HUNSTEIN, Chief Justice.
A jury convicted Donald Hugh Gamble, Jr., of the murder of Quamaine Rickman in Richmond County.
1. The evidence presented at trial shows that Richard Owen drove Rickman, his roommate, to see someone about drugs that Rickman had not received during a cocaine buy earlier that evening. Owen parked in front of a white sport utility vehicle with two men standing in the street next to it. He watched through his driver's side mirror as Rickman talked to Gamble. Rickman began walking back to the car with Gamble following him, and they exchanged words. As Rickman opened the passenger side door, Owen heard a shot and saw Gamble moving towards the driver's side of the car with a gun in his hand. Owen next heard glass break and then saw Gamble fire a third shot through the open window on the driver's side. Rickman was hit and died on the way to the hospital. An anonymous informant told police the nickname of the gunman. Owen provided a similar nickname and identified Gamble from a photographic lineup as the gunman. In a subsequent interview, Owen told police that Gamble was a back yard neighbor who had come to the house several times to sell drugs to Rickman. Gamble was arrested two months later in Dade County, Florida, based on an anonymous tip. In processing Owen's car, police found that bullets had entered on the driver's side through the rear wheel well cover and rear vent window. Three cartridge casings and two spent projectiles were found in the street. The medical examiner testified that Rickman died from a bullet that entered his left shoulder and cut his aorta before exiting on his right side, which was consistent with the path of the second bullet shot through the rear window. After reviewing the evidence in the light most favorable to the jury's determination of guilt, we conclude that a
2. In his first challenge to the jury instructions, Gamble contends that the trial court erred in failing to give his requested charge on eyewitness testimony that tracked the language of a proposed jury charge in United States v. Burrous, 934 F.Supp. 525 (E.D.N.Y.1996). Instead, the trial court gave the pattern jury instruction on identification testimony. See Suggested Pattern Jury Instructions: Vol II Criminal Cases § 1.35.10 (4
3. Gamble also challenges the trial court's charge that the jury was "only concerned with the guilt or innocence of the defendant," arguing that the language improperly shifted the burden of persuasion to him. We have previously rejected this argument, concluding that the instruction did not shift the burden of proof to the defense, whether considered alone or as part of the whole charge. See Roberts v. State, 276 Ga. 258(4), 577 S.E.2d 580 (2003).
4. Gamble further contends that the trial court erred when it charged that the jury may consider the intelligence of a witness in assessing the witness's credibility. Since no objection was made to the instruction at trial, we review this contention for plain error. State v. Kelly, 290 Ga. 29(1), 718 S.E.2d 232 (2011); OCGA § 17-8-58(b). Under this standard, we must determine whether there is an error that has not been affirmatively waived, the legal error is clear and obvious, the error affects the defendant's substantial rights, and the error "seriously affects the fairness, integrity or public reputation" of the judicial proceedings. Kelly, 290 Ga. at 33, 718 S.E.2d 232 (Citation and punctuation omitted). We have recently held that it is not reversible error to include intelligence as a factor in the jury charge on witness credibility. Howard v. State, 288 Ga. 741(6), 707 S.E.2d 80 (2011); cf. Walker v. State, 305 Ga.App. 607(7), 699 S.E.2d 902 (2010) (although charge is confusing and should not be given, it is not so harmful as to require reversal). Therefore, we conclude that Gamble has failed to show plain error.
5. Gamble's final contention is that the trial court gave an Allen charge that was coercive due to the language stating that it was the jury's duty to reach a verdict and the length of jury deliberations before and after the charge was given. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). After the jury had deliberated for approximately two-and-a-half hours, it asked the trial court: "What do we do in the case of a hung jury?" In response, the trial court asked the jury whether any juror was refusing to deliberate and whether it was likely that further deliberations would result in a unanimous verdict. The jury answered "no" to each question. The State requested that the trial court give an Allen charge on the desirability of reaching a verdict, Gamble did not object, and the trial court announced that it would give the charge the following morning. Before the jury reconvened, the State asked the court to inquire on the nature of the jurors' split. Gamble's attorney objected to the additional question, stating that the Allen charge was appropriate and requesting that the court proceed in giving it. The trial court then gave the pattern jury instruction, and the jury deliberated approximately 45 minutes before returning a verdict of guilty on all three counts. At Gamble's request, the jury members were polled on their verdict.
We reject Gamble's argument that the jury charge was impermissibly coercive. The
6. Following the jury's verdict, the trial court sentenced the defendant to concurrent sentences of life imprisonment for malice murder and felony murder. Since there was a single victim, Gamble cannot be convicted and sentenced for both murder counts. See OCGA § 16-1-7(a)(1)(j); Malcolm v. State, 263 Ga. 369(4), 434 S.E.2d 479 (1993). Accordingly, we vacate the separate judgment of conviction and sentence for felony murder and remand the case to the trial court for resentencing. See Nix v. State, 280 Ga. 141(2), 625 S.E.2d 746 (2006).
Judgment affirmed in part and vacated in part and case remanded.
All the Justices concur.