A jury found Marco Danyel McIlwain guilty of the felony murder of Jimmy Lee West, four counts of aggravated assault, and two counts of possession of a firearm during the commission of a felony. The trial court entered judgments of conviction on the guilty verdicts and sentenced McIlwain to life imprisonment for the murder, concurrent 20-year terms for the aggravated assault counts, and 5-year terms for the weapons charges to run concurrent with each other but consecutive to the life sentence. A motion for new trial was denied, and McIlwain appeals. 1. Construed most strongly in support of the verdicts, the evidence, including eyewitness testimony, shows that McIlwain and his co-indictees Joseph Smith and Keith Owens were in one vehicle following another vehicle driven by West and also occupied by his fiancee Natalie Owen. McIlwain and Owens fired a shotgun and a handgun several times at West and Ms. Owen, striking West in the head and causing his vehicle to crash. West died six days later as a result of that gunshot wound. One aggravated assault count of the indictment charged McIlwain and his co-indictees with assaulting West with a handgun. Another such count charged the assault of West with a shotgun. The remaining two aggravated assault counts charged the assault of Ms. Owen with a handgun and with a shotgun, respectively. The evidence was sufficient to enable a rational trier of fact to find McIlwain guilty beyond a reasonable doubt of the crimes for which he was convicted, either as the perpetrator or as a party to the crimes. Jackson v. Virginia , 443 U. S. 307 99 SC 2781, 61 LE2d 560 1979. See also Mobley v. State , 264 Ga. 854, 855 1 452 SE2d 500 1995.
However, the underlying felony upon which the felony murder charge was predicated was aggravated assault by shooting West. Thus, one of the separate counts of aggravated assault against West must merge into the felony murder conviction and be vacated. Bolston v. State , 282 Ga. 400, 401 2 651 SE2d 19 2007; Wyman v. State , 278 Ga. 339 1 602 SE2d 619 2004; McClellan v. State , 274 Ga. 819, 821 1 b, fn. 2 561 SE2d 82 2002. Accordingly, the case is remanded for resentencing. McClellan v. State , supra at 820 1 a. We note that it appears to be immaterial which of those two counts will be vacated because it is used to support the felony murder conviction.
