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 S.E.2d 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.
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:
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 S.E.2d 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.
(Punctuation and footnotes omitted.) Simpson v. State, 277 Ga. 356, 358 (3), 589 S.E.2d 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 S.E.2d 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 S.E.2d 269 (2002). Moreover, the jurors were read the indictment and 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.