Hollins v. the State , 340 Ga. App. 190 ( 2017 )

THIRD DIVISION
ELLINGTON, P. J.,
ANDREWS and RICKMAN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
February 8, 2017
In the Court of Appeals of Georgia
A17A0126. HOLLINS v. THE STATE.
PER CURIAM.
Following a jury trial, Cameron Hollins was convicted of aggravated assault
and possession of a firearm during the commission of a felony. After the denial of his
motion for new trial, Hollins filed this appeal, in which he asserts that the trial court
erred when it instructed the jury that it could convict him of aggravated assault in a
manner not alleged in the indictment. Finding no error, we affirm.
“On appeal from a criminal conviction, we view the evidence in the light most
favorable to the verdict, with the defendant no longer enjoying a presumption of
innocence.” (Punctuation omitted.) Crankshaw v. State, 336 Ga. App. 700 (1) (786
SE2d 245) (2016). So viewed, the record shows that Hollins and his codefendant,
Adam Pfeifer, called a taxicab to drive them from the Sugarloaf Mills shopping center
to an apartment complex near Hollins’s residence, where Pfeifer also stayed. Hollins
sat behind the taxicab driver, and Pfeifer sat behind the passenger seat. The driver
was subsequently found dead in the parking lot of the apartment complex, having
been killed by a single gunshot behind his right ear. The driver had cash in both his
wallet and his pocket, neither of which were taken, and his phone and other personal
belongings remained in the taxicab.
Police discovered a latent fingerprint on the taxicab that matched that of
Pfeifer, who had an outstanding warrant and was quickly arrested. At the time of his
arrest, Pfeifer was carrying a backpack containing the gun that was later determined
to have fired the bullet that killed the driver. The backpack also contained papers with
Hollins’s name on them, and further investigation revealed Hollins’s fingerprints on
the rear driver door handle of the taxicab.
Hollins was subsequently arrested and was jointly charged with Pfeifer for the
offenses of murder, felony murder, aggravated assault, and possession of a firearm
during commission of a felony.1 Pfeifer, however, ultimately agreed to accept a plea
offer and to testify against Hollins. During the ensuing trial, Pfeifer testified that he
1
Pfeifer was also charged with possession of a firearm by a convicted felon
during the commission of a felony.
2
and Hollins communicated during the cab ride through a cellular phone application
called Kik, and that Hollins stated his intent to rob and kill the taxicab driver. Pfeifer
maintained that he exited the taxicab upon arriving at the apartment complex, and that
he then heard Hollins fire the fatal shot.
The jury convicted Hollins of aggravated assault and possession of a firearm
during the commission of a felony, but acquitted him of murder. The jury deadlocked
on the charge of felony murder and the State agreed to accept the partial verdict. This
appeal follows the trial court’s denial of Hollins’s motion for new trial.
In his sole enumeration of error, Hollins contends that trial court erred by
charging the jury that it could convict him of aggravated assault in a manner not
alleged in the indictment. The indictment alleged that Hollins and Pfeifer assaulted
the driver “with a firearm, a deadly weapon, by shooting him. . . .” See OCGA § 16-5-
21 (b) (2) (“A person commits the offense of aggravated assault when he or she
assaults . . . [w]ith a deadly weapon . . .”). In addition to reading the indictment to the
jury, the trial court instructed it as follows:
A person commits the offense of aggravated assault when that person
assaults another person 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
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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 made with a deadly weapon.
See OCGA § 16-5-20 (a) (“A person commits the offense of simple assault when he
or she either: (1) [a]ttempts to commit a violent injury to the person of another; or (2)
[c]ommits an act which places another in reasonable apprehension of immediately
receiving a violent injury.”).
Relying on the well established law that “[i]t is error to charge the jury that a
crime may be committed by two methods, when the indictment charges it was
committed by one specific method,” (Citation and punctuation omitted.) Childs v.
State, 257 Ga. 243, 253 (17) (357 SE2d 48) (1987), Hollins asserts that the definition
of simple assault should have been limited to that of an “attempt[ ] to cause a violent
injury” to the victim. He contends that after being given the complete definition of
simple assault, the jury may have convicted him of aggravated assault solely for
placing the victim in reasonable apprehension of receiving a violent injury, when the
indictment demanded a finding that he assaulted the victim by shooting him.
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Because Hollins did not object to the charge at trial, we analyze this case under
a plain error standard of review, in accordance with State v. Kelly, 290 Ga. 29 (718
SE2d 232) (2011).
Under that analysis, we must determine whether the instruction was
erroneous, whether it was obviously so, and whether it likely affected
the outcome of the proceedings. If all three of these questions are
answered in the affirmative, this Court has the discretion to reverse if the
error seriously affects the fairness, integrity or public reputation of the
proceedings below. As noted by our Supreme Court, satisfying all four
prongs of this standard is difficult, as it should be.
(Citations and punctuation omitted.) Bledson v. State, 337 Ga. App. 444, 447-448 (2)
(787 SE2d 809) (2016).
As has been previously explained by our Supreme Court, the trial court did not
err in charging the jury on the complete definition of simple assault in this aggravated
assault case:
The indictment did not and need not . . . specify the manner in which the
defendant committed the simple assault, when that is a lesser included
offense within the greater offense of aggravated assault. Instead, an
indictment for aggravated assault should, as it did in this case, allege the
aggravating aspect of the simple assault. This indictment was sufficient
to put [the defendant] on notice that he could be convicted for
aggravated assault if he committed a simple assault in either manner
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contained in the simple assault statute, so long as the State proved that
he did so by use of a gun. The two charged methods of committing
simple assault, as an element of aggravated assault, did not provide an
improper basis for the jury to convict [the defendant] of aggravated
assault. The trial court did not charge a separate, unalleged method of
committing aggravated assault, but simply defined both methods of
committing simple assault, a lesser included offense.
(Punctuation and footnotes omitted.) Simpson v. State, 277 Ga. 356, 358 (3) (589
SE2d 90) (2003) (holding, in a case involving a defendant charged with aggravated
assault “by shooting [the victim] with a gun,” that the trial court did not err in
charging the jury that it could convict the defendant of aggravated assault “if, by his
actions, he either shot [the victim] or placed [the victim] in reasonable apprehension
of being shot”); see Bates v. State, 275 Ga. 862, 864-65 (3) (572 SE2d 550) (2002)
(“[A] court’s instruction on aggravated assault necessarily includes the law on simple
assault, and the statement in the indictment that [the defendant] committed the
aggravated assault ‘by shooting’ [the victim], together with the evidence presented,
raised the possibility of assault in the manner in which the court instructed the jury.”)
(citations and punctuation omitted); see also Marsh v. State, 254 Ga. App. 342, 343-
44 (2) (a) (562 SE2d 269) (2002). Moreover, the jurors were read the indictment and
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instructed that they were authorized to convict Hollins only if they determined that
he committed the offense of aggravated assault as alleged in the indictment.
It follows that the trial court did not err in giving the complete definition of
simple assault, and Hollins has failed to show he is entitled to a new trial on this
basis.
Judgment affirmed. Division per curiam. All judges concur.
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