section 16-5-3(a) commits misdemeanor involuntary manslaughter in Georgia

2024Second, he 23 contends that the trial court plainly erred in instructing the jury that criminal negligence is an element of unlawful act involuntary manslaughter because, although “the mens rea required for unlawful manner involuntary manslaughter [under OCGA § 16-5-3 (b)6] is ‘criminal negligence,’” McIver v. State, 314 Ga. 109, 122-123 (2) (c) ( 875 SE2d 810 ) (2022), the mens rea element for unlawful act involuntary manslaughter under OCGA § 16-5-3 (a) is supplied by the misdemeanor predicate offense.

2024Second, he 23 contends that the trial court plainly erred in instructing the jury that criminal negligence is an element of unlawful act involuntary manslaughter because, although “the mens rea required for unlawful manner involuntary manslaughter [under OCGA § 16-5-3 (b)6] is ‘criminal negligence,’” McIver v. State, 314 Ga. 109, 122-123 (2) (c) ( 875 SE2d 810 ) (2022), the mens rea element for unlawful act involuntary manslaughter under OCGA § 16-5-3 (a) is supplied by the misdemeanor predicate offense.

2022Id. at 110-111 (4).50 The evidence also appears to have been sufficient for the jury to have found that the appellant’s act of intentionally firing a loaded pistol at a box only a few feet away from the victim amounted to statutory reckless conduct and thus the offense of unlawful act involuntary manslaughter under OCGA § 16-5-3 (a), 50 This Court also concluded that the evidence authorized an instruction on misfortune or accident under former Ga. Code Ann. § 26-602, now OCGA § 16-2-2, see 228 Ga. at 110 (3), as well as two requested instructions with respect to the defense of insanity.

2022Id. at 110-111 (4).50 The evidence also appears to have been sufficient for the jury to have found that the appellant’s act of intentionally firing a loaded pistol at a box only a few feet away from the victim amounted to statutory reckless conduct and thus the offense of unlawful act involuntary manslaughter under OCGA § 16-5-3 (a), 50 This Court also concluded that the evidence authorized an instruction on misfortune or accident under former Ga. Code Ann. § 26-602, now OCGA § 16-2-2, see 228 Ga. at 110 (3), as well as two requested instructions with respect to the defense of insanity.

2022See 205 Ga. App. at 20; see also OCGA § 5-5-24 (c). 38 Elsewhere in the opinion, Springer noted all the necessary elements of the statutory offense of reckless conduct.

2022See 205 Ga. App. at 20 ; see also OCGA § 5-5-24 (c). 38 Elsewhere in the opinion, Springer noted all the necessary elements of the statutory offense of reckless conduct.

2015See Crowe v. State, 265 Ga. 582, 591 (16) ( 458 SE2d 799 ) (1995); Bostick v. Ricketts, 236 Ga. 304, 305 (1) ( 223 SE2d 686 ) (1976). 5 In his appellate brief, the appellant does not specify whether this contention relates to felony involuntary manslaughter under OCGA § 16-5-3 (a) (requiring “the commission of an unlawful act other than a felony”) or misdemeanor involuntary manslaughter under OCGA § 16-5-3 (b) (requiring “the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm”) or both, much less does he identify any misdemeanor on which a verdict of fe

2015See Crowe v. State, 265 Ga. 582, 591 (16) ( 458 SE2d 799 ) (1995); Bostick v. Ricketts, 236 Ga. 304, 305 (1) ( 223 SE2d 686 ) (1976). 5 In his appellate brief, the appellant does not specify whether this contention relates to felony involuntary manslaughter under OCGA § 16-5-3 (a) (requiring “the commission of an unlawful act other than a felony”) or misdemeanor involuntary manslaughter under OCGA § 16-5-3 (b) (requiring “the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm”) or both, much less does he identify any misdemeanor on which a verdict of fe

2015See Crowe v. State, 265 Ga. 582, 591 (16) ( 458 SE2d 799 ) (1995); Bostick v. Ricketts, 236 Ga. 304, 305 (1) ( 223 SE2d 686 ) (1976). 5 In his appellate brief, the appellant does not specify whether this contention relates to felony involuntary manslaughter under OCGA § 16-5-3 (a) (requiring “the commission of an unlawful act other than a felony”) or misdemeanor involuntary manslaughter under OCGA § 16-5-3 (b) (requiring “the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm”) or both, much less does he identify any misdemeanor on which a verdict of fe

2015See Crowe v. State, 265 Ga. 582, 591 (16) ( 458 SE2d 799 ) (1995); Bostick v. Ricketts, 236 Ga. 304, 305 (1) ( 223 SE2d 686 ) (1976). 5 In his appellate brief, the appellant does not specify whether this contention relates to felony involuntary manslaughter under OCGA § 16-5-3 (a) (requiring “the commission of an unlawful act other than a felony”) or misdemeanor involuntary manslaughter under OCGA § 16-5-3 (b) (requiring “the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm”) or both, much less does he identify any misdemeanor on which a verdict of fe

2015See Brown v. State, 269 Ga. 67, 69 (2) ( 495 SE2d 289 ) (1998).

2015See Brown v. State, 269 Ga. 67, 69 (2) ( 495 SE2d 289 ) (1998).

2014Appellant’s admission that he came at the victim with a gun to scare her established that “he was, at the very least, engaged in the commission of an aggravated assault when the gun fired.” Brooks v. State, 262 Ga. 187, 188 (3) ( 415 SE2d 903 ) (1992); see also Rhodes v. State, 257 Ga. 368 (6) ( 359 SE2d 670 ) (1987) (appellant’s act of using a deadly weapon in such a manner as to place the victim in reasonable apprehension of immediate violent injury constituted the felony of aggravated assault and thus he was not entitled to a jury instruction on involuntary manslaughter).

2014Appellant’s admission that he came at the victim with a gun to scare her established that “he was, at the very least, engaged in the commission of an aggravated assault when the gun fired.” Brooks v. State, 262 Ga. 187, 188 (3) ( 415 SE2d 903 ) (1992); see also Rhodes v. State, 257 Ga. 368 (6) ( 359 SE2d 670 ) (1987) (appellant’s act of using a deadly weapon in such a manner as to place the victim in reasonable apprehension of immediate violent injury constituted the felony of aggravated assault and thus he was not entitled to a jury instruction on involuntary manslaughter).

2014Appellant’s admission that he came at the victim with a gun to scare her established that “he was, at the very least, engaged in the commission of an aggravated assault when the gun fired.” Brooks v. State, 262 Ga. 187, 188 (3) ( 415 SE2d 903 ) (1992); see also Rhodes v. State, 257 Ga. 368 (6) ( 359 SE2d 670 ) (1987) (appellant’s act of using a deadly weapon in such a manner as to place the victim in reasonable apprehension of immediate violent injury constituted the felony of aggravated assault and thus he was not entitled to a jury instruction on involuntary manslaughter).

2014Appellant’s admission that he came at the victim with a gun to scare her established that “he was, at the very least, engaged in the commission of an aggravated assault when the gun fired.” Brooks v. State, 262 Ga. 187, 188 (3) ( 415 SE2d 903 ) (1992); see also Rhodes v. State, 257 Ga. 368 (6) ( 359 SE2d 670 ) (1987) (appellant’s act of using a deadly weapon in such a manner as to place the victim in reasonable apprehension of immediate violent injury constituted the felony of aggravated assault and thus he was not entitled to a jury instruction on involuntary manslaughter).

2014Likewise, this admission established appellant did not commit a lawful act in an unlawful *620 manner, justifying a charge on involuntary manslaughter pursuant to OCGA § 16-5-3 (b). 3 “Inasmuch as a jury charge on involuntary manslaughter was not warranted, trial counsel cannot be found ineffective for failing to request it.” Williams v. State, 279 Ga. 600, 603 (3) (b) ( 619 SE2d 649 ) (2005).

2014Likewise, this admission established appellant did not commit a lawful act in an unlawful *620 manner, justifying a charge on involuntary manslaughter pursuant to OCGA § 16-5-3 (b). 3 “Inasmuch as a jury charge on involuntary manslaughter was not warranted, trial counsel cannot be found ineffective for failing to request it.” Williams v. State, 279 Ga. 600, 603 (3) (b) ( 619 SE2d 649 ) (2005).

2007See Somchith v. State, 272 Ga. 261, 263 (3) ( 527 SE2d 546 ) (2000) (requested jury charges must be supported by evidence).

2007See Somchith v. State, 272 Ga. 261, 263 (3) ( 527 SE2d 546 ) (2000) (requested jury charges must be supported by evidence).

1997See generally Estes v. State, 251 Ga. 347 (2), 305 S.E.2d 778 (1983).

1997See generally Estes v. State, 251 Ga. 347 (2), 305 S.E.2d 778 (1983).

1991“The case of Kerbo v. State, 230 Ga. 241 ( 196 SE2d 424 ) (1973), relied on by [appellant], ... is inapplicable here because in Kerbo there was evidence that the defendant had[, without any claim of legal justification,] intentionally pointed the pistol at the deceased. . . .” (Emphasis supplied.) Raines v. State, 247 Ga. 504, 507 (fn. 4) ( 277 SE2d 47 ) (1981).

1991“The case of Kerbo v. State, 230 Ga. 241 ( 196 SE2d 424 ) (1973), relied on by [appellant], ... is inapplicable here because in Kerbo there was evidence that the defendant had[, without any claim of legal justification,] intentionally pointed the pistol at the deceased. . . .” (Emphasis supplied.) Raines v. State, 247 Ga. 504, 507 (fn. 4) ( 277 SE2d 47 ) (1981).