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Final Copy 288 Ga. 771

S11A0257. JOHNSON v. THE STATE.

THOMPSON, Justice. A jury found appellant Ricky Johnson guilty of malice murder, two counts of felony murder, armed robbery, two counts of aggravated assault, possession of a knife during the commission of a crime, two counts of financial transaction card fraud and recidivism in connection with the stabbing death of George Ponder.1 Johnson appeals from the trial court's denial of his motion for new trial, challenging the sufficiency of the evidence and arguing that the trial court erred by admitting into evidence inadmissible hearsay testimony. For the reasons that follow, we affirm in part and reverse

The victim was last seen alive on April 27, 2007, and his body was discovered in the afternoon of April 28, 2007. On June 25, 2008, a Dougherty County grand jury returned a true bill of indictment against Johnson. Trial was commenced on September 15, 2008, and concluded on September 17, 2008, with the jury's return of guilty verdicts on all counts. Johnson was sentenced to life imprisonment on the malice murder count, life imprisonment without the possibility of parole for armed robbery, five years concurrent imprisonment on the possession charge, and three years concurrent imprisonment for each of the financial card fraud charges. The felony murder and aggravated assault charges were vacated as a matter of law and fact. See Sims v. State, 278 Ga. 587 (2) (604 SE2d 799) (2004). A motion for new trial was filed on September 23, 2008, amended on February 16, 2010, and denied on September 23, 2010. Johnson filed his notice of appeal on September 24, 2010. The appeal was docketed in this Court for the January 2011 term and submitted for decision on the briefs.

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in part. The jury was authorized to find that on the evening of April 27, 2007, Johnson was at the victim's home, where he asked a neighbor if she had seen the victim. Johnson was the victim's step-nephew. Johnson commented to the neighbor that he was worried about the victim because he was in possession of or recently had received a sum of money. The victim arrived a few minutes later and Johnson, the victim, and another man and woman who arrived with the victim went inside. The victim was discovered the next afternoon on the floor of his home. His throat had been cut, and there were wounds on his body indicating there may have been a struggle. All doors to the victim's home were locked; there was no sign of forced entry. The victim's cell phone was found on the table near his body. Evidence showed Johnson used the victim's cell phone on April 28 at 3:50 a.m., 4:57 a.m., 9:02 a.m., and 11:30 a.m. to call a friend, offering to sell certain items. He also called his mother during this same time period. Video cameras showed Johnson at multiple ATMs on the evening of April 27 making withdrawals with the victim's debit card. The coroner calculated the victim died sometime between 1:30 p.m. on the 27th and 7:30 a.m. on the 28th.
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Several days after the crimes, police went to Johnson's apartment where he lived with his mother and stepfather (the victim's brother, Clifford) to bring him in for questioning. As one officer knocked on the front door, an officer standing outside the rear of the apartment saw Johnson moving the blinds and reaching to open the window. The officer drew his gun and told Johnson not to do it. After entering the apartment, officers told Johnson they needed to speak with him and followed him back to a bedroom where he could get dressed. Johnson put on a shirt and pants, then reached for a pair of white tennis shoes, looked at them, and set them down. Johnson then put on a different pair of tennis shoes and went with police. Police returned to the apartment with a search warrant, where they recovered the white tennis shoes. Testing of blood samples taken from the shoes determined the samples matched the victim's DNA. Johnson gave several contradictory statements about where he was on the night of the murder; he admitted, however, that he used the victim's debit card for those transactions for which police had videotape evidence. 1. Johnson contends the circumstantial evidence presented by the State was insufficient to authorize his conviction because the evidence did not
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exclude every reasonable hypothesis save that of his guilt. See OCGA

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