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Final Copy 286 Ga. 478 S09A1527. LUCKY v. THE STATE. Benham, Justice. Appellant Rico Antonio Lucky was convicted of and sentenced for felony murder with armed robbery as the underlying felony, assault with a deadly weapon, and possession of a firearm during the commission of a crime. On appeal, he challenges the sufficiency of the evidence supporting his convictions and takes issue with the trial court's decisions with regard to the guilty verdicts on which sentence was imposed.1 On July 28, 2004, Edward Rivers, Jr., was fatally shot after answering a

The crimes occurred on July 28, 2004, and the Clayton County grand jury returned a true bill of indictment against appellant and his co-defendant, DeJuan Curinton, on July 20, 2005. The indictment charged the two men with malice murder, felony murder/aggravated assault, felony murder/armed robbery, aggravated assault with intent to rob, aggravated assault with a deadly weapon, armed robbery, and possession of a weapon during the commission of a crime. The two men were tried together in a trial that commenced December 5, 2006, and concluded with the jury's return of guilty verdicts on all counts on December 8. The trial court sentenced appellant on December 11, 2006, to life imprisonment on the felony murder/armed robbery conviction, imposed a concurrent 20-year sentence for the aggravated assault conviction, and imposed a five-year consecutive sentence for the firearm conviction. The trial court determined that the remaining convictions merged into the felony murder/armed robbery conviction. Appellant's trial counsel filed a timely motion for new trial on December 11, 2006, as did appellate counsel on January 9, 2007. On July 13, 2007, appellate counsel filed a motion to withdraw the appellant's motion for new trial. New appellate counsel was appointed in February 2008 and filed a motion for out-of-time appeal, which was denied. On April 9, 2009, a second motion for out-of-time appeal was granted by the trial court upon finding that appellant's right to direct appeal had been frustrated by his former appellate counsel. A notice of appeal was filed timely on April 15, 2009, and the case was docketed in this Court on May 29, 2009. It was submitted for decision on the briefs. Appellant's motion to dismiss the District Attorney's appellate brief because it was not timely filed is denied.

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knock on the door of the Clayton County apartment he shared with a friend. The friend, in the bathroom when the victim was shot, heard two people rummaging through the apartment after the shooting and discovered his and the victim's wallets were missing after the two intruders left. Neighbors told police they saw two men running from the building where the victim's apartment was located to a green Volkswagen Jetta with damage on one side. Appellant Rico Lucky, the owner of a damaged green Jetta, contacted Clayton County police and stated he had visited the apartment complex where the victim lived on the day of the shooting. He also told police that a passenger in his car, DeJuan Curinton,2 had told appellant after the shooting that he had shot the victim. Another passenger in Lucky's car testified that he, appellant, and a third man known only as Link had gone to the apartment complex to visit Curinton and to purchase marijuana through him. The passenger also testified that Link and Curinton had gone to the victim's apartment and returned to the car where appellant and the passenger awaited them. A resident of the apartment complex testified that two days before the victim was shot, appellant had admonished the victim for being involved with Curinton's girlfriend; that the night before the shooting, the victim and Curinton had talked in the complex's parking lot and the witness heard the girlfriend's name mentioned; and that, just before the victim was shot, appellant and Curinton talked privately for about five minutes. Several weeks after Curinton was arrested and charged with murder,
Appellant and DeJuan Curinton were named in the same indictment and were tried together in the Superior Court of Clayton County. The judgment of conviction entered against Curinton was affirmed by this Court in Curinton v. State, 283 Ga. 226 (657 SE2d 824) (2008). 2
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appellant was in Sarasota County, Florida, where he flagged down a deputy sheriff and told him he wanted to talk with someone about a Georgia homicide. Appellant told a Sarasota County detective that he had caused the victim's homicide by exploiting a rift between Curinton and the victim, and had used Curinton to do his "dirty work." 1. Appellant maintains the evidence was insufficient to support his convictions because the State presented only the uncorroborated testimony of his co-defendant, which is not sufficient to support a felony conviction (OCGA

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