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Dolensek v. State

The trial court properly excluded irrelevant evidence of prior threats made by the man whose actions allegedly started the fight which resulted in the victim's death, even though defendant relied on the doctrine of transferred intent to support his self defense claim, because defendant did not show that he was trying to defend himself from the man's attack when he shot the victim.

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Jason Marcus Dolensek was found guilty of felony murder, aggravated assault, and one count of possession of a firearm during the commission of a felony. The trial court correctly treated the underlying felony of aggravated assault as having “merged, as a matter of law, into the felony murder so that a separate sentence for that underlying felony was not . . . authorized. Cit.” Malcolm v. State, 263 Ga. 369, 372 5 434 SE2d 479 1993. Therefore, the trial court entered judgments of conviction and sentenced Dolensek to life imprisonment for felony murder and a consecutive term of years for firearm possession. A motion for new trial was denied, and he appeals.1

1. Construed in support of the verdict, the evidence shows that Dolensek and several friends drove to an apartment complex and there confronted the victim and a group of his friends. The confrontation stemmed from a growing conflict over the termination of a romantic relationship between a man in the victim’s group, Max Wu, and a woman in Dolensek’s group. After fighting began, Dolensek fired a gun several times. One shot struck and killed the victim, who did not have a gun and did not make any threats to use a weapon. When police arrived, Dolensek was still at the scene and admitted that he shot the victim, but asserted that he did so in self-defense. The evidence was sufficient to authorize a rational trier of fact to find Dolensek guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 99 SC 2781, 61 LE2d 560 1979; Knight v. State, 271 Ga. 557, 558 1 521 SE2d 819 1999.

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