of malice murder, armed robbery, and aggravated assault beyond a reasonable doubt because although the defendant denied to police that the defendant had any contact with the silver car that was connected to the robbery, the defendant’s fingerprints were found on the outside of the car and an eyewitness’s physical description of the second gunman from the robbery matched the defendant. Carter v. State, 289 Ga. 51, 709 S.E.2d 223 (2011). Evidence supported the defendant’s convictions for malice murder, felony murder, criminal attempt to commit armed robbery, armed robbery, aggravated assault, and possession of a firearm during the commission of a crime because: (1) the defendant participated in the armed robbery of three people, including the shooting victim, who were sitting in a car on a neighborhood street; (2) during the encounter, the co-indictee fatally shot the victim in the head with a shot gun; (3) one of the two other people in the car testified that, after the shooting, the defendant, with the defendant’s hand in the defendant’s pocket simulating that the defendant had a gun, took money and drugs from the witness; (4) the co-indictee also took money from the other person; and (5) the defendant and the co-indictee then fled the scene. Gilyard v. State, 288 Ga. 800, 708 S.E.2d 329 (2011). Jury choosing to believe state’s witnesses. — Evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt of malice murder and possession of a firearm during the commission of a crime because although there were defense witnesses who testified that someone else, and not defendant, was the actual shooter, and there were inconsistencies and contradictions in the testimony of the state’s witnesses, the jury, after considering all of the evidence, chose to believe the state’s version and 514 that defendant’s witnesses were not credible. Martinez v. State, 289 Ga. 160, 709 S.E.2d 797 (2011). Evidence was sufficient to support the defendant’s conviction for malice murder because evidence was presented that the defendant and a codefendant entered a restaurant to rob the restaurant and shot two employees of the restaurant. In a statement to the police, the defendant admitted that the defendant entered the restaurant with a handgun to rob the restaurant, but the defendant claimed that the defendant heard gunshots and left the restaurant, while the codefendant gave a similar statement to the police. Watkins v. State, 289 Ga. 359, 711 S.E.2d 655 (2011). Murder occurring during robbery. — Evidence was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of malice murder, aggravated assault, and possession of a firearm during the commission of a crime because the three men who were with the victim when the victim was shot identified the defendant as the person who fired shots at them; there was testimony that the defendant was the boyfriend of a woman who was the former girlfriend of one of the three men with the murder victim and that the defendant and the former boyfriend had exchanged heated words earlier on the day the victim was killed as well as the afternoon of the day before the shooting. Glass v. State, 289 Ga. 706, 715 S.E.2d 85 (2011). Murder occurring during pool hall fight. — Evidence presented at trial was sufficient to authorize a rational jury to reject the defendant’s justification defense and find the defendant guilty of murder beyond a reasonable doubt because the defendant was involved in a pool hall fight, drew a pistol, and opened fire, killing the victim. Funes v. State, 289 Ga. 793, 716 S.E.2d 183 (2011). Evidence was sufficient to support convictions for malice murder because: (1) before the decedent’s death, the decedent told a friend that the decedent had been beaten in a fight by one of the defendants; (2) the other defendant placed dozens of calls from the decedent’s cell phone as the defendants traveled from Tampa to At- 16-5-1 lanta in the decedent’s pickup truck; (3) the truck was destroyed in an arson fire near an apartment complex where the defendants were staying with relatives; (4) the decedent’s body was found in the bed of the truck; (5) the decedent had been dead for days before the fire; and (6) personal belongings of the decedent were found in the possession of the defendants. Miller v. State, 289 Ga. 854, 717 S.E.2d 179 (2011). Evidence was sufficient to enable a rational trier of fact to find the defendant guilty of malice murder beyond a reasonable doubt because police found the victim beaten, stabbed, and strangled in the living room, and blood evidence collected at the scene later connected the defendant to the crime. Wheeler v. State, 290 Ga. 817, 725 S.E.2d 580 (2012). Evidence was sufficient to authorize a rational trier of fact to find the defendant guilty of malice murder and possession of a firearm during the commission of a felony because the state’s case rested on direct as well as circumstantial evidence; the direct evidence included testimony by an eyewitness that the defendant was the shooter, testimony by another witness who overheard the defendant discussing the shooting and laughing at the fact that the defendant killed the victim in front of the victim’s children, and the confession of the defendant to police officers that the defendant shot the victim. Rockholt v. State, 291 Ga. 85, 727 S.E.2d 492 (2012). Evidence supported the defendant’s convictions of felony murder during the commission of aggravated assault, aggravated assault, possession of marijuana, and possession of a firearm during the commission of a crime since: (1) after smoking marijuana, the defendant attacked the victim, pulled a gun from the defendant’s pocket, and shot the victim four times; (2) the victim told the police that the defendant did it; (3) the victim died; (4) a knife was found near the victim, the defendant had a stab wound, and the defendant claimed self-defense; and (5) witnesses one and two saw the defendant pull the gun but did not see the victim with a knife. Hill v. State, 291 Ga. 160, 728 S.E.2d 225 (2012). State’s physical evidence, including the 515 Application (Cont’d) 1. In General (Cont’d) victim’s blood on the defendant’s shirt, the defendant’s unexplained possession of the victim’s truck, watch, and other personal property, and the fact that the defendant was seen near the victim’s residence and farm not long before the crimes were committed, supported the defendant’s convictions for malice murder and armed robbery. Blevins v. State, 291 Ga. 814, 733 S.E.2d 744 (2012). Delayed complications supported murder conviction. — When the medical examiner determined that, although the autopsy revealed other medical conditions, the cause of the victim’s death was delayed complications from the blunt force trauma to the victim’s head, the evidence was sufficient to establish that the defendant’s actions were the cause of the victim’s subsequent death. Clarke v. State, 292 Ga. 305, 737 S.E.2d 575 (2013). Confession supported conviction. — Evidence that the victim’s brother told an officer the brother thought the victim was dead because the defendant, the father, had killed the victim; that the defendant admitted to family members, while meeting in an interview room at the police station, that the defendant killed the victim; and that the victim had been strangled to death was sufficient to support the defendant’s conviction for malice murder. Rashid v. State, 292 Ga. 414, 737 S.E.2d 692 (2013). Defendant’s claim that the evidence was insufficient to support the convictions for malice murder and possession of a firearm during the commission of a felony because the state was unable to present evidence to disprove the earlier incident between the defendant and the victim or disprove that the defendant acted in self-defense when the defendant shot the victim failed because testimony from eyewitnesses to the shooting and forensic evidence belied the claim that the defendant acted in self-defense. Among other things, the defendant testified the defendant shot the victim because the victim pulled out a knife, claiming the defendant saw the blade; however, two closed pocket knives were found. Hoffler v. State, 292 Ga. 537, 739 S.E.2d 362 (2013). 16-5-1 Testimony from two witnesses that the witnesses recognized the defendant from the defendant’s distinctive walk and that one also recognized the defendant from the defendant’s posture, shoulders, complexion, and nose; the fact that a dark fiber like one that could have been from the shooter’s wig was found in the defendant’s truck; and the defendant’s admission to an inmate that the defendant shot the victim supported the defendant’s convictions for malice murder and possession of a firearm during the commission of a felony. Hayes v. State, 292 Ga. 506, 739 S.E.2d 313 (2013). Evidence that the defendant’s wallet was found on the victim’s kitchen table, a plastic grocery bag containing the defendant’s blood stained clothes was discovered, and DNA testing showed that the blood on the defendant’s windbreaker came from the victim and the blood spatter was consistent with the wearer having struck the victim, was sufficient to support the defendant’s convictions for malice murder and robbery. Hall v. State, 292 Ga. 701, 743 S.E.2d 6 (2013). Defendant’s admission that the defendant helped the defendant’s son hold down the victim as the son penetrated the victim, that the defendant rubbed the defendant’s own penis against the victim and ejaculated on the victim, that the defendant put the defendant’s hands over the son’s hand as the son choked the victim, that the defendant helped dump the victim’s body, and the testimony of the defendant’s wife that the defendant helped undress the victim, the defendant put the defendant’s mouth on the victim’s penis, and the defendant attempted to put the defendant’s penis in the victim’s anus was sufficient to support the defendant’s convictions for murder, false imprisonment, two counts of aggravated child molestation, child molestation, cruelty to children in the first degree, concealing the death of another, and tampering with evidence. Edenfield v. State, 293 Ga. 370, 744 S.E.2d 738 (2013), overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018). Although the jury heard the defendant’s statement claiming that there was a struggle for the gun, the jury also heard 516 evidence that the gunshot to the chest came after the victim had already been shot and that the gunshot to the chest likely did not occur during a struggle and, thus, the evidence was sufficient for the jury to find the defendant guilty of malice murder. Thomas v. State, 297 Ga. 750, 778 S.E.2d 168 (2015). Evidence supported the defendant’s malice murder conviction when the defendant shot the victim because the defendant believed the victim took $400 and the defendant’s phone, given that a witness saw the defendant meet the victim at the door of the defendant’s house, call the victim a bitch, and yank the victim’s arm, then the witness heard a gunshot, and the defendant admitted shooting the victim but claimed the shooting was accidental. Furthermore, the trial court did not err in denying a motion for new trial on general grounds. Smith v. State, 300 Ga. 532, 796 S.E.2d 671 (2017). Evidence sufficient for murder conviction in drug cases. — Evidence was sufficient to support the first defendant and the second defendant’s convictions for murder, kidnapping, armed robbery, and burglary, as the evidence showed that the defendants were involved in a scheme to rob a person who they believed to be selling large amounts of marijuana from an apartment, that the defendants burst into the apartment brandishing guns, that one of the defendants fatally shot the victim, and that the other defendant forced two people present to lie on the ground and divulge the location of a safe in the apartment that held money and marijuana. Howard v. State, 279 Ga. 166, 611 S.E.2d 3 (2005). Evidence was sufficient to support a malice murder conviction after the defendant had approached the victim’s car to sell drugs and leaned into the car, when a passenger grabbed the drugs, and the victim sped off, but the car stalled a few blocks down the street, and defendant ran to the car to retrieve the drugs, but discovered that all of the drugs had not been returned, ran back to the disabled car, and shot the victim in the leg and then the head. Collier v. State, 280 Ga. 148, 625 S.E.2d 757 (2006). Dying declaration of victim as evidence in murder conviction. — Evi- 16-5-1 dence was sufficient to enable a rational trier of fact to find a defendant guilty of murder beyond a reasonable doubt as a result of the evidence establishing that the victim identified the defendant as the individual who caused the victim’s gunshot wound via a dying declaration made before the victim died, and the defendant had earlier in the day accused the victim of stealing a gun from the defendant, which was a baseless claim. Ventura v. State, 284 Ga. 215, 663 S.E.2d 149 (2008). Evidence sufficient for malice murder as party to crime. — Evidence was sufficient to support the defendant’s conviction for malice murder as a party to the crime under O.C.G.A. § 16-2-20(b)(3) as the defendant accompanied the defendant’s son on two occasions to the victim’s apartment, the defendant lied to gain entry into the victim’s apartment, the defendant was present when the victim was fatally shot, and the defendant fled after the incident. Ashe v. State, 285 Ga. 359, 676 S.E.2d 194 (2009). Arguments over volume of stereo and television justifying murder. — Evidence was sufficient to support the defendant’s conviction for, inter alia, malice murder as the defendant admitted to fatally shooting the victim in the chest with the victim’s rifle after the two argued about the volume of the stereo and television. Jones v. State, 285 Ga. 328, 676 S.E.2d 225 (2009). Malice murder conviction following prescription drug use taken for injuries inflicted by defendant. — There was sufficient evidence to support a defendant’s malice murder conviction as the jury was authorized to reject other possibilities of how the victim died as theoretical since the only cause of the victim’s death supported by the evidence was that the death was the result of an intracerebral hemorrhage caused by the anticoagulant drug Coumadin, which the victim was taking as a result of being shot by the defendant and becoming paralyzed. Shields v. State, 285 Ga. 372, 677 S.E.2d 100 (2009). Doctor’s prescription of controlled substances causing death. — Felony murder conviction was supported by evidence that the defendant illegally pro- 517 Application (Cont’d) 1. In General (Cont’d) vided controlled substances through prescriptions, a dangerous felony, and that the victim’s death was a foreseeable result within the meaning of the felony murder statute, O.C.G.A. § 16-5-1. Chua v. State, 289 Ga. 220, 710 S.E.2d 540 (2011). Felony murder predicated on drug transaction. — Defendant was properly convicted of felony murder predicated on a drug transaction and attempted violation of the Georgia Controlled Substance Act (VGCSA), O.C.G.A. § 16-13-20 et seq., because there was a sufficient nexus between the VGCSA and the victim’s death to show that the defendant’s participation in the drug transaction was the proximate cause of the victim’s death because four men met for a drug transaction and something went wrong; during the course of the events, the defendant shot and killed the victim; thus, the felony the defendant committed directly and materially contributed to the happening of a subsequent accruing immediate cause of the death. Davis v. State, 290 Ga. 757, 725 S.E.2d 280 (2012). Similar transaction evidence admissible. — Because the state adequately showed the connection between the murder of one victim, and the murder charged in the instant proceeding, specifically embedded in the defendant’s proffered motive that the killing of the victim in the instant proceeding was committed to prevent evidence from being introduced against the defendant in the first killing, the similar transaction evidence was properly allowed; hence, the similar transaction did not amount to improper character evidence. Young v. State, 281 Ga. 750, 642 S.E.2d 806 (2007). Spontaneous inculpatory statements used as evidence. — Defendant’s convictions of malice murder, armed robbery, and possession of a firearm during the commission of a felony were supported by the evidence, which included use of the murder weapon during a later robbery by the defendant’s accomplices, a video that provided a corroborating account of the shooting, and the defendant’s spontaneous inculpatory statements while being 16-5-1 transported from Maryland to Georgia. Stokes v. State, 281 Ga. 825, 642 S.E.2d 82 (2007). During the defendant’s trial for malice murder and drug-related offenses, the trial court did not abuse the court’s discretion in admitting as similar transaction evidence testimony regarding the defendant’s previous arrest on a charge of possession of cocaine with intent to distribute and a prior shooting incident because a drug sting was similar to the cocaine trafficking in that both involved relatively recent arrangements for appellant to sell cocaine, and the shooting incident was probative of defendant’s inclination towards unprovoked gun violence; the similar transactions were offered to prove, inter alia, intent and state of mind, the trial court admitted the evidence for those limited purposes only, and the trial court instructed the jury accordingly. Moore v. State, 288 Ga. 187, 702 S.E.2d 176 (2010). Evidence insufficient for murder conviction. — See Johnson v. State, 269 Ga. 840, 506 S.E.2d 374 (1998). Evidence sufficient for murder and armed robbery. — Although defendant was not the triggerman, since there was evidence which authorized findings that defendant was present with the triggerman for over two hours prior to the murder; that defendant drove the triggerman to the victim’s house; that defendant was present in the room when the victim was shot; that the victim was shot with a gun of the same model and caliber that defendant owned; and that defendant destroyed evidence, assisted in the disposal of the decedent’s body, fled from the jurisdiction where the crimes were committed, reaped benefits from the armed robbery, and at no time made any attempt to be disassociated from the criminal enterprise, a rational trier of fact could have found the defendant guilty of the crimes of murder and armed robbery beyond a reasonable doubt. Tho Van Huynh v. State, 257 Ga. 375, 359 S.E.2d 667 (1987). Evidence was sufficient to authorize a rational trier of fact to find defendant guilty beyond a reasonable doubt of murder and armed robbery. Cook v. State, 269 Ga. 460, 499 S.E.2d 887 (1998). Sufficient evidence supported convic- 518 tions arising from the defendant’s participation in a robbery which resulted in the death of a store clerk where, knowing that the cousin was going to commit a robbery, the defendant voluntarily went with the cousin, saw that the cousin had a gun, agreed to ‘‘stand over’’ the scene, and joined the cousin in using the victim’s credit cards afterwards; contrary to the defendant’s assertions, testimony showed that the defendant was not intimidated by the cousin. Scott v. State, 280 Ga. 466, 629 S.E.2d 211 (2006). Evidence was sufficient to authorize the jury to find the defendant guilty of armed robbery and malice murder because the victim went missing shortly after coming into a substantial amount of cash, the defendant had access to the victim’s home, and the defendant was seen driving around in the victim’s two vehicles, selling the victim’s property, and with a large amount of cash; the victim died from blunt trauma to the head, a mallet with blood on the mallet was found inside the house, and a witness testified that the defendant confided to the witness that the defendant killed the victim, placed the victim’s body in a freezer, and took the victim’s money. Cutrer v. State, 287 Ga. 272, 695 S.E.2d 597 (2010). Because defendant admitted to police that defendant had planned the robbery that led to the victim’s death, defendant was a willing participant in the robbery and shooting; consequently, the evidence was sufficient to find defendant guilty of felony murder, armed robbery, and possession of a firearm during the commission of a crime. Branchfield v. State, 287 Ga. 869, 700 S.E.2d 576 (2010). Evidence sufficient to support convictions of murder, aggravated assault, armed robbery, burglary, and possession of firearm in commission of felony. Baty v. State, 257 Ga. 371, 359 S.E.2d 655 (1987). Rational trier of fact could have found the defendant guilty of murder, aggravated assault and possession of a firearm during the commission of a crime beyond a reasonable doubt. Walden v. State, 264 Ga. 92, 441 S.E.2d 247 (1994). Evidence was sufficient to enable a rational trier of fact to find appellant guilty of malice murder, felony murder, aggra- 16-5-1 vated assault and possession of a firearm by a convicted felon in the shooting deaths of two victims. Burtts v. State, 269 Ga. 402, 499 S.E.2d 326 (1998). Evidence was sufficient to convict defendant of malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of a crime against a person because: (1) the codefendant jumped out of the car defendant was driving and told the victim and two other men to empty their pockets as the codefendant was robbing the victims and then the codefendant began shooting; and (2) the victim was shot in the head and later died. Thomas v. State, 275 Ga. 882, 572 S.E.2d 537 (2002). Defendant found guilty of malice murder, aggravated assault, and possession of a firearm by a first offender probationer after the defendant fired a gun at a person, the bullet grazed the person, went through a wall, and killed another person. George v. State, 276 Ga. 564, 580 S.E.2d 238 (2003). Although defendant testified about the victim’s aggressive and dangerous tendencies, there was sufficient evidence to convict defendant of felony murder since there was evidence that: (1) defendant stabbed the victim in the back and the chest during the altercation; (2) one or two days before the stabbing, defendant had stated that the victim owed defendant money and would be dead by dark; and (3) the victim was found with only a cigarette lighter for a weapon. Salyers v. State, 276 Ga. 568, 580 S.E.2d 240 (2003). When the evidence revealed that the defendant and others returned to a parking lot with the specific intent of ambushing a group of people who had earlier told the defendant not to speed and had thrown a beer bottle at the defendant’s car, and when the defendant was found to be an accomplice of one who possessed a gun and fatally shot someone, there was sufficient evidence pursuant to the ‘‘party to a crime’’ law under O.C.G.A. § 16-2-20 to convict the defendant of felony murder in violation of O.C.G.A. § 16-5-1 and simple battery in violation of O.C.G.A. § 16-5-23.1. Smith v.