On April 7, 2006, Appellant Yonlenon DeLeon fatally shot the victim Servando-Duron Nieto and wounded Almanida Murilla in a restaurant in Winder, Georgia Barrow County.1 The evidence at trial showed that a week prior to the shooting, the victim and appellant’s best friend had a physical altercation and appellant’s friend confided to appellant that he wanted appellant’s help in obtaining revenge against Nieto. Appellant admitted that, on the night of the shooting, he went to the restaurant with a loaded gun. Witnesses saw appellant shoot at the victim and then flee the restaurant. The victim, who was unarmed, was shot four times and died from his gunshot wounds, including a wound from a bullet that pierced his lung and aorta. An uninvolved restaurant patron Almanida Murilla was also wounded by the bullets shot by appellant, but she survived her injuries. Appellant confided to his employer and to his fiancee that he shot someone using a gun owned by the employer. Appellant’s employer testified that appellant told him that he had thrown the gun away. Appellant then fled the country, but was arrested upon his return to Georgia on July 22, 2006. 1. The evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of felony murder, reckless conduct, aggravated battery, tampering with evidence, and possession of a firearm. Jackson v. Virginia , 443 U.S. 307 99 SC 2781, 61 LE2d 560 1979.
Appellant argues that the evidence was insufficient to convict him of felony tampering with evidence. We conclude that the evidence was sufficient to convict appellant of tampering with evidence, but that the trial court erred when it sentenced appellant for felony tampering with evidence. Inasmuch as the evidence showed appellant threw the murder weapon away thereby tampering with evidence in his own case and not that of another, he could not be convicted of a felony, but only convicted of a misdemeanor. White v. State , 287 Ga. 713 1 d 699 SE2d 291 2010. Accordingly, it was erroneous for the trial court to impose a five-year probated sentence for the tampering with evidence conviction. The sentence for felony tampering with evidence is vacated and the case is remanded for re-sentencing consistent with this opinion.
