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Ellery v. State

The surviving victim identified the defendant as one of two men who came into his nephew's home, fatally shot his nephew, shot the surviving victim in the chest, then shot his own penis while trying to put his gun in his pants.

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Appellant Ellery was convicted of felony murder, aggravated assault, and possession of a firearm during the commission of a crime.1 He appeals, asserting the evidence was insufficient to support the verdict. Finding no error, we affirm.

Viewing the evidence in a light to uphold the verdict, as we are bound to do, Moss v. State, 274 Ga. 740, 741 559 SE2d 433 2002, we find the following: Appellant and Brandon Johnson went to the apartment of Dykeith Williams, ostensibly to purchase marijuana. Williams opened the door to let them in and went into the kitchen. Williams’ uncle, Roderick Devance, was in the living room watching television. Johnson and appellant nodded to each other and both of them pulled guns. Johnson went into the kitchen to be with Williams; appellant stayed with Devance in the living room. Johnson and appellant separately ordered Williams and Devance to get on the ground. Devance heard a shot ring out from the kitchen; he grabbed Williams’ gun which was on the sofa and reached for appellant’s gun. At that point, appellant shot Devance in the chest. Then, trying to put his gun in his pants, appellant shot himself in the penis. As Johnson and appellant fled the scene, appellant threw his gun into the hallway and cried out, “I’m shot, I’m shot.”

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