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State v. Thomas

Court of Appeals of Georgia, Third Division

June 24, 2019

THE STATE
v.
THOMAS.

          DILLARD, C. J., GOBEIL and HODGES, JJ.

          Gobeil, Judge.

         Nyron Thomas was charged with murder and other crimes related to the shooting death of Shinnara Gee. A jury found him not guilty of murder, felony murder, and voluntary manslaughter, but guilty of aggravated assault with a deadly weapon and firearms charges. The trial court granted Thomas's motion for a new trial, concluding that it had committed an error of law in instructing the jury on the offense of aggravated assault with a deadly weapon.[1] On appeal, the State argues that the trial court's instructions to the jury did not amount to plain error and seeks reversal of the grant of a new trial. For the reasons set forth below, we agree and reverse.

         Generally, "[t]he first grant of a new trial shall not be disturbed by an appellate court unless the appellant shows that the judge abused [her] discretion in granting it[.]" OCGA § 5-5-50; State v. James, 292 Ga. 440, 441 (1) (738 S.E.2d 601) (2013). However, where, as here, the trial court grants the motion for a new trial based on a special ground involving a question of law, we review the ruling de novo. O'Neal v. State, 285 Ga. 361, 363 (677 S.E.2d 90) (2009). Because the trial court in this case granted Thomas's motion for a new trial based upon legal error in its jury instructions and not upon general grounds, we conduct a de novo review. Id.; see also State v. Crist, 341 Ga.App. 411, 414 (801 S.E.2d 545) (2017) (this Court reviews de novo the trial court's first grant of a new trial on special grounds).

         The record shows that the charges against Thomas arose from an altercation between Thomas and Gee on October 9, 2014. The two men began arguing, and at some point during the encounter, Thomas's gun discharged. Thomas then chased Gee around a corner and fired his weapon again, but the second shot did not make contact with Gee. The medical examiner testified that Gee was shot only once, and the fatal shot entered Gee's arm and ricocheted into his torso. Gee died from the injuries he sustained to his internal organs when the bullet lodged in his abdominal cavity. Thomas testified in his own defense at trial and claimed he did not intend to shoot Gee. He raised the affirmative defenses of self-defense, accident, and justification.

         Thomas was charged by indictment for murder, two counts of felony murder, [2]aggravated assault with a deadly weapon, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. Specifically, the indictment alleged that Thomas assaulted Gee "by shooting him with a handgun, the same being a deadly weapon." See OCGA § 16-5-21 (a) (2) ("A person commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly weapon. . . .").

         The jury returned a verdict finding Thomas not guilty of murder, felony murder, and the lesser included offense of voluntary manslaughter. The jury found Thomas guilty of aggravated assault with a deadly weapon, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. The trial court sentenced Thomas to 20 years to serve for aggravated assault (Count 4); five years to serve for possession of a firearm during the commission of a felony (consecutive to Count 4); and five years to serve for possession of a firearm by a convicted felon (consecutive to Count 4 and suspended).

         In his amended motion for a new trial, Thomas asserted error in the trial court's failure to limit its jury instruction on aggravated assault with a deadly weapon to the method charged in the indictment. The trial court agreed that its charge was erroneous and granted a new trial on this basis.

         1. In its sole claim of error, the State asserts that the trial court erred in granting Thomas's motion for a new trial because the trial court adequately cured any potential defect in its instructions.

         At the outset, we note that because defense counsel failed to object to the trial court's instructions at trial, we review the jury instructions for plain error. See OCGA § 17-8-58 (b).[3] Plain error is defined as "that which is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or which seriously affects the fairness, integrity, or public reputation of a judicial proceeding." State v. Kelly, 290 Ga. 29, 32- 33 (2) (a) (718 S.E.2d 232) (2011) (citation and punctuation omitted). Under the plain error standard of review, appellate courts assess whether "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." Simpson v. State, 302 Ga. 875, 877 (2) (808 S.E.2d 718) (2017).

         Thomas and the State requested that the court give the pattern jury instruction on the definition of aggravated assault.[4] During the charge conference, the trial court indicated that it would give the requested charge on aggravated assault. Following the close of evidence, the trial court gave the pattern jury charge on aggravated assault as set forth below:

With respect to the offense of aggravated assault with a deadly weapon, a person commits the offense of aggravated assault when that person assaults another 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 ...

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