BARNES, P. J., MERCIER and BROWN, JJ.
Barnes, Presiding Judge.
the denial of his motion for new trial, as twice amended,
Ismael Guerrero-Moya appeals his jury convictions for
trafficking in methamphetamine and possession of a firearm
during the commission of a crime. On appeal, Guerrero-Moya
contends that the trial court erred by instructing the jury
that he was a co-conspirator, and then failing to properly
instruct the jury on the law of conspiracy. He also asserts
two instances in which he maintains that trial counsel
rendered ineffective assistance. Following our review, we
appeal, this Court views the evidence in the light most
favorable to the jury's verdict. See Rankin v.
State, 278 Ga. 704, 705 (606 S.E.2d 269) (2004). So
viewed, the evidence demonstrates that on June 11, 2010, a
special agent with the Fayette County Sheriff's
Department received a call from an Immigration and Customs
Enforcement ("ICE") agent regarding a residence
that was purportedly being used to "wash"
methamphetamine. According to the ICE agent, the information
was provided by a confidential informant who advised that
individuals in the home were washing approximately 3.5 pounds
of methamphetamine. The ICE agent further informed the
special agent that a white Dodge pickup truck was parked at
the residence, and that the same vehicle was seen at the home
the previous day.
surveilling the residence for approximately 90 minutes,
officers conducted a "knock-and-talk" at the
residence. When the special agent and two other officers
knocked on the door of the residence two men answered. The
officers informed the men that they had received information
about possible drug activity at the home, and asked if they
could come inside. The men "gave [the officers] . . . a
sweeping motion with their hands, [and] moved out of the
way." There was no furniture in the living room, and the
room had a "prominent" odor of acetone. An officer
asked one of the men to talk with him in the kitchen, and
while there the officer observed strainers, scales,
glassware, pot, pans, and methamphetamine residue, which
indicated to the officer that "there was methamphetamine
being produced there." The officer also noticed from his
viewpoint in the kitchen, a bedroom containing a tub filled
with methamphetamine and a firearm laying next to a mattress.
The officer was only "three or four feet away from the
[bedroom's] doorway" and the items were in plain
view. Guerrero-Moya emerged from the bedroom. The officer
testified that Guerrero-Moya was within arms reach of the
firearm that was seen near the mattress in the bedroom.
Guerrero-Moya and the two men were arrested. Police secured a
search warrant for the residence, and seized three and one
half pounds of methamphetamine, acetone, Tupperware
containing suspected methamphetamine residue, a knife with
suspected methamphetamine residue, a firearm with ammunition,
and other drug related items.
interviewed by police, Guerrero-Moya acknowledged that he
knew about the methamphetamine, but that he had arrived at
the residence only 30 minutes before the officers to watch a
soccer game. A co-indictee, Ulvado Alverado-Tequilla,
testified that Guerrero-Moya was just a visitor and had
nothing to do with the methamphetamine at the residence.
Although not challenged by Guerrero-Moya, we find the
evidence sufficient pursuant Jackson v. Virginia,
443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), to find
the appellant guilty of the crimes charged.
Guerrero-Moya contends that it was plain error for the trial
court in its instruction to refer to the appellant as a
co-conspirator, and to not properly instruct the jury on the
law of conspiracy. The trial court instructed the jury as
follows: "Any out-of-court statement made by one of the
defendants or any co-conspirator on trial on this case after
the alleged criminal act has ended may be considered only
against the person who made the statement." According to
Guerrero-Moya, although not objected to, the instruction
constituted plain error because the trial court instructed
the jury that statements made by a co-conspirator could be
used against him, but at no point instructed the jury on what
constituted a conspiracy or that it was for the jury to
determine if a conspiracy existed. He also contends that by
so instructing the jury, the trial court essentially charged
that a conspiracy existed and that the appellant was a
participant, impermissibly removing that ultimate
determination from the jury's province.
acknowledged by Guerrero-Moya, the failure to object
regarding a jury instruction at trial precludes appellate
review unless "the jury charge constitutes plain error
which affects substantial rights of the parties."OCGA
§ 17-8-58 (b); State v. Kelly, 290 Ga. 29, 32
(1) (718 S.E.2d 232) (2011) ("[A]ppellate review for
plain error is required whenever an appealing party properly
asserts an error in jury instructions.")
The "plain error" test adopted . . . in State
v. Kelly . . . authorizes reversal of a conviction if
the instruction was erroneous, the error was obvious, the
instruction likely affected the outcome of the proceedings,
and the error seriously affected the fairness, integrity or
public reputation of judicial proceedings. Satisfying all
four prongs of this standard is difficult, as it should be.
(Citations and punctuation omitted.) Lake v. State,
293 Ga. 56, 59 (5) (743 S.E.2d 414) (2013). However.
even when plain error appears, which we do not decide here,
reversal is not required if the defendant invited the alleged
error. . . . [A]ffirmative waiver, which involves the
intentional relinquishment or abandonment of a known right,
as opposed to mere forfeiture by failing to object, prevents
a finding of plain error.
(Citations and footnote omitted.) Nelson v. State,
325 Ga.App. 819, 820-821 (755 S.E.2d 217) (2014).
requested that the trial court charge the jury as follows:
"The confession of one joint offender or conspirator
made after the enterprise is ended shall be admissible only
against himself." Although not the identical language of
the charge given, the language which Guerrero-Moya now finds