Hollins v. State

340 Ga.App. 190

796 S.E.2d 901

HOLLINS

v.The STATE.

A17A0126

Court of Appeals of Georgia.

February 8, 2017

Lynn M. Kleinrock, for Appellant.

Courtney Ruth Spicer, Asst. Dist. Atty., Daniel J. Porter, Dist. Atty., Lawrenceville, for Appellee.

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." (Citation and 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, none of which was 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 the 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 and Hollins communicated during the cab ride through a cell 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 the 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 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 "It is error to charge the jury that a crime may be committed by either of 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...