Marshall v

State, 285 Ga. 351, 676 S.E.2d 201 (2009). Instruction on intelligence of witnesses. — Trial court did not commit 856 reversible error, much less ‘‘plain error’’ pursuant to O.C.G.A. § 17-8-58(b), by instructing the jury that the jury could consider the intelligence of the witnesses to decide the witnesses’ credibility because even assuming that the better practice was to omit intelligence as one of the factors in the credibility charge, its inclusion was not reversible error; because no reversible error occurred with respect to the jury instruction on credibility, the codefendant succeeded on the codefendant’s alternative claim that trial counsel rendered ineffective assistance in failing to object to that instruction. Howard v. State, 288 Ga. 741, 707 S.E.2d 80 (2011). In a plain error review due to defendant’s failure to object, the appellate court held that the trial court did not err when the court charged that the jury may consider the intelligence of a witness in assessing the witness’s credibility because the Georgia Supreme Court has held that it is not reversible error to include intelligence as a factor in the jury charge on witness credibility. Gamble v. State, 291 Ga. 581, 731 S.E.2d 758 (2012). Appellate review proper despite lack of objection. — Although a defendant’s counsel failed to object to a jury instruction that permitted the jury to find the defendant guilty of terrorist threats if the defendant threatened any crime of violence, whereas the indictment charged that the defendant threatened to kill the victim, the appellate court was authorized to review the instructions for plain error, because the defendant alleged a due process violation. However, no error was found. Martin v. State, 303 Ga. App. 117, 692 S.E.2d 741 (2010). Pursuant to O.C.G.A. § 17-8-58(b), an error in a jury charge was considered on appeal notwithstanding the appellant’s failure to object at trial because the charge constituted plain error which affected the appellant’s substantial rights. Craft v. State, 309 Ga. App. 698, 710 S.E.2d 891 (2011). Because the language of O.C.G.A. § 17-8-58 refers to the jury ‘‘charge’’, the statute applies not only to instructions given orally to the jury, but necessarily must apply to any written instructions given to the jury, and preprinted verdict 17-8-58 forms have been treated as a portion of the jury instructions; use of such a form is intended to assist the jury in arriving at a lawful verdict, and a party is necessarily obligated to raise any objection to such a form as set forth in § 17-8-58(a) and, accordingly, when objection is not made, error is reviewed as provided in § 17-8-58(b). Cheddersingh v. State, 290 Ga. 680, 724 S.E.2d 366 (2012). Because the defendant voiced no objection to the jury charge as given other than to renew a request for a lesser included offense, absent plain error, the issue was precluded from appellate review pursuant to O.C.G.A. § 17-8-58(b). Sanders v. State, 290 Ga. 637, 723 S.E.2d 436 (2012). Defendant’s claim that the trial court erred by failing to give the full pattern jury charge on leniency was only reviewed to determine whether the trial court’s leniency charge constituted plain error because the defendant did not object to the charge as given, even though the defendant was required to do so under O.C.G.A. § 17-8-58(a). Kegler v. State, 317 Ga. App. 427, 731 S.E.2d 111 (2012). No plain error found. — Defendant’s claim that there was a fatal variance between the indictment and the jury charge failed because there was no plain error as it was unlikely that any error affected the outcome of the proceedings since the jury was properly instructed that the indictment and the plea formed the issues to be decided and was properly instructed as to the burden of proof. Moore v. State, 354 Ga. App. 145, 840 S.E.2d 519 (2020). No error found in refusing access to dictionary. — Trial court properly denied the appellant’s motion for a new trial because the appellant failed to prove that the trial court committed any error in the court’s fashioning of a supplemental instruction to the jury regarding the definition of ‘‘entice’’ and, thus, the first prong of the test for plain error was not satisfied and it was in the trial court’s discretion in declining the juror’s request for access to a dictionary during deliberations. Weyer v. State, 333 Ga. App. 706, 776 S.E.2d 304 (2015). No error found. — To the extent the defendant sought review under O.C.G.A. 857 Appellate Review (Cont’d) § 17-8-58(b), of the trial court’s charge to the jury on the court’s consideration of child molestation, attempted child molestation, and indecent exposure, there was no error because the trial court explained that the jury needed to consider all three offenses at the same time and properly explained how the jury would record the jury’s verdict. Machado v. State, 300 Ga. App. 459, 685 S.E.2d 428 (2009). Trial court’s failure to define ‘‘intent to distribute’’ when charging on intent to distribute marijuana under O.C.G.A. § 16-13-30(j)(1) was not error; the term ‘‘distribute’’ possessed only the ordinary and common dictionary meaning and did not need to be specifically defined. The defendant failed to object to the charge without the definition, and the charge as given was not plain error excusing the failure to object under O.C.G.A. § 17-8-58(b). Boring v. State, 303 Ga. App. 576, 694 S.E.2d 157 (2010). Trial court did not commit plain error in instructing the jury that when operating a motor vehicle, every licensee had to display his or her license upon the demand of a law enforcement officer because there was no reasonable probability that the charge to the jury, when viewed as a whole, permitted the defendant’s conviction under an erroneous theory; the trial court’s charge enumerated for the jury the specific offenses with which the defendant was charged and instructed the jury to determine whether the defendant was guilty of those offenses, and it did not instruct the jury to determine whether the defendant was guilty of a violation of O.C.G.A. § 40-5-29. Edwards v. State, 308 Ga. App. 569, 707 S.E.2d 917 (2011). During the defendant’s trial for malice murder, the trial court did not commit reversible error, much less any ‘‘plain error’’ pursuant to O.C.G.A. § 17-8-58(b) by giving the pattern jury charge on voluntary manslaughter involving mutual combat because the trial court gave separate and full instructions on voluntary manslaughter, malice murder, and justification, and the jury, hearing the challenged instruction in the context of the charge as a whole and the evidence presented at 17-8-58 trial, was not likely to be confused by the trial court’s slip of the tongue; the defendant failed to inform the trial court of the specific objection and the grounds for such objection before the jury retired to deliberate; thus, O.C.G.A. § 17-8-58(a) thereby precluded appellate review of such portion of the jury charge. Dolphy v. State, 288 Ga. 705, 707 S.E.2d 56 (2011). There was no reversible error, much less any ‘‘plain error’’ pursuant to O.C.G.A. § 17-8-58(b), because the statement the trial court made to the jury could not be considered coercive since the statement did not imply in any way that a verdict was required; the trial court did not emphasize the expense of trying the case, and the court’s statement did not amount to an instruction for the jury to consider that expense in the jury’s deliberations. Glass v. State, 289 Ga. 542, 712 S.E.2d 851 (2011). Trial court’s instruction to the jury on alternative ways that the state could prove the state’s case after deliberations had started and after questions had been asked by the jury was not plain error under O.C.G.A. § 17-8-58 as the court had previously upheld such a charge as reflecting a correct statement of law, and when considered with the jury charges given as a whole and the evidence in the case, there was no indication that the charge improperly affected the outcome of the proceeding. Emerson v. State, 315 Ga. App. 105, 726 S.E.2d 600 (2012). There was no plain error in the trial court’s charge to the jury that no criminal liability would attach if the defendant killed a neighbor’s dog in order to protect livestock because the trial court’s charge on animal cruelty, as a whole, was consistent with the language of O.C.G.A. § 16-12-4, and the charge adequately explained to the jury that a person was not prohibited from killing an animal if necessary to protect his or her person or property or that of another. Futch v. State, 314 Ga. App. 294, 723 S.E.2d 714 (2012). Defendant failed to establish plain error in the trial court’s charge pursuant to O.C.G.A. § 17-8-58 because the trial court clearly instructed the jury that before the court was authorized to return a verdict of guilty of malice murder or felony murder, 858 the court had to first determine whether mitigating circumstances would cause the offense to be reduced to voluntary manslaughter; the structure of the actual verdict form made it clear that as to each victim, the jury was required to consider malice murder, felony murder, and voluntary manslaughter simultaneously. Ortiz v. State, 291 Ga. 3, 727 S.E.2d 103 (2012). Under a plain error of review due to defense counsel’s failure to object to the jury instructions at the defendant’s trial for felony murder, the trial court did not err in the court’s presentation of the concepts of justification that serves as a defense to criminal charges, and passion resulting from provocation that could reduce murder to voluntary manslaughter as the court gave the pattern jury instructions and did not mislead the jury to have understood wrongly that limitations on and conditions precedent to the application of the law of justification were also applicable to voluntary manslaughter. Terry v. State, 291 Ga. 508, 731 S.E.2d 669 (2012). Trial court did not commit plain error by giving a level of certainty charge by instructing the jury on the reliability of eyewitness identification because the victims gave descriptions of the robbers to the police immediately, identified the defendant from mug shot books, and did not repeatedly testify as to the victims’ certainty. Russell v. State, 319 Ga. App. 472, 735 S.E.2d 797 (2012). Trial court did not err by failing to charge the jury on unarmed robbery or theft by taking as lesser-included offenses to armed robbery in light of the overwhelming evidence of the defendant’s guilt and the failure to give the lesser-included instructions neither created any reasonable likelihood that the state’s burden of proving all essential elements of armed robbery was lessened, or that the charge as given likely affected the outcome of the proceedings. Boccia v. State, 335 Ga. App. 687, 782 S.E.2d 792 (2016). Trial court did not commit plain error by charging the jury concerning the limited use of sexual assault extrinsic evidence admitted pursuant to O.C.G.A. § 24-4-413 because the charge was not 17-8-58 erroneous as such evidence was admissible as relevant. Marlow v. State, 337 Ga. App. 1, 785 S.E.2d 583 (2016), overruled on other grounds by Quiller v. State, 338 Ga. App. 206, 789 S.E.2d 391 (2016). Defendant’s conviction for possession of cocaine with intent to distribute was upheld because the defendant’s claimed jury charge error failed as it did not affect the outcome of the trial since the defendant willingly removed the shoes when requested and expressly denied having anything, yet 32 bags of cocaine were found in the sock the defendant was wearing, which did not support the conclusion that the defendant did not know or was mistaken about the substance of the drugs found. Bailey v. State, 341 Ga. App. 694, 801 S.E.2d 614 (2017). Trial court did not commit plain error with regards to the charge on good character evidence as the charge was substantially identical to the suggested pattern jury instruction on good character evidence; the defendant pointed to no authority for the proposition that the pattern charge was inadequate; and the charge given in the case on good character evidence properly explained how character evidence ought to be considered by the jury. Williams v. State, 304 Ga. 455, 818 S.E.2d 653 (2018). Although the offense of criminal damage to property was a felony, the trial court should not have mentioned criminal damage to property in connection with the charge on felony murder as the indictment did not charge the defendant with felony murder predicated on criminal damage to property; however, the defendant did not show plain error as the defendant did not show that the error in the jury charge likely affected the outcome of the proceedings because the jury found the defendant guilty of the aggravated assault upon the victim with a handgun, which was one of the predicate felonies included in the indictment, and it was highly likely that the jury based the jury’s felony murder verdict on that predicate felony. Williams v. State, 304 Ga. 455, 818 S.E.2d 653 (2018). Trial court did not plainly err by giving the jury the state’s requested instruction on revenge for a prior wrong because the evidence presented in the case authorized 859 Appellate Review (Cont’d) the instruction as the appellant told the police during the second interview that the appellant was defending oneself when the appellant stabbed the victim once after the victim had indicated that the victim was going to get the appellant. Collins v. State, 308 Ga. 515, 842 S.E.2d 275 (2020). Trial court did not plainly err by instructing the jury on voluntary manslaughter as a lesser-included offense of felony murder because such instruction was applicable to both defendants as the state presented evidence that immediately following a fight, in which both defendants were involved and in which the victim cut the second defendant, both defendants fired handguns at the victim. Hamlette v. State, 353 Ga. App. 640, 839 S.E.2d 161 (2020). Because the defendant pointed to no evidence that the witness knew that the defendant was planning on assaulting the victim, and the defendant failed to cite precedent requiring an accomplice-corroboration instruction under circumstances similar to those presented, the appellate court concluded that the trial court did not commit obvious error in failing to instruct the jury on the need for corroboration of accomplice testimony. Wilson v. State, 351 Ga. App. 794, 833 S.E.2d 175 (2019). Plain error did not occur as a result of the trial court failing to instruct the jury regarding leniency that could have been granted to the defendant in exchange for the defendant’s testimony because the defendant specifically testified that the defendant was not promised any leniency regarding the two pending criminal indictments and the detective testified that the defendant was not promised any leniency. Wilson v. State, 351 Ga. App. 794, 833 S.E.2d 175 (2019). No plain error found. — Trial court did not commit plain error because the court clearly instructed the jury that the other acts evidence presented in the case was to be considered only for the purpose of determining the defendant’s intent with respect to the crimes for which the defendant was being tried, and for no other 17-8-58 purpose; the jury instructions were not obviously erroneous; and the evidence that the defendant committed the acts of which the defendant was convicted was substantial. Manning v. State, 303 Ga. 723, 814 S.E.2d 730 (2018). Trial court did not commit plain error in instructing the jury on how to determine the defendant’s guilt or innocence because the court read to the jury each charge listed in the indictment; the court instructed the jury on the elements of each crime charged; the court explained the verdict form to the jury, noted that the form contained six counts, and instructed the jury that as to each count the form provided a space for the jury to check either guilty or not guilty; and the manner in which the trial court instructed the jury was not confusing with respect to whether the jury was to make a determination of guilt on each individual count of the indictment. Manning v. State, 303 Ga. 723, 814 S.E.2d 730 (2018). No plain error on simple assault. — Trial court did not commit reversible error, much less ‘‘plain error’’ pursuant to O.C.G.A. § 17-8-58(b), by failing to inform the jury of the definition of simple assault because the defendant’s defense was mistaken identity, and the undisputed evidence showed that the perpetrators intentionally fired the perpetrators’ guns through a parking lot occupied by many pedestrians and in the direction of a vehicle; neither negligence nor reckless conduct was an issue and, thus, any error in the charge would not have affected the outcome of the case. Howard v. State, 288 Ga. 741, 707 S.E.2d 80 (2011). No plain error in prior difficulties charge. — There was no reversible error, much less any ‘‘plain error’’ pursuant to O.C.G.A. § 17-8-58(b), in the trial court’s decision to give a prior difficulties charge to the jury because evidence was presented regarding prior difficulties between the defendant and the victim; thus, the inclusion of a prior difficulties charge did not constitute an impermissible comment on the evidence. Jones v. State, 289 Ga. 145, 710 S.E.2d 127 (2011). Although a jury was not explicitly instructed that the jury was required to find that a defendant was acting in a danger- 860 ous manner in order to convict the defendant of felony murder based on theft by receiving, the jury did in fact make such a finding when the jury found the defendant guilty of vehicular homicide by reckless driving because that offense, by definition, created a foreseeable risk of death. Because the proceedings were not affected, there was no plain error. State v. Kelly, 290 Ga. 29, 718 S.E.2d 232 (2011). Although a defendant failed to object to a jury instruction that the defendant contended allowed the jury to consider an alternative way to convict the defendant for false imprisonment from the facts alleged in the indictment, the court could consider whether the giving of the instruction constituted plain error. Because the trial court gave limiting instructions that the jury was only to consider the crimes as charged in the indictment, the charge was not plain error. Schneider v. State, 312 Ga. App. 504, 718 S.E.2d 833 (2011). No plain error in intent instruction. — In a defendant’s trial for possession of a firearm during the commission of a crime, the trial court properly instructed the jury that there must have been a joint operation of an act or omission to act and intention, that intent was an essential element of any crime, and that there was no presumption that the defendant acted with criminal intent. Therefore, any omitted language regarding the defendant’s knowledge did not contribute to the outcome of the trial. Morrell v. State, 313 Ga. App. 443, 721 S.E.2d 643 (2011), cert. denied, No. S12C0800, 2012 Ga. LEXIS 484 (Ga. 2012). No plain error in proximate cause instruction. — Trial court did not err in failing to instruct the jury on the law regarding proximate cause and its relationship to felony murder because the omission of additional language concerning proximate cause could not be considered a clear or obvious error under O.C.G.A. § 17-8-58; the jury was instructed that to find the defendant guilty of felony murder while in the commission of felony criminal attempt to possess cocaine, the jury had to find beyond a reasonable doubt that the felony was dangerous per se or, by the attendant circumstances in the case, created a fore- 17-8-58 seeable risk of death, and the jury was also instructed that for felony murder to be found, the jury had to find that, in the commission of the underlying felony, the defendant caused the death of another human being irrespective of malice. Sapp v. State, 290 Ga. 247, 719 S.E.2d 434 (2011). No plain error in omission of duty to retreat. — Under a plain error analysis in the defendant’s trial for murder, the trial court did not err when the court failed to charge the jury that one acting in defense of self has no duty to retreat because the jury charges given in the case fairly informed the jury as to the law of self-defense and the defendant failed to affirmatively show that the failure to charge on the duty to retreat probably affected the outcome of the trial. Shaw v. State, 292 Ga. 871, 742 S.E.2d 707 (2013). Failure to charge the jury on accident did not amount to plain error because the evidence did not warrant such a charge; the only evidence of unintentional touching occurred in the context of typical family play wholly unrelated to the incidents for which the defendant was convicted. Haithcock v. State, 320 Ga. App. 886, 740 S.E.2d 806 (2013). No plain error in instruction on prior consistent statements — Trial counsel’s failure to object to a jury instruction on prior consistent statements did not amount to plain error because the instruction did not affect the outcome of the trial since such an instruction does not explicitly direct the jury to place any additional weight on prior consistent statements beyond that which the law already gives them. Gaither v. State, 321 Ga. App. 643, 742 S.E.2d 158 (2013). No plain error in accident instruction. — Trial court did not commit reversible error by failing to instruct the jury on the defense of accident because, as to the count for child molestation by showing the first victim photos of nude persons and persons performing sexual acts, the defendant claimed that the defendant never committed such an act and, thus, could not claim it was an accident, and as to the other two counts, any error in failing to give such an instruction was not plain because the charge given fairly instructed 861 Appellate Review (Cont’d) the jury that the jury had a duty to acquit the defendant if the jury determined the state failed to prove the defendant’s guilt beyond a reasonable doubt. Ogletree v. State, 322 Ga. App. 103, 744 S.E.2d 96 (2013). Trial court did not commit plain error as to the jury charge regarding malice murder and felony murder because the defendant failed to demonstrate that the alleged error in the jury charge likely affected the outcome of the proceedings since the defendant was not convicted of either malice murder or felony murder. Booker v. State, 322 Ga. App. 257, 744 S.E.2d 429 (2013). No plain error in omission of accomplice corroboration instruction. — Defense counsel was not ineffective for failing to request a charge on accomplice corroboration because the accomplice was not the only witness; thus, there was no plain error in failing to give the accomplice corroboration charge since the state relied on other evidence apart from the accomplice’s testimony. Lane v. State, 324 Ga. App. 303, 750 S.E.2d 381 (2013). No plain error in omission of voluntary manslaughter instruction. — In the defendant’s trial for murder of another inmate, no evidence warranted instructions on voluntary manslaughter and mutual combat because the defendant testified the defendant acted in self-defense in the fight and did not intend to kill the victim, while eyewitnesses described the defendant as chasing the victim. Ruffin v. State, 296 Ga. 262, 765 S.E.2d 913 (2014). Trial court’s failure to charge on voluntary manslaughter was not plain error because there was no evidence that the other gang members had guns or shot at the appellant, and the only shell casings at the scene were found where appellant was seen firing a gun, plus, even if words were exchanged prior to the event, as a matter of law, angry statements alone ordinarily did not amount to serious provocation within the meaning of a voluntary manslaughter charge. Jones v. State, 296 Ga. 663, 769 S.E.2d 901 (2015), overruled in part by Veal v. State, 298 Ga. 691, 784 S.E.2d 403 (2016). 17-8-58 In a felony murder conviction, the trial court did not err in refusing to instruct the jury on the lesser charge of voluntary manslaughter because no plain error existed as the evidence showed that the defendant had substantial time to cool down after the defendant learned that the victim was not going to procure the cigarettes for the defendant and before the defendant intentionally sought out the victim because the fact that the defendant discussed the matter with a cellmate, procured the shank, and then later went in search of the victim was evidence that the defendant acted in a rational and calculated fashion rather than solely as a result of a sudden, violent, and irresistible passion. Barron v. State, 297 Ga. 706, 777 S.E.2d 435 (2015). Response to jury question did not create plain error. — Defendant was not entitled to reversal under a plain error analysis because it was not highly probable that any error in the response to a question from the jury about the elements of felony obstruction of an officer affected the outcome of the proceedings. Carlson v. State, 329 Ga. App. 309, 764 S.E.2d 890 (2014). In an indictment alleging that the defendant committed the offense of aggravated assault by making an assault upon one of the victims by pointing a deadly weapon at that victim, the jury charge improperly placed on the state the extra burden of showing that, in addition to assaulting with a deadly weapon, the defendant also assaulted with the intent to murder, rape, or rob; however, because the defendant was convicted of aggravated assault, the additional burden on the state could not be deemed to have likely affected the outcome, and did not constitute plain error. Staley v. State, 330 Ga. App. 501, 767 S.E.2d 507 (2014). No plain error in response to jury question. — Defendant’s failure to object to the trial court’s response to a jury question meant that appellate review was only available if the response constituted plain error and since the initial charges to the jury were correct and the response told the jury they had received all applicable law, the trial court’s failure to provide a more specific answer did not affect 862 the defendant’s substantial rights. Aikens v. State, 297 Ga. 229, 773 S.E.2d 229 (2015). Instruction on affirmative defenses not error. — Giving of an instruction on affirmative defenses and requested by the defendant was not error, clear or obvious. Williams v. State, 297 Ga. 460, 773 S.E.2d 213 (2015). Instruction on handgun not error. — In light of the overwhelming evidence of the defendant’s guilt, any error in the trial court’s instruction to the jury that a handgun was a deadly weapon as a matter of law did not seriously affect the fairness, integrity, or public reputation of the proceedings. Howell v. State, 330 Ga. App. 668, 769 S.E.2d 98 (2015). No error in instruction on use of audio-recorded statement. — Defendant could not demonstrate that any error in the charge relating to the use of the defendant’s audio-recorded statement for impeachment purposes had any effect on the outcome at trial as the jury was authorized to consider the defendant’s video-recorded, incriminating statements made at the sheriff ’s office, irrespective of whether the jury found that the prior audio-recorded statement made during the execution of the search warrant was obtained in violation of Miranda; and the jury had before the jury the defendant’s initial incriminating statements made to the county investigator in the living room during the execution of the search warrant that were not included on the audio recording made by the Georgia Bureau of Investigation special agent. McCullough v. State, 330 Ga. App. 716, 769 S.E.2d 138 (2015), cert. denied, No. S15C0908, 2015 Ga. LEXIS 330 (Ga. 2015). Instruction on sexual exploitation of children not plain error. — When the defendant was convicted of five counts of sexual exploitation of children, although it was error for the trial court to charge the jury on the law of deliberate ignorance, the error did not rise to the level of plain error because there was no evidence that the defendant was aware of a high probability of the existence of child pornography on the defendant’s laptop and purposefully contrived to avoid learning of that fact to have a defense in the 17-8-58 event of criminal prosecution as the conflicting evidence pointed either to the defendant having actual knowledge of the child pornography on the defendant’s laptop or no knowledge at all. Furthermore, there was no plain error in the trial court’s charge on the law of equal access based on the language in the charge regarding the defendant’s knowledge as it would have been clear to the jury that to convict the defendant, the defendant had to knowingly possess the child pornography found on the defendant’s laptop. McCullough v. State, 330 Ga. App. 716, 769 S.E.2d 138 (2015), cert. denied, No. S15C0908, 2015 Ga. LEXIS 330 (Ga. 2015). Instruction on assault not plain error. — Although the trial court erred by instructing the jury on assault, the instruction did not likely affect the outcome of the proceedings nor did it seriously affect the fairness, integrity, or public reputation of the judicial proceedings as the jury was provided with the indictment and the trial court correctly instructed the jury on the language of O.C.G.A. § 16-5-20(a)(2) for assault as charged in the accusation. Driskell v. State, 333 Ga. App. 886, 777 S.E.2d 717 (2015), cert. denied, No. S16C0191, 2016 Ga. LEXIS 115 (Ga. 2016). Assuming that it was obviously erroneous for the trial court to fail to remind the jury about the ‘‘within arm’s reach’’ element when the jury described the offense of unlawful possession of a firearm during the commission of a felony, that failure did not constitute plain error as it had no effect on the outcome of the defendant’s trial as that element was properly included in the indictment; the jury was instructed that the state had to prove every material allegation in the indictment beyond a reasonable doubt; whoever used a gun to shoot the victim actually had a firearm within arm’s reach at the time of the shooting; and the only issue at trial was whether one of the defendants was the shooter and the others were parties to the crime. Anderson v. State, 299 Ga. 193, 787 S.E.2d 202 (2016). No plain error in fingerprinting instruction. — Because the fingerprint evidence placed one of the defendant’s cohorts at numerous burglary scenes and 863 Appellate Review (Cont’d) was relevant to show the progression of law enforcement’s investigation into the murder and to show that the incident was not isolated, but rather was part of a larger conspiracy between the defendant and the defendant’s two cohorts to commit burglaries in the surrounding community, the trial court was authorized to give the charge on fingerprint evidence, and there was no plain error in giving the charge. Myers v. State, 299 Ga. 409, 788 S.E.2d 451 (2016). No plain error in aggravated assault instruction. — Trial court did not commit plain error in instructing the jury on the elements of aggravated assault because the court gave the jury the pattern charge for aggravated assault with a deadly weapon, and the defendant did not contend that the defendant was indicted for some other form of aggravated assault; and, even if the trial court had given an overbroad aggravated assault instruction, that defect was cured as the record indicated that the court provided the jury with a copy of the indictment for its deliberations and the court instructed the jury that the burden of proof rested on the state to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt. Herrington v. State, 300 Ga. 149, 794 S.E.2d 145 (2016). Pretermitting whether the trial court erred in failing to instruct the jury sua sponte on the requirement that accomplice testimony be corroborated, there was no likelihood the testimony affected the outcome of the trial in light of the defendant’s conversation with the victim while the victim was in jail regarding the defendant’s operation. Ferguson v. State, 335 Ga. App. 862, 783 S.E.2d 380 (2016). In a possession of a firearm during the commission of a felony case, although the trial court did not define aggravated assault as a felony, because the trial court’s instructions regarding the possession charge focused the jury’s attention on robbery without mentioning aggravated assault or identifying any offense other than robbery as a felony, the defendant did not show either clear error or that the com- 17-8-58 plained of instruction affected the outcome of the proceedings; thus, the trial court did not commit plain error in instructing the jury. Demps v. State, 337 Ga. App. 657, 788 S.E.2d 525 (2016). Following the defendant’s conviction for felony murder stemming from the shooting death of a victim who was in the line of fire during an ongoing argument, the defendant’s claim that the trial court committed plain error by instructing the jury on the commission of aggravated assault in a manner not charged in the indictment (putting the victim in fear) was rejected because there was no dispute that the victim died and no likelihood that the jury convicted based on the victim’s apprehension of violent injury. Cato v. State, 304 Ga. 496, 820 S.E.2d 41 (2018). No plain error in serious injury by vehicle instruction. — Jury instruction for serious injury by vehicle as given was not plain error because the charge that the defendant’s counsel requested was substantially similar to the charge that the trial court gave; the trial court charged the jury that no person could be convicted of any crime unless and until each element of the crime as charged was proven beyond a reasonable doubt; and a conviction under the serious injury by vehicle statute as charged did not require a conviction under the driving under the influence statute. Fitzpatrick v. State, 339 Ga. App. 135, 793 S.E.2d 446 (2016). No plain error in instruction on corroboration of confessions. — Failure to give a jury charge regarding the corroboration of confessions did not constitute plain error because the defendant’s statements were admissions, not confessions, as the defendant did not confess to the murder or the arson; and, even if the defendant’s statements to the witnesses were confessions, the defendant did not show that the error affected the outcome of the proceedings as there was ample corroborating evidence, including a witness’s testimony that the defendant was alone with the victim shortly before the murder; testimony that a neighbor saw the defendant flee through the neighbor’s yard, and the defendant’s request on a recorded tape that two witnesses fabricate an alibi defense for the defendant for the 864 time of the crime. English v. State, 300 Ga. 471, 796 S.E.2d 258 (2017). No plain error in failing to instruct on coercion. — Trial court did not plainly err in failing to charge the jury that coercion was not a defense to murder because the defendant contended that the shooter acted independently and without the defendant’s knowledge in attacking the victim while the defendant was attempting to recover the defendant’s pickup truck from another individual, and a charge on coercion would have had no direct relevance to the defense. Huff v. State, 300 Ga. 807, 796 S.E.2d 688 (2017). No plain error in omission of corroborating accomplice instruction. — While the trial court’s failure to give a corroborating accomplice instruction was clear error, it did not amount to plain error because the defendant failed to establish that omitting the instruction probably affected the outcome of the trial given that there was not merely one alleged accomplice who affirmatively identified the defendant, but also eyewitness testimony identifying the defendant and witness testimony relating the defendant’s admission of the murder. Lyman v. State, 301 Ga. 312, 800 S.E.2d 333 (2017). Failure to correctly read standard charge not plain error. — When the trial court, in the court’s oral charge to the jury, apparently forgot to read the final paragraph of the standard charge on malice murder which defined the concept of malice, the trial court’s mistake in reading the jury charge did not constitute plain error as it did not affect the defendant’s substantial rights in such a manner as to affect the outcome of the trial court proceedings as the jury, during deliberations, had the entire charge to consider as a written copy of charges was sent out with the jury and, in that written copy, the charge on malice murder was complete. Forte v. State, 302 Ga. 726, 808 S.E.2d 658 (2017). When the defendant was charged with aggravated assault with a deadly weapon, 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, even if the trial court provided a charge on 17-8-58 aggravated assault that included a method not charged in the indictment, any error in the court’s instruction was cured because the trial court provided the jury with the indictment and instructed the jury that the state was required to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt; thus, the defendant could not establish reversible error, plain or otherwise. Simpson v. State, 302 Ga. 875, 808 S.E.2d 718 (2017). Instruction on competence not error. — Trial court’s instructions did not constitute plain error as the trial court gave all of the defendant’s requested instructions with the exception of an instruction on the form of the verdict in the defendant’s separate trial on the issue of mental competency, which was nearly identical to the charge given; the trial court charged the jury that the defendant could not be tried for criminal offenses while in a condition of mental incompetence or insanity; and the charge was not misleading or confusing, and was sufficient to inform the jury as to the question for the jury’s determination and the factors comprising the legal test for competence to stand trial. Jones v. State, 303 Ga. 496, 813 S.E.2d 360 (2018). Trial court’s instruction on participation in criminal gang activity was a correct and complete statement of the law and did not constitute plain error because the instruction did not fail to limit the scope of the jury’s inquiry to the specific predicate criminal acts alleged in the indictment; and the instruction listed the four elements of the offense. Dixon v. State, 843 S.E.2d 806, No. S20A0857, 2020 Ga. LEXIS 360 (2020). No plain error in robbery instruction. — In an action for armed robbery, the trial court’s failure to give an instruction to the jury on the lesser-included offense of robbery did not amount to plain error because the state presented sufficient evidence to support an armed robbery conviction and the defendant failed to argue during the charging conference that robbery as a lesser included offense was the defendant’s sole defense. Powell v. State, 352 Ga. App. 14, 833 S.E.2d 602 (2019). 865 Appellate Review (Cont’d) No plain error in instruction on indictment. — Although an instruction that before considering other-act evidence to prove intent, the jury had to find beyond a reasonable doubt that the appellant committed acts alleged in an indictment was not an incorrect statement of law, current Georgia law did not require such instruction be given, so the appellant failed to show plain error. Jackson v. State, 306 Ga. 69, 829 S.E.2d 142 (2019). No plain error in circumstantial error instruction. — Defendant did not establish plain error in the jury instruction on circumstantial evidence because the instructions the trial court gave adequately advised the jury that if the jury believed that the circumstantial evidence supported an alternative hypothesis, the jury should return a verdict of not guilty, and it was unlikely that the jury would have returned a different verdict had the trial court added the language of the circumstantial evidence statute to the instructions. Weaver v. State, 351 Ga. App. 167, 830 S.E.2d 618 (2019), cert. denied, No. S19C1502, 2020 Ga. LEXIS 113 (Ga. 2020). No plain error in omission of sudden emergency instruction. — Since the defendant was convicted of felony murder and aggravated assault in connection with the shooting death of the victim, the defendant’s brother-in-law, because the evidence showed that the defendant already possessed the pistol before the defendant was confronted with any situation that would require the defendant to act in self-defense, the trial court’s refusal to give the defendant’s requested instructions on sudden emergency did not constitute plain error as it was not a clear or obvious error. Clark v. State, 306 Ga. 367, 829 S.E.2d 306 (2019), cert. denied, 2020 U.S. LEXIS 1059, 206 L. Ed. 2d 180 (U.S. 2020). No plain error found in failing to charge on accident defense. — In a child molestation case, the trial court did not plainly err in failing to sua sponte charge the jury on the defense of accident because accident was not the defendant’s sole defense to the charge that the defen- 17-8-58 dant molested the second victim by touching the second victim’s vaginal area with the defendant’s hand as the state presented evidence that the defendant molested the second victim in that manner on several occasions, and the defendant’s accident defense addressed only one of those instances; and the defendant did not show that the trial court’s failure to charge the jury on accident likely affected the outcome of the proceedings. Pinkston v. State, 353 Ga. App. 88, 834 S.E.2d 571 (2019). No plain error found in failing to distinguish between statement, admission, and confession. — Trial court did not plainly err in failing to instruct the jury on the legal differences between a ‘‘statement,’’ an ‘‘admission,’’ and a ‘‘confession’’ because, after the trial court instructed the jury on how to evaluate the credibility of witnesses generally and how to determine whether it was authorized to consider any statement by the defendant, the court instructed the jury to apply the general rules for testing the believability of witnesses and for deciding what weight, if any, to give to all or any part of a statement. Martin v. State, 306 Ga. 538, 832 S.E.2d 402 (2019). No plain error in jury instruction on statute of limitations. — Trial court’s inaccurate jury instruction on the statute of limitation, which failed to tell the jury that the victim’s 16th birthday was a potentially relevant date for statute of limitation purposes, did not constitute plain error requiring reversal despite counsel’s failure to object because the defendant could not demonstrate that the inaccuracy in the trial court’s statute of limitation charge impacted the jury’s verdict as the state indicted the defendant within seven years of both the victim’s 16th birthday and the victim’s outcry to police. Leekomon v. State, 351 Ga. App. 836, 832 S.E.2d 437 (2019), cert. denied, No. S20C0283, 2020 Ga. LEXIS 412 (Ga. 2020). No plain error in charge on rape and sexual battery. — Sequential charge on rape and sexual battery was not improper and did not constitute plain error as the evidence did not support a sexual-battery conviction; and there was 866 no language in the challenged instruction on rape and sexual battery suggesting that the jury was required to reach a unanimous verdict as to rape before considering the lesser-included offense of sexual battery. Seals v. State, 350 Ga. App. 787, 830 S.E.2d 315 (2019). Failure to instruct on involuntary manslaughter not plain error. — Trial court did not plainly err in failing to instruct the jury on involuntary manslaughter based on reckless conduct as a lesser included offense of the murder charges because the defendant’s possession of cocaine with intent to distribute, the defendant’s aggravated assault of the victims as part of the defendant’s effort to regain the drugs, and the defendant’s possession of the gun as a convicted felon were themselves felonies, and to support a jury charge on involuntary manslaughter, the unlawful act underlying the unintentional death of the victim had to be an act other than a felony. Hood v. State, 303 Ga. 420, 811 S.E.2d 392 (2018). No plain error in instruction on deadly force. — Trial court did not commit plain error in charging the jury because the jury was charged that the defendant’s use of deadly force in defense of property would be justified if reasonably believed to be necessary to prevent the commission of a forcible felony and that aggravated assault was a forcible felony; thus, the jury had sufficient direction in order to intelligently consider the defense-of-personal-property theory of justification based on the defendant’s claim that the victim committed aggravated assault when the victim lunged at the individual holding the gun and attempted to wrestle the gun away from the other individual. Hood v. State, 303 Ga. 420, 811 S.E.2d 392 (2018). No plain error in instruction on defense of habitation. — Trial court did not plainly err in the court’s instruction to the jury on the defense of mistake of fact as the defendant did not show that the outcome of the defendant’s trial would have been different absent the alleged error because the jury was properly instructed as to the state’s burden of proof on the defendant’s actual defense of a habitation, which was intertwined with 17-8-58 the defendant’s mistake of fact defense, as the trial court fully instructed the jury on defense of a habitation, informed the jury that defense of a habitation was an affirmative defense, and instructed the jury that the state bore the burden of disproving affirmative defenses beyond a reasonable doubt. Winters v. State, 303 Ga. 127, 810 S.E.2d 496 (2018). Trial court did not plainly err in instructing the jury on the defense of habitation form of justification where the habitation being defended was the victim’s and not the defendant’s because the court of appeals rejected the argument that the defense was for the use of a defendant, not a victim; further, the supreme court had not ruled on that issue. Beasley v. State, 305 Ga. 231, 824 S.E.2d 311 (2019). No plain error in not giving voluntary manslaughter instruction. — Trial court did not plainly err as the trial court was not required to charge the jury on the lesser included offense of voluntary manslaughter after each count of felony murder because, in the defendant’s case, there was no evidence of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. Dent v. State, 303 Ga. 110, 810 S.E.2d 527 (2018). Alleged errors created no prejudice. — Although the jury was not specifically instructed on the defense of habitation, the jury was, in fact, instructed on self-defense as well as accident, and the jury rejected all of the appellant’s conflicting stories and those defenses and in light of compelling evidence of the appellant’s guilt, an alleged error did not likely affect the outcome of the trial court proceedings. State v. Newman, 305 Ga. 792, 827 S.E.2d 678 (2019). Failure to instruct on mistake of fact not plain error. — Failure to give a mistake of fact jury charge did not amount to plain error because the defendant could not show that the trial court’s failure to give the charge likely affected the outcome of the proceedings as the evidence established that the defendant fought with the victim, the defendant’s father, prior to the victim’s death, was holding the gun to the victim’s head when the gun fired, fled the scene and failed to call for help after the 867 Appellate Review (Cont’d) shooting, admitted to numerous people that the defendant had shot the victim, lied to law enforcement on numerous occasions about the defendant’s role in the victim’s death, and wrote a letter to the district attorney taking full responsibility for the victim’s death. Norris v. State, 843 S.E.2d 837, No. S20A0500, 2020 Ga. LEXIS 359 (2020). No plain error in sequestration charge. — Trial court did not commit plain error by failing, sua sponte, to give a jury charge on the rule of sequestration as the rule of sequestration did not apply to exclude the sheriff from the courtroom because it was within the discretion of the trial judge to permit a witness to remain in the courtroom to assist either the state or the accused; and the trial court properly allowed the sheriff to be exempted from the rule of sequestration based on the fact that the sheriff was listed as a witness for both the defense and the prosecution, and the security issues in the courtroom on the day of trial. Szorcsik v. State, 303 Ga. 737, 814 S.E.2d 708 (2018). Omission of circumstantial evidence instruction not plain error. — Because the evidence of the defendant’s participation in the first burglary was wholly circumstantial, the clear and longstanding precedent required the trial court to instruct the jury on proof by circumstantial evidence even though the defendant did not request such an instruction; however, the defendant did not meet the burden under the plain error test to show that the omission of the instruction likely affected the jury’s verdict as the trial court’s charge sufficiently informed the jury of the state’s burden of excluding all other reasonable hypotheses except the defendant’s guilt with respect to the first burglary, and the defendant never suggested that the defendant’s brother committed the first burglary alone. Gadson v. State, 303 Ga. 871, 815 S.E.2d 828 (2018). No plain error in impeachment instruction. — There was no plain error in the trial court’s instructions on impeachment and prior statements and that the evidence included all of the testimony of the witnesses and any exhibits admitted 17-8-58 during the trial as the instructions clearly directed the jury to consider as evidence all of the testimony presented in the case, including testimony regarding the witnesses’ prior statements. Jackson v. State, No. S18A1598, 2019 Ga. LEXIS 142 (Mar. 4, 2019). Instruction on circumstantial evidence omitted. — While the denial of the defendant’s request that the instruction on circumstantial evidence include the state’s burden to exclude reasonable hypotheses other than guilt was erroneous, the defendant’s substantial rights were not affected, and it therefore did not amount to plain error because the state’s case was not based primarily on circumstantial evidence as, in addition to testifying that the defendant held the second victim at gunpoint, the second victim testified about directly witnessing the defendant shoot the first victim, and the third victim testified that the defendant held the third victim at gunpoint in the bedroom and ordered the third victim to remain on the bed, and because the evidence of the defendant’s guilt was strong. Jackson v. State, No. S18A1598, 2019 Ga. LEXIS 142 (Mar. 4, 2019). No plain error when jury charges tailored to evidence. — In the defendant’s trial for murder and other charges, even if defense counsel was deficient for failing to object to the jury charges regarding the defendant’s good character and use of prior statements, the defendant failed to demonstrate that the defendant was prejudiced by that failure; the charges were pattern charges and were tailored to the evidence. Jackson v. State, 305 Ga. 614, 825 S.E.2d 188 (2019). Jury charge regarding character evidence. — Plain error did not occur given that character instruction given by the trial court fully and adequately explained to the jury how the jury ought to consider the defendant’s character trait of truthfulness; thus, the defendant failed to show that simply adding a reference to the defendants general character would have likely affected the outcome of the trial court proceedings. Montgomery v. State, 350 Ga. App. 244, 828 S.E.2d 620 (2019). Omission of oral instruction on elements of sexual battery. — Trial court 868 erred in granting the defendant’s motion for new trial as the jury charge, taken as a whole, adequately informed the jury of the charges and did not constitute plain error because, for purposes of plain-error analysis, the charge included both the oral and written instructions given to the jury; the defendant failed to show that the omission of any oral instructions on the elements of sexual battery likely affected the outcome of the proceedings; the indictment, including the elements of the sexual battery charge, was read to the jury; the jury was instructed that the jury had to find each element in the indictment beyond a reasonable doubt; and the indictment was sent into the jury room. State v. Crist, 341 Ga. App. 411, 801 S.E.2d 545 (2017). Telling jury it had to reach verdict on each count. — Trial court’s answer to a jury question did not amount to plain error because, even assuming the trial court clearly erred in telling the jury it had to reach a verdict on each count, the defendant could not show that the error probably affected the outcome given the strength of the evidence, including four eyewitnesses who knew the defendant well identifying the defendant as the shooter. Hampton v. State, 302 Ga. 166, 805 S.E.2d 902 (2017). Instruction that it was not necessary to read indictment. — Trial court’s instruction essentially telling the jury it was not necessary to read the indictment was particularly harmful given the sheer size and technical nature of the indictment; however, under plain error review, the trial court’s charge did not affect the outcome of the proceedings because, upon review of the instructions as a whole, the trial court recited the charges against the defendant and properly instructed the jury on the presumption of innocence and proof beyond a reasonable doubt, that the state bore the burden to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt, and that the burden of proof never shifted to the defendant. Mathis v. State, 343 Ga. App. 206, 807 S.E.2d 4 (2017), cert. dismissed, No. S18C0491, 2018 Ga. LEXIS 316 (Ga. 2018). Plain error doctrine not applicable. — Defendant was not entitled to plain 17-8-58 error review of a colloquy at trial, held outside the jury’s presence, between the court and a witness called by the state who was reluctant to testify, because the alleged error did not involve error in the sentencing phase of a trial resulting in the death penalty, in a trial judge’s expression of opinion to the jury, or in the jury charge. Solomon v. State, 293 Ga. 605, 748 S.E.2d 865 (2013). Charge on voluntary intoxication did not constitute plain error under O.C.G.A. § 17-8-58 because the charge on voluntary intoxication stated as a prerequisite to the statute’s applicability the fact that the person was legally sane, i.e, that the person’s mind was capable of distinguishing right from wrong and of reasoning and acting rationally, when not affected by intoxicants. Alvelo v. State, 290 Ga. 609, 724 S.E.2d 377 (2012). Trial court did not plainly err in failing to charge the jury that the state bore the burden of disproving the defendant’s alibi defense beyond a reasonable doubt when the trial court completely and correctly instructed the jury on the defendant’s presumption of innocence, the state’s burden of proof beyond a reasonable doubt that the defendant committed the crimes at issue, and on assessment of the credibility of witnesses. Scott v. State, 290 Ga. 883, 725 S.E.2d 305 (2012). Giving of disapproved jury charge was plain error. — Jury charge that a DUI defendant’s refusal to submit to a blood alcohol test could create an inference that the test would show the presence of alcohol which impaired the driver’s driving was plain error, requiring a new trial, because the charge shifted the burden of proof to the defendant, requiring the driver to rebut the inference that the driver was an impaired driver. Wagner v. State, 311 Ga. App. 589, 716 S.E.2d 633 (2011). Erroneous jury charge not excused. — Defendant’s conviction for statutory rape was reversed because the trial court committed plain error by giving an erroneous jury charge, which affected the defendant’s substantial right to a charge that provided the jury with the proper guideline for determining the defendant’s guilt or innocence, and the court failed to 869 Appellate Review (Cont’d) remedy the error. Agan v. State, 319 Ga. App. 560, 737 S.E.2d 347 (2013). There was no plain error in the trial court’s charge to the jury because the trial court gave an appropriate limiting instruction prior to the admission of the similar transaction evidence and because the purposes cited in the trial court’s final charge were permissible and relevant to the state’s case. Griffin v. State, 327 Ga. App. 751, 761 S.E.2d 146 (2014). Verdict form constituted plain error. — Preprinted verdict form constituted plain error under O.C.G.A. § 17-8-58(b) because the form affected the defendant’s substantial rights by actively removing the presumption of innocence from the defendant’s trial; the defendant did not intentionally relinquish the right T.17, C.8, A.4 to have the burden of proof properly stated in the verdict form because the defendant’s failure to object was more appropriately described as a forfeiture of the right. Cheddersingh v. State, 290 Ga. 680, 724 S.E.2d 366 (2012). No failure to distinguish between civil and criminal liability. — Trial court did not commit plain error with regard to the instruction on reckless driving and reckless disregard by purportedly failing to sufficiently distinguish between civil and criminal liability as reviewing both the recharge and the initial charge together the appellate court failed to see how the jury was confused to the extent that the defendant was convicted on a lower level of criminal intent. Lauderback v. State, 320 Ga. App. 649, 740 S.E.2d 377 (2013). ARTICLE 4 CONDUCT AND ARGUMENT OF COUNSEL