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Final Copy 290 Ga. 768 S11A1903. SMITH v. THE STATE.

MELTON, Justice. Following a jury trial, Lester James Smith, Jr., was found guilty of, among other things, malice murder and attempting to elude a police officer in connection with the shooting death of Joel Andresen during a failed drug deal and a subsequent high-speed chase involving five police officers.1 On appeal

On April 2, 2009, Smith was indicted on one count of malice murder, three counts of felony murder (with possession of a firearm by a convicted felon, aggravated assault, and violation of the Georgia Controlled Substances Act as the underlying offenses), two counts of aggravated assault (one count for assault with a deadly weapon and one count for assault with the intent to rob), two counts of possession of a firearm during the commission of a crime, one count of possession of a firearm by a convicted felon, one count of criminal attempt to commit a violation of the Georgia Controlled Substances Act, and five counts of attempting to elude a police officer. Following a March 22-26, 2010 jury trial, Smith was found guilty on all counts. On March 29, 2010, Smith was sentenced to life imprisonment for malice murder, and, as a recidivist, was sentenced to consecutive five-year terms for possession of a firearm by a convicted felon, the two merged counts of possession of a firearm during the commission of a crime, and each count of attempting to elude a police officer. The felony murder convictions were vacated by operation of law (Malcolm v. State, 263 Ga. 369 (4) (434 SE2d 479) (1993)), and the remaining counts were merged with the malice murder count for sentencing purposes. Smith filed a motion for new trial on April 1, 2010, which he amended on October 6 and 7, 2010. The motion was denied
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Smith contends, primarily, that the trial court erred by: (1) charging the jury that he was not justified in using force if he was attempting to commit a felony; and (2) sentencing him on five separate counts of attempting to elude a police officer. For the reasons that follow, we affirm. 1. Viewed in the light most favorable to the jury's verdict, the evidence reveals that, on June 17, 2008, Andresen and his best friend, Stephanie Newbi, walked to Big John Road for Andresen to sell marijuana to Smith, a convicted felon. Smith drove to the site of the proposed drug deal in a black Acura, and Andresen entered the passenger side of the Acura. The two men drove away and turned onto Powers Ferry Road. Newbi walked home. Later that night, Andresen's body was found in the Powers Ferry Church of Christ parking lot with a fatal gunshot wound to the abdomen. Police were called to the scene, where they retrieved a cell phone and a green nylon bag from the ground near the victim. Police accessed the cell phone and discovered several calls to and from Smith. The next day, police went to Smith's address in search of Smith and his black Acura. After setting up surveillance near the

on November 18, 2010. Smith's timely appeal was docketed in this Court for the September 2011 term and was orally argued on November 8, 2011.
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residence, police observed Smith's black Acura leaving the neighborhood. Police followed the Acura, and, when a marked Cobb County police car arrived and approached the Acura as well, the Acura accelerated, eventually leading five marked police cars on a high-speed chase. At varying points during the chase, three different police vehicles became the lead police cars pursuing the Acura, and the police officers in these vehicles were close enough to maintain visual contact with the vehicle. One of the police vehicles even pulled alongside the Acura for a brief time before the driver of the Acura was able to accelerate and get away from the police car. In any event, all of the marked police vehicles involved in the chase had their police lights and sirens engaged and made direct visual contact with the Acura such that the driver of the Acura had the opportunity to see them during the chase. Nevertheless, with each new police encounter, the Acura driver still refused to end the chase. Eventually, the Acura stopped after it collided with one of the pursuing patrol cars. An officer went to the stopped Acura and pulled the driver, Smith, from the window. The officer also found a handgun in the driver's seat. After waiving his Miranda rights, Smith agreed to talk to police. Smith told police he contacted Andresen to buy marijuana. Smith said Andresen pulled
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a gun during the transaction in the Powers Ferry Church of Christ parking lot, and that the gun discharged as Smith and Andresen struggled over it. The evidence was sufficient to enable a rational trier of fact to find Smith guilty of all the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Indeed, the evidence supported the conclusion that Smith led several police officers on a high-speed chase in an attempt to elude them,2 and the jury was free to reject Smith's version of events relating to the shooting of Andresen and conclude from the evidence that he deliberately shot Andresen while trying to rob him during a proposed drug deal. See, e.g., Robinson v. State, 283 Ga. 229 (1) (657 SE2d 822) (2008). 2. Citing Heard v. State, 261 Ga. 262 (403 SE2d 438) (1991), Smith contends that, although the trial court gave jury charges on self-defense and accident, the trial court erred by further charging the jury that "[a] person is not We note that the jury was specifically charged that each of the separate counts of attempting to elude a police officer related to each of the individual police vehicles involved in the high-speed chase. Thus, in order to find Smith guilty of attempting to elude a police officer with respect to each vehicle, the jury had to find that all of the relevant elements of OCGA

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