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Final Copy 288 Ga. 843 S10A1830. HERBERT v. THE STATE. NAHMIAS, Justice. Jermarae Herbert appeals his 2008 convictions for felony murder and other crimes in connection with the shooting death of Perry Phillips. We affirm.1 1. The evidence at trial, viewed in the light most favorable to the verdict,

showed the following. On February 17, 2006, Herbert and his co-defendant, Michael McLean, drove from North Carolina with a man identified only as "Slim" and a woman to visit Treimain Thomas and Torrance McMillian in Georgia.2 They purchased marijuana from the victim at a gas station in Clayton County during the early morning hours of February 18 and then spent the night at Thomas and McMillian's apartment. Later that morning, Herbert and McLean were sitting around the breakfast table with Slim discussing how much they wanted more marijuana. McLean borrowed Thomas's cell phone and arranged to make another drug buy from the victim. After McLean hung up, the discussion turned to the idea of stealing the marijuana and whatever cash the

The victim was killed on February 18, 2006. Herbert was indicted in Clayton County on May 16, 2007, for malice murder, felony murder predicated on armed robbery, armed robbery, and aggravated assault, and a warrant was issued for his arrest. On June 13, 2008, at the conclusion of a five-day trial, the jury acquitted Herbert of malice murder but convicted him of the remaining charges. The armed robbery and aggravated assault convictions merged into the felony murder conviction, and the trial court sentenced Herbert to life in prison. Herbert filed a motion for new trial on June 16, 2008, which was amended on November 10, 2008, and denied on June 17, 2010. Herbert filed a timely notice of appeal to the Court of Appeals, which properly transferred the case to this Court on July 19, 2010. The case was docketed in this Court for the September 2010 Term and submitted for decision on the briefs. Thomas and McMillian were indicted with Herbert and McLean, but the charges were later dead docketed, and they both testified for the State at trial. Slim has never been identified.
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victim had on him. Before leaving the apartment, McLean borrowed Thomas's 9mm handgun and tucked it into his waistband. Herbert then drove his Ford Expedition back to the gas station, with Slim in the front passenger seat and McLean in the back seat. When they arrived, the victim got into the back seat with McLean and pulled out a bag with marijuana in it. McLean then drew the gun from his waistband and shot the victim once in the abdomen, fatally wounding him. Herbert immediately began to drive away, but he stopped nearby to allow McLean to push the victim's body out of the vehicle. The men returned to the apartment and told Thomas and McMillian what had happened. Herbert said that McLean was the shooter. Thomas and McMillian said that they could no longer stay at the apartment, and the men decided to go back to North Carolina. Along the way, they threw the murder weapon out the window; it was never recovered. A couple days later, Herbert called McMillian and offered to pay Thomas $200 for his gun. The victim's body was found near the gas station later that day. It had been raining, and the police noticed a vehicle floor mat at the scene that was unexpectedly dry in comparison to the surrounding area. The police also recovered the victim's cell phone, which led them to Thomas and McMillian because of the call McLean had made from Thomas's cell phone to arrange the drug deal with the victim. Thomas and McMillian gave statements implicating Herbert and McLean in the murder. Officers then traveled to North Carolina to interview Herbert and McLean. Herbert admitted driving the Ford Expedition to the crime scene but denied any participation in the murder and denied that he went with McLean and Slim to the gas station with the intention of robbing the victim. McLean initially denied going to

Georgia that weekend and said that he knew nothing about the victim's death. Later, however, McLean admitted being present and pushing the victim out of the vehicle but claimed that Slim was the shooter. Herbert's Ford Expedition was impounded. It was missing a rear floor mat, and the serial number on the remaining floor mat was later matched to the serial number on the floor mat found at the crime scene. Herbert contends that his conviction cannot stand because the only evidence from which the jury could conclude that he was a party to the crimes charged was the testimony of alleged accomplices Thomas and McMillian. Herbert relies on OCGA

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