In the Supreme Court of Georgia



                                                Decided: June 16, 2014


                        S14A0367. JOHNSON v. THE STATE.


       BENHAM, Justice.

       Appellant Robert Mumford Johnson appeals his conviction and sentencing

to life imprisonment for the felony murder of his wife, Mary Ellen Johnson,

predicated upon aggravated assault.1 For the reasons set forth below, we affirm.

       1. Viewed in the light most favorable to the verdict, the evidence

presented at trial showed as follows: Appellant and his wife had been married

for 48 years but, at least in the later years of the marriage, they had a tumultuous

relationship and frequently fought. The morning of October 31, 2009, the two

got into an argument, and the couple’s son saw appellant choking the victim

       1
          The crimes occurred on October 31, 2009. On January 27, 2010, a Chatham County grand
jury returned an indictment charging appellant with malice murder, felony murder (aggravated
assault), aggravated assault of Mary Ellen Johnson, and aggravated assault of Nathaniel Harris.
Appellant was tried June 26- 27, 2012, and a jury acquitted him of malice murder and aggravated
assault of Nathaniel Harris, but found him guilty of the other charges. For purposes of sentencing,
the felony murder and aggravated assault convictions were merged and the trial court sentenced
appellant to life in prison. Appellant moved for new trial on July 10, 2012, which was amended June
14, 2013. After a hearing, the trial court denied appellant’s motion for new trial on August 23, 2013.
Appellant filed a timely notice of appeal on September 23, 2013, and the case was docketed in this
Court to the January 2014 term for a decision to be made on the briefs.
outside the house. After their son intervened, the victim started packing clothes

to leave. The victim’s brother, Nathaniel Harris, arrived and the victim went

outside crying saying she wanted to get her clothes out of the house but would

not do so until the police arrived. Upon hearing this statement, appellant

threatened to kill the victim for calling the police, went inside, and came out

with a rifle. Harris attempted to persuade appellant to put the gun back in the

house but, in response, appellant turned the gun on Harris. The victim was

heard telling appellant she had not actually called the police, and the victim and

appellant talked for a while. Then Harris heard a shot, went around to the other

side of a van where the two had been talking, and discovered the victim had

been struck by a bullet.

      Appellant fled the scene in an SUV which was spotted shortly thereafter

at a gas station by the police officer who was responding to the call about the

shooting. When the police officer approached him and asked what was going

on, appellant stated, “She pissed me off, man.” A rifle was found behind the

back seat of the SUV.       After appellant was taken into custody and the

interviewing officer read him his rights, appellant made other inculpatory

statements, and the videotaped interview was played at trial. Appellant stated

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that the victim had picked at him all his life, that nothing he accomplished was

ever good enough for her, and that on the morning of the shooting she had been

calling him names. Appellant stated that when she started gathering her clothes

to leave, he grabbed her by the neck and shook her. He admitted that upon

hearing the victim claim she had called the police, he retrieved the rifle to scare

her. He admitted he told her “I’m going to give you something to call the police

for,” and he claimed that as he went around the side of the van toward his wife,

he stumbled and the gun “just went off.” Expert testimony established that the

weapon was in good condition and it took approximately one and a quarter

pounds of pressure to pull the trigger. While being questioned by the police,

appellant agreed the rifle did not have a hair trigger and that it is “harder to pull

the trigger.” The evidence showed that after appellant shot the rifle, he operated

the lever to eject the shell casing and also caused another round to be loaded into

the chamber before he put the rifle into his SUV and left the scene. The victim

died from a gunshot wound to her upper right chest.

      At trial, appellant’s defense was that the shooting occurred as the result

of a sudden irresistible passion, and that he was thus not guilty of malice murder

or felony murder but should be convicted only of the lesser included offense of

                                         3
voluntary manslaughter. The evidence was sufficient to authorize a rational jury

to find appellant guilty beyond a reasonable doubt of felony murder. See

Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979).

      2. The felony murder count of the indictment accused appellant of

unlawfully causing the victim’s death “while in the commission of a felony, to

wit: Aggravated Assault, by shooting her . . . .” The trial court instructed the

jury that if it found “beyond a reasonable doubt that the defendant committed

the homicide alleged in this Bill of Indictment at the time the defendant was

engaged in the commission of the felony of aggravated assault, then you would

be authorized to find the defendant guilty of murder, whether the homicide was

intended or not.” The aggravated assault count accused appellant of assault

“with a deadly weapon, to wit: a gun.” In its instruction to the jury, the trial

court correctly charged that aggravated assault is committed when a person

assaults another with a deadly weapon, and that a firearm, when used as such,

is a deadly weapon as a matter of law. It further charged: “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

intentionally committed an act that placed the victim in reasonable fear of

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immediately receiving a violent injury.” Thus, with respect to the definition of

simple assault, it is apparent that the trial court instructed the jury only on the

method of committing assault set forth in OCGA § 16-5-20 (a) (2), and did not

instruct the jury that assault can be committed by attempt to commit a violent

injury, pursuant to OCGA § 16-5-20 (a) (1). Appellant argues that because the

felony murder count included the phrase “by shooting her,” conviction on this

count required a finding of assault pursuant to OCGA § 16-5-20 (a) (1), by

attempt to commit a violent injury. Since the trial court did not instruct the jury

on that method of committing assault, appellant asserts the conviction must be

reversed because this created a fatal variance between the method of assault

alleged in the indictment and the way in which the jury was instructed, thereby

denying him due process of law.

      Appellant’s trial counsel, however, failed to raise an objection to the trial

court’s instruction on the offense of aggravated assault as the predicate offense

for the murder count. Consequently, unless plain error is shown by the

instructions, appellate review is precluded pursuant to OCGA § 17-8-58. In

order to establish plain error, an appellant must satisfy the burden of

establishing all four elements of the four-pronged test set forth in Shaw v. State,

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292 Ga. 871, 873 (2) (742 SE2d 707) (2013):

      [A] failure to charge amounts to plain error only to the extent that
      the failure to charge was erroneous, the error was obvious, the
      failure to charge likely affected the outcome of the proceedings, and
      the error seriously affected the fairness, integrity, or public
      reputation of the judicial proceedings.

(Citation and punctuation omitted.) Appellant argues that the felony murder

accusation, by including the phrase “by shooting her,” requires a showing, along

with instructions, that he committed the underlying assault by attempting to

commit a violent injury to the victim, as defined by OCGA § 16-5-20 (a) (1).

Even assuming the trial court’s instructions were erroneous in this respect,

however, appellant has failed to show that this error likely affected the outcome

of the proceedings. At the commencement of its instructions to the jury, the trial

court stated: “You will have the indictment with you at the end of the case and

you should consult it for the specific allegations brought by the State.” The trial

court further instructed: “The burden of proof rests upon the State to prove

every material allegation of the indictment and every essential element of the

crime charged beyond a reasonable doubt.” The felony murder count of the

indictment described the underlying felony as aggravated assault “by shooting

her.” The jury returned a guilty verdict with respect to that count. There was

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no dispute that the victim died as a result of being shot by appellant’s rifle. It

follows that the jury found the appellant committed the felony of aggravated

assault by shooting the victim, thereby causing her death, and thus found all the

elements of the aggravated assault count that were alleged in the indictment.

Appellant has failed to show that the charging error affected the outcome of the

proceedings at trial and thus has failed to satisfy the burden of proving the third

and fourth prongs of the four-pronged test for establishing plain error.

Accordingly, we reject appellant’s second and third enumerations of error.
      3. (a) Appellant asserts he was denied effective assistance of counsel on

two grounds. First, appellant asserts he received constitutionally ineffective

assistance of counsel as a result of counsel’s failure to object to the trial court’s

erroneous instruction on aggravated assault as a predicate for the felony murder

count of the indictment. To prevail on a claim of ineffective assistance of

counsel, appellant

      must show counsel’s performance was deficient and that the
      deficient performance prejudiced him to the point that a reasonable
      probability exits that, but for counsel’s errors, the outcome of the
      trial would have been different.

(Citation and punctuation omitted.) Barge v. State, 294 Ga. 567, 569 (2) (755

SE2d 166) (2014). For the reasons set forth in Division 2, we conclude the
                                          7
court’s instruction did not amount to plain error requiring the conviction to be

reversed because appellant failed to show that the alleged charging error

affected the outcome of the proceedings. Likewise, we conclude appellant has

failed to show ineffective assistance of counsel as a result of counsel’s failure

to object to the jury charge which, even if erroneous, did not affect the outcome

of the proceedings. Compare Fouts v. State 322 Ga. App. 261, 268 (4) (b) (744

SE2d 451) (2013) (finding no likelihood that the omission of a specific charge

on criminal negligence affected the outcome of the trial and that there was thus

no plain error, and, accordingly, finding that the appellant failed to show that

trial counsel’s failure to request such a charge fell outside the range of

reasonable professional conduct and thus failed to show counsel was ineffective

on this ground).

      (b) Appellant also asserts he was denied effective assistance of counsel as

a result of counsel’s failure to request a charge on involuntary manslaughter

based upon reckless conduct as a lesser included offense of the malice murder

and felony murder counts. In support of this assertion, appellant points to his

custodial admission that he got out his rifle to scare the victim and that as he

went around the van toward her, he stumbled and the gun “just went off”

                                        8
accidentally. According to appellant, the evidence thus shows he committed an

act of reckless conduct, as defined by OCGA § 16-5-60 (b), which would be the

unlawful act other than a felony that caused the death of the victim that would

justify a charge on involuntary manslaughter pursuant to OCGA § 16-5-3 (a).2

This is incorrect. Appellant’s admission that he came at the victim with a gun

to scare her established that “he was, at the very least, engaged in the

commission of an aggravated assault when the gun fired.” Brooks v. State, 262

Ga. 187, 188 (3) (415 SE2d 903) (1992); see also Rhodes v. State, 257 Ga. 368

(6) (359 SE2d 670) (1987) (appellant’s act of using a deadly weapon in such a

manner as to place the victim in reasonable apprehension of immediate violent

injury constituted the felony of aggravated assault and thus he was not entitled

to a jury instruction on involuntary manslaughter). Appellant’s admission

established he committed a felony and not a non-felonious unlawful act.

Likewise, this admission established appellant did not commit a lawful act in an

unlawful manner, justifying a charge on involuntary manslaughter pursuant to



      2
        Pursuant to OCGA § 16-5-3 (a):
      A person commits the offense of involuntary manslaughter in the commission of an
      unlawful act when he causes the death of another human being without any intention
      to do so by the commission of an unlawful act other than a felony.

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OCGA § 16-5-3 (b).3 “Inasmuch as a jury charge on involuntary manslaughter

was not warranted, trial counsel cannot be found ineffective for failing to

request it.” Williams v. State, 279 Ga. 600, 603 (3) (b) (619 SE2d 649) (2005).

      Judgment affirmed. All the Justices concur.




      3
        Pursuant to OCGA § 16-5-3 (b):
      A person commits the offense of involuntary manslaughter in the commission of a
      lawful act in an unlawful manner when he causes the death of another human being
      without any intention to do so, by the commission of a lawful act in an unlawful
      manner likely to cause death or great bodily harm.

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