State v. Thomas, 350 Ga. App. 763

On Oct. 9, 2014, Nyron Thomas and Shinnara Gee argued; Thomas's gun discharged, and a later shot struck Gee, ricocheting into his torso and causing death. Thomas asserted accident, self-defense, and justification.
Thomas was indicted for murder, two counts of felony murder (one predicated on aggravated assault by shooting), aggravated assault with a deadly weapon (alleging assault by shooting with a handgun), and two firearm offenses.
A jury acquitted Thomas of murder, felony murder, and voluntary manslaughter, but convicted him of aggravated assault with a deadly weapon and two firearm offenses; court imposed consecutive and suspended sentences.
Thomas moved for a new trial, arguing the trial court erred by instructing the jury on aggravated assault in a way that allowed conviction on a method not charged in the indictment (e.g., placing victim in fear rather than shooting).
The trial court granted a new trial, finding the jury instruction legally erroneous. The State appealed, arguing the court’s curative instructions and the indictment sent to the jury cured any defect.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Thomas)	Held
Whether the trial court plainly erred by giving a generic aggravated-assault instruction that included methods not alleged in the indictment	The curative instruction (sending indictment to jury and telling them State must prove the manner alleged) cured any defect; no plain error	The instruction impermissibly broadened the means of committing aggravated assault beyond the indictment (shooting) and thus was plain error warranting a new trial	Reversed: no plain error — the court’s limiting instructions and sending the indictment cured the error; review de novo and remand for unresolved grounds

State v. James, 292 Ga. 440 (discussing appellate review of first new-trial grants)
O'Neal v. State, 285 Ga. 361 (trial court grant of new trial on legal question reviewed de novo)
State v. Crist, 341 Ga. App. 411 (de novo review of first new-trial grant on special grounds)
Cato v. State, 304 Ga. 496 (error to allow conviction by method not charged in indictment)
Talton v. State, 254 Ga. App. 111 (instruction defining aggravated assault by fear was erroneous where indictment alleged shooting)
Simpson v. State, 302 Ga. 875 (plain-error four-prong framework for unobjected jury charges)
Williams v. Kelley, 291 Ga. 285 (sending indictment and limiting instruction can cure a defective charge)
Manning v. State, 303 Ga. 723 (review jury charge as a whole)
Kelly, 290 Ga. 29 (plain-error standard defined)
Turner v. State, 283 Ga. 17 (cannot speculate about jury’s reasons for mixed verdicts)
Machado v. State, 300 Ga. App. 459 (curative instructions can limit jury to manner alleged in indictment)
Nicholson, 321 Ga. App. 314 (remand to trial court to consider unruled grounds)