SOLOMON v. The STATE.
-- September 23, 2013
Robert L. Wadkins, Victoria Lynn Novak, Office of the Public Defender, Columbus, GA, for Solomon.Patricia B. Attaway Burton, Senior A.A.G, Paula Khristian Smith, Senior A.A.G., Samuel S. Olens, A.G., Katherine Lee Iannuzzi, A.A.G., Department of Law, Atlanta, GA, Larae Dixon Moore, A.D.A., Office of the District Attorney, Julia Anne Fessenden Slater, D.A., Chattahoochee Judicial Circuit District Attorney's Office, Columbus, GA, for the State.
Appellant Andrew Solomon was convicted of murder and other crimes in connection with the shooting death of Levy Daniel.1 The only issue that Appellant seeks to raise on appeal is procedurally defaulted, and we affirm his convictions for malice murder and possession of a firearm during the commission of a crime. However, we vacate his conviction and sentence for aggravated assault, because the conviction for that offense merged with his murder conviction.
1. The evidence at trial, viewed in the light most favorable to the verdict, showed the following. Shortly before 10:00 p.m. on September 3, 2010, Daniel saw Appellant as Daniel was walking around an apartment complex with three friends (one of whom was Jarvis Bell). Daniel and Appellant had an altercation during which Daniel pulled a gun on Appellant. Daniel apologized and put the gun back in his pants, but Appellant said “you pulled a gun out on me” and left. Daniel and his friends walked across the apartment complex. A short time later, Appellant approached the group and pointed a gun at Daniel. Daniel pushed the gun up, and it fired into the air. Daniel then tried to run away, but Appellant shot him once in the back, killing him.
This evidence was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Vega v. State, 285 Ga. 32, 33, 673 S.E.2d 223 (2009) (“ ‘It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’ “ (citation omitted)). However, Appellant's initial, non-fatal aggravated assault of Daniel—pointing the gun at him—was followed almost immediately, and without a deliberate interval, by the fatal assault—shooting Daniel as he tried to run away. Under these circumstances, the aggravated assault conviction merged as a matter of fact into the malice murder conviction, and the trial court erred in sentencing Appellant separately for aggravated assault. See Slaughter v. State, 292 Ga. 573, 575, 740 S.E.2d 119 (2013); Ortiz v. State, 291 Ga. 3, 6–7, 727 S.E.2d 103 (2012). Appellant's conviction and sentence for the aggravated assault must therefore be vacated.
2. In his only enumeration of error, Appellant contends that the trial court violated his right to a fair trial during a colloquy, held outside the jury's presence, between the court and a witness called by the State—Daniel's friend Jarvis Bell—who was reluctant to testify. However, Appellant did not object to this colloquy at trial, and he is therefore procedurally barred from raising this issue on appeal. See Charleston v. State, 292 Ga. 678, 681, 743 S.E.2d 1 (2013).
Appellant asserts that he nevertheless is entitled to “plain error” review of the trial court's alleged error, citing State v. Kelly, 290 Ga. 29, 718 S.E.2d 232 (2011). However, Kelly “is inapposite as it stands for the proposition that OCGA § 17–8–58(b) mandates plain error review whenever an appealing party properly asserts error in jury instructions, notwithstanding whether an objection was made at trial.” Scott v. State, 290 Ga. 883, 885, 725 S.E.2d 305 (2012) (emphasis added). And the error alleged by Appellant does not involve either of other two circumstances in which this Court applied plain error review in criminal cases at the time of Appellant's trial. See Durham v. State, 292 Ga. 239, 240, 734 S.E.2d 377 (2012) (explaining that this Court limited plain error review to alleged error in the sentencing phase of a trial resulting in the death penalty and in a trial judge's expression of opinion to the jury in violation of OCGA § 17–8–57, as well as alleged error in jury charges as provided in § 17–8–58(b)).2
Judgment affirmed in part and vacated in part.
All the Justices concur.