Guajardo v. State, 718 S.E.2d 292 (Ga. 2011). · Go Syfert
Guajardo v. State, 718 S.E.2d 292 (Ga. 2011). Cases Citing This Book View Copy Cite
“eversal of an inconsistent verdict may occur in the rare instance where, instead of being left to speculate as to the jury's deliberations, the appellate record makes transparent the jury's rationale.”
126 citation events (126 in the last 25 years) across 2 distinct courts.
Strongest positive: Thornton v. State (ga, 2016-03-21)
Treatment trajectory · 2011 → 2026 · click a year to view as-of
2011 2018 2026
Top citers, strongest first. 43 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Thornton v. State
Ga. · 2016 · quote attribution · 1 verbatim quote · confidence high
eversal of an inconsistent verdict may occur in the rare instance where, instead of being left to speculate as to the jury's deliberations, the appellate record makes transparent the jury's rationale.
discussed Cited as authority (quoted) Walton v. State (2×) also: Cited "see, e.g."
Ga. · 2013 · signal: see also · quote attribution · 1 verbatim quote · confidence low
the proper inquiry ... is whether the instruction .. . was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceeding.
discussed Cited as authority (rule) Peavy v. State (2×) also: Cited "see"
Ga. · 2026 · confidence medium
To put it simply, repugnant verdicts – those where the guilty verdict must be vacated – occur “in the rare instance where, instead of being left to speculate as to the jury’s deliberations, the appellate record makes transparent the jury’s rationale.” Guajardo v. State, 290 Ga. 172, 174 (2011).
discussed Cited as authority (rule) Kecia Wright v. State (2×) also: Cited "see"
Ga. Ct. App. · 2022 · confidence medium
Repugnant verdicts “occur in the rare instance where, instead of being left to speculate as to the jury’s deliberations, the appellate record makes transparent the jury’s rationale.” Guajardo v. State, 290 Ga. 172, 174 (2) ( 718 SE2d 292 ) (2011).
discussed Cited as authority (rule) Grullon v. State (2×)
Ga. · 2021 · confidence medium
See, e.g., Collins v. State, 308 Ga. 515, 519 (2) (842 SE2d 275) (2020) (reviewing claim for plain error, but not relying on affirmative waiver, where “[a]t the conclusion of the jury charge, the trial court asked, ‘Are there any objections to the charge . . . on behalf of the defense?’ Appellant’s counsel replied, ‘No, your honor’”); Guajardo v. State, 290 Ga. 172, 175-176 (3) (718 SE2d 292) (2011) (reviewing claim for plain error, but not relying on affirmative waiver, where “after the trial court recharged the jury, the trial court specifically asked counsel if there were �…
examined Cited as authority (rule) State v. OWENS (And Vice Versa) (4×) also: Cited "see"
Ga. · 2021 · confidence medium
Inconsistent verdicts are permitted to stand because the jury’s rationale is not apparent from the record and courts generally are 11 not permitted to make inquiries into the jury’s deliberation process. 3 Compare Guajardo v. State, 290 Ga. 172, 174 (2) (718 SE2d 292) (2011) (repugnant verdicts require reversal “in the rare instance where, instead of being left to speculate as to the jury’s deliberations, the appellate record makes transparent the jury’s rationale”), with Thornton v. State, 298 Ga. 709, 713-14 (2) (784 SE2d 417) (2016) (jury may render inconsistent verdicts because…
discussed Cited as authority (rule) Zechariah Presley v. State
Ga. Ct. App. · 2021 · confidence medium
J., and Hodges, J., concur. 22 (Punctuation omitted.) Id. at 21 (2). 23 Id. at 21 (2). 24 Jones v. State, 318 Ga. App. 105, 106 (1) ( 733 SE2d 407 ) (2012), quoting Guajardo v. State, 290 Ga. 172, 175 (2) ( 718 SE2d 292 ) (2011). 12
discussed Cited as authority (rule) The State v. Crist
Ga. Ct. App. · 2017 · confidence medium
See generally Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) ( 99 SCt 2781 , 61 LE2d 560) (1979). 5 State v. James, 292 Ga. 440, 441 (1) ( 738 SE2d 601 ) (2013); see OCGA § 5-5-50 (“The first grant of a new trial shall not be disturbed by an appellate court unless the appellant shows that the judge abused his discretion in granting it and that the law and facts require the verdict notwithstanding the judgment of the presiding judge.”). 6 James, 292 Ga. at 441 (1); accord State v. Kelly, 290 Ga. 29, 30-31 (1) ( 718 SE2d 232 ) (2011); see OCGA § 5-5-25 (“In all motions for a new trial…
cited Cited as authority (rule) Harper v. the State
Ga. Ct. App. · 2016 · confidence medium
Guajardo v. State, 290 Ga. 172, 176 ( 718 SE2d 292 ) (2011).
discussed Cited as authority (rule) Barnes v. the State (2×)
Ga. Ct. App. · 2016 · confidence medium
In other words, “the proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceeding.” (Citation and punctuation omitted.) Guajardo v. State, 290 Ga. 172, 176 (4) ( 718 SE2d 292 ) (2011).
cited Cited as authority (rule) Gipson v. the State
Ga. Ct. App. · 2015 · confidence medium
Guajardo v. State, 290 Ga. 172, 175-176 (4) ( 718 SE2d 292 ) (2011).
cited Cited as authority (rule) McCULLOUGH v. THE STATE
Ga. Ct. App. · 2015 · confidence medium
Rather, in determining whether there was plain error, jury charges “must be read and considered as a whole.” Guajardo v. State, 290 Ga. 172, 176 (4) ( 718 SE2d 292 ) (2011).
discussed Cited as authority (rule) Curry v. the State
Ga. Ct. App. · 2015 · confidence medium
Because we find that the similar-transaction evidence was relevant to show Curry’s intent, we need not address the trial court’s findings that it was also relevant to show motive, plan, and identity. 12 See Mathis v. State, 299 Ga. App. 831, 839 (2) (c) ( 684 SE2d 6 ) (2009) (finding that because appellant “failed to support [his] assertion with cogent argument or citation of authority or to cite to the record to demonstrate where the purportedly improper testimony was admitted, we will not consider it”); McBee v. State, 296 Ga. App. 42, 46 (2) (b) ( 673 SE2d 569 ) (2009) (finding that…
examined Cited as authority (rule) Danny Gary Patterson v. State (3×)
Ga. Ct. App. · 2014 · confidence medium
“In Kelly, [our Supreme Court] adopted the federal definition of plain error from United States v. Olano, 507 U.S. 725 (II) (113 [SCt] 1770, 123 LE2d 508) (1993) as well as its four-pronged test.” 14 Guajardo v. State, 290 Ga. 172, 175-176 (4) ( 718 SE2d 292 ) (2011).
examined Cited as authority (rule) Patterson v. State (3×)
Ga. Ct. App. · 2014 · confidence medium
“In Kelly , [our Supreme Court] adopted the federal definition of plain error from United States v. Olano, 507 U.S. 725 (II) (113 [SCt] 1770, 123 LE2d 508) (1993) as well as its four-pronged test.” Guajardo v. State, 290 Ga. 172, 175-176 (4) ( 718 SE2d 292 ) (2011).
examined Cited as authority (rule) Edgar Taylor v. State (3×)
Ga. Ct. App. · 2014 · confidence medium
But he argues that his case falls into the rare exception that “reversal of an inconsistent verdict may occur . . . where, instead of being left to speculate as to the jury’s deliberations, the appellate record makes transparent the jury’s rationale.” Guajardo v. State, 290 Ga. 172, 174 (2) ( 718 SE2d 292 ) (2011).
examined Cited as authority (rule) Taylor v. State (3×)
Ga. Ct. App. · 2014 · confidence medium
But he argues that his case falls into the rare exception that “reversal of an inconsistent verdict may occur . . . where, instead of being left to speculate as to the jury’s deliberations, the appellate record makes transparent the jury’s rationale.” Guajardo v. State, 290 Ga. 172, 174 (2) ( 718 SE2d 292 ) (2011).
discussed Cited as authority (rule) Randall Floyd Ogletree v. State (2×) also: Cited "see"
Ga. Ct. App. · 2013 · confidence medium
Having nevertheless examined the record, we conclude that the test is not satisfied for any of the three counts at issue here.15 12 507 U. S. 725 (II) ( 113 SCt 1770 , 123 LE2d 508) (1993). 13 Guajardo v. State, 290 Ga. 172, 175-176 (4) ( 718 SE2d 292 ) (2011) (footnote omitted); see Allen, supra at 745 (3). 14 Kelly, supra at 33 (2) (a) (citation, punctuation and emphasis omitted); see Guajardo, supra at 176 (4), n. 3 (stating four-pronged test set forth in Olano). 15 “While we will review properly enumerated and argued claims of jury instruction error regardless of whether the appealing pa…
discussed Cited as authority (rule) Michael Ray Haithcock v. State
Ga. Ct. App. · 2013 · confidence medium
Accord Armour v. State, 315 Ga. App. 745, 748 (2) ( 728 SE2d 270 ) (2012). 14 Bolden, supra; Armour, supra. 15 Guajardo v. State, 290 Ga. 172, 175 (3) ( 718 SE2d 292 ) (2011). 16 Id. at 175 (4). 8 The “plain error” test adopted by our Supreme Court in State v. Kelly17 gives the appellate court discretion to reverse a conviction if the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity or public reputation of judicial proceedings.18 Even if we assume that trial counsel’s…
cited Cited as authority (rule) Haithcock v. State
Ga. Ct. App. · 2013 · confidence medium
Bolden, supra; Armour, supra. Guajardo v. State, 290 Ga. 172, 175 (3) ( 718 SE2d 292 ) (2011).
discussed Cited as authority (rule) Jones v. State
Ga. Ct. App. · 2012 · confidence medium
But there is no such verdict form in this case, and this court “will not engage in speculation or unauthorized inquiry regarding [the jury’s] deliberations. [Cit.]” Guajardo v. State, 290 Ga. 172, 175 (2) ( 718 SE2d 292 ) (2011). 2.
discussed Cited as authority (rule) Antonio Jones v. State
Ga. Ct. App. · 2012 · confidence medium
But there is no such verdict form in this case, and this court “will not engage in speculation or unauthorized inquiry regarding [the jury’s] deliberations. [Cit.]” Guajardo v. State, 290 Ga. 172, 175 (2) ( 718 SE2d 292 ) (2011). 3 2.
discussed Cited as authority (rule) Simmons v. State
Ga. · 2012 · confidence medium
“The proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceeding.” Guajardo v. State, 290 Ga. 172, 176 (4) ( 718 SE2d 292 ) (2011) (citation and punctuation omitted).
cited Cited as authority (rule) Clarence Kegler v. State
Ga. Ct. App. · 2012 · confidence medium
And “[j]ury instructions must be read and considered as a whole when determining whether the charges contained error.” Guajardo v. State, 290 Ga. 172, 176 (4) ( 718 SE2d 292 ) (2011).
cited Cited as authority (rule) Kegler v. State
Ga. Ct. App. · 2012 · confidence medium
And “[¡jury instructions must be read and considered as a whole when determining whether the charges contained error.” Guajardo v. State, 290 Ga. 172, 176 (4) ( 718 SE2d 292 ) (2011).
discussed Cited as authority (rule) Curry v. State
Ga. · 2012 · confidence medium
This Court has accepted as a succinct statement of the test for plain error under the Code section that “the proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceeding.” Guajardo v. State, 290 Ga. 172, 176 (4) ( 718 SE2d 292 ) (2011) (Citations and punctuation omitted.).
discussed Cited as authority (rule) Emerson v. State
Ga. Ct. App. · 2012 · confidence medium
In determining whether the charge was plain error, “[t]he proper inquiry ... is whether the instruction... was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceeding.” (Citation and punctuation omitted.) Guajardo v. State, 290 Ga. 172, 176 (4) ( 718 SE2d 292 ) (2011).
examined Cited as authority (rule) Smith v. State (3×)
Ga. Ct. App. · 2012 · confidence medium
(Punctuation omitted.) Guajardo v. State, 290 Ga. 172, 175 (3) ( 718 SE2d 292 ) (2011).
discussed Cited as authority (rule) Johnson v. State
Ga. Ct. App. · 2012 · confidence medium
Nevertheless, under State v. Kelly, 290 Ga. 29, 31 ( 718 SE2d 232 ) (2011) and OCGA § 17-8-58 (b), we consider whether the instruction constituted plain error by inquiring “whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceeding.” Guajardo v. State, 290 Ga. 172, 176 ( 718 SE2d 292 ) (2011) (citation and punctuation omitted).
discussed Cited as authority (rule) Rogers v. State
Ga. · 2012 · confidence medium
Moreover, even if OCGA § 17-8-58 were applicable, the trial court’s explanatory response could not constitute plain error pursuant to the standard set forth in State v. Kelly, 290 Ga. 29, 32 (2) (a) ( 718 SE2d 232 ) (2011), as it “was not obviously erroneous, nor did it likely affect the outcome of the proceeding.” Guajardo v. State, 290 Ga. 172, 176 (4) ( 718 SE2d 292 ) (2011). “ [Considering the totality of the circumstances, we conclude that the verdict was not coerced by the trial court. [Cit.]” Rivera v. State, supra. See also Hill v. State, 114 Ga. App. 527, 529 (3) ( 151 SE2d…
discussed Cited "see" MARTIN v. THE STATE (Two Cases) (2×)
Ga. · 2020 · signal: see · confidence high
See Guajardo v. State, 290 Ga. 172 (4) ( 718 SE2d 292 ) (2011).
discussed Cited "see" Hughes v. State (2×)
Ga. · 2020 · signal: see · confidence high
See Guajardo v. State, 290 Ga. 172, 175 (4) ( 718 SE2d 292 ) (2011).
discussed Cited "see" Rainwater v. State (2×)
Ga. · 2017 · signal: see · confidence high
See Guajardo v. State, 290 Ga. 172, 175-176 (4) ( 718 SE2d 292 ) (2011).
discussed Cited "see" Rainwater v. State (2×)
Ga. · 2017 · signal: see · confidence high
See Guajardo v. State, 290 Ga. 172, 175-176 (4) ( 718 SE2d 292 ) (2011).
examined Cited "see" Redding v. State (3×)
Ga. · 2015 · signal: see · confidence high
See Guajardo v. State, 290 Ga. 172, 175 (3) ( 718 SE2d 292 ) (2011).
examined Cited "see" Redding v. State (3×)
Ga. · 2015 · signal: see · confidence high
See Guajardo v. State, 290 Ga. 172, 175 (3) ( 718 SE2d 292 ) (2011).
discussed Cited "see" Prigmore v. State (2×)
Ga. Ct. App. · 2014 · signal: see · confidence high
See Guajardo v. State, 290 Ga. 172, 175-176 (4) ( 718 SE2d 292 ) (2011).
discussed Cited "see" Spencer Prigmore v. State (2×)
Ga. Ct. App. · 2014 · signal: see · confidence high
See Guajardo v. State, 290 Ga. 172 , 175–176 (4) ( 718 SE2d 292 ) (2011).
discussed Cited "see" Crawford v. State (2×)
Ga. Ct. App. · 2012 · signal: see · confidence high
See Guajardo v. State, 290 Ga. 172, 175 (3) ( 718 SE2d 292 ) (2011).
examined Cited "see" Morrell v. State (4×)
Ga. Ct. App. · 2011 · signal: see · confidence high
See generally Guajardo v. State, 290 Ga. 172, 174-175 (2) ( 718 SE2d 292 ) (2011) (jury question submitted during deliberation, asking whether it was “possible to find defendant not guilty on [one count], but find guilty on other counts” did not sufficiently expose jury’s rationale for acquittal and its inconsistency with the guilty verdicts).
discussed Cited "see, e.g." Montgomery v. State
Ga. · 2025 · signal: compare · confidence medium
Compare Guajardo v. State, 290 Ga. 172, 174 (2011) (holding that repugnant verdicts require reversal “in the rare instance where, instead of being left to speculate as to the jury’s deliberations, the appellate record makes transparent the jury’s rationale”).
examined Cited "see, e.g." Feder v. State (4×)
Ga. · 2024 · signal: compare · confidence medium
Compare Guajardo v. State, 290 Ga. 172, 174 (2) (718 SE2d 292) 4 We question the continuing validity of our repugnant verdict caselaw in the wake of the United States Supreme Court’s decision in McElrath v. Georgia, 601 U. S. 87, 95-96 (144 SCt 651, 217 LE2d 419) (2024).
discussed Cited "see, e.g." McELRATH v. State (2×)
Ga. · 2020 · signal: see also · confidence low
See also Guajardo v. State, 290 Ga. 172 (2) ( 718 SE2d 292 ) (2011).
Retrieving the full opinion text from the archive…
Guajardo
v.
the State
S11A0965.
Supreme Court of Georgia.
Nov 21, 2011.
718 S.E.2d 292
Bruce S. Harvey, Jennifer S. Hanson, K. Julie Hojnacki, Kimberly H. Cornwell, Mark A. Yuracheck, for appellant., Tracy Graham-Lawson, District Attorney, Caroline C. Owings, Stephen N. Knights, Jr., Assistant District Attorneys, Samuel S. Olens, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Dana E. Weinberger, Assistant Attorney General, for appel-lee.
Hunstein.
Cited by 45 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 81%
Citer courts: Supreme Court of Georgia (1)
HUNSTEIN, Chief Justice.

Nelson Guajardo was convicted of felony murder, three counts of aggravated assault, and three counts of possession of a firearm during the commission of a crime in connection with the shooting death of Derek King. [1] He appeals the trial court’s denial of his motion for new trial.

[*173] 1. Viewed in the light most favorable to the verdict, the evidence at trial showed that appellant and Diondra Taylor had been involved in a relatively large-scale drug operation together in 2005 and 2006. After a trailer load of marijuana was seized by police in November 2006, an argument arose between the two men as to whether appellant owed Taylor approximately $18,000, resulting in a number of confrontations over the next few months.

Despite their ongoing dispute, appellant, Taylor, Ward, and King gathered for drinks at an apartment shared by Taylor and Ward on the evening of May 5, 2007. They parted amicably when Taylor, Ward and King left to attend a party and appellant went in a separate direction. Later that night, Ward went to a nearby convenience store for beer and ice and met up with appellant by chance. Ward returned to the party with appellant. It is undisputed that all of the men were drinking and using drugs at the party, and several party guests saw appellant with a silver .40 caliber pistol equipped with a laser beam and filled with hollow point bullets.

In the early morning hours of May 6, 2007, all four men left the party and returned to Taylor and Ward’s apartment. Appellant and King continued drinking in the living room while Taylor and Ward retired to their bedrooms. After a few moments, a physical altercation broke out between appellant and King regarding the seized trailer of drugs. [2] Taylor and Ward entered the room and broke up the fight and asked appellant to leave. After appellant left, Taylor and Ward returned to their bedrooms, and King stood near the patio door to smoke a cigarette.

A short time later, a car sped through the apartment complex, and Taylor and Ward heard gunshots. Taylor looked out his bedroom window and saw appellant’s car driving away. Meanwhile, King ran into the hallway leading to the bedrooms, yelling that he had been shot. King died of his wounds several hours later.

At his trial, appellant testified on his own behalf claiming he had acted in self-defense. He asserted that as he left the apartment after the altercation, Taylor followed him to his car pointing a gun at him. Appellant testified that Taylor shot at him once and that he wildly[*174] fired back six shots as he drove away.

The police did not find any weapons in the apartment during their investigation. However, a number of .40 caliber bullets, bullet jackets, and casings were recovered from the scene.

The evidence in this case was sufficient for the jury to conclude beyond a reasonable doubt that appellant was guilty of the charges for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant argues that the jury’s guilty verdicts should be reversed as inconsistent with the acquittal on the malice murder charge. We abolished the rule against inconsistent verdicts in Milam v. State, 255 Ga. 560 (2) (341 SE2d 216) (1986). While appellant acknowledges that inconsistent verdicts do not necessarily require reversal, he argues that his case falls under the narrow exception to that rule recognized in Turner v. State, 283 Ga. 17 (2) (655 SE2d 589) (2008). Under that exception, reversal of an inconsistent verdict may occur in the rare instance where, instead of being left to speculate as to the jury’s deliberations, the appellate record makes transparent the jury’s rationale.

Early in its deliberations, the jury sent a note to the trial court asking whether it would be “possible to find defendant not guilty on Count I [malice murder] due to self-defense, but find guilty on other counts.” After some discussion with both counsel, the court answered that it is possible. It then clarified by stating, “You should consider self-defense on all counts though and then you’d have to make a decision whether it applies to each count.” Later, the jury asked for the written legal definition of malice murder. The trial court read the definition to the jury again, but did not provide it in writing. The trial court then offered the following explanation to the jury:

I’m going to read you the definition of malice murder again, but not give it to you in writing. The reason I’m doing that is that the entire charge is not in writing and if I give you just a portion of it in writing, I’m concerned that you, it’d be placing undue emphasis on one portion of it. You should consider the entire law, the entire charge that I gave you.

Following each recharge to the jury, the trial court asked if there were any exceptions, and neither counsel for the State nor appellant’s trial counsel made any exception or objection.

Appellant asserts that the jury’s question regarding whether it was possible to find appellant not guilty on the malice murder count due to self-defense, but still find him guilty on other counts, exposes the jury’s rationale for acquittal and its inconsistency with the guilty[*175] verdicts. We disagree. Appellant’s argument ignores the fact that the jury later sent another request to the trial court asking for a written legal definition of malice murder. Moreover, even if the jury had asked only the one question regarding the effect a finding of justification on one charge would have on its findings on the other charges, the question itself does not make the reasoning behind the jury’s verdict transparent. The questions simply indicate that the jury was attempting to understand the law as fully as possible before reaching its verdict.

We find that the case at issue does not fall within the narrow exception to the inconsistent verdict rule. The jury’s questions to the trial court during its deliberations are not sufficient to make its reasoning transparent, and we will not engage in speculation or unauthorized inquiry regarding its deliberations. See Turner, supra, 283 Ga. at 20.

3. Appellant next argues that the trial court erred by giving incorrect instructions in response to the jury’s questions. However, the issue was not properly preserved for review.

Appellant contends that the issue was properly preserved because after the jury submitted its question regarding self-defense, appellant’s trial counsel suggested to the trial court that the jury should be instructed that, “since self-defense is an absolute defense, if they find that ... he’s not guilty based on self-defense, then it should be a defense to all the other charges.” Yet, after the trial court recharged the jury, the trial court specifically asked counsel if there were “any exceptions to the Court’s answer to the questions.” Appellants’ trial counsel answered, “No, Your Honor.”

Under OCGA § 17-8-58 (a), “[a]ny party who objects to any portion of the charge to the jury .. . shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate. . . .” Failure to do so “shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties.” See id. Appellant’s trial counsel clearly did not conform to the requirements for preserving objections under OCGA § 17-8-58, and the issue is not properly preserved for review.

4. Nevertheless, regardless of trial counsel’s failure to object to the instruction at trial, our recent decision in State v. Kelly, 290 Ga. 29, 31 (1) (718 SE2d 232) (2011) requires us to consider whether the court’s jury instruction constitutes plain error since appellant properly enumerated and argued the issue on appeal. In Kelly, we adopted the federal definition of plain error from United States v. Olano, 507 U. S. 725 (II) (113 SC 1770, 123 LE2d 508) (1993) as well[*176] as its four-pronged test. [3] Our Court of Appeals summarized the Olano test succinctly in the context of OCGA § 17-8-58 (b), stating that “[t]he proper inquiry ... is whether the instruction . . . was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceeding.” Wagner v. State, 311 Ga. App. 589, 593 (716 SE2d 633) (2011) (Blackwell, J., concurring specially). Jury instructions must be read and considered as a whole when determining whether the charges contained error. Sullivan v. Sullivan, 273 Ga. 130 (2) (539 SE2d 120) (2000).

Decided November 21, 2011. Bruce S. Harvey, Jennifer S. Hanson, K. Julie Hojnacki, Kimberly [*177] H. Cornwell, Mark A. Yuracheck, for appellant.

[*176] Here, the trial court’s recharge regarding self-defense was not obviously erroneous, nor did it likely affect the outcome of the proceeding. In response to the jury’s questions, the trial court answered that it was possible to acquit by reason of self-defense on one count and find appellant guilty on other counts arising out of the same circumstances. As a result, appellant complains that the trial court conveyed to the jury it was permitted to return inconsistent verdicts. However, the trial court’s recharge also specifically instructed that the jurors should “consider self-defense on all counts” and then “make a decision whether it applies to each count.” Therefore, taken as a whole, the trial court’s recharge to the jury was not obviously erroneous. Further, given the weight of the cumulative evidence against appellant and the lack of corroboration of appellant’s theory of self-defense, it is unlikely that the outcome of the proceedings would have been different, even if the instructions had been obviously erroneous. Since neither the second nor third prongs of the plain error standard have been met, we find that there was no plain error in the trial court’s recharge to the jury on the subject of self-defense.

Judgment affirmed.

All the Justices concur. [*177] Tracy Graham-Lawson, District Attorney, Caroline C. Owings, Stephen N. Knights, Jr., Assistant District Attorneys, Samuel S. Olens, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Dana E. Weinberger, Assistant Attorney General, for appel-lee.
1

The crimes occurred on May 6, 2007. Appellant was indicted in Clayton County on charges of malice murder, felony murder, three counts of aggravated assault, and three counts of possession of a firearm during the commission of a crime. He was found guilty of felony murder, aggravated assault, and the firearm charges. The trial court merged the conviction for the aggravated assault of King into the felony murder conviction and sentenced appellant to[*173] life in prison. In addition, it sentenced appellant to two 20-year terms for the aggravated assaults of Diondra Taylor and Collinicus Ward to run concurrent with each other and consecutive to the felony murder sentence. The trial court also sentenced appellant to three consecutive five-year sentences for the firearm possession convictions. Appellant’s motion for new trial, filed March 12, 2010 and amended March 23, 2010 and March 29, 2010, was denied December 10, 2010. A notice of appeal was filed January 3, 2011. The appeal was docketed for the April term in this Court and was orally argued June 14, 2011.

2

Although King was not involved in the drug operation with appellant and Taylor, appellant believed King had told Taylor and others that appellant informed police about the trailer of marijuana, leading to its seizure.

3

The four-pronged test set forth in Olano is as follows:

First, there must be an error or defect - some sort of “[d]eviation from a legal rule” - that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it “affected the outcome of the [trial] court proceedings.” Fourth and finally, if the above three prongs are satisfied, the [appellate court] has the discretion to remedy the error - discretion which ought to be exercised only if the error “ ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ”

(Citations omitted; emphasis in original.) Puckett v. United States, 556 U. S. 129 (II) (129 SC 1423, 173 LE2d 266) (2009).