BENHAM, Justice.
Following a jury trial, appellant Ronnie Lee Berrian was found guilty of malice murder and other offenses arising out of the shooting death of Russell Boyd.
Scott was an eyewitness to these events, and he testified and confirmed that appellant and the victim had engaged in an argument. But Scott's testimony materially differed from that of the appellant. According to Scott, even after the argument commenced, the victim continued to help Scott, who was in a wheelchair, down the steps of the appellant's house so he could enter the victim's car. According to Scott, the victim had arrived at appellant's residence in order to transport Scott to a doctor's appointment. After Scott and the victim had reached the front yard of the residence, the victim challenged appellant about what he had in his pocket, in response to which appellant displayed a gun. The victim then declared he would "call 911." According to Scott, at that point appellant ran into the front yard and attempted to fire the first shot, but the gun misfired. The victim started to run down the street and, after appellant went back into the house to retrieve another gun, appellant ran out of the house and down the street after the victim. Scott testified that the victim stopped in the middle of the street and threw his hands up, after which appellant walked up and shot the victim in the chest. He did not see any weapon in the victim's hands, only a cell phone. According to Scott's testimony, the victim was not threatening the appellant. This eyewitness account was supported by physical evidence, such as the fact that two pocket knives were found in the victim's pockets, but the blades were not open. No other weapons were found. Appellant was arrested several hours later after he fled the scene of the crime in an automobile.
1. Viewed in a light most favorable to the verdict, the evidence was sufficient to authorize the jury to find appellant guilty of malice murder and the other crimes for which he was convicted beyond a reasonable doubt, in satisfaction of the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Although appellant offered a version of events that conflicted with the testimony of eyewitness Scott, a jury is entitled to reject a defendant's version of events, and may judge his credibility and weigh his testimony against other evidence. See Daniels v. State, 280 Ga. 349, 350(1), 628 S.E.2d 110 (2006). Furthermore, here the other evidence consisted not only of eyewitness testimony but also physical evidence regarding the fact that no knife was found, other than two unopen pocket knives found in the victim's pockets. Given the medical examiner's testimony that the
2. During the charge conference, appellant's trial counsel requested a jury instruction on mutual combat, the trial court denied the request, and appellant's counsel objected to the trial court's ruling. Although trial counsel raised no objection to the trial court's failure to charge on mutual combat after the instructions were delivered, appellant asserts the trial court's failure to charge constitutes plain error that merits appellate review pursuant to OCGA § 17-8-58(b) and State v. Kelly, 290 Ga. 29, 31(1), 718 S.E.2d 232 (2011).
A finding that a defendant was engaged in mutual combat at the time the victim was killed may authorize the jury to find the defendant guilty of voluntary manslaughter and not malice murder. See Sanders v. State, 283 Ga. 372, 375(2)(c), 659 S.E.2d 376 (2008). Citing Carreker v. State,
Appellant's own testimony, however, does not support a finding of mutual combat. From the evidence, it would be reasonable for a jury to conclude the altercation started with the appellant and the victim verbally taunting each other. According to appellant, the situation escalated into a physical assault when the victim threatened appellant by coming at him with a knife and cornering him on the porch. But appellant's testimony that he responded by going inside to retrieve a gun does not support a finding that the two men engaged in mutual combat. Instead, appellant described a scene wherein, by the time he reappeared at the door of the house with his gun in his pocket, the victim had stepped off the porch into the front yard with witness Scott. Appellant testified he stepped into the yard to hand Scott a cigarette lighter at Scott's request, not to pursue a fight with the victim. And when the victim started coming at him again, appellant backed away and attempted to flee. According to appellant, only when the victim continued to come at him did appellant attempt to fire his gun, eventually succeeding in doing so after the victim, a considerably older man, chased him out into the street.
Mathis v. State, 196 Ga. 288, 291(1), 26 S.E.2d 606 (1943); see also Weatherby v. State, 213 Ga. 188, 193(4), 97 S.E.2d 698 (1957) (where the defendant's testimony would have been sufficient to prove he killed the victim in self-defense and show a case of justifiable homicide, a voluntary manslaughter charge based on mutual combat "is neither required nor authorized"). The scenario described by appellant supports an instruction on self-defense, which the trial court gave, but not a mutual combat charge. Consequently, we reject appellant's assertion that he is entitled to a new trial because the trial court erred by failing to give a mutual combat charge to the jury.
Judgment affirmed.
All the Justices concur.