                                THIRD DIVISION
                               ELLINGTON, P. J.,
                            BETHEL and GOBEIL, 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


                                                                  September 11, 2018




In the Court of Appeals of Georgia
 A18A1259. AGUIRRE-GOMEZ v. THE STATE.

      ELLINGTON, Presiding Judge.

      A Hall County jury found Filberto Aguirre-Gomez guilty of two counts of

reckless conduct, OCGA § 16-5-60 (b), and possession of a firearm during the

commission of a felony, OCGA § 16-11-106 (b) (1).1 Aguirre-Gomez appeals from

the order denying his motion for a new trial, contending that his conviction for

possession of a firearm during the commission of a felony must be reversed because

the trial court’s jury instructions concerning that offense constituted plain error under

the circumstances of this case and because the evidence was insufficient to support

the conviction. For the following reasons, we reverse this conviction.


      1
       The appellant does not challenge his convictions for misdemeanor reckless
conduct.
      The State charged Aguirre-Gomez for offenses that arose from a fight that

broke out on a December night in 2015 while his girlfriend was packing her

belongings to move out of the home that they shared. Three of the girlfriend’s friends

fought with Aguirre-Gomez, kicking and punching him, and he fired two or three

“warning shots” at them to scare them away. As the friends fled, Aguirre-Gomez

briefly followed after them in his truck, firing one more shot. This final shot injured

one of the people with whom he had fought. The State returned a three-count

indictment against Aguirre-Gomez, charging him with two counts of aggravated

assault (each against the same victim) and possession of a firearm during the

commission of “a felony against the person of another; to wit: Aggravated Assault[.]”

The jury returned a verdict finding Aguirre-Gomez guilty of two counts of reckless

conduct (lesser-included offenses of aggravated assault) and possession of a firearm

during the commission of a felony.

      1. Aguirre-Gomez argues that his firearm possession charge must be reversed

because the jury was not properly instructed. Specifically, he argues that, because the

jury was not informed that reckless conduct is a misdemeanor,2 it could have


      2
        OCGA § 16-5-60 (b) provides that a person found guilty of the offense of
reckless conduct shall be sentenced for “a misdemeanor.”

                                          2
mistakenly inferred that reckless conduct would suffice as the predicate felony for the

firearm possession charge. For the following reasons, we agree.

      Although Aguirre-Gomez’s trial counsel suggested at the charge conference

that the trial court should inform the jury that reckless conduct is a misdemeanor, he

did not object to the jury charge that the trial court eventually gave. Our Supreme

Court has explained the limits of our appellate review in this circumstance:

      Because an objection voiced at the charge conference does not preserve
      objections to the charge as subsequently given, the failure to object to
      the charge as given precludes appellate review unless such portion of the
      jury charge constitutes plain error which affects substantial rights of the
      parties. Despite the lack of objection below, the omission of the jury
      instruction . . . was raised on motion for new trial and enumerated as
      error and argued on appeal in this case. Consequently, we will review
      the failure to [give the requested charge], but we review only for plain
      error, meaning an error that is obvious, that likely affected the outcome
      of the proceedings, and that seriously affects the fairness, integrity or
      public reputation of judicial proceedings.


Merritt v. State, 292 Ga. 327, 330-331 (2) (737 SE2d 673) (2013) (citations and

punctuation omitted). Applying this standard, we find the trial court’s failure to give

the requested charge was plain error.




                                          3
      Count 2 of the indictment charged Aguirre-Gomez with possession of a firearm

during the commission of a felony and specifically identified aggravated assault as

the underlying “felony.” He was found not guilty of both counts of aggravated

assault, but was found guilty of the lesser-included misdemeanor offense of reckless

conduct as to each count of aggravated assault. The record shows, however, that when

the court charged the jury on reckless conduct as a lesser-included offense, it failed

to instruct the jury that reckless conduct was a misdemeanor, not a felony.

      A lesser-included offense can be a predicate offense for the crime of possession

of a firearm during the commission of a felony, but only if the court’s instructions

inform the jury that the lesser-included offense qualifies as a predicate felony offense.

      In the analogous situation of a felony murder, which also requires proof
      of an underlying felony, our Supreme Court held that “a felony which
      is an included offense of another felony which is charged in an
      indictment may constitute the underlying felony upon which conviction
      of felony murder may be grounded, given adequate proof and correct
      jury instructions.” Dillard v. State, 251 Ga. 858, 859 (2) (310 SE2d 518)
      (1984). The Supreme Court then explained that “correct jury instructions
      must identify the included offense as a felony, and must specify its
      essential elements, as well as the elements of felony murder.” Id. See
      also Prater v. State, 273 Ga. 477, 479 (2) (545 SE2d 864) (2001).


Prather v. State, 259 Ga. App. 441, 442-443 (1) (576 SE2d 904) (2003).

                                           4
      In this case, the trial court not only failed to inform the jury that the offense of

reckless conduct was a misdemeanor, and therefore a crime that did not qualify as a

predicate felony offense, the court’s instructions could have misled the jury into

believing that reckless conduct was a felony. The court charged the jury, in relevant

part, that “[a] person commits reckless conduct when he causes bodily harm to or

endangers the bodily safety of another[.]” Almost immediately thereafter, when

defining the offense of possession of a firearm during the commission of a felony, the

court informed the jury that a felony “is any crime against or involving the person of

another.” Thus, the jury could have inferred from the charge that reckless conduct

was a felony that could satisfy the elements of the offense of possession of a firearm

during the commission of a felony, thereby substantially prejudicing Aguirre-

Gomez’s rights. This is an obvious error that likely affected the outcome of the

proceedings and seriously affected the fairness of the trial below. “Therefore, the

facts of this case present an even more compelling reason for reversing [the]

possession conviction than the facts presented in Prather.” See Moore v. State, 286

Ga. App. 313, 320-321 (5) (649 SE2d 337) (2007) (Because the trial court failed to

instruct the jury that the involuntary manslaughter offense – which could be either a

misdemeanor or a felony – had been charged as a felony, the defendant’s conviction

                                           5
for possession of a firearm during the commission of a felony had to be reversed.).

Consequently, Aguirre-Gomez’s conviction for possession of a firearm during the

commission of a felony must be reversed.

      2. In his second claim of error, Aguirre-Gomez contends that his conviction for

possession of a firearm during the commission of a felony was not supported by the

evidence as matter of law because the jury found him not guilty of aggravated assault.

Given our holding in Division 1, we conclude that this claim of error is moot.

      Judgment reversed. Bethel and Gobeil, JJ., concur.




                                          6
