Craft v. State

321 Ga. 638

• Court: Supreme Court of Georgia
• Decided: May 28, 2025
• Docket: S25A0134
• Status: Published

Opinion

321 Ga. 638 FINAL COPY

S25A0134. CRAFT v. THE STATE.

MCMILLIAN, Justice.

Ozell Craft challenges his convictions for malice murder and

other crimes in connection with the shooting death of Marcus Sims.1

Craft’s sole enumeration of error is that the trial court committed

plain error by failing to provide an additional jury instruction on his

1 The crimes occurred on September 9, 2019. On February 25, 2020, a

DeKalb County grand jury indicted Craft for malice murder, felony murder, two counts of aggravated assault with a deadly weapon, and possession of a firearm during the commission of a felony. At a trial from December 8 to 13, 2021, the jury found Craft guilty of all charges. On January 27, 2022, the trial court sentenced Craft to serve life in prison for malice murder, ten years in prison consecutive for one count of aggravated assault, and five years in prison consecutive to the life sentence, but concurrent with the aggravated assault sentence, for possession of a firearm during the commission of a felony. Although the trial court purported to merge the felony murder count, that count was actually vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 371-72 (4) (434 SE2d 479) (1993). The other aggravated assault count should have merged with the malice murder count for sentencing purposes, although the trial court purported to merge it with the felony murder count. See Miller v. State, 309 Ga. 549, 552 (3) (847 SE2d 344) (2020). On February 10, 2022, Craft filed a motion for new trial. On April 18, 2024, the trial court held a hearing on the motion, at which Craft was represented by new counsel. On April 23, 2024, the trial court entered an order denying the motion. Craft filed a timely notice of appeal. The case was docketed in this Court to the term beginning in December 2024 and submitted for a decision on the briefs. defense of habitation theory of justification. However, as explained

below, Craft failed to carry his burden to show that this alleged error

likely affected the outcome of his trial. Accordingly, we affirm.

1. The evidence at trial showed as follows. On the morning

of September 9, 2019, Craft, who was 17 years old, was getting ready

for school when he texted a friend, 20-year-old Khalil Rogers, to see

if Rogers was still interested in buying Craft’s Springfield XD .45-

caliber pistol. Rogers texted back that he was, drove to Craft’s house,

and picked up Craft. Rogers then drove to a fast food restaurant near

the high school that he had attended and picked up two of their

friends, John Jackson and Ryan Solomon.

Rogers drove the group to a store, where he obtained $300 that

a friend had sent him through MoneyGram. When the group got

back to the car, Rogers gave Craft $250, and Craft handed Rogers

his Springfield pistol, which Rogers noticed had three cartridges in

the magazine. Rogers also had his Smith & Wesson 9mm pistol in

the car, which had a cartridge in the chamber and a fully loaded

magazine of 15 cartridges. There were no other firearms in Rogers’s

2 car.

The group then decided to buy some marijuana and smoke it.

They called several contacts without success until Craft reached

Sims, who agreed to sell them marijuana. Rogers drove the group to

Sims’s apartment complex, which was located next to Craft’s

apartment complex. When they arrived, Craft got out of the car,

walked to Sims’s apartment, and bought some marijuana from Sims.

Sims noticed the Springfield pistol, which Craft brought with him

when he went to get the marijuana. Sims asked if Craft would sell

Sims the pistol. Craft said that he could not because it was not his

and that the pistol instead belonged to Rogers.

Sims accompanied Craft back to the car, where Craft handed

the Springfield pistol to Rogers. Sims told Rogers that he wanted to

buy it and offered Rogers $250. Rogers said that he would not sell it

for that amount but would sell it for $350. Sims said that he would

not pay that much but asked Rogers “to take his number down.”

Rogers saved Sims’s number in his phone and said that he would

call Sims later.

3 Rogers drove the group to Craft’s apartment complex. Rogers

backed into a parking space at the end of a row in front of Craft’s

building, which was at the very back of the complex. Craft, Rogers,

Jackson, and Solomon then smoked marijuana for about 30 minutes

before Sims drove up with his girlfriend, Arianna Evans, and parked

his car directly in front of Rogers’s car, so that the two cars were

facing each other. Rogers grabbed the Springfield pistol and put it

in his lap, and Craft did the same with Rogers’s Smith & Wesson

9mm pistol.

Sims got out of his car, walked around to the driver’s side of

Rogers’s car, and asked Rogers through the open window why

Rogers had not called him. Sims told Rogers to “stop playing with

his money,” pulled out a wad of cash, and said, “[M]y money good.”

Rogers then told Sims, “I really don’t want to sell the gun.” Craft

“chuckled,” and Rogers looked toward Craft. At that moment, Sims

reached through the open window and snatched the Springfield

pistol off Rogers’s lap. Rogers grabbed the barrel of the Springfield

pistol, a struggle ensued, and seconds later, Craft fired the Smith &

4 Wesson 9mm pistol, hitting Sims once in the chest. When Rogers

heard the gunshot, he let go of the barrel of the Springfield pistol.

Sims yelled to Evans, who was still sitting in his car, “I’m hit; call

911,” before collapsing facedown on the pavement with the

Springfield pistol.

As soon as the gunshot rang out, everyone in Rogers’s car got

out, and Rogers, Jackson, and Solomon ran away. Evans got out of

Sims’s car, ran to him, and tried to comfort him, but he was not

responding to her, although he was still breathing. Craft, who had

the Smith & Wesson 9mm pistol in his hand, walked from the

passenger side of Rogers’s car, around the back of the car, and to the

driver’s side, where Sims was lying unresponsive on the pavement.

Evans knew Craft from “around the neighborhood,” and when she

saw him, she got up, put her hands in the air, and started backing

away. Craft stood a few feet from Sims and shot him nine more times

with the Smith & Wesson 9mm pistol.

Craft then went to the nearest building and yelled to Rogers

through the breezeway, “[C]ome on, let’s go.” Craft said, “He’s

5 done[.] He’s over[.] He’s dead[.] He’s gone[.] Out of here.” Rogers ran

back to his car, took the Springfield pistol out of Sims’s hand, and

got into the driver’s seat. Sims was barely breathing. When Rogers

examined the Springfield pistol, he noticed that it still had three

cartridges in the magazine.

Craft followed Rogers back to Rogers’s car, walked to the

passenger side, and pointed the Smith & Wesson 9mm pistol at

Evans, who still had her hands up because she was scared and did

not know what to do. Craft yelled, “[B]***h, move the f*****g car;

move the car.” Evans got into the driver’s seat of Sims’s car, and

Craft got into the other car with Rogers. Evans was unable to move

Sims’s car out of the way, so Rogers put his car in reverse, backed

up over the curb onto the grass, and drove forward around Sims’s

car.

Rogers drove home, where he showered, changed clothes, and

gave Craft a t-shirt to change into. Rogers got into a different

vehicle, a Toyota 4Runner, and drove Craft to his high school. Craft

was arrested at school a few hours later.

6 Law enforcement officers arrived at Craft’s apartment complex

within minutes of the shooting, but Sims was already dead. A

medical examiner conducted an autopsy on Sims’s body and

determined that he had been shot a total of ten times and that the

cause of death was multiple gunshot wounds. There were two

entrance wounds on the front of the body, one in the chest and one

in the left thigh. The bullet that hit Sims in the chest pierced his left

lung before exiting out his back. Sims could have survived “a

number of minutes” after receiving that injury. The other eight

entrance wounds were on the backside of Sims’s body. The bullets

that hit Sims on his backside caused numerous injuries, including

piercing his heart, lungs, liver, right kidney, and bladder.

All of the cartridge casings recovered from the crime scene

were 9mm. Emily Bagwell, an expert in firearms examination and

tool mark identification, examined nine 9mm shell casings recovered

from the area around Sims’s body and one 9mm shell casing

recovered from the rear driver’s side floorboard of Rogers’s car. She

also examined five bullets extracted from Sims’s body during the

7 autopsy. She determined that all ten shell casings were fired from

the same firearm; that all five bullets were fired from the same

firearm; and that the shell casings and bullets were all consistent

with having been fired from a Smith & Wesson 9mm pistol.

2. Craft contends that the trial court erred in failing to

provide an additional jury instruction on his defense of habitation

theory of justification. Although the court agreed to give the

additional jury instruction during the charge conference, the court

inadvertently omitted it when charging the jury. After the jury

charge, Craft did not object to the omission. Thus, as Craft

recognizes, we review his claim only for plain error. See OCGA § 17-

8-58 (b).

To show plain error, Craft must point to an error that was not

affirmatively waived, was obvious beyond reasonable dispute, likely

affected the outcome, and seriously affected the fairness, integrity,

or public reputation of judicial proceedings. See Woodard v. State,

296 Ga. 803, 806 (2) (771 SE2d 362) (2015). “Satisfying all four

prongs of this standard is difficult, as it should be.” State v. Kelly,

8 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011) (cleaned up). “We need

not analyze all of the elements of the plain error test when the

defendant has failed to establish one of them.” Ruthenberg v. State,

317 Ga. 227, 231 (2) (892 SE2d 728) (2023) (cleaned up). When

evaluating claims of instructional error, we examine the jury charge

as a whole. See Woodard, 296 Ga. at 806-07 (2).

The defense of habitation statute, OCGA § 16-3-23,2 explains

that a person may lawfully threaten or use force against another

2 OCGA § 16-3-23 says in full:

A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other’s unlawful entry into or attack upon a habitation; however, such person is justified in the use of force which is intended or likely to cause death or great bodily harm only if: (1) The entry is made or attempted in a violent and tumultuous manner and he or she reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person dwelling or being therein and that such force is necessary to prevent the assault or offer of personal violence; (2) That force is used against another person who is not a member of the family or household and who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using such force knew or had reason to believe that an unlawful and forcible entry occurred; or (3) The person using such force reasonably believes

9 person “when and to the extent that” he reasonably believes it is

necessary “to prevent or terminate” the other person’s “unlawful

entry into or attack upon” a “habitation,” which OCGA § 16-3-24.1

defines to include a “motor vehicle.” OCGA § 16-3-23 then lists the

three situations in which such a person is justified in using deadly

force, i.e., “force which is intended or likely to cause death or great

bodily harm.” See also Fair v. State, 288 Ga. 244, 257 (2) (A) (3) (702

SE2d 420) (2010) (“[T]he elements set forth in the introductory

clause . . . are necessary to justify the use of any force or threats of

force in defense of habitation in any circumstances. [Paragraphs] (1),

(2), and (3) set forth the additional elements necessary to justify the

use of deadly force in three different contexts.” (emphasis in

original)). All three situations in which the use of deadly force is

authorized in defense of habitation involve an actual entry or

attempted entry into a habitation. See OCGA § 16-3-23 (1)-(3).

that the entry is made or attempted for the purpose of committing a felony therein and that such force is necessary to prevent the commission of the felony. 10 As Craft requested, the trial court instructed the jury on

paragraph (1) of OCGA § 16-3-23, which authorizes the use of deadly

force when the entry is attempted or made “in a violent and

tumultuous manner” and the person using deadly force reasonably

believes both that the “entry is attempted or made for the purpose

of assaulting or offering personal violence to any person dwelling or

being therein” and that “such force is necessary to prevent the

assault or offer of personal violence.” The court also agreed to

instruct the jury on paragraph (3) of OCGA § 16-3-23, which in some

ways is broader than paragraph (1), but inadvertently omitted that

instruction when it charged the jury. Paragraph (3) authorizes the

use of deadly force when “[t]he person using such force” reasonably

believes both that the “entry is made or attempted for the purpose

of committing a felony therein” and that “such force is necessary to

prevent the commission of the felony.”3

Craft argues that the trial court erred in failing to instruct the

3 Craft did not request, and the trial court did not give, a jury instruction

on paragraph (2) of OCGA § 16-3-23, which applies only to the use of deadly force in defense of an actual “residence.” 11 jury on paragraph (3) of the defense of habitation statute because

there was at least slight evidence that Sims unlawfully entered

Rogers’s car by reaching into it and that Craft reasonably believed

both that Sims’s entry was made for the purpose of committing a

felony in the car (namely, robbery of the Springfield pistol from

Rogers) and that the use of deadly force was necessary to prevent

Sims’s commission of the robbery. See OCGA § 16-8-40 (a) (“A person

commits the offense of robbery when, with intent to commit theft, he

takes property of another from the person or the immediate presence

of another: (1) By use of force; . . . or (3) By sudden snatching.”), (b)

(“A person convicted of the offense of robbery shall be punished by

imprisonment for not less than one nor more than 20 years.”). See

also OCGA § 16-8-2 (“A person commits the offense of theft by taking

when he unlawfully takes or, being in lawful possession thereof,

unlawfully appropriates any property of another with the intention

of depriving him of the property . . . .”).

We assume, without deciding, that Craft was justified in firing

the initial shot that struck Sims in the chest. After all, the evidence

12 showed that when Craft fired the initial shot, he was sitting in the

front seat of Rogers’s car, and Sims and Rogers were struggling for

control of the loaded Springfield pistol, which was pointed inside the

car. However, even assuming that the trial court committed a legal

error that was obvious beyond dispute when it charged the jury on

defense of habitation but omitted a jury instruction on paragraph (3)

of the defense of habitation statute, Craft’s plain error claim still

fails because he has not carried his burden to show that the omission

likely affected the outcome of the trial.

The evidence of Craft’s guilt and that he was not justified in

shooting Sims while Sims was on the ground was overwhelming. The

evidence showed that Sims was still alive after Craft shot him the

first time. After the initial shot, everyone got out of Rogers’s car,

including Craft. But instead of running away like the others, Craft

walked from the passenger side of Rogers’s car, around the back of

the car, and to the driver’s side, where Sims, who was still breathing

but unable to respond to his girlfriend, was lying facedown on the

pavement. Craft then shot Sims nine more times, piercing his heart,

13 lungs, liver, right kidney, and bladder, and causing his death.

Given this evidence, Craft has failed to carry his burden to

show that a jury instruction on paragraph (3) of the defense of

habitation statute would have made a difference in the outcome of

his trial. When Craft fired the nine additional shots that eventually

killed Sims, Sims was no longer making or attempting to make an

entry into Rogers’s car that Craft could prevent or terminate

through the use of force, deadly or otherwise. Craft’s conduct

therefore was not justified as defense of habitation under paragraph

(3). See OCGA § 16-3-23 (authorizing a person to threaten or use

force against another person “when and to the extent that he or she

reasonably believes that such threat or force is necessary to prevent

or terminate such other’s unlawful entry into or attack upon a

habitation” (emphasis added)); Walker v. State, 301 Ga. 482, 486 (2)

(b) (801 SE2d 804) (2017) (“[A]mong other things, for defense of

habitation to apply in this case, there would need to be evidence that

[the decedent] was entering or attempting to enter the SUV at the

time that Appellant shot him.” (emphasis added)). See also Swanson

14 v. State, 306 Ga. 153, 163 (2) (b) (829 SE2d 312) (2019) (noting that

“our appellate courts have concluded in other cases that a defendant

was not prejudiced by counsel’s [professionally deficient] failure to

request a jury charge on defense of habitation” where “the record

showed the defendant used force against a victim who was no longer

attempting to enter a habitation”).

Having failed to show that the omission of the jury instruction

likely affected the outcome of the trial, Craft’s plain error claim fails.

See State v. Newman, 305 Ga. 792, 797-98 (2) (a) (827 SE2d 678)

(2019) (holding that the trial court’s failure to charge on defense of

habitation was not plain error because it “did not likely affect the

outcome of the trial court proceedings” in light of the compelling

evidence of defendant’s guilt (cleaned up)).

Judgment affirmed. Peterson, C. J., Warren, P. J., and Bethel,

Ellington, LaGrua, Colvin, and Pinson, JJ., concur.

15 Decided May 28, 2025.

Murder. DeKalb Superior Court. Before Judge Barrie.

Dillon McConnell, for appellant.

Sherry Boston, District Attorney, Deborah D. Wellborn, Nicole

D. Finnie, Andrew W. Turner, Assistant District Attorneys;

Christopher M. Carr, Attorney General, Beth A. Burton, Deputy

Attorney General, Clint C. Malcolm, Senior Assistant Attorney

General, Stephany J. Luttrell, Assistant Attorney General, for

appellee.