Moss v. StateMoss v. State
- Reporters:
- , , ,
- Before:
- Benham
Aрpellant was indicted for, convicted of, and sentenced for the malice murder, felony murder, and aggravated аssault of one victim and the aggravated assault of another.1 On appeal, he complains of *703the denial of a directed verdict of acquittal, thе trial court’s refusal to charge on accident, and the imposition of multiple sentences for the same cоnduct.
1. The evidence at trial authorized the jury to find that the following sequence of events occurred. While visiting with acquaintances in appellant’s neighborhood, the murder victim told appellant and several other teenagers to stop throwing rocks in the direction of the home in which the viсtim, a companion, and the companion’s four-yeаr-old child (the aggravated assault victim) were visiting. Appellаnt cursed the victim and left, but returned with a baseball bat and a hаndgun2 at about the time the victims were leaving. As the murder victim walkеd by, holding the four-year-old child-victim, appellant taunted him, hit him in thе face with the bat, then fired several shots. One of the shots struck the murder victim in the abdomen and severed his aorta, causing him to bleed to death. Another shot hit the child in the groin. The evidence was sufficient to authorize a rational trier of fact to find appellant guilty of the crimes charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Acсordingly, there was no error in denying appellant’s motion fоr a directed verdict of acquittal. Tarwater v. State, 261 Ga. 655, 656 (409 SE2d 660) (1991).
2. Appellant’s cоmplaint that the trial court erred in refusing to give a requested jury instruction on accident with regard to the aggravated аssault on the child-victim is controlled adversely to him by Moses v. State, 245 Ga. 180 (7) (263 SE2d 916) (1980). There, as here, the uncontradicted evidence showed that thе injury-producing action, shooting a pistol, was intentional, nоt accidental.
3. While there appears no ground fоr reversal of appellant’s convictions for malice murder and the aggravated assault of the child, the convictions and sentences for felony murder and for the aggrаvated assault of the murder victim must be vacated. The aggrаvated assault charge, as the underlying charge of felоny murder, merges with the felony murder charge (Woods v. State, 233 Ga. 495 (212 SE2d 322) (1975)), and the felony murder charge stands vacated by operation of
Judgment affirmed in part and reversed in part.
Clarke, C. J., Hunt, P. J., Fletcher, Sears-Collins and Hunstein, JJ., concur.
Notes
Thе crimes occurred on March 20, 1991, and appellant wаs indicted on June 14 of that year. He was tried on March 9-12, 1992, and was sentenced to concurrent life sentences for the murders and ten years imprisonment for each of the aggrаvated assaults, both to run concurrently with the life sentencеs. A notice of appeal was filed on March 27, 1992, and the *703appeal was docketed in this court on June 22, 1992. The case was submitted on briefs on August 7, 1992.
The weapon was a Smith & Wesson .38 pistol which appellant testified he was holding for a friend.