Thyrell Depree Donaldson was tried by a Clayton County jury and convicted of felony murder, aggravated assault, and two counts of unlawful possession of a firearm during the commission of a felony, all
1. Viewed in the light most favorable to the verdict, the evidence at trial shows the following. On the evening of June 14, 2015, White, along with his cousin and another friend, walked to the Foxhall apartment complex in Forest Park to buy marijuana. Upon arrival, the three friends congregated near the laundry room — located near the apartment building where Donaldson lived — and there they met another friend from high school. White then left the group and went up the stairs to Donaldson’s apartment, where he stood outside of Donaldson’s front door and briefly spoke to Donaldson through the door about purchasing marijuana. White then came back down the stairs and joined the group again.
A short time later, White went back up to Donaldson’s apartment and again spoke to Donaldson outside the front door. According to an eyewitness, White was sitting on the top of the stairs outside the apartment when Donaldson came out and fired two shots at White from behind. One of the bullets missed, but the other hit White in the
Donaldson testified in his own defense and also presented the testimony of his girlfriend, Crystal Sutton, who was in the apartment with Donaldson and their baby at the time of the incident. Donaldson testified, essentially, that he kept a gun for protection and shot White after White and another man forcibly entered Donaldson’s apartment and punched Donaldson in the face. Donaldson explained that he threw away the gun after the incident because he saw the police approaching and was afraid they might shoot him. Sutton largely corroborated Donaldson’s testimony
2. Donaldson argues on appeal that the evidence is insufficient to sustain his convictions because it shows that he lawfully possessed a weapon and shot White in defense of himself, his family, and his home. But as we have explained time and again, “it is the role of the jury to resolve conflicts in the evidence and to determine the credibility of witnesses, and the resolution of such conflicts adversely to the defendant does not render the evidence insufficient.” Graham v. State,
3. Donaldson next argues that the trial court erroneously failed to exercise its discretion as the thirteenth juror and grant him a new trial under OCGA §§ 5-5-20 and 5-5-21. But the record belies this assertion. In its order denying Donaldson’s motion for a new trial, the
Having performed this duty to sit as a thirteenth juror and having weighed the evidence and considered the credibility of the witnesses, the Court finds that the verdicts are amply supported by the evidence, not contrary to the evidence, not strongly and decidedly against the weight of the evidence and not contrary to the principles of justice and equity.
The trial court “did not state the incorrect standard in its order, and nothing in the record indicates that the court was unaware of its responsibility.” Allen v. State,
4. Although Donaldson does not raise the issue on appeal, we notice two merger errors in his sentencing. See Hulett v. State,
In a similar vein, the trial court also erred when it failed to merge Donaldson’s two convictions on Counts 5 and 6 for possession of a firearm during the commission of a felony See Abdullah v. State,
Judgment affirmed in part and vacated in part. All the Justices concur.
Notes
The crimes were committed on June 14, 2015. On September 30, 2015, a Clayton County grand jury indicted Donaldson for the malice murder of White (Count 1); felony murder predicated on aggravated assault (Count 2); aggravated assault based on “shooting [White] in the back” (Count 3); aggravated assault based on “shooting at [White]” (Count 4); possession of a firearm during the commission of a felony (murder) (Count 5); and possession of a firearm during the commission of a felony (aggravated assault) (Count 6). Donaldson stood trial from February 22 through February 25, 2016, and he was acquitted of malice murder but found guilty on all other counts. The trial court sentenced Donaldson to life imprisonment for felony murder; a twenty-year consecutive term for aggravated assault in Count 4; a consecutive five-year term for possession of a firearm during the commission of murder; and a concurrent five-year term for possession of a firearm during the commission of aggravated assault. The trial court merged the aggravated assault in Count 3 with the felony murder. Donaldson moved for a new trial on March 4, 2016, and he amended the motion on June 23, 2016. The trial court denied the motion on October 25, 2016. Donaldson timely appealed, and this case was docketed to the August 2017 term of this Court and submitted for a decision on the briefs.
Section 5-5-20 allows a trial judge to grant a new trial “[i]n any case when the verdict of a jury is found contrary to evidence and the principles of justice and equity.” OCGA § 5-5-20. Section 5-5-21 allows the trial judge to “exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence infavor of the finding.” OCGA § 5-5-21. Grounds for a new trial under these Code sections are commonly known as the “general grounds” and “require the trial judge to exercise a broad discretion to sit as a ‘thirteenth juror.’ ” White v. State,
“If a defendant is convicted of felony murder as well as the underlying felony, the underlying felony merges into the felony murder conviction.” Carter v. State,