MELTON, Presiding Justice.
a jury trial, Robert Smith was found guilty of malice murder,
felony murder, and other offenses in connection with the
shooting death of his friend, Raymond Brewer,
On appeal, Smith contends that the trial court committed
plain error in its jury instruction on witness credibility
and that the trial court erred in its jury instruction on
self-defense. For the reasons that follow, we affirm in part,
vacate in part, and remand for resentencing.
in the light most favorable to the jury's verdict, the
record shows that, in the early morning of April 4, 2010,
Smith was arguing with Brewer in an apartment that the two
men shared with Smith's girlfriend and several other
people. According to witnesses, the men were arguing about,
among other things, an altercation that had occurred roughly
a week before where Brewer had pushed Smith to the ground,
causing Smith to get a scratch on his head. While the men
were arguing, Smith retrieved a gun from a closet in the
apartment, and he threatened to kill Brewer. Smith then
walked into the hallway of the apartment where Brewer was
standing and shot him several times, killing him.
evidence was sufficient to enable a rational trier of fact to
find Smith guilty of the crimes of which he was convicted
beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
Although the evidence was sufficient to sustain Smith's
convictions, we have discovered an error with respect to the
trial court's sentencing of Smith. Specifically, although
the trial court announced at sentencing that it would merge
the aggravated assault count against Smith into the malice
murder count against him for sentencing purposes and that it
would sentence Smith to five consecutive years for possession
of a firearm during the commission of a felony, in the final
disposition sheet the trial court instead merged the
possession of a firearm count into the malice murder count
for sentencing purposes and sentenced Smith to five
consecutive years for aggravated assault. This was error, as
"possession of a firearm during the commission of a
felony does not merge into [a] conviction for [malice]
murder." Jackson v. State, 267 Ga. 130, 130-131
(2) (475 S.E.2d 637) (1996). "[A]s no merger occurred,
[Smith] should have been sentenced on th[e possession of a
firearm] count." Hulett v. State, 296 Ga. 49,
55 (2) (b) (766 S.E.2d 1) (2014). Further, because the
indictment charged Smith with killing Brewer with malice
aforethought by shooting him with a rifle, and with
assaulting him with a deadly weapon, a rifle, "the
aggravated assault conviction merges into the malice murder
conviction, and the sentence imposed for aggravated assault
must be vacated." (Citation omitted.) Culpepper
v. State, 289 Ga. 736, 738 (2) (a) (715 S.E.2d 155)
(2011). In light of the fact that the aggravated assault
count should have merged into the malice murder count and the
possession of a firearm during the commission of a felony
count should not have been so merged, we remand this case to
the trial court for it to resentence Smith on possession of a
firearm during the commission of a felony.
Smith contends that the trial court committed plain error in
its jury charge on witness credibility. In order to
satisfy the test for plain error,
[f]irst, there must be an error or defect - some sort of
deviation from a legal rule - that has not been intentionally
relinquished or abandoned, i.e., affirmatively waived, by the
appellant. Second, the legal error must be clear or obvious,
rather than subject to reasonable dispute. Third, the error
must have affected the appellant's substantial rights,
which in the ordinary case means he must demonstrate that it
affected the outcome of the trial court proceedings. Fourth
and finally, if the above three prongs are satisfied, the
appellate court has the discretion to remedy the error -
discretion which ought to be exercised only if the error
seriously affects the fairness, integrity, or public
reputation of judicial proceedings.
(Citations, punctuation and emphasis omitted.) State v.
Kelly, 290 Ga. 29, 33 (2) (a) (718 S.E.2d 232) (2011).
"In the case of a review for 'plain error, ' it
is not sufficient to find actual legal error, 'as the
jury instruction in question must have an obvious defect
rather than a merely arguable defect.'" Hoffler
v. State, 292 Ga. 537, 542 (4) (739 S.E.2d 362) (2013),
citing Terry v. State, 291 Ga. 508, 509 (2) (731
S.E.2d 669) (2012).
The jury charge in question stated:
In deciding credibility, you may consider all of the facts
and circumstances of the case, the manner in which the
witnesses testify, their intelligence, their interest or lack
of interest in the case, their means and opportunity for
knowing the facts about which they testify, the nature of the
facts about which they testify, the probability or
improbability of their testimony, and the occurrences about
which they testify. You may also consider their personal
credibility insofar as it may have been shown in your
presence and by the evidence.
contends that the charge was erroneous because it included
the "intelligence" of the witnesses as a factor
that jurors were allowed to consider when evaluating
credibility. However, this Court has previously reviewed jury
charges where intelligence is given as a factor that may be
considered with respect to witness credibility and found no
reversible error where, as here, "[t]he court's
charge shows that the intelligence factor was not highlighted
or singled out; [as intelligence] was [just] one of several
factors which could be considered." Ward v.
State, 239 Ga. 205, 206 (3) (236 S.E.2d 365) (1977).
Indeed, "even assuming that the better practice is to
omit intelligence as one of the factors in the credibility
charge, its inclusion is not reversible error" under the
circumstances presented here. Howard v. State, 288
Ga. 741, 747 (6) (707 S.E.2d 80) (2011). "[W]e find no
reversible error, much less any 'plain error, '"
in the jury instruction given by the trial court.
Id. at 746 (6).
While Smith did not object to the trial court's jury
instruction on witness credibility, he did in fact object to
the court's jury instruction on the doctrine of
reasonable beliefs and revenge for a prior wrong as those
concepts relate to self-defense. He claims that, while such a
charge was an accurate statement of law, the charge was
nevertheless inappropriate, as there was no evidence that
Smith may have shot Brewer out of a sense of revenge for a
prior wrong. However, Smith's assertion is belied by the
record, as the evidence presented at trial showed that, just
before Smith retrieved a gun to shoot and kill Brewer, the
two men were specifically arguing about an incident from the
prior week where Brewer had pushed Smith to the ground.
Because some evidence supports the theory that Smith may have
shot Brewer out of revenge for the prior incident between the
two men, we find no error from the giving of this charge. See
Hicks v. State, 287 Ga. 260, 262 (2) (695 S.E.2d
195) (2010) ("To authorize a requested jury instruction,
there need only be slight evidence supporting the theory of
the charge") (citation omitted); Rector v.
State, 285 Ga. 714 (5) (681 S.E.2d 157) (2009) (charge
stating that a person was not justified in seeking out and
assaulting alleged wrongdoer for purposes of revenge was
properly given, as it was an accurate statement of law that
was adjusted to the facts of the case).
affirmed in part and vacated in part, and case remanded for