acquitted Jeremy Scott of malice murder in the shooting death
of Dexter Holliday, but found him guilty of felony murder,
aggravated assault, possession of a firearm in commission of
a felony, and possession of a firearm by a convicted
felon. His amended motion for new trial was
denied, and he appeals, asserting as his sole enumeration of
error that the trial court erred in its charge to the jury.
For the reasons that follow, we affirm but vacate and remand
to the trial court for resentencing.
to support the jury's verdict, the evidence shows that a
witness, Jackson, and a passenger in his car, Varner, were
driving near Underground Atlanta when Scott hailed Jackson
and offered to pay for a ride to "the west side.
MLK." Jackson, who knew Scott through mutual friends,
drove Scott to an apartment on Auburn Avenue and then to a
gas station on Martin Luther King Drive. Scott told Jackson
to pull in behind a parked truck, then got out of the car and
approached the truck, where the victim was standing. After
Scott got into the victim's truck, Jackson heard "4,
5, 6 maybe" gunshots and saw the victim falling out of
the truck. The truck rolled across the street and collided
with a building. Scott then returned to Jackson's car and
instructed him to drive him to Campbellton Road. After
dropping Scott off and taking Varner home, Jackson told his
father what had happened, and they called police. Varner, the
passenger, was present throughout the incident and gave
similar testimony. The gas station's video surveillance
system also recorded the encounter, and the video was played
for the jury twice. The medical examiner testified that,
based on an examination of the victim's wounds, he was
shot at least four and as many as seven times.
testified at trial and stated that he and the victim were
previously incarcerated together, in 2010. He claimed that
the victim had arranged to purchase cocaine from him and that
he entered the victim's truck to complete the sale, but
instead of paying, the victim pointed a gun at him and
demanded the drugs. Scott decided to try to take the gun from
the victim, succeeded, and got out of the truck. He contended
that he shot the victim in self-defense because the victim
revved his engine, and Scott believed he was going to try to
run him down with the truck.
Although appellant has not raised the sufficiency of the
evidence in his appeal, we note that it was sufficient to
support the jury's guilty verdicts under Jackson v.
Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560)
Scott's sole enumeration of error, he contends that the
trial court erred in failing to instruct the jury that it
should consider each charge separately. But after the trial
court instructed the jury, Scott, while objecting to one
charge on justification, did not raise the objection he now
asserts. As Scott acknowledges, we therefore review his
enumeration of error only for plain error. State v.
Kelly, 290 Ga. 29, 31 (1) (718 S.E.2d 232) (2011). In
Kelly, this Court established a four-prong test for
determining whether a jury instruction amounts to plain
error: (1) whether the instruction was erroneous; (2) whether
the error was obvious or clear; (3) whether the error
affected appellant's substantial rights; and (4) only if
the first three elements are established, the reviewing court
in its discretion may reverse if the error "seriously
affects the fairness, integrity or public reputation of
judicial proceedings." (Citations and punctuation
omitted.) Id. at 33 (2) (a). As Scott has not met
this standard, his enumeration of error is without merit.
complains of the following instruction given by the trial
court near the conclusion of its charge to the jury:
If after considering the testimony and evidence presented to
you, together with the charge of the Court, you should find
and believe beyond a reasonable doubt that the defendant in
Fulton County, Georgia, did on or about December 4th, 2012,
commit the offense of murder, felony murder, felony murder,
aggravated assault with a deadly weapon, possession of a
firearm during the commission of a felony, possession of a
firearm by a convicted felon as alleged in the indictment,
you would be authorized to find the defendant guilty.
In that event the form of your verdict as to each count would
be: We, the jury, find the defendant guilty.
If you do not believe that the defendant is guilty of these
offenses or you have any reasonable doubt as to the
defendant's guilt then it would be your duty to acquit
the defendant in which event the form of your verdict would
be: We, the jury, find the defendant not guilty.
analyzing this instruction, we must view the trial
court's charge as a whole to determine if error exists.
Franklin v. State, 295 Ga. 204, 208 (3) (758 S.E.2d
813) (2014), citing Sapp v. State, 290 Ga. 247, 251
(2) (719 S.E.2d 434) (2011). So viewed, the charge was
sufficient to apprise the jury that each crime charged in the
indictment must be considered separately. The trial court
referred repeatedly to "these criminal charges, "
"the crime or crimes charged" and the multiple
counts of the indictment in its preliminary charges and in
its charge at the conclusion of the evidence. The trial court
separately defined malice murder and felony murder, noting
that aggravated assault and possession of a firearm by a
convicted felon "are felonies and are defined later in
this charge, " and laying out the verdict process for
malice murder and felony murder with reference to the verdict
form. The trial court also charged on the lesser included
offense of voluntary manslaughter, as well as on aggravated
assault and possession of a firearm by a convicted felon. The
trial court instructed the jury that venue must be proved
"[a]s to each crime charged in the indictment, just as
any element of the offenses." And, finally, the verdict
form submitted to the jury listed each offense separately by
count, with blanks provided for the jury's decision. The
jury entered its handwritten verdict on each count separately
as indicated by the verdict form, and found Scott not guilty
of the offense of malice murder; obviously, therefore, the
jurors demonstrated that they considered each charge
separately as instructed by the trial court.
even if error had been shown, it could not be considered
obvious. Scott points to no pattern charge or decision of the
courts of this state indicating a charge that should have
been given in addition to the instructions already noted. See
Sapp, supra, 290 Ga. at 251 (2) (when jury
instructed on causation, omission of additional language on
proximate cause not clear or obvious error.) While Scott
cites Tiller v. State, 218 Ga.App. 418 (461 S.E.2d
572) (1995), that decision is inapposite because the language
of the complained-of charge was never revealed in the
opinion, and the Court of Appeals ultimately concluded that
the instruction "clearly conveyed" that the jury
should consider each charge separately and could return
separate verdicts on each count. Id. at 419 (2).
Finally, particularly in light of the jury's finding of
"not guilty" on one of the counts of the
indictment, Scott has failed to demonstrate that the outcome
of the trial was affected in any way.
Scott has failed to demonstrate any of the first
three prongs of the Kelly test, we do not reach the
fourth prong, and this enumeration of error is without merit.
State notes that, based on Noel v. State, 297 Ga.
698, 700 (2) (777 S.E.2d 449) (2015), the trial court erred
in merging the felony murder convictions and then merging the
predicate felonies into the remaining felony murder
conviction. When the trial court sentenced Scott on Count 2
(felony murder based on aggravated assault), Count 3 (felony
murder based on possession of a firearm by a convicted felon)
was vacated by operation of law. Count 6 (possession of a
firearm by a convicted felon) then ...