Cato v. State

820 S.E.2d 41, 304 Ga. 496
Supreme Court of Georgia·Decided October 9, 2018·No. S18A0669·Published·Cited by 16 cases

Opinion

Peterson, Justice.

**496Darron Cato appeals his convictions for felony murder and a firearm offense stemming from the death of T'Shanerka Smith.1 Cato argues that the trial court committed plain error when it instructed the jury on the commission of aggravated assault-the predicate offense for the felony murder charge-in a manner not charged in the indictment. Cato also argues that his trial counsel provided ineffective assistance by failing to present a complete alibi defense. Because any error in the aggravated assault instruction was harmless, and because Cato cannot show that trial counsel's failure to call Cato's father as an alibi witness was constitutionally deficient performance, we affirm.

1. Viewing the evidence in the light most favorable to the verdict, Smith's death can be traced to a dispute between Smith's brother (Eddie Edwards) and a group that included Cato. The events in question took place at a Fulton County apartment complex on Beeler Drive, near Cleveland Avenue. The night before the shooting, Cato, Derek McCarter, Jeneral Walter, and several others partied in an apartment unit in which McCarter was squatting. The next day, Edwards, who performed maintenance at the apartment complex and was assisting management in the process of boarding up units that **497were supposed to be vacant, arrived at the apartment and began removing the locks from the doors, telling McCarter and Cato that they needed to leave. This sparked an argument between Edwards and Cato.

After Edwards returned to his own apartment, a group of three or four men drove up in a car and one of them (Walter) began shooting out of a backseat window of the car. No one was injured by the shooting, but Edwards and a cousin proceeded to find McCarter and beat him up in retaliation. Police responded to a 911 call, and McCarter was taken to the hospital.

Cato and his friends, who had left the apartment complex, returned that day seeking *44revenge. Walter's girlfriend, Angelica Mitchell, drove Walter, Cato, and two other men to the apartment complex. Mitchell observed that at least Cato and Walter had firearms. Around 12:55 p.m., Mitchell dropped off her four passengers outside the complex. Cato, Walter, and one of the other men shot in the direction of Edwards's apartment, where Smith had been standing on the porch. Smith was shot and died from her wounds after being taken to a hospital. An eyewitness identified Cato as one of the shooters.

Although Cato does not challenge the sufficiency of the evidence, we have independently reviewed the record and conclude that the trial evidence was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that he was guilty of the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Cato first argues that the trial court committed plain error by instructing the jury on the commission of aggravated assault in a manner not charged in the indictment. Because Cato cannot show that any error in this instruction likely affected the outcome of the trial, this is not a basis for reversal.

Here, the felony murder charge was premised on the felony of aggravated assault committed by shooting Smith. The trial court instructed the jury:

A person commits aggravated assault when that person assaults another person with a deadly weapon. To constitute such assault, actual injury to the alleged victim may 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 alleged victim in reasonable fear of immediately receiving a violent injury.

Cato argues that the trial court erred by instructing the jury that the **498State could prove aggravated assault based on mere reasonable apprehension of injury, such that the jury could have found Cato guilty if it found that he simply pointed a gun at Smith, even though the indictment alleged that Cato actually fired a weapon at the victim.

Cato did not object at trial, and so his challenge to the jury charge is reviewed for plain error only. See OCGA § 17-8-58 (b). Under plain error review, "we will reverse the trial court only if the alleged instructional error was not affirmatively waived, was obvious beyond reasonable dispute, likely affected the outcome of the proceedings, and seriously affected the fairness, integrity, or public reputation of judicial proceedings." Saffold v. State, 298 Ga. 643, 650 (7), 784 S.E.2d 365 (2016) (citation and punctuation omitted).

It is error to charge the jury that an aggravated assault may be committed in a method not charged in the indictment. Chapman v. State, 273 Ga. 865, 868 (2), 548 S.E.2d 278 (2001). But even assuming that the trial court gave an incorrect charge on aggravated assault, Cato cannot show that this instruction likely affected the outcome of the proceedings. Here, it is unlikely that there was any confusion about what the State had to prove in the light of the other instructions given by the court, the nature of the charges, and the evidence presented at trial.

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Cato v. State, 820 S.E.2d 41, 304 Ga. 496 (Ga. 2018).

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