ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.
a jury trial, Cameron Hollins was convicted of aggravated
assault and possession of a firearm during the commission of
a felony. After the denial of his motion for new trial,
Hollins filed this appeal, in which he asserts that the trial
court erred when it instructed the jury that it could convict
him of aggravated assault in a manner not alleged in the
indictment. Finding no error, we affirm.
appeal from a criminal conviction, we view the evidence in
the light most favorable to the verdict, with the defendant
no longer enjoying a presumption of innocence."
(Punctuation omitted.) Crankshaw v. State, 336
Ga.App. 700 (1) (786 S.E.2d 245) (2016). So viewed, the
record shows that Hollins and his codefendant, Adam Pfeifer,
called a taxicab to drive them from the Sugarloaf Mills
shopping center to an apartment complex near Hollins's
residence, where Pfeifer also stayed. Hollins sat behind the
taxicab driver, and Pfeifer sat behind the passenger seat.
The driver was subsequently found dead in the parking lot of
the apartment complex, having been killed by a single gunshot
behind his right ear. The driver had cash in both his wallet
and his pocket, neither of which were taken, and his phone
and other personal belongings remained in the taxicab.
discovered a latent fingerprint on the taxicab that matched
that of Pfeifer, who had an outstanding warrant and was
quickly arrested. At the time of his arrest, Pfeifer was
carrying a backpack containing the gun that was later
determined to have fired the bullet that killed the driver.
The backpack also contained papers with Hollins's name on
them, and further investigation revealed Hollins's
fingerprints on the rear driver door handle of the taxicab.
was subsequently arrested and was jointly charged with
Pfeifer for the offenses of murder, felony murder, aggravated
assault, and possession of a firearm during commission of a
felony. Pfeifer, however, ultimately agreed to
accept a plea offer and to testify against Hollins. During
the ensuing trial, Pfeifer testified that he and Hollins
communicated during the cab ride through a cellular phone
application called Kik, and that Hollins stated his intent to
rob and kill the taxicab driver. Pfeifer maintained that he
exited the taxicab upon arriving at the apartment complex,
and that he then heard Hollins fire the fatal shot.
jury convicted Hollins of aggravated assault and possession
of a firearm during the commission of a felony, but acquitted
him of murder. The jury deadlocked on the charge of felony
murder and the State agreed to accept the partial verdict.
This appeal follows the trial court's denial of
Hollins's motion for new trial.
sole enumeration of error, Hollins contends that trial court
erred by charging the jury that it could convict him of
aggravated assault in a manner not alleged in the indictment.
The indictment alleged that Hollins and Pfeifer assaulted the
driver "with a firearm, a deadly weapon, by shooting
him. . . ." See OCGA § 16-5-21 (b) (2) ("A
person commits the offense of aggravated assault when he or
she assaults . . . [w]ith a deadly weapon . . ."). In
addition to reading the indictment to the jury, the trial
court instructed it as follows:
A person commits the offense of aggravated assault when that
person assaults another person with a deadly weapon. To
constitute such an assault, actual injury to the alleged
victim need not be shown. It is only necessary that the
evidence show beyond a reasonable doubt that the defendant
attempted to cause a violent injury to the alleged victim or
intentionally committed an act that placed the alleged victim
in reasonable fear of immediately receiving a violent injury.
The State must also prove, as a material element of
aggravated assault as alleged in this case, that the assault
was made with a deadly weapon.
See OCGA § 16-5-20 (a) ("A person commits the
offense of simple assault when he or she either: (1)
[a]ttempts to commit a violent injury to the person of
another; or (2) [c]ommits an act which places another in
reasonable apprehension of immediately receiving a violent
on the well established law that "[i]t is error to
charge the jury that a crime may be committed by two methods,
when the indictment charges it was committed by one specific
method, " (Citation and punctuation omitted.) Childs
v. State, 257 Ga. 243, 253 (17) (357 S.E.2d 48) (1987),
Hollins asserts that the definition of simple assault should
have been limited to that of an "attempt[ ] to cause a
violent injury" to the victim. He contends that after
being given the complete definition of simple assault, the
jury may have convicted him of aggravated assault solely for
placing the victim in reasonable apprehension of receiving a
violent injury, when the indictment demanded a finding that
he assaulted the victim by shooting him.
Hollins did not object to the charge at trial, we analyze
this case under a plain error standard of review, in
accordance with State v. Kelly, 290 Ga. 29 (718
S.E.2d 232) (2011).
Under that analysis, we must determine whether the
instruction was erroneous, whether it was obviously so, and
whether it likely affected the outcome of the proceedings. If
all three of these questions are answered in the affirmative,
this Court has the discretion to reverse if the error
seriously affects the fairness, integrity or public
reputation of the proceedings below. As noted by our Supreme
Court, satisfying all four prongs of this standard is
difficult, as it should be.
(Citations and punctuation omitted.) Bledson v.
State, 337 Ga.App. 444, 447-448 (2) (787 ...