Kevin Todd Hampton appeals his convictions for two counts of malice murder, one count of armed robbery, one count of possession of a silencer, and two counts of possession of a firearm during the commission of a felony, in connection with the deaths of Tommy Anderson and David Shumake. For the reasons that follow, we affirm and remand. 1
On January 23,1996, the bodies of Anderson and Shumake were found in a common grave on property belonging to Mike Haywood. They had been missing for approximately a month.
On the evening of December 17, 1995, Michelle Keiffer, Hampton’s roommate, saw Hampton drive his car into their driveway. He removed something from his trunk and a truck pulled into the driveway. Shortly thereafter, Keiffer heard some gunshots, and Hampton later woke her, told her to keep a lookout while he was in the house, and remarked that “when you shoot something in the head that they do flop like a fish.” He instructed her to follow him while he drove what Keiffer identified as “Tommy’s” truck to Haywood’s property. Hampton put a handgun and either a rifle or shotgun in a garage on the property. Hampton told Keiffer to get her boyfriend Graves and tell him “they had a package to get rid of.” Keiffer returned to her house, found Graves, and told him Hampton wanted him at Haywood’s.
*285 Hampton admitted to Graves that he had murdered Anderson. They moved Anderson’s body to the bed of a pickup truck and covered it with a tarp. They then went to Anderson’s motel room and searched it. The next day, Hampton and Graves put Anderson’s body in a shallow grave on Haywood’s property, poured gasoline on it, burned it for approximately 20-30 minutes, and covered it.
On the evening of December 23, 1995, Hampton and Graves were at Haywood’s home with several others. Hampton spoke with Shumake and Haywood in Haywood’s bedroom; Hampton had previously told Graves that he wanted to kill Shumake. Hampton asked Haywood where Haywood’s pistol was; Hampton had made a silencer for the weapon. Hampton demonstrated the silencer’s effectiveness to Shumake by firing the pistol into a telephone book. While Haywood was looking in another direction, he heard two muffled shots. He turned around and saw Shumake collapsed on Hampton with blood running down Shumake’s face. Hampton then turned to Haywood, who was confined to a wheelchair, and asked: “Everything okay? Got a problem?” Haywood said no. Hampton recruited Graves to help him get rid of Shumake’s body and he and Graves put the body in a long, metal box. The next day, Graves covered the body with lime and, using a backhoe, Hampton and Graves buried the box with the body inside in the same grave as Tommy Anderson’s body.
Later, Keiffer told Hampton that she thought Graves was scared, and Hampton stated that he was not sure that he could trust them. Before he was arrested, Hampton told Keiffer that it was not her fault or Graves’s fault, and that the police would be looking for him because he was “the one that shot them.”
When recovered, both bodies were badly decomposed. Anderson’s remains showed skeletal fractures that occurred after death and clotted blood in the larynx and throat, indicating traumatic injury to the neck, which could have been caused by a bullet; no bullet was found in Anderson’s body and the skull did not appear to have been penetrated before death. A .22 caliber bullet shot from Haywood’s pistol was found inside Shumake’s cranial cavity.
1. Hampton contends that the evidence is insufficient to support the convictions. He urges that the testimony of Haywood and Graves cannot be credited because they were as likely to be involved in the crimes as he, and that some of their testimony was inconsistent with the physical evidence, and inconsistent with their prior statements. However, resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court.
Berry v. State,
*286
Hampton also contends that the evidence required a directed verdict on armed robbery, because it was not shown whether the use of the pistol occurred before Hampton took Anderson’s truck, or after. See
Miles v. State,
2. Hampton contends that the trial court should have ensured that opening statements and closing arguments were recorded. However, there is no requirement that the court take such action, see OCGA § 17-8-5 (a), and it does not appear that Hampton ever requested that the reporter record the statements and arguments.
3. There is no fatal variance between the evidence and the allegations of the indictment that Anderson was murdered “with a firearm” and was the victim of armed robbery. While the state of the body prevented any conclusive medical evidence about the cause of death, Keiffer’s testimony concerning gunshots, as well as Hampton’s own statements to her and Graves, was evidence that the crimes were committed as alleged in the indictment; Hampton even showed Graves where on Anderson’s body the bullet entered. See
Battles v. State,
4. The State asked witness Deese: “Did anybody else ask you to get rid of the truck?” Hampton objected that the question called for hearsay, and the court ruled that, under authority of OCGA § 24-3-2, the question was permissible because it sought to explain Deese’s conduct of taking parts off Anderson’s truck and removing them from Haywood’s property. Deese had already testified that Hampton himself asked him to get rid of the truck and its parts.
In
Momon v. State,
*287
Further, if there was any error in permitting the question, it was harmless. In response, Deese testified that Haywood had stated that he was afraid Hampton would do something to Haywood’s stepchildren “if anything come [sic] out of this.” Hampton did not object to the answer in any way, and it is highly probable that any error in admitting the response did not contribute to the verdict and was, therefore, harmless. See
Brinson v. State,
5. Hampton contends that the issue of prosecutorial misconduct should be remanded for a factual hearing. But Hampton did not raise any question of prosecutorial misconduct below and has waived appellate review of this issue. See
Miller v. State,
6. The jury was instructed that
for an armed robbery to take place it is not necessary for the victim to be conscious or even alive at the time of the theft. Where evidence is sufficient to show that a theft was completed against the victim, a conviction for armed robbery is authorized regardless of where [sic] the intent to commit the theft arose.
The charge was clearly concerned with when in time the intent to commit the theft arose in relation to the taking, not where Hampton might have been when he formed the intent. Viewing the charge as a whole, we conclude that the court’s slip of the tongue constituted harmless error. See
Willingham v. State,
7. The trial judge charged the jury: ‘You will determine both the law and the facts in this case.” While this language was formerly in the Suggested Pattern Jury Instructions, it has since been replaced. See
Dasher v. State,
8. The trial court also instructed the jury that direct evidence “is the testimony given by a witness who has seen, or who has heard the facts to which the witness testifies. It includes exhibits admitted into
*288
evidence during the trial. It is that evidence which points immediately to the question at issue.” Such an instruction has been held not to be erroneous.
Roberson v. State,
*288
9. After deliberations began, the jury informed the court that it was not close to reaching a unanimous verdict and the foreman stated: “We are exhausted, mentally exhausted.” The court then gave an
Allen
charge
(Allen v. United States,
Hampton did not move for a mistrial or object to the court’s
Allen
charge. There was no indication from the jury that it was hopelessly deadlocked and the court made it clear that if no verdicts were reached soon, “other arrangements” and “the next course of action” would be addressed. The length of deliberation was not excessive; the transcript does not reveal the exact length, but evidence went to the jury at 4:33 p.m. and the verdicts were rendered the same day. Under these circumstances, there was no abuse of the trial court’s discretion in allowing the jury to further consider the case.
Clifford v. State,
10. Hampton raises in this Court, for the first time, a claim of ineffective assistance of trial counsel. He was represented by the same counsel at trial and on the motion for new trial. Thus, it must be concluded that this issue is being raised at the first practicable moment. See
Ryan v. Thomas,
Judgments affirmed and case remanded.
Notes
The crimes occurred on December 17 and 23, 1995. On October 7, 1996, a Carroll County grand jury indicted Hampton on two counts of malice murder, two counts of felony murder while in the commission of aggravated assault, one count of felony murder while committing the felony of possession of a silencer, one count of armed robbery, one count of possession of a silencer, and two counts of possession of a firearm during the commission of a felony. He was tried November 11-15, 1996, and found not guilty on the felony murder counts, and guilty on all other counts. On November 15, 1996, he was sentenced to consecutive terms of life in prison on the two malice murder counts, twenty years in prison for armed robbery to be served consecutively to the second life term, five years in prison for possession of a silencer, to be served concurrently with the armed robbery sentence, and two sentences of five years in prison on the two counts of possession of a firearm during the commission of a felony, to be served consecutively with each other, and consecutively to the armed robbery sentence. He moved for a new trial on November 26, 1996, and amended the motion on April 2, 1999. The motion was denied on April 26, 1999, and Hampton filed a notice of appeal on April 28, 1999. His appeal was docketed in this Court on June 21, 1999, and submitted for decision on August 15, 1999.