Police officers responding to a 911 call stating that a woman had been shot found George Bellamy sitting on the steps with the body of Colleen Nicole Carney, who had suffered a fatal gunshot wound to the face. At the scene, Bellamy told detectives that he was in the rear of Carney’s home when she stepped outside to use the phone, and that he heard a gunshot from outside and looked down the hallway to see Carney stagger into the doorway and fall. However, when con *158 fronted with evidence inconsistent with that story, Bellamy later told police that he had shot Carney by accident while they were playing around. He stated that Carney pulled a gun out from under a cushion and started waving it in front of him playfully, and that when he grabbed her arm and twisted it to get the gun away from her, the gun went off and a bullet struck her in the faсe. The detectives on the scene that night found the gun used in the shooting under the home. Bellamy also presented conflicting information regarding ownership of the gun: first, he told the police that the gun was there when he arrived; later he stated that he brought the gun to Carney’s homе, but it was not his; and finally he stated that the gun was his and that he did bring it to Carney’s home, but he did not kill her. This appeal is from Bellamy’s conviction for malice murder, possession of a firearm during commission of a crime, and possession of a firearm by a convicted felon. 1
1. The evidenсe adduced at trial showed that Bellamy and Carney had a sometimes violent relationship; that shortly before her death, Carney thought she was pregnant, but did not want to bear the child because she already had an eight-month-old child; that Bellamy threatened in front of a witness to kill Carney if she had an abortion; that Bellamy lied to the police about the. way in which the shooting occurred, changing his story several times as he was confronted with discrepancies between his stories and the evidence; that his final version, that the gun fired accidentally while he was trying to wrest it from Carney’s hands as she played with it while she was seated on him where he lay on the couch, was inconsistent with the downward path of the bullet and the lack of gunpowder residue on her hands; and that Bellamy hid the gun after the shooting. That evidence was suffiсient to authorize a rational trier of fact to find Bellamy guilty beyond a reasonable doubt of malice murder and possession of a firearm during commission of a crime, and coupled with evidence of Bellamy’s status as a felon, the evidence was also sufficiеnt to convict him of possession of a firearm by a convicted felon.
Jackson v. Virginia,
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2. Bellamy requested a charge on involuntary manslaughter and enumerates as error the refusal of the trial court to give the requested charge. He contends the charge was propеr because there was evidence that he was engaged in the misdemeanor of reckless conduct by carelessly leaving his pistol where Carney could pick it up and by roughhousing with Carney while she held the gun. However, Bellamy’s testimony at trial was that when he arrived at Carney’s home, he asked her to put the gun away for him, and that it was she who was playing with the gun. His testimony was that his involvement with the gun was only to stop Carney from playing with it, and that it fired accidentally. Thus, Bellamy’s testimony did not show that he committed any crime at all with regard to the discharge of the gun, whilе the State’s evidence showed a deliberate fatal shooting. When, as here, evidence establishes either the commission of the crime charged, or the commission of no crime, the trial court is not required to charge the jury on an included offense.
Martin v. State,
3. Bellamy complains on appeal of the admission into evidence of two post-mortem photographs of Carney, one showing her face, including the entrance wound, and the other showing her legs with blood smears and handprints. Contrary to Bellamy’s argument, the photograph of Carney’s face was relevant to the issue of cause of death, and the photograph of her legs related to the truthfulness of Bellamy’s account of his conduct after the shooting, including whether he dragged or carried Carney. Because the photogrаphs were material and rélevant to issues at trial, they were admissible.
Harris v. State,
4. In a colloquy with the trial court during jury deliberations, the jury foreperson asked whether the counts charging malice murder and felony murder were to be considered in the alternative. In response to a questioning look by the trial court, the prosecuting attorney answered the question, the trial court elaborated upon the answer and sent the jury back to deliberate, and Bellamy objected. On appeal, he contends that the State inappropriately injеcted the subject of punishment into the jury’s deliberations. “It is improper for the court to give any instruction to the jury concerning possible sentences in a felony case before the jury has determined the question of guilt or innocence. [Cits.]”
Ford v. State,
5. Bellamy contends that he was denied a fair trial because thе prosecuting attorney made assertions of fact in the opening state
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ment that could not be or were not established by the evidence. In
Alexander v. State,
6. The trial court сharged the jury on the crimes set forth in the indictment in the order in which they appeared. As to the fourth count, voluntary manslaughter, Bellamy contends the trial court erred in giving a sequential charge in violation of this Court’s holding in
Edge v. State,
Bellamy also argues that the charge denied him a fair trial by requiring the jury to consider voluntary manslaughter as an included offense rather than as а separate count of the indictment. No rationale is offered to support that assertion, and we fail to see how the trial court’s instruction could have had the effect Bellamy ascribes to it. The trial court read the indictment, which contained voluntary manslаughter as one count, and defined the offense. Nowhere in the charge did the trial court suggest that voluntary manslaughter be considered as an included offense of any other offense. Bellamy’s complaints regarding the jury charge are without merit.
7. Bellamy complains оn appeal that the trial court erred in admitting hearsay testimony to the effect that Bellamy had physically abused Carney and had threatened to kill her if she became
*161
pregnant with his child and had an abortion. Assuming that Bellamy is correct that the testimony did not meet the requirements of the “necessity” exception to the hearsay rule (see
Ward v. State,
8. Bellamy’s complaint regarding the sufficiency of proof of his prior conviction of a felony is based on the trial court’s admission of a certified copy of Bellamy’s previous conviction for possession of cocaine. However, Bellamy’s parole officer testified without objection that he was supervising Bellamy’s parole for a possession of cocaine conviction, and Bellamy, in explaining why he had lied to the police, admitted to being a convicted felon. Thus, pretermitting any problems with the form of the certified copy, Bellamy’s complaint is without merit because his parole officer’s testimony, in the absence of a best evidence objection, was evidence of a prior felony conviction (see
McIntyre v. State,
9. Bellamy’s assertion that the trial court erred in admitting evidence of a similar transaction is based on his claim that the previous crime was not sufficiently similar.
The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such, evidence “may be admitted if it ‘ “is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character.” ’ ” [Cit.]
Maggard v. State,
10. Contending that trial counsel should have challenged a juror for cause, Bellamy contends he was denied effectivе assistance of counsel. The record shows that an attorney other than trial counsel was appointed to represent Bellamy in post-conviction matters. That counsel raised in the motion for new trial several allegations of ineffectiveness by trial сounsel, but not the claim Bellamy, now acting pro se, seeks to assert on appeal. All contentions of ineffectiveness not raised on motion for new trial by counsel appointed to represent Bellamy after conviction are waived.
Spear v. State,
11. As to two of thе three portions of the prosecuting attorney’s closing argument which Bellamy contends were improper, no objection was raised at trial, which waives the right to complain on appeal.
Mullins v. State,
Judgment affirmed.
Notes
The crimes were committed on August 20, 1997, and Bellamy was arrested that day. Indicted on November 4, 1997, for malice murder, felony murder (aggravated assault), felony murder (possession of a firearm by a convicted felon), voluntary manslaughter, possession of a firearm during commission of a crime, and possession of a firearm by a convicted felon, Bellamy was found guilty on September 16, 1998, of all charges other than voluntary manslaughter. The trial court sentenced him to life without parole as a recidivist for malice murder, and to two five-year terms, to be served consecutively, for the firearm possession offenses. The felony murder convictions were vacated by operation of law, though the sentence form in the record incorrectly shows acquittal on the felony murder counts. Bellamy’s motion for new trial, filed September 30, 1998, and amended January 20, 1999, was denied by an order filed June 3, 1999. Pursuant to a notice of appeal filed June 15, 1999, the appeal was docketed in this Court on August 9, 1999, and was submitted for decision on the briefs.