                              THIRD DIVISION
                             MCFADDEN, C. J.,
                         DOYLE, P. J., and HODGES, J.

                    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.
                    Please refer to the Supreme Court of Georgia Judicial
                    Emergency Order of March 14, 2020 for further
                    information at (https://www.gaappeals.us/rules).


                                                                       May 15, 2020




In the Court of Appeals of Georgia
 A20A0738. DOBBS v. THE STATE.

      MCFADDEN, Chief Judge.

      After a jury trial, Willie Dobbs was convicted of several offenses related to a

shooting, including attempted murder and aggravated battery. He argues on appeal

that, during the charge to the jury, the trial court improperly expressed her opinion in

violation of OCGA § 17-8-57, but Dobbs did not raise this objection at trial and he

has not shown plain error. So we affirm his convictions. Because the trial court erred

in connection with merging certain convictions for sentencing, however, we vacate

Dobbs’s sentence and remand for resentencing.

      1. Facts.

      Viewed in the light most favorable to the convictions, the trial evidence

showed that on May 14, 2014, Dobbs shot his girlfriend in the face and hand,
disfiguring her. The victim, with whom Dobbs had a history of violent interactions,

had just driven into the parking lot of the apartment complex where Dobbs lived. She

saw Dobbs standing in the parking lot holding a gun. She put her car into reverse and

tried to leave, but the car stalled. Dobbs approached the passenger side of the car,

where the victim’s sister sat, and tried to open the door. Unable to do so, he pointed

the gun through the window at the victim. The victim got out of the car, falling in the

process. When she stood back up, she saw Dobbs standing behind the car. She said

to him, “Willie, I’m your baby mama,” and Dobbs responded, saying either “you need

to get the hell on” or “you need to get the fuck on.” Dobbs then fired the gun at her,

hitting both her raised hand and her face. After that, he walked away.

      2. Trial court’s alleged expression of opinion.

      Dobbs’s sole argument for reversal of his convictions is that the trial court

improperly expressed her opinion regarding the evidence in her charge to the jury.

Pertinently, OCGA § 17-8-57 (a) (1) provides that “[i]t is error for any judge, during

any phase of any criminal case, to express or intimate to the jury the judge’s opinion

as to whether a fact at issue has or has not been proved[.]” Because Dobbs did not

object to this alleged violation at trial, we review this claim only for “plain error

which affects substantive rights of the parties.” OCGA § 17-8-57 (b). This plain error

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standard of review applies even though this case was tried before the enactment date

of OCGA § 17-8-57 (b), because the case was appealed after that date. See Willis v.

State, 304 Ga. 122, 129 (2) (b) (816 SE2d 656) (2018).

      Because the alleged violation of OCGA § 17-8-57 (a) (1) occurred in jury

instructions, we look to the plain error standard of review for jury instructions to

determine whether plain error occurred in this case. See Willis, supra at 129 (2) (c).

For Dobbs to establish reversible error under this standard of review,

      the instruction must not only be erroneous; the error must be obvious;
      the error must not have been affirmatively waived; and the appellant
      must make an affirmative showing that the instruction likely affected the
      outcome of the proceedings. Only if the appellant has met the burden of
      proof with respect to these three prongs of the plain error test, the
      appellate court may, in its discretion, remedy the error if it seriously
      affects the fairness, integrity[,] or public reputation of the judicial
      proceedings.


Id. (citations omitted). And in determining if he has made this showing, “we examine

the jury charge as a whole.” Horton v. State, 350 Ga. App. 133, 135 (828 SE2d 150)

(2019) (citation and punctuation omitted).

      Dobbs has not shown plain error because he has not shown that the trial court

made an obvious error in the jury charges. He challenges the following charges on the

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ground that, by including in them factual allegations set forth in the indictment

(emphasized below), the trial court improperly expressed her opinion about the

evidence in violation of OCGA § 17-8-57 (a) (1):

             A person commits criminal attempt to commit murder when, with
      the intent to commit murder, that person performs an act that constitutes
      a substantial step toward the commission of the crime of murder, such
      as by firing a handgun aimed at the alleged victim’s head, with the
      intent to cause the death of a human being.


      ...


             A person commits the offense of aggravated battery when he
      maliciously causes bodily harm to another by seriously disfiguring
      another’s face by shooting another in the face with a firearm.


             A person commits the offense of aggravated battery when he
      maliciously causes bodily harm to another by seriously disfiguring
      another’s left hand, by shooting another in the hand with a firearm.


(Emphasis supplied.) But the trial court also instructed the jury: “By giving this

instruction, the court in no way suggests to you that the defendant has or has not

committed any other acts; nor whether such acts, if committed, prove anything. This

is a matter solely for your determination.” Moreover, construing an earlier version of



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OCGA § 17-8-57, this court held that, “[b]y charging the jury in the language of the

indictment as to the physical acts of the defendant which amounted to the crimes

charged, the court did not express an opinion as to the evidence[.]” Weaver v. State,

137 Ga. App. 470, 472 (7) (224 SE2d 110) (1976) (construing Code Ann. § 81-1104).

Given this precedent, and considering the charge as a whole, we cannot say that the

trial court obviously erred in her instructions to the jury, so we affirm Dobbs’s

convictions.

      3. Merger.

      After filing his appellate brief and enumeration of error, Dobbs sought to

amend his enumeration of error to add a claim that the trial court erred in merging or

failing to merge his convictions for the purpose of sentencing. We denied Dobbs’s

motion because an appellant generally may not amend his or her brief to assert an

untimely enumeration of error. See Brown v. State, 301 Ga. 728, 733 (3) (804 SE2d

16) (2017); Anuforo v. State, 293 Ga. App. 1, 4 (3) (666 SE2d 50) (2008). However,

noting that we may address a merger issue even if the appellant does not enumerate

it as error, see Nazario v. State, 293 Ga. 480 (746 SE2d 109) (2013), we permitted

Dobbs and the state to file supplemental briefs on that issue.



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      “Whether offenses merge is a legal question, which we review de novo.”

Hernandez v. State, 317 Ga. App. 845, 851 (3) (733 SE2d 30) (2012) (citation and

punctuation omitted). Dobbs argues that the trial court erred in sentencing in two

respects: by failing to merge for sentencing his two convictions for aggravated

battery, and by merging his aggravated battery convictions into his conviction for

attempted murder, instead of vice versa. As detailed below, we agree that the trial

court erred in both respects, so we vacate the sentence and remand for resentencing.

      (a) Merger of two aggravated battery convictions.

      The jury found Dobbs guilty of two counts of aggravated battery in violation

of OCGA § 16-5-24, for seriously disfiguring the victim by shooting her in the face,

and for seriously disfiguring her by shooting her in the hand. The trial court sentenced

Dobbs on both of these counts. Because the two counts were based on the single

unlawful act of Dobbs shooting the victim, we find, and the state agrees, that the trial

court should have merged the aggravated battery convictions for sentencing purposes.

See Fordham v. State, 352 Ga. App. 520, 527 (3) (835 SE2d 360) (2019).

      (b) Merger of aggravated battery convictions into attempted murder

conviction.



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      The trial court merged, for sentencing purposes, Dobbs’s two convictions for

aggravated battery under OCGA § 16-5-24 into his conviction for criminal attempt

to commit murder under OCGA § 16-4-1. Dobbs argues that this court’s decisions in

Hernandez v. State, supra, 317 Ga. App. 845, and Zamudio v. State, 332 Ga. App. 37

(771 SE2d 733) (2015), required the trial court instead to merge the attempted murder

conviction into the aggravated battery convictions.

      We agree that, under the authorities cited by Dobbs, the trial court should have

merged the attempted murder conviction into the aggravated battery convictions. In

Hernandez, we held that convictions for the crimes of attempted murder and family

violence aggravated battery, which were based upon the same unlawful act, merge

under OCGA § 16-1-6 (2). Hernandez, 317 Ga. App. at 851-852 (3). That Code

section pertinently provides that one crime is included in another where “[i]t differs

. . . only in the respect that a less serious injury or risk of injury to the same person,

property, or public interest . . . suffices to establish its commission.” OCGA § 16-1-6

(2). Significantly, we held in Hernandez that attempted murder is the lesser crime of

the two, because it “requires a less serious injury to the person [than family violence

aggravated battery], as personal injury is not a required element of attempted

murder.” Hernandez, supra at 852 (3). Relying on the rationale of the Hernandez

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decision, in Zamudio we held that the trial court erred in merging a conviction for

aggravated battery into a conviction for attempted murder, rather than the other way

around. Zamudio, 332 Ga. App. at 47-48 (7). That rationale requires the same result

here.

        We are not persuaded by the state’s argument that we should overrule

Hernandez and Zamudio. Those decisions flow out of our Supreme Court’s decision

in Ledford v. State, 289 Ga. 70 (702 SE2d 239) (2011), disapproved in part on other

grounds by Willis v. State, 304 Ga. 686, 706 (11) n. 3 (820 SE2d 640) (2018). See

Zamudio, 332 Ga. App. at 48 (7) (citing Ledford); Hernandez, 317 Ga. App. at 851-

852 (3) (citing Ledford). Ledford concerned the crimes of aggravated battery and

malice murder. The Court in that case held that both crimes required a malicious

intent and that the only difference between them, in determining whether one crime

was included in the other under OCGA § 16-1-6 (2) for merger purposes, was the

severity of the victim’s injury. Ledford, supra at 72, 74 (1).

        Our Hernandez and Zamudio decisions also are consistent with the Supreme

Court’s decision in Regent v. State, 299 Ga. 172, 176 (787 SE2d 217) (2016), which

held that where, as here, one of the two crimes involved merely a risk of harm while

the other involved actual harm, the former merged into the latter under OCGA § 16-1-

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6 (2). Finally, in Zamudio we considered — and rejected — the state’s request that

we overrule Hernandez on this point, instead “finding its analysis to be sound.”

Zamudio, supra at 48 (7). The state has not convinced us otherwise in this case.

      Judgment affirmed, sentence vacated, and case remanded for resentencing.

Doyle, P. J., and Hodges, J., concur.




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