Opinion
S92A1514.
DECIDED MARCH 8, 1993.
Murder. Colquitt Superior Court. Before Judge Horkan.
Kirbo McCalley, Thomas L. Kirbo III, for appellant.
H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, Michael J. Bowers, Attorney General, Rachelle L. Strausner, Staff Attorney, for appellee.
Donald Junior Tucker was convicted of felony murder, cruelty to children, and giving a false report of a crime, all in connection with the murder of his two-month-old daughter, Amy Lee Tucker. He was sentenced to life imprisonment for felony murder, 20 years imprisonment for cruelty to children, and 12 months for the false reporting charge. We affirm, but set aside the conviction and sentence for cruelty to children.
The crimes occurred in the late evening and early morning of January 21-25, 1992. The defendant was indicted by the Colquitt County Grand Jury on March 25, 1992. Following a jury trial May 11-12, 1992, the defendant was convicted on all three counts of felony murder, cruelty to children, and giving a false report of a crime, specifically, reporting that his father-in-law had struck the victim in the head, resulting in the victim's death. The defendant's motion for new trial, filed May 27, 1992, and amended June 9, 1992, was denied on June 9, 1992. The defendant filed a timely notice of appeal on July 7, 1992. The court reporter certified the trial transcript on July 12, 1992. The appeal was docketed in this court on September 10, 1992 and submitted for decision without oral argument on October 23, 1992.
1. Having reviewed the evidence in the light most favorable to the jury's determination, we conclude that a rational trier of fact could have found the defendant guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 ( 99 S.C. 2781, 61 L.Ed.2d 560) (1979).
2. We find no merit to the defendant's remaining enumerations of error.
3. The defendant was convicted and sentenced for felony murder, cruelty to children, and giving a false report of a crime. The record reflects the cruelty to children conviction was the underlying felony for the defendant's conviction of felony murder, and, therefore, that felony merged into the felony murder conviction. Accordingly, we vacate the conviction and sentence for cruelty to children. Rodencal v. State, 262 Ga. 686 ( 424 S.E.2d 787) (1993).
Judgment affirmed. Clarke, C. J., Benham, Fletcher, Sears-Collins and Hunstein, JJ., concur.