Appellants Quinton Dasher and Wesley Tyrone Lewis were convicted of the felony murder of Jimmy D. Burke in Toombs County. 1 On appeal, each appellant takes issue with the sufficiency of thе count of the indictment charging them with felony murder and with the sufficiency of the evidence of aggravated assault. Appellant Lewis also contests the admission of evidence of his status as a “drug dealer.”
1. The State presented evidence that the victim cashed his weekly paycheck at 4:12 p.m. the day before he was found dead, and left the bank with over $340. That evеning he took a taxi to a neighborhood in Lyons, Georgia, where he was found dead the next morning and his wallet emptied of cash. From “drag marks” and blood drops, it appeared his body hаd been dragged across a dirt lane *309 from the apartment occupied by appellant Dasher to the site where it was found. The forensic pathologist who performed the autopsy testified the victim had suffered extensive abrasions and bruising about the face and head that “most probably” were the result of having been punched, and the mixture of bruising and scraping еxhibited by the victim’s body was “very characteristic” of having been kicked repeatedly with shod feet. The cause of death was a sub-arachnoid hemorrhage due to a torn vertebrаl artery caused by a blow to the head that turned the head violently. The forensic pathologist testified that kicking the victim would provide the force required to rapidly jerk the head so as to tear the artery at the base of the brain.
A woman testified she and the victim met the evening before his body was found and smoked crack cocaine. The two of them then went to appellant Dasher’s apartment to purchase more crack cocaine and to rent a room where they continued to smoke crack cocaine fоr two to three hours. The witness identified Dasher and Lewis as the two men who came into the rented room and struck the victim several times, causing him to fall on the floor and remain there. The witnеss stated that Dasher dragged the inert victim out of the room and out of his apartment, and that Dasher and Lewis cleaned up the blood in the rented room. Drops of blood found in the roоm were determined to be that of the victim, as was the blood on clothing found in a dumpster near Dasher’s apartment and the drops of blood on one of the shoes Dasher was wearing when he was arrested.
The evidence was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that appellants Dasher and Lewis committed felony murder when they engaged in a felonious aggravated assault of the victim that resulted in his death.
Jackson v. Virginia,
2. Appellants assert they are entitled to a new trial because the indictment on which they were tried purportedly did not sufficiently charge appellants with felony murder. Appellants point out that the felony murder count did not set out the elements of the underlying felony of aggravated assault, the indictment did not contain a separate charge of aggravated assault setting out the essential elements of the crime, and they contend thе indictment’s malice murder count did not allege sufficient facts showing the commission of the underlying felony. See
State v. Grant,
The “contention that the felony murder indictment was deficient because it did not сontain all the essential elements of the underlying crime of aggravated assault is, in essence, a special demurrer seeking greater specificity with regard to the predicаte
*310
felony.”
Stinson v. State,
Appellant Lewis maintains his amended motion for new trial in which he raised this issue was the equivalent of a motion in arrest of judgment, a post-trial means by which a defendant may challenge an indictment as one would do in a general demurrer. See
Lowe v. State,
3. Appellants contend the evidence presented by the State was insufficient to support the jury’s conclusion that appellants committed an aggravated assault on Jimmy Burke. We disagree. The State presented evidence that appellants repeаtedly struck the victim about his face and head, causing him to lose consciousness and eventually die. OCGA § 16-5-21 (a) (2) criminalizes an assault made with the offensive use of any object that “actually does result in serious bodily injury ...” There was evidence that the victim suffered serious bodily injury as the likely result of repeated punches and kicks to his head. The jury was instructed that it was to decide whеther the hands and feet of the defendants constituted weapons likely to cause serious bodily injury, and that the jury could infer the “serious injury-producing character of the instrument in question from the nature and the extent of the injury,” along with all the facts and circumstances.
Appellants maintain they could only be convicted of violating OCGA § 16-5-21 (a) (2) using shod feet as deadly weapons аnd, citing
Williams v. State,
4. During the State’s case-in-chief, a witness described appеllant Lewis as a “drug dealer.” On appeal, Lewis contends admission of the testimony was error since it was impermissible evidence of bad character. See OCGA § 24-2-2. The State maintains appellant Lewis waived appellate review of the issue by failing to object to the testimony when it was introduced at trial; appellant Lewis responds that he preserved his оbjection to the admission of the testimony when he filed a pre-trial motion in limine regarding the admission of evidence that Lewis was a drug dealer. It is true that an appellant’s failure to vоice an objection at the time evidence is proffered during trial does not waive appellate review of the admissibility of the evidence if the appellant challеnged the admissibility of the evidence in a pre-trial motion in limine which the trial court denied.
Bryant v. State,
Judgments affirmed.
Notes
The victim died on March 12, 2005, and appellants were arrested the same day. In December 2005, the Toombs County grand jury returned a true bill of indictment charging appellants with the malice murder, felony murder (aggravated assault), and robbery of the victim. The trial took place November 20-22, 2006, and resulted in appellants’ acquittal of the malice murder and robbery charges and their convictions of the felony murder charge. Appellants were sentenced to life imprisonment on the felony murder conviction on November 22, 2006. Dasher’s motion for new trial, timely filed on December 4, 2006, and amended February 22, 2008, was the subject of a hearing on July 17, 2008, and was denied September 4, 2008. Dasher’s notice of appeal was timely filed September 25, 2008, and the appeal was docketed in this Court on October 21, 2008. Lewis filed a motion for new trial on Decembеr 1, 2006, and filed an amended motion on December 17, 2007. The motion was heard on July 16, 2008, and was denied September 4, 2008. A timely notice of appeal was filed on September 30, 2008. Both appeals were submitted for decision on the briefs.