Simpson was convicted of felony murder and other crimes in
relation to the shooting death of Shakhira
Dunson. Simpson appeals and argues that the trial
court plainly erred in instructing the jury on a method of
committing aggravated assault that was not alleged in the
indictment. Because the trial court specifically instructed
the jury that the State was required to prove every material
allegation of the indictment, we affirm Simpson's
in the light most favorable to the verdict, the trial
evidence showed the following. Dunson had a child with
Simpson, whom she had been dating since 2010. In February
2013, Dunson was pregnant with their second child.
February 17, 2013, Dunson had a heated phone conversation
with Simpson. Dunson's cousin overheard the argument
because Dunson placed the call on speaker phone. According to
Dunson's cousin, Dunson told Simpson that she no longer
wanted to be in a relationship with him, and Simpson said in
response, "[I]f I can't have you I will make sure
nobody else will."
next night, Dunson was having dinner with her brother when
she received multiple phone calls from Simpson. Dunson
ignored the calls at first, but finally answered and told
Simpson to stop calling her. After ending the phone call with
Simpson, Dunson told her brother that she was leaving
Simpson. Dunson dropped her brother off after dinner and told
him that she would see him after collecting her belongings
from Simpson's house.
was not home when Dunson arrived, but members of his family
and several friends were at the residence. After Simpson
arrived, he and several others, including his sisters
Victoria and Lawanna, got into Dunson's car and began to
smoke marijuana. Dunson came out of the house and went to the
car window where Simpson was sitting and began talking to
him. Simpson told Dunson to go inside the house and retrieve
their infant son, but she refused. Simpson then grabbed his
gun and began waving it in Dunson's face. Dunson, who was
about two feet away from Simpson, tried to move the gun away,
but Simpson shot her in the face. Dunson died at the scene.
The medical examiner testified that Dunson was in the second
trimester of her pregnancy, and her fetus would have been
viable but for Dunson's death.
responding officer spoke to Simpson's sisters Victoria
and Lawanna, who both reported that Dunson was shot during a
drive-by shooting. Simpson told Dunson's family the same
and also told the police that he was inside the residence at
the time of the shooting. Upon further investigation, police
suspected that Simpson shot Dunson because they saw blood on
Simpson's shirt and a shell casing on the dashboard of
Dunson's vehicle. Officers also located a 9mm firearm in
the yard that had a round in the chamber and more rounds in
the magazine. A GBI firearms expert testified that the
recovered shell casing was fired from that gun, the firearm
was in working condition, and the gun required intentional
action - about 13.5 pounds of force - to pull the trigger.
testified at trial, admitting that he shot Dunson, but
claiming it was an accident.
Simpson does not challenge the sufficiency of the evidence,
it is our customary practice in murder cases to independently
review the record to determine whether the evidence was
legally sufficient. Having done so, we conclude that the
evidence was sufficient to authorize a rational trier of fact
to find beyond a reasonable doubt that Simpson was guilty of
the crimes for which he was convicted. See Jackson v.
Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d
was charged with aggravated assault with a deadly weapon by
shooting the victim, and the other charges of felony murder,
feticide, and possession of a firearm during the commission
of a felony were predicated on the aggravated assault charge.
Simpson argues that the trial court erred by charging the
jury on other forms of aggravated assault, which he contends
could have allowed the jury to find him guilty of aggravated
assault based on the victim's apprehension of violent
injury rather than on the indicted crime of shooting Dunson.
did not object at trial, and so his challenge to the jury
charge is to be reviewed for plain error only. See OCGA
§ 17-8-58 (b). Under plain error review, reversal of a
conviction is authorized if the trial court's instruction
was erroneous, the error was obvious, the instruction likely
affected the outcome of the proceedings, and the error
seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See Green v.
State, 291 Ga. 287, 294 (8) (728 S.E.2d 668) (2012). It
is error to charge the jury that an aggravated assault may be
committed in a method not charged in the indictment.
Chapman v. State, 273 Ga. 865, 868 (2) (548 S.E.2d
278) (2001). Here, even if the trial court provided a charge
on aggravated assault that included a method not charged in
the indictment, any error in its instruction was cured. The
court provided the jury with the indictment and instructed
the jury that State was required to prove every material
allegation of the indictment and every essential element of
the crime charged beyond a reasonable doubt. See Williams
v. Kelly, 291 Ga. 285, 286-287 (728 S.E.2d 666) (2012)
(a limiting instruction cures a defect in the court's
charge). Under these circumstances, Simpson cannot establish
reversible error, plain or otherwise. See, e.g., Faulks
v. State, 296 Ga. 38, 39 (2) (764 S.E.2d 846) (2014).
affirmed. All the Justices concur.