section 17-8-58 enactment in Georgia

2015See also United States v. Mariano, 729 F3d 874, 881 (8th Cir. 2013) (suggesting that even “[i]f proposing an instruction is not waiver of the right to challenge it on appeal, then [the Eighth Circuit’s] ‘invited error’ cases also could be understood as a categorical conclusion that a conviction based on a mistaken jury instruction that was specifically requested by the defendant does not result in a miscarriage of justice” and thus fails under the final prong of the plain-error test). 12 requested jury instructions, if decided before or without reference to the enactment of OCGA § 17-8-58, may

2015See also United States v. Mariano, 729 F3d 874, 881 (8th Cir. 2013) (suggesting that even “[i]f proposing an instruction is not waiver of the right to challenge it on appeal, then [the Eighth Circuit’s] ‘invited error’ cases also could be understood as a categorical conclusion that a conviction based on a mistaken jury instruction that was specifically requested by the defendant does not result in a miscarriage of justice” and thus fails under the final prong of the plain-error test). 12 our cases applying the “invited error” concept broadly to preclude review of requested jury instructions, i

2015See Shaw, 292 Ga. at 873, n. 3 .

2015See Shaw, 292 Ga. at 873 n.3.

2024As we explained in Kelly, “[p]rior to the enactment of OCGA § 17-8-58, OCGA § 5-5-24 (c) was the exclusive avenue in all cases for appellate review of jury instruction errors that had been waived[.]” Kelly, 290 Ga. at 32 n.3.

2024As we explained in Kelly, “[p]rior to the enactment of OCGA § 17-8-58, OCGA § 5-5-24 (c) was the exclusive avenue in all cases for appellate review of instruction errors that had been waived[.]” Kelly, 290 Ga. at 32 n.3.

2022See Hood v. State, 303 Ga. at 427-428 (3) (applying plain error only); Martin, 349 Ga. App. at 659 (2) (applying rule of Stonaker); Turner, 342 Ga. App. at 886 (2) (applying OCGA § 5-5- 24 (c) and acknowledging rule of Stonaker); And, in some jury-charge cases decided before the seminal decision in Kelly — none of which concern the failure to charge a lesser included offense — this Court applied both OCGA § 5-5-24 and OCGA § 17-8- 58.

2022See Hood v. State, 303 Ga. at 427-428 (3) (applying plain error only); Martin, 349 Ga. App. at 659 (2) (applying rule of Stonaker); Turner, 342 Ga. App. at 886 (2) (applying OCGA § 5-5- 24 (c) and acknowledging rule of Stonaker); And, in some jury-charge cases decided before the seminal decision in Kelly — none of which concern the failure to charge a lesser included offense — this Court applied both OCGA § 5-5-24 and OCGA § 17-8- 58.

2022See Brown, 285 Ga. at 327 (3).

2022See Hood v. State, 303 Ga. at 427-428 (3) (applying plain error only); Martin, 349 Ga. App. at 659 (2) (applying rule of Stonaker); Turner, 342 Ga. App. at 886 (2) (applying OCGA § 5-5- 24 (c) and acknowledging rule of Stonaker); And, in some jury-charge cases decided before the seminal decision in Kelly — none of which concern the failure to charge a lesser included offense — this Court applied both OCGA § 5-5-24 and OCGA § 17-8- 58.

2014The law regarding the preservation of error for jury instructions in criminal cases changed with the enactment of OCGA § 17-8-58, effective July 1, 2007, which now requires a criminal defendant to inform the court of the specific objection and the grounds for such 8 “It is axiomatic that no burden is ever placed on a criminal defendant to establish innocence, and charges which place any burden of persuasion upon the defendant in criminal cases shall not be given, and such charges will be deemed erroneous and subject to reversal, absent harmless or invited error.” (Punctuation and footnote omit

2014The law regarding the preservation of error for jury instructions in criminal cases changed with the enactment of OCGA § 17-8-58, effective July 1, 2007, which now requires a criminal defendant to inform the court of the specific objection and the grounds for such 8 “It is axiomatic that no burden is ever placed on a criminal defendant to establish innocence, and charges which place any burden of persuasion upon the defendant in criminal cases shall not be given, and such charges will be deemed erroneous and subject to reversal, absent harmless or invited error.” (Punctuation and footnote omit

2011See generally Humphreys v. State, 287 Ga. 63, 70 (4) ( 694 SE2d 316 ) (2010). 7 OCGA § 17-8-58 (h); see Collier v. State, 288 Ga. 756, 758 (4) ( 707 SE2d 102 ) (2011); Hicks v. State, 287 Ga. 260, 264 (4) ( 695 SE2d 195 ) (2010). 8 See Ward v. State, 271 Ga. 62, 64 (2) ( 515 SE2d 392 ) (1999). 9 See Hammonds v. State, 263 Ga. App. 5, 7 (2) ( 587 SE2d 161 ) (2003) (finding no reversible error where instructions read as a whole sufficiently limited jury’s consideration to elements of offenses as charged in indictment such that no reasonable possibility exists that jury could have convicted defen

2011See generally Humphreys v. State, 287 Ga. 63, 70 (4) ( 694 SE2d 316 ) (2010). 7 OCGA § 17-8-58 (h); see Collier v. State, 288 Ga. 756, 758 (4) ( 707 SE2d 102 ) (2011); Hicks v. State, 287 Ga. 260, 264 (4) ( 695 SE2d 195 ) (2010). 8 See Ward v. State, 271 Ga. 62, 64 (2) ( 515 SE2d 392 ) (1999). 9 See Hammonds v. State, 263 Ga. App. 5, 7 (2) ( 587 SE2d 161 ) (2003) (finding no reversible error where instructions read as a whole sufficiently limited jury’s consideration to elements of offenses as charged in indictment such that no reasonable possibility exists that jury could have convicted defen

2011Although Madrigal did not specifically address the effect of an objection made during a charge conference, prior to the enactment of OCGA § 17-8-58 action taken at a charge conference did not preserve a party’s objections to charge for appellate review, see Palmer v. State, 270 Ga. 278, 279 (2) ( 507 SE2d 755 ) (1998) (expression of reservation of objections made at charge conference could not encompass objections to charge as subsequently given), and nothing in that Code section indicates the General Assembly’s intent to change the law in this respect.

2011Although Madrigal did not specifically address the effect of an objection made during a charge conference, prior to the enactment of OCGA § 17-8-58 action taken at a charge conference did not preserve a party’s objections to charge for appellate review, see Palmer v. State, 270 Ga. 278, 279 (2) ( 507 SE2d 755 ) (1998) (expression of reservation of objections made at charge conference could not encompass objections to charge as subsequently given), and nothing in that Code section indicates the General Assembly’s intent to change the law in this respect.

2011See generally Humphreys v. State, 287 Ga. 63, 70 (4) ( 694 SE2d 316 ) (2010). 7 OCGA § 17-8-58 (h); see Collier v. State, 288 Ga. 756, 758 (4) ( 707 SE2d 102 ) (2011); Hicks v. State, 287 Ga. 260, 264 (4) ( 695 SE2d 195 ) (2010). 8 See Ward v. State, 271 Ga. 62, 64 (2) ( 515 SE2d 392 ) (1999). 9 See Hammonds v. State, 263 Ga. App. 5, 7 (2) ( 587 SE2d 161 ) (2003) (finding no reversible error where instructions read as a whole sufficiently limited jury’s consideration to elements of offenses as charged in indictment such that no reasonable possibility exists that jury could have convicted defen

2011See generally Humphreys v. State, 287 Ga. 63, 70 (4) ( 694 SE2d 316 ) (2010). 7 OCGA § 17-8-58 (h); see Collier v. State, 288 Ga. 756, 758 (4) ( 707 SE2d 102 ) (2011); Hicks v. State, 287 Ga. 260, 264 (4) ( 695 SE2d 195 ) (2010). 8 See Ward v. State, 271 Ga. 62, 64 (2) ( 515 SE2d 392 ) (1999). 9 See Hammonds v. State, 263 Ga. App. 5, 7 (2) ( 587 SE2d 161 ) (2003) (finding no reversible error where instructions read as a whole sufficiently limited jury’s consideration to elements of offenses as charged in indictment such that no reasonable possibility exists that jury could have convicted defen

2011See also Paul v. State, 272 Ga. 845, 849 ( 537 SE2d 58 ) (2000) (holding, seven years before enactment of OCGA § 17-8-58, that “we will apply the plain error rule to death penalty cases, and other criminal cases in which the trial court violates OCGA § 17-8-57”). (c) Application of OCGA § 17-8-58 to This Case In light of this background law and the clear text of OCGA § 17-8-58, I agree with the majority that Collier’s failure to object to the jury charge on witness credibility before the jury began its deliberations precludes appellate review of that enumerated error under the usual de novo st

2011See also Paul v. State, 272 Ga. 845, 849 ( 537 SE2d 58 ) (2000) (holding, seven years before enactment of OCGA § 17-8-58, that “we will apply the plain error rule to death penalty cases, and other criminal cases in which the trial court violates OCGA § 17-8-57”). (c) Application of OCGA § 17-8-58 to This Case In light of this background law and the clear text of OCGA § 17-8-58, I agree with the majority that Collier’s failure to object to the jury charge on witness credibility before the jury began its deliberations precludes appellate review of that enumerated error under the usual de novo st

2011The Supreme Court of Georgia has stated that “a victim’s apprehension of receiving a violent injury is not an essential element of an assault in which it is alleged that the defendant actually attempted to commit a violent injury to the person of the victim.” (Citations and punctuation omitted.) Brinson, supra, 272 Ga. at 347 (1). 4 Cf. Cantera v. State, 289 Ga. 583 ( 713 SE2d 826 ) (2011) (discerning no error where trial court failed to instruct jury on simple assault altogether in connection with its charge on aggravated assault where simple assault did not constitute a substantive point or

2011The Supreme Court of Georgia has stated that “a victim’s apprehension of receiving a violent injury is not an essential element of an assault in which it is alleged that the defendant actually attempted to commit a violent injury to the person of the victim.” (Citations and punctuation omitted.) Brinson, supra, 272 Ga. at 347 (1). 4 Cf. Cantera v. State, 289 Ga. 583 ( 713 SE2d 826 ) (2011) (discerning no error where trial court failed to instruct jury on simple assault altogether in connection with its charge on aggravated assault where simple assault did not constitute a substantive point or

2011See generally Humphreys v. State, 287 Ga. 63, 70 (4) ( 694 SE2d 316 ) (2010). 7 OCGA § 17-8-58 (h); see Collier v. State, 288 Ga. 756, 758 (4) ( 707 SE2d 102 ) (2011); Hicks v. State, 287 Ga. 260, 264 (4) ( 695 SE2d 195 ) (2010). 8 See Ward v. State, 271 Ga. 62, 64 (2) ( 515 SE2d 392 ) (1999). 9 See Hammonds v. State, 263 Ga. App. 5, 7 (2) ( 587 SE2d 161 ) (2003) (finding no reversible error where instructions read as a whole sufficiently limited jury’s consideration to elements of offenses as charged in indictment such that no reasonable possibility exists that jury could have convicted defen

2011See generally Humphreys v. State, 287 Ga. 63, 70 (4) ( 694 SE2d 316 ) (2010). 7 OCGA § 17-8-58 (h); see Collier v. State, 288 Ga. 756, 758 (4) ( 707 SE2d 102 ) (2011); Hicks v. State, 287 Ga. 260, 264 (4) ( 695 SE2d 195 ) (2010). 8 See Ward v. State, 271 Ga. 62, 64 (2) ( 515 SE2d 392 ) (1999). 9 See Hammonds v. State, 263 Ga. App. 5, 7 (2) ( 587 SE2d 161 ) (2003) (finding no reversible error where instructions read as a whole sufficiently limited jury’s consideration to elements of offenses as charged in indictment such that no reasonable possibility exists that jury could have convicted defen

2011See generally Humphreys v. State, 287 Ga. 63, 70 (4) ( 694 SE2d 316 ) (2010). 7 OCGA § 17-8-58 (h); see Collier v. State, 288 Ga. 756, 758 (4) ( 707 SE2d 102 ) (2011); Hicks v. State, 287 Ga. 260, 264 (4) ( 695 SE2d 195 ) (2010). 8 See Ward v. State, 271 Ga. 62, 64 (2) ( 515 SE2d 392 ) (1999). 9 See Hammonds v. State, 263 Ga. App. 5, 7 (2) ( 587 SE2d 161 ) (2003) (finding no reversible error where instructions read as a whole sufficiently limited jury’s consideration to elements of offenses as charged in indictment such that no reasonable possibility exists that jury could have convicted defen

2011See generally Humphreys v. State, 287 Ga. 63, 70 (4) ( 694 SE2d 316 ) (2010). 7 OCGA § 17-8-58 (h); see Collier v. State, 288 Ga. 756, 758 (4) ( 707 SE2d 102 ) (2011); Hicks v. State, 287 Ga. 260, 264 (4) ( 695 SE2d 195 ) (2010). 8 See Ward v. State, 271 Ga. 62, 64 (2) ( 515 SE2d 392 ) (1999). 9 See Hammonds v. State, 263 Ga. App. 5, 7 (2) ( 587 SE2d 161 ) (2003) (finding no reversible error where instructions read as a whole sufficiently limited jury’s consideration to elements of offenses as charged in indictment such that no reasonable possibility exists that jury could have convicted defen

2011See generally Humphreys v. State, 287 Ga. 63, 70 (4) ( 694 SE2d 316 ) (2010). 7 OCGA § 17-8-58 (h); see Collier v. State, 288 Ga. 756, 758 (4) ( 707 SE2d 102 ) (2011); Hicks v. State, 287 Ga. 260, 264 (4) ( 695 SE2d 195 ) (2010). 8 See Ward v. State, 271 Ga. 62, 64 (2) ( 515 SE2d 392 ) (1999). 9 See Hammonds v. State, 263 Ga. App. 5, 7 (2) ( 587 SE2d 161 ) (2003) (finding no reversible error where instructions read as a whole sufficiently limited jury’s consideration to elements of offenses as charged in indictment such that no reasonable possibility exists that jury could have convicted defen

2011See generally Humphreys v. State, 287 Ga. 63, 70 (4) ( 694 SE2d 316 ) (2010). 7 OCGA § 17-8-58 (h); see Collier v. State, 288 Ga. 756, 758 (4) ( 707 SE2d 102 ) (2011); Hicks v. State, 287 Ga. 260, 264 (4) ( 695 SE2d 195 ) (2010). 8 See Ward v. State, 271 Ga. 62, 64 (2) ( 515 SE2d 392 ) (1999). 9 See Hammonds v. State, 263 Ga. App. 5, 7 (2) ( 587 SE2d 161 ) (2003) (finding no reversible error where instructions read as a whole sufficiently limited jury’s consideration to elements of offenses as charged in indictment such that no reasonable possibility exists that jury could have convicted defen

2011See Olano, supra, 507 U.S. at 732-733 (II)(A), 113 S.Ct. 1770 ("[d]eviation from a legal rule is `error' unless the rule has been waived"); Jackson v. State, 246 Ga. 459 , 271 S.E.2d 855 (1980) (holding, under pre-OCGA § 17-8-58 law, that counsel's statement that he had no objection to charge constituted waiver of asserted error).

2011See Olano, supra, 507 U.S. at 732-733 (II)(A), 113 S.Ct. 1770 ("[d]eviation from a legal rule is `error' unless the rule has been waived"); Jackson v. State, 246 Ga. 459 , 271 S.E.2d 855 (1980) (holding, under pre-OCGA § 17-8-58 law, that counsel's statement that he had no objection to charge constituted waiver of asserted error).

2011While we will review properly enumerated and argued claims of jury instruction error regardless of whether the appealing party specifically casts the alleged infirmity as "plain error," parties should be advised that the hurdle to establishing plain error is high, as discussed in Division 2(a), infra, and therefore that the failure to specifically articulate how the alleged error satisfies this high standard increases the likelihood that their claims in this regard will be rejected. [3] Prior to the enactment of OCGA § 17-8-58, OCGA § 5-5-24(c) was the exclusive avenue in all cases for appella

2011While we will review properly enumerated and argued claims of jury instruction error regardless of whether the appealing party specifically casts the alleged infirmity as "plain error," parties should be advised that the hurdle to establishing plain error is high, as discussed in Division 2(a), infra, and therefore that the failure to specifically articulate how the alleged error satisfies this high standard increases the likelihood that their claims in this regard will be rejected. [3] Prior to the enactment of OCGA § 17-8-58, OCGA § 5-5-24(c) was the exclusive avenue in all cases for appella

2011See generally Humphreys v. State, 287 Ga. 63, 70 (4) ( 694 SE2d 316 ) (2010). 7 OCGA § 17-8-58 (h); see Collier v. State, 288 Ga. 756, 758 (4) ( 707 SE2d 102 ) (2011); Hicks v. State, 287 Ga. 260, 264 (4) ( 695 SE2d 195 ) (2010). 8 See Ward v. State, 271 Ga. 62, 64 (2) ( 515 SE2d 392 ) (1999). 9 See Hammonds v. State, 263 Ga. App. 5, 7 (2) ( 587 SE2d 161 ) (2003) (finding no reversible error where instructions read as a whole sufficiently limited jury’s consideration to elements of offenses as charged in indictment such that no reasonable possibility exists that jury could have convicted defen

2011See generally Humphreys v. State, 287 Ga. 63, 70 (4) ( 694 SE2d 316 ) (2010). 7 OCGA § 17-8-58 (h); see Collier v. State, 288 Ga. 756, 758 (4) ( 707 SE2d 102 ) (2011); Hicks v. State, 287 Ga. 260, 264 (4) ( 695 SE2d 195 ) (2010). 8 See Ward v. State, 271 Ga. 62, 64 (2) ( 515 SE2d 392 ) (1999). 9 See Hammonds v. State, 263 Ga. App. 5, 7 (2) ( 587 SE2d 161 ) (2003) (finding no reversible error where instructions read as a whole sufficiently limited jury’s consideration to elements of offenses as charged in indictment such that no reasonable possibility exists that jury could have convicted defen

2011See generally Humphreys v. State, 287 Ga. 63, 70 (4) ( 694 SE2d 316 ) (2010). 7 OCGA § 17-8-58 (h); see Collier v. State, 288 Ga. 756, 758 (4) ( 707 SE2d 102 ) (2011); Hicks v. State, 287 Ga. 260, 264 (4) ( 695 SE2d 195 ) (2010). 8 See Ward v. State, 271 Ga. 62, 64 (2) ( 515 SE2d 392 ) (1999). 9 See Hammonds v. State, 263 Ga. App. 5, 7 (2) ( 587 SE2d 161 ) (2003) (finding no reversible error where instructions read as a whole sufficiently limited jury’s consideration to elements of offenses as charged in indictment such that no reasonable possibility exists that jury could have convicted defen

2011See generally Humphreys v. State, 287 Ga. 63, 70 (4) ( 694 SE2d 316 ) (2010). 7 OCGA § 17-8-58 (h); see Collier v. State, 288 Ga. 756, 758 (4) ( 707 SE2d 102 ) (2011); Hicks v. State, 287 Ga. 260, 264 (4) ( 695 SE2d 195 ) (2010). 8 See Ward v. State, 271 Ga. 62, 64 (2) ( 515 SE2d 392 ) (1999). 9 See Hammonds v. State, 263 Ga. App. 5, 7 (2) ( 587 SE2d 161 ) (2003) (finding no reversible error where instructions read as a whole sufficiently limited jury’s consideration to elements of offenses as charged in indictment such that no reasonable possibility exists that jury could have convicted defen

2010OCGA § 17-8-58 (a) now requires a criminal defendant to “inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate.” 14 Lowery, supra at 75 (4) (b) (ii). 15 Id. at 71 (4) (a) (citation and punctuation omitted). 16 Sears v. State, 270 Ga. 834, 838 (1) ( 514 SE2d 426 ) (1999). 17 See id. at 837 (whether a verdict resulted from coercion depended upon the totality of the circumstances). 18 297 Ga. App. 153 ( 676 SE2d 821 ) (2009). 19 Id. at 160 (2). 20 See generally Nowill v. State, 271 Ga. App. 254, 259 (5) ( 609 SE2d 188 ) (appellant bear

2010OCGA § 17-8-58 (a) now requires a criminal defendant to “inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate.” 14 Lowery, supra at 75 (4) (b) (ii). 15 Id. at 71 (4) (a) (citation and punctuation omitted). 16 Sears v. State, 270 Ga. 834, 838 (1) ( 514 SE2d 426 ) (1999). 17 See id. at 837 (whether a verdict resulted from coercion depended upon the totality of the circumstances). 18 297 Ga. App. 153 ( 676 SE2d 821 ) (2009). 19 Id. at 160 (2). 20 See generally Nowill v. State, 271 Ga. App. 254, 259 (5) ( 609 SE2d 188 ) (appellant bear

2010“The law with respect to the preservation of error with regard to jury instructions in criminal cases changed with the enactment of OCGA § 17-8-58, effective July 1, 2007.” Loadholt v. State, 286 Ga. 402, 405 (3), n. 3 ( 687 SE2d 824 ) (2010).

2010“The law with respect to the preservation of error with regard to jury instructions in criminal cases changed with the enactment of OCGA § 17-8-58, effective July 1, 2007.” Loadholt v. State, 286 Ga. 402, 405 (3), n. 3 ( 687 SE2d 824 ) (2010).

2010OCGA § 17-8-58 (a) now requires a criminal defendant to “inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate.” 14 Lowery, supra at 75 (4) (b) (ii). 15 Id. at 71 (4) (a) (citation and punctuation omitted). 16 Sears v. State, 270 Ga. 834, 838 (1) ( 514 SE2d 426 ) (1999). 17 See id. at 837 (whether a verdict resulted from coercion depended upon the totality of the circumstances). 18 297 Ga. App. 153 ( 676 SE2d 821 ) (2009). 19 Id. at 160 (2). 20 See generally Nowill v. State, 271 Ga. App. 254, 259 (5) ( 609 SE2d 188 ) (appellant bear

2010OCGA § 17-8-58 (a) now requires a criminal defendant to “inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate.” 14 Lowery, supra at 75 (4) (b) (ii). 15 Id. at 71 (4) (a) (citation and punctuation omitted). 16 Sears v. State, 270 Ga. 834, 838 (1) ( 514 SE2d 426 ) (1999). 17 See id. at 837 (whether a verdict resulted from coercion depended upon the totality of the circumstances). 18 297 Ga. App. 153 ( 676 SE2d 821 ) (2009). 19 Id. at 160 (2). 20 See generally Nowill v. State, 271 Ga. App. 254, 259 (5) ( 609 SE2d 188 ) (appellant bear

2010OCGA § 17-8-58 (a) now requires a criminal defendant to “inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate.” 14 Lowery, supra at 75 (4) (b) (ii). 15 Id. at 71 (4) (a) (citation and punctuation omitted). 16 Sears v. State, 270 Ga. 834, 838 (1) ( 514 SE2d 426 ) (1999). 17 See id. at 837 (whether a verdict resulted from coercion depended upon the totality of the circumstances). 18 297 Ga. App. 153 ( 676 SE2d 821 ) (2009). 19 Id. at 160 (2). 20 See generally Nowill v. State, 271 Ga. App. 254, 259 (5) ( 609 SE2d 188 ) (appellant bear

2010OCGA § 17-8-58 (a) now requires a criminal defendant to “inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate.” 14 Lowery, supra at 75 (4) (b) (ii). 15 Id. at 71 (4) (a) (citation and punctuation omitted). 16 Sears v. State, 270 Ga. 834, 838 (1) ( 514 SE2d 426 ) (1999). 17 See id. at 837 (whether a verdict resulted from coercion depended upon the totality of the circumstances). 18 297 Ga. App. 153 ( 676 SE2d 821 ) (2009). 19 Id. at 160 (2). 20 See generally Nowill v. State, 271 Ga. App. 254, 259 (5) ( 609 SE2d 188 ) (appellant bear