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Final Copy 289 Ga. 34

S10A1719. FOX v. THE STATE. NAHMIAS, Justice. Michael Fox was convicted by a Gwinnett County jury of malice murder, felony murder, and armed robbery stemming from the shooting death of Jerry Ann Elliott.1 On appeal, Fox contends, among other things, that the evidence is insufficient to support his convictions. We conclude that the evidence is sufficient to support his conviction for malice murder but insufficient to support his armed robbery conviction. We see no merit in Fox's other contentions, and we therefore affirm in part and reverse in part. 1. Viewed in the light most favorable to the verdict, the evidence at trial showed that the victim and her husband, James Elliott, sold pine straw for a

The crimes occurred on September 28, 2007. On October 17, 2007, Fox was indicted for malice murder, felony murder, armed robbery, and possession of a firearm by a convicted felon. At a bifurcated trial, the jury found Fox guilty of malice murder, felony murder, and armed robbery on July 21, 2009. The State then agreed to enter a nolle prosequi on the firearm offense. On July 28, the trial court sentenced Fox to consecutive life sentences on the malice murder and armed robbery convictions. The felony murder conviction was vacated as a matter of law. Fox filed a timely motion for new trial, which the trial court denied on February 25, 2010. On March 15, 2010, Fox filed a notice of appeal. The case was docketed to the September 2010 Term of this Court and submitted for decision on the briefs.

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living, required cash payments from most customers, and usually kept $6,000 to $15,000 in cash in a kitchen drawer at their home. Fox knew about the pine straw business and how the money was handled, and Mr. Elliott had seen Fox with a 9mm handgun. On September 27, 2007, the day before the shooting, Mr. Elliott went to check on some property he owned in Toccoa and stayed the night there. He returned home about 5:00 p.m. on September 28. When he pulled into his garage, he noticed that a utility closet door had been "busted open," and when he entered his house, he found his wife dead on the den floor, which adjoins the kitchen. The money for the pine straw business was missing from the kitchen drawer, as was Ms. Elliott's wallet and a cup containing gold dollar coins. Ms. Elliott died from three gunshot wounds to the head, all fired from the same 9mm handgun. Carlos Lopez testified that he drove by the Elliotts' house every day on his way to work. On the day of the shooting, he drove by the house about 9:20 a.m. and noticed a pickup truck in the driveway. He had never before seen that vehicle, which he described as an unusual looking Japanese truck that had "a lot of different colors . . . [and] no front bumper." This description matched an 2

Isuzu pickup truck owned by Fox's girlfriend, Angie Johnson. Lopez later identified Johnson's truck for the police. Angie Johnson testified that, although Fox had lost his leg in a motorcycle accident in 2003, he could drive her truck and had no problem moving around on crutches. The day before the shooting, she saw Fox with a 9mm handgun. On the day of the shooting, when she woke up, her truck and Fox were gone. Fox returned around 11:00 a.m, and when she asked him where he had been, he showed her a jar with change in it and asked her how much money she thought was in it. There was also a duffel bag in the floorboard of the truck. Fox asked her to take the jar and hide it in their house. Fox then told her that they had to go somewhere. They drove to a beer store, where Fox got out of the truck and told Johnson not to "look in that bag or I'll have to kill you." However, after Fox went into the store, Johnson unzipped the bag, opened it, saw Ms. Elliott's wallet, and then zipped the bag closed. After Fox returned, they drove to a subdivision under construction. There, Fox told Johnson to get out of the truck, as he had to get rid of something. Johnson got out and waited while Fox left for three or four minutes. Johnson's truck did not have insurance, and Fox told her they would go and get some. They drove to an insurance 3

agency where Fox gave Johnson $250 in cash to purchase the insurance. After they returned to their home, they were watching the evening news, which broadcast a story about Ms. Elliott's murder. According to Johnson, Fox had a shocked look on his face and said he did not want to talk with anyone. The next morning, the police came to their trailer and spoke with her. She lied, telling them that Fox had borrowed her truck for only five to ten minutes the day before to buy her some cigarettes. Fox later asked Johnson what she had told the police, and when she told him, he said "why did you do that, I told them I didn't go anywhere." For the next five or six days, Fox was scared and would not let Johnson out of his sight, often locking her in the house when he left. Johnson became scared and left Fox to live with her sister on October 8, 2007. She called the police the next day, told them what had happened, and took them to the subdivision where Fox had driven on the day of the crime. The police found the victim's wallet in a sewer drain at the subdivision. (a) Viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above was sufficient for a rational jury to find Fox guilty beyond a reasonable doubt of malice murder. See Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). See also Vega 4

v. State, 285 Ga. 32, 33 (673 SE2d 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)). (b) We reach a different conclusion with regard to the armed robbery conviction. The indictment charged that Fox committed armed robbery in violation of OCGA

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